Crime and Courts Bill [HL]

Session 2012 - 13
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Other Bills before Parliament

Crime and Courts Bill [HL]

45

375B
Evidence overseas: restrictions on use

(1)
This section applies to evidence obtained by means of a request

for assistance 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 any 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)
if 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 Coroners 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)
After 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

description 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)
In subsection (6A)—

(a)
after “investigation” insert “—

(a)
”, and

(b)
at the end insert—

“(b)
a senior member of SOCA’s staff is a senior

appropriate officer.”

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

46

“Evidence overseas

408A
Evidence overseas

(1)
This section applies if a person or property is subject to a civil

recovery 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)
the 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)
The 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 of 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 of 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 is 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)
Alternatively, 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)
In 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,

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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 for 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 assistance 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 any 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)
if 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 use.

(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

Immigration 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

designated 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

48

Schedule), for “senior member of SOCA’s staff” substitute “senior

National Crime Agency officer”.”
136
Insert the following new Schedule—

“Extradition

Part 1

Forum

Extradition 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)
forum.”;

(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) (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
Forum

(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 interests 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

extradition 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)
any belief of a prosecutor that the United Kingdom, or a

particular part of the United Kingdom, is not the most

appropriate jurisdiction in which to prosecute D in

respect of the conduct constituting the extradition

offence;

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(d)
were D to be prosecuted in a part of the United Kingdom

for an offence that corresponds to the extradition offence,

whether evidence necessary to prove the offence is or

could be made available in the United Kingdom;

(e)
any delay that might result from proceeding in one

jurisdiction rather than another;

(f)
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 and 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;

(g)
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 disclosure in the category 1 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 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)
In 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

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 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)
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—

50

(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.

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)
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.

(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 1

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

51

(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).

19E
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

26 against an order for that extradition.

(2)
In England and Wales, and Northern Ireland, 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 Scotland, for the purpose of determining any questioning of a

relevant certification decision, the High Court must apply the

procedures and principles that would be applied by it on an

application for judicial review.

(4)
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.

(5)
Where the High Court is required to decide that question by

virtue of subsection (4)—

(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)
in 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 as 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—

“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—