House of Lords - Explanatory Note
Extradition Bill - continued          House of Lords

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Clause 19: Earlier extradition to United Kingdom from non-category 1 territory

58.     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

59.     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.

60.     Subsection (1) requires the judge to consider:

  • whether the person was convicted in his presence or in his absence;

  • if he was convicted in his absence, whether he deliberately absented himself from the trial;

  • if he was convicted in his absence and did not deliberately absent himself from the trial, whether he would be entitled to a retrial or review amounting to a retrial if returned.

61.     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

62.     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

63.     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.

64.     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)):

  • the charge is disposed of (see clause 202 below) or withdrawn;

  • proceedings on the charge are discontinued; or

  • proceedings on the charge are discontinued with the option that a fresh prosecution on the same charge could be brought in the future.

65.     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)).

Clause 23: Person serving sentence in United Kingdom

66.     This clause applies if the judge is informed that the person who is the subject of a Part 1 warrant is also serving a custodial sentence in the United Kingdom (subsection (1)). Under these circumstances the judge is allowed to adjourn the extradition hearing until the sentence has been served (subsection (2)).

Clause 24: Extradition request

67.     This clause applies if during the extradition hearing the judge is notified that the Secretary of State has issued a certificate under clause 69 in respect of an extradition request, that request has not yet been disposed of and an order has been made under clause 181(2) for proceedings on the part 1 warrant to be deferred until the category 2 request has been disposed of (subsection (1)). (Clause 201 below gives the definition of the disposal of a Part 1 warrant and of an extradition request.)

68.     The judge is required, in these circumstances, to remand the person in custody or on bail. If he is remanded in custody the person may later be granted bail (subsections (2) and (3)).

Clause 25: Physical or mental condition

69.     This clause sets out what is to happen if the judge decides, at any time during the extradition hearing, that the person is not physically or mentally fit to be extradited (subsection (1)).

70.     If it appears to the judge that, by reason of the person's mental or physical condition, it would be unjust or oppressive to extradite him (subsection (2)), the judge must either order the person's discharge or adjourn the hearing until such time as the person's condition has improved to the extent that extradition would no longer be unjust or oppressive (subsection (3)).

Clause 26: Appeal against extradition order

71.     This clause gives a person a right to appeal against the decision of the judge to order extradition under Part 1 of the Bill.

72.     Subsection (1) explains that a person may appeal to the High Court against a decision of a judge to order extradition, except where (subsection (2)) the person has consented to his extradition (see clauses 45 and 47). Appeals may be made on a question of law or fact (subsection (3)) and notice of an appeal must be given to the High Court within 7 days of the extradition order being made by the judge (subsection (4)).

Clause 27: Court's powers on appeal under clause 26

73.     This clause sets out the powers available to the High Court following an appeal against the extradition order.

74.     The High Court may allow the appeal (subsection (1)) only if the conditions in subsection (3) or those in subsection (4) are met (subsection (2)). The conditions in subsection (3) are that the judge ought to have decided a question before him at the extradition hearing differently and, if he had done so, he would have been required to order the person's discharge.

75.     The conditions in subsection (4) are that:

  • an issue is raised or evidence is available that was not raised or available at the extradition hearing;

  • the issue or evidence would have resulted in the judge making a different decision at the hearing; and

  • this would have resulted in the judge ordering the person's discharge.

76.     The High Court must order the person's discharge and quash the order for his extradition if it allows the appeal (subsection (5)).

Clause 28: Appeal against discharge at extradition hearing

77.     This clause gives an authority of the requesting state a right to appeal against a decision at the extradition hearing to order the person's discharge.

78.     Subsections (1), (3) and (4) allow the authority that issued the Part 1 warrant to appeal to the High Court against the decision that resulted in the order to discharge the person. The appeal may be on any question of law or fact. The exception to this, in subsection (2), is when the discharge was made under clause 40, i.e. as a result of the warrant being withdrawn.

79.     The court must be notified of an appeal within 7 days of the order for the person's discharge being made (subsection (5)).

Clause 29: Court's powers on appeal under clause 28

80.     This clause sets out the powers available to the High Court following an appeal against any order to discharge the person at the extradition hearing.

81.     The High Court may allow the appeal (subsection (1)) only if the conditions in subsection (3) or those in subsection (4) are met (subsection (2)). The conditions in subsection (3) are that the judge ought to have decided a question before him at the extradition hearing differently and, if he had done so, he would not have been required to order the person's discharge.

82.     The conditions in subsection (4) are that:

  • an issue is raised or evidence is available that was not raised or available at the extradition hearing;

  • the issue or evidence would have resulted in the judge making a different decision at the hearing; and

  • as a result the judge would not have been required to order the person's discharge.

83.     If the High Court allows the appeal the order discharging the person is quashed and the case sent back to the judge with a direction to proceed as he would have been required to do if he had decided the relevant question differently. Subsection (6) defines a relevant question as one that resulted in the order for the person's discharge.

Clause 30: Detention pending conclusion of appeal under clause 28

84.     This clause sets out the arrangements for detaining a person if an authority of the requesting state gives notice of its intention to appeal against a decision at the extradition hearing to discharge the person.

85.     Subsection (1) states that this clause applies if, immediately after the judge orders the person's discharge, the judge is informed that the requesting authority intends to appeal under the provisions of clause 28 above. The judge must remand the person in custody or on bail, but he may later grant bail if the person is remanded in custody (subsections (2) and (3)). The appeal ceases to be pending, under subsection (4), when the earliest of any of these applies:

  • the proceedings on the appeal are discontinued;

  • the High Court dismisses the appeal and the court is not immediately informed that the authority intends to apply for leave to appeal to the House of Lords (except for Scotland);

  • the High Court dismisses the appeal (Scotland only - see subsection (5));

  • leave to appeal to the House of Lords has been granted but no appeal is brought by the authority within 28 days (except for Scotland);

  • there are no further avenues of appeal available to the authority.

Clause 31: Appeal to High Court: time limit for start of hearing

86.     This clause provides for the time limits within which the High Court must begin to hear an appeal under clause 26 or 28.

87.     Subsection (1) states that rules of court must prescribe the period within which the High Court must begin to hear the appeal. The period will start from the date on which the person was arrested under the Part 1 warrant, or the date of provisional arrest (subsection (2)). The High Court must begin to hear the appeal before the end of the period (subsection (3)).

88.     Subsection (4) explains what happens if the appeal is against a decision to order extradition (under clause 26) and the High Court does not begin to hear the case within the set time period. In these circumstances the appeal will be considered to have been allowed, the person must be discharged and the order for the person's extradition quashed. If the appeal is by an authority of the requesting state (under clause 28) and the High Court does not begin to hear the case within the set time period, the appeal will be considered to have been dismissed (subsection (5)).

Clause 32: Appeal to House of Lords

89.     This clause provides a right of appeal to the House of Lords

90.     An appeal can be made to the House of Lords from a decision of the High Court on an appeal brought under clause 26 or 28 (subsection (1)). It can be made by either the person who has been arrested under the Part 1 warrant or the authority that issued the warrant (subsection (2)). But it can be made only with the leave of the High Court or the House of Lords (subsection (3)). Under subsection (4), leave may be granted only if:

  • the High Court has certified that there is a point of law of general importance; and

  • the court granting leave considers the point to be one which should be considered by the House of Lords.

91.     An application for leave to the High Court must be made within 14 days of the date that the court makes its decision (subsection (5)) and an application for leave to the House of Lords made within 14 days of a High Court decision to refuse leave (subsection (6)). An appeal to the House of Lords must be brought within 28 days of leave being granted (subsection (7)). If it is not, the appeal is deemed to have been dismissed immediately after the end of the period permitted under subsection (7) (subsection (8)), ignoring any powers of a court to extend the period for bringing the appeal or to grant leave to take a step out of time (subsection (9)). The High Court has the power to grant bail to a person appealing or seeking leave to appeal under this clause (subsection (10)). Subsections (11) and (12) apply provisions of the Appellate Jurisdiction Act 1876 which concern the composition of the House of Lords for the hearing and determination of appeals.

92.     Subsection (13) states that this clause does not apply to Scotland. This is because the High Court of Justiciary (see clause 203 below) is the final court of criminal appeal in Scotland and so the House of Lords has no jurisdiction in Scottish criminal matters.

Clause 33: Powers of House of Lords on appeal under clause 32

93.     This clause sets out the powers available to the House of Lords on an appeal by the person who is the subject of the request or by the authority of the requesting state.

94.     Subsections (1) to (3) allow the House of Lords to allow or dismiss an appeal under clause 32 made by a person who is the subject of an extradition order. If the appeal is allowed an order for the person's discharge must be made and the order for his extradition quashed.

95.     Subsections (4) and (5) provide that if the House of Lords allows an appeal by the authority of the requesting state against a decision of the High Court to discharge a person, the House of Lords is required to quash the order discharging the person and order his extradition.

96.     Subsections (6) to (9) apply where the authority of the requesting state appeals successfully to the House of Lords against a decision of the High Court to dismiss its earlier appeal against the discharge of a person at the extradition hearing. If the judge would have been required to order the person's extradition had he reached a different decision on the question which led to the order for the fugitive's discharge (in other words, if it was the final matter on which the judge was required to take a view), then the House of Lords must quash the discharge order and order the person to be extradited. Otherwise, the House of Lords must remit the case to the judge and require him to proceed as he would have been required to do if he had reached a different decision on the question which resulted in the fugitive's discharge.

Clause 34: Appeals: general

97.     This clause provides that a decision of a judge under this Part can be questioned only by means of the appeals procedure set out in this Part of the Bill.

Clause 35: Extradition where no appeal

98.     This clause gives the time limit for a person's extradition where he does not appeal against the extradition order.

99.     Subsection (1) states that this clause applies where the judge has ordered extradition and no appeal has been lodged within 7 days, ignoring any powers of a court to extend the period for giving notice of appeal or to grant leave to take a step out of time (see subsection (6)). It does not apply where a person's extradition is ordered with his consent, under the provisions of clause 45 or 47 (subsection (2)). Subsections (3) to (5) provide that the person must be extradited within 10 days of the date the judge makes the order, or if the judge and the requesting state agree a later date, 10 days starting from the later date. If the deadlines are not complied with the judge must, on the person's application, order his discharge, unless reasonable cause is shown for the delay.

Clause 36: Extradition following appeal

100.     This clause provides the time limit for extraditing a person subject to an extradition order where an appeal has been brought and the outcome is that he is to be extradited.

101.     Subsection (1) states that this clause applies where an appeal to the High Court under clause 26 has been brought and the result of the final decision on the appeal is that the person is to be extradited. Subsections (2) and (3) require the person to be extradited within 10 days of the date on which the appeal decision becomes final or proceedings are discontinued, or, if the relevant court which made the appeal decision and the requesting state agree a later date, 10 days starting from the later date. If the deadlines are not complied with the judge must, on the person's application, order his discharge, unless reasonable cause is shown for the delay (subsection (8)). Subsection (4) defines the relevant court as the High Court, where there is no appeal to the House of Lords, or the House of Lords if there is such an appeal. Subsection (5) explains that the decision of the High Court becomes final:

  • when the period permitted for applying to the High Court for leave to appeal to the House of Lords ends, if no application for leave is made;

  • when the period permitted for applying to the House of Lords for leave to appeal to it ends, if leave is refused by the High Court and there is no application for leave to the House of Lords;

  • when the House of Lords refuses leave to appeal;

  • after 28 days from the day on which leave to appeal to the House of Lords is granted, if no such appeal is brought in that time.

102.     For the purposes of determining when the decision of the High Court is final, any powers of a court to extend the period for applying for leave to appeal or to grant leave to take a step out of time must be ignored (subsection (6)).

103.     The decision of the House of Lords is immediately final (subsection (7)).

104.     Subsection (9) includes the relevant modifications for this clause to apply to Scotland. For this purpose the relevant court in this clause will always be the High Court and all references to the House of Lords are omitted.

Clause 37: Undertaking in relation to person serving sentence in United Kingdom

105.     This clause allows the appropriate judge to make an extradition order subject to a condition that extradition will not take place until he has received certain undertakings on behalf of the category 1 territory that submitted the extradition request. This clause applies if the person is serving a custodial sentence in the United Kingdom (subsection (1)). However, this clause does not apply if the extradition order was made under clause 45 or 47 after the person has consented to his extradition (subsection (2)).

106.     The judge can specify the terms of any such undertaking. The terms include terms that the person is kept in custody during the entire proceedings in the category 1 territory. He may also require the person to be returned to the United Kingdom to serve his domestic sentence, on conclusion of those proceedings or after serving any sentence(s) imposed in the category 1 territory (subsections (3) to (5)).

107.     Where the judge imposes a condition on an extradition order under the power given by this clause, and clause 35 (extradition where no appeal) applies, the 10-day period described in clause 35 begins on the day the judge receives the undertaking. Where a condition is imposed and clause 36 (extradition following appeal) applies, the 10 days start from the day that the appeal decision becomes final or, if later, the day the judge receives the undertaking (subsection (6)).

Clause 38: Extradition following deferral for competing claim

108.     This clause applies where a person's extradition has been deferred, in the event of a competing Part 1 warrant or category 2 extradition request, and the judge subsequently orders that extradition to go ahead under clause 183 (subsection (1)). However, this does not apply if the original order for the person's extradition was made under clause 45 or 47 after he had consented to his extradition (subsection (2)).

109.     Where these circumstances occur and no appeal is made (see clause 35, extradition where no appeal), the 10-day period described in clause 35 begins on the day the judge makes the order under clause 183 (subsection (3)). Where this situation occurs and there is an appeal (see clause 36, extradition following appeal), the 10 days start from the day that the appeal decision becomes final or, if later, the day the judge makes the order under clause 183 (subsection (4)).

Clause 39: Position where asylum claimed

110.     This clause sets out what is to happen where a person makes an asylum claim at any time during extradition proceedings under this Part of the Bill. This clause applies where such a claim is made by the person at any time between the issue of a certificate on a Part 1 warrant under clause 2 and the person's extradition in pursuance of that warrant (subsections (1) and (2)).

111.     Subsection (3) states that the person in question must not be extradited until his asylum claim is finally determined. (Clauses 35, 36, 46 and 48 set out the procedure for a person's extradition and take effect subject to this subsection.) Subsection (4) explains that an asylum claim is finally determined, if it is allowed, when the Secretary of State has made this decision. Where the Secretary of State rejects the claim, it is finally determined either when the period allowed to appeal against the decision has lapsed (and no appeal has been brought), or when the appeal is finally determined, withdrawn or abandoned (subsection (5)). An appeal has been finally determined when a final decision on it has been made, it has been withdrawn or abandoned and there is no further possibility of appeal or applying for leave to appeal. The remittal of an appeal does not amount to final determination (subsections (6) and (7)). Under subsection (8) the possibility of leave to appeal out of time against the Secretary of State's decision on an asylum claim must be ignored.

112.     Under subsection (9) the Secretary of State, if he rejects the asylum claim, may certify that the claim is manifestly unfounded. In this case the claim is finally determined when it is rejected and subsection (5) (above) does not apply. Where an asylum claim is certified in this way, the person may appeal against the decision to reject the claim after his extradition. If he does so the appeal must be considered as if he had not been removed from this country (subsection (10)).

113.     For the purposes of this clause "asylum claim" has the meaning given by section 113 of the Nationality, Immigration and Asylum Act 2002 (subsection (11)). This is a claim made by a person to the Secretary of State that to remove the person or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its protocol.

Clause 40: Withdrawal of warrant before extradition

114.     This clause applies where the judge is informed that a Part 1 warrant is withdrawn the person is extradited or discharged.

115.     In these circumstances the judge is required to order the person's discharge (subsection (3)). Subsection (4) requires the judge to inform the person of his discharge if the person is not present when it is ordered.

Clause 41: Withdrawal of warrant while appeal to High Court pending

116.     This clause applies if the High Court is informed that a Part 1 warrant is withdrawn before the end of the appeal hearing.

117.     Where these circumstances occur and the appeal is brought by the person (under clause 26), the court is required to order his discharge and quash the extradition order. If the appeal has been brought by the issuing authority (under clause 28) the court must dismiss the appeal (subsection (3)). Subsection (4) requires the court to inform the person of his discharge if he is not present when it is ordered.

Clause 42: Withdrawal of warrant while appeal to House of Lords pending

118.     This clause applies if the House of Lords is informed that a Part 1 warrant is withdrawn before the House of Lords has given its decision on the case.

119.     Where these circumstances occur and the appeal is brought by the person, the House of Lords is required to order his discharge and quash the extradition order if one has been made (subsection (3)). If the appeal has been brought by the issuing authority the House of Lords must dismiss the appeal under subsection (4). Subsection (7) requires the House of Lords to inform the person of his discharge if he is not present when it is ordered.

 
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Prepared: 27 March 2003