Detained cash investigations

Clause 47: transfer of jurisdiction to Crown Court

260.     Sections 75 to 77 of, and Schedule 10 to, the Serious Crime Act 2007 enabled the production order and search and seizure warrant provisions in Part 8 of POCA to be used for investigating the provenance or intended destination of cash seized under Chapter 3 of Part 5 of POCA (which provides for the recovery of cash in summary proceedings). The amendments created a new type of investigation, namely a detained cash investigation. This was additional to the other types of investigation under POCA, namely a confiscation investigation, civil recovery investigation and money laundering investigation. Detained cash investigation powers assist in the preparation of a case for forfeiting the cash before the magistrates’ court in England and Wales and Northern Ireland or the Sheriff in Scotland.

261.     Applications for a production order and a search and seizure warrant for a detained cash investigation in England, Wales and Northern Ireland are made to a judge of the High Court (section 343 of POCA, as amended by paragraph 3 of Schedule 10 to the Serious Crime Act).

262.     Clause 47 transfers the jurisdiction for applications relating to detained cash investigations from a judge of the High Court to a judge entitled to exercise the jurisdiction of the Crown Court in England and Wales, which includes Circuit judges, Recorders and High Court judges in their Crown Court capacity. In Northern Ireland a Crown Court judge will hear such applications. The jurisdiction will remain with the sheriff in Scotland.

PART 5 - EXTRADITION

Alerts

Clause 48: Article 26 alerts

263.     These provisions are designed to ensure that the UK is in a position to deal with alerts transmitted via the second generation Schengen Information System (“SIS II”) which request the arrest of a person for extradition purposes.

264.     SIS II is a computer database containing information relating to individuals, vehicles and lost and stolen objects. The intention is that the UK will begin sending and receiving data via SIS II from April 2010. This data will include the details of persons wanted for arrest for extradition purposes (“article 26 alerts”) which will have been entered on SIS II following the issue of a European Arrest Warrant (“an EAW”) in the relevant member state.

265.     As the UK is not able to send and receive data via the existing Schengen Information System (SIS), before we are able to use SIS II we will be required to ensure that all current alerts relating to people wanted for arrest for extradition purposes which have been entered onto either SIS or SIS II by other member states have been validated. These provisions accordingly allow for the consideration and certification of article 26 alerts and extradition alerts transmitted under SIS (“article 95 alerts”).

266.     Section 204 of the Extradition Act 2003 (the 2003 Act) allowed Part 1 warrants transmitted to the UK by electronic means to be dealt with as if they were Part 1 warrants transmitted in hard copy. Clause 48 amends section 204 of the 2003 Act so as to ensure that where an article 26 alert, together with an arrest warrant issued by a territory designated by order under Part 1 of the 2003 Act (a category 1 territory), is transmitted to a designated authority in an intelligible electronic form, that information (together with any other information accompanying it) falls to be considered by the designated authority in determining whether it amounts to a Part 1 warrant which may be certified under section 2 of the 2003 Act.

267.     Clause 48 also makes similar provision in relation to arrest warrants transmitted in an intelligible electronic form in cases where no article 26 alert has been issued. This is to ensure that any warrants sent outside of SIS II which are transmitted by electronic means will also fall to be considered for certification under section 2 of the 2003 Act.

Clause 49 - Article 95 Alerts

268.     Section 212 of the Extradition Act 2003 allowed article 95 alerts issued before 1 January 2004 to be dealt with as if they were Part 1 warrants. Clause 49 amends these provisions so that all article 95 alerts issued at the request of an authority of a category 1 territory fall to be regarded as arrest warrants issued by that authority. This will ensure that information contained in an article 95 alert (together with any information transmitted with it) will fall to be considered by the designated authority in determining whether it amounts to a Part 1 warrant which may be certified under section 2 of the Extradition Act 2003. This will allow the UK to meet its obligation to validate existing article 95 alerts prior to the UK beginning to send and receive data via SIS II.

Deferral of extradition

Clauses 50 and 51: Deferral of extradition (to category 1 and category 2 countries)

269.     Sections 22 and 88 of the Extradition Act 2003 provide that where the appropriate judge is informed that a person whose extradition has been sought has been charged with an offence in the UK he must adjourn the extradition hearing until the domestic proceedings have been resolved. These powers only apply, however, once the extradition hearing has begun. Section 22 covers proceedings under Part 1 of the Extradition Act 2003 and section 88 covers proceedings under Part 2 of the Extradition Act 2003.

270.     Clause 50 inserts section 8A into the Extradition Act 2003 and Clause 51 inserts section 76A into the Extradition Act 2003. These provisions require the appropriate judge to adjourn extradition proceedings on the basis of a domestic prosecution where he is informed of this fact at any time before the extradition hearing has begun. Section 8A covers proceedings under Part 1 of the Extradition Act 2003 and Section 76A covers proceedings under Part 2 of the Extradition Act 2003.

271.     Sections 23 and 89 of the Extradition Act 2003 provide that where the appropriate judge is informed that the person in question is serving a sentence of imprisonment or another form of detention in the UK he may adjourn the extradition hearing until that sentence has been served. These powers only apply, however, once the extradition hearing has begun. Section 23 covers proceedings under Part 1 of the Extradition Act 2003 and section 89 covers proceedings under Part 2 of the Extradition Act 2003.

272.     Clause 50 inserts section 8B the Extradition Act 2003 and clause 51 inserts section 76B into the Extradition Act 2003. These provisions allow the appropriate judge to adjourn extradition proceedings on the basis of a domestic sentence at any time before the extradition hearing has begun. Section 8A covers proceedings under Part 1 of the Extradition Act 2003 and section 76A covers proceedings under Part 2 of the Extradition Act 2003.

Clause 52: Person charged with offence or serving sentence of imprisonment

273.     There are occasions where a person’s extradition is sought from the UK while that person is facing criminal proceedings or serving a custodial sentence in the UK. This clause amends various provisions of the Extradition Act 2003 so as to make it clear that where consideration of an extradition request is deferred in order to allow domestic proceedings to be concluded or a UK prison sentence to be served, consideration of the extradition request should recommence once the person is released from detention pursuant to any sentence imposed.

274.     Subsections (2) and (4) amend Sections 22(3) and 88(3) of the Extradition Act 2003 respectively. These amendments mean that where the appropriate judge adjourns an extradition hearing on the grounds that the subject of the extradition request has been charged with an offence in the UK, the extradition hearing will not resume until the person is released from detention pursuant to the sentence (whether on licence or otherwise). This is to avoid any suggestion that the provisions should be interpreted so that the extradition hearing will stand adjourned until any licence period has been completed.

275.     Subsections (3) and (5) amend Section 23 and 89 of the Extradition Act 2003 respectively so as to make it clear that where a judge adjourns an extradition hearing on the basis that the subject of the extradition request is serving a sentence of imprisonment in the UK, the extradition hearing will not be resumed until the person is released from detention pursuant to the sentence (whether on licence or otherwise).

276.     Subsection (6) amends Section 97(3) of the Extradition Act 2003 to make it clear that the Secretary of State should not make a decision on an extradition request under part 2 of that Act until a person charged with an offence in the UK and subsequently sentenced to a term of imprisonment or another form of detention is released from detention pursuant to the sentence (whether on licence or otherwise).

277.     Subsection (7) amends section 98 of the Extradition Act 2003 to make it clear that where the Secretary of State has decided to defer making a decision on extradition in a part 2 case on the grounds that the person in question is in custody, this decision will stand deferred until the person in question is released from detention pursuant to a sentence (whether on licence or otherwise).

278.     Subsection (8) amends section 102(3) of the Extradition Act 2003 so as to make it clear that where the Secretary of State has deferred making a decision on extradition under section 97(3) or 98(2) the “appropriate day” from which the time for making a decision on extradition is calculated is the day upon which the subject of the extradition request is released from detention pursuant to a sentence (whether on licence or otherwise).

279.     Subsection (9) makes a minor amendment to section 197A of the Extradition Act 2003 to ensure that the language used there is consistent with the language used in the sections of the 2003 Act as amended by the other provisions of this section.

280.     Subsection (10) inserts a subsection (6A) into section 216 of the Extradition Act 2003 to make it clear that reference in the Extradition Act 2003 to releasing a person from detention pursuant to a sentence does not include releasing a person temporarily on licence pursuant to an intermittent custody order.

Return to overseas territory

Clause 53: Return from category 1 territory

281.     Clause 53 inserts a new section 59 into the Extradition Act 2003. This section applies to cases where a person is serving a sentence of imprisonment in the UK, is then extradited to a category 1 territory under a European Arrest Warrant and then returns to the UK. The section sets out what happens when this person returns to the UK to serve the remainder of the UK sentence or otherwise returns to the UK. Subsection (2) provides that time spent outside the UK as a result of the extradition is not deducted from the UK sentence when the person returns. Subsections (3) and (4), however, make it clear that time spent in custody abroad should be deducted from a UK sentence where the person was held in custody in connection with the extradition offence or any other offence in respect of which they could be dealt with as a result of the extradition request and that person was not convicted of the offence in question.

282.     Subsection (5) provides that if the person extradited to a category 1 territory then returns to the UK and is not entitled to be released from detention pursuant to their UK sentence, then they are liable to be detained and should be treated as unlawfully at large if at large. Subsection (6) deals with cases where a person returning to the UK is entitled to be released from detention on licence. Subsection (6)(a) states that if a licence was in force at the time of extradition then the licence will be suspended during their absence from the UK but will have effect on return. Subsection (6)(b) also provides that if no licence was imposed when the person was extradited, then the person in question may be detained by a constable or an immigration officer until released on licence. Subsection (7) defines when a person is to be regarded as entitled to be released from detention.

Clause 54: Return from category 2 country

283.     Clause 54 inserts a new section 132 into the Extradition Act 2003. This section applies to cases where a person serving a sentence of imprisonment in the UK, is then extradited to a territory designated by order under Part 2 of the 2003 Act (a category 2 territory) and subsequently returns to the UK. The section sets out what happens when this person returns to the UK to serve the remainder of the UK sentence or otherwise returns to the UK. Subsection (2) provides that time spent outside the UK as a result of the extradition is not deducted from the UK sentence when the person returns. Subsections (3) and (4), however, make it clear that time spent in custody abroad should be deducted from a UK sentence where the person was held in custody in connection with the extradition offence or any other offence in respect of which they could be dealt with as a result of the extradition request and that person was not convicted of the offence in question.

284.     Subsection (5) provides that if the person extradited to a category 2 territory then returns to the UK and is not entitled to be released from detention pursuant to their UK sentence, then they are liable to be detained and should be treated as unlawfully at large if at large. Subsection (6) deals with cases where a person returning to the UK is entitled to be released from detention on licence. Subsection (6)(a) provides that if a licence was in force at the time of extradition then the licence will be suspended during their absence from the UK but will have effect on return. Subsection (6)(b) provides that if no licence was imposed when the person was extradited, then the person in question may be detained by a constable or an immigration officer until released on licence. Subsection (7) defines when a person is to be regarded as entitled to be released from detention.

Extradition to UK

Clause 55: Return to extraditing territory

285.     Where a person whose extradition has been requested is being prosecuted or serving a sentence of imprisonment in a member state, article 24(2) of the European Arrest Warrant Framework Decision allows the requested member state to agree terms subject to which the person in question may be temporarily surrendered. Similarly, article 5(3) of the European Arrest Warrant Framework Decision allows member states in accusation cases to make surrender of a national or a resident conditional on the requested person being returned to their jurisdiction to serve any sentence imposed in the requesting state. Sections 143 and 144 of the Extradition Act 2003 provide a legislative basis on which the UK can comply with requests from other member states to make extradition subject to such conditions.

286.     Clause 55 repeals sections 143 and 144 of the Extradition Act 2003 and inserts new sections 153A, 153B and 153C. These provisions provide a regime within which the UK will be able to provide undertakings as to a person’s treatment in the UK and eventual return to a requested territory. Unlike sections 143 and 144, the new provisions will facilitate the provisions of undertakings in relation to persons who have been extradited to the UK from any territory.

287.     Section 153A(2) provides that where a person is serving a sentence of imprisonment or another form of detention in a territory, the Secretary of State may give an undertaking as to his treatment in the UK and his return to the requested territory.

288.     Section 153A(3) provides that where a person is wanted in the UK for the purpose of prosecution, the Secretary of State may give an undertaking that the person will be kept in custody until the conclusion of the UK proceedings and that they will thereafter be returned to the requesting territory to serve the remainder of the foreign sentence. In contrast, where a person is wanted in the UK so that a sentence previously imposed may be enforced, section 153A(4) allows the Secretary of State to give an undertaking that the person in question will be returned to the requested territory once the person is entitled to be released from detention pursuant to the sentence imposed in the United Kingdom.

289.     Where a person falls to be returned to a requested territory pursuant to an undertaking given under section 153A(2) section 153A(5) provides the authority for that person to be removed from prison and kept in custody while conveyed to the requested territory.

290.     Section 153B governs the situation where a person is returned to a requested territory in compliance with an undertaking given under section 153A(2) but subsequently returns to the UK. By virtue of section 153B(2), any time spent outside the United Kingdom as a result of an undertaking given under section 153A(2) does not count as time served by the person as part of the sentence. In consequence Section 153B(3) provides that where a person is not entitled to be released from detention pursuant to their sentence they may be detained and will be treated as unlawfully at large where at large. Section 153B(4)(a) provides that where someone is entitled to be released from detention on licence pursuant to their sentence any licence which was imposed prior to return to the requested territory will be suspended or their return to the requested territory, but will take effect once they come back to the UK. Section 153B(4)(b) provides that where someone who is entitled to be released from detention on licence was not released on licence prior to their return to the requested territory, they can be detained by a constable or an immigration officer on their return to the UK in order to be released on licence.

291.     Section 153C allows the Secretary of State to give an undertaking that someone who has been extradited to the UK will be returned to the requested territory to serve any sentence of imprisonment imposed in the UK. Section 153C(4) establishes that where such an undertaking has been given the person must be returned to the requested territory as soon as is reasonably practicable after the sentence has been imposed and once any other proceedings in respect of the offence have been concluded. Where a person is returned to serve a UK sentence overseas, section 153C(5) provides that the sentence for the offence is to be regarded as having been served. This is to ensure that someone does not remain liable to imprisonment pursuant to their UK sentence despite having served it overseas.

Clause 56: Cases in which sentence is to be treated as served

292.     Clause 56 amends two provisions of the Extradition Act 2003 to ensure consistency with sentencing legislation and to ensure that the protection afforded by Section 152 of the Extradition Act 2003 applies where someone is extradited to the UK from a territory which is neither a category 1 or a category 2 territory.

293.     Subsection (2) amends Section 145(2) of the Extradition Act 2003 to make it clear that where, rather than extraditing someone to the UK to serve a sentence imposed, a Member State undertakes to require the person to serve the sentence in their territory, the UK custodial sentence falls to be treated as served. This ensures that a person does not remain liable to imprisonment in the UK where they have already served the sentence in question overseas.

294.     Subsection (3) amends Section 152 of the Extradition Act 2003. Subsection (3)(a) ensures that the protection afforded by Section 152 applies where someone is extradited to the UK from a territory which is neither a category 1 nor a category 2 territory and subsection (3)(b) ensures that where a person is extradited back to the UK for one offence the sentence imposed in the UK for any other offence is to be treated as served.

Clause 57: Dealing with the person for other offences

295.     Clause 57 replaces section 151 of the Extradition Act 2003 with a new section 151A. This section deals with situations where the UK would want to deal with an offence committed by a person previously extradited to the UK for the purposes of prosecution for a different offence. Subsection (1) of the new section 151A makes it clear that this protection applies to any territory which is not a category 1 territory or a country listed under section 150 (1) (b) of the Extradition Act 2003. Subsections (2), (3) and (4) make it clear that the person may only be dealt with in the UK for an offence committed before their extradition if it is an offence falling within subsection (3) and meets either of the conditions set out in subsection (4). Subsection (5) defines what is meant by a person being dealt with for an offence in the UK.

Ancillary matters

Clause 58: Provisional arrest

296.     Clause 58 provides a mechanism by which the time limits applicable in a Part 1 provisional arrest case may be extended by up to 48 hours.

297.     A power of provisional arrest is available under section 5 of the Extradition Act 2003 where a Part 1 warrant has not been received by a designated UK authority but a constable, a customs officer or a service policeman has reasonable grounds for believing that the warrant has been or will be issued by an authority in a category 1 territory.

298.     Section 6(2) of the Extradition Act 2003 requires that someone who has been provisionally arrested must be brought before the appropriate judge and provided with a copy of the Part 1 warrant and the certificate issued under section 2 of the Extradition Act 2003 within 48 hours. Clause 58, however, amends section 6 of the Extradition Act 2003 to enable the authority of the category 1 territory to apply to the appropriate judge for a further 48 hours within which to satisfy these requirements. By virtue of subsections (3B) and (3C) the appropriate judge may grant such an extension where satisfied on the balance of probabilities that the requirements of section 6(2) of the Extradition Act 2003 could not reasonably be complied with within the initial 48 hour period. Where the appropriate judge has granted an extension, subsection (3D) allows him to grant bail to the person who has been provisionally arrested.

Clause 59: Use of live link in extradition proceedings

299.     This clause amends the Extradition Act 2003 by inserting new sections 206A and 206B. These sections make it possible for a judge to give a live link direction in extradition hearings other than the extradition hearing itself and other than any extradition proceedings which post date surrender. Section 206A(1) applies this section to all extradition related hearings in parts 1 and 2 of the Extradition Act apart from the substantive extradition hearing and any hearings post dating surrender. A live link direction can be given in any case in which the appropriate judge is satisfied that the person in question is likely to be in custody at the time of the hearing and a live link direction can be made following an application by a party to the proceedings or on the appropriate judge’s own motion. By virtue of subsection (4) a live link direction can be given for all future hearings to which the section applies. Subsections (5) and (6) make it clear that the judge may not give a live link direction if it is contrary to the interests of justice and that the person whose extradition is sought must be considered as present in the court if they attend via live link.

300.     Subsection 206B (1) allows the judge to rescind a live link direction at any time before or during a hearing. Subsection 206B (2) prevents the judge giving or rescinding a live-link direction if both parties have not been afforded the opportunity of making representations. Subsection 206B (3) provides that representations on the giving or rescinding of the live-link direction can be made via live-link. If the appropriate judge does not give a live-link direction he must state in open court the reasons for not doing so and enter those reasons in the register of proceedings as set out in subsection 206B (4). Subsections 206B (5), (6) and (7) state that, when an application for a live-link hearing is refused or rescinded by a judge, the person whose extradition is sought must be brought before an appropriate judge as soon as practicable after the refusal of that application.

301.     Section 206C defines terms used in Section 206A. Subsections (2) and (3) make sections 67 and 139 apply in determining the appropriate judge under parts 1 and 2 of the Extradition Act 2003. Subsection (4) sets out the definition of what is meant by “affected by an extradition claim” for the purposes of this section. Subsection (5) sets out how references should be interpreted in England and Wales, Scotland and Northern Ireland. Subsection (6) sets out what is meant by “live link” for the purposes of this section.

PART 6 - AVIATION SECURITY

302.     Clause 60 concerns the establishment of Risk Advisory Groups (RAGs) and Security Executive Groups (SEGs) at aerodromes, the functions of these groups, and the dispute resolution procedures to be followed in the event of disagreement.

303.     Aerodromes that will automatically be subject to the new provisions will be those that are the subject of a direction or directions made by the Secretary of State in accordance with sections 12,13 or 14 of the Aviation Security Act 1982 (c.36) (ASA). In practice, an aerodrome directed under these sections will be one meeting the qualifying criteria for inclusion in the UK’s National Aviation Security Programme (NASP).

304.     Under the terms of the provisions, the manager of the aerodrome will be responsible for the establishment of a RAG. The RAG’s membership will include, as a minimum, a representative of the aerodrome manager and a representative of the chief officer of police. The manager of the aerodrome will also be required to appoint such additional members as he considers necessary to allow for the proper consideration of potential risks to the aerodrome. The RAG will then be required to produce a comprehensive risk report, which will include analysis of the potential risks to the aerodrome, and which will make recommendations regarding the actions necessary to successfully mitigate these risks.

305.     The risk report produced by the RAG will be submitted to the SEG for their consideration. The SEG’s membership will include, as a minimum, a representative of the aerodrome manager, and representatives of the chief officer of police and the police authority for the relevant area, and a representative of airlines operating at the airport. The manager will be required to appoint additional persons to the SEG as appear to him to be best placed to represent the interests of various categories of security stakeholders having a presence at the aerodrome.

306.     The SEG will be required to consider the risk report produced by the RAG. They will then determine the security measures to be taken in respect of the airport, and will determine which security stakeholder should deliver each security measure. They will then be required to decide on the mitigating actions required in respect of their aerodrome. These decisions will form the content of the Aerodrome Security Plan (ASP), which will formally document the security measures to be taken at an airport, the security stakeholder or stakeholders responsible for their delivery, and the procedures to be used to monitor the implementation of these measures.

307.     In the event that the members of the SEG are unable to agree on the terms of an ASP, they may, in certain circumstances, refer the disagreement to the Secretary of State as a dispute. The provisions empower the Secretary of State to make a determination in relation to any disagreement. Parties involved in a dispute will be required to abide by the terms of the Secretary of State’s determination, although in certain circumstances the legislation does provide them with rights of appeal to the High Court.