Extradition (Provisional) Arrest Bill: a sticking plaster?
On 10 March 2020, The Secretary of State made Statutory Instrument No. 265 of 2020 titled “The Extradition Act 2003 Amendment to Designations) Order 2020”.
The Statutory Instrument came into effect on Tuesday 17 March 2020. It amends The Extradition Act 2003 (Designation of Part 1 Territories Order 2003(2) to include Iceland and Norway in the list of designated Part 1 territories. It should be noted, however, that Article 3 modifies the Act to exclude the condition in sections 64(5) and 65(5) which refers to the Framework list of offences, meaning the United Kingdom has chosen not to waive the dual criminality requirement in respect of those offences in cases with Iceland and Norway.
The SI also amends The Extradition Act 2003 (Designation of Part 2 Territories Order 2003(3) to include Kuwait and Morocco in the list of designated Part 2 territories and omits Iceland and Norway from that list.
For the purposes of section 74(11)(b) of the Extradition Act 2003, the relevant period of time following provisional arrest within which the appropriate judge must receive the formal extradition request, the Secretary of State’s certificate and a copy of any relevant Order in Council [as required by section 70(9) of the Act] is extended to 65 days in respect of both Kuwait and Mexico. This period of time includes the 60 days allowed under each agreement for receipt of the formal extradition request and 5 additional days for the Secretary of State to issue his certificate under section 70 of the Act and send the relevant papers to the appropriate judge.
The transitional provision states that the SI has no effect where a person is accused of an offence in Iceland or Norway and the Secretary of State has already issued a section 70 certificate or the Requested Person has been provisionally arrested.
An extradition treaty between the United Kingdom and Kuwait was signed on 15 December 2016; a convention on extradition between the United Kingdom and the Kingdom of Morocco was signed on 13 April 2013. It was expressly provided that both of these agreements could be implemented by secondary legislation subject to affirmative resolution procedure and are therefore in force thanks to the Statutory Instrument of 10 March 2020.
Of course, the re-designation of Iceland and Norway will only be effective during the Brexit transition period. After 31 December 2020, when it is likely that all part 1 territories will be re-designated as part 2, Iceland and Norway will be back where they started.
The existence of a formal agreement with Kuwait and Morocco will probably be of greater benefit in those cases where the United Kingdom is seeking the return of a Requested Person from either of those territories to the United Kingdom. In requests from Kuwait and Morocco to the United Kingdom, it will be interesting to see how their authorities comply with the evidential and documentary requirements in the formal agreements; how they respond to requests for further information; and, most importantly, how Human Rights arguments develop.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.
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