Extradition to UK

576.     Clause 55 makes provision as to returns to extraditing territory etc.

577.     Section 143 of the 2003 Act currently provides a mechanism under which a person serving a sentence in an EU member state can be extradited to the UK subject to the provision of an undertaking by the Secretary of State that the person will be returned to the Member State in order to serve the remainder of their foreign sentence. Similarly, where a person is extradited to the UK subject to the condition that they are returned to that Member State to serve any sentence imposed in the UK, section 144 of the 2003 Act provides for the return of that person and the remittal of their UK sentence. Clause 55 extends the existing powers available under sections 143 and 144 so as to cover all territories from which a person is extradited to the UK. The provisions the clause would insert into the 2003 Act also allow the UK to seek a cross undertaking that the territory to which the person is to be returned will then return the person to the UK to serve the remainder of their UK sentence. The provisions also set out how a person’s UK sentence falls to be enforced on their return to the jurisdiction.

578.     New section 153A(3)(a) of the 2003 Act, which is inserted by clause 55, allows the Secretary of State to give an undertaking that a person who is serving a sentence of imprisonment in a foreign territory and is extradited to the UK for the purpose of criminal proceedings will be kept in custody for the duration of those proceedings. On the basis that a person can be detained pursuant to an undertaking given under new section 153A(3)(a) the Government is of the view that the provision would engage Article 5 of the ECHR. Article 5(1) guarantees that no one shall be deprived of his liberty save in the circumstances provided for in Article 5(1)(a)-(f) and in accordance with a procedure prescribed by law. Where a person has been extradited to the UK for the purpose of criminal proceedings and subject to an undertaking that they will be returned to the extraditing territory at the conclusion of those proceedings it is the Government’s view that detention can be justified under Article 5(1)(a) (“the lawful detention of a person after conviction by a competent court”), under Article 5(1)(c) (“the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”) and under Article 5(1)(f) (“the lawful arrest or detention..of a person against whom action is being taken with a view to..extradition”). As the person would be detained for the purpose of criminal proceedings in the UK they would also be entitled to be informed of the reasons for their detention in the same way as anyone else who is detained for the purpose of trial and would be able to apply for bail (albeit that when an undertaking has been given that the person has been kept in custody, section 154 of the 2003 Act provides that bail may only be granted in exceptional circumstances). A refusal of bail could be appealed to the Crown Court and any decision of the Crown Court could then be challenged in proceedings before the High Court. For all of these reasons the Government is satisfied that new section 153A(3)(a) is compatible with Article 5. It is also to be noted that section 143(3)(a) of the 2003 Act, which is cast in almost identical terms, was the subject of section 19(1)(a) statement of compatibility when the 2003 Act was passed.

579.     New section 153A(3)(b) enables the Secretary of State to give an undertaking that a person will be returned to the extraditing territory to serve the remainder of their foreign sentence at the conclusion of the UK proceedings. In view of the fact that new section 153A(3)(b) provides for the return of a person to another jurisdiction, the Government’s view is that all of the Articles of the ECHR are potentially engaged by this provision. As in context of the immigration and extradition, there is an argument that by undertaking to return a person to another territory the Secretary of State must ensure that the treatment the person faces in that territory does not breach the terms of the ECHR. It is for this reason that new section 153A(2) of the 2003 Act would provide the Secretary of State with a discretion as to whether or not to give an undertaking as to return to the extraditing territory. In exercising this discretion the Secretary of State would be required to act in accordance with section 6 of the Human Rights Act 1998 and could only therefore provide an undertaking where satisfied that compliance with that undertaking would not give rise to a breach of the ECHR. Any decision to provide an undertaking could be challenged by judicial review. Section 153D also provides that nothing in section 153A should be read as requiring the return of a person to a territory in a case where the Secretary of State is not satisfied that return is compatible with the ECHR. For these reasons the Government’s view is that the provision of a temporary surrender undertaking would be compatible with the terms of the ECHR. In reaching this conclusion the Government has noted that sections 143 and 144 of the 2003 Act, which allow for similar undertakings to be given as to return to the extraditing state at the conclusion of UK proceedings, were the subject of a section 19(1)(a) statement of compatibility.

580.     Where an undertaking has been given under new section 153A(2), new section 153A(5) provides authority for a constable to remove the person in question from a prison or any other place of detention and to keep that person in custody until they are conveyed to the extraditing territory.

581.     On the basis that a person can be detained pursuant to the powers exercisable under section 153A(2) the Government believes that the provision would engage Article 5 of the ECHR. Where a person has been extradited to the UK for the purpose of criminal proceedings and subject to an undertaking that they will be returned to the extraditing territory at the conclusion of those proceedings it is the Government’s view that detention can be justified under Article 5(1)(a) (“the lawful detention of a person after conviction by a competent court”), under Article 5(1)(c) (‘the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence’) and under Article 5(1)(f) (‘the lawful arrest or detention..of a person against whom action is being taken with a view to..extradition’). A person would in practice only be kept in custody under section 153A(5) for the time taken to convey them to the airport where they would then be collected by agents of the extraditing state, but were they to wish to challenge detention during this period they could do so by bringing an application for habeas corpus. For these reasons the Government is satisfied that new section 153A(5) is compatible with Article 5. In reaching this conclusion the Government noted that the all but identical terms of existing section 197(6) of the 2003 Act were the subject of a section 19 statement when that Act was passed.

582.     New section 153B(3) provides that where a person comes back to the UK after having been returned to a foreign territory pursuant to an undertaking given under new section 153B(2) and is not entitled to be released from detention pursuant to their UK sentence they are liable to be detained and if at large will be treated as unlawfully at large.

583.     On the basis that new section 153B(3) allows for a person to be detained the Government’s position is that Article 5 of the ECHR would be engaged. However, as they would be being detained pursuant to a sentence imposed following conviction the Government believes that detention under new section 153B(3) would fall squarely within the terms of Article 5(1)(a). As the person would be being detained pursuant to their UK sentence they would have the same right to be informed of the reasons for their detention and the same avenues for challenging the legality of their detention as any other UK prisoner. For these reasons it is the Government’s view that new section 153B(3) is compatible with Article 5.

584.     New section 153B(4) allows a person who comes back to the UK after having been returned to the extraditing territory to serve the remainder of their foreign sentence, to be detained by a constable or an immigration officer for the purpose of imposing a licence if that person is entitled to be released on licence.

585.     On the basis that a person can be detained pursuant to section 153B(4) the Government accepts that the provision would engage Article 5 of the ECHR. The Government’s view is that as detention under section 153B(4) would be for the purpose of imposing a licence in order to allow for release under a UK sentence, it would be pursuant to a lawful procedure and for a purpose covered by Article 5(1)(a) (“the lawful detention of a person after conviction by a competent court”). While in practice a person should only be detained pursuant to section 153B(4) for a short period of time and for the purpose of facilitating their release on licence, if the person in question did wish to challenge the legality of their detention they could do so by bringing an application for habeas corpus. For these reasons the Government is satisfied that new section 153B(4) is compatible with Article 5.

586.     New section 153C(3) allows the Secretary of State to give an undertaking that a person will be returned to the extraditing territory to serve any sentence of imprisonment imposed in the UK. As with new section 153A(3)(b) the Government believes that this duty to return a person to an extraditing state could potentially engage any article or the ECHR, but, as with section 153A(3)(b), the Government’s view is that the fact that the Secretary of State has a discretion as to whether to give such an undertaking means that an undertaking could only be given where the Secretary of State was satisfied that compliance with it would be compatible with the ECHR. Section 153D also provides that no duty to return arises under section 153C where the Secretary of State is not satisfied that return would be compatible with the ECHR. Again it is to be noted that section 144(2) of the 2003 Act which is of substantially the same effect was the subject of a section 19(1)(a) statement.

587.     New section 153C(8) confers on a constable the same powers to remove a person from prison pursuant to an undertaking and to keep them in custody until conveyed to the extraditing territory as were dealt with in relation to new section 153A(5). Accordingly the Government is of the view that the same issues arises in relation to Article 5, but that (for the same reasons as are set out above) the provisions are compatible with the ECHR. It is noted in reaching this conclusion that the near identical terms of existing section 197(6) of the 2003 Act were the subject of a section 19(1)(a) statement when that Act was passed.

Ancillary matters

588.     Clause 58 makes provision about provisional arrests. Section 6(2) of the 2003 Act provides that where someone is arrested following receipt of a provisional request for extradition, that person must be brought before the appropriate judge (as defined in section 67 of the 2003 Act) and provided with a copy of the full request for extradition (a Part 1 warrant) and the certificate issued under section 2 of the 2003 Act within “the required period”. Section 6(3) of the 2003 Act provides that “the required period” is to be 48 hours. Clause 58 provides a mechanism by which the 48 hour period can be extended by a further 48 hours where the appropriate judge, to whom the application is made, is satisfied that the conditions in section 6(2) of the 2003 Act could not reasonably be complied with within the initial 48 hour period.

589.     In view of the fact that clause 58 allows for the detention of an individual, the Government’s view is that Article 5 of the ECHR will plainly be engaged. Where someone is detained following receipt of a provisional request for extradition detention will be in accordance with the procedure prescribed by section 6 and clause 58 and will be for “the lawful arrest or detention..of a person against whom action is being taken with a view to..extradition” as provided for in Article 5(1)(f). A person arrested and detained in these circumstances will also be informed of the reasons for their detention in open court and will be able to apply for bail if an application under clause 60 is made. For these reasons the Government is satisfied that detention under clause 58 would be compliant with Article 5.

590.     Clause 59 provides for the use of live links in certain hearings under the Extradition Act 2003. While the Government accepts that the use of live links in domestic criminal proceedings would potentially engage Article 6 of the ECHR, Article 6 does not apply to extradition proceedings. The use of live links in certain hearings under the Extradition Act 2003 therefore raises no issue under the ECHR.

Part 6 Aviation Security

591.     Part 6 makes new provision for the establishment of aerodrome security plans. These plans are monitored and implemented by a security advisory group (the group). The plan can require certain stakeholders, i.e. an aerodrome manager, an airline operator or an air cargo agent operating at an aerodrome to make payments to other members of the group if costs are incurred by them regarding the implementation of identified security measures that are set out in the plan and approved by the group.

592.     In this respect it could be argued that this involves depriving someone of their possessions in that they must expend money to meet the costs of implementing some or all of the above measures. However the Government believes that such a deprivation operates directly in the public interest by helping to ensure the safety of the travelling public using UK airports. The Government is of the view therefore that the provision is proportionate in that there is a fair and reasonable relationship between the requirement to potentially pay for implementing safety measures at airports and ensuring the safety of the travelling public which is sought to be protected by such payments.

593.     Moreover although compensation in cases of deprivation should normally be provided for, the requirement to make payments for identified security measures will be in the interests of the persons subject to this part of the Bill and not just passengers. Moreover the context of any perceived interference with the property rights of any person subject to this part of the Bill involves the operation of a business for profit that, because of its nature, requires stringent measures to be taken to secure public safety.

594.     Part 6 of the Bill also provides for the Secretary of State for Transport to act as the final arbiter of disputes arising under this Part of the Bill. Thus if, for example, a relevant stakeholder is required to implement a certain security based measure under the plan but believes that it is unreasonable that it should be so required, it may refer the matter to the Secretary of State for consideration and determination. In determining the matter the Secretary of State must allow relevant parties to make representations and must give due consideration to those representations.

595.     Article 6 of the ECHR guarantees the right of access to a court in the determination of an individual’s civil right or obligations. The group potentially may make a decision that could be deemed to be determinative of the relevant stakeholder’s rights as regards what it is required to do. If a relevant stakeholder objects and remains unsatisfied with the decision of the Secretary of State then it remains open to the stakeholder to challenge the decision by way of an application for judicial review in the High Court which is a court with full jurisdiction for the purposes of Article 6.

Part 7 - Miscellaneous

Criminal records etc

596.     The following clauses all potentially engage Article 8 rights:

• Clause 64 (determining applications under section 24 of the Safeguarding Vulnerable Groups Act 2006 (“SVGA”)),

• Clause 66 (required information in the declaration under section 30 SVGA),

• Clause 68 (sending a copy of basic certificates under Part V to any specified employer)

• Clause 69 (including right to work information on certificates issues under Part V of the Police Act 1997)

• Clause 70 (prescription of other verification of applicant’s identity)

• Clause 71 (information to which the Secretary of Sate should have regard when checking the suitability of persons applying to become registered persons)

• Clause 72 (determining applications under Part V),

597.     All these clauses involve the requirement either to provide personal information to the Secretary of State or for the Secretary of State to provide personal information to a third party, thereby potentially impacting on rights under Article 8 of the ECHR. These clauses only apply to those who request to become subject to monitoring or request a certificate under Part V of the Police Act 1997. The Government considers that any interference is a proportionate response in pursuance of the legitimate aim of preventing crime and protecting the public (in particular, vulnerable groups).

Border controls

598.     Clause 73 introduces a new section into the Customs and Excise Management Act 1979 (“CEMA”) to enable an officer of Revenue and Customs to require a person entering or leaving the UK to produce their passport or travel documents and answer questions about their journey. The purpose of this new power is to supplement existing CEMA powers in relation to persons arriving in or departing from the UK that, broadly speaking, are limited to baggage examination and questioning about goods imported or to be exported by passengers.

599.     Article 6 of the ECHR is likely to be engaged by this provision but in the Government’s view will not be infringed by the use of these powers as they will not be used to gain evidence for prosecution purposes. Where, following these routine examinations and/or questions, evidence to suggest the commission of an offence is encountered, the usual Police and Criminal Evidence Act 1984 procedures and safeguards, beginning with the administering of a caution, will come into operation. Although this provision imposes a requirement on a passenger to answer questions the Government considers it does not infringe the privilege against self incrimination (which is part of the rights contained in Article 6) as the requirement to answer questions is very limited and only relates to a person’s journey. Further, the requirement is imposed for the legitimate aim of ensuring customs controls are adhered to and that duty is paid and it is proportionate to achieving that aim. The European Court of Human Rights in the cases of Weh v Austria 40 E.H.R.R. 37 and O’Halloran v Francis (judgment 29 June 2007) recognised the fact that obligations to provide information to the authorities is a common feature of Contracting States’ legal orders and information requirements similar to this provision were found to be compatible with Article 6. This information requirement is based on the existing similar provision relating to baggage in section 78 CEMA.

600.     Equally, the Government considers that although Article 8 may be engaged by this provision it will not be infringed as the purpose of the power is proportionate and in accordance with the law.

601.     The effect of clause 74 is to define the powers used by HMRC officers to detect cash at the frontier. The current control powers in CEMA refer in some cases to goods. Clause 74 expressly provides that the CEMA powers can be used in respect of cash, in particular cash which has been obtained through unlawful conduct or is intended by any person for use in unlawful conduct, or where it is being imported into or exported from the EU in contravention of Regulation (EC) No1889/2005 of 26 October 2005 on controls of cash entering or leaving the Community.

602.     The powers in question include powers to board and search a ship, aircraft or vessel, or to open containers. To the extent that these powers could engage Article 8 of the ECHR, the Government considers that, any interference with that right would fall within the derogation in Article 8(2), being necessary for the prevention of crime.

603.     A search of a person can engage Article 3 of the ECHR where it is carried out without due respect for human dignity. Such a search can also constitute an interference under Article 8(1) and it is required to be justified as being in accordance with the law and necessary in a democratic society for a legitimate aim under Article 8(2). The power to search a person for cash contains the same procedural safeguards as the existing power to search for goods under section 164 CEMA. In the case of a rub-down search, a person may require to be taken before a superior of the officer concerned, or in the case of a strip or intimate search, before a justice of the peace or a superior of the officer concerned. The justice of the peace or the superior must consider the grounds for suspicion and direct whether the suspect is to submit to the search. As with the existing power to search a person for goods, it is the exercise of the power that will determine whether the relevant convention right is breached and not the power in itself.

604.     These provisions do not create new powers of seizure or forfeiture of cash, but rather specify which detection powers can be used in respect of cash. To the extent that the powers will result in an increased seizure of cash, this could engage Article 1 of Protocol 1. But the Government considers that the seizure of recoverable property, or the detection of undeclared EC cash, is justifiable under that Article, which provides that no one shall be deprived of their possessions except in the public interest and subject to the conditions provided for by law.

605.     Clause 76 will create a prohibition on the importation or exportation of false identity documents. Where such documents are discovered they may be seized under the current provisions in CEMA. To the extent that such forfeiture will constitutes a deprivation of property within the scope of the first limb of Article 1 of Protocol 1, the Government considers that it would be justified as in the public interest. In the event of a prosecution it will be necessary for a full criminal investigation to be carried out under the rules of the Police and Criminal Evidence Act 1984, and so Article 6 issues arise as a result of this clause. To the extent that Article 8 rights (respect for private and family life, home and correspondence), may be engaged, the Government considers that the new provisions are proportionate and necessary in the UK’s democratic society in the interests of national security, for the prevention of disorder or crime and for the protection of the rights and freedoms of others.

606.     Clause 77 contains provision about the importation of offensive weapons. There are related consequential amendments in Part 10 of Schedule 6.

607.     Section 141 of the Criminal Justice Act 1988 contains a power to make an order directing that that section applies to any weapon described in the order. Where a weapon is described in such an order, it is an offence to manufacture, sell, hire etc the weapon (under section 141(1)). The importation of that weapon is also prohibited (under section 141(4)). If the weapon is imported in breach of the prohibition, then an offence under section 50(2) or (3) of CEMA may be committed (improper importation).

608.     There is a lack of clarity over whether Scottish Ministers have competence to make an order under section 141. This is because such an order operates to prohibit the importation of weapons and the importation of goods is reserved under section C5 of Part II of Schedule 5 to the Scotland Act 1998.

609.     The amendments in Part 10 of Schedule 6 to the Bill remove the provisions on importation from section 141. Therefore, when an order is made under section 141 following these amendments, the only consequences that will flow are those under section 141(1); there will be no importation consequences arising. Clause 77 creates a new power to prohibit the importation of offensive weapons. This will be exercisable by the Secretary of State and would extend to the United Kingdom. The Government intends to exercise the power to prohibit the importation of the same weapons as are currently specified under section 141. There would however be no time gap between the repeal of the importation prohibition in section 141(4) and the coming into effect of clause 77 and the first order made under that clause.

610.     Clause 77(2) to (4) contains transitional provisions. These will apply where a weapon has been imported in breach of a prohibition but it cannot be proven whether the prohibition is that imposed by section 141(4) (before it was repealed) or by clause 77. In such a case, it shall be conclusively presumed that the conduct took place after the commencement of clause 77 and therefore that the relevant prohibition is that in clause 77. The purpose of this transitional provision is to ensure that a defendant is not able to escape liability solely on the basis that it cannot be proven which importation prohibition has been breached.

611.     This presumption can never operate to a defendant’s disadvantage and indeed in one respect, it will operate in his or her favour. This is because until clause 77 comes into force, certain defences (i.e. those which apply where the importation is for the purposes of theatre/film/television under section 141(11A) and (11B)) do not apply in Scotland. When the clause comes into force, these defences will apply in all cases. Therefore, where the transitional provision applies, the defendant will in all cases be able to rely on the defences for theatre/film/television, even where the importation was into Scotland and may have been in breach of section 141(4).

612.     The Government has considered whether this transitional provision would engage Articles 6 or 7 of the ECHR. The Government considers that Article 6 would not be engaged. This is because the defendant would always know the nature and cause of the accusation against him. In relation to Article 7, there will always be a prohibition on importation in place, and importation in breach of this prohibition can always be an offence under CEMA. There is no change to the constituent elements of the offence and the defendant will always be able to foresee that importation is prohibited with potential criminal consequences under CEMA. The Government therefore considers that the provision is compatible with article 7.

613.     An exercise of the power under clause 77 is likely to amount to a control of use. The Government considers that this provision is compatible with Article 1 of Protocol 1 because it will be exercised by the Secretary of State who, under section 6 of the Human Rights Act 1998, is a public authority and will therefore be required to exercise the power in a way compatible with the ECHR.