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I have been looking into extradition law, focusing on the United Kingdom (England and Wales jurisdiction) wanting to extradite an individual back from a country abroad.

There are many factors to consider when it comes to an extradition, however just focusing on the minimum sentence part I am rather confused. Admittedly, I might be interpreting things rather literally.

Usually, the minimum sentence for a crime has to be 12 months for an extradition to be allowed. This, however, makes no sense to me. Many crimes (even serious crimes) have a minimum sentence of a fine, and a maximum sentence of perhaps decades in prison. We could use the Misuse of Drugs Act 1971 as an example, where the minimum is community service and the maximum is 16 years in prison as I quoted below.

Offence range: High level community order – 16 years’ custody

Does this mean that a hypothetical offender could commit a crime, disappear to another country, and successfully fight the extradition because the minimum sentence was under a year? It seems like a rather serious loop-hole in the law...

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    "Usually, the minimum sentence for a crime has to be 12 months for an extradition to be allowed": can you provide an example of this? I think you're misinterpreting the information you've found, or perhaps your sources are misinterpreting something or paraphrasing it carelessly.
    – phoog
    Mar 19, 2023 at 20:21
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    Not every sentence has a statutory minimum term, instead it's calculated based on culpability and harm
    – user35069
    Mar 19, 2023 at 21:16

1 Answer 1

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You might be misreading the extradition criterion

The UK–USA extradition treaty has an example of the clause you're asking about:

  1. An offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty.

Similar wording is used in all other treaties that I have reviewed:

  • UK–Algeria ("offences which are punishable under the laws of both Parties by imprisonment or other deprivation of liberty for at least a period of one year")
  • UK–Argentina (no extradition when "the maximum punishment for the offence is imprisonment for less than one year")
  • UK–Bolivia (same as Argentina)
  • UK–Chile (same as Argentina)
  • ...
  • UK–U.A.E. ("offence is based is punishable under the laws of both Parties by deprivation of liberty for a period of at least one year")

If there is a treaty that requires there to be a mandatory minimum punishment of at least one year, I have not found it. While you say that "[u]sually, the minimum sentence for a crime has to be 12 months for an extradition to be allowed" and "[e]xtraditions are based on minimum sentence in the UK," my review of the treaties makes me doubt that. The rest of this answer explains how to interpret the clauses quoted above.

It is enough that the offence gives rise to the "possibility of a term of imprisonment or other form of detention of more than one year."

The inquiry is focused on the offence that the conduct is alleged to give rise to and the range of punishment available for that offence generally. E.g. an offence with a minimum punishment of a fine and a maximum punishment of 16 years in prison is an offence that is "punishable... by deprivation of liberty for a period of one year or more."

Said another way: it is not necessary that the offence have a mandatory minimum of one year imprisonment. It is enough that the offence gives rise to the "possibility of a term of imprisonment or other form of detention of more than one year." See Canada v. Barrientos, 1995 ABCA 468 (CanLII) at para 103, Hetherington J., dissenting; but appeal allowed, for the reasons of Hetherington J. by the SCC in Canada v. Barrientos, [1997] 1 S.C.R. 531. In Barrientos, the courts were interpretating Article 2 of the Canada–U.S. extradition treaty, with wording substantially similar to the UK extradition treaties I reviewed above: "provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year."

One remaining question is whether the decision-maker needs to consider the specific facts of defendant's conduct and make a preliminary estimation as to whether in fact a term of imprisonment more than one year is likely. This position has not been adopted in Canada. At the stage where a judge or Minister of Justice is determining the authority to proceed, this is not to become a "sort of sentencing hearing." See USA v. English, 2002 BCSC 1902 at para 23.

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  • I appreciate your answer, however the USA uses a maximum sentence of at least one year. I was interested in countries which use the term minimum sentence of one year. There might be some distinction between minimum sentence and maximum sentence, which is why I excluded America from my question and focused on the UK (England and Wales). Another question, in your answer above you said 'exceeding one year' so I assume it needs to be like a year and a day to be valid? Mar 19, 2023 at 17:52
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    "I was interested in countries which use the term minimum sentence of one year": which countries have you seen using this term?
    – phoog
    Mar 19, 2023 at 21:03
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    Excellent references! Your post shows hard work and diligence that I recognize and appreciate.
    – ohwilleke
    Mar 19, 2023 at 22:10
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    @user5623335 As I understand it, it's the maximum punishment that has to exceed the minimum required for extradition. A crime where the punishment ranges from community service to six months in prison couldn't be extradited, because the actual punishment could never exceed the one year minimum required; a crime where punishment ranged from community service to two years in prison could be extraditible because it could be punished with more than a year in prison (but, presumably, someone so extradited might get less if convicted).
    – TripeHound
    Mar 20, 2023 at 10:25
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    @user5623335 generally not. The existence of even a theoretical possibility of a sentence of a year or more would be sufficient to allow extradition.
    – phoog
    Mar 21, 2023 at 1:36

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