If an individual is aware of an imminent extradition request, we can liaise with the Metropolitan Police Extradition Unit to arrange voluntary surrender. This avoids the inconvenience and distress of an arrest without warning and increases the likelihood of the Court granting bail from the outset of the case. The chances of bail being granted in any case are increased by careful preparation of the application and skilled representation at the first hearing.

Pre-Brexit all Category 1 territories were those in the EU. Post-Brexit they include all EU countries as well as Gibraltar.

Extradition arrangements between the UK and Category 1 territories where the arrest (not the issuing of the warrant) took place post 31 December 2020 are governed by part one of the Extradition Act 2003 as amended by Title VII (Surrender) of the UK-EU Trade and Co-operation Agreement (TACA 2020) which was adopted into the UK national law by the European Union (Future Relationship) Act 2020 (EUFRA 2020).

For any European Arrest Warrant (EAW) where the arrest took place before 1 January 2021, the old rules under the EAW Framework apply.

Category 2 territories are governed by part two of the Extradition Act 2003 and this applies to territories with whom the UK has formal arrangements through the European Convention on Extradition, the Commonwealth Scheme, or a bilateral treaty. These territories are separated into two types, A and B. Type A countries are not required to provide prima facie evidence in support of their requests for extradition, whilst those in Type B are still required to do so.

The simple answer used to be no, however, following Brexit and the introduction of The Extradition (Provisional Arrest) Act 2020 an arrest can be made in some circumstances where an Interpol Red Notice or Diffusion has been issued on behalf of countries listed in Schedule A1 of the 2020 Act. This has to be certified by the National Crime Agency (NCA) before an arrest or provisional arrest can be made. The list of countries will be updated and the latest version should always be checked.

Challenges to extradition are largely based on the process and its fairness, the judicial and personal treatment of the individual if returned, their personal circumstances, the impact of extradition on their human rights and the jurisdiction where the trial should be held. Extradition and human rights law is constantly evolving and outcomes can depend on political/diplomatic considerations so it is essential to instruct a specialist in this area.

Post-Brexit the EAW was replaced by the Trade and Cooperation Agreement (TCA) which largely left the Extradition Act 2003 untouched save for a change in emphasis. The EAW still applies to all extradition arrests pre-January 2021. Authorities from ECHR rulings still apply.

The language has changed slightly as ‘surrender arrangements’ describe the process and there is a greater emphasis on proportionality and less emphasis on mutual trust and cooperation.

The Court of Justice of the European Union (CJEU) no longer has a role in UK extradition and this has been replaced by a ‘Specialised Committee on Law Enforcement and Judicial Cooperation’ that has the authority to, amongst other things, ‘monitor and review the implementation and ensure the proper functioning of this agreement or any supplementing agreement’.

Post-Brexit 16 out of 27 EU states have applied to the Specialised Committee to ‘opt-out’ of extraditing their own nationals to non-EU states (including the UK). The UK has not taken such a step.

Some commentators believe this development may undermine the culture of mutual cooperation and trust between the United Kingdom and the EU States and proportionality may carry greater weight post Brexit, but it is too early to tell.