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

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Clause 160: Entry and search of premises on arrest

423.     This clause gives a police constable power to enter and search premises where a person is arrested under an extradition arrest power, unless arrest takes place at a police station (subsection (1)).

424.     Subsection (2) provides for a police constable to enter and search premises where the person is arrested, or in which he was immediately before arrest, if there are reasonable grounds to believe that there is evidence of the relevant offence or of the person's identity on the premises. "Evidence" in this context does not include items subject to legal privilege. The relevant offence (subsection (3)) is one on the basis of which a Part 1 warrant has been or will be issued (Part 1), or on the basis of which extradition has been or will be formally requested (Part 2).

425.     A police constable may search premises only for evidence (which does not include items subject to legal privilege) relating to the relevant offence and the person's identity and only so far as is reasonably necessary to find such evidence (subsection 4)). Subsection (5) allows a police constable to seize and retain anything discovered in exercise of this power.

426.     In addition to the powers described above a police constable may (subsection (6)), having entered premises in exercise of this power, confiscate anything he finds there where he has reasonable grounds to believe:

  • that it has been obtained as the result of an offence or is evidence of an offence; and

  • that it is necessary to seize it to avoid the evidence being lost or interfered with in any way.

427.     Subsection (8) covers the situation where the premises in question include multiple dwellings. A police constable is allowed, in this situation, to enter and search only the communal areas of the premises and any dwelling where the arrest took place, or in which the person was immediately before arrest.

Clause 161: Search of person on arrest

428.     This clause gives a police constable power to search a person on arrest under an extradition arrest power, unless the arrest takes place at a police station (subsection (1)).

429.     A police constable is allowed to search the person if he reasonably believes that the person could be a danger to himself or anyone else (subsection (2)). The constable may also seize and retain anything he finds as a result of this search, in accordance with subsection (6), if he reasonably believes that the person might use it to cause physical harm to himself or another person.

430.     A police constable, under subsection (3), is also allowed to search the person if he reasonably believes that the person may have something concealed on him that:

  • might be used to enable escape from custody; or

  • might be evidence of an offence or of the person's identity.

431.     A police constable may use this power to search a person only for anything described in subsection (3) and only so far as is reasonably necessary to find any such thing (subsection 4)). The police constable has power under subsection (7) to seize and retain anything found during such a search. The constable must have reasonable grounds for believing the person might use the item to assist in an escape from custody, that the item is evidence of an offence or of the person's identity, or that it has been obtained as the result of an offence.

432.     Subsection (5) sets out the limits of the search powers under subsections (2) and (3). The constable may not require a person to remove in public any clothes other than an outer coat, jacket or gloves. However, the constable is allowed to conduct a search of the person's mouth under these powers.

433.     The provisions of this clause do not affect the powers of a police constable to search a person suspected of terrorist offences under section 43 of the Terrorism Act 2000 (subsection (9)).

Clause 162: Entry and search of premises after arrest

434.     This clause gives a police constable power to enter and search premises after a person has been arrested under an extradition arrest power (subsection (1)).

435.     Subsection (2) allows a police constable to enter and search premises occupied or controlled by the arrested person, if there are reasonable grounds to believe that there is evidence of the relevant offence or of the person's identity on the premises. The relevant offence (subsection (3)) is one on the basis of which a Part 1 warrant has been or will be issued (Part 1), or on the basis of which extradition has been or will be formally requested (Part 2).

436.     A police constable may use the power to search premises only for evidence relating to the relevant offence and the person's identity and only so far as is reasonably necessary to find such evidence (subsection (4)). This evidence may not include any items subject to legal privilege. Subsection (5) allows a police constable to seize and retain anything relevant that is discovered in exercise of this power.

437.     In addition to the powers described above a police constable may (subsection (6)), having entered premises in exercise of the power in subsection (2), seize and retain anything he finds there if he has reasonable grounds to believe:

  • that it has been obtained as the result of an offence or is evidence of an offence; and

  • that it is necessary to confiscate it to avoid the evidence being lost or interfered with in any way.

438.     Under subsection (8) the powers to search premises and seize and retain evidence given in this clause may only be used with the written authorisation of a police officer of inspector level or higher. Subsection (9) gives the exception to this rule. The power to search in subsection (2) may be carried out without this authorisation before the arrested person is taken to a police station if the holding of the person somewhere other than a police station is necessary for an effective search to occur.

439.     Subsection (10) states that subsections (8) and (9) do not apply to Scotland. This means that the powers in subsections (2) and (5), to enter and search premises and to retain any evidence found as a result, may be exercised in Scotland without written authority.

Clause 163: Additional seizure powers

440.     This clause amends the Criminal Justice and Police Act 2001 so that the additional powers given in sections 50 and 51 of that Act will be available in extradition cases. These powers supplement other seizure powers in cases where it is not reasonably practicable to determine whether something found on premises or a person can be seized in exercise of the other power, or it is not reasonably practicable to separate something which a constable has power to seize from something which he does not have power to seize.

Clause 164: Fingerprints and samples

441.     This clause applies if a person is arrested under an extradition arrest power and detained at a police station.

442.     Subsections (2) and (3) give a police constable power to take fingerprints and samples only if the person has given his consent or if they have the appropriate authorisation. Under subsection (4) authorisation must come from a police officer of at least inspector level.

Clause 165: Searches and examination

443.     This clause applies if a person is arrested under an extradition arrest power and detained at a police station. The person may be searched or examined for the purpose of ascertaining his identity with the authorisation of a police officer of the rank of inspector or above. Ascertaining his identity includes establishing that he is not a particular person. (subsection (7)).

444.     If, during the course of a search or examination, an identifying mark is found, it may be photographed with the person's consent. It may still be photographed without that consent if consent is withheld or it is not practicable to obtain consent (subsection (3)). Under subsection (4) the only people allowed to conduct a search or examination or take a photograph under this clause are police constables or persons given this responsibility by the appropriate police officer. The appropriate officer is the chief police officer in the area in question for England and Wales. In Northern Ireland it is the Chief Constable of the Police Service of Northern Ireland (subsection (10)).

445.     Subsections (5) and (6) explain that no one is allowed to conduct a search or examination or photograph any part (except the face) of a person of the opposite sex. Furthermore, this clause does not allow an intimate search to be conducted.

Clause 166: Photographs

446.     This clause applies if a person is arrested under an extradition arrest power and detained at a police station. The person may be photographed with the appropriate consent; he may still be photographed without that consent if it is withheld or it is impractical to obtain consent, under subsection (2).

447.     A person proposing to take a photograph under this clause can, under subsection (3), require the person arrested to remove anything worn on the head or face. If this is not done the person taking the photograph is allowed to remove such items from the head or face of the person arrested. Under subsection (4) the only people allowed to take a photograph under this clause are police constables or persons given this responsibility by the appropriate police officer. The appropriate officer is the chief police officer in the area in question for England and Wales. In Northern Ireland it is the Chief Constable of the Police Service of Northern Ireland (subsection (6)).

Clause 167: Evidence of identity: England and Wales

448.     This clause amends the Police and Criminal Evidence Act 1984 (PACE). The PACE provisions that cover the identity issues outlined in clauses 164 to 166 above will no longer apply to a person arrested under an "extradition arrest power" (as defined below in clause 172) since in future the provisions in the Bill will apply. This relates to England and Wales only.

Clause 168: Evidence of identity: Northern Ireland

449.     This clause amends the Police and Criminal Evidence (Northern Ireland) Order 1989. The provisions in that Order that cover the identity issues outlined in clauses 164 to 166 above will no longer apply to a person arrested under an "extradition arrest power" (as defined below in clause 172) since in future the provisions of the Bill will apply. This relates to Northern Ireland only.

Clause 169: Other treatment and rights

450.     This clause applies if a person has been arrested at a police station, taken to a police station after arrest or detained after arrest in an extradition case. For such cases the Secretary of State can apply by order the four specified sections of PACE or, as appropriate, the corresponding Northern Ireland provisions (subsection (2)). These are listed in subsections (3) and (4) and determine the rights of an arrested person at a police station in relation to searches, the right to inform someone of the arrest and the right to have access to legal advice.

Clause 170: Delivery of seized property

451.     This clause relates to the handing over of seized property to an authority of a category 1 or category 2 territory. This applies to anything seized or produced under this Part of the Bill or anything seized under section 50 or 51 of the Criminal Justice and Police Act 2001 where a constable was relying on a power conferred by this Part of the Bill (subsection (1)).

452.     Subsection (2) allows a police constable to hand over any such items to a person acting on behalf of the relevant authority. A constable may do so if he has reason to believe that the authority's functions make it appropriate to hand the items over to it.

453.     Where anything has been seized under a warrant or order produced under this Part of the Bill, the relevant territory is the one that is specified in the application for the warrant or order (subsection (3)). Where anything is seized without a specific search warrant (see clauses 159 to 162) subsections (4) to (6) determine the relevant territory. The relevant territory is the one in which the Part 1 warrant was issued, or in a provisional arrest case, the one in which a constable has reason to believe such a warrant has been or will be issued. For category 2 the relevant territory is the one which has requested the person's extradition, or in a provisional arrest case, the one in which the person is accused or has been convicted of an offence.

454.     Subsections (7) and (8) set out the necessary modifications in the application of this clause to Scotland.

Clause 171: Codes of practice

455.     This clause requires the Secretary of State to issue codes of practice to cover the use of powers given in this Part of the Bill. These codes of practice must cover the use of police powers given by this Part of the Bill, the handling, return, access to and copying of anything seized during a search or produced under a production order, and the handling and destruction of any fingerprints, samples or photographs (subsection (1)).

456.     Subsections (2) and (3) explain what is to happen when the Secretary of State intends to issue a code of practice under this clause. He is required to publish the code in draft form, consider any issues arising from this consultation and, if considered appropriate, amend the code accordingly. The Secretary of State can then bring the code into effect by order (subsection (4)).

457.     It is possible to revise or replace any such code, using the same procedures as described above, as provided in subsection (5). Failure by a police constable to adhere to any such code will not of itself make him liable under either criminal or civil law (subsection (6)). A code of practice made under this clause can be admitted in court as evidence in an extradition case. Under subsection (7) a judge or court must take account of the code where it appears that it is relevant.

Clause 172: Interpretation

458.     This clause contains definitions of certain terms used in this Part of the Bill. Subsection (2) explains that an "extradition arrest power" is the power of arrest or provisional arrest given in Parts 1 and 2 of this Bill.

459.     Subsection (3) gives "excluded material" the meaning given in section 11 of PACE in England and Wales, and the corresponding provisions in Northern Ireland. This covers material, records or substances that are held in confidence (for example, personal records, medical samples or journalistic material).

460.     Subsection (4) gives "items subject to legal privilege" the meaning given by section 10 of PACE in England and Wales, and the corresponding provisions in Northern Ireland. This covers any communication between a lawyer and his client (or a person representing either party) that is in whole or part concerned with legal advice or proceedings. However, anything held with the intention of furthering a criminal cause is not covered.

461.     Subsection (5) gives "premises" the meaning given in section 23 of PACE in England and Wales, and the corresponding provisions in Northern Ireland. This covers any place, including any vehicle, vessel, aircraft, hovercraft, offshore installation, tent or movable structure.

462.     Subsection (6) gives "special procedure material" the meaning given in section 14 of PACE in England and Wales, and the corresponding provisions in Northern Ireland. This is material which is neither "excluded material" nor "items subject to legal privilege", but which is held in a professional or official capacity. The material must also be held subject to an implied or express undertaking to hold it in confidence or subject to an obligation of secrecy.

463.     Subsections (7) and (8) give other terms used in Part 4 the meanings given by section 65 of PACE in England and Wales, and the corresponding provisions in Northern Ireland. "Appropriate consent" is:

  • the person's own consent (if he has reached the age of 17 years);

  • the person's consent and his parent or guardian's consent (if he has reached 14 but is not yet 17);

  • the consent of the person's parent or guardian (if he is not yet 14).

464.     The term "fingerprints" includes palm prints. An "intimate search" is a search consisting of the physical examination of a person's body orifices other than the mouth. A "non-intimate sample" means a sample of hair other than pubic hair, a sample taken from a nail or under a nail, a swab taken from the body (but not an orifice), a footprint or other such impression (but not of the hand).

Clause 173: Customs officers

465.     This clause allows the Treasury to make an order authorising customs officers to perform the functions of police officers given in this Part of the Bill.

PART 5

MISCELLANEOUS AND GENERAL PROVISIONS

Clause 174: Extradition to Commonwealth countries etc.

466.     This clause provides that an Order in Council may apply any relevant extradition provision - that is those that would apply to extradition from the United Kingdom to certain category 2 territories - to a British overseas territory in modified form. These provisions, when applied, will then govern the extradition arrangements of that British overseas territory when extraditing to Commonwealth countries, other British overseas territories and the Hong Kong Special Administrative Region.

Clause 175: Extradition to other category 2 territories

467.     This clause applies any relevant extradition provision - that is those that would apply to extradition from the United Kingdom to a category 2 territory not mentioned in clause 174 - to a British overseas territory. Modifications of the Act can be made by the law of the British overseas territory or the Order designating the category 2 territory in question. As modified, the Bill will then govern the extradition arrangements of the British overseas territory when extraditing to category 2 territories other than Commonwealth countries, British overseas territories and the Hong Kong Special Administrative Region.

Clause 176: Extradition from Commonwealth countries etc.

468.     This clause provides that an Order in Council may apply any relevant extradition provision - that is those that would apply to extradition to the United Kingdom from certain category 2 territories - to a British overseas territory in modified form. These provisions, when applied, will then govern the extradition arrangements of that British overseas territory when extraditing from Commonwealth countries, other British overseas territories or the Hong Kong Special Administrative Region.

Clause 177: Extradition from other category 2 territories

469.     This clause applies any relevant extradition provision - that is those that would apply to extradition to the United Kingdom from a category 2 territory not covered in clause 176 - to a British overseas territory. Modifications of the Act can be made by the law of the British overseas territory or the Order designating the category 2 territory in question. As modified, the Bill will then govern the extradition arrangements of that British overseas territory when extraditing from category 2 territories other than Commonwealth countries, British overseas territories and the Hong Kong Special Administrative Region.

Clause 178: British overseas territories and the United Kingdom

470.     This clause allows any provision of this Bill to be applied, by an Order in Council, and modified as appropriate to extradition between the United Kingdom and a British overseas territory.

Clause 179: Competing claims to extradition

471.     Subsection (1) applies, if, at the same time, there is a Part 1 warrant in respect of a person and a request for the person's extradition under Part 2. Where the person has not yet been extradited or discharged under either category, the Secretary of State may order proceedings on either the warrant or the request to be deferred until the other one has been disposed of (subsection (2)), taking into account (subsection (3)):

  • the relative seriousness of the offences;

  • the place where the offence occurred/was alleged to have occurred;

  • the dates the warrant and request were issued; and

  • whether the person is accused of the offences or is alleged to be unlawfully at large after conviction of them.

472.     Where the 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)).

473.     Subsection (4) provides for the situation where both of the competing extradition claims were certified in Scotland. In these circumstances the references in this clause to the Secretary of State are to be read as references to the Scottish Ministers.

Clause 180: Proceedings on deferred warrant or request

474.     This clause applies when an order has been made under this Bill on competing extradition claims (a claim being a Part 1 warrant or a request from a category 2 territory - subsection (5)) and proceedings on one of them are deferred until the other has been disposed of. This clause sets out what is to happen with the deferred claim once the other claim has been disposed of (subsection (1)).

475.     Under subsection (2) the judge has the power, if the person applies to him, to order the person's discharge. Within 21 days of the first claim being disposed of, the judge is either to order that proceedings on the deferred claim be resumed or to order the person's discharge. If this is not done the person must be taken to be discharged (subsections (3) and (4)).

Clause 181: Proceedings where extradition deferred

476.     This clause applies when an order has been made under this Bill on competing extradition claims and a person's extradition under one of the claims is deferred until the other has been disposed of. This clause sets out what is to happen with the deferred extradition once the other claim has been disposed of (subsection (1)).

477.     Under subsection (2) the judge has the power, if the person applies to him, to order the person's discharge. Within 21 days of the first claim being disposed of, the judge is either to order that the extradition cease to be deferred or to order the person's discharge. If this is not done the person must be taken to be discharged (subsections (3) and (4)).

Clause 182: Legal aid: Scotland

478.     This clause means that the provisions of the Legal Aid (Scotland) Act 1986 apply to extradition proceedings (including any subsequent appeal) in Scotland, under Part 1, 2 or 5 of this Bill, in the same way that they apply to summary proceedings in Scotland.

Clause 183: Grant of free legal aid: Northern Ireland

479.     This clause gives an appropriate judge and the High Court the power to grant free legal aid to a person in connection with proceedings under Part 1 or 2 of the Bill in Northern Ireland (see clause 207). The provision of legal aid in connection with extradition cases for other parts of the United Kingdom is contained in the appropriate legal aid legislation, which will be amended by secondary legislation.

480.     Subsection (1) provides for the appropriate judge to grant free legal aid to a person in connection with extradition proceedings before the judge or the High Court. Similarly, a judge of the High Court can grant a person free legal aid in connection with extradition proceedings before that court or the House of Lords (subsection (2)). Where a judge refuses to grant free legal aid in connection with proceedings before the High Court, the person can appeal this decision to the High Court. The High Court may itself then grant free legal aid (subsection (3)). A judge of the High Court may grant free legal aid in connection with proceedings on such an appeal (subsection (4)). On such an appeal the High Court may either allow or dismiss the appeal. If it allows the appeal it must then grant the person free legal aid in connection with the relevant proceedings under Part 1 or 2 of this Bill (subsections (6) and (8)).

481.     Subsections (5) and (7) set out the criteria on which the judge or court is to decide whether free legal aid is to be granted. The judge or court may grant free legal aid, or allow an appeal against refusal of free legal aid, only where it appears that:

  • the person's means are insufficient to enable him to obtain legal aid, and

  • it is desirable in the interests of justice that free legal aid be granted.

482.     If, in deciding this question, there is any doubt as to whether either test is satisfied, the decision must be made in the person's favour (subsection (9)).

483.     Where this clause refers to "free legal aid" it means appointing for the person a solicitor and/or counsel to represent him (subsection (10)).

 
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Prepared: 14 November 2002