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Arrangement of Clauses (Contents)
These notes refer to the Extradition Bill as introduced in the House of Commons on 14th November 2002 [Bill 2]
1. These explanatory notes relate to the Extradition Bill as introduced in the House of Commons on 14 November 2002. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. These notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. This Bill reforms the law on extradition.
4. Extradition takes place when, at the request of another jurisdiction, a person accused or convicted of a serious offence is returned by the United Kingdom to that jurisdiction, or where a person is returned from another jurisdiction, at the United Kingdom's request, to stand trial or serve a custodial sentence. (This is distinct from deportation where the country in which the person is present initiates the removal process.)
5. Crime, particularly serious crime, is becoming increasingly international in nature and criminals can flee justice by crossing borders with increasing ease. Improved judicial co-operation between nations is needed to tackle this development. The reform of the United Kingdom's extradition law is designed to contribute to that process.
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6. Extradition is an important tool in dealing with international crime: no one should be able to escape justice by simply crossing a border. The law should provide a quick and effective framework to extradite a person to the country where he is accused or has been convicted of a serious crime, provided that this does not breach his fundamental human rights.
7. Current United Kingdom extradition legislation was enacted in 1989 but the Extradition Act 1989 is essentially a consolidation of three earlier pieces of legislation: Part 1 of the Criminal Justice Act 1988, the Fugitive Offenders Act 1967 and the Extradition Act 1870 (as amended).
8. The Government set out its proposals to reform the law on extradition in a consultation document "The Law on Extradition: A Review" in March 2001. It was the outcome of an exercise started in 1997 to consider the legislative requirements of two European Union Conventions on Extradition. However, it developed into a much more extensive inquiry, following the adoption at the Tampere Special European Council in October 1999 of the principle of mutual recognition of judicial decisions by Member States of the European Union.
9. The publication of the Review followed an extensive period of consultation with officials from a number of organisations including the Crown Prosecution Service, Lord Chancellor's Department, Bow Street Magistrates' Court, Metropolitan Police, Foreign and Commonwealth Office and others. Its proposals, which were aimed at modernising arrangements between the United Kingdom and its extradition partners, included:
10. There were 22 written responses to the proposals contained in the document, seven of which requested that their responses should not be published. The remaining 15 were published on 24 October 2001. Many detailed comments were made, but overall, the majority of those that responded supported the Review's proposals.
11. The Bill makes provision to give effect to the proposals in the Review, although there are some changes which reflect the results of the consultation exercise and developments since the Review was published. (Accession to the 1995 and 1996 European Union Conventions on Extradition was approved by both Houses of Parliament on 19 December 2001.) The proposals in the Review have also been overtaken by progress in respect of extradition to other European Union Member States. This Bill includes provisions implementing the following European Community Legislation: the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). A Transposition Note setting out how the Government will transpose into UK law the main elements of this framework decision is available from the libraries of both Houses of Parliament, or from the Home Office:
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12. The Extradition Bill was published in draft form on 27 June 2002 and was open to public consultation until 30 September 2002. There were 11 responses to the consultation documents, nine of which were published and are available from the libraries of both Houses of Parliament, or on the Home Office website (above). (Two contributors asked for their responses not to be made public.) The Bill therefore includes a number of amendments in the light of the comments received since it was published in draft.
13. The Bill makes provision for new extradition procedures, the main proposals of which are:
EXTRADITION TO CATEGORY 1 TERRITORIES
Clause 1: Extradition to category 1 territories
14. This clause defines the territories that are covered by Part 1 of the Bill.
15. Subsections (1) and (2) explain that Part 1 of the Bill deals with extradition from the United Kingdom to those territories designated as category 1 territories by Order in Council.
Clause 2: Part 1 warrant and certificate
16. This clause sets out the arrangements for certifying a Part 1 warrant when it is received by the designated authority (defined below).
17. Subsection (2) defines a Part 1 warrant as an arrest warrant that contains either the statement in subsection (3) or the statement in subsection (4). The subsection (3) statement must state that the person in question is accused in the territory issuing the warrant of the commission of a specified offence and that the warrant has been issued for the purposes of arrest and prosecution. The subsection (4) statement must state that the person is unlawfully at large after conviction of a specified offence by a court in the territory issuing the warrant and that the warrant has been issued for the purposes of his being sentenced or of his serving a custodial sentence in respect of that offence. Subsection (5) gives the designated authority power to issue a certificate if it believes that the Part 1 warrant has been issued by an appropriate recognised authority in the category 1 territory. Subsection (6) requires the certificate to verify that the warrant has been issued by a recognised authority in the issuing state.
18. Subsection (7) defines the designated authority as being the authority that has been specified by Order in Council to perform this role. Subsection (8) enables more than one authority to be designated and enables an Order in Council to specify authorities for different parts of the UK. (The authority for the UK is intended to be the National Criminal Intelligence Service and, additionally in Scotland only, the Crown Office.)
Clause 3: Arrest under certified Part 1 Warrant
19. This clause sets out the procedure for arrest on the basis of a certified warrant.
20. Subsection (2) provides that an arrest on the basis of a Part 1 warrant can be made anywhere in the United Kingdom, by a police constable or other appropriate person and without the arresting officer having possession of the warrant or a copy at the time. An appropriate person is someone who has been given authority to perform this role by the Secretary of State (subsection (3)). The Secretary of State designates such persons by statutory instrument subject to the affirmative resolution procedure in both Houses of Parliament (see clause 204).
Clause 4: Person arrested under Part 1 warrant
21. This clause applies when a person has been arrested under the powers conferred in clause 3 (subsection (1)).
22. Subsection (2) requires a copy of the warrant to be shown to the arrested person, if it was not shown to the person at the time of arrest, as soon as is practicable thereafter, at the person's request. Subsection (3) then requires the arrested person to be brought before the appropriate judge (defined in clause 66) as soon as practicable. If these requirements are not met the arrested person must be taken to be discharged (subsection (4)). A person is considered to be in legal custody until he is brought before the judge or discharged (subsection (5)).
Clause 5: Provisional arrest
23. This clause sets out the procedure for arrest where there are reasonable grounds to believe that a Part 1 warrant has been, or shortly will be, issued by a recognised authority in a category 1 territory.
24. Subsection (1) describes who may make an arrest in these circumstances and where the arrest may take place. As with an arrest under clause 3, a constable or other appropriate person may make a provisional arrest anywhere in the United Kingdom. As in the clause 3 case, an appropriate person is someone who has been given authority to perform this role by the Secretary of State (Subsection (2)). The Secretary of State designates such persons by statutory instrument subject to the affirmative resolution procedure in both Houses of Parliament (see clause 204).
Clause 6: Person arrested under clause 5
25. This clause applies when a person has been arrested under the powers conferred in clause 5 (subsection (1)).
Subsection (2) requires any person provisionally arrested to be brought, within 48 hours of arrest (subsection (3)), before the appropriate judge. Specific documents must also be produced to the judge at this time, the relevant Part 1 warrant and certificate (as described in clause 2) (subsection (4)). 26.
27. If these requirements are not met the arrested person must be taken to be discharged (subsection (5)). A person is considered to be in legal custody until he is brought before the judge or discharged (subsection (6)).
Clause 7: Identity of person arrested
28. This clause requires the judge to establish that the arrested person is the person in respect of whom the warrant was issued.
29. Subsection (1) explains that this clause applies to a person arrested, either under a Part 1 warrant or who has been provisionally arrested, and duly brought before the judge. Subsection (2) requires the judge to decide if the person is the person in respect of whom the warrant was issued. If the judge decides he is not the person then he must order his discharge (subsection (3)). If the judge decides he is the person then he must proceed under the provisions of clause 8 below (subsection (4)).
30. Subsection (5) gives the judge the same powers as a magistrates' court would have if the proceedings were a summary trial in England and Wales. In Scotland the judge is to have the same powers as if the proceedings were summary proceedings (subsection (6)). In Northern Ireland the judge has the same powers as a magistrates' court would have if the proceedings were the hearing and determination of a complaint (subsection (7)). These powers include the power to adjourn the proceedings. If the judge does adjourn the proceedings he must remand the arrested person on bail or in custody (subsection (8)). If he remands the person in custody he may subsequently grant him bail (Subsection (9)).
Clause 8: Remand etc.
31. This clause deals with the arrangements for the remand of the arrested person and the requirement on the District Judge to explain that the person may consent to his extradition.
32. Subsection (1) requires the judge to:
33. Under subsection (3) the required information about consent is:
Clause 9: Judge's powers at extradition hearing
34. The clause provides for the powers available to the judge at the extradition hearing under this Part of the Bill.
35. The powers available to the judge are as nearly as possible the same as those available to a magistrates' court at a summary trial in England and Wales. In Scotland the judge has the same powers as if the proceedings were summary proceedings; in Northern Ireland the judge has the same powers as a magistrates' court would have in the hearing and determination of a complaint (subsections (1) to (3)). The judge therefore has the power to adjourn the hearing and remand a person in custody or on bail (subsections (4) and (5)).
Clause 10: Initial stage of extradition hearing
36. This clause requires the judge to consider whether the offence specified in the warrant is an extradition offence, where a person is brought before him at an extradition hearing under this Part of the Bill.
37. If the judge is satisfied that the offence is an extradition offence then he must proceed to consider whether there are any statutory bars to extradition (subsection (4)), under the provisions of clause 11. If the judge decides that the offence is not an extradition offence then he must order the person's discharge (subsection (3)).
Clause 11: Bars to extradition
38. This clause establishes a number of statutory bars to extradition. The judge must consider whether any of these bars prevent the extradition of the person. The person must be discharged if any of the bars are applicable.
39. The bars are:
40. Clauses 12 to 19 below explain what is meant by each bar (subsection (2)). Subsection (3) requires the judge to order the person's discharge if any of the bars in subsection (1) apply. If the judge decides that none of the statutory bars apply and it is a conviction case then he must proceed under clause 20 (subsection (4)). If the judge decides that none of the bars apply and it is an accusation case then subsection (5) requires that he proceed to consider human rights issues under clause 21.
Clause 12: Rule against double jeopardy
41. The effect of this clause is to bar the extradition of a person if he would be entitled to be discharged if he were charged with the offence in question in the part of the United Kingdom where the judge exercises jurisdiction because of a previous acquittal or conviction. This prevents a person from being prosecuted twice in different jurisdictions for the same offence.
Clause 13: Extraneous considerations
42. The effect of this clause is to bar a person's extradition if the Part 1 warrant has been issued for the purpose of prosecuting or punishing that person for reasons of his race, religion, nationality or political opinions. His extradition would also be barred if he would be prejudiced at trial, or his liberty restricted, for any of the same reasons.
Clause 14: Age
43. The effect of this clause is to bar the extradition of a person who would have been under the age of criminal responsibility, had the offence occurred in the part of the United Kingdom where the hearing is taking place, at the time the extradition offence was committed.
Clause 15: Death penalty
44. The effect of this clause is to bar the extradition of a person who has been or could be sentenced to death, unless an assurance has been received that the sentence will not be carried out.
45. Subsection (1) prevents the extradition of a person who has been or could be sentenced to death in the requesting state. This does not apply where the Secretary of State receives an assurance that the death penalty will not be carried out (where imposed) or will not be imposed (subsection (2)).
Clause 16: Hostage-taking considerations
46. A person's extradition is barred if the category 1 territory requesting extradition is a party to the Hostage-taking Convention and certain conditions apply. These are that if extradited communication between the person and the appropriate (consular) authorities would not be possible and the conduct constituting an extradition offence would constitute an offence under section 1 of the Taking of Hostages Act 1982 or an attempt to commit such an offence (subsection (1)).
47. Subsections (2) to (4) make interpretative provision relating to the hostage-taking bar to surrender.
Clause 17: Speciality
48. The speciality rule is a long-standing protection in extradition. It prohibits a person from being prosecuted after his extradition for an offence committed beforehand, unless the offence is the one in respect of which he was extradited, the consent of the requested state is obtained or the person has had an opportunity to leave the country to which he was extradited.
49. The effect of this clause is to bar extradition if there are no speciality arrangements with the category 1 territory where the Part 1 warrant was issued (subsection (1)).
50. Subsection (2) provides that there are considered to be speciality arrangements in place if a person may be dealt with in the requesting territory for an offence committed before his extradition only if the offence falls within subsection (3) or the condition in subsection (4) is met. The offences in subsection (3) are:
51. The condition in subsection (4) is that the person is given the opportunity to leave the category 1 territory and does not do so within 45 days (subsection (5)) or leaves within that period and then returns to that country.
52. Under subsection (6) speciality arrangements may be made with any Commonwealth country or British overseas territory in category 1. This could be for a specific case or general arrangements. A certificate issued by or under the authority of the Secretary of State, stating the existence and terms of such arrangements, is conclusive evidence of those matters.
Clause 18: Earlier extradition to United Kingdom from category 1 territory
53. A person's extradition to a category 1 territory is barred by reason of his earlier extradition to the United Kingdom from another category 1 territory (the extraditing territory), unless consent to his further extradition has been given on behalf of the extraditing territory. This applies only if the extradition arrangements between the United Kingdom and the extraditing territory require consent to be given.
Clause 19: Earlier extradition to United Kingdom from non-category 1 territory
54. A person's extradition is barred by reason of his earlier extradition to the United Kingdom from a non-category 1 territory (the extraditing territory), unless consent to his further extradition has been given on behalf of the extraditing territory. This applies only if the extradition arrangements between the United Kingdom and the extraditing territory require consent to be given to dealing with him in the United Kingdom for the offence under consideration.
Clause 20: Case where person has been convicted
55. This clause deals with conviction cases - that is those where the fugitive has already been tried for the offence for which extradition is sought and has been found guilty.
56. Subsection (1) requires the judge to consider:
57. Subsection (2) requires the judge to order the person's discharge if he decides that the person was convicted in his absence, was not deliberately absent from the trial and is not entitled to a retrial. Subsection (3) requires the judge to proceed under clause 21 if he decides that the person was convicted in his presence, was convicted in his absence and deliberately absented himself from the trial, or was convicted in his absence, did not deliberately absent himself from the trial but would be entitled to a retrial.
Clause 21: Human rights
58. Under this clause the judge must decide whether the person's extradition would be compatible with his human rights. The rights in question are those set out in the European Convention on Human Rights, incorporated into United Kingdom domestic legislation by the Human Rights Act 1998. The judge must order the person's extradition if it would be compatible with these rights (subsection (3)), but must order his discharge if it would not (subsection (2)). If the judge orders the person's extradition he must remand the person in custody or on bail pending the extradition (subsections (4) and (5)).
Clause 22: Person charged with offence in United Kingdom
59. This clause applies if a person who is subject to an extradition request has also been charged with a domestic offence in the United Kingdom.
60. Subsection (1) explains that this clause applies if the judge is informed that the person has been charged with an offence in the United Kingdom. In these circumstances the judge must adjourn the extradition hearing until (subsection (2)):
61. Where the person is given a custodial sentence for the domestic offence, the extradition hearing can be adjourned until the sentence has been served (subsection (3)). If the judge has considered the question of double jeopardy under clause 11 before adjourning the hearing, he must consider it again (subsection (4)).
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