House of Lords - Explanatory Note
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Clause 85: Conviction in person's absence

230.     This clause deals with cases where a person has been tried in his absence and found guilty of the offence for which extradition is sought.

231.     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 a 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)).

232.     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 86: Human rights

233.     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 discharge if extradition would not be compatible with these rights. Otherwise, he must send the case to the Secretary of State for him to decide on the person's extradition.

Clause 87: Person charged with offence in United Kingdom

234.     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.

235.     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.

236.     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 78 before adjourning the hearing, he must consider it again when the hearing is resumed (subsection (4)).

Clause 88: Person serving sentence in United Kingdom

237.     This clause applies if the judge is informed that the person who is the subject of an extradition request 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 89: Competing extradition claim

238.     This clause addresses the situation where a category 2 extradition request or a Part 1 warrant is received while a different extradition request from a category 2 territory (in respect of the same person) is already under consideration and has yet to be disposed of.

239.     Subsection (1) explains that this clause applies when a judge is notified at any time during the extradition hearing either that the conditions are met with regard to a competing category 2 extradition request or that the conditions are met with regard to a competing Part 1 warrant.

240.     The conditions concerning a competing category 2 request are that (subsection (2)):

  • the Secretary of State has received another valid request from a category 2 territory for the extradition of the same person;

  • this competing request has not yet been disposed of; and

  • the Secretary of State has made an order under clause 124(2) that proceedings on the request under consideration are to be deferred pending the disposal of the competing request.

241.     The conditions concerning a competing Part 1 warrant are that (subsection (3)):

  • a Part 1 warrant, issued in respect of the same person, has been certified under clause 2;

  • the warrant has not yet been disposed of; and

  • the Secretary of State has made an order under clause 181(2) that proceedings on the request under consideration are to be deferred pending the disposal of the competing request.

242.     In either situation subsection (4) requires the judge to remand the person in custody or on bail. If the person is remanded is custody he may later be granted bail (subsection (5)).

Clause 90: Physical or mental condition

243.     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)).

244.     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 91: Case sent to Secretary of State

245.     This clause applies if the judge sends a person's case to the Secretary of State. The judge is required to notify the person that he has a right of appeal but that his appeal will not be heard until after the Secretary of State has made his decision.

246.     This clause applies when the judge sends a case to the Secretary of State (subsection (1)). The judge is required to notify the person that he has a right of appeal but that his appeal will not be heard until the Secretary of State has made his decision. (subsection (2)). This does not apply if the person has consented to his extradition under clause 125 (subsection (3)). Subsections (4) and (5) require the judge to remand the person in custody or on bail to await the Secretary of State's decision. If the judge remands the person in custody he may later grant bail.

Clause 92: Secretary of State's consideration of case

247.     This clause deals with what happens once a case is sent to the Secretary of State.

248.     The Secretary of State is required to consider the case and to order the person's discharge if extradition is prohibited by the provisions of clauses 93 to 95 (subsections (2) and (3)). If it is not prohibited he must order the person's extradition unless (subsection (4)):

  • he is informed that the extradition request has been withdrawn;

  • he makes an order for further proceedings on the request to be deferred, by virtue of clause 124(2) or 181(2), and the person is discharged under clause 182; or

  • he orders the person's discharge for reasons of national security (see clause 198).

Clause 93: Death penalty

249.     This clause prevents the Secretary of State from ordering the extradition of a person who has been, will be or could be sentenced to death, unless an assurance has been received either that the sentence, if imposed, will not be carried out or that it will not be imposed.

250.     The prohibition does not apply if the person has consented to his extradition under clause 125 (subsection (3)).

Clause 94: Speciality

251.     The speciality rule is a long-standing protection in extradition. It prohibits a person from being prosecuted after his extradition for an offence committed before his extradition, unless the offence is that 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.

252.     This clause prohibits the Secretary of State from ordering a person's extradition to a category 2 territory where there are no speciality arrangements in place (subsection (1)). This does not apply if a person has consented to his extradition under clause 125 (subsection (2)). Subsection (3) explains when speciality arrangements are considered to be in place. These are if the offence falls within subsection (4) or the person has first had the opportunity to leave the territory. The offences within subsection (4) are: the offence for which the person was extradited, an extradition offence disclosed by the same facts as that offence, or an extradition offence for which the Secretary of State has consented to the person being dealt with.

253.     Subsection (5) allows speciality arrangements with a Commonwealth country or a British overseas territory to be made either generally or for particular cases. A certificate issued by or under the authority of the Secretary of State confirming the existence of such arrangements and stating their terms is conclusive evidence of those matters (subsection (6)).

Clause 95: Earlier extradition to United Kingdom from other territory

254.     This clause applies where a person has been extradited to the United Kingdom from another country (the extraditing territory) and his extradition is now requested to a category 2 territory. The Secretary of State is prohibited from ordering his extradition if arrangements with the extraditing territory require consent for re-extradition to another country and that consent has not been given.

Clause 96: Deferral: person charged with offence in United Kingdom

255.     This clause applies where a person is the subject of an extradition request under this Part of the Bill, his case has been sent to the Secretary of State and he has also been charged with an offence in this country (subsection (1)). The Secretary of State is required to defer making a decision 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.

256.     If the person is sentenced to a custodial sentence for the domestic offence, the Secretary of State may delay making a decision as to extradition until the end of that sentence (subsection (3)).

Clause 97: Deferral: person serving sentence in United Kingdom

257.     This clause applies if a person is the subject of an extradition request under this Part of the Bill, his case has been sent to the Secretary of State, and he is also serving a custodial sentence in the United Kingdom (subsection (1)). Under these circumstances the Secretary of State is allowed to delay making his decision until the sentence has been served (subsection (2)).

Clause 98: Time limit for order for extradition or discharge

258.     Once a case is sent to the Secretary of State, he is required to make a decision on a person's extradition within two months (subsections (1) and (3)). If the Secretary of State fails to do so the person must be taken to be discharged (subsection (2)). However, under subsection (10), this period can be extended on application to the High Court.

259.     The day on which this two-month period begins depends on the circumstances of the case. Where the person has also been charged with an offence in the United Kingdom the two months begins on the day that proceedings on the domestic charge end (subsection (4)). That is:

  • 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.

260.      If the Secretary of State defers his decision under the power given in clause 96(3) or 97(2) the period begins on the day that the person finishes serving the sentence (subsection (5)).

261.     In the case of competing extradition claims it begins on the day the Secretary of State makes an order under clause 124 or 181. However, if proceedings on the request have been deferred under either of these clauses, the two months begin on the day the order is made under clause 182 for proceedings to be resumed (subsections (6) and (7)).

262.     If more than one of these provisions applies the two-month period begins on the latest of the relevant days (subsection (8)). In all other cases it begins on the day that the judge sends the case to the Secretary of State (subsection (9)).

Clause 99: Information

263.     If the Secretary of State decides to order a person's extradition he is required to inform the person of his decision and of his right of appeal to the High Court. He must also inform a representative of the category 2 territory of any such order (subsection (1)). However, subsection (1)(b) (right of appeal to the High Court) does not apply if the person has consented to his extradition under clause 125 (subsection (2)). If the Secretary of State orders a person's extradition and has received an assurance in respect of the death penalty under clause 93(2), a copy of this assurance must be given to the person when he is informed of the order (subsection (3)).

264.     If the Secretary of State decides to order a person's discharge he is required to inform both the person and a representative of the category 2 territory (subsection (4)).

Clause 100: Making of order for extradition or discharge

265.     This clause specifies who may make an order required under this Part of the Bill to be made by the Secretary of State.

266.     Subsections (1) to (4) explain that an order for a person's extradition or discharge may be made by either the Secretary of State, a Minister of State, Parliamentary Under Secretary of State or a senior official. The last of these is defined as a member of the Senior Civil Service or a member of the Senior Management Structure of Her Majesty's Diplomatic Service. In Scotland such an order would be made by a member of the Scottish Executive, a junior Scottish Minister or a senior official of the Scottish Administration. Subsection (5) allows the Secretary of State, by order, to amend the category of senior officials authorised to make orders to take account of any future changes to structure or grading in the civil service.

Clause 101: Appeal where case sent to Secretary of State

267.     This clause provides a right of appeal against the decision of the judge to send the case to the Secretary of State.

268.     Subsections (1) and (3) allow a person to appeal to the High Court against the decision of the judge to send the case to the Secretary of State. This does not apply to a person who has consented to his extradition under clause 125 (subsection (2)). The appeal can be on a question of law or fact (subsection (4)). If an appeal is lodged it will be heard after the Secretary of State has made his decision (subsection (5)), unless the Secretary of State decides to order the person's discharge, in which case the appeal will not be proceeded with (subsections (6) and (7)). Any appeal under this clause must be lodged within 14 days starting on the day the Secretary of State notifies the person that he has ordered his extradition (subsection (8)).

Clause 102: Court's powers on appeal under clause 101

269.     This clause sets out the powers available to the High Court on an appeal under clause 101.

270.     The High Court may allow or dismiss the appeal or direct the judge to reconsider issues that were decided at the extradition hearing (subsection (1)). The appeal can only be allowed if the conditions in subsection (3) or (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 would have been required to order the person's discharge.

271.     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.

272.     The court must order the person's discharge and quash the extradition order if it allows the appeal (subsection (5)). The judge must also order the person's discharge if he comes to a different decision on a question that he has been directed to decide again by the High Court (subsection (6)). If the judge comes to the same decision as he did at the extradition hearing the appeal must be taken to have been dismissed by a decision of the High Court (subsection (7)).

Clause 103: Appeal against discharge at extradition hearing

273.     This clause provides a right for an appeal to be brought on behalf of the requesting state against a decision at the extradition hearing to discharge the person.

274.     Subsections (1), (3) and (4) allow an appeal to be brought on behalf of the requesting territory against the decision that resulted in the order for the discharge of the person, on any question of law or fact. The exception to this, in subsection (2), is when the discharge was under clause 120, as a result of the request being withdrawn.

275.     Notice of appeal must be given within 14 days of the order for the person's discharge (subsection (5)).

Clause 104: Court's powers on appeal under clause 103

276.     This clause sets out the powers available to the High Court following an appeal under clause 103.

277.     The High Court may allow or dismiss the appeal or direct the judge to decide the relevant question again (subsection (1)). The relevant question is one that resulted in the person's discharge. The appeal can only be allowed if the conditions in subsection (4) or (5) are met (subsection (3)). The conditions in subsection (4) 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.

278.     The conditions in subsection (5) 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.

279.     Subsection (6) requires the High Court, if it allows the appeal, to quash the order discharging the person and remit the case back to the judge with a direction that he proceed as he would have been required to do if he had decided differently on the question that resulted in the person's discharge. If the court directs the judge to decide that question again and he decides it differently, the extradition hearing will continue from that point. If the judge makes the same decision then the appeal must be taken as have been dismissed by a decision of the High Court (subsections (7) and (8)).

Clause 105: Detention pending conclusion of appeal under clause 103

280.     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.

281.     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 103 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 106: Appeal against extradition order

282.     Subsections (1) to (3) allow a person to appeal on a question of law or fact against the decision of the Secretary of State to order his extradition. This does not apply where a person has consented to his extradition under clause 125 (subsection (2)). Notice of appeal must be given to the High Court within 14 days from the date the person was notified of the Secretary of State's decision (subsection (4)).

Clause 107: Court's powers on appeal under clause 106

283.     This clause sets out the powers available to the High Court on an appeal by a person against the extradition order.

284.     The High Court may allow or dismiss the appeal (subsection (1)). The court may only allow the appeal if the conditions in subsections (3) or the conditions in subsection (4) are met. The conditions in subsection (3) are that the Secretary of State should have decided a question before him differently and, if he had done so, would not have ordered the person's extradition. The conditions in subsection (4) are that:

  • an issue or information is raised or available that was not raised or available to the Secretary of State at the time;

  • the issue or information would have resulted in the Secretary of State deciding a question differently; and

  • this would have resulted in a decision not to order the person's extradition.

285.     The person must be discharged and the extradition order quashed if the court allows the appeal (subsection (5)).

Clause 108: Appeal against discharge by Secretary of State

286.     Subsections (1), (3) and (4) allow the authority representing the requesting territory to appeal to the High Court against the decision that resulted in the discharge of the person by the Secretary of State. The appeal may be brought on any question of law or fact. The exception to this, in subsection (2), is when the order for the person's discharge was made under clause 121, as a result of the request being withdrawn.

287.     Notice of appeal must be given within 14 days of the authority in the requesting state being notified of the order for the person's discharge (subsection (5)).

Clause 109: Court's powers on appeal under clause 108

288.     This clause sets out the powers available to the High Court on an appeal by a category 2 territory against a decision not to order a person's extradition.

289.     The High Court may allow or dismiss the appeal (subsection (1)). The court may only allow the appeal if the conditions in subsection (3) or the conditions in subsection (4) are met (subsection (2)). The conditions in subsection (3) are that the Secretary of State should have decided a question before him differently and, if he had done so, would not have ordered the person's extradition. The conditions in subsection (4) are that:

  • an issue or information is raised or available that was not raised or available to the Secretary of State at the time;

  • the issue or information would have resulted in the Secretary of State deciding a question differently; and

  • this would have resulted in a decision to order the person's extradition.

290.     The court must quash the order to discharge the person and order his extradition if it allows the appeal (subsection (5)).

 
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Prepared: 27 March 2003