Clause 89: Case sent to Secretary of State

233.     This clause applies if the judge sends a person's case to the Secretary of State. The judge is required to notify the person that he has a right of appeal but that his appeal will not be heard until after the Secretary of State has made his decision.

234.     This clause applies when the judge sends a case to the Secretary of State (subsection (1)). The judge is required to notify the person that he has a right of appeal but that his appeal will not be heard until the Secretary of State has made his decision. (subsection (2)). This does not apply if the person has consented to his extradition under clause 123 (subsection (3)). Subsections (4) and (5) require the judge to remand the person in custody or on bail to await the Secretary of State's decision. If the judge remands the person in custody he may later grant bail.

Clause 90: Secretary of State's consideration of case

235.     This clause deals with what happens once a case is sent to the Secretary of State.

236.     The Secretary of State is required to consider the case and to order the person's discharge if extradition is prohibited by the provisions of clauses 91 to 93 (subsections (2) and (3)). If it is not prohibited he must order the person's extradition unless (subsection (4)):

• he is informed that the extradition request has been withdrawn;

• he makes an order for further proceedings on the request to be deferred, by virtue of clause 122(2) or 179(2), and the person is discharged under clause 180; or

• he orders the person's discharge for reasons of national security (see clause 193).

Clause 91: Death penalty

237.     This clause prevents the Secretary of State from ordering the extradition of a person who has been, will be or could be sentenced to death, unless an assurance has been received either that the sentence, if imposed, will not be carried out or that it will not be imposed.

238.     The prohibition does not apply if the person has consented to his extradition under clause 123 (subsection (3)).

Clause 92: Speciality

239.     The speciality rule is a long-standing protection in extradition. It prohibits a person from being prosecuted after his extradition for an offence committed beforehand, unless the offence is the one in respect of which he was extradited, the consent of the requested state is obtained or the person has had an opportunity to leave the country to which he was extradited.

240.     This clause prohibits the Secretary of State from ordering a person's extradition to a category 2 territory where there are no speciality arrangements in place (subsection (1)). This does not apply if a person has consented to his extradition under clause 123 (subsection (2)). Subsection (3) explains when speciality arrangements are considered to be in place. These are if the offence falls within subsection (4) or the person has first had the opportunity to leave the territory. The offences within subsection (4) are: the offence for which the person was extradited, an extradition offence disclosed by the same facts as that offence, or an extradition offence for which the Secretary of State has consented to the person being dealt with.

241.     Subsection (5) allows speciality arrangements with a Commonwealth country or a British overseas territory to be made either generally or for particular cases. A certificate issued by or under the authority of the Secretary of State confirming the existence of such arrangements and stating their terms is conclusive evidence of those matters (subsection (6)).

Clause 93: Earlier extradition to United Kingdom from other territory

242.     This clause applies where a person has been extradited to the United Kingdom from another country (the extraditing territory) and his extradition is now requested to a category 2 territory. The Secretary of State is prohibited from ordering his extradition if arrangements with the extraditing territory require consent for re-extradition to another country and that consent has not been given.

Clause 94: Deferral: person charged with offence in United Kingdom

243.     This clause applies where a person is the subject of an extradition request under this Part of the Bill, his case has been sent to the Secretary of State and he has also been charged with an offence in this country (subsection (1)). The Secretary of State is required to defer making a decision until (subsection (2)):

• the charge is disposed of (see clause 197 below) or withdrawn;

• proceedings on the charge are discontinued; or

• proceedings on the charge are discontinued with the option that a fresh prosecution on the same charge could be brought in the future.

244.     If the person is sentenced to a custodial sentence for the domestic offence, the Secretary of State may delay making a decision as to extradition until the end of that sentence (subsection (3)).

Clause 95: Deferral: person serving sentence in United Kingdom

245.     This clause applies if a person is the subject of an extradition request under this Part of the Bill, his case has been sent to the Secretary of State, and he is also serving a custodial sentence in the United Kingdom (subsection (1)). Under these circumstances the Secretary of State is allowed to delay making his decision until the sentence has been served (subsection (2)).

Clause 96: Time limit for order for extradition or discharge

246.     Once a case is sent to the Secretary of State, he is required to make a decision on a person's extradition within two months (subsections (1) and (3)). If the Secretary of State fails to do so the person must be taken to be discharged (subsection (2)). However, under subsection (10), this period can be extended on application to the High Court.

247.     The day on which this two-month period begins depends on the circumstances of the case. Where the person has also been charged with an offence in the United Kingdom the two months begins on the day that proceedings on the domestic charge end (subsection (4)). That is:

• the charge is disposed of (see clause 197 below) or withdrawn;

• proceedings on the charge are discontinued; or

• proceedings on the charge are discontinued with the option that a fresh prosecution on the same charge could be brought in the future.

248.      If the Secretary of State defers his decision under the power given in clause 94(3) or 95(2) the period begins on the day that the person finishes serving the sentence (subsection (5)).

249.     In the case of competing extradition claims it begins on the day the Secretary of State makes an order under clause 122 or 179. However, if proceedings on the request have been deferred under either of these clauses, the two months begin on the day the order is made under clause 180 for proceedings to be resumed (subsections (6) and (7)).

250.     If more than one of these provisions applies the two-month period begins on the latest of the relevant days (subsection (8)). In all other cases it begins on the day that the judge sends the case to the Secretary of State (subsection (9)).

Clause 97: Information

251.     If the Secretary of State decides to order a person's extradition he is required to inform the person of his decision and of his right of appeal to the High Court. He must also inform a representative of the category 2 territory of any such order (subsection (1)). However, subsection (1)(b) (right of appeal to the High Court) does not apply if the person has consented to his extradition under clause 123 (subsection (2)). If the Secretary of State orders a person's extradition and has received an assurance in respect of the death penalty under clause 91(2), a copy of this assurance must be given to the person when he is informed of the order (subsection (3)).

252.     If the Secretary of State decides to order a person's discharge he is required to inform both the person and a representative of the category 2 territory (subsection (4)).

Clause 98: Making of order for extradition or discharge

253.     This clause specifies who may make an order required under this Part of the Bill to be made by the Secretary of State.

254.     Subsections (1) to (3) explain that an order for a person's extradition or discharge may be made by either the Secretary of State, a Minister of State, Parliamentary Under Secretary of State or a senior official. The last of these is defined as a member of the Senior Civil Service or a member of the Senior Management Structure of Her Majesty's Diplomatic Service. Subsection (4) allows the Secretary of State, by order (subsection (5)), to amend the category of senior officials authorised to make orders to take account of any future changes to structure or grading in the civil service.

Clause 99: Appeal where case sent to Secretary of State

255.     This clause provides a right of appeal against the decision of the judge to send the case to the Secretary of State.

256.     Subsections (1) and (3) allow a person to appeal to the High Court against the decision of the judge to send the case to the Secretary of State. This does not apply to a person who has consented to his extradition under clause 123 (subsection (2)). The appeal can be on a question of law or fact (subsection (4)). If an appeal is lodged it will be heard after the Secretary of State has made his decision (subsection (5)), unless the Secretary of State decides to order the person's discharge, in which case the appeal will not be proceeded with (subsections (6) and (7)). Any appeal under this clause must be lodged within 14 days starting on the day the Secretary of State notifies the person that he has ordered his extradition (subsection (8)).

Clause 100: Court's powers on appeal under clause 99

257.     This clause sets out the powers available to the High Court on an appeal under clause 99.

258.     The High Court may allow or dismiss the appeal or direct the judge to reconsider issues that were decided at the extradition hearing (subsection (1)). The appeal can only be allowed if the conditions in subsection (3) or (4) are met (subsection (2)). The conditions in subsection (3) are that the judge ought to have decided a question before him at the extradition hearing differently and if he had done so would have been required to order the person's discharge.

259.     The conditions in subsection (4) are that:

• an issue is raised or evidence is available that was not raised or available at the extradition hearing;

• the issue or evidence would have resulted in the judge making a different decision at the hearing; and

• this would have resulted in the judge ordering the person's discharge.

260.     The court must order the person's discharge and quash the extradition order if it allows the appeal (subsection (5)). The judge must also order the person's discharge if he comes to a different decision on a question that he has been directed to decide again by the High Court (subsection (6)). If the judge comes to the same decision as he did at the extradition hearing the appeal must be taken to have been dismissed by a decision of the High Court (subsection (7)).

Clause 101: Appeal against discharge at extradition hearing

261.     This clause provides a right for an appeal to be brought on behalf of the requesting state against a decision at the extradition hearing to discharge the person.

262.     Subsections (1), (3) and (4) allow an appeal to be brought on behalf of the requesting territory against the decision that resulted in the order for the discharge of the person, on any question of law or fact. The exception to this, in subsection (2), is when the discharge was under clause 118, as a result of the request being withdrawn.

263.     Notice of appeal must be given within 14 days of the order for the person's discharge (subsection (5)).

Clause 102: Court's powers on appeal under clause 101

264.     This clause sets out the powers available to the High Court following an appeal under clause 101.

265.     The High Court may allow or dismiss the appeal or direct the judge to decide the relevant question again (subsection (1)). The relevant question is one that resulted in the person's discharge. The appeal can only be allowed if the conditions in subsection (4) or (5) are met (subsection (3)). The conditions in subsection (4) are that the judge ought to have decided a question before him at the extradition hearing differently and if he had done so he would not have been required to order the person's discharge.

266.     The conditions in subsection (5) are that:

• an issue is raised or evidence is available that was not raised or available at the extradition hearing;

• the issue or evidence would have resulted in the judge making a different decision at the hearing; and

• as a result the judge would not have been required to order the person's discharge.

267.     Subsection (6) requires the High Court, if it allows the appeal, to quash the order discharging the person and remit the case back to the judge with a direction that he proceed as he would have been required to do if he had decided differently on the question that resulted in the person's discharge. If the court directs the judge to decide that question again and he decides it differently, the extradition hearing will continue from that point. If the judge makes the same decision then the appeal must be taken as have been dismissed by a decision of the High Court (subsections (7) and (8)).

Clause 103: Detention pending conclusion of appeal under clause 101

268.     This clause sets out the arrangements for detaining a person if an authority of the requesting state gives notice of its intention to appeal against a decision at the extradition hearing to discharge the person.

269.     Subsection (1) states that this clause applies if, immediately after the judge orders the person's discharge, the judge is informed that the requesting authority intends to appeal under the provisions of clause 101 above. The judge must remand the person in custody or on bail, but he may later grant bail if the person is remanded in custody (subsections (2) and (3)). The appeal ceases to be pending, under subsection (4), when the earliest of any of these applies:

• the proceedings on the appeal are discontinued;

• the High Court dismisses the appeal and the court is not immediately informed that the authority intends to apply for leave to appeal to the House of Lords (except for Scotland);

• the High Court dismisses the appeal (Scotland only - see subsection (5));

• leave to appeal to the House of Lords has been granted but no appeal is brought by the authority within 28 days (except for Scotland);

• there are no further avenues of appeal available to the authority.

Clause 104: Appeal against extradition order

270.     Subsections (1) to (3) allow a person to appeal on a question of law or fact against the decision of the Secretary of State to order his extradition. This does not apply where a person has consented to his extradition under clause 123 (subsection (2)). Notice of appeal must be given to the High Court within 14 days from the date the person was notified of the Secretary of State's decision (subsection (4)).

Clause 105: Court's powers on appeal under clause 104

271.     This clause sets out the powers available to the High Court on an appeal by a person against the extradition order.

272.     The High Court may allow or dismiss the appeal (subsection (1)). The court may only allow the appeal if the conditions in subsections (3) or the conditions in subsection (4) are met. The conditions in subsection (3) are that the Secretary of State should have decided a question before him differently and, if he had done so, would not have ordered the person's extradition. The conditions in subsection (4) are that:

• an issue or information is raised or available that was not raised or available to the Secretary of State at the time;

• the issue or information would have resulted in the Secretary of State deciding a question differently; and

• this would have resulted in a decision not to order the person's extradition.

273.     The person must be discharged and the extradition order quashed if the court allows the appeal (subsection (5)).

Clause 106: Appeal against discharge by Secretary of State

274.     Subsections (1), (3) and (4) allow the authority representing the requesting territory to appeal to the High Court against the decision that resulted in the discharge of the person by the Secretary of State. The appeal may be brought on any question of law or fact. The exception to this, in subsection (2), is when the order for the person's discharge was made under clause 119, as a result of the request being withdrawn.

275.     Notice of appeal must be given within 14 days of the authority in the requesting state being notified of the order for the person's discharge (subsection (5)).

Clause 107: Court's powers on appeal under clause 106

276.     This clause sets out the powers available to the High Court on an appeal by a category 2 territory against a decision not to order a person's extradition.

277.     The High Court may allow or dismiss the appeal (subsection (1)). The court may only allow the appeal if the conditions in subsection (3) or the conditions in subsection (4) are met (subsection (2)). The conditions in subsection (3) are that the Secretary of State should have decided a question before him differently and, if he had done so, would not have ordered the person's extradition. The conditions in subsection (4) are that:

• an issue or information is raised or available that was not raised or available to the Secretary of State at the time;

• the issue or information would have resulted in the Secretary of State deciding a question differently; and

• this would have resulted in a decision to order the person's extradition.

278.     The court must quash the order to discharge the person and order his extradition if it allows the appeal (subsection (5)).

Clause 108: Detention pending conclusion of appeal under clause 106

279.     This clause sets out the arrangements for the detention of a person when the Secretary of State is informed that the category 2 territory intends to appeal against the decision of the Secretary of State to order the person's discharge.

280.     Subsection (1) states that this clause applies if, immediately after the Secretary of State orders the person's discharge, he is informed that the requesting authority intends to appeal under the provisions of clause 106 above. The judge must remand the person in custody or on bail, but he may later grant bail if the person is remanded in custody (subsections (2) and (3)). The appeal ceases to be pending, under subsection (4), when the earliest of any of these applies:

• the proceedings on the appeal are discontinued;

• the High Court dismisses the appeal and the court is not immediately informed that the authority intends to apply for leave to appeal to the House of Lords (except for Scotland);

• the High Court dismisses the appeal (Scotland only - see subsection (5));

• leave to appeal to the House of Lords has been granted but no appeal is brought by the authority within 28 days (except for Scotland);

• there are no further avenues of appeal available to the authority.

Clause 109: Appeal to High Court: time limit for start of hearing

281.     This clause provides for the time limits within which the High Court must begin to hear an appeal under clause 99, 101, 104 or 106.

282.     Subsections (1) and (2) provide that rules of court must prescribe the period within which the High Court must begin to hear the appeal.

283.     Subsection (3) explains what happens if the appeal is against a decision to order extradition (under clause 99 or 104) and the High Court does not begin to hear the case within the set time period. In these circumstances the appeal will be considered to have been allowed, the person discharged and the order for the person's extradition quashed. If the appeal is by the requesting state (under clause 101 or 106) and the High Court does not begin to hear the appeal within the set time period, then it will be considered as having been dismissed (subsection (4)).

Clause 110: Appeal to House of Lords

284.     This clause provides rights of appeal to the House of Lords.

285.     An appeal to the House of Lords following a decision of the High Court can be made by the person whose extradition is requested or a person acting on behalf of the category 2 territory (subsections (1) and (2)). An appeal can only be made when leave has been granted by the High Court or House of Lords (subsection (3)). Leave can only be granted where the High Court has certified that there is a point of law of general public importance involved in the decision and the court granting leave believes that there is a point which should be considered by the House of Lords (subsection (4)).

286.     Subsections (5) and (6) provide that an application to the High Court for leave to appeal must be made within 14 days of the court's decision and applications to the House of Lords must be made within 14 days from the date the High Court refuses the application. If leave to appeal is granted the appeal must be brought within 28 days of the leave being granted (subsection (7)). If it is not, the appeal is deemed to have been dismissed immediately after the end of the period permitted under subsection (7) (subsection (8)), ignoring any powers of a court to extend the period for bringing the appeal or to grant leave to take a step out of time (subsection (9)). The High Court may grant bail to person appealing under this clause (subsection (10)). Subsections (11) and (12) apply provisions of the Appellate Jurisdiction Act 1876 which concern the composition of the House of Lords for hearing and determination of appeals.

287.     Subsection (13) states that this clause does not apply to Scotland (see clause 32 above).

Clause 111: Powers of House of Lords on appeal under clause 110

288.     This clause sets out the powers available to the House of Lords on an appeal by the person who is the subject of the request or by the requesting state.

289.     Subsection (1) provides that the House of Lords may allow or dismiss an appeal. Subsections (2) and (3) provide that if the House of Lords allows an appeal by the person who is subject to the extradition order, it must order his discharge and quash the extradition order.

290.     Subsections (4) and (5) apply if the House of Lords allows an appeal by the requesting state against a decision of the High Court to discharge a person or not to quash an order by the Secretary of State for his discharge. The House of Lords is required to quash the order discharging the person and order his extradition.

291.     Subsections (6) and (7) apply where the requesting state appeals to the House of Lords against a decision of the High Court to dismiss its earlier appeal against the order to discharge a person at the extradition hearing. If the House of Lords allows the appeal - it decides that the basis of the judge's decision to order a person's discharge was wrong - it must quash the order discharging the person and remit the case back to the judge and require him to proceed as if his original decision had been different.

Clause 112: Appeals: general

292.     This clause provides that decisions made by the judge or the Secretary of State under this Part of the Bill may only be challenged by means of the appeals described in this Part of the Bill.

Clause 113: Extradition where no appeal

293.     This clause provides the time limits for extraditing a person who is subject to an extradition order and has not appealed against the decision. Subsection (1) states that this clause applies where the Secretary of State has ordered the person's extradition and no appeal has been lodged within 14 days, ignoring any powers of a court to extend the period for giving notice of appeal or to grant leave to take a step out of time (see subsection (4)). The person must be extradited within 28 days of the date on which the order was made (subsection (2)). The judge must, on a person's application, order his discharge if this deadline is not met, unless reasonable cause is shown for the delay (subsection (3)).