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

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Clause 184: Free legal aid: supplementary

484.     This clause sets out supplementary provisions regarding the provision of free legal aid in Northern Ireland in connection with extradition proceedings under Part 1 or 2 of this Bill.

485.     Subsections (1) to (3) apply the existing legislation in Northern Ireland about legal aid in criminal cases to legal aid under clause 183 in proceedings before the judge or High Court, so that existing rules operate in relation to legal aid in extradition cases. The provisions relate to (subsection (2)):

  • the person's statement of means in connection with a grant of legal aid;

  • the payment of legal aid coming from money provided by Parliament;

  • the Lord Chancellor's power to make rules regarding the practical arrangements for legal aid;

  • the exclusion of certain solicitors from legal aid work;

  • the amounts payable to solicitors and counsel for legal aid work;

  • the exemption of legal aid certificates from stamp duty.

486.     Subsection (3) applies the relevant provisions described above as if clause 183 formed part of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981.

487.     Any expenses or fees of counsel or a solicitor assigned to a person under clause 183 in proceedings before the House of Lords must be paid by the Lord Chancellor (subsection (4)). Under subsection (5) such fees or expenses must not exceed the amount allowed by the House of Lords or an officer(s) of the House designated by order.

488.     Subsection (6) makes clear that, as clause 183 applies only to Northern Ireland, the appropriate judge in this context is any county court judge or resident magistrate designated for proceedings under either Part 1 or 2, as appropriate.

Clause 185: Asylum appeal to High Court where extradition ordered

489.     This clause sets out the right of appeal against the rejection of an asylum claim where an extradition claim is also outstanding in respect of the person in question.

490.     This clause therefore applies if the person sought for extradition makes an asylum claim at any time during the extradition proceedings, that claim is rejected by the Secretary of State and an order is made for the person to be extradited under Part 1 or 2 of this Bill (subsection (1)). For the purposes of this clause the extradition proceedings start when a certificate is issued under clause 2 or 69 and end when the person is extradited, an order is made for his discharge or he is taken to be discharged under any provision of this Bill (subsection (2)).

491.     In these circumstances this clause grants the person a right to appeal to the High Court against the Secretary of State's decision in place of the right of appeal that would otherwise apply under section 83 of the Nationality, Immigration and Asylum Act 2002 (subsections (3) and (4)). Subsection (5) applies to the High Court appeal those provisions of the Nationality, Immigration and Asylum Act that apply to an appeal under section 83 of that Act. Subsection (6), in conjunction with subsections (5)(d) and (5)(e), mean that an appeal under this clause can be heard by the Special Immigration Appeals Commission where appropriate for reasons of national security, etc. This will apply in the same way that it does to section 83 of the Nationality, Immigration and Asylum Act.

492.     Subsection (7) defines an extradition claim as a Part 1 warrant or an extradition request under Part 2 of this Bill. "Asylum claim" has the meaning given by section 113 of the Nationality, Immigration and Asylum Act 2002 (subsection (8)) - see clause 39 above.

Clause 186: Asylum appeal to House of Lords where extradition ordered

493.     This clause gives a person the right to appeal to the House of Lords against the decision of the High Court on an asylum appeal under clause 185. An appeal can be brought under this clause by a party to the High Court appeal but only with the leave of either the High Court or the House of Lords (subsections (1) to (3)). Leave to appeal under this clause will only be given if the High Court has certified that the decision involves a point of law of general public importance and the court feels that it is one which ought to be considered by the House of Lords (subsection (4)).

494.     Subsection (5) states that an application to the High Court for leave to appeal to the House of Lords must be made within 14 days of the High Court's decision. A person then has 14 days, starting from the time the High Court refuses leave to appeal, to apply to the House of Lords for leave (subsection (6)). Under subsection (7) the High Court has the power to grant bail to a person appealing or applying for leave to appeal under this clause.

495.     Subsections (8) and (9) apply provisions of the Appellate Jurisdiction Act 1876 which concern the composition of the House of Lords for hearing and determination of appeals. Subsections (10) and (11) apply section 102(1), (2) and (4) of the Nationality, Immigration and Asylum Act to an appeal to the House of Lords, as they would apply to an appeal to the Immigration Appeal Tribunal under section 101 of that Act.

Clause 187: Human rights: appropriate tribunal

496.     Section 7(1)(a) of the Human Rights Act 1998 allows a person who claims that a public authority has acted in a way that is incompatible with the European Convention on Human Rights to bring proceedings against the authority. This clause establishes that the only appropriate court or tribunal for hearing human rights claims arising out of the extradition process will be the appropriate judge dealing with the extradition proceedings under Parts 1 or 2 of this Bill (subsection (1)). For a case under Part 1 of the Bill the appropriate judge is as defined in clause 66 and for Part 2 is as defined in clause 138 (subsections (2) and (3)).

Clause 188: Delivery up to International Criminal Court

497.     This clause amends the International Criminal Court Act 2001, so as to extend the application of the provisions in that Act about delivery of persons subject to extradition proceedings to include proceedings under this Bill.

Clause 189: Genocide, crimes against humanity and war crimes

498.     This clause ensures that genocide, crimes against humanity, war crimes and related offences are included as extradition offences. Conduct that would be punishable in the United Kingdom under any of the provisions listed in subsection (2) amounts to an extradition offence even if it would not have been an offence at the time when and the place where it occurred.

Clause 190: Custody

499.     This clause applies to any person being held in custody under a power given in this Bill.

500.     Subsection (1) provides that, where a judge remands a person in custody, the person must be taken into custody in the same way as if he had been charged with an offence and the judge had remanded him in custody. In addition, if a person escapes from custody following arrest under this Bill, he can be retaken into custody lawfully in any part of the country, in the same way as if he had been in custody following arrest on a domestic warrant (subsections (2) and (3)).

501.     Under subsections (4) and (5) where a person held in custody is required to be transferred to another part of the country (other than over land), after being remanded in custody under this Bill, he must be treated as being in continuous legal custody until the transfer is complete.

502.     Subsection (6) provides for an order for a person's extradition made under this Bill to be sufficient authority for that person to be received, held in custody pending extradition and then extradited to the relevant territory. This power is available to a constable or to the person to whom the order is directed (subsection (7)).

Clause 191: Bail

503.     This clause amends the Bail Act 1976 so that extradition proceedings under this Bill are governed by the bail provisions that apply in other criminal justice proceedings (subsections (1) to (3)).

504.     The amendments to section 4 of the Bail Act contained in subsections (4) and (5) extend the presumption in favour of bail to proceedings in extradition cases where a person is accused of an offence. Currently the presumption in favour of bail does not apply to extradition cases and these amendments remove this anomaly, to bring extradition proceedings into line with other criminal proceedings. In conviction cases the presumption in favour of bail does not apply.

505.     The amendments in subsection (6) relate to the situation where a person has been granted bail in the course of extradition proceedings. A court is given power to withhold bail or vary or impose conditions of bail, on the application by the person representing the requesting state in extradition proceedings.

506.     Subsections (7) to (11) apply when a person has been granted bail in the course of extradition proceedings. Their effect is that the person is subject to the same liability to arrest as if he was granted bail and is under a duty to surrender into custody in the course of a criminal case. Therefore, where the person fails to surrender as required, a magistrates' court has the power to issue a warrant for his arrest. In addition, where there is reason to believe that the person is likely to break his bail conditions or fail to surrender, the person may be arrested without warrant by a constable. A constable also has this power if, where applicable, a person's surety gives notice in writing that the person is unlikely to surrender and so the surety requests to be relieved of his associated obligations. If a person is arrested in this manner without a warrant he must be brought before a justice of the peace within 24 hours (this is calculated to except Sundays and certain public holidays). The justice of the peace will decide whether the person is then to be granted bail again or committed to custody.

507.     The amendments in subsections (12) to (14) are to Part 1 of Schedule 1 of the Bail Act. Their effect is that this Part of the Schedule, which governs the decision-making process for granting bail in criminal law cases involving imprisonable offences, also applies in extradition cases.

Clause 192: Extradition for more than one offence

508.     This clause allows the Secretary of State to apply this Bill with modifications, by order, to take account of a particular case where a Part 1 warrant or a request for extradition to a category 2 territory is made in respect of more than one offence.

Clause 193: National security

509.     This clause enables the Secretary of State to prevent a person's extradition where it would be against the interests of national security.

510.     Subsection (1) provides for the clause to apply if the Secretary of State believes that the conditions in subsections (2) to (4) apply. The condition in subsection (2) is that the person's extradition is sought, or likely to be sought, under either Part 1 or Part 2 of this Bill. Subsection (3) gives two conditions, either of which must be met. The first is that the person was acting pursuant to a statutory power of this country in engaging in the conduct amounting to, or alleged to amount to the offence. The second is that the person is not liable under the criminal law of any part of the United Kingdom for the conduct amounting to, or alleged to amount to the offence as a result of an authorisation given by the Secretary of State. The third condition that must be met is that the person's extradition for the offence in question would be against the interests of national security (subsection (4)).

511.     If satisfied that the necessary conditions are met the Secretary of State can issue a certificate to this effect (subsection (5)). Subsection (6) allows the Secretary of State, having issued such a certificate, to direct that the relevant Part 1 warrant or extradition request (Part 2) is not to be proceeded with for the offence in question. He may also, in addition to or in place of a direction to that effect, order the person's discharge (subsection (7)).

512.     Subsection (8) sets out what is to happen in the event of the Secretary of State giving a direction under subsection (6)(a) (a Part 1 warrant):

  • the designated authority must not issue a certificate if it has not already done so (see clause 2);

  • the person is not required to appear before a judge and must be discharged if he has already been arrested (see clauses 3 to 6);

  • the judge is not required to proceed with the case if the person has already been brought before him (see clauses 7 and 8);

  • the judge is not required to continue proceedings if they have already begun (see clauses 10 to 25);

  • if the person has consented to his extradition the judge is not required to order his extradition;

  • the court is not required to deal with an appeal if one has been brought to the High Court or the House of Lords;

  • the person is not required to be extradited if his extradition has been ordered.

513.     Subsection (9) sets out what is to happen in the event of the Secretary of State giving a direction under subsection (6)(b) (a Part 2 request):

  • the Secretary of State is not required to issue a certificate if he has not already done so (see clause 69);

  • the person is not required to be brought before a judge and must be discharged if he has already been arrested (see clause 70);

  • the judge is not required to proceed with the case if the person has already been brought before him (see clauses 71, 73, 74 and 75);

  • the judge is not required to continue proceedings if they have already begun (see clauses 77 to 88);

  • if the person has consented to his extradition the judge is not required to send his case to the Secretary of State;

  • the court is not required to deal with an appeal if one has been brought to the High Court or the House of Lords;

  • the person is not required to be extradited if his extradition has been ordered.

514.     Subsection (10) stipulates that the Secretary of State is required to sign in person any certificate, direction or order issued under this clause.

515.     Subsections (11) and (12) contain the appropriate modifications for this clause to apply to Scotland.

Clause 194: Reasonable force

516.     Reasonable force can be used when necessary in the use of any power described in the Bill.

Clause 195: Rules of court

517.     This clause allows rules of court to be made to govern court practice and procedure regarding proceedings under this Bill.

Clause 196: Disposal of Part 1 warrant and extradition request

518.     This clause defines what is meant by the disposal of a Part 1 warrant and an extradition request. Subsection (1) provides that a Part 1 warrant is disposed of when an order is made for the person's discharge or extradition and there is no further possibility of appeal (see below), or when the person is taken to be discharged under this Bill. Similarly subsection (2) provides that an extradition request is also disposed of when such an order is made and there is no possible route of appeal open, or when the person is taken to be discharged.

519.     Subsection (3) provides that there is no further possibility of an appeal:

  • when no notice of appeal has been given and the period permitted for doing so has ended;

  • when the decision of the High Court on the appeal becomes final (see below), if no appeal is made against that decision;

  • when the decision of the House of Lords is made, if an appeal is made against the decision of the High Court.

520.     The decision of the High Court on the appeal is final (subsection (4)):

  • when no application has been made to the High Court for leave to appeal to the House of Lords and the period permitted for doing so has ended;

  • when the High Court has refused leave to appeal to the House of Lords, no application has been made to the House of Lords for leave to appeal and the period permitted for doing so has ended;

  • when the House of Lords refuses leave to appeal;

  • if, after 28 days of leave being granted to appeal to the House of Lords, no such appeal has been brought.

521.     Subsection (5) prevents a court's power to extend a permitted period or give leave to take a step out of time from being taken into account for the purposes of subsections (3) and (4).

522.     Subsection (6) states that subsections (3) to (5) do not apply to Scotland (see clause 32 above).

Clause 197: Disposal of charge

523.     This clause defines what is meant by the disposal of a charge against a person. Subsection (1) provides that a charge is disposed of when the person is acquitted or when he is convicted and there is no further possibility of an appeal against the conviction.

524.     Subsection (2) provides that there is no further possibility of an appeal:

  • when the period permitted for applying for leave to appeal to the Court of Appeal ends, if leave is required and no notice of application for leave is given;

  • when leave to appeal to the Court of Appeal is refused, if leave is required and notice of application for leave is given in time;

  • when the period permitted for giving notice of appeal against conviction to the Court of Appeal ends, if no such notice is given;

  • when the decision of the Court of Appeal on such an appeal becomes final (see below), if there is no appeal against that decision;

  • when the decision of the House of Lords is made, if an appeal is made against the decision of the court of Appeal.

525.     The decision of the Court of Appeal on an appeal is final (subsection (3)):

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

  • when the period permitted for applying to the House of Lords for leave to appeal to it ends, if the Court of Appeal has refused leave to appeal to the House of Lords and no application has been made to the House of Lords;

  • when the House of Lords refuses leave to appeal;

  • if, after 28 days of leave being granted to appeal to the House of Lords, no such appeal has been brought.

526.     Subsection (4) prevents a court's power to extend a permitted period or give leave to take a step out of time from being taken into account for the purposes of subsections (2) and (3).

527.     Subsection (5) states that subsections (2) to (4) do not apply to Scotland (see clause 32 above).

Clause 198: Other interpretative provisions

528.     This clause defines various terms used in the Bill, as follows:

  • category 1 territory must be read in accordance with clause 1;

  • category 2 territory must be read in accordance with clause 68;

  • Part 1 warrant must be read in accordance with clause 2;

  • Part 3 warrant must be read in accordance with clause 141;

  • valid request for a person's extradition must be read in accordance with clause 69;

  • the European framework decision means the framework decision of the Council of the European Union made on 13 June 2002 on the European arrest warrant and the surrender procedures between member states (2002/584/JHA);

  • for Scotland "High Court" means the High Court of the Justiciary;

  • for Northern Ireland "police officer" has the meaning given in the Police (Northern Ireland) Act 2000;

  • provisional warrant is one issued under the power in clause 72(3).

Clause 199: Form of documents

529.     This clause allows the Secretary of State to prescribe the form of any document required under this Bill. This must be done by statutory instrument, subject to the negative resolution procedure in both Houses of Parliament.

Clause 200: Repeals

530.     Repeals can be found in the Schedule to the Bill.

Clause 201: Commencement

531.     This clause allows the provisions of the Bill to be brought into force by the Secretary of State by order made by statutory instrument. An order may make different provision for different purposes and may include supplementary, incidental, saving or transitional provisions.

Clause 202: Existing legislation on extradition

532.     This clause allows the Backing of Warrants (Republic of Ireland) Act 1965 and the Extradition Act 1989 to be amended or repealed by an Order in Council.

Clause 203: Channel Islands and Isle of Man

533.     This clause enables the Bill to be extended, with modifications as appropriate, to the Channel Islands and the Isle of Man, by an Order in Council.

Clause 204: Orders and regulations

534.     This clause describes the procedures to be used for making certain secondary legislation under this Bill. This applies to any orders made by the Secretary of State (other than an order described in subsection (2)), any order of the Treasury and any regulations made under this Bill (subsection (1)). Subsection (2) sets out the orders made under this Bill that are not covered by this clause. These are any order for a person's extradition or discharge and any order deferring proceedings or deferring a person's extradition.

535.     The power to make this secondary legislation is exercisable by statutory instrument and the secondary legislation may make different provision for different purposes and may include supplementary, incidental, saving or transitional provisions (subsections (2) and (3)).

536.     Any such statutory instrument is subject to the negative resolution procedure before both Houses of Parliament, unless it is an order under clause 3(3) (appropriate person to execute a Part 1 warrant); clause 5(2) (appropriate person to conduct provisional arrest under Part 1); clause 141(10) (appropriate person to apply for a Part 3 warrant); clause 171(4) (bringing a code of practice into operation); or clause 201 (commencement of the Bill). An order under any of these, except clause 201, is subject to the affirmative resolution procedure in both Houses (subsections (4) and (5)).

Clause 205: Orders in Council

537.     This clause provides for any Order in Council made under the Bill (other than one made under clause 203) to be subject to the negative resolution procedure. Orders made under this clause may also include supplementary, incidental, saving or transitional provisions. Subsection (3) allows a country to be designated, as a category 1 or category 2 territory, by name or by falling within the description given in an Order. Subsection (4) provides that Orders in Council designating a country as a category 1 or category 2 territory may apply the Bill to that country with modifications.

Clause 206: Finance

538.     This clause provides for the following expenditure to be paid out of money provided by Parliament, if it arises as a result of the Bill:

  • any expenditure incurred by the Lord Chancellor;

  • any increase in the sums payable out of money provided by Parliament under another enactment.

Clause 207: Extent

539.     This clause states that clauses 155 to 158, 164 to 166, 169 and 171 do not apply in Scotland, as PACE powers (on which these police powers clauses are based) do not extend to Scotland. Comparable powers are to be found in Scottish common law and statute.

540.     On legal aid, clause 182 applies only to Scotland and clauses 183 and 184 apply only to Northern Ireland.

Clause 208: Short title

541.     The Bill may be cited as the Extradition Act 2003.

Schedule - Repeals.

542.     The Schedule contains repeals. Three provisions of the Bail Act 1976 and one of the Criminal Law Act 1977 are repealed because of the amendments concerned with bail in extradition cases (see clause 191). In addition a provision of the International Criminal Court Act 2001 is repealed in connection with the delivery of a person up to the International Criminal Court (see clause 188).

EFFECTS OF THE BILL ON PUBLIC SECTOR MANPOWER AND FINANCES

543.     The cost of operating the extradition system depends largely on the number of extradition requests that the United Kingdom receives. It is possible that the more streamlined system for processing requests made to the United Kingdom which the Bill is intended to put in place might cause requests to be made which would not previously have been made. As against that the system that is to be put in place is expected to reduce significantly the time taken to conclude extradition cases. This will mean, in turn, that less court time is engaged by such cases and that a person subject to an extradition request will, on average, spend less time in detention than is currently the case. It is therefore estimated that there will be no overall effect on public sector finances. There will be no effect on public sector manpower.

 
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Prepared: 14 November 2002