House of Commons Public Bill Committee Proceedings

Session 2012 - 13
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Other Bills before Parliament

Public Bill Committee Proceedings: 12 February 2013
47

Crime and Courts Bill [Lords] continued

83B
Effect of prosecutor’s certificates on forum proceedings

(1)
The judge hearing proceedings under section 83A (the “forum

proceedings”) must decide that the extradition is not barred by reason

of forum if (at a time when the judge has not yet decided the

proceedings) the judge receives a prosecutor’s certificate relating to

the extradition.

(2)
That duty to decide the forum proceedings in that way is subject to the

determination of any question relating to the prosecutor’s certificate

raised in accordance with section 83D.

(3)
A designated prosecutor may apply for the forum proceedings to be

adjourned for the purpose of assisting that or any other designated

prosecutor—

(a)
in considering whether to give a prosecutor’s certificate

relating to the extradition,

(b)
in giving such a certificate, or

(c)
in sending such a certificate to the judge.

(4)
If such an application is made, the judge must—

(a)
adjourn the forum proceedings until the application is

decided; and

(b)
continue the adjournment, for such period as appears to the

judge to be reasonable, if the application is granted.

(5)
But the judge must end the adjournment if the application is not

granted.

83C
Prosecutor’s certificates

(1)
A “prosecutor’s certificate” is a certificate given by a designated

prosecutor which—

(a)
certifies both matter A and matter B, and

(b)
certifies either matter C or matter D.

(2)
Matter A is that a responsible prosecutor has considered the offences

for which D could be prosecuted in the United Kingdom, or a part of

the United Kingdom, in respect of the conduct constituting the

extradition offence.

(3)
Matter B is that the responsible prosecutor has decided that there are

one or more such offences that correspond to the extradition offence

(the “corresponding offences”).

(4)
Matter C is that—

(a)
the responsible prosecutor has made a formal decision as to

the prosecution of D for the corresponding offences,

(b)
that decision is that D should not be prosecuted for the

corresponding offences, and

(c)
the reason for that decision is a belief that—

(i)
there would be insufficient admissible evidence for

the prosecution; or

(ii)
the prosecution would not be in the public interest.

Public Bill Committee Proceedings: 12 February 2013
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Crime and Courts Bill [Lords] continued

(5)
Matter D is that the responsible prosecutor believes that D should not

be prosecuted for the corresponding offences because there are

concerns about the disclosure of sensitive material in—

(a)
the prosecution of D for the corresponding offences, or

(b)
any other proceedings.

(6)
In relation to the extradition of any person to a category 2 territory,

neither this section nor any other rule of law (whether or not contained

in an enactment) may require a designated prosecutor—

(a)
to consider any matter relevant to giving a prosecutor’s

certificate; or

(b)
to consider whether to give a prosecutor’s certificate.

(7)
In this section “sensitive material” means material which appears to

the responsible prosecutor to be sensitive, including material

appearing to be sensitive on grounds relating to—

(a)
national security,

(b)
international relations, or

(c)
the prevention or detection of crime (including grounds

relating to the identification or activities of witnesses,

informants or any other persons supplying information to the

police or any other law enforcement agency who may be in

danger if their identities are revealed).

83D
Questioning of prosecutor’s certificate

(1)
No decision of a designated prosecutor relating to a prosecutor’s

certificate in respect of D’s extradition (a “relevant certification

decision”) may be questioned except on an appeal under section 103

or 108 against an order for that extradition.

(2)
For the purpose of—

(a)
determining whether to give permission for a relevant

certification decision to be questioned, and

(b)
determining any such question (if that permission is given),


the High Court must apply the procedures and principles which would

be applied by it on an application for judicial review.

(3)
In a case where the High Court quashes a prosecutor’s certificate, the

High Court is to decide the question of whether or not the extradition

is barred by reason of forum.

(4)
Where the High Court is required to decide that question by virtue of

subsection (3)—

(a)
sections 83A to 83C and this section apply in relation to that

decision (with the appropriate modifications) as they apply to

a decision by a judge; and

(b)
in particular—

(i)
a reference in this section to an appeal under section

103 or 108 has effect as a reference to an appeal under

section 114 to the Supreme Court;

(ii)
a reference in this section to the High Court has effect

as a reference to the Supreme Court.

Public Bill Committee Proceedings: 12 February 2013
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Crime and Courts Bill [Lords] continued

83E
Interpretation of sections 83A to 83D

(1)
This section applies for the purposes of sections 83A to 83D (and this

section).

(2)
These expressions have the meanings given—

“D” has the meaning given in section 83A(1);

“designated prosecutor” means—

(a)
a member of the Crown Prosecution Service, or

(b)
any other person who—

(i)
is a prosecutor designated for the purposes of

this section by order made by the Secretary of

State, or

(ii)
is within a description of prosecutors so

designated;

“extradition offence” means the offence specified in the request for

extradition (including the conduct that constitutes the extradition

offence);

“forum proceedings” has the meaning given in section 83B(1);

“part of the United Kingdom” means—

(a)
England and Wales;

(b)
Scotland;

(c)
Northern Ireland;

“prosecutor” means a person who has responsibility for prosecuting

offences in any part of the United Kingdom (whether or not the person

also has other responsibilities);

“prosecutor’s certificate” has the meaning given in section 83C(1);

“responsible prosecutor”, in relation to a prosecutor’s certificate,

means—

(a)
the designated prosecutor giving the certificate, or

(b)
another designated prosecutor.

(3)
In determining for any purpose whether an offence corresponds to the

extradition offence, regard must be had, in particular, to the nature and

seriousness of the two offences.

(4)
A reference to a formal decision as to the prosecution of D for an

offence is a reference to a decision (made after complying with, in

particular, any applicable requirement concerning a code of practice)

that D should, or should not, be prosecuted for the offence.”.

Transitional provision, saving and repeals

7    (1)
In a case where the Part 1 warrant, or the request for the person’s extradition,

has been issued before the time when the amendments made by this Part of this

Schedule come into force, those amendments apply to the extradition

concerned only if, at that time, the judge has not yet decided all of the existing

extradition bar questions.

      (2)
For that purpose—

“existing extradition bar questions” means—

(a)
the questions in section 11(1) of the Extradition Act 2003 (in the

case of a Part 1 warrant), or

(b)
the questions in section 79(1) of that Act (in the case of a request

for the person’s extradition),

Public Bill Committee Proceedings: 12 February 2013
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Crime and Courts Bill [Lords] continued

as those questions stand before their amendment by this Part of this

Schedule;

“Part 1 warrant” and “request for a person’s extradition” have the same

meanings as in the Extradition Act 2003.

8
The powers conferred by section 177, 178 and 222 of the Extradition Act 2003

are exercisable in relation to any amendment of that Act made by this Part of

this Schedule.

9
In the Police and Justice Act 2006, in Schedule 13 (extradition), in Part 1

(amendments to the Extradition Act 2003), omit paragraphs 4 to 6 (and the

italic heading preceding paragraph 4).

Part 2

Human rights issues

Extradition to category 2 territories

10
Part 2 of the Extradition Act 2003 (extradition to category 2 territories) is

amended as follows.

11
In section 70 (extradition request and certificate), after subsection (9) insert—

“(10)
Subsection (11) applies at all times after the Secretary of State issues

a certificate under this section.

(11)
The Secretary of State is not to consider whether the extradition would

be compatible with the Convention rights within the meaning of the

Human Rights Act 1998.”.

12
In section 108 (appeal against extradition order)—

(a)
after subsection (4) insert—

“(5)
But notice of an appeal under this section may be given after

the end of the permitted period if it is an appeal on human

rights grounds.

(6)
Notice of any such appeal must be given in accordance with

rules of court at a time before the person is extradited to the

category 2 territory in accordance with section 117.

(7)
Where notice of an appeal is given in accordance with

subsections (5) and (6), the High Court is to consider the

appeal only if it appears to the High Court that—

(a)
the appeal is necessary to avoid real injustice, and

(b)
the circumstances are exceptional and make it

appropriate to consider the appeal.

(8)
In this section “appeal on human rights grounds” means an

appeal against the order for the person’s extradition on the

grounds (and only on the grounds) that the extradition would

not be compatible with the Convention rights within the

meaning of the Human Rights Act 1998.”.

13
In section 117 (extradition where no appeal), after subsection (4) insert—

“(5)
If a person brings an appeal under section 108 by virtue of subsection

(5) of that section, this section ceases to apply (but section 118 applies

instead).”.

Public Bill Committee Proceedings: 12 February 2013
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Crime and Courts Bill [Lords] continued

Transitional provision and saving

14  (1)
In a case where a request for a person’s extradition has been issued before the

time when the amendments made by this Part of this Schedule come into force,

those amendments apply to the extradition concerned only if—

(a)
the person concerned has not made any human rights representations

to the Secretary of State during the relevant period, or

(b)
the person concerned has made such representations during that period

and the Secretary of State has finished considering them by the end of

that period.

      (2)
For that purpose—

“human rights representations” means representations that the extradition

would not be compatible with the Convention rights within the meaning

of the Human Rights Act 1998;

“relevant period” means the period that—

(a)
begins when the Secretary of State issues a certificate under

section 70 of the Extradition Act 2003 in relation to the

extradition, and

(b)
ends when the amendments made by this Part of this Schedule

come into force;

“request for a person’s extradition” has the same meaning as in the

Extradition Act 2003.

15
The powers conferred by section 177, 178 and 222 of the Extradition Act 2003

are exercisable in relation to any amendment of that Act made by this Part of

this Schedule.

Part 3

Devolution issues in Scotland

Extradition to category 1 territories

16
Part 1 of the Extradition Act 2003 (extradition to category 1 territories) is

amended as follows.

17  (1)
In section 30 (detention pending conclusion of appeal under section 28), for

subsection (5) substitute—

“(5)
The preceding provisions of this section do not apply to Scotland.”.

      (2)
After section 30 insert—

“30A
Detention pending conclusion of appeal under section 28: Scotland

(1)
This section applies if immediately after the judge orders the person’s

discharge the judge is informed by the authority which issued the Part

1 warrant (“the issuing authority”) that it intends to appeal under

section 28 (“the High Court appeal”).

(2)
The judge must remand the person in custody or on bail while the High

Court appeal is pending.

(3)
The High Court appeal ceases to be pending at the earliest of these

times—

(a)
when the proceedings on the appeal are abandoned;

(b)
when the High Court—

(i)
allows the appeal, or

(ii)
dismisses the appeal.

Public Bill Committee Proceedings: 12 February 2013
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Crime and Courts Bill [Lords] continued

(4)
If—

(a)
the High Court appeal is dismissed, and

(b)
immediately after dismissing it, the High Court is informed by

the issuing authority that it intends to bring an appeal to the

Supreme Court against a determination of a relevant

devolution issue (“the Supreme Court appeal”),


the High Court must remand the person in custody or on bail while the

Supreme Court appeal is pending.

(5)
The Supreme Court appeal ceases to be pending at the earliest of these

times—

(a)
the end of the period of 28 days starting with the day when the

High Court appeal is dismissed (unless, within that period, an

application is made to the High Court for permission to make

the Supreme Court appeal);

(b)
the end of the period of 28 days starting with the day when the

High Court refuses permission to make the Supreme Court

appeal (unless, within that period, an application is made to

the Supreme Court for permission to make the Supreme Court

appeal);

(c)
the end of the period of 28 days starting with the day on which

permission is given to bring the Supreme Court appeal (unless

the appeal is brought within that period);

(d)
the time when the proceedings on the Supreme Court appeal

are abandoned;

(e)
the time when there is no further step that can be taken in

relation to the Supreme Court appeal by the issuing authority

(ignoring any power of a court to grant leave to take a step out

of time).

(6)
If the person is remanded in custody by the judge or the High Court,

the High Court may later grant bail.

(7)
In this section “relevant devolution issue” means a devolution issue

relating to the person’s extradition.

(8)
This section applies only to Scotland.”.

18
After section 33 insert—

“33ZA
Scottish devolution issue: remand in custody or on bail

(1)
This section applies where, on an appeal to the Supreme Court against

a determination of a devolution issue relating to a person’s extradition

under this Part, the Supreme Court—

(a)
remits the case to the High Court, or

(b)
orders the person’s extradition.

(2)
The Supreme Court must remand the person in custody or on bail

pending the person’s extradition.

(3)
If the Supreme Court remands the person in custody it may later grant

bail.”.’.

19
After section 33A insert—



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