Session 2012 - 13
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55

 
 

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—

 

(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.

 
 

 
 

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(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

 

(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

 
 

 
 

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(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—

 

(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 Part

 

1 warrant (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)    

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

 

19D(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.”

 
 

 
 

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Extradition 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)    

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 request for extradition contains the statement

 

referred to in section 70(4) (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  

Forum

 

(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 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;

 

(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—

 
 

 
 

59

 
 

(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 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 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 is

 

alleged to have been performed by D.

 

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—

 
 

 
 

60

 
 

(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 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.

 
 

 
 

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(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 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.

 

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;

 
 

 
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Revised 25 March 2013