Procedure.—To obtain from a foreign country the extradition of a fugitive from the United Kingdom, it is necessary to procure a warrant for his arrest, and to send it, or a certified copy, to the home secretary together with such further evidence as is required by the treaty with the country in question. In most, cases an information or deposition containing evidence which would justify a committal for trial in Great Britain will be required. The home secretary will then communicate through the foreign secretary and the proper diplomatic channels with the foreign authorities, and in case of urgency will ask them by telegraph for a provisional arrest. For the arrest in the United Kingdom of fugitive criminals whose extradition is requested by a foreign state, two procedures are provided in ss. 7 and 8 of the act of 1870:—(1) On a diplomatic requisition supported by the warrant of arrest and documentary evidence, the home secretary, if he thinks the crime is not of a political character, will order the chief magistrate at Bow Street to proceed; and such magistrate will then issue a warrant of arrest on such evidence as would be required if the offence had been committed in the United Kingdom. (2) More summarily, any magistrate or justice of the peace may issue a provisional warrant of arrest on evidence which would support such a warrant if the crime had been committed within his jurisdiction. In practice a sworn information is required, but this may be based on a telegram from the foreign authorities. The magistrate or justice must then report the issue of the warrant to the home secretary, who may cancel it and discharge the prisoner. When arrested on the provisional warrant, the prisoner will be brought up before a magistrate and remanded to Bow Street, and will then be further remanded until the magistrate at Bow Street is notified that a formal requisition for surrender has been made; and unless such requisition is made in reasonable time the prisoner is entitled to be discharged. The examination of the prisoner prior to his committal for extradition ordinarily takes place at Bow Street. The magistrate is required to hear evidence that the alleged offence is of a political character or is not an extradition crime. If satisfied in these respects, and if the foreign warrant of arrest is duly authenticated, and evidence is given which according to English law would justify a committal for trial, if the prisoner has not yet been tried, or would prove a conviction if he has already been convicted, the magistrate will commit him for extradition. Under the Extradition Act, 1895 the home secretary, if of opinion that removal to Bow Street would be dangerous to the prisoner’s life, or prejudicial to his health, may order the case to be taken by a magistrate at the place where the prisoner was apprehended, or then is, and the magistrate may order the prisoner to be detained in such place. After committal for extradition, every prisoner has fifteen days in which to apply for habeas corpus, and after such period, or at the close of the habeas corpus proceedings if they are unsuccessful, the home secretary issues his warrant for surrender, and the prisoner is handed over to the officers of the foreign government.
The Extradition Acts apply to the British colonies, the governor being substituted for the secretary of state. Their operation may, however, be suspended by order in council, as in the case of Canada, where the colony has passed an Extradition Act of its own (see Statutory Rules and Orders).
Fugitive Offenders Act.—There are no extradition treaties with certain countries in which the crown exercises foreign jurisdiction, such as Cyprus, Turkey, Egypt, China, Japan, Corea, Zanzibar, Morocco, Siam, Persia, Somali, &c. In these countries the Fugitive Offenders Act 1881 (44 & 45 Vict. c. 69) has been applied, pursuant to s. 36 of that statute, and the measures for obtaining surrender of a fugitive criminal are the same as in a British colony. The act, however, only applies to persons over whom the crown has jurisdiction in these territories, and generally is expressly restricted to British subjects.
Under this act a fugitive from one part of the king’s dominions to another, or to a country where the crown exercises foreign jurisdiction, may be brought back by a procedure analogous to extradition, but applicable only to treason, piracy and offences punishable with twelve months’ imprisonment with hard labour or more. The original warrant of arrest must be endorsed by one of several authorities where the offenders happen to be,—in practice by the home secretary in the United Kingdom and by the governor in a colony. Pending the arrival of the original warrant a provisional arrest may be made, as under the Extradition Acts. The fugitive must then be brought up for examination before a local magistrate, who, if the endorsed warrant is duly authenticated, and evidence is produced “which, according to the law administered by the magistrate, raises a strong or probable presumption that the offender committed the offence, and that the act applies to it,” may commit him for return. An interval of fifteen days is allowed for habeas corpus proceedings, and (s. 10) the court has a large discretion to discharge the prisoner, or impose terms, if it thinks the case frivolous, or that the return would be unjust or oppressive, or too severe a punishment. The next step is for the home secretary in the United Kingdom, and the governor in a colony, to issue a warrant for the return of the prisoner. He must be removed within a month, in the absence of reasonable cause to the contrary. If not prosecuted within six months after arrival, or if acquitted, he is entitled to be sent back free of cost.
In the case of fugitive offenders from one part of the United Kingdom to another, it is enough to get the warrant of arrest backed by a magistrate having jurisdiction in that part of the United Kingdom where the offender happens to be. A warrant issued by a metropolitan police magistrate may be executed, without backing, by a metropolitan police officer anywhere, and there are certain other exceptions, but as a rule a warrant cannot be executed without being backed by a local magistrate.
(J. E. P. W.)
2. United States.—Foreign extradition is purely an affair of the United States, and not for the individual states themselves. Upon a demand upon the United States for extradition, there is a preliminary examination before a commissioner or judge before there can be a surrender to the foreign government (Revised Statutes, Title LXVI.; 22 Statutes at Large, 215). It is enough to show probable guilt (Ornelas v. Ruiz, 161 United States Reports, 502). An extradition treaty covers crimes previously committed. If a Power, with which the United States have such a treaty, surrenders a fugitive charged with a crime not included in the treaty, he may be tried in the United States for such crime. Inter-state extradition is regulated by act of Congress under the Constitution of the United States (Article IV. s. 2; United States Revised Statutes, s. 5278). A surrender may be demanded of one properly charged with an act which constitutes a crime under the laws of the demanding state, although it be no crime in the other state. A party improperly surrendered may be released by writ of habeas corpus, either from a state or United States court (Robb v. Conolly, 111 U.S. Reports, 624). On his return to the state from which he fled, he is subject to prosecution for any crime, though on a foreign extradition the law is otherwise (Lascelles v. Georgia, 148 U.S. Reports, 537).
(S. E. B.)
See Sir E. Clarke, Treatise upon the Law of Extradition (4th ed., 1904); Biron and Chalmers, Law and Practice of Extradition (1903).