united-kingdom england-and-wales common-law jurisdiction extradition
Minimum penalty for extradition makes no sense?
<p>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.</p>
<p>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.</p>
<p>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 <a href="https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/supplying-or-offering-to-supply-a-controlled-drug-possession-of-a-controlled-drug-with-intent-to-supply-it-to-another/" rel="noreferrer">Misuse of Drugs Act 1971</a> as an example, where the minimum is community service and the maximum is 16 years in prison as I quoted below.</p>
<blockquote>
<p>Offence range: High level community order – 16 years’ custody</p>
</blockquote>
<p>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...</p>

<h3>You might be misreading the extradition criterion</h3>
<p>The <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/243246/7146.pdf" rel="nofollow noreferrer">UK–USA extradition treaty</a> has an example of the clause you're asking about:</p>
<blockquote>
<ol>
<li>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.</li>
</ol>
</blockquote>
<p>Similar wording is used in all other treaties that I have reviewed:</p>
<ul>
<li><a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/238374/7920.pdf" rel="nofollow noreferrer">UK–Algeria</a> (&quot;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&quot;)</li>
<li><a href="https://www.oas.org/ext/Portals/33/Files/TreatiesB/arg_bil_ext_ca_en.pdf" rel="nofollow noreferrer">UK–Argentina</a> (no extradition when &quot;the maximum punishment for the offence is imprisonment for less than one year&quot;)</li>
<li><a href="https://www.oas.org/ext/Portals/33/Files/TreatiesB/bol_bil_can_en.pdf" rel="nofollow noreferrer">UK–Bolivia</a> (same as Argentina)</li>
<li><a href="https://www.oas.org/ext/Portals/33/Files/TreatiesB/can_ext_bil_chl_en.pdf" rel="nofollow noreferrer">UK–Chile</a> (same as Argentina)</li>
<li>...</li>
<li><a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/243395/7382.pdf" rel="nofollow noreferrer">UK–U.A.E.</a> (&quot;offence is based is punishable under the laws of both Parties by deprivation of liberty for a period of at least one year&quot;)</li>
</ul>
<p>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 &quot;[u]sually, the minimum sentence for a crime has to be 12 months for an extradition to be allowed&quot; and &quot;[e]xtraditions are based on minimum sentence in the UK,&quot; my review of the treaties makes me doubt that. The rest of this answer explains how to interpret the clauses quoted above.</p>
<h3>It is enough that the offence gives rise to the &quot;<em>possibility</em> of a term of imprisonment or other form of detention of more than one year.&quot;</h3>
<p>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 &quot;punishable... by deprivation of liberty for a period of one year or more.&quot;</p>
<p>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 &quot;<em>possibility</em> of a term of imprisonment or other form of detention of more than one year.&quot; See <em>Canada v. Barrientos</em>, <a href="https://canlii.ca/t/2dcck#par103" rel="nofollow noreferrer">1995 ABCA 468 (CanLII) at para 103</a>, Hetherington J., dissenting; but appeal allowed, for the reasons of Hetherington J. by the SCC in <em>Canada v. Barrientos</em>, <a href="https://canlii.ca/t/1fr2n" rel="nofollow noreferrer">[1997] 1 S.C.R. 531</a>. In <em>Barrientos</em>, 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: &quot;provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year.&quot;</p>
<p>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 <em>in fact</em> 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 &quot;sort of sentencing hearing.&quot; See <em>USA v. English</em>, <a href="https://canlii.ca/t/1r4xt#par23" rel="nofollow noreferrer">2002 BCSC 1902 at para 23</a>.</p>
