House of Commons - Explanatory Note
Extradition Bill - continued          House of Commons

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Clause 46: Extradition to category 1 territory following consent

123.     This clause applies when a judge has ordered a person's extradition under clause 45, following that person's consent to extradition (subsection (1)). Extradition must, under subsection (2), take place within the required period. This is 10 days from the date the order is made or, if the judge and the category 1 territory agree a later date, 10 days from the agreed date (subsection (3)).

124.     If the person has not been extradited within the 10-day period, the judge must, on the person's application, order his discharge, unless reasonable cause is shown for the delay (subsection (4)).

125.     Subsection (5) explains what is to happen when, after the judge has ordered a person's extradition following their consent, the relevant Part 1 warrant is withdrawn. Where the judge is informed of the withdrawal and the person has not yet been extradited, the requirement in subsection (2) for the person to be extradited within the required period no longer applies and the judge must order the person's discharge.

Clause 47: Other warrant issued following consent

126.     This clause provides for the situation where the person has consented to his extradition under clause 44 and a second Part 1 warrant is issued in respect of him before the judge orders his extradition (subsections (1) and (2)).

127.     The judge is not required to order the person's extradition, but he may do so or he may postpone the proceedings until the other warrant has been disposed of (subsection (3)). This is subject to clause 50 below (subsection (4)). In deciding whether or not to order extradition he must also take into account (subsection (5)) the following issues:

  • the relative seriousness of the offences;

  • the place each offence was committed or is alleged to have been committed;

  • the date each warrant was issued; and

  • whether the person is accused of the offences or is unlawfully at large after conviction.

Clause 48: Other warrant issued: extradition to category 1 territory

128.     This clause applies when a judge is informed that another Part 1 warrant has been issued and has ordered a person's extradition under clause 47, following that person's consent to extradition on the basis of the first warrant (subsection (1)). Extradition must, under subsection (2), take place within the required period. This is 10 days from the date the order is made or, if the judge and the category 1 territory agree a later date, 10 days from the agreed date (subsection (3)).

129.     If the person has not been extradited within the 10-day period, the judge must, on the person's application, order his discharge, unless reasonable cause is shown for the delay (subsection (4)).

130.     Subsection (5) explains what is to happen when, after the judge has ordered a person's extradition following his consent, the first Part 1 warrant is withdrawn. Where the judge is informed of the withdrawal and the person has not yet been extradited, the requirement in subsection (2) for the person to be extradited within the required period no longer applies. Furthermore, the judge must order the person's discharge.

Clause 49: Other warrant issued: proceedings deferred

131.     The context of this clause is that a person has consented to his extradition under a Part 1 warrant but has not yet been extradited. This clause applies if the judge is then informed that a competing Part 1 warrant has been issued and he orders, under clause 47(3)(b), further proceedings on the first warrant to be deferred until the competing warrant has been disposed of (subsection (1)).

132.     In these circumstances the judge must remand the person in custody or on bail. If he remands the person in custody he may later grant bail (subsections (2) and (3)).

133.     If an order is subsequently made under clause 180 for the deferred proceedings on the first warrant to be resumed, the judge then has 10 days from the time that order is made to order the person's extradition, under subsection (4).

Clause 50: Extradition request following consent

134.     This clause applies if the person consents to his extradition under a warrant but, before the judge orders his extradition, the judge is informed that an extradition request in respect of the person has been made by a category 2 territory and that no order has yet been made under clause 179 as to which of the warrant and the request is to proceed first (subsections (1) and (2)).

135.     If the judge has been so informed he must not make an order for extradition to the category 1 territory on the basis of consent, until he is informed what order has been made under clause 179 (subsection (3)).

136.     If the order made under clause 179 is for proceedings on the Part 1 warrant to be deferred until the Part 2 request has been disposed of, the judge must remand the person in custody or on bail (subsection (4)). If he remands the person in custody he may later grant bail (subsection (5)). If an order is subsequently made under clause 180 for the resumption of deferred proceedings on the Part 1 warrant, the judge then has 10 days from the time that order is made to order the person's extradition, under subsection (6).

137.     If, however, the order made under clause 179 is for proceedings on the competing request to be deferred until the Part 1 warrant has been disposed of, the judge must, under subsection (6), order the person's extradition to the category 1 territory within 10 days of being informed of the order.

Clause 51: Request for consent to other offence being dealt with

138.     Subsection (1) states that this clause applies if, after a person has been extradited under this Part of the Bill, a judge receives a certified request from a category 1 territory asking for his consent to the person being prosecuted for an offence other than that for which the person was extradited. The relevant designated authority in the United Kingdom may, under subsection (2), certify such a request if it is satisfied that it has come from the proper authority for making such requests in that country.

139.     The consent hearing is required to begin within 21 days of the designated authority receiving the request (subsection (4)). The judge has the power to extend this time if he considers there are exceptional circumstances and he may do so more than once (subsection (5)), and even after the 21 days has passed (subsection (6)).

140.     The judge is required to refuse consent under subsection (7) if the hearing has not started by the end of the given time and the person applies to the judge and can show reasonable cause for consent to be refused. Subsection (8) provides for the judge to adjourn the hearing at any time and subsection (9) gives the definition of the consent hearing as that at which the judge is to consider the request for consent.

Clause 52: Questions for decision at consent hearing

141.     This clause gives the questions that the judge is required to decide at a consent hearing under clause 51.

142.     The judge must decide whether his consent is necessary (subsection (1)) and, if it is not, inform the requesting authority of this decision (subsection (2)). If the judge decides that consent is necessary, he must then consider whether the offence to which the request relates is an extradition offence (subsection (3)). If he decides that it is not an extradition offence, consent must be refused (subsection (4)). If the offence is an extradition offence the judge must decide, in accordance with subsection (5), whether he would have ordered the person's return under clauses 11 to 25 if the person were in the United Kingdom. If the judge decides that he would have done so, he must give consent (subsection (6)). If he decides that he would not have done so, consent must be refused (subsection (7)).

Clause 53: Presumed consent to other offence being dealt with

143.     This clause provides for the case in which consent to prosecute for additional offences will be treated as having been given.

144.     Subsections (1) and (2) state that this clause applies if a category 1 territory and the United Kingdom have each given the appropriate notification under Article 27.1 of the European framework decision. (This is the Framework Decision of the Council of the European Union on the European arrest warrant and the surrender procedures between Member States: see clause 198(6).) In this case the consent of the judge is presumed to have been given to the territory dealing with the person for offences other than those for which he was extradited. The exception is where the judge makes a statement that his consent is not to be treated as having been given in a particular case (subsection (3)).

Clause 54: Request for consent to further extradition to category 1 territory

145.     This clause applies if a person has been extradited to a category 1 territory and a judge receives a certified request for his consent to the person's extradition to another category 1 territory (subsection (1)). The relevant designated authority in the United Kingdom may, under subsection (2), certify such a request if it is satisfied that it has come from the proper authority for making such requests in that country.

146.     The consent hearing is required to begin within 21 days of the designated authority receiving the request (subsection (4)). The judge has the power to extend this time if he considers there are exceptional circumstances and he may do so more than once (subsection (5)), and even after the 21 days has passed (subsection (6)).

147.     The judge is required to refuse consent under subsection (7) if the hearing has not started by the end of the given time, the person applies to the judge and he can show reasonable cause for consent to be refused. Subsection (8) provides for the judge to adjourn the hearing at any time and subsection (9) gives the definition of the consent hearing as that at which the judge is to consider the request for consent.

Clause 55: Questions for decision at consent hearing

148.     This clause gives the questions that the judge is required to decide at a consent hearing under clause 54.

149.     The judge must decide whether his consent is necessary (subsection (1)) and, if it is not, inform the requesting authority of this decision (subsection (2)). If the judge decides that consent is necessary, he must then consider whether the offence to which the request relates is an extradition offence in relation to the further category 1 territory (subsection (3)). If he decides that it is not an extradition offence, consent must be refused (subsection (4)). If the offence is an extradition offence the judge must decide, in accordance with subsection (5), whether he would have ordered the person's return under clauses 11 to 25 if the person were in the United Kingdom. If the judge decides that he would have done so, he must give consent (subsection (6)). If he decides that he would not have done so, consent must be refused (subsection (7)).

Clause 56: Presumed consent to further extradition to category 1 territory

150.     This clause provides for the case in which consent for re-extradition will be treated as having been given.

151.     Subsections (1) and (2) state that this clause applies if a category 1 territory and the United Kingdom have each given the appropriate notification under Article 28.1 of the European framework decision. In this case the consent of the judge to the person's re-extradition to another category 1 territory is treated as having been given. The exception is where the judge makes a statement that consent is not to be treated as having been given in a particular case (subsection (3)).

Clause 57: Consent to further extradition to category 2 territory

152.     Subsection (1) states that the clause applies if a person has been extradited to a category 1 territory and the judge receives a certified request for consent to extradite the person from there to a category 2 territory. The relevant designated authority in the United Kingdom may, under subsection (2), certify such a request if it is satisfied that it has come from the proper authority for making such requests in the category 1 territory.

153.     Subsection (4) requires the judge to decide whether the offence is an extradition offence, as defined in clause 136, in relation to the category 2 territory. If he decides that it is not, he must refuse consent (subsection (5)). If the offence is an extradition offence then the judge must decide whether he would send the case to the Secretary of State under clauses 78 to 88 if the person were in the United Kingdom (subsection (6)). If he decides that he would, the judge must send the case to the Secretary of State to make the decision on consent (subsection (7)). If he decides that he would not, consent must be refused (subsection (8)).

154.     If the case is sent to the Secretary of State, he must decide, under subsections (9) to (11), whether the person's extradition would have been barred for reasons relating to the death penalty, speciality or his earlier extradition from another territory (see clauses 91 to 93), if the person were in the United Kingdom. If it would not have been barred, consent must be given. If it would have been prohibited the Secretary of State must refuse consent to re-extradition.

155.     For the purposes of this clause, where the appropriate judge is the sheriff of Lothian and Borders, references to the Secretary of State are to be read as references to the Scottish Ministers (subsection (12)).

Clause 58: Return of person to serve remainder of sentence

156.     This clause applies where a person who was serving a custodial sentence in the United Kingdom is extradited and then returned to this country to serve the rest of his domestic sentence (subsection (1)). In this situation the person is liable to be detained to serve the sentence and if he is at large he is unlawfully at large (subsections (2) and (3)). Time spent out of the United Kingdom in connection with the person's extradition does not count as time served towards his sentence in the United Kingdom (subsection (4)).

Clause 59: Costs where extradition ordered

157.     This clause allows for an order for costs to be made against a person who unsuccessfully challenges proceedings held under this Part of the Bill. This is based on section 18 of the Prosecution of Offences Act 1985, which allows a court in a criminal case to make an award of costs against the accused.

158.     Subsection (1) states that this clause applies when any of these occur:

  • a person's extradition is ordered in pursuance of a Part 1 warrant;

  • the High Court dismisses a person's appeal against an order for his extradition (brought under clause 26);

  • the High Court or House of Lords refuses a person leave to appeal a decision of the High Court under clause 32;

  • the House of Lords dismisses a person's appeal under clause 32.

159.     In each of the above cases the relevant judge or court has the power to make an order for the person to pay costs that he/it considers just and reasonable (subsections (2) and (3)). Such an order for costs must include the amount to be paid and may include the name of the person to whom the costs are to be paid (subsection (4)).

Clause 60: Costs where discharge ordered

160.     This clause allows an order for costs to be made in favour of a person who is discharged or taken to be discharged under this Part of the Bill.

161.     Subsection (1) states that this clause applies when any of these occur:

  • a person's discharge is ordered under Part 1;

  • a person is taken to be discharged under this Part;

  • the High Court dismisses an appeal against an order for a person's discharge (brought under clause 28);

  • the High Court or House of Lords refuses the authority which issued a Part 1 warrant leave to appeal a decision of the High Court under clause 32;

  • the House of Lords dismisses the appeal of the authority which issued a Part 1 warrant under clause 32.

162.     In each of the above cases the relevant judge or court has the power to make an order for costs in the discharged person's favour (subsections (2) to (4)). Subsection (5) provides for such an order to be an order for payment of an amount to be made out of money provided by Parliament. The amount is the amount which the relevant judge or court think is reasonably sufficient to compensate the person in question for any expenses incurred as a result of extradition proceedings under this Part of the Bill (subsection (6)).

163.     Subsection (7) allows the relevant judge or court to come to a different decision where he or it considers it inappropriate for the person to recover the full amount under subsection (6). In this situation the judge or court is required to assess the amount considered to be just and reasonable and specify that as the appropriate amount in the order. Where the judge or court is not of this opinion, according to subsection (8), the appropriate amount must be specified in the order, where it is considered appropriate to do so and the discharged person agrees the amount. If this is not the case, then the amount must be calculated in accordance with regulations made by the Lord Chancellor.

Clause 61: Costs where discharge ordered: supplementary

164.     Subsections (1) and (2) of this clause mean that section 20(1) and (3) of the Prosecution of Offences Act 1985 apply to clause 60 in the same way that they apply in relation to Part 2 of that Act. In Northern Ireland (subsection (3)) the relevant provision is section 7 of the Costs in Criminal Cases Act (Northern Ireland) 1968, which applies to clause 60 as it does to sections 2 to 5 of that Act.

Clause 62: Documents sent by facsimile

165.     Subsection (1) allows any document to be sent in connection with Part 1 proceedings to be sent by facsimile. A document sent by facsimile is treated in the same way as the original and may be received in evidence accordingly (subsection (2)).

Clause 63: Extradition offences: person not sentenced for offence

166.     This clause defines the different types of conduct that constitute an extradition offence in respect of category 1 territories, but only in cases where the person is accused of the offence in the category 1 territory or has been convicted of an offence but not yet sentenced (subsection (1)).

167.     Subsection (2) states that conduct constitutes an extradition offence if the following conditions are satisfied. These are that:

  • the conduct occurs in the category 1 territory;

  • a certificate issued by the category 1 territory confirms that the offence falls within the European framework list (details of this are contained below under clause 66);

  • the certificate confirms that the offence is punishable in the law of the category 1 territory with detention for a period of 12 months or more.

168.     Under subsection (3) conduct also constitutes an extradition offence if:

  • the conduct occurs in the category 1 territory;

  • the conduct would constitute an offence under the law of the United Kingdom if it occurred in the United Kingdom;

  • the conduct is punishable under the law of the category 1 territory with imprisonment for a period of 12 months or more.

169.     Subsections (4) to (6) relate to extra-territorial conduct. This is conduct in respect of which a category 1 territory claims jurisdiction (and therefore the right to prosecute) even thought the conduct did not take place on its soil. Extra-territorial conduct constitutes an extradition offence if (subsection (4)):

  • the conduct occurs outside the category 1 territory;

  • the offence is punishable in the law of the category 1 territory with detention for a period of 12 months or more;

  • in corresponding circumstances the equivalent conduct would constitute an extra-territorial offence against the law of the United Kingdom which is punishable with imprisonment for a period of 12 months or more.

170.     Under subsection (5) conduct constitutes an extradition offence where:

  • the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom;

  • the conduct would constitute an offence under the law of the United Kingdom punishable with imprisonment for a period of 12 months or more if it had occurred here;

  • the conduct is similarly punishable under the law of the category 1 territory.

171.     Under subsection (6) conduct also constitutes an extradition offence if:

  • the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom;

  • the offence is punishable in the law of the category 1 territory with detention for a period of 12 months or more;

  • the conduct would constitute an offence referred to in subsection (7).

172.     The offences in subsection (7) are those covered by sections 51, 52, 58 and 59 of the International Criminal Court Act 2001 relating to genocide, crimes against humanity and war crimes, and ancillary offences under section 55 or 62 of that Act. For Scotland the relevant corresponding offences are those covered by sections 1 and 2 of the International Criminal Court (Scotland) Act 2001 and ancillary offences under section 7 of that Act.

173.     Subsection (8) applies where equivalent circumstances in the United Kingdom are mentioned under subsections (3)(b), (4)(c) and (5)(b). Where the applicable conduct relates to a tax, duty, customs or exchange, subsection (8) explains that it is immaterial that United Kingdom law does not contain rules of the same kind as those of the category 1 territory.

Clause 64: Extradition offences: person sentenced for offence

174.     This clause defines the different types of conduct that constitute an extradition offence in respect of category 1 territories in cases where the person has been convicted and sentenced for the offence (subsection (1)).

175.     In these cases conduct constitutes an extradition offence (subsection (2)) if:

  • the conduct occurs in the category 1 territory;

  • a certificate is issued by a category 1 territory which shows that the conduct falls within the European framework list; and

  • a sentence of detention for a term of 4 months or more has been imposed.

176.     Subsection (3) states that conduct also constitutes an extradition offence if:

  • the conduct occurs in the category 1 territory;

  • the conduct would constitute an offence in the United Kingdom;

  • a sentence of detention for a period of 4 months or more has been imposed.

177.     Conduct also constitutes an extradition offence if (subsection (4)):

  • the conduct occurs outside the category 1 territory;

  • a sentence of detention for a period of 4 months or more has been imposed in the category 1 territory for the conduct,

  • the equivalent conduct would constitute an extra-territorial offence under the law of the United Kingdom in the corresponding circumstances, punishable with imprisonment for a period of 12 months or more.

178.     Conduct also constitutes an extradition offence if (subsection (5):

  • the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom;

  • it would constitute an offence in the United Kingdom punishable with imprisonment for a period of 12 months or more if it occurred in this country;

  • a custodial sentence of 4 months or more has been imposed in the category 1 territory for the conduct.

179.     Under subsection (6) conduct also constitutes an extradition offence if:

  • the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom;

  • it is punishable in the law of the category 1 territory with detention for a period of 12 months or more;

  • the conduct constitutes, or would do if it occurred in the United Kingdom, an offence referred to in subsection (7).

180.     The offences in subsection (7) are those covered by sections 51, 52, 58 and 59 of the International Criminal Court Act 2001 relating to genocide, crimes against humanity and war crimes, and ancillary offences under section 55 or 62 of that Act. For Scotland the relevant corresponding offences are those covered by sections 1 and 2 of the International Criminal Court (Scotland) Act 2001 and ancillary offences under section 7 of that Act.

181.     Subsection (8) applies where equivalent circumstances in the United Kingdom are mentioned under subsections (3)(b), (4)(c) and (5)(b). Where the applicable conduct relates to a tax, duty, customs or exchange, subsection (8) explains that it is immaterial that United Kingdom law does not contain rules of the same kind as those of the category 1 territory.

 
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Prepared: 14 November 2002