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

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Clause 64: Extradition offences: person sentenced for offence

180.     This clause defines the different types of conduct that constitute an extradition offence in respect of category 1 territories in cases where the person has been convicted and sentenced for the offence (subsection (1)).

181.     In these cases conduct constitutes an extradition offence (subsection (2)) if:

  • the conduct occurs in the category 1 territory;

  • a certificate is issued by a category 1 territory which shows that the conduct falls within the European framework list; and

  • a sentence of detention for a term of 4 months or more has been imposed.

182.     Subsection (3) states that conduct also constitutes an extradition offence if:

  • the conduct occurs in the category 1 territory;

  • the conduct would constitute an offence in the United Kingdom;

  • a sentence of detention for a period of 4 months or more has been imposed.

183.     Conduct also constitutes an extradition offence if (subsection (4)):

  • the conduct occurs outside the category 1 territory;

  • a sentence of detention for a period of 4 months or more has been imposed in the category 1 territory for the conduct,

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

184.     Conduct also constitutes an extradition offence if (subsection (5):

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

  • it would constitute an offence in the United Kingdom punishable with imprisonment for a period of 12 months or more if it occurred in this country;

  • a custodial sentence of 4 months or more has been imposed in the category 1 territory for the conduct.

185.     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;

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

  • the conduct constitutes, or would do if it occurred in the United Kingdom, an offence referred to in subsection (7).

186.     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.

187.     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.

Clause 65: Extradition offences: supplementary

188.     This clause provides definitions of the terms used in clauses 63 and 64 relating to extradition offences for this Part of the Bill. The appropriate authority of the category 1 territory is an authority the judge believes has the function of issuing arrest warrants (subsection (2)). The European framework list is the list of conduct set out in article 2.2 of the framework decision of the Council of the European Union on the European arrest warrant and the surrender procedures between member states (subsection (3)). The conduct listed is:

  • participation in a criminal organisation,

  • terrorism,

  • trafficking in human beings,

  • sexual exploitation of children and child pornography,

  • illicit trafficking in narcotic drugs and psychotropic substances,

  • illicit trafficking in weapons, munitions and explosives,

  • corruption,

  • fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26th July 1995 on the protection of the European Communities' financial interests,

  • laundering of the proceeds of crime,

  • counterfeiting currency, including of the euro,

  • computer-related crime,

  • environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,

  • facilitation of unauthorised entry and residence,

  • murder, grievous bodily injury,

  • illicit trade in human organs and tissue,

  • kidnapping, illegal restraint and hostage-taking,

  • racism and xenophobia,

  • organised or armed robbery,

  • illicit trafficking in cultural goods, including antiques and works of art,

  • swindling,

  • racketeering and extortion,

  • counterfeiting and piracy of products,

  • forgery of administrative documents and trafficking therein,

  • forgery of means of payment,

  • illicit trafficking in hormonal substances and other growth promoters,

  • illicit trafficking in nuclear or radioactive materials,

  • trafficking in stolen vehicles,

  • rape,

  • arson,

  • crimes within the jurisdiction of the International Criminal Court,

  • unlawful seizure of aircraft/ships,

  • sabotage.

189.     Subsection (4) provides that the law of a territory relates only to the general criminal law of that territory. Where there is reference in either clause to the relevant part of the United Kingdom this means the part of the United Kingdom where the proceedings (in which the question arises of whether conduct is an extradition offence) are taking place (subsections (5) and (6)).

Clause 66: The appropriate judge

190.     This clause defines who is the appropriate judge for hearing extradition cases under this Part of the Bill.

191.     Subsection (1) defines the appropriate judge in England and Wales, Scotland and Northern Ireland. Subsections (2) and (3) allow the Lord Chancellor to make one or more designations under subsection (1), for all cases or for specific cases.

Clause 67: Other interpretative provisions

192.     Subsection (1) defines the extradition hearing for the purposes of this Part of the Bill. Subsection (2) explains that references to the designated authority are to be read in accordance with clause 2(9).

PART 2

EXTRADITION TO CATEGORY 2 TERRITORIES

Clause 68: Extradition to category 2 territories

193.     This clause defines the territories to which Part 2 of the Bill applies. The territories will be designated for the purposes of this Part by Order in Council.

Clause 69: Extradition request and certificate

194.     This clause provides for what is to happen when the Secretary of State receives a request for a person's extradition to a category 2 territory.

195.     Subsection (1) requires the Secretary of State to issue a certificate if he receives a valid extradition request from a category 2 territory in respect of a person who is in the United Kingdom. The exception to this rule, under subsection (2), is where the Secretary of State has decided that a competing request is to take priority (see clause 124). Subsection (3) explains that a request is valid if it contains the statement referred to in subsection (4) - that the person is accused of a specified offence, or is unlawfully at large after conviction of a specified offence - and if it is made in the approved way. Subsections (5) to (7) set out the manner in which the request must be made to be approved.

196.     The Secretary of State is required (subsections (8) to (10)) to send the certificate confirming that the request has been made in the approved way, to the appropriate judge (see clause 149 below). The certificate must be accompanied by the extradition request, a copy of the relevant Order in Council, any additional documents accompanying the request and any documents relating to the issue of a provisional warrant, if applicable.

Clause 70: Arrest warrant following extradition request

197.     Extradition requests to the United Kingdom can be made in one of two ways. The first is a request for the provisional arrest of a person considered to be at risk of leaving or travelling to another jurisdiction. Such requests are generally made through police channels pending receipt of a formal request and supporting documentation. The second is a full order request, where the formal request and supporting documentation is submitted through the diplomatic channel in advance of arrest. This clause is concerned with full order requests.

198.     Subsection (1) states that this clause applies if the Secretary of State sends the documents to the appropriate judge under clause 69 above. Subsection (2) allows the judge to issue a warrant for arrest if the offence for which extradition has been requested is an extradition offence and there is evidence that would justify the issue of an arrest warrant if the person was accused of the offence or was unlawfully at large following a conviction (subsection (3)). Subsection (4) replaces the requirement to submit evidence with a requirement to submit information for those countries that have been designated for that purpose by Order in Council. Subsection (5) provides that a warrant issued under this clause may be executed by a police constable or any person to whom it is directed, even if neither the warrant nor a copy is held by that person at the time of execution.

199.     Where a warrant is directed to a service policeman it may be executed only in a place where that service policeman would have the power to arrest a person under the relevant service law (subsections (6) and (8)). In all other cases a warrant can be executed in any part of the United Kingdom (subsection (7)).

Clause 71: Person arrested under clause 70

200.     A person who has been arrested following an extradition request must be shown a copy of the relevant warrant as soon as practicable after the arrest, if he so requests and neither the warrant nor a copy was shown to him at the time of arrest (subsections (1) and (2)). Under subsection (3) he must also be brought before the appropriate judge as soon as practicable. However, subsection (4) states that this does not apply if the person was granted police bail following the arrest or if the Secretary of State has decided that the request is not to go any further because a competing request is to take priority (see clause 124). Subsection (4)(a) applies to Scotland without reference to bail being granted by a constable, as the police in Scotland cannot grant bail (subsection (9)). The person must be taken to be discharged if subsections (2) and (3) are not complied with (subsection (5)). Subsections (6) to (8) require the judge to inform the person of the contents of the request for his extradition, to give the person the required information about consent, and to remand him in custody or on bail. If the person is remanded in custody he may subsequently be granted bail. The required information about consent is:

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  • that the person may consent to his extradition;

  • an explanation of the effect of consent and procedures that will apply (see clause 125);

  • that consent must be given in writing and is irrevocable.

Clause 72: Provisional warrant

201.     This clause provides for the issue of a provisional arrest warrant for a person who is in or on his way to the United Kingdom.

202.     Subsection (1) explains that this clause applies if a justice of the peace receives an information (in Northern Ireland a complaint - see subsection (11)) in writing and on oath that a person is in, or believed to be in, or travelling to, the United Kingdom. The justice of the peace must be satisfied that the person is accused of an offence or is unlawfully at large after conviction of an offence (subsection (2)).

203.     Subsection (3) allows a justice of the peace to issue a warrant if it appears that the offence is an extradition offence and there is evidence that would justify the issue of a warrant if the alleged offence had occurred in the relevant part of the United Kingdom or if the person was unlawfully at large in the relevant part of the United Kingdom (Subsection (4)). Subsection (5) replaces the requirement to submit evidence with a requirement to submit information, for those countries that have been designated for this purpose by Order in Council. Subsection (6) provides that a provisional warrant may be executed by a police constable or any person to whom it is directed, even if neither the warrant nor a copy is held by that person at the time of execution.

204.     Where a warrant is directed to a service policeman it may be executed only in a place where that service policeman would have the power to arrest a person under the relevant service law (subsections (7) and (9)). In all other cases a warrant can be executed in any part of the United Kingdom (subsection (8)).

205.     Subsection (10) states that this clause applies to Scotland with certain modifications. All references to a "justice (of the peace)" should be read as a sheriff in Scotland. The reference in subsection (1) to "information in writing and on oath" is replaced by "an application by a procurator fiscal".

Clause 73: Person arrested under provisional warrant

206.     A person who has been arrested under a provisional warrant must be shown a copy of the relevant warrant as soon as practicable after the arrest, if he so requests and neither the warrant nor a copy was shown to him at the time of arrest (subsections (1) and (2)). Under subsection (3) he must also be brought before the appropriate judge as soon as practicable. However, subsection (4) states that this does not apply if the person was granted police bail following the arrest or if the Secretary of State has decided that the request is not to go any further because a competing request is to take priority (see clause 124). Subsection (4)(a) applies to Scotland without reference to bail being granted by a constable, as the police in Scotland cannot grant bail (subsection (11)). The person must be discharged if the provisions of subsection (2) or (3) are not complied with (subsection (5)). Subsections (6) to (8) require the judge to inform the person either that he is accused of an offence in the relevant territory or that he is alleged to be unlawfully at large after conviction. The judge must also give the person the required information about consent and remand him in custody or on bail. If the person is remanded in custody he may subsequently be granted bail. The required information about consent is:

  • that the person may consent to his extradition;

  • an explanation of the effect of consent and procedures that will apply (see clause 125);

  • that consent must be given in writing and is irrevocable.

207.     If a certified extradition request and supporting documents are not received by the judge within the required period the person's discharge must be ordered. This period is 40 days from the date of arrest or any longer period permitted by Order in Council for a designated category 2 territory (subsections (9) and (10)). This longer period takes account of the different time periods specified in particular bilateral extradition treaties. This prevents the individual treaties from having to be renegotiated.

Clause 74: Date of extradition hearing: arrest under clause 70

208.     This clause applies where a person arrested under clause 70 appears before the appropriate judge (subsection (1)). Subsections (2) and (3) require the judge to fix a date for the extradition hearing. The date is to be within 2 months of the date on which the person first appears before the judge. In exceptional circumstances a later hearing date may be fixed. Subsection (4) requires the person to be discharged if the extradition hearing does not begin by the fixed date.

Clause 75: Date of extradition hearing: arrest under provisional warrant

209.     This clause applies where the person has been provisionally arrested and the documents in clause 69(9) have been received by the judge within the required period (subsection (1)). Subsections (2) and (3) require the judge to fix a date for the extradition hearing. The date must be within 2 months of the date on which the judge receives the documents. In exceptional circumstances a later hearing date may be fixed (subsection (4)). Subsection (5) requires the person to be discharged if the hearing does not begin on or before the date fixed.

Clause 76: Judge's powers at extradition hearing

210.     The clause provides for the powers available to the judge at the extradition hearing under this Part of the Bill.

211.     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 77: Initial stages of extradition hearing

212.     This clause requires the judge to begin the extradition hearing by considering the sufficiency of the extradition request and supporting documentation before him.

213.     Subsection (2) requires the judge to decide whether the documents sent to him consist of or include:

  • the documents referred to clause 69(9), namely the extradition request, certificate and copy of the relevant Order in Council;

  • identification evidence;

  • details of the offence(s) in question;

  • a warrant of arrest or judicial document authorising the person's arrest (subsection (8)) issued in the category 2 territory, in accusation cases;

  • a certificate of conviction and (if sentence has been imposed) of sentence, in a conviction case.

214.     If the documents do not meet the requirements then the judge must order person's discharge (subsection (3)). If the documents are considered sufficient then the judge must decide under subsection (4) whether:

  • on a balance of probabilities (see subsection (5)), the person before him is the person whose extradition is requested;

  • the specified offence is an extradition offence;

  • copies of the documents have been served on the person.

215.     If the judge is not satisfied on any of these points then subsection (6) requires that he order the person's discharge. If the judge is satisfied then subsection (7) requires that he proceed under clause 78.

Clause 78: Bars to extradition

216.     This clause provides for the bars to extradition under this Part of the Bill. The judge must consider whether any of these bars prevent the extradition of the person and order the person's discharge if any of the bars are applicable.

217.     Subsection (1) requires the judge to decide whether extradition is barred by:

  • the rule against double jeopardy;

  • extraneous considerations;

  • the passage of time;

  • hostage-taking considerations.

218.     Clauses 79 to 82 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 none of them applies the judge must proceed under the provisions of clause 83 in an accusation case or clause 84 in a conviction case (subsections (4) and (5)).

Clause 79: Rule against double jeopardy

219.     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.

Clause 80: Extraneous considerations

220.     The effect of this clause is to bar a person's extradition to a category 2 territory if it appears that the request 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 it appears that he would be prejudiced at trial, or his liberty restricted, for any of the same reasons.

Clause 81: Passage of time

221.     The effect of this clause is to bar the extradition of a person where it appears that it would be unjust or oppressive to extradite by reason of the passage of time since the person is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large.

Clause 82: Hostage-taking considerations

222.     A person's extradition is barred if the category 2 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)).

Subsections (2) to (4) make interpretative provision relating to the hostage-taking bar to surrender.

Clause 83: Case where person has not been convicted

223.     This clause deals with accusation cases - that is those where the fugitive has been accused of a crime but has not stood trial.

224.     The judge is required to decide whether the evidence supplied to him would be sufficient to make a case requiring an answer if the proceedings were a summary trial in this country (subsection (1)). (Subsections (7) and (8) contain the relevant modifications, relating to the reference to proceedings, for this clause to apply to Scotland and Northern Ireland respectively.) In making the decision required by subsection (1) the judge must treat any statement made by a person to a police officer or investigating officer as admissible evidence of fact if direct oral evidence of the fact would be admissible (subsection (2)). A summary of such a statement may also be treated as admissible (subsection (3)).

225.     If the judge decides the evidence is insufficient then he must order the person's discharge (subsection (4)). If the evidence is sufficient then the judge must proceed to consider human rights under clause 86 (subsection (5)). Subsection (6) explains that subsection (1) does not apply to category 2 territories designated by an Order in Council as territories not required to submit prima facie evidence. In the case of requests from such countries the judge must proceed to consider human rights under clause 86.

Clause 84: Case where person has been convicted

226.     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.

227.     Subsection (1) requires a judge in a conviction case to decide whether the person was convicted in his presence or absence. If convicted in his absence, the judge must decide whether or not he deliberately absented himself from the trial. If he was convicted in his absence, but was not deliberately absent, the judge must decide whether he would be entitled to a retrial or a review amounting to a retrial.

228.     The judge is required to order the person's discharge if he was convicted in his absence, but did not deliberately absent himself from the trial and would not be entitled to a retrial (subsection (2)). If, however, the judge decides that the person was convicted in his absence and did not deliberately absent himself from the trial, but would be entitled to a retrial or review amounting to a retrial, the judge must proceed under clause 85 (subsection (3)).

229.     Under subsection (4) the judge is required to proceed to consider human rights grounds under clause 86 if he decides that the person was either convicted in his presence or convicted in his absence having deliberately absented himself from the trial.

 
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Prepared: 27 March 2003