By Karen Todner, extradition lawyer
SCOTLAND is bound by the Extradition Act 2003 and is a party to the European Arrest Warrant (EAW) system.
The aim behind the EAW system is that it effects the speedy and smooth transfer of prisoners between European countries. There is no right to review evidence.
The sheriff is only entitled to look at bars to extradition as set out in the Extradition Act and to consider whether extradition is proportionate and compatible with the Human Rights Act.
In my opinion, unusually, Professor Clara Ponsati has good prospects of success in defeating an application for a European Arrest Warrant. Ms Ponsati is likely to plead two bars to extradition.
Firstly, that there is no dual criminality. This means that the criminal offence for which extradition is sought, must be a criminal offence in the Requested State (Scotland) and the Requesting State (Spain).
If it is not, then extradition cannot be ordered for that offence.
READ MORE: Top Scots university defends professor facing 'political' extradition to Spain
If Ms Ponsati’s extradition is sought for the offence of sedition, then this offence was abolished in Scotland in 2011 so there is no dual criminality.
Secondly, the sheriff can refuse extradition if he or she believes that the extradition is politically motivated.
It is unusual to raise this bar in an EAW case but it must be given full consideration by the Court in Ms Ponsati’s case.
Following any hearing in the sheriff court, there is a right of appeal to the High Court. So the process, whatever the outcome, is likely to take many months.
Karen Todner is an extradition lawyer
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