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

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Clause 43: Competing Part 1 warrants

120.     This clause relates to the situation where two Part 1 warrants are issued in respect of the same person.

121.     Under subsections (1) to (3) this clause applies if, at any time during proceedings on a Part 1 warrant before the person is extradited or discharged, the judge is informed that:

  • another Part 1 warrant has been issued in respect of the same person;

  • the judge (or another judge in the United Kingdom) is required to deal with the other warrant; and

  • the competing warrant has not yet been disposed of.

122.     The judge may order proceedings on the warrant under consideration to be deferred pending disposal of the other warrant. Where an order has already been made for the person's extradition on the basis of the first warrant the judge may order that extradition to be deferred pending disposal of the other warrant (subsection (4)). Subsection (5) means that the judge, if he makes such an order, is required to remand the person in custody or on bail, if the person is not already in custody or on bail. If the person is remanded in custody he may later be granted bail (subsection (6)).

123.     In deciding whether to make an order under subsection (4) the judge must take account of the following issues (subsection (7)):

  • the relative seriousness of the offences;

  • the place each offence was committed or is alleged to have been committed;

  • the date each warrant was issued; and

  • whether the person is accused of the offences or unlawfully at large after conviction of an offence.

Clause 44: Consent to extradition

124.     Subsections (1) and (2) allow a person arrested under Part 1 of the Bill to consent to extradition to the category 1 territory issuing the warrant. A person who consents is considered to have waived his right to speciality protection and can therefore be proceeded against in the category 1 territory for any offences committed before his extradition (subsection (3)). Consent must be given to the appropriate judge and recorded in writing; once given consent cannot be revoked (subsection (4)).

125.     Subsections (5) and (6) provide that a person may only give his consent to extradition under certain circumstances. These are that the person is legally represented at the time he consents, or that he has been informed of his right to apply for legal aid but has failed to exercise this right, or legal aid has been refused or withdrawn. This has the effect that no person can consent to his extradition without having received, or having had the opportunity to receive, legal advice. Subsections (7) and (8) provide definitions for the purposes of this clause.

Clause 45: Extradition order following consent

126.     This clause provides for the extradition of a person who consents to his extradition.

127.     If a person consents under clause 44 the judge must remand the person in custody or on bail, although he may later grant bail if he initially remands the person in custody (subsections (1) to (3)). The judge does not have to set a date for the extradition hearing if he has not already done so (subsection (4)). If the extradition hearing has started, the judge is no longer required to proceed with it (subsection (5)). He must order the person's extradition within 10 days of consent, subject to clauses 47 and 50 below. If this is not done the judge must, on the person's application, discharge him (subsections (6) to (8)).

Clause 46: Extradition to category 1 territory following consent

128.     This clause applies when a judge has ordered a person's extradition under clause 45, following that person's consent to extradition (subsection (1)). Extradition must, under subsection (2), take place within the required period. This is 10 days from the date the order is made or, if the judge and the category 1 territory agree a later date, 10 days from the agreed date (subsection (3)).

129.     If the person has not been extradited within the 10-day period, the judge must, on the person's application, order his discharge, unless reasonable cause is shown for the delay (subsection (4)).

130.     Subsection (5) explains what is to happen when, after the judge has ordered a person's extradition following their consent, the relevant Part 1 warrant is withdrawn. Where the judge is informed of the withdrawal and the person has not yet been extradited, the requirement in subsection (2) for the person to be extradited within the required period no longer applies and the judge must order the person's discharge.

Clause 47: Other warrant issued following consent

131.     This clause provides for the situation where the person has consented to his extradition under clause 44 and a second Part 1 warrant is issued in respect of him before the judge orders his extradition (subsections (1) and (2)).

132.     The judge is not required to order the person's extradition, but he may do so or he may postpone the proceedings until the other warrant has been disposed of (subsection (3)). This is subject to clause 50 below (subsection (4)). In deciding whether or not to order extradition he must also take into account (subsection (5)) the following issues:

  • the relative seriousness of the offences;

  • the place each offence was committed or is alleged to have been committed;

  • the date each warrant was issued; and

  • whether the person is accused of having committed the offences or of being unlawfully at large after conviction.

Clause 48: Other warrant issued: extradition to category 1 territory

133.     This clause applies when a judge is informed that another Part 1 warrant has been issued and has ordered a person's extradition under clause 47(3)(a), following that person's consent to extradition on the basis of the first warrant (subsection (1)). Extradition must, under subsection (2), take place within the required period. This is 10 days from the date the order is made or, if the judge and the category 1 territory agree a later date, 10 days from the agreed date (subsection (3)).

134.     If the person has not been extradited within the 10-day period, the judge must, on the person's application, order his discharge, unless reasonable cause is shown for the delay (subsection (4)).

135.     Subsection (5) explains what is to happen when, after the judge has ordered a person's extradition following his consent, the first Part 1 warrant is withdrawn. Where the judge is informed of the withdrawal and the person has not yet been extradited, the requirement in subsection (2) for the person to be extradited within the required period no longer applies. Furthermore, the judge must order the person's discharge.

Clause 49: Other warrant issued: proceedings deferred

136.     The context of this clause is that a person has consented to his extradition under a Part 1 warrant but has not yet been extradited. This clause applies if the judge is then informed that a competing Part 1 warrant has been issued and he orders, under clause 47(3)(b), further proceedings on the first warrant to be deferred until the competing warrant has been disposed of (subsection (1)).

137.     In these circumstances the judge must remand the person in custody or on bail. If he remands the person in custody he may later grant bail (subsections (2) and (3)).

138.     If an order is subsequently made under clause 182 for the deferred proceedings on the first warrant to be resumed, the judge then has 10 days from the time that order is made to order the person's extradition, under subsection (4).

Clause 50: Extradition request following consent

139.     This clause applies if the person consents to his extradition under a warrant but, before the judge orders his extradition, the judge is informed that an extradition request in respect of the person has been made by a category 2 territory and that no order has yet been made under clause 181(2) as to which of the warrant and the request is to proceed first (subsections (1) and (2)).

140.     If the judge has been so informed he must not make an order for extradition to the category 1 territory on the basis of consent, until he is informed what order has been made under clause 181(2) (subsection (3)).

141.     If the order made under clause 181(2) is for proceedings on the Part 1 warrant to be deferred until the Part 2 request has been disposed of, the judge must remand the person in custody or on bail (subsection (4)). If he remands the person in custody he may later grant bail (subsection (5)). If an order is subsequently made under clause 182 for the resumption of deferred proceedings on the Part 1 warrant, the judge then has 10 days from the time that order is made to order the person's extradition, under subsection (6).

142.     If, however, the order made under clause 181(2) is for proceedings on the competing request to be deferred until the Part 1 warrant has been disposed of, the judge must, under subsection (6), order the person's extradition to the category 1 territory within 10 days of being informed of the order.

Clause 51: Undertaking in relation to person serving sentence

143.     This clause applies where an extradition order is made under clause 45(6) or 47(3)(a) after a person has consented to his extradition, and that person is serving a custodial sentence in the United Kingdom. (subsection (1)). It allows the 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 (subsection (2)).

144.     The judge can specify the terms of any such undertaking. The terms may include terms that the person is kept in custody during the entire proceedings in the category 1 territory. The judge 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 in respect of either the extradition offence or any other offence in respect of which he is permitted to be sentenced in the category 1 territory (subsections (3) and (4)).

145.     Where the judge imposes a condition on an extradition order under the power given by this clause, the 10-day period in which the person is to be extradited (under clause 46(2) or 48(2)) begins on the day the judge receives the undertaking (subsection (5)).

Clause 52: Extradition following deferral for competing claim

146.     This clause applies where a person has consented to his extradition, which has then been deferred because of a competing Part 1 warrant or category 2 extradition request, and the judge subsequently orders that extradition is to go ahead under clause 183(3)(a) (subsection (1)).

147.     Where these circumstances occur the 10-day period in which the person is to be extradited (under clause 46(2) or 48(2)) begins on the day the judge makes the order under clause 183(3)(a) (subsection (2)).

Clause 53: Request for consent to other offence being dealt with

148.     Subsection (1) states that this clause applies if, after a person has been extradited under this Part of the Bill, a judge receives a certified request from a category 1 territory asking for his consent to the person being prosecuted for an offence other than that for which the person was extradited. The relevant designated authority in the United Kingdom may, under subsection (2), certify such a request if it is satisfied that it has come from the proper authority for making such requests in that country.

149.     The consent hearing is required to begin within 21 days of the designated authority receiving the request (subsection (4)). The judge has the power to extend this time if he considers there are exceptional circumstances and he may do so more than once (subsection (5)), and even after the 21 days has passed (subsection (6)).

150.     The judge is required to refuse consent under subsection (7) if the hearing has not started by the end of the given time and the person applies to the judge and can show reasonable cause for consent to be refused. Subsection (8) provides for the judge to adjourn the hearing at any time and subsection (9) gives the definition of the consent hearing as that at which the judge is to consider the request for consent.

Clause 54: Questions for decision at consent hearing

151.     This clause gives the questions that the judge is required to decide at a consent hearing under clause 53.

152.     The judge must decide whether his consent is necessary (subsection (1)) and, if it is not, inform the requesting authority of this decision (subsection (2)). If the judge decides that consent is necessary, he must then consider whether the offence to which the request relates is an extradition offence (subsection (3)). If he decides that it is not an extradition offence, consent must be refused (subsection (4)). If the offence is an extradition offence the judge must decide, in accordance with subsection (5), whether he would have ordered the person's return under clauses 11 to 25 if the person were in the United Kingdom. If the judge decides that he would have done so, he must give consent (subsection (6)). If he decides that he would not have done so, consent must be refused (subsection (7)).

Clause 55: Request for consent to further extradition to category 1 territory

153.     This clause applies if a person has been extradited to a category 1 territory and a judge receives a certified request for his consent to the person's extradition to another category 1 territory (subsection (1)). The relevant designated authority in the United Kingdom may, under subsection (2), certify such a request if it is satisfied that it has come from the proper authority for making such requests in that country.

154.     The consent hearing is required to begin within 21 days of the designated authority receiving the request (subsection (4)). The judge has the power to extend this time if he considers there are exceptional circumstances and he may do so more than once (subsection (5)), and even after the 21 days has passed (subsection (6)).

155.     The judge is required to refuse consent under subsection (7) if the hearing has not started by the end of the given time, the person applies to the judge and he can show reasonable cause for consent to be refused. Subsection (8) provides for the judge to adjourn the hearing at any time and subsection (9) gives the definition of the consent hearing as that at which the judge is to consider the request for consent.

Clause 56: Questions for decision at consent hearing

156.     This clause gives the questions that the judge is required to decide at a consent hearing under clause 55.

157.     The judge must decide whether his consent is necessary (subsection (1)) and, if it is not, inform the requesting authority of this decision (subsection (2)). If the judge decides that consent is necessary, he must then consider whether the offence to which the request relates is an extradition offence in relation to the further category 1 territory (subsection (3)). If he decides that it is not an extradition offence, consent must be refused (subsection (4)). If the offence is an extradition offence the judge must decide, in accordance with subsection (5), whether he would have ordered the person's return under clauses 11 to 25 if the person were in the United Kingdom. If the judge decides that he would have done so, he must give consent (subsection (6)). If he decides that he would not have done so, consent must be refused (subsection (7)).

Clause 57: Consent to further extradition to category 2 territory

158.     Subsection (1) states that the clause applies if a person has been extradited to a category 1 territory and the judge receives a certified request for consent to extradite the person from there to a category 2 territory. The relevant designated authority in the United Kingdom may, under subsection (2), certify such a request if it is satisfied that it has come from the proper authority for making such requests in the category 1 territory.

159.     Subsection (4) requires the judge to decide whether the offence is an extradition offence, as defined in clause 137, in relation to the category 2 territory. If he decides that it is not, he must refuse consent (subsection (5)). If the offence is an extradition offence then the judge must decide whether he would send the case to the Secretary of State under clauses 78 to 90 if the person were in the United Kingdom (subsection (6)). If he decides that he would, the judge must send the case to the Secretary of State to make the decision on consent (subsection (7)). If he decides that he would not, consent must be refused (subsection (8)).

160.     If the case is sent to the Secretary of State, he must decide, under subsections (9) to (11), whether the person's extradition would have been barred for reasons relating to the death penalty, speciality or his earlier extradition from another territory (see clauses 93 to 95), if the person were in the United Kingdom. If it would not have been barred, consent must be given. If it would have been prohibited the Secretary of State must refuse consent to re-extradition.

161.     For the purposes of this clause, where the appropriate judge is the sheriff of Lothian and Borders, references to the Secretary of State are to be read as references to the Scottish Ministers (subsection (12)).

Clause 58: Return of person to serve remainder of sentence

162.     This clause applies where a person who was serving a custodial sentence in the United Kingdom is extradited and then returned to this country to serve the rest of his domestic sentence (subsection (1)). In this situation the person is liable to be detained to serve the sentence and if he is at large he is unlawfully at large (subsections (2) and (3)). Time spent out of the United Kingdom in connection with the person's extradition does not count as time served towards his sentence in the United Kingdom (subsection (4)).

Clause 59: Costs where extradition ordered

163.     This clause allows for an order for costs to be made against a person who unsuccessfully challenges proceedings held under this Part of the Bill. This is based on section 18 of the Prosecution of Offences Act 1985, which allows a court in a criminal case to make an award of costs against the accused.

164.     Subsection (1) states that this clause applies when any of these occur:

  • a person's extradition is ordered in pursuance of a Part 1 warrant;

  • the High Court dismisses a person's appeal against an order for his extradition (brought under clause 26);

  • the High Court or House of Lords refuses a person leave to appeal a decision of the High Court under clause 32;

  • the House of Lords dismisses a person's appeal under clause 32.

165.     In each of the above cases the relevant judge or court has the power to make an order for the person to pay costs that he/it considers just and reasonable (subsections (2) and (3)). Such an order for costs must include the amount to be paid and may include the name of the person to whom the costs are to be paid (subsection (4)).

Clause 60: Costs where discharge ordered

166.     This clause allows an order for costs to be made in favour of a person who is discharged or taken to be discharged under this Part of the Bill.

167.     Subsection (1) states that this clause applies when any of these occur:

  • a person's discharge is ordered under Part 1;

  • a person is taken to be discharged under this Part;

  • the High Court dismisses an appeal against an order for a person's discharge (brought under clause 28);

  • the High Court or House of Lords refuses the authority which issued a Part 1 warrant leave to appeal a decision of the High Court under clause 32;

  • the House of Lords dismisses the appeal of the authority which issued a Part 1 warrant under clause 32.

168.     In each of the above cases the relevant judge or court has the power to make an order for costs in the discharged person's favour (subsections (2) to (4)). Subsection (5) provides for such an order to be an order for payment of an amount to be made out of money provided by Parliament. The amount is the amount which the relevant judge or court think is reasonably sufficient to compensate the person in question for any expenses incurred as a result of extradition proceedings under this Part of the Bill (subsection (6)).

169.     Subsection (7) allows the relevant judge or court to come to a different decision where he or it considers it inappropriate for the person to recover the full amount under subsection (6). In this situation the judge or court is required to assess the amount considered to be just and reasonable and specify that as the appropriate amount in the order. Where the judge or court is not of this opinion, according to subsection (8), the appropriate amount must be specified in the order, where it is considered appropriate to do so and the discharged person agrees the amount. If this is not the case, then the amount must be calculated in accordance with regulations made by the Lord Chancellor.

Clause 61: Costs where discharge ordered: supplementary

170.     Subsections (1) and (2) of this clause mean that section 20(1) and (3) of the Prosecution of Offences Act 1985 apply to clause 60 in the same way that they apply in relation to Part 2 of that Act. In Northern Ireland (subsection (3)) the relevant provision is section 7 of the Costs in Criminal Cases Act (Northern Ireland) 1968, which applies to clause 60 as it does to sections 2 to 5 of that Act.

Clause 62: Documents sent by facsimile

171.     Subsection (1) allows any document to be sent in connection with Part 1 proceedings to be sent by facsimile. A document sent by facsimile is treated in the same way as the original and may be received in evidence accordingly (subsection (2)).

Clause 63: Extradition offences: person not sentenced for offence

172.     This clause defines the different types of conduct that constitute an extradition offence in respect of category 1 territories, but only in cases where the person is accused of the offence in the category 1 territory or has been convicted of an offence but not yet sentenced (subsection (1)).

173.     Subsection (2) states that conduct constitutes an extradition offence if the following conditions are satisfied. These are that:

  • the conduct occurs in the category 1 territory;

  • a certificate issued by the category 1 territory confirms that the offence falls within the European framework list (details of this are contained below under clause 65);

  • the certificate confirms that the offence is punishable in the law of the category 1 territory with detention for a period of 12 months or more.

174.     Under subsection (3) conduct also constitutes an extradition offence if:

  • the conduct occurs in the category 1 territory;

  • the conduct would constitute an offence under the law of the United Kingdom if it occurred in the United Kingdom;

  • the conduct is punishable under the law of the category 1 territory with imprisonment for a period of 12 months or more.

175.     Subsections (4) to (6) relate to extra-territorial conduct. This is conduct in respect of which a category 1 territory claims jurisdiction (and therefore the right to prosecute) even thought the conduct did not take place on its soil. Extra-territorial conduct constitutes an extradition offence if (subsection (4)):

  • the conduct occurs outside the category 1 territory;

  • the offence is punishable in the law of the category 1 territory with detention for a period of 12 months or more;

  • in corresponding circumstances the equivalent conduct would constitute an extra-territorial offence against the law of the United Kingdom which is punishable with imprisonment for a period of 12 months or more.

176.     Under subsection (5) conduct constitutes an extradition offence where:

  • the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom;

  • the conduct would constitute an offence under the law of the United Kingdom punishable with imprisonment for a period of 12 months or more if it had occurred here;

  • the conduct is similarly punishable under the law of the category 1 territory.

177.     Under subsection (6) conduct also constitutes an extradition offence if:

  • the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom;

  • the offence is punishable in the law of the category 1 territory with detention for a period of 12 months or more;

  • the conduct would constitute an offence referred to in subsection (7).

178.     The offences in subsection (7) are those covered by sections 51, 52, 58 and 59 of the International Criminal Court Act 2001 relating to genocide, crimes against humanity and war crimes, and ancillary offences under section 55 or 62 of that Act. For Scotland the relevant corresponding offences are those covered by sections 1 and 2 of the International Criminal Court (Scotland) Act 2001 and ancillary offences under section 7 of that Act.

179.     Subsection (8) applies where equivalent circumstances in the United Kingdom are mentioned under subsections (3)(b), (4)(c) and (5)(b). Where the applicable conduct relates to a tax, duty, customs or exchange, subsection (8) explains that it is immaterial that United Kingdom law does not contain rules of the same kind as those of the category 1 territory.

 
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Prepared: 27 March 2003