House of Lords - Explanatory Note
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Clause 110: Detention pending conclusion of appeal under clause 108

291.     This clause sets out the arrangements for the detention of a person when the Secretary of State is informed that the category 2 territory intends to appeal against the decision of the Secretary of State to order the person's discharge.

292.     Subsection (1) states that this clause applies if, immediately after the Secretary of State orders the person's discharge, he is informed that the requesting authority intends to appeal under the provisions of clause 108 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 111: Appeal to High Court: time limit for start of hearing

293.     This clause provides for the time limits within which the High Court must begin to hear an appeal under clause 101, 103, 106 or 108.

294.     Subsections (1) and (2) provide that rules of court must prescribe the period within which the High Court must begin to hear the appeal.

295.     Subsection (3) explains what happens if the appeal is against a decision to order extradition (under clause 101 or 106) 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 discharged and the order for the person's extradition quashed. If the appeal is by the requesting state (under clause 103 or 108) and the High Court does not begin to hear the appeal within the set time period, then it will be considered as having been dismissed (subsection (4)).

Clause 112: Appeal to House of Lords

296.     This clause provides rights of appeal to the House of Lords.

297.     An appeal to the House of Lords following a decision of the High Court can be made by the person whose extradition is requested or a person acting on behalf of the category 2 territory (subsections (1) and (2)). An appeal can only be made when leave has been granted by the High Court or House of Lords (subsection (3)). Leave can only be granted where the High Court has certified that there is a point of law of general public importance involved in the decision and the court granting leave believes that there is a point which should be considered by the House of Lords (subsection (4)).

298.     Subsections (5) and (6) provide that an application to the High Court for leave to appeal must be made within 14 days of the court's decision and applications to the House of Lords must be made within 14 days from the date the High Court refuses the application. If leave to appeal is granted the appeal must be brought within 28 days of the 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 may grant bail to person appealing 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 hearing and determination of appeals.

299.     Subsection (13) states that this clause does not apply to Scotland (see clause 32 above).

Clause 113: Powers of House of Lords on appeal under clause 112

300.     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 requesting state.

301.     Subsection (1) provides that the House of Lords may allow or dismiss an appeal. Subsections (2) and (3) provide that if the House of Lords allows an appeal by the person who is subject to the extradition order, it must order his discharge and quash the extradition order.

302.     Subsections (4) and (5) apply if the House of Lords allows an appeal by the requesting state against a decision of the High Court to discharge a person or not to quash an order by the Secretary of State for his discharge. The House of Lords is required to quash the order discharging the person and order his extradition.

303.     Subsections (6) and (7) apply where the requesting state appeals to the House of Lords against a decision of the High Court to dismiss its earlier appeal against the order to discharge a person at the extradition hearing. If the House of Lords allows the appeal - it decides that the basis of the judge's decision to order a person's discharge was wrong - it must quash the order discharging the person and remit the case back to the judge and require him to proceed as if his original decision had been different.

Clause 114: Appeals: general

304.     This clause provides that decisions made by the judge or the Secretary of State under this Part of the Bill may only be challenged by means of the appeals described in this Part of the Bill.

Clause 115: Extradition where no appeal

305.     This clause provides the time limits for extraditing a person who is subject to an extradition order and has not appealed against the decision. Subsection (1) states that this clause applies where the Secretary of State has ordered the person's extradition and no appeal has been lodged within 14 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 (4)). The person must be extradited within 28 days of the date on which the order was made (subsection (2)). The judge must, on a person's application, order his discharge if this deadline is not met, unless reasonable cause is shown for the delay (subsection (3)).

Clause 116: Extradition following appeal

306.     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.

307.     Subsection (1) states that this clause applies where an appeal to the High Court under clause 101, 106 or 108 has been brought and the result of the final decision on the appeal is that the person is to be extradited. Subsection (2) requires the person to be extradited within 28 days of the date on which the appeal decision becomes final or the days on which the appeal proceedings are discontinued. If this deadline is not complied with the judge must, on the person's application, order his discharge, unless reasonable cause is shown for the delay (subsection (6)). Subsection (3) 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 (4) 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.

308.     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 (5)).

309.     The decision of the House of Lords is immediately final (subsection (6)).

310.     Subsection (8) 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 117: Undertaking in relation to person serving sentence in United Kingdom

311.     This clause allows the Secretary of State 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 2 territory that submitted the extradition request. This clause only applies if the person is serving a custodial sentence in the United Kingdom (subsections (1) and (2)).

312.     The Secretary of State 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 2 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 2 territory (subsections (3) and (4)).

313.     Where the Secretary of State imposes a condition on an extradition order under the power given by this clause, and clause 115 (extradition where no appeal) applies, the 28-day period described in clause 115 begins on the day the Secretary of State receives the undertaking. Where a condition is imposed and clause 116 (extradition following appeal) applies, the 28 days start from the day on which the appeal decision becomes final or, if later, the day the Secretary of State receives the undertaking (subsection (5)).

Clause 118: Extradition following deferral for competing claim

314.     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 is to go ahead under clause 183(3)(a) (subsection (1)).

315.     Where these circumstances occur and no appeal is made (see clause 115, extradition where no appeal), the 28-day period described in clause 115 begins on the day the judge makes the order under clause 183(3)(a) (subsection (2)). Where this situation occurs and there is an appeal (see clause 116, extradition following appeal), the 28 days start from the day on which the appeal decision becomes final or, if later, the day the judge makes the order under clause 183(3)(a) (subsection (3)).

Clause 119: Position where asylum claimed

316.     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 extradition request from a category 2 territory (under clause 69) and the person's extradition in pursuance of that warrant (subsections (1) and (2)).

317.     Subsection (3) states that the person in question must not be extradited until his asylum claim is finally determined. (Clauses 115 and 116 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.

318.     For the purposes of this clause "asylum claim" has the meaning given by section 113 of the Nationality, Immigration and Asylum Act 2002 (subsection (9)). 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 120: Withdrawal of request before end of extradition hearing

319.     This clause deals with the situation where an extradition request is withdrawn before the end of the extradition hearing and the judge is informed of the withdrawal (subsection (1)).

320.     The judge is required to order the person's discharge and, if the person is not present when it is ordered, inform the person of his discharge (subsections (3) and (4)).

Clause 121: Withdrawal of request after case sent to Secretary of State

321.     This clause applies if the Secretary of State is informed that an extradition request is withdrawn after the case has been sent to him to decide on extradition, but before the person is either discharged or extradited (subsections (1) and (2)). Under subsection (3) the Secretary of State is required to order the person's discharge in such circumstances.

Clause 122: Withdrawal of request while appeal to High Court pending

322.     This clause applies if the High Court is informed that an extradition request is withdrawn before the end of the appeal hearing.

323.     Where these circumstances occur and the appeal is brought by the person (under clause 101 or 106) the court is required to order his discharge and quash the extradition order if one has been made (subsection (3)). If the appeal has been brought on behalf of the category 2 territory (under clause 103 or 108) the court must dismiss the appeal (subsection (4)). Subsection (5) requires the court to inform the person of his discharge if he is not present when it is ordered.

Clause 123: Withdrawal of request while appeal to House of Lords pending

324.     This clause applies if the House of Lords is informed that an extradition request is withdrawn before the House of Lords has given its decision on the case.

325.     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 on behalf of the category 2 territory the House of Lords must dismiss the appeal under subsection (4). Subsection (5) requires the House of Lords to inform the person of his discharge, if he is not present when it is ordered. Clause 124: Competing extradition requests

326.     This clause sets out what is to happen when the Secretary of State receives an extradition request in respect of a person in the United Kingdom who is already the subject of Part 2 proceedings and who has not yet been extradited or discharged (subsection (1)).

327.     The Secretary of State has power, under subsection (2), to order proceedings on one of the requests to be deferred until the other request has been disposed of. In taking this decision the Secretary of State must take into account the factors listed in subsection (3):

  • the relative seriousness of the offences;

  • the place where they were committed;

  • the dates on which the requests were received; and

  • whether each is an accusation or conviction case.

328.     Where that Secretary of State has ordered Part 2 proceedings to be deferred under subsection (2) and an order for the person's extradition has already been made, the Secretary of State may order the extradition itself to be deferred pending the disposal of the competing category 2 request (subsection (2)).

Clause 125: Consent to extradition: general

329.     This clause provides that a person who has been arrested under a warrant issued following the receipt of an extradition request or under a provisional warrant may consent to his extradition. Consent must be given in writing and is irrevocable (subsection (3)). If a person consents to his extradition before his case is sent to the Secretary of State, he must do so before the appropriate judge. However, if a person consents after this point he must give his consent to the Secretary of State (subsections (4) and (5)).

330.     Subsections (6) and (7) 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 (8) and (9) provide definitions for the purposes of this clause.

Clause 126: Consent to extradition before case sent to Secretary of State

331.     This clause applies if a person consents to his extradition before the appropriate judge.

332.     If a person consents the judge is no longer required to fix a date for the extradition hearing or, if the hearing has started, the judge no longer has to continue with it (subsections (2) and (3)). Subsection (4) requires the judge to send the case to the Secretary of State for his decision as to whether the person is to be extradited. If a person consents then it is taken that he has waived his right to speciality, that is the right not to be dealt with in the category 2 territory for an offence committed before his extradition (subsection (5)).

Clause 127: Consent to other offence being dealt with

333.     This clause applies where a person has been extradited to a category 2 territory and the Secretary of State receives a valid request for consent to prosecute the person for an offence other than the offence for which he was extradited (subsection (1)). A valid request is one made by a recognised authority (subsection (2)).

334.     The Secretary of State must decide whether the offence to which the request for consent relates is an extradition offence (subsection (3)). If he decides that it is, he must decide whether the person's extradition in respect of the offence would be prohibited by clause 93 (death penalty) if the person were in the United Kingdom (subsection (5)). If the Secretary of State decides that the offence is not an extradition offence or that clause 93 would apply then consent must be refused (subsections (4) and (6)). If the Secretary of State is satisfied that the offence is an extradition offence and that clause 93 would not apply then consent may be given (subsection (7)).

Clause 128: Consent to further extradition to category 2 territory

335.     This clause applies where a person has been extradited to a category 2 territory and the Secretary of State receives a valid request for consent to re-extradite the person to another category 2 territory for an offence other than the offence for which he was extradited (subsection (1)). A valid request is one made by a recognised authority (subsection (2)).

336.     The Secretary of State must decide whether the offence to which the request for consent relates is an extradition offence (subsection (3)). If he decides that it is, he must decide whether clause 93 (death penalty) would apply if the person were in the United Kingdom (subsection (5)). If the Secretary of State decides that the offence is not an extradition offence or that clause 93 would prohibit extradition then consent must be refused (subsections (4) and (6)). If the Secretary of State is satisfied that the offence is an extradition offence and that clause 93 would not apply then consent may be given (subsection (7)).

Clause 129: Consent to further extradition to category 1 territory

337.     This clause applies where a person has been extradited to a category 2 territory and the Secretary of State receives a valid request for consent to re-extradite the person to a category 1 territory for an offence other than the offence for which he was extradited (subsection (1)). A valid request is one made by a recognised authority (subsection (2)).

338.     The Secretary of State must decide whether the offence is an extradition offence within the meaning of clause 63 (subsection (3)). If he decides that it is the Secretary of State must decide if the appropriate judge would order extradition under clauses 11 to 25 if the person were in the United Kingdom (subsection (5)). If the Secretary of State decides that the offence is not an extradition offence or that the judge would not order extradition then consent must be refused (subsections (4) and (7)). If the Secretary of State is satisfied that the offence is an extradition offence and that the judge would order extradition then consent may be given (subsection (6)).

Clause 130: Return of person to serve remainder of sentence

339.     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 131: Costs where extradition ordered

340.     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.

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

  • a person's extradition is ordered in pursuance of a category 2 extradition request;

  • the High Court dismisses a person's appeal against an order for his extradition (brought under clause 101 or 106);

  • the High Court or House of Lords refuses a person leave to appeal a decision of the High Court under clause 112;

  • the House of Lords dismisses a person's appeal under clause 112.

342.     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) to (5)). 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 (6)).

Clause 132: Costs where discharge ordered

343.     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.

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

  • a person's discharge is ordered under Part 2;

  • 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 103 or 108);

  • 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 112;

  • the House of Lords dismisses the appeal of the authority which issued a Part 1 warrant under clause 112.

345.     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 thinks 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)).

346.     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.

 
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Prepared: 27 March 2003