Clause 114: Extradition following appeal

294.     This clause provides the time limit for extraditing a person subject to an extradition order where an appeal has been brought and the outcome is that he is to be extradited.

295.     Subsection (1) states that this clause applies where an appeal to the High Court under clause 99, 104 or 106 has been brought and the result of the final decision on the appeal is that the person is to be extradited. Subsection (2) requires the person to be extradited within 28 days of the date on which the appeal decision becomes final or the days on which the appeal proceedings are discontinued. If this deadline is not complied with the judge must, on the person's application, order his discharge, unless reasonable cause is shown for the delay (subsection (6)). Subsection (3) defines the relevant court as the High Court, where there is no appeal to the House of Lords, or the House of Lords if there is such an appeal. Subsection (4) explains that the decision of the High Court becomes final:

• when the period permitted for applying to the High Court for leave to appeal to the House of Lords ends, if no application for leave is made;

• when the period permitted for applying to the House of Lords for leave to appeal to it ends, if leave is refused by the High Court and there is no application for leave to the House of Lords;

• when the House of Lords refuses leave to appeal;

• after 28 days from the day on which leave to appeal to the House of Lords is granted, if no such appeal is brought in that time.

296.     For the purposes of determining when the decision of the High Court is final, any powers of a court to extend the period for applying for leave to appeal or to grant leave to take a step out of time must be ignored (subsection (5)).

297.     The decision of the House of Lords is immediately final (subsection (6)).

298.     Subsection (8) includes the relevant modifications for this clause to apply to Scotland. For this purpose the relevant court in this clause will always be the High Court and all references to the House of Lords are omitted.

Clause 115: Undertaking in relation to person serving sentence in United Kingdom

299.     This clause allows the Secretary of State to make an extradition order subject to a condition that extradition will not take place until he has received certain undertakings on behalf of the category 2 territory that submitted the extradition request. This clause only applies if the person is serving a custodial sentence in the United Kingdom (subsections (1) and (2)).

300.     The Secretary of State can specify the terms of any such undertaking. The terms include terms that the person is kept in custody during the entire proceedings in the category 2 territory. He may also require the person to be returned to the United Kingdom to serve his domestic sentence, on conclusion of those proceedings or after serving any sentence(s) imposed in the category 2 territory (subsections (3) and (4)).

301.     Where the Secretary of State imposes a condition on an extradition order under the power given by this clause, and clause 113 (extradition where no appeal) applies, the 28-day period described in clause 113 begins on the day the Secretary of State receives the undertaking. Where a condition is imposed and clause 114 (extradition following appeal) applies, the 28 days start from the day on which the appeal decision becomes final or, if later, the day the Secretary of State receives the undertaking (subsection (5)).

Clause 116: Extradition following deferral for competing claim

302.     This clause applies where a person's extradition has been deferred, in the event of a competing Part 1 warrant or category 2 extradition request, and the judge subsequently orders that extradition to go ahead under clause 183(3)(a) (subsection (1)).

303.     Where these circumstances occur and no appeal is made (see clause 113, extradition where no appeal), the 28-day period described in clause 113 begins on the day the judge makes the order under clause 181(3)(a) (subsection (2)). Where this situation occurs and there is an appeal (see clause 114, extradition following appeal), the 28 days start from the day on which the appeal decision becomes final or, if later, the day the judge makes the order under clause 181(3)(a) (subsection (3)).

Clause 117: Position where asylum claimed

304.     This clause sets out what is to happen where a person makes an asylum claim at any time during extradition proceedings under this Part of the Bill. This clause applies where such a claim is made by the person at any time between the issue of a certificate on a extradition request from a category 2 territory (under clause 70) and the person's extradition in pursuance of that warrant (subsections (1) and (2)).

305.     Subsection (3) states that the person in question must not be extradited until his asylum claim is finally determined. (Clauses 113 and 114 set out the procedure for a person's extradition and take effect subject to this subsection.) Subsection (4) explains that an asylum claim is finally determined, if it is allowed, when the Secretary of State has made this decision. Where the Secretary of State rejects the claim, it is finally determined either when the period allowed to appeal against the decision has lapsed (and no appeal has been brought), or when the appeal is finally determined, withdrawn or abandoned (subsection (5)). An appeal has been finally determined when a final decision on it has been made, it has been withdrawn or abandoned and there is no further possibility of appeal or applying for leave to appeal. The remittal of an appeal does not amount to final determination (subsections (6) and (7)). Under subsection (8) the possibility of leave to appeal out of time against the Secretary of State's decision on an asylum claim must be ignored.

306.     For the purposes of this clause "asylum claim" has the meaning given by section 113 of the Nationality, Immigration and Asylum Act 2002 (subsection (9)). This is a claim made by a person to the Secretary of State that to remove the person or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Convention relating to the Status of Refugees done at Geneva on 28^th July 1951 and its protocol.

Clause 118: Withdrawal of request before end of extradition hearing

307.     This clause deals with the situation where an extradition request is withdrawn before the end of the extradition hearing and the judge is informed of the withdrawal (subsection (1)).

308.     The judge is required to order the person's discharge and, if the person is not present when it is ordered, inform the person of his discharge (subsections (3) and (4)).

Clause 119: Withdrawal of request after case sent to Secretary of State

309.     This clause applies if the Secretary of State is informed that an extradition request is withdrawn after the case has been sent to him to decide on extradition, but before the person is either discharged or extradited (subsections (1) and (2)). Under subsection (3) the Secretary of State is required to order the person's discharge in such circumstances.

Clause 120: Withdrawal of request while appeal to High Court pending

310.     This clause applies if the High Court is informed that an extradition request is withdrawn before the end of the appeal hearing.

311.     Where these circumstances occur and the appeal is brought by the person (under clause 99 or 104) the court is required to order his discharge and quash the extradition order if one has been made (subsection (3)). If the appeal has been brought on behalf of the category 2 territory (under clause 101 or 106) the court must dismiss the appeal (subsection (4)). Subsection (5) requires the court to inform the person of his discharge if he is not present when it is ordered.

Clause 121: Withdrawal of request while appeal to House of Lords pending

312.     This clause applies if the House of Lords is informed that an extradition request is withdrawn before the House of Lords has given its decision on the case.

313.     Where these circumstances occur and the appeal is brought by the person, the House of Lords is required to order his discharge and quash the extradition order if one has been made (subsection (3)). If the appeal has been brought on behalf of the category 2 territory the House of Lords must dismiss the appeal under subsection (4). Subsection (5) requires the House of Lords to inform the person of his discharge, if he is not present when it is ordered.

Clause 122: Competing extradition requests

314.     This clause sets out what is to happen when the Secretary of State receives an extradition request in respect of a person in the United Kingdom who is already the subject of Part 2 proceedings and who has not yet been extradited or discharged (subsection (1)).

315.     The Secretary of State has power, under subsection (2), to order proceedings on one of the requests to be deferred until the other request has been disposed of. In taking this decision the Secretary of State must take into account the factors listed in subsection (3):

• the relative seriousness of the offences;

• the place where they were committed;

• the dates on which the requests were received; and

• whether each is an accusation or conviction case.

316.     Where that Secretary of State has ordered Part 2 proceedings to be deferred under subsection (2) and an order for the person's extradition has already been made, the Secretary of State may order the extradition itself to be deferred pending the disposal of the competing category 2 request (subsection (2)).

Clause 123: Consent to extradition: general

317.     This clause provides that a person who has been arrested under a warrant issued following the receipt of an extradition request or under a provisional warrant may consent to his extradition. Consent must be given in writing and is irrevocable (subsection (3)).

Clause 124: Consent to extradition before case sent to Secretary of State

318.     This clause applies if a person consents to his extradition before his case is sent to the Secretary of State.

319.     Subsection (2) states that consent must be given to the appropriate judge. If a person consents the judge is no longer required to fix a date for the extradition hearing or, if the hearing has started, the judge no longer has to continue with it (subsections (3) and (4)). Subsection (5) requires the judge to send the case to the Secretary of State for his decision as to whether the person is to be extradited. If a person consents then it is taken that he has waived his right to speciality, that is the right not to be dealt with in the category 2 territory for an offence committed before his extradition (subsection (6)).

Clause 125: Consent to extradition after case sent to Secretary of State

320.     This clause provides that if a person consents after his case has been sent to the Secretary of State, consent must be given to the Secretary of State.

Clause 126: Consent to other offence being dealt with

321.     This clause applies where a person has been extradited to a category 2 territory and the Secretary of State receives a valid request for consent to prosecute the person for an offence other than the offence for which he was extradited (subsection (1)). A valid request is one made by a recognised authority (subsection (2)).

322.     The Secretary of State must decide whether the offence to which the request for consent relates is an extradition offence (subsection (3)). If he decides that it is, he must decide whether the person's extradition in respect of the offence would be prohibited by clause 91 (death penalty) if the person were in the United Kingdom (subsection (5)). If the Secretary of State decides that the offence is not an extradition offence or that clause 91 would apply then consent must be refused (subsections (4) and (6)). If the Secretary of State is satisfied that the offence is an extradition offence and that clause 91 would not apply then consent may be given (subsection (7)).

Clause 127: Consent to further extradition to category 2 territory

323.     This clause applies where a person has been extradited to a category 2 territory and the Secretary of State receives a valid request for consent to re-extradite the person to another category 2 territory for an offence other than the offence for which he was extradited (subsection (1)). A valid request is one made by a recognised authority (subsection (2)).

324.     The Secretary of State must decide whether the offence to which the request for consent relates is an extradition offence (subsection (3)). If he decides that it is, he must decide whether clause 91 (death penalty) would apply if the person were in the United Kingdom (subsection (5)). If the Secretary of State decides that the offence is not an extradition offence or that clause 91 would prohibit extradition then consent must be refused (subsections (4) and (6)). If the Secretary of State is satisfied that the offence is an extradition offence and that clause 91 would not apply then consent may be given (subsection (7)).

Clause 128: Consent to further extradition to category 1 territory

325.     This clause applies where a person has been extradited to a category 2 territory and the Secretary of State receives a valid request for consent to re-extradite the person to a category 1 territory for an offence other than the offence for which he was extradited (subsection (1)). A valid request is one made by a recognised authority (subsection (2)).

326.     The Secretary of State must decide whether the offence is an extradition offence within the meaning of clause 63 (subsection (3)). If he decides that it is the Secretary of State must decide if the appropriate judge would order extradition under clauses 11 to 25 if the person were in the United Kingdom (subsection (5)). If the Secretary of State decides that the offence is not an extradition offence or that the judge would not order extradition then consent must be refused (subsections (4) and (7)). If the Secretary of State is satisfied that the offence is an extradition offence and that the judge would order extradition then consent may be given (subsection (6)).

Clause 129: Return of person to serve remainder of sentence

327.     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 130: Costs where extradition ordered

328.     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.

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

• a person's extradition is ordered in pursuance of a category 2 extradition request;

• the High Court dismisses a person's appeal against an order for his extradition (brought under clause 99 or 104);

• the High Court or House of Lords refuses a person leave to appeal a decision of the High Court under clause 110;

• the House of Lords dismisses a person's appeal under clause 110.

330.     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) to (5)). 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 (6)).

Clause 131: Costs where discharge ordered

331.     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.

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

• a person's discharge is ordered under Part 2;

• 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 101 or 106);

• 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 110;

• the House of Lords dismisses the appeal of the authority which issued a Part 1 warrant under clause 110.

333.     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 thinks 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)).

334.     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 132: Costs where discharge ordered: supplementary

335.     Subsections (1) and (2) of this clause mean that section 20(1) and (3) of the Prosecution of Offences Act 1985 apply to clause 131 in the same way as 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 131 as it does to sections 2 to 5 of that Act.

Clause 133: Documents sent by facsimile

336.     Subsection (1) allows documents to be submitted by facsimile in connection with a Part 2 extradition case. The documents sent by facsimile are to be treated in the same way as the originals and may be received in evidence accordingly (subsection (2)).

Clause 134: Receivable documents

337.     Subsection (1) provides that a duly authenticated document issued in a category 2 territory may be received in evidence under Part 2.

338.     Subsection (2) states that a document issued in a category 2 territory is duly authenticated if:

• it purports to be signed by a judge, magistrate or other judicial authority of the territory; or

• it purports to be authenticated by the oath or affirmation of a witness.

339.     A document that is not duly authenticated is not prevented by this clause from being used in Part 2 proceedings (subsection (3)).

Clause 135: Persons serving sentences outside territory where convicted

340.     This clause applies when an extradition request is made in relation to a person who has been convicted of an offence in one territory, is repatriated to another territory under an international arrangement to serve his sentence, and is unlawfully at large from a prison in that other territory (subsections (1) and (2)).

341.     Subsections (3) and (4) modify the application of the relevant clauses in this Part of the Bill to allow extradition of a person in these circumstances.

Clause 136: Extradition offences: person not sentenced for offence

342.     This clause defines the different types of conduct that constitute an extradition offence in respect of category 2 territories, but only in cases where the person is accused of the offence in the category 2 territory or has been convicted of an offence but not yet sentenced (subsection (1)).

343.     Conduct is an extradition offence if certain conditions are met (subsection (2)). These are that:

• the conduct occurs in the category 2 territory;

• the conduct would amount to an offence punishable with detention for a period of 12 months or more if it occurred in the United Kingdom;

• it is similarly punishable under the law of the requesting category 2 territory.

344.     Subsections (3) to (5) allow a category 2 territory to request extradition for offences over which it claims extra-territorial jurisdiction. Extra-territorial jurisdiction is where a country claims jurisdiction (and therefore the right to prosecute) even though the conduct did not take place on its soil. Conduct is therefore an extradition offence if (subsection (3)):

• the conduct occurs outside the category 2 territory;

• it is punishable under the law of the category 2 territory with a custodial sentence of 12 months or more;

• in corresponding circumstances the equivalent conduct would constitute an extra-territorial offence against the law of the United Kingdom punishable with a custodial sentence of 12 months or more.

345.     Under subsection (4) conduct is also an extradition offence if:

• the conduct occurs outside the category 2 territory and no part of it occurs in the United Kingdom;

• the conduct would amount to an offence punishable with detention for 12 months or more if it occurred in the United Kingdom;

• it is similarly punishable under the law of the category 2 territory.

346.     Subsection (5) states that conduct also constitutes an extradition offence if:

• the conduct occurs outside the category 2 territory and no part of it occurs in the United Kingdom;

• it is punishable under the law of the category 2 territory with detention for a term of 12 months or more;

• the conduct constitutes an offence mentioned in subsection (6).

347.     The offences in subsection (6) 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.

348.     Subsection (7) provides that if conduct constitutes an offence under the military law of a category 2 territory but not an offence under the general criminal law of the United Kingdom, it does not amount to an extradition offence within the definitions given in this clause. Where there is reference to the relevant part of the United Kingdom this means the part of the United Kingdom where the extradition proceedings have taken place, or are taking place, as appropriate (subsection (8)).

Clause 137: Extradition offences: person sentenced for offence

349.     This clause defines the different types of conduct that constitute an extradition offence in respect of category 2 territories in cases where the person has been convicted and sentenced for the offence (subsection (1)).

350.     Under subsection (2) conduct constitutes an extradition offence if the following conditions are met:

• the conduct occurs in the category 2 territory;

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

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

351.     Conduct also constitutes an extradition offence if (subsection (3)):

• the conduct occurs outside the category 2 territory;

• a custodial sentence of 4 months or more has been imposed in that territory for the conduct;

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

352.     Under subsection (4) conduct would also constitute an extradition offence if:

• it occurs outside the category 2 territory and no part of it occurs in the United Kingdom;

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

• a sentence of detention for 4 months or more has been imposed for the conduct in the category 2 territory.

353.     Under subsection (5) conduct would also constitute an extradition offence if:

• the conduct occurs outside the category 2 territory and no part of it occurs in the United Kingdom;

• it is punishable under the law of the category 2 territory with detention for a term of 12 months or more;

• the conduct constitutes or would constitute an offence mentioned in subsection (6).

354.     The offences in subsection (6) 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.

355.     Subsection (7) provides that if conduct constitutes an offence under the military law of a category 2 territory but not an offence under the general criminal law of the United Kingdom, it does not amount to an extradition offence within the definitions given in this clause. Where there is reference to the relevant part of the United Kingdom this means the part of the United Kingdom where the extradition proceedings have taken place, or are taking place, as appropriate (subsection (8)).