Chapter 2
Introduction to extradition

What is extradition?

2.1Extradition is the formal legal surrender by one country to another of a person who has been accused or convicted of a criminal offence in the jurisdiction of the second country in order for the person to be tried or punished. Throughout this issues paper, we refer to the first country as the “requested country” and the second as the “requesting country”.

2.2The premise of extradition is that perpetrators of crime should not be able to escape justice by leaving one country for another, and countries should assist each other in punishing criminal conduct.11  If extradition does not take place, then generally the person sought cannot be tried in the requested country. Extradition has become an essential international mechanism for cooperation in the suppression of crime. Traditionally, it has been seen as a matter of international comity (the favour accorded by one state to another).12 This has meant that the system of extradition has been based predominantly on reciprocal treaties between states. In recent years, the importance of direct reciprocity between countries in extradition has been somewhat diminished. Instead, states consider themselves obliged to act as good international citizens. A number of multilateral conventions addressing specific types of international crime have provided a basis for extradition outside of the bilateral treaty approach. Many states have legislation that allows extradition to occur between states without a bilateral treaty.
2.3Extradition proceedings before a court are not considered to be proceedings to determine a criminal charge. They are to assist criminal proceedings that have taken or will take place in another state.13 This is fundamental to any assessment of what procedural steps and evidential requirements should be in place for extradition proceedings.
11Scott Baker, David Perry and Anand Doobay A Review of the United Kingdom’s Extradition Arrangements (Home Office, 30 September 2011) at [2.1]–[2.3]; and In re Arton (No 1) [1896] 1 QB 108 at 111.
12See EP Aughterson Extradition: Australian law and procedure (Law Book Co, Sydney, 1995) at 2; and IA Shearer “Extradition and human rights” (1994) 68 ALJ 451 at 451.
13Baker, Perry and Doobay, above n 11, at [2.4].