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Learning that you are the subject of an extradition request can be an extremely distressing experience. You may be wondering whether there are ways to avoid extradition, what sentences you might face if extradited, and whether alternatives to immediate imprisonment such as suspended sentences are possible either in the UK or in the requesting state. This article aims to explain the extradition process, the relationship between extradition and sentencing, the circumstances in which suspended sentences may be relevant, and the steps you can take to protect your interests.
What are extradition orders?
Extradition is the formal process by which one country surrenders an individual to another country to face criminal prosecution or to serve a sentence for an offence committed in that jurisdiction. The United Kingdom operates under two primary extradition frameworks: Part 1 of the Extradition Act 2003, which governs extradition to and from European Union countries and certain other territories through the European Arrest Warrant system, and Part 2, which applies to non-EU countries through treaties (agreements between countries).
An extradition request is typically started by the requesting state issuing either a European Arrest Warrant or a formal extradition request. Once received by UK authorities, the individual named in the warrant or request may be arrested and brought before a court. The court then examines whether the legal requirements for extradition are satisfied, including whether the conduct alleged constitutes an extraditable offence, whether any bars to extradition apply, and whether extradition would be compatible with the individual’s human rights.
What are the usual outcomes for extradition cases?
If the court orders your extradition, you will be surrendered to the requesting country to face prosecution or to serve a sentence. The outcome thereafter depends on the laws and sentencing practices of that jurisdiction. You may face trial, and if convicted, sentencing according to that country’s legal framework.
However, extradition is not inevitable. UK courts have refused extradition in numerous cases where human rights concerns arise, where the passage of time renders extradition unjust, where the requested person’s health or personal circumstances make extradition oppressive, or where the requesting state fails to provide adequate assurances.
If extradition is ordered, the Home Secretary (for Part 2 cases) may still refuse extradition on human rights or other grounds.
The sentencing you would face upon extradition depends entirely on the requesting jurisdiction’s laws. Some countries impose mandatory custodial sentences for certain offences, whilst others have greater flexibility to impose non-custodial penalties. Understanding the requesting state’s sentencing regime is crucial to assessing your likely outcome.
What is a suspended sentence and how does it work?
A suspended sentence, as understood in England and Wales, is a custodial sentence that is not immediately enforced. The offender is given the opportunity to serve the sentence in the community, subject to compliance with court-imposed requirements and good behaviour. If the offender satisfies these conditions throughout the suspension period, they avoid custody. If they breach the conditions or commit further offences, the court typically activates the sentence, sending them to prison.
The concept of suspended sentences exists in many legal systems, though the terminology, criteria, and operation vary. Some countries use the term “conditional imprisonment”, “probationary sentence”, or “deferred sentence.” The underlying principle is similar: allowing offenders to avoid immediate imprisonment on condition they comply with certain requirements.
When considering extradition, the question of suspended sentences arises in two contexts. First, whether the sentence you face serving abroad could be suspended, allowing you to remain in the UK. Second, whether, if you are extradited and convicted, the requesting state’s courts might impose a suspended sentence rather than immediate custody.
Can extradition cases result in a suspended sentence?
The interaction between extradition and suspended sentences is complex. If you are being sought for prosecution, the question of whether you will receive a suspended sentence depends on that country’s laws and judicial practices. UK courts considering extradition cannot predict or guarantee what sentence you will receive upon conviction abroad.
That being said, the likelihood of receiving a suspended sentence or other non-custodial penalty can be relevant to human rights arguments in the UK extradition proceedings. For example, if extradition would cause significant hardship to your family, but the offence is relatively minor and the requesting state is likely to impose a non-custodial sentence, this may strengthen arguments that extradition is disproportionate.
If you are sought to serve a sentence already imposed (conviction cases), the question is whether that sentence could be suspended or whether you could serve it in the UK rather than abroad. Under the Council of Europe Convention on the Transfer of Sentenced Persons and related frameworks, sentenced individuals may sometimes transfer to serve sentences in their home country. Whether the sentence could be suspended in the UK depends on UK law and whether the conviction is recognised here.
What factors do courts consider when deciding on extradition and potential sentencing?
The key considerations include whether the conduct constitutes an extraditable offence, whether any statutory bars apply (such as double jeopardy, passage of time, or extraneous considerations), and whether extradition would be compatible with human rights.
Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life, is frequently invoked. The court balances the public interest in honouring extradition obligations against the interference with your private and family life. Factors include the seriousness of the offence, the strength of your ties to the UK, the impact on your family (particularly children), your health, and the likely sentence you would face.
The length and severity of the sentence you are likely to receive can influence the proportionality assessment. If the offence is minor and the requesting state is likely to impose a non-custodial penalty, the interference with your Article 8 rights may outweigh the public interest in extradition. Conversely, serious offences resulting in substantial custodial sentences will usually justify extradition despite family ties.
Courts also consider the requesting state’s legal system and whether you would receive a fair trial. Evidence of systemic deficiencies in the requesting state’s judicial system, prison conditions, or treatment of defendants can lead to refusal of extradition.
How serious does the offence have to be for extradition to be ordered?
Extradition can be ordered for a wide range of offences. For European Arrest Warrants, the offence must carry a maximum penalty of at least 12 months’ imprisonment in the requesting state. For Part 2 countries, the threshold varies but typically requires the offence to carry at least 12 months’ imprisonment.
Serious offences such as murder, rape, drug trafficking, serious fraud, or terrorism will usually result in extradition orders unless compelling human rights or other bars exist. Lesser offences, particularly those resulting in modest sentences or where significant time has passed, may be more vulnerable to human rights challenges.
What can I do to improve my chances of avoiding extradition or securing a suspended sentence?
Resisting extradition or lessening its consequences requires immediate expert legal assistance. Engaging solicitors experienced in extradition law is a vital first step. Extradition proceedings are complex, fast-moving, and require specialist knowledge of both UK law and the requesting state’s legal system.
Challenging the legal basis for extradition is what a solicitor will do first. Your lawyers will scrutinise the warrant or request for defects, assess whether the conduct constitutes an extraditable offence, and consider whether any statutory bars apply. Technical deficiencies in the warrant can sometimes result in discharge.
Building a robust human rights case is also a critical component. Gather evidence demonstrating your ties to the UK, including employment, family relationships, property, and community involvement. Obtain statements from family members, particularly children, explaining the impact your extradition would have on them. Medical evidence documenting health conditions, particularly those that would be inadequately treated in the requesting state, can be powerful.
Engage with the requesting state’s legal system proactively where possible. In some cases, instructing lawyers in the requesting jurisdiction to negotiate with prosecutors or seek assurances about sentencing can be beneficial. Some countries may agree to specific conditions, such as allowing you to serve any sentence in the UK or applying for early release.
If you are facing prosecution rather than serving a sentence, obtaining evidence about the requesting state’s sentencing practices for the offence in question can support arguments about proportionality. Expert evidence from lawyers in that jurisdiction explaining the likely outcome can be valuable.
Where to get more help
Extradition proceedings are among the most complex and serious matters in criminal law, with profound consequences for you and your family if they go through. At Stuart Miller Solicitors, we have extensive experience in European Arrest Warrant cases, Part 2 extradition requests, and navigating the human rights arguments that can prevent extradition. Contact us today for an open and frank consultation about your options.
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