Anti-social Behaviour, Crime and Policing Bill (HC Bill 93)

131 Proportionality

(1) In section 11 of the Extradition Act 2003 (bars to extradition), in subsection (5),
for “21” there is substituted “21A”.

(2) After section 21 of that Act there is inserted—

“21A 5Person not convicted: human rights and proportionality

(1) If the judge is required to proceed under this section (by virtue of
section 11), the judge must decide both of the following questions in
respect of the extradition of the person (“D”)—

(a) whether the extradition would be compatible with the
10Convention rights within the meaning of the Human Rights Act
1998;

(b) whether the extradition would be disproportionate.

(2) In deciding whether the extradition would be disproportionate, the
judge must take into account the specified matters relating to
15proportionality (so far as the judge thinks it appropriate to do so); but
the judge must not take any other matters into account.

(3) These are the specified matters relating to proportionality—

(a) the seriousness of the conduct alleged to constitute the
extradition offence;

(b) 20the likely penalty that would be imposed if D was found guilty
of the extradition offence;

(c) the possibility of the relevant foreign authorities taking
measures that would be less coercive than the extradition of D.

(4) The judge must order D’s discharge if the judge makes one or both of
25these decisions—

(a) that the extradition would not be compatible with the
Convention rights;

(b) that the extradition would be disproportionate.

(5) The judge must order D to be extradited to the category 1 territory in
30which the warrant was issued if the judge makes both of these
decisions—

(a) that the extradition would be compatible with the Convention
rights;

(b) that the extradition would not be disproportionate.

(6) 35If the judge makes an order under subsection (5) he must remand the
person in custody or on bail to wait for extradition to the category 1
territory.

(7) If the person is remanded in custody, the appropriate judge may later
grant bail.

(8) 40In this section “relevant foreign authorities” means the authorities in
the territory to which D would be extradited if the extradition went
ahead.”

(3) In deciding any question whether section 21A of the Extradition Act 2003 is
compatible with European Union law, regard must be had (in particular) to
45Article 1(3) of the framework decision of the Council of the European Union
made on 13 June 2002 on the European arrest warrant and the surrender

procedures between member states (2002/584/JHA) (which provides that that
decision shall not have the effect of modifying the obligation to respect
fundamental rights and fundamental legal principles as enshrined in Article 6
of the Treaty on European Union).

(4) 5In a case where the Part 1 warrant (within the meaning of the Extradition Act
2003) has been issued before the time when the amendments made by this
section come into force, those amendments apply to the extradition concerned
only if, at that time, the judge has not yet decided all of the questions in section
11(1) of that Act.

132 10Hostage-taking considerations

(1) Section 16 of the Extradition Act 2003 (extradition to category 1 territory barred
by reason of hostage-taking considerations) is repealed.

(2) In section 11 of that Act (bars to extradition), paragraph (e) of subsection (1) is
omitted.

(3) 15In a case where the Part 1 warrant (within the meaning of the Extradition Act
2003) has been issued before the time when the amendments made by this
section come into force, those amendments apply to the extradition concerned
only if, at that time, the judge has not yet decided all of the questions in section
11(1) of that Act.

133 20Request for temporary transfer etc

Before section 22 of the Extradition Act 2003 there is inserted—

“21B Request for temporary transfer etc

(1) This section applies if—

(a) a Part 1 warrant is issued which contains the statement referred
25to in section 2(3) (warrant issued for purposes of prosecution for
offence in category 1 territory), and

(b) at any time before or in the extradition hearing, the appropriate
judge is informed that a request under subsection (2) or (3) has
been made.

(2) 30A request under this subsection is a request by a judicial authority of
the category 1 territory in which the warrant is issued (“the requesting
territory”)—

(a) that the person in respect of whom the warrant is issued be
temporarily transferred to the requesting territory, or

(b) 35that arrangements be made to enable the person to speak with
representatives of an authority in the requesting territory
responsible for investigating, prosecuting or trying the offence
specified in the warrant.

(3) A request under this subsection is a request by the person in respect of
40whom the warrant is issued—

(a) to be temporarily transferred to the requesting territory, or

(b) that arrangements be made to enable the person to speak with
representatives of an authority in the requesting territory
responsible for investigating, prosecuting or trying the offence
45specified in the warrant.

(4) The judge must order further proceedings in respect of the extradition
to be adjourned if the judge thinks it necessary to do so to enable the
person (in the case of a request under subsection (2)) or the authority by
which the warrant is issued (in the case of a request under subsection
5(3)) to consider whether to consent to the request.

An adjournment under this subsection must not be for more than 7
days.

An adjournment under this subsection must not be for more than 7
days.

(5) 10If the person or authority consents to the request, the judge must—

(a) make whatever orders and directions seem appropriate for
giving effect to the request;

(b) order further proceedings in respect of the extradition to be
adjourned for however long seems necessary to enable the
15orders and directions to be carried out.

(6) If the request, or consent to the request, is withdrawn before effect (or
full effect) has been given to it—

(a) no steps (or further steps) may be taken to give effect to the
request;

(b) 20the judge may make whatever further orders and directions
seem appropriate (including an order superseding one made
under subsection (5)(b)).

(7) A person may not make a request under paragraph (a) or (b) of
subsection (3) in respect of a warrant if the person has already given
25consent to a request under the corresponding paragraph of subsection
(2) in respect of that warrant (even if that consent has been withdrawn).

(8) A person may not make a further request under paragraph (a) or (b) of
subsection (3) in respect of a warrant if the person has already made a
request under that paragraph in respect of that warrant (even if that
30request has been withdrawn).

(9) If—

(a) a request under subsection (2) or (3) is made before a date has
been fixed on which the extradition hearing is to begin, and

(b) the proceedings are adjourned under this section,

35the permitted period for the purposes of fixing that date (see section
8(4)) is extended by the number of days for which the proceedings are
so adjourned.”

134 Appeals

(1) In section 26 of the Extradition Act 2003 (appeal against extradition order:
40category 1 territory)—

(a) in subsection (3), for “section may” there is substituted “section—

“(a) may”;

(b) at the end of that subsection there is inserted “, but

“(b) lies only with the leave of the High Court.”;

(c) 45after subsection (4) there is inserted—

“(5) But where a person gives notice of application for leave to
appeal after the end of the permitted period, the High Court
must not for that reason refuse to entertain the application if the

person did everything reasonably possible to ensure that the
notice was given as soon as it could be given.”

(2) In section 103 of that Act (appeal where case sent to Secretary of State)—

(a) in subsection (4), for “section may” there is substituted “section—

“(a) 5may”;

(b) at the end of that subsection there is inserted “, but

“(b) lies only with the leave of the High Court.”;

(c) after subsection (9) there is inserted—

“(10) But where a person gives notice of application for leave to
10appeal after the end of the permitted period, the High Court
must not for that reason refuse to entertain the application if the
person did everything reasonably possible to ensure that the
notice was given as soon as it could be given.”

(3) In section 108 of that Act (appeal against extradition order: category 2
15territory)—

(a) in subsection (3), for “section may” there is substituted “section—

“(a) may”;

(b) at the end of that subsection there is inserted “, but

“(b) lies only with the leave of the High Court.”;

(c) 20after subsection (4) there is inserted—

“(5) But where a person gives notice of application for leave to
appeal after the end of the permitted period, the High Court
must not for that reason refuse to entertain the application if the
person did everything reasonably possible to ensure that the
25notice was given as soon as it could be given.”

135 Judge informed after extradition hearing or order that person charged with
offence or serving sentence in United Kingdom

(1) After section 36 of the Extradition Act 2003 there is inserted—

“36A Judge informed after extradition hearing that person charged with
30offence in United Kingdom

(1) This section applies if—

(a) an order has been made for the extradition of the person in
respect of whom the Part 1 warrant is issued, and

(b) before the extradition order is carried out the appropriate judge
35is informed that the person is charged with an offence in the
United Kingdom.

(2) The appropriate judge must order the extradition order not to be
carried out until one of these occurs—

(a) the charge is disposed of;

(b) 40the charge is withdrawn;

(c) proceedings in respect of the charge are discontinued;

(d) an order is made for the charge to lie on the file, or in relation to
Scotland, the diet is deserted pro loco et tempore.

(3) If a sentence of imprisonment or another form of detention is imposed
45in respect of the offence charged, the appropriate judge may order the

extradition order not to be carried out until the person is released from
detention pursuant to the sentence (whether on licence or otherwise).

(4) Rules of court may provide that where there is an appeal against the
extradition order —

(a) 5a reference in this section to the appropriate judge has effect, in
prescribed circumstances, as if it were a reference to the court
hearing the appeal, and

(b) this section has effect with any other prescribed modifications.

36B Judge informed after extradition hearing that person serving sentence
10in United Kingdom

(1) This section applies if—

(a) an order has been made for the extradition of the person in
respect of whom the Part 1 warrant is issued, and

(b) before the extradition order is carried out the appropriate judge
15is informed that the person is serving a sentence of
imprisonment or another form of detention in the United
Kingdom.

(2) The appropriate judge may order the extradition order not to be carried
out until the person is released from detention pursuant to the sentence
20(whether on licence or otherwise).

(3) Rules of court may provide that where there is an appeal against the
extradition order —

(a) a reference in this section to the appropriate judge has effect, in
prescribed circumstances, as if it were a reference to the court
25hearing the appeal, and

(b) this section has effect with any other prescribed modifications.”

(2) After section 118 of that Act there is inserted—

“118A Judge informed after extradition order that person charged with
offence in United Kingdom

(1) 30This section applies if—

(a) the Secretary of State has made an order for a person’s
extradition under this Part, and

(b) before the extradition order is carried out the appropriate judge
is informed that the person is charged with an offence in the
35United Kingdom.

(2) The appropriate judge must order the extradition order not to be
carried out until one of these occurs—

(a) the charge is disposed of;

(b) the charge is withdrawn;

(c) 40proceedings in respect of the charge are discontinued;

(d) an order is made for the charge to lie on the file, or in relation to
Scotland, the diet is deserted pro loco et tempore.

(3) If a sentence of imprisonment or another form of detention is imposed
in respect of the offence charged, the appropriate judge may order the
45extradition order not to be carried out until the person is released from
detention pursuant to the sentence (whether on licence or otherwise).

(4) Rules of court may provide that where there is an appeal against the
extradition order —

(a) a reference in this section to the appropriate judge has effect, in
prescribed circumstances, as if it were a reference to the court
5hearing the appeal, and

(b) this section has effect with any other prescribed modifications.

118B Judge informed after extradition order that person serving sentence in
United Kingdom

(1) This section applies if—

(a) 10the Secretary of State has made an order for a person’s
extradition under this Part, and

(b) before the extradition order is carried out the appropriate judge
is informed that the person is serving a sentence of
imprisonment or another form of detention in the United
15Kingdom.

(2) The appropriate judge may order the extradition order not to be carried
out until the person is released from detention pursuant to the sentence
(whether on licence or otherwise).

(3) Rules of court may provide that where there is an appeal against the
20extradition order —

(a) a reference in this section to the appropriate judge has effect, in
prescribed circumstances, as if it were a reference to the court
hearing the appeal, and

(b) this section has effect with any other prescribed modifications.”

136 25Asylum etc

(1) In section 39 of the Extradition Act 2003 (asylum claim: extradition to category
1 territory)—

(a) subsections (1) and (2) are repealed;

(b) in subsection (3), for “The person” there is substituted “If—

“(a) 30an order is made under this Part for a person to be
extradited in pursuance of a Part 1 warrant, and

(b) the person has made an asylum claim (whether before or
after the issue of the warrant),

the person”.

(2) 35In section 121 of that Act (asylum claim: extradition to category 2 territory)—

(a) subsections (1) and (2) are repealed;

(b) in subsection (3), for “The person” there is substituted “If—

“(a) an order is made under this Part for a person to be
extradited in pursuance of a request, and

(b) 40the person has made an asylum claim (whether before or
after the making of the request),

the person”.

(3) In section 93 of that Act (Secretary of State’s consideration of case)—

(a) in subsection (4)(c), after “he orders the person’s discharge” there is
45inserted “under subsection (6A) or”;

(b) after subsection (6) there is inserted—

“(6A) The Secretary of State may order the person’s discharge if the
person—

(a) has been recorded by the Secretary of State as a refugee
5within the meaning of the Refugee Convention, or

(b) has been granted leave to enter or remain in the United
Kingdom on the ground that it would be a breach of
Article 2 or 3 of the Human Rights Convention to
remove the person to the territory to which extradition
10is requested.”

137 Consent to extradition not to be taken as waiver of speciality rights

In the Extradition Act 2003 the following provisions are repealed—

(a) section 45(3);

(b) section 128(5).

138 15Definition of “extradition offence”

(1) For sections 64 and 65 of the Extradition Act 2003 there is substituted—

“64 Extradition offences: person not sentenced for offence

(1) This section sets out whether a person’s conduct constitutes an
“extradition offence” for the purposes of this Part in a case where the
20person—

(a) is accused in a category 1 territory of an offence constituted by
the conduct, or

(b) has been convicted in that territory of an offence constituted by
the conduct but not sentenced for it.

(2) 25The conduct constitutes an extradition offence in relation to the
category 1 territory if the conditions in subsection (3), (4) or (5) are
satisfied.

(3) The conditions in this subsection are that—

(a) the conduct occurs in the category 1 territory;

(b) 30the conduct would constitute an offence under the law of the
relevant part of the United Kingdom if it occurred in that part
of the United Kingdom;

(c) the conduct is punishable under the law of the category 1
territory with imprisonment or another form of detention for a
35term of 12 months or a greater punishment.

(4) The conditions in this subsection are that—

(a) the conduct occurs outside the category 1 territory;

(b) in corresponding circumstances equivalent conduct would
constitute an extra-territorial offence under the law of the
40relevant part of the United Kingdom;

(c) the conduct is punishable under the law of the category 1
territory with imprisonment or another form of detention for a
term of 12 months or a greater punishment.

(5) The conditions in this subsection are that—

(a) the conduct occurs in the category 1 territory;

(b) no part of the conduct occurs in the United Kingdom;

(c) a certificate issued by an appropriate authority of the category
1 territory shows that the conduct falls within the European
5framework list;

(d) the certificate shows that the conduct is punishable under the
law of the category 1 territory with imprisonment or another
form of detention for a term of 3 years or a greater punishment.

(6) For the purposes of subsections (3)(b) and (4)(b)—

(a) 10if the conduct relates to a tax or duty, it does not matter whether
the law of the relevant part of the United Kingdom imposes the
same kind of tax or duty or contains rules of the same kind as
those of the law of the category 1 territory;

(b) if the conduct relates to customs or exchange, it does not matter
15whether the law of the relevant part of the United Kingdom
contains rules of the same kind as those of the law of the
category 1 territory.

65 Extradition offences: person sentenced for offence

(1) This section sets out whether a person’s conduct constitutes an
20“extradition offence” for the purposes of this Part in a case where the
person—

(a) has been convicted in a category 1 territory of an offence
constituted by the conduct, and

(b) has been sentenced for the offence.

(2) 25The conduct constitutes an extradition offence in relation to the
category 1 territory if the conditions in subsection (3), (4) or (5) are
satisfied.

(3) The conditions in this subsection are that—

(a) the conduct occurs in the category 1 territory;

(b) 30the conduct would constitute an offence under the law of the
relevant part of the United Kingdom if it occurred in that part
of the United Kingdom;

(c) a sentence of imprisonment or another form of detention for a
term of 4 months or a greater punishment has been imposed in
35the category 1 territory in respect of the conduct.

(4) The conditions in this subsection are that—

(a) the conduct occurs outside the category 1 territory;

(b) in corresponding circumstances equivalent conduct would
constitute an extra-territorial offence under the law of the
40relevant part of the United Kingdom;

(c) a sentence of imprisonment or another form of detention for a
term of 4 months or a greater punishment has been imposed in
the category 1 territory in respect of the conduct.

(5) The conditions in this subsection are that—

(a) 45the conduct occurs in the category 1 territory;

(b) no part of the conduct occurs in the United Kingdom;

(c) a certificate issued by an appropriate authority of the category
1 territory shows that the conduct falls within the European
framework list;

(d) the certificate shows that a sentence of imprisonment or another
5form of detention for a term of 4 months or a greater
punishment has been imposed in the category 1 territory in
respect of the conduct.

(6) For the purposes of subsections (3)(b) and (4)(b)—

(a) if the conduct relates to a tax or duty, it does not matter whether
10the law of the relevant part of the United Kingdom imposes the
same kind of tax or duty or contains rules of the same kind as
those of the law of the category 1 territory;

(b) if the conduct relates to customs or exchange, it does not matter
whether the law of the relevant part of the United Kingdom
15contains rules of the same kind as those of the law of the
category 1 territory.”

(2) In section 66 (supplementary provision for the purposes of sections 64 and 65)
after subsection (1) there is inserted—

“(1A) References to “conduct” (except in the expression “equivalent
20conduct”) are to the conduct specified in the Part 1 warrant.”

(3) In section 137 of that Act (definition of extradition offence for the purposes of
Part 2 of the Act: person not sentenced for offence) for subsections (1) to (5)
there is substituted—

“(1) This section sets out whether a person’s conduct constitutes an
25“extradition offence” for the purposes of this Part in a case where the
person—

(a) is accused in a category 2 territory of an offence constituted by
the conduct, or

(b) has been convicted in that territory of an offence constituted by
30the conduct but not sentenced for it.

(2) The conduct constitutes an extradition offence in relation to the
category 2 territory if the conditions in subsection (3), (4) or (5) are
satisfied.

(3) The conditions in this subsection are that—

(a) 35the conduct occurs in the category 2 territory;

(b) the conduct would constitute an offence under the law of the
relevant part of the United Kingdom punishable with
imprisonment or another form of detention for a term of 12
months or a greater punishment if it occurred in that part of the
40United Kingdom;

(c) the conduct is so punishable under the law of the category 2
territory.

(4) The conditions in this subsection are that—

(a) the conduct occurs outside the category 2 territory;

(b) 45in corresponding circumstances equivalent conduct would
constitute an extra-territorial offence under the law of the
relevant part of the United Kingdom punishable with

imprisonment or another form of detention for a term of 12
months or a greater punishment;

(c) the conduct is so punishable under the law of the category 2
territory.

(5) 5The conditions in this subsection are that—

(a) the conduct occurs outside the category 2 territory;

(b) no part of the conduct occurs in the United Kingdom;

(c) the conduct constitutes, or if committed in the United Kingdom
would constitute, an offence mentioned in subsection (6);

(d) 10the conduct is punishable under the law of the category 2
territory with imprisonment or another form of detention for a
term of 12 months or a greater punishment.”

(4) After subsection (7) of that section there is inserted—

“(7A) References in this section to “conduct” (except in the expression
15“equivalent conduct”) are to the conduct specified in the request for the
person’s extradition”.

(5) In section 138 of that Act (definition of “extradition offence” for the purposes
of Part 2 of the Act: person sentenced for offence) for subsections (1) to (5) there
is substituted—

“(1) 20This section sets out whether a person’s conduct constitutes an
“extradition offence” for the purposes of this Part in a case
where the person—

(a) has been convicted, in the category 2 territory to which
extradition is requested, of an offence constituted by the
25conduct, and

(b) has been sentenced for the offence.

(2) The conduct constitutes an extradition offence in relation to the
category 2 territory if the conditions in subsection (3), (4) or (5)
are satisfied.

(3) 30The conditions in this subsection are that—

(a) the conduct occurs in the category 2 territory;

(b) the conduct would constitute an offence under the law
of the relevant part of the United Kingdom punishable
with imprisonment or another form of detention for a
35term of 12 months or a greater punishment if it occurred
in that part of the United Kingdom;

(c) a sentence of imprisonment or another form of detention
for a term of 4 months or a greater punishment has been
imposed in the category 2 territory in respect of the
40conduct.

(4) The conditions in this subsection are—

(a) the conduct occurs outside the category 2 territory;

(b) in corresponding circumstances equivalent conduct
would constitute an extra-territorial offence under the
45relevant part of the United Kingdom punishable as
mentioned in subsection (3)(b);

(c) a sentence of imprisonment or another form of detention
for a term of 4 months or a greater punishment has been