Crime and Courts Bill (HC Bill 137)

Crime and Courts BillPage 300

for forwarding to the court, tribunal, government or authority
mentioned in subsection (6).

(10) Rules of court may make provision as to the practice and procedure
to be followed in connection with proceedings relating to requests
5for assistance made by a judge under this section.

(11) “Evidence” includes documents, information in any other form and
material.

375B Evidence overseas: restrictions on use

(1) This section applies to evidence obtained by means of a request for
10assistance under section 375A.

(2) The evidence must not be used for any purpose other than—

(a) for the purposes of the investigation for which it was
obtained, or

(b) for the purposes of proceedings described in subsection (3) or
15any proceedings arising out of such proceedings.

(3) Those proceedings are—

(a) if the request was made for the purposes of a civil recovery
investigation, proceedings under Chapter 2 of Part 5 of this
Act arising out of the investigation;

(b) 20if the request was made for the purposes of a detained cash
investigation, proceedings under Chapter 3 of Part 5 of this
Act arising out of the investigation;

(c) if the request was made for the purposes of an exploitation
proceeds investigation, proceedings under Part 7 of the
25Coroners and Justice Act 2009 arising out of the investigation.

(4) Subsection (2) does not apply if the court, tribunal, government or
authority to whom the request for assistance was sent consents to the
use.

27 (1) Section 378 (officers) is amended as follows.

(2) 30After subsection (3A) insert—

(3AA) In relation to a detained cash investigation these are senior
appropriate officers—

(a) a police officer who is not below the rank of superintendent;

(b) an accredited financial investigator who falls within a
35description specified in an order made for the purposes of
this paragraph by the Secretary of State under section 453;

(c) an officer of Revenue and Customs who is not below such
grade as is designated by the Commissioners for Her
Majesty’s Revenue and Customs as equivalent to that rank.

(3) 40In subsection (6A)—

(a) after “investigation” insert

(a), and

(b) at the end insert—

(b) a senior member of SOCA’s staff is a senior
45appropriate officer.

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28 In Chapter 3 (Scotland), after section 408 insert—

Evidence overseas

408A Evidence overseas

(1) This section applies if a person or property is subject to a civil
5recovery investigation or a detained cash investigation.

(2) A judge of the Court of Session may request assistance under this
section if—

(a) an application is made by an appropriate person or a person
subject to the investigation, and

(b) 10the judge thinks that there is relevant evidence in a country
or territory outside the United Kingdom.

(3) An appropriate person may request assistance under this section if
the person thinks that there is relevant evidence in a country or
territory outside the United Kingdom.

(4) 15The assistance that may be requested under this section is assistance
in obtaining outside the United Kingdom relevant evidence specified
in the request.

(5) Relevant evidence is—

(a) in relation to an application or request made for the purposes
20of a civil recovery investigation, evidence relevant for the
purpose of identifying recoverable property or associated
property, including evidence as to a matter described in
section 341(2)(a) to (d);

(b) in relation to an application or request made for the purposes
25of a detained cash investigation, evidence as to a matter
described in section 341(3A)(a) or (b).

(6) A request for assistance under this section may be sent—

(a) to a court or tribunal which is specified in the request and
which exercises jurisdiction in the place where the evidence
30is to be obtained,

(b) to the government of the country or territory concerned, or

(c) to an authority recognised by the government of the country
or territory concerned as the appropriate authority for
receiving requests for assistance of that kind.

(7) 35Alternatively, a request for assistance under this section may be sent
to the Secretary of State with a view to it being forwarded to a court,
tribunal, government or authority mentioned in subsection (6).

(8) The Secretary of State must forward the request for assistance to the
court, tribunal, government or authority.

(9) 40In a case of urgency, a request for assistance under this section may
be sent to—

(a) the International Criminal Police Organisation, or

(b) any person competent to receive it under any provisions
adopted under the EU Treaties,

Crime and Courts BillPage 302

for forwarding to the court, tribunal, government or authority
mentioned in subsection (6).

(10) Rules of court may make provision as to the practice and procedure
to be followed in connection with proceedings relating to requests
5for assistance made by a judge under this section.

(11) “Evidence” includes documents, information in any other form and
material.

408B Evidence overseas: restrictions on use

(1) This section applies to evidence obtained by means of a request for
10assistance under section 408A.

(2) The evidence must not be used for any purpose other than—

(a) for the purposes of the investigation for which it was
obtained, or

(b) for the purposes of proceedings described in subsection (3) or
15any proceedings arising out of such proceedings.

(3) Those proceedings are—

(a) if the request was made for the purposes of a civil recovery
investigation, proceedings under Chapter 2 of Part 5 of this
Act arising out of the investigation;

(b) 20if the request was made for the purposes of a detained cash
investigation, proceedings under Chapter 3 of Part 5 of this
Act arising out of the investigation.

(4) Subsection (2) does not apply if the court, tribunal, government or
authority to whom the request for assistance was sent consents to the
25use.

(5) The evidence may be received in evidence without being sworn to by
anyone, so far as that may be done without unfairness to any party.

Part 3 Consequential amendments: immigration officers and National Crime Agency

30Immigration officers

29 In section 378 of the Proceeds of Crime Act 2002 (investigations: appropriate
officers etc), in subsection (3AA) (inserted by this Schedule), after paragraph
(c) insert—

(d) an immigration officer who is not below such grade as is
35designated by the Secretary of State as equivalent to that
rank.

National Crime Agency

30 In section 378 of the Proceeds of Crime Act 2002 (investigations: appropriate
officers etc), in subsection (6A)(b) (inserted by this Schedule), for “senior
40member of SOCA’s staff” substitute “senior National Crime Agency officer”.

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Section 35

SCHEDULE 19 Extradition

Part 1 Forum

5Extradition to category 1 territories

1 Part 1 of the Extradition Act 2003 (extradition to category 1 territories) is
amended as follows.

2 In section 11 (bars to extradition)—

(a) at the end of subsection (1) insert—

(j) 10forum.;

(b) after subsection (1) insert—

(1A) But the judge is to decide whether the person’s extradition is
barred by reason of forum only in a case where the Part 1
warrant contains the statement referred to in section 2(3)
15(warrant issued for purposes of prosecution for offence in
category 1 territory).;

(c) in subsection (2), for the words from “12” to “apply” substitute “12 to
19F apply”.

3 After section 19A insert—

19B 20Forum

(1) The extradition of a person (“D”) to a category 1 territory is barred by
reason of forum if the extradition would not be in the interests of
justice.

(2) For the purposes of this section, the extradition would not be in the
25interests of justice if the judge—

(a) decides that a substantial measure of D’s relevant activity
was performed in the United Kingdom; and

(b) decides, having regard to the specified matters relating to the
interests of justice (and only those matters), that the
30extradition should not take place.

(3) These are the specified matters relating to the interests of justice—

(a) the place where most of the loss or harm resulting from the
extradition offence occurred or was intended to occur;

(b) the interests of any victims of the extradition offence;

(c) 35any belief of a prosecutor that the United Kingdom, or a
particular part of the United Kingdom, is not an appropriate
jurisdiction in which to prosecute D in respect of the conduct
constituting the extradition offence;

(d) were D to be prosecuted in a part of the United Kingdom for
40an offence that corresponds to the extradition offence,
whether evidence necessary to prove the offence is or could
be made available in the United Kingdom;

Crime and Courts BillPage 304

(e) the desirability and practicability of all prosecutions relating
to the extradition offence taking place in one jurisdiction,
having regard (in particular) to—

(i) the jurisdictions in which witnesses, co-defendants
5and other suspects are located, and

(ii) the practicability of the evidence of such persons
being given in the United Kingdom or in jurisdictions
outside the United Kingdom;

(f) D’s connections with the United Kingdom.

(4) 10In deciding whether the extradition would not be in the interests of
justice, the judge must have regard to the desirability of not requiring
the disclosure of material which is subject to restrictions on
disclosure in the category 1 territory concerned.

(5) If, on an application by a prosecutor, it appears to the judge that the
15prosecutor 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, the
judge must make that prosecutor a party to the proceedings on the
question of whether D’s extradition is barred by reason of forum.

(6) 20In this section “D’s relevant activity” means activity which is
material to the commission of the extradition offence and which is
alleged to have been performed by D.

19C Effect of prosecutor’s certificates on forum proceedings

(1) The judge hearing proceedings under section 19B (the “forum
25proceedings”) 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
30the determination of any question relating to the prosecutor’s
certificate raised in accordance with section 19E.

(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) 35in 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) 40adjourn 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
45granted.

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19D 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) 5certifies 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) 10Matter 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
15the 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
20the prosecution; or

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

(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) 25the prosecution of D for the corresponding offences, or

(b) any other proceedings.

(6) In relation to the extradition of any person to a category 1 territory,
neither this section nor any other rule of law (whether or not
contained in an enactment) may require a designated prosecutor—

(a) 30to 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
35appearing 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,
40informants 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).

19E Questioning of prosecutor’s certificate

(1) No decision of a designated prosecutor relating to a prosecutor’s
45certificate in respect of D’s extradition (a “relevant certification
decision”) may be questioned except on an appeal under section 26
against an order for that extradition.

Crime and Courts BillPage 306

(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),

5the 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) 10Where the High Court is required to decide that question by virtue
of subsection (3)—

(a) sections 19B to 19D and this section apply in relation to that
decision (with the appropriate modifications) as they apply
to a decision by a judge; and

(b) 15in particular—

(i) a reference in this section to an appeal under section
26 has effect as a reference to an appeal under section
32 to the Supreme Court;

(ii) a reference in this section to the High Court has effect
20as a reference to the Supreme Court.

19F Interpretation of sections 19B to 19E

(1) This section applies for the purposes of sections 19B to 19E (and this
section).

(2) These expressions have the meanings given—

  • 25“D” has the meaning given in section 19B(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
    30this 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 Part 1
    35warrant (including the conduct that constitutes the
    extradition offence);

  • “forum proceedings” has the meaning given in section 19C(1);

  • “part of the United Kingdom” means—

    (a)

    England and Wales;

    (b)

    40Scotland;

    (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);

  • 45“prosecutor’s certificate” has the meaning given in section
    19D(1);

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

    Crime and Courts BillPage 307

    (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
5nature 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.

10Extradition to category 2 territories

4 Part 2 of the Extradition Act 2003 (extradition to category 2 territories) is
amended as follows.

5 In section 79 (bars to extradition)—

(a) at the end of subsection (1) insert—

(e) 15forum.;

(b) after subsection (1) insert—

(1A) But the judge is to decide whether the person’s extradition is
barred by reason of forum only in a case where the request for
extradition contains the statement referred to in section 70(4)
20(warrant issued for purposes of prosecution for offence in
category 2 territory).;

(c) in subsection (2), for “Sections 80 to 83” substitute “Sections 80 to
83E”.

6 After section 83 insert—

83A 25Forum

(1) The extradition of a person (“D”) to a category 2 territory is barred by
reason of forum if the extradition would not be in the interests of
justice.

(2) For the purposes of this section, the extradition would not be in the
30interests of justice if the judge—

(a) decides that a substantial measure of D’s relevant activity
was performed in the United Kingdom; and

(b) decides, having regard to the specified matters relating to the
interests of justice (and only those matters), that the
35extradition should not take place.

(3) These are the specified matters relating to the interests of justice—

(a) the place where most of the loss or harm resulting from the
extradition offence occurred or was intended to occur;

(b) the interests of any victims of the extradition offence;

(c) 40any belief of a prosecutor that the United Kingdom, or a
particular part of the United Kingdom, is not an appropriate
jurisdiction in which to prosecute D in respect of the conduct
constituting the extradition offence;

(d) were D to be prosecuted in a part of the United Kingdom for
45an offence that corresponds to the extradition offence,

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whether evidence necessary to prove the offence is or could
be made available in the United Kingdom;

(e) the desirability and practicability of all prosecutions relating
to the extradition offence taking place in one jurisdiction,
5having regard (in particular) to—

(i) the jurisdictions in which witnesses, co-defendants
and other suspects are located, and

(ii) the practicability of the evidence of such persons
being given in the United Kingdom or in jurisdictions
10outside the United Kingdom;

(f) D’s connections with the United Kingdom.

(4) In deciding whether the extradition would not be in the interests of
justice, the judge must have regard to the desirability of not requiring
the disclosure of material which is subject to restrictions on
15disclosure in the category 2 territory concerned.

(5) If, on an application by a prosecutor, it appears to the judge that the
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, the
20judge must make that prosecutor a party to the proceedings on the
question of whether D’s extradition is barred by reason of forum.

(6) In this section “D’s relevant activity” means activity which is
material to the commission of the extradition offence and is alleged
to have been performed by D.

83B 25Effect 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
30the 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
35adjourned 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) 40in 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
45judge to be reasonable, if the application is granted.

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

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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) 5certifies 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) 10Matter 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
15the 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
20the prosecution; or

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

(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) 25the 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) 30to 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
35appearing 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,
40informants 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
45certificate 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.