To ask the Scottish Executive what evidence must be presented in court by those seeking the extradition of Scottish citizens under the terms of the Extradition Act 2003.
Extradition relations with category 1 territories are governed by Part 1 of the Extradition Act 2003. Part 1 implemented the Framework Decision on the European Arrest Warrant (EAW). The decision on extradition under Part 1 is entirely a judicial function and the Scottish ministers have no role in these proceedings.
Extradition relations with category two territories, are set out in Part 2 of the Extradition Act 2003. Category 2 territories are certain, designated, non-EU countries.
Part 1 Requests (European Arrest Warrant)
The Extradition Act 2003 requires surrender of an individual under an EAW for an extradition offence. That is defined as either a crime that requires to meet the test of dual criminality or is one of the framework list offences. If it is the former, the EAW must contain a description of the facts of the criminal conduct that constitutes the offence and a legal definition. The Scottish court must be satisfied that criminal conduct if it had occurred in Scotland would be a crime known to the law of Scotland before it can be satisfied it is an extradition offence under the Extradition Act 2003. This is the dual criminality test.
If it is a framework list offence there is no requirement for such a test/conversion to be undertaken as it is recognised that across EU member states these crimes have a commonality of criminal conduct, such as murder, rape and fraud.
No evidence is required to be produced by the issuing judicial authority in support of request to surrender a person under the Extradition Act 2003.
The Scottish ministers have no role in the execution of EAWs.
Part 2 Requests
Where an extradition request is made in the approved way the Scottish ministers must issue a certificate to that effect. This certificate and certain accompanying documents are then sent to the Sheriff at Lothian and Borders in order to allow an extradition hearing to take place.
The court at the first appearance of the individual must be satisfied the Scottish ministers have sent: the extradition request, particulars of the person whose extradition is requested, particulars of the offence, and either a warrant to arrest issued in the requesting state or a certificate of conviction and sentence. If the court is not satisfied on these issues it must order the person''s discharge.
The Secretary of State has authority to designate countries for the purposes of the Extradition Act 2003.
Countries can be designated so that they are not required to produce evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were summary proceedings in respect of an offence alleged to have been committed by the person (except that for this purpose evidence from a single source shall be sufficient). If the country is not so designated then evidence is required to be produced.
All offences alleged to be committed in a Part 2 territory require to satisfy the dual criminality test. If they do not, the court must order the person''s discharge.