Clause 39: Amendments to the Extradition Act 2003 etc

326.     This clause gives effect to Schedule 12, which makes amendments to the Extradition Act 2003 and other amendments relating to extradition.

Schedule 12: Extradition

327.     Paragraphs 1 and 2 are required to remove a difficulty that has emerged when extradition warrants or requests are received for persons who have been convicted of an extradition offence. Both Part 1 and Part 2 of the Extradition Act 2003 stipulate that the warrant (in Part 1, section 2) or the request (in Part 2, section 70) for the convicted person's extradition must contain a statement that the person is "unlawfully at large". While case law has established that the warrant or request does not need to contain those actual words, it has also established that the meaning of those words must be clear from the information contained in the warrant or request.

328.     This requirement has caused great difficulty in practice in cases being dealt with under both Part 1 and Part 2 of the 2003 Act, as the precise concept of "unlawfully at large" is unfamiliar or unknown in many of the UK's extradition partner jurisdictions.

329.     These amendments clarify what is required in warrants or requests for convicted persons, to bring UK law clearly into line with its international obligations and to reduce the danger of future challenges to warrants or requests for convicted persons in the courts.

330.     Paragraph 29 provides for a consequential amendment to the Bail Act 1976.

331.     Paragraph 3 is required to reflect a new draft agreement between the UK and the International Criminal Court (ICC). This will allow the UK to enforce sentences of imprisonment imposed by the ICC and will mean that ICC prisoners can be transferred to prisons in the UK to serve their sentences. The agreement will also require the consent of the President of the ICC if such a person's extradition is then requested from the UK to another state. There are already protections in the 2003 Act for a person who has been extradited to the UK, and whose extradition is then requested to a third state. These protections appear in Part 1, sections 11 and 19, and Part 2, sections 93 and 96. They require the UK to obtain the permission of the state which extradited the person to the UK before the person can be extradited onwards to the third state. As the ICC is a court and not a State, an appropriate amendment is required to the relevant sections of the 2003 Act, to enable the President's consent to be requested.

332.     Paragraph 4 is required to provide the courts with a reasonable way to deal with a person whose extradition has been requested, but adjourned while he serves a sentence of imprisonment in the UK. Section 131 of the Magistrates' Courts Act 1980 makes provision for a person who is serving a domestic sentence, and who is simultaneously on remand awaiting trial for another domestic offence: in such a situation it is reasonable for the person to be remanded every 28 days in respect of the unconvicted offence. However, section 131 has had the unintended effect of requiring a person serving possibly a lengthy prison sentence, who is also remanded in custody pursuant to an extradition request, to be brought before a court every 28 days for a remand hearing in respect of the extradition request. This creates unnecessary upheaval for what is largely a formality, and an amendment to provide for a remand hearing every 6 months in respect of the extradition request is considered more reasonable.

333.     The Act is explicit on the question of remands in connection with first instance extradition proceedings, but is not explicit about remands in relation to the multiplicity of outcomes to appeal proceedings. This lack of explicitness has created uncertainty and could result in inconsistent decisions in individual cases. Paragraph 5 puts provision for remands in appeal proceedings beyond doubt.

334.     Paragraph 6 deals with a problem which arises if after a Part 1 warrant is executed the subject of the warrant decides not to appeal, but does not inform the authorities of his decision until the end of the 7-day period available for the lodging of the appeal. In such a case the police then have only three days in which to remove the person from the UK. The amendment will give the police the same period of time to remove the person from the UK in an unappealed case as in a case which has been appealed (10 days). The short timescales reflect the requirements of the Framework Decision which Part 1 of the Act implements. This amendment remains consistent with Article 23 of the Framework Decision

335.     Paragraphs 7 to 11 are required to clarify the situation regarding a person whose extradition has been requested, and who is on licence in the UK following conviction of an offence. While the 2003 Act makes provision for a serving prisoner to be temporarily surrendered to the requesting jurisdiction, it does not make equivalent provision for someone who has completed the custodial part of the sentence and is out on licence. The amendments make provision for both Part 1 and Part 2 of the 2003 Act; the amendments also cover arrangements for both the surrender of the person to the requesting jurisdiction and for his return to the UK to complete his licence period after his trial in the other state.

336.     Paragraphs 12 and 13 cure a problem the courts have encountered in listing cases. The Act refers in numerous places to "the appropriate judge" in relation to extradition hearings and judicial decisions. The courts have interpreted this to require the same judge to preside over each hearing in each case, in order to avoid defence challenges. While it is sometimes helpful for the same judge to have conduct of every hearing in a case, it may in some cases be impossible to achieve this. These amendments are intended to preclude the possibility of unmeritorious challenges where it has not been possible to list the same judge to hear all hearings in a case. It will also help the courts to avoid unnecessary delays in the progress of cases, which is one of the general objectives of the 2003 Act.

337.     Sub-paragraphs (1) and (3) of paragraph 14 provide Ministers with a discretion whether to certify an extradition request for a person who has been granted humanitarian protection from the territory which has requested his extradition, or who is a refugee. It is only needed in non-EU cases because there is a presumption that applications for protection from EU member states are manifestly unfounded.

338.     At present Ministers have no discretion whether to certify a request in this situation, which means that, so long as the request is valid within the limited terms of section 70, it must be certified. It then falls to the court to decide at the extradition hearing whether to terminate the request (after the person has been arrested). Where no reason can be shown why the granted protection should be removed, it would be inefficient and unfair to leave it until the court stage to terminate the request.

339.     However, the discretion need not automatically lead to a decision not to certify the request: a case could arise where refugee status had been obtained fraudulently because the person lied about his criminal past; or if an asylum application is still in train when the request is received, the information in the extradition request could lead to a decision not to grant asylum, but to continue instead with certification of the extradition request. Where humanitarian protection had been granted from a state in

which conditions subsequently improved, it may be that the protection was no longer necessary. Each case would turn on its facts.

340.     In any event, if the discretion was exercised in favour of certification of the request, it would still be open to the person to argue at his extradition hearing that his human rights would be infringed if his extradition was ordered to the state from which he had claimed asylum, at sections 81 and 87 of the Act.

341.     Sub-paragraph (2)(b) of paragraph 14 removes a ground of challenge from someone seeking to argue that they were, briefly, outside the UK on the day the request for their extradition was certified. It also provides for a case where a wanted fugitive slips in and out of the UK unpredictably, enabling the certification of the request and issue of an arrest warrant for short notice execution.

342.     Sub-paragraphs (4) and (5) of paragraph 14 remove the reference at section 70(9) to the Order in Council which designated the requesting state. This is because the orders designating states for extradition purposes are made by order of the Secretary of State not by Order in Council. They also remove the requirement at section 70(9) for the relevant order to accompany each certified request when it is sent to the court. The amendment requires the Secretary of State instead to identify the relevant order when sending the request to the court.

343.     Sub-paragraphs (2) and (3) of paragraph 16 are necessary because at present the person has 6 weeks to make representations but the Secretary of State has only two weeks to consider them before making the order (or applying for an extension of time to avoid the person's discharge). This arrangement is manageable in most cases, but where representations are complex the Secretary of State has to make a time-consuming application for an extension to his period of consideration to avoid the danger of the person's discharge from the extradition proceedings. The amendment proposes an equalisation of the time available for the making and considering of representations by the person and Ministers respectively.

344.     The amendment at sub-paragraph 16(3) clarifies that if the person has consented to his extradition Ministers are not required to wait until the end of the permitted period (i.e. at present 6 weeks to be reduced to 4) to order extradition. The Act has been interpreted in Scotland as requiring Scottish Ministers to have to wait in consent cases.

345.     Paragraph 17 provides for the application by the person for discharge (because Ministers have not ordered extradition within the permitted period), or for the application by Ministers for an extension of time in which to consider the case, to be switched from the High Court to the Magistrates' Court. This is to give greater accessibility and flexibility to the body making the application, and to save on administrative time.

346.     Paragraph 18 increases the flexibility with which a Part 3 warrant (a UK European Arrest Warrant for transmission to another Category 1 territory) may be issued, where the wanted person is unlawfully at large. In a case where the person has escaped from custody and is already believed to have left the UK, it may be vital to have the ability to issue the Part 3 warrant without a prior domestic warrant of arrest having been issued.

347.     Paragraph 19 gives the Northern Ireland authorities the ability to found a Part 3 warrant on an arrest warrant issued at common law in certain situations where no other sort of domestic arrest warrant may be issued. Without this amendment it will not be possible to pursue some fugitives who have fled Northern Ireland jurisdiction for another member state of the EU.

348.     The need for paragraph 20 was identified in a case where a person was extradited to the UK from Spain and the UK prosecuting authorities subsequently wanted to prosecute him for a separate offence. Without the consent of the extraditing state a person can only be prosecuted for the offence for which he has been extradited. In order to give consent for the prosecution of the additional offence, the Spanish authorities required a fresh request issued by a judge for the additional offence. However, there was no clear legal basis on which the UK authorities could issue such a request. This amendment makes provision for such a request to be issued by a judge analogous to the issue of a Part 3 warrant.

349.     Paragraph 20 reinstates a power to deduct time served in custody awaiting extradition to the UK. The repeal of section 243 of the Criminal Justice Act 2003 by way of paragraph 29 of this Schedule is consequential on this amendment.

350.     Paragraph 21 is a new provision which allows time served abroad on remand awaiting extradition to count towards a person's sentence in all cases. Previously credit could only be given in cases where the person had not yet been convicted. The amendment is needed to ensure full compliance with article 26 of the Framework Decision on the European Arrest Warrant. This provision will however apply to both Category 1 and Category 2 cases. The repeal of section 243 of the Criminal Justice Act 2003 by way of paragraph 32 of this Schedule is consequential on this amendment.

351.     The need for Paragraph 22 emerged when it became apparent that it would not be possible to issue a Part 3 warrant to certain category 1 territories for certain offences. The territories are the small number which have availed themselves of the provisions of Article 32 of the Framework Decision on the European Arrest Warrent, which states that where a person is wanted for offences committed before 7 August 2002 an extradition request rather than a European Arrest Warrant may be issued for their extradition.

352.     Some states have correctly implemented this provision into their domestic law, while others have done so incorrectly. The amendment only provides for the situation where Article 32 has been correctly implemented; states which have incorrectly implemented the provision are expected to make an appropriate amendment to their domestic law.

353.     The Article does not apply in UK law (i.e. the UK does not require an extradition request from any category 1 territory, regardless of when the conduct in the request was committed).

354.     Paragraph 232 makes more explicit the provision in section 197 of the 2003 Act for the release of a prisoner serving a term of imprisonment in the UK to be extradited temporarily to another state which wants to put him on trial.

355.     Paragraph 24 corrects an oversight in the 2003 Act which removed the ability of an officer of the requesting state to certify documents receivable in an extradition hearing in the UK. Without this correction the UK is technically in breach of its treaty with the United States. The oversight has caused other requesting states difficulty in certain cases.

356.     Paragraphs 25 to 27 tidy up some anomalies in bail proceedings. Paragraph 24(2) gives a person refused bail an avenue of appeal. Paragraph 26 et seq switches the venue for appeals in bail proceedings from the Crown Court, which has no other involvement in extradition proceedings, to the High Court, which hears all other appeals in extradition proceedings.

Part 6: Supplemental

Clause 40: Orders and regulations

357.     This clause sets out the parliamentary procedure, if any, that applies in respect of the various order or regulation-making powers in the Bill. All such powers exercisable by the Secretary of State (or by the Home Secretary, Lord Chancellor and Attorney General acting jointly in the case of orders or regulations under Part 4) are subject to the negative resolution procedure save for those specified in subsection (4)(b) (where no parliamentary procedure applies) and subsection (5) (where the affirmative procedure applies). Subsection (3) provides that the powers to make orders or regulations in the Bill include a power to make different provisions for different purposes or areas. This subsection also enables orders and regulations to include incidental, supplemental, consequential, saving or transitional provision.

Clause 41: Money

358.     Clause 41 authorises additional expenditure incurred by a Minister of the Crown as a result of the provisions of the Bill and increases in expenditure under existing Acts. Any receipts received by a Minister of the Crown must be paid into the Consolidated Fund.

Clause 42: Power to make consequential amendments and transitional provisions etc

359.     This clause enables the Secretary of State to make supplementary, incidental or consequential provision. This section is different from the power provided in clause 46(3) in that it is exercisable independently of the commencement power in clause 46 and creates in effect a free-standing power to make consequential provisions at any time, including a power to amend primary and secondary legislation.

Clause 43 and Schedules 13 and 14: Minor and consequential amendments and repeals

360.     This clause introduces Schedules 14 (minor and consequential amendments) and 15 (repeals).

Clause 44: Commencement

361.     This clause provides for commencement. The provisions of the Bill will be brought into force by means of Commencement Orders with the exception of the provisions relating to the abolition of the National Policing Plan which will come into force on Royal Assent. Commencement Orders will be made by the Secretary of State save in relation to clauses 15 and 20 and Schedule 7 so far as they relate to local authorities in Wales, and clauses 16 to 18, so far as they relate to local authorities and registered social landlords in Wales, in which case the order or orders will be made by the National Assembly and clauses 33 to 36 (and the related amendments and repeals) so far as they extend to Scotland.

362.     Subsection (8) provides that the Commencement Order bringing clause 3 into force may include modifications to Part 1 of the Local Government Act 1999 in its application to police authorities.

Clause 45: Extent

363.     This clause sets out the extent of the Bill. All provisions extend to England and Wales. The provisions abolishing PITO, the provisions in respect of the Chief Inspector for Justice, Community Safety and Custody, and certain aspects of the provisions relating to computer misuse and the provisions about IPCC oversight also extend to Scotland and Northern Ireland.

364.     The provisions of the Bill amending existing legislation will have the same extent as the relevant legislation.

365.     Subsection (4) amends prospective section 60 (extent) of the Immigration, Asylum and Nationality Act 2006 (IAN Act) by inserting a new subsection (3A). The new subsection 3A provides that an Order made under section 60(3) of the IAN Act (power to extend Act to Channel Islands or Isle of Man with or without modification or adaptation) may so extend a provision of the IAN Act as it has been amended by the Police and Justice Act or alternatively as enacted prior to amendment.

Clause 46: Short title

366.     This clause sets out the short title of the Bill.

FINANCIAL EFFECTS OF THE BILL

367.     The total financial costs of the Bill are currently estimated to be £27.31m/£10.51m/£9.918m for the financial years 2006/7, 2007/8 and 2008/9. These effects are based on a number of variables and current assumptions about implementation.

368.     In 2006/7 the establishment of the NPIA will require £3.58m to cover the cost of the Programme Team, supported by external consultants as required; plus an additional provision for £14.3m to cover the cost of a shadow agency and other transitional costs such as redundancies. These additional costs will be borne by the Home Office. Once established the NPIA will run within the budget of its precursor agencies - the Police Information Technology Organisation (PITO) and Centrex, the police training body - £441m per annum, although we estimate that we will achieve efficiency savings of £18.73m once the agency is operational.

369.     Implementation of a standard set of powers for Community Support Officers (CSOs) will involve additional training costs for police authorities. This will consist of a one-off implementation cost to train existing CSOs in powers included in the standard set with which they are not currently designated, estimated to be £2.1m spread across all forces. This estimate has been calculated taking into account the costs of CSOs time in addition to the extra training and costs will vary from force to force depending on the number of powers they have already designated to CSOs.

370.     The Bill will also result in a £2.2m implementation cost for the establishment of the Chief Inspector for Justice, Community Safety and Custody in 2007/8. Thereafter there will be an additional £418k running costs on top of the budgets of the existing five inspectorates that it will replace (£20m per annum). These costs will be borne by the sponsoring departments - the Home Office, the Department for Constitutional Affairs and the Attorney-General's Office.

371.     Costs will arise to Crime and Disorder Reduction Partnerships (CDRPs) from the move to production of three-year rolling plans. We estimate that there will be £4.5m per annum staff costs (which amounts to approximately one member of staff, working part time) and £1.5m per annum publication costs spread across the 374 CDRPs in England and Wales. This will be partially offset by removing the need for CDRPs to report annually to the Secretary of State, which we estimate will save them £400k-£500k per annum.

372.     The expansion of parenting orders and contracts will result in an additional £1.58m/£2.81m/£4m costs as use of the orders and contracts grows. Of this £308k/£616k/£1.2m are additional downstream costs for courts arising from the cost of dealing with applications for parenting orders. There will additionally be a one-off cost to train county court judges in the new provisions which we estimate will be in the region of £250k. There will also be minor costs associated with breaches and appeals of parenting orders, but these will be very low - around £22k over 5 years for breaches and around £110k over 5 years for appeals.

373.     The other provisions of the Bill are largely cost neutral, or will result in minor savings.

EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER

374.     The combined staff numbers of the two precursor agencies is currently 2247. The staffing requirement for the NPIA is yet to be determined, but will involve substantial rationalisation - we estimate that the core NPIA will range from about 750 to about 800 and in addition, the subsidiary body, which will conduct various 'steady-state' functions such as the maintenance of the Police National Computer, will range from around 250 to around 400.

375.     It is assumed that the new Chief Inspector for Justice, Community Safety and Custody will initially require a similar number of staff to the staff of the existing inspectorates - approximately 300 staff.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

376.     Ten regulatory impact assessments and one overarching regulatory impact assessment have been published alongside the Bill. A further RIA will be published in relation to the National Policing Improvement Agency shortly. The individual RIAs deal with the following provisions:

• Standard powers for Community Support Officers;

• Her Majesty's Chief Inspector for Justice, Community Safety and Custody;

• Extension of stop and search at aerodromes;

• Power to collect passenger data on domestic air/sea travel;

• Trading Standards Officers to issue fixed penalty notices for disorder;

• Community Call for Action;

• Reform of Crime and Disorder Reduction Partnerships;

• Expansion of parenting orders and contracts;

• Amendments to injunctions for tackling anti-social behaviour; and

• Oversight by the Independent Police Complaints Commission (IPCC) of certain functions of immigration officers and other officials concerned with immigration and asylum.

377.     The Bill as drafted impacts mainly on the public sector (primarily the police and the criminal justice system). Where the private and voluntary sectors will be engaged, the business sectors affected are:

• carriers operating by air and sea within the UK mainland and in particular, between Northern Ireland and the UK mainland;

• employers at aerodromes;

• organisations that provide parenting programmes; and

• registered social landlords.

378.     The costs of the Bill are outlined in paragraphs 366 to 377 of these Explanatory Notes. In general the benefits of the Bill fall into the following categories:

• A more streamlined and efficient criminal justice system;

• Improved standards of consistency across England and Wales;

• Increased crime detection and prevention;

• A more community based approach to dealing with anti-social behaviour; and

• A more efficient use of existing resources.

EUROPEAN CONVENTION ON HUMAN RIGHTS

379.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before Second Reading about the compatibility of the provisions in the Bill with the Convention rights (as defined by section 1 of that Act). The Secretary of State for the Home Department (the Rt. Hon. Charles Clarke) has made the following statement:

"In my view the provisions of the Police and Justice Bill are compatible with the convention rights."

380.     Part 1 - Police Reform. Clause 5 amends the Police Reform Act 2002 to make an additional power available for conferral on community support officers. This is the power which constables already have under section 16 of the Crime and Disorder Act 1998 to remove truants to their school, or to premises designated by the local authority. It is arguable that this clause constitutes an interference with Articles 8 and 11. However in each case the Government considered that the interference is justified since it is prescribed by law, is in pursuance of the legitimate aims of removing children from unsupervised places where they may be at risk and of ensuring they attend school, and is proportionate to those aims.

381.     Part 2 - Powers of police etc: police bail. The provisions in Schedule 4 in respect of police bail engage Article 5 to the extent to which they permit an individual to be arrested or detained at a police station and permit the imposition of a condition restricting a person's movement to such an extent as to fall within the scope of Article 5 (for example, severe restrictions on a person's free moment). They may also engage Article 8 because they may interfere with the person's right to a private life (for example, a prohibition on visiting certain persons). Any interference with Article 5 would be justified under Article 5(1) (b) as being in order to secure the fulfilment of an obligation prescribed by law or under Article 5(1) (c) as being for the purpose of bringing the person before the competent legal authority on reasonable suspicion of having committed an offence. Any interference with Article 8 would be justified on the basis that it is necessary for the prevention of disorder or crime under Article 8(2).

382.     Part 2 - Powers of police etc: extension of information gathering powers to cover domestic flights and voyages and information use for devolved purposes. The provisions in clause 9 so far as they relate to the gathering of passenger and freight information may engage Article 8 ECHR because they permit the police to obtain information about individuals. The information which will be obtained under these clauses will be for the prevention of disorder or crime or for counter-terrorist functions. Article 8(2) permits interference with Article 8(1) where it is necessary for the prevention of disorder or crime or in the interests of national security. However, sections 32 and 33 of the Immigration Asylum and Nationality Act 2006 (the IAN Act) (which is currently in the form of a Bill before Parliament) provide that a decision to acquire data shall only be made by an officer of at least the rank of Superintendent. The intention is to ensure that the decision to acquire data is taken at a sufficiently senior level to ensure that the proportionality of acquiring data to the legitimate aim being pursued is properly considered. Also, sections 32(7) and 33(7) of the IAN Act provide that the Secretary of State may only make an order specifying the kind of information that may be acquired under these powers if he is satisfied that the nature of the information is such that there are likely to be circumstances in which it can be required from carriers without breaching Convention rights.

383.     Part 2 - Powers of police etc: conditional cautions. In agreeing to a conditional caution the offender is choosing to waive his Article 6 rights to a trial by a court. The European Court of Human Rights has held that such a waiver "has undeniable advantages for the individual concerned as well as for the administration of justice, [and] does not in principle offend against the Convention". However, it has also held that any such waiver "must not run counter to any important public interest, must be established in an unequivocal manner and requires minimum guarantees commensurate to the waiver's importance". The conditional caution scheme ensures this by requiring that a conditional caution only be offered if the prosecutor considers he would otherwise prosecute and the offender admits his offence and agrees to the conditional caution after its effects are explained to him. In reaching this decision he will be entitled to legal advice. Further details of the conditional caution scheme and safeguards included can be found in the conditional caution code of practice issued under section 25 of the 2003 Act.

384.     Part 3 - Crime and Anti-Social Behaviour: injunctions. The conferring of powers of arrest on constables engages Article 5.1. In order to comply with this Article the exercise of the power needs to be subject to sufficient safeguards to ensure that it is exercised in accordance with the law and is not used arbitrarily. The amendment makes it plain that the execution of the arrest is subject to the constable holding a reasonable suspicion that the arrested person has breached the injunction. Accordingly deprivation of liberty in those circumstances is justifiable and complies with the conditions in Article 5(1) (c). Under Article 5(3) anyone arrested or detained in accordance with Article 5(1)(c) must be brought before a judge promptly and entitled to trial within a reasonable time or released subject to conditions if necessary, pending trial. The amendment effectively repeats the requirements of Article 5(3).

385.     Part 5 - Miscellaneous: Forfeiture of indecent images of children. Clause 37 provides a mechanism for the forfeiture of indecent photographs of children held by the police. A procedure for their forfeiture already exists if the material is seized under a warrant under the Protection of Children Act 1978. This clause replaces that procedure with one that applies irrespective of the power under which the images were originally seized providing that in contested cases the final decision on forfeiture is taken by a court. The forfeiture of indecent photographs of children and material or items which cannot be separated from such images will engage Article 1 of Protocol 1 as the owner is being deprived of his property. As the possession of such images is an offence under section 160 of the Criminal Justice Act 1988 such deprivation will be in accordance with the general interest.