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62

 
 

(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),

 

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).

 
 

 
 

63

 
 

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) 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).”

 

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—

 
 

 
 

64

 
 

(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)    

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—

 
 

 
 

65

 
 

(i)    

allows the appeal, or

 

(ii)    

dismisses the appeal.

 

(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.

 
 

 
 

66

 
 

(3)    

If the Supreme Court remands the person in custody it may later

 

grant bail.”

 

19         

After section 33A insert—

 

“33B  

Detention pending conclusion of appeals relating to devolution

 

issues

 

(1)    

This section applies if immediately after the High Court orders

 

the person’s discharge the court is informed by the authority

 

which issued the Part 1 warrant (“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”).

 

(2)    

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

 

while the Supreme Court appeal is pending.

 

(3)    

If the court remands the person in custody it may later grant bail.

 

(4)    

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 orders the person’s discharge

 

(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

 

permission to take a step out of time).

 

(5)    

In this section “relevant devolution issue” means a devolution

 

issue relating to the person’s extradition.

 

(6)    

This section applies only to Scotland.”

 

20         

In section 34 (appeals: general), at the beginning insert “(1)” and at the

 

end insert—

 

“(2)    

Subsection (1) does not prevent an appeal against a

 

determination of a devolution issue.

 

(3)    

In this Part “devolution issue” has the same meaning as in

 

Schedule 6 to the Scotland Act 1998.”

 
 

 
 

67

 
 

21  (1)  

In section 36 (extradition following appeal), for subsection (9)

 

substitute—

 

“(9)    

The preceding provisions of this section do not apply to

 

Scotland.”

 

      (2)  

After that section insert—

 

“36A  

Extradition following appeal: Scotland

 

(1)    

This section applies if—

 

(a)    

there is an appeal to the High Court under section 26

 

against an order for a person’s extradition to a category 1

 

territory, and

 

(b)    

the effect of the decision in the relevant proceedings is

 

that the person must be extradited to the category 1

 

territory.

 

(2)    

The “relevant proceedings” are—

 

(a)    

the proceedings on the appeal under section 26 if—

 

(i)    

no Supreme Court devolution appeal is made, or

 

(ii)    

a Supreme Court devolution appeal is made and

 

the Supreme Court remits the case to the High

 

Court, or

 

(b)    

the proceedings on a Supreme Court devolution appeal if

 

such an appeal is made and the Supreme Court does not

 

remit the case to the High Court.

 

(3)    

The person must be extradited to the category 2 territory before

 

the end of the required period, which is 28 days starting with—

 

(a)    

the day on which the decision in the relevant proceedings

 

becomes final, or

 

(b)    

the day on which the relevant proceedings are

 

abandoned.

 

(4)    

In a case where the relevant proceedings are proceedings on the

 

appeal under section 26 (except where the case has been remitted

 

to the High Court on a Supreme Court devolution appeal), the

 

decision in those proceedings becomes final—

 

(a)    

at the end of the period of 28 days starting with the day of

 

the decision (unless, within that period, an application is

 

made to the High Court for permission to make a

 

Supreme Court devolution appeal);

 

(b)    

at the end of the period of 28 days starting with the day

 

when the High Court refuses permission to make a

 

Supreme Court devolution appeal (unless, within that

 

period, an application is made to the Supreme Court for

 

permission to make that appeal);

 

(c)    

when the Supreme Court refuses permission to make a

 

Supreme Court devolution appeal;

 

(d)    

at the end of the permitted period, which is 28 days

 

starting with the day on which permission to make a

 

Supreme Court devolution appeal is granted, if no such

 

appeal is brought before the end of that period.

 
 

 
 

68

 
 

(5)    

These must be ignored for the purposes of subsection (4)—

 

(a)    

any power of a court to extend the period permitted for

 

applying for permission to appeal;

 

(b)    

any power of a court to grant permission to take a step out

 

of time.

 

(6)    

In a case where—

 

(a)    

the relevant proceedings are proceedings on the appeal

 

under section 26, and

 

(b)    

the case has been remitted to the High Court on a

 

Supreme Court devolution appeal,

 

    

the decision in those proceedings becomes final when it is made.

 

(7)    

In a case where—

 

(a)    

the relevant proceedings are proceedings on a Supreme

 

Court devolution appeal, and

 

(b)    

the decision is not to remit the case to the High Court,

 

    

the decision in those proceedings becomes final when it is made.

 

(8)    

If subsection (3) is not complied with and the person applies to

 

the appropriate judge to be discharged, the judge must order the

 

person’s discharge, unless reasonable cause is shown for the

 

delay.

 

(9)    

In this section “Supreme Court devolution appeal” means an

 

appeal to the Supreme Court against a determination of a

 

devolution issue relating to a person’s extradition.

 

(10)    

This section applies only  to Scotland.”

 

Extradition to category 2 territories

 

22         

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

 

amended as follows.

 

23  (1)  

In section 107 (detention pending conclusion of appeal under section

 

105), for subsection (5) substitute—

 

“(5)    

The preceding provisions of this section do not apply to

 

Scotland.”

 

      (2)  

After section 107 insert—

 

“107A

Detention pending conclusion of appeal under section 105:

 

Scotland

 

(1)    

This section applies if immediately after the judge orders the

 

person’s discharge the judge is informed on behalf of the

 

category 2 territory of an intention to appeal under section 105

 

(“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;

 
 

 
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