Crime and Courts Bill

Supplementary Memorandum submitted by the Home Office

(C&C 15)


I am writing to let you have details of a further tranche of Government amendments for Commons Committee stage of the Bill which I have tabled today.

Extradition (New clause Extradition and new Schedule Extradition)

At Second Reading the Hom

e Secretary indicated that the Government would be bringing forward amendments to the Bill to introduce a new forum bar to extradition and to transfer to the High Court the Home Secretary’s responsibilities for considering representations on human rights grounds (Hansard, 14 January 2013, col. 642-643)

Forum (Part 1 of new Schedule Extradition)

The introduction of a forum bar to extradition responds to the widespread concern in Parliament, and amongst the public, that insufficient safeguards are currently built into cases of concurrent jurisdiction (that is, where two or more courts from different countries simultaneously have jurisdiction over a specific case).

Rather than commence the existing provision in Schedule 13 to the Police and Justice Act 2006 (which are repealed by paragraph 9 of the new Schedule), which would have been cumbersome in practice, these amendments to the Extradition Act 2003 (the 2003 Act) introduce a carefully modified forum provision which has been designed to minimise delays, while providing greater safeguards for those who are subject to extradition proceedings.

The amendments to the 2003 Act allow a judge to bar extradition, on forum grounds, if the extradition would not be in the interests of justice. In considering whether or not to bar extradition, a judge will have to consider whether a substantial measure of the alleged criminal activity was performed in the UK. The judge would also consider:

o where most of the harm occurred;

o the interests of any victims;

o whether the Crown Prosecution Service (or equivalent) consider there should be no prosecution in the UK;

o whether the evidence is available in the UK;

o the location of witnesses; and

o the person’s connections with the UK.

In cases where the prosecutor has taken a formal decision not to prosecute in the UK, because there is insufficient admissible evidence available or because it is not in the public interest for such a prosecution to take place, then a Prosecutor’s Certificate can be issued to that effect thereby preventing extradition being barred on forum grounds. This will ensure that a judge cannot take a decision to bar extradition on forum grounds when a prosecution is not possible for one of these reasons.

A Prosecutor’s Certificate could also be issued if the prosecutor believes that a UK prosecution is not possible because of disclosure difficulties arising from sensitive material. A Prosecutor’s Certificate can be judicially reviewed but only as part of any extradition appeal to the High Court.

These new measures will apply to European Arrest Warrant (EAW) and non-EAW cases covered by the Extradition Act 2003.

I believe that these measures will make our extradition arrangements more open and transparent and will ensure that, in cases of concurrent jurisdiction, due consideration is given to any decision about whether or not a person could be prosecuted in the UK.

Representations on Human Rights grounds (Part 2 of new Schedule Extradition)

One of the key recommendations made by the Rt. Hon. Sir Scott Baker, in his review of extradition, was that the breadth of the Home Secretary’s involvement in extradition cases should be reduced.

At present, the Home Secretary is obliged to consider human rights issues raised after the person has exhausted their statutory appeal rights because she is a ‘public authority’ for the purposes of the Human Rights Act 1998 (HRA) and section 6(1) makes clear that public authorities must not act in a way which is incompatible with the European Convention on Human Rights (ECHR). 

If a person raises new human rights matters that have not been considered previously during the progress of an extradition case, the Home Secretary must consider them to ensure that the person’s extradition would be compatible with those rights.

This can lead to significant delays while cases are considered, and any decision to uphold the extradition may be challenged in the courts. 

By specifically preventing the Secretary of State from considering whether extradition is compatible with the ECHR and transferring consideration of such matters to the courts, the amendments to the 2003 Act will strike the correct balance between, on the one hand, ensuring late human rights issues which are deserving of the court’s attention are considered and, on the other hand, ensuring that people are not able to abuse the system and delay extradition endlessly by means of raising last minute, specious human rights points which can then be the subject of Judicial Review. This change will also significantly reduce delays in cases which are currently referred to the Home Secretary and will ensure that decisions about judicial issues such as these are, rightly, taken in the courts.

It is legitimate for the Home Secretary to play some role in the extradition process and that will remain the case – Ministers will still sign an extradition order for Part 2 countries (that is, countries not covered by the EAW), to confirm that there are no statutory bars to extradition once it has been approved by the District Judge. This covers issues such as the death penalty, and speciality (that is, ensuring people are only tried for the charges on which they have been extradited), onward extradition from a third country and transfer from the International Criminal Court. These are areas where diplomatic assurances are occasionally required and it is right that Ministers should continue to deal with these.

Devolution issues in Scotland (Part 3 of new Schedule Extradition)

We are taking the opportunity to make one other change to the 2003 Act. The Act makes provision for appeals in relation to extradition proceedings.  In extradition proceedings in England and Wales, it is possible for a point of law raised in those proceedings to be appealed to the Supreme Court.  In extradition proceedings in Scotland, the final court of appeal is the High Court of Justiciary, with one exception; there can be an appeal to the Supreme Court against the determination of a devolution issue raised in Scottish extradition proceedings.  However, the 2003 Act does not take account of devolution issues in Scottish extradition proceedings being appealed to the Supreme Court.  This creates issues regarding the power to detain a person who is subject to extradition proceedings pending the outcome of an appeal to the Supreme Court in a Scottish extradition case and the date by which such a person should be extradited following such an appeal.  The Supreme Court commented on this in the case of BH(AP) & Another v the Lord Advocate & Another (Scotland) [2012] UKSC 24 and Lord Hope commented that he hoped these issues would be resolved by legislation.  The provisions in Part 3 on new Schedule Extradition seek to address these issues.

The amendments to the 2003 act in Part 3 of the new Schedule seek to ensure that where a person seeks to appeal to the Supreme Court against a determination of a devolution issue in Scottish extradition proceedings the court has power to remand the person whose extradition is being sought in custody or on bail.  The amendments ensure that the courts have this power until the person is extradited or discharged.  The amendments also seek to set out the time limit for extraditing a person where a party to the proceedings seeks to appeal to the Supreme Court against the determination of a devolution issue raised in Scottish criminal proceedings.  The time limit operates by reference to when the appeal becomes final as is the case where there is an appeal to the Supreme Court in English and Welsh extradition proceedings.   

Proceeds of Crime (New clauses Civil recovery of proceeds etc of unlawful conduct and Investigations, new Schedules Proceeds of crime: civil recovery of the proceeds etc of unlawful conduct and Proceeds of crime: investigations, and amendments to clause 42)

These amendments (foreshadowed by the Home Secretary at Second Reading (Hansard, 14 January 2013, col. 636)) make a number of changes to Parts 5 and 8 of the Proceeds of Crime Act 2002 (POCA), to restore the original intention of the Act prior to the Supreme Court’s judgment in the case of SOCA v Perry [1] .

The Supreme Court handed down judgment in the Perry case on 25th July 2012. The case concerned an Israeli citizen who had been convicted by the Israeli courts of fraud against Holocaust survivors. Perry was given a term of imprisonment in Israel and a large fine.

The Serious Organised Crime Agency (SOCA) used the civil recovery process, as provided for in Part 5 of POCA, to obtain a world-wide property freezing order over Perry’s assets. It also served a disclosure order on Perry and some of his family to seek details of their property throughout the world.

Perry challenged the validity of the orders. The Supreme Court ruled in favour of Perry and held that property freezing orders (and by implication orders under Chapter 2 of Part 5 of POCA) could not extend to property outside the territorial jurisdiction of the court, and that disclosure orders were only available in respect of persons who were within the territorial jurisdiction of the court. The Court also commented on whether a disclosure order could go beyond property already known.

This adverse decision has a significant impact on the effectiveness of the civil recovery regime. The original intention of POCA was that civil recovery should extend beyond the jurisdiction of the court and that there should be no bar to civil recovery on the basis of extraterritorial location of property, possession or control because the proceeds of crime, in particular organised and large scale crime, are rarely held in one country and are often placed in jurisdictions where recovery is difficult. However, it was intended that there should be or have been a connection between the case and the United Kingdom before a civil recovery claim is brought.

As originally enacted, the legislation assumed that the fact that the statute referred to property wherever situated allowed such reach, but the Supreme Court ruling has made it clear that this is not the case. The amendments seek to reverse, as far as possible, the effect of the Perry judgment by making express provision for the extra-territorial reach of the powers in POCA.

New clause Civil recovery of proceeds etc of unlawful conduct make explicit provision to enable a court to make orders against property wherever they are situated. This is dependant on there being a connection with the UK, and a non exhaustive list of connecting factors is provided (see new section 282A and new Schedule 7A of POCA).

Provision has also been made to address the comments by the Supreme Court that the powers in POCA have been framed so that only known property can be subject to further investigation. New clause Investigations and new Schedule Proceeds of crime: Investigations makes it clear that an investigation may begin with a person and, as property is identified and more is known about the property, become an investigation into property. Equally an investigation may begin with property and, as information about its ownership emerges, become an investigation into a particular person.

A mechanism has now been included for requesting evidence from overseas which is closely modelled on existing provisions for mutual legal assistance in the Crime (International Co-operation) Act 2003 and the now repealed section 376 of POCA (see Part 2 of new Schedule Proceeds of crime: Investigations). It will be for the requested country to decide, in accordance with their own laws, whether or not to accede to a request, and how that request will be satisfied.

New Schedule Proceeds of crime: Investigations also provides that interim orders under Chapter 2 of Part 5 of POCA can be dealt with across the three UK jurisdictions, which is achieved by an amendment to the existing general civil law process in the Civil Jurisdiction and Judgments Act 1982 (see Part 1 of the Schedule).

The provisions, insofar as they amend Chapter 2 of Part 5 of POCA, will have retrospective effect and early commencement which will mean that on Royal Assent POCA is returned to the position we believed it had since the time of enactment. In other words, the amendments will close the gap between what we (including law enforcement and the courts) thought POCA achieved since 2003 and what Perry says it had in fact achieved. New clause Investigations and new Schedule Proceeds of crime: Investigations will be brought into force by commencement order.

Finally, the provisions as drafted currently operate on a UK-wide basis but the provisions of POCA engage devolution considerations. Insofar as the aspects of the amendments relate to matters within the legislative competence of the Scottish Parliament, the Scottish Government has agreed to bring forward the necessary Legislative Consent Motion before the Scottish Parliament. I understand that the Northern Ireland Executive declined to take forward a Legislative Consent Motion for these amendments to POCA, insofar as they relate to matters within the legislative competence of the Northern Ireland Assembly. We are carefully considering the implications of the Executive’s decision with a view to bringing forward any necessary amendments to these provisions at Report stage so that they are consistent with the Sewel Convention, namely that the UK Parliament only legislates on matters within the legislative competence of the Northern Ireland Assembly with the consent of that Assembly. 

National Security Deportations (New clause Deportation on national security grounds: appeals)

This new clause amends section 97A of the Nationality, Immigration and Asylum Act 2002 to ensure that suspensive (that is, in-country) appeals are possible only in those national security deportation cases that truly merit them and so speed up removal. The amendment to section 97A is designed to make a suspensive appeal available only where an individual would face a real risk of serious, irreversible harm if deportation were to go ahead before the appeal had been heard. This test reflects European Court of Human Rights (ECtHR) jurisprudence on when a suspensive appeal is required and the approach the ECtHR takes when considering whether to direct states not to remove an individual until Strasbourg has determined his or her application to appeal.

The new clause would allow the Home Secretary to certify that removal would not result in the individual facing a real risk of serious, irreversible harm, thereby rendering any substantive appeal against deportation out of the country. The individual will be able to challenge this certification before the Special Immigration Appeals Commission, on the basis of whether the ‘serious, irreversible harm’ test was properly met (rather than the merits of the underlying human rights claim). National security deportation cases routinely involve human rights claims where individuals may face a real risk of serious, irreversible harm on return, so there are significant constraints on the Government’s ability to deport before an appeal is heard in the UK. Nevertheless, this change will support the Government’s ability to deport in cases where individuals raise less fundamental human rights issues, such as the right to a private life. Overall the new clause will help to address the Government’s and Parliament’s interest in speeding up the deportation of foreign nationals on national security grounds.

We have prepared the attached supplementary Delegated Powers Memorandum and supplementary European Convention on Human Rights Memorandum which have been sent to the Delegated Powers and Regulatory Reform Committee and Joint Committee on Human Rights respectively.

I am copying this letter to all members of the Public Bill Committee and to Dr Hywel Francis (Chair, Joint Select Committee on Human Rights), Baroness Thomas of Winchester (Chairman, Delegated Powers and Regulatory Reform Committee), Keith Vaz (Chair, Home Affairs Select Committee), Baroness Smith of Basildon, Lord Beecham, Lord Rosser, Baroness Hamwee and Lord Marks of Henley-on-Thames. I am also placing a copy in the Library of the House.

Jeremy Browne MP

Minister of State

February 2013


Prepared 7th February 2013