To properly advise clients, it is important for any international financial adviser to be aware of legal systems that can reach across borders. Today, many legal tools exist that are specially tailored to resolving disputes, including those overseas.
Two such tools are Interpol’s ‘Red Notice’ system and European arrest warrants (EAW). This article is aimed at giving you a summary of both and will provide an overview of the process that must be taken by a government in order to extradite.
Interpol Red Notice
Interpol is the world’s largest international police organisation, with 192 member countries in total. Far from being the glamorous globetrotting police force sometimes depicted in movies, its main function is administrative, maintaining a database that enables police forces around the world to share information.
This is principally achieved via a series of colour-coded ‘notices’, the most well-known being the ‘Red Notice’, which alerts police authorities of a member country’s request for the provisional arrest of an individual so that extradition proceedings can be brought.
Interpol insists on its website that a Red Notice is not an international arrest warrant, since each member country is free to decide how to act upon the request. Nevertheless, as the US Department of Justice has observed, it is “the closest instrument to an international arrest warrant in use today”.
Red Notices make life extremely difficult for their subjects. They deter them from travelling, in some cases with serious knock-on effects on their business interests and family lives, and they can also cause serious damage to reputations.
Red Notices are a powerful and invaluable weapon in the international fight against crime but they are also susceptible to abuse. First, as a means of exporting the persecution of dissidents and political opponents, and, second, by individuals with money and influence who use criminal processes to exert pressure in private disputes.
Where an individual is handed a Red Notice, the process of extradition often follows.
European arrest warrant
Extradition to or from the UK is governed by the Extradition Act 2003 (EA 2003), which consists of two parts.
Part 1 implements the European arrest warrant framework decision.
The EAW applies to extradition between category one territories under the 2003 act. For example, Italy is cat 1.
Part 2 relates to requests that originate from other territories outside the European Union, such as the US.
At the moment, the EAW procedure is as follows: a warrant is issued by the requesting state and received by the National Crime Agency (NCA).
It is then certified by the NCA if it complies with aspects of the EA 2003, such as “particulars of the circumstances in which the person is alleged to have committed the offence” and “particulars of the sentence which may be imposed”.
The warrant then becomes ‘live’ and the person mentioned in the warrant can be arrested by a police officer or a customs officer. Once the arrest has taken place, that person must be brought before an appropriate judge “as soon as practicable”. This is usually a district judge in a magistrates’ court.
Initial hearing
At the initial hearing the judge must first confirm the requested person’s identity, who must then be informed of the contents of the Part 1 warrant and the procedures for consenting to his/her extradition.
A date will then be fixed for their extradition hearing if the requested person does not consent to his/her extradition and, following this, a decision will be made if the person is to be remanded or released on bail.
The extradition hearing should then begin within 21 days of arrest. The judge must be satisfied that the conduct described in the warrant amounts to an extradition offence, that none of the statutory bars to extradition apply and that extradition would not breach an individual’s human rights.
Appealing the decision
If any party involved is unhappy with the judge’s decision at the extradition hearing, they may ask the High Court for permission to appeal. The application for permission to appeal must be made within seven days of the relevant decision being made.
If the High Court allows an appeal brought by the requested person, it will quash the order for extradition and order the person’s discharge. By comparison, if it allows an appeal brought by the requesting state, it will quash the order discharging the person and send the case back to the magistrates for a new decision to be taken.
Finally, once a decision to extradite is officially made, the person should normally be extradited within 10 days of the final court order. This time limit can be extended in exceptional circumstances, and with the agreement of the requesting state.
Red Notice procedure
This example illustrates a situation in which an Interpol Red Notice leads to an extradition
- A Red Notice can be requested while an extradition request is pending
- A Red Notice is issued when police in one member country request a Red Notice through their National Central Bureau (the NCS in the UK)
- The Interpol general secretariat then publishes the notice after having conducted a compliance check
- Police in all countries are alerted. It depends on the national law of a country if the police arrest or detain
- An EAW is issued following a request by the same country party to the EAW framework. The individual is arrested and brought before a magistrates’ judge when the proceedings start.
Further reading:
Public interest vs curiosity in an age of transparency
By Marleen Bouwer, lawyer, criminal and regulatory team, Byrne and Partners
