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

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Clause 133: Costs where discharge ordered: supplementary

347.     Subsections (1) and (2) of this clause mean that section 20(1) and (3) of the Prosecution of Offences Act 1985 apply to clause 132 in the same way as 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 132 as it does to sections 2 to 5 of that Act.

Clause 134: Documents sent by facsimile

348.     Subsection (1) allows documents to be submitted by facsimile in connection with a Part 2 extradition case. The documents sent by facsimile are to be treated in the same way as the originals and may be received in evidence accordingly (subsection (2)).

Clause 135: Receivable documents

349.     Subsection (1) provides that a duly authenticated document issued in a category 2 territory may be received in evidence under Part 2.

350.     Subsection (2) states that a document issued in a category 2 territory is duly authenticated if:

  • it purports to be signed by a judge, magistrate or other judicial authority of the territory; or

  • it purports to be authenticated by the oath or affirmation of a witness.

351.     A document that is not duly authenticated is not prevented by this clause from being used in Part 2 proceedings (subsection (3)).

Clause 136: Persons serving sentences outside territory where convicted

352.     This clause applies when an extradition request is made in relation to a person who has been convicted of an offence in one territory, is repatriated to another territory under an international arrangement to serve his sentence, and is unlawfully at large from a prison in that other territory (subsections (1) and (2)).

353.     Subsections (3) and (4) modify the application of the relevant clauses in this Part of the Bill to allow extradition of a person in these circumstances.

Clause 137: Extradition offences: person not sentenced for offence

354.     This clause defines the different types of conduct that constitute an extradition offence in respect of category 2 territories, but only in cases where the person is accused of the offence in the category 2 territory or has been convicted of an offence but not yet sentenced (subsection (1)).

355.     Conduct is an extradition offence if certain conditions are met (subsection (2)). These are that:

  • the conduct occurs in the category 2 territory;

  • the conduct would amount to an offence punishable with detention for a period of 12 months or more if it occurred in the United Kingdom;

  • it is similarly punishable under the law of the requesting category 2 territory.

356.     Subsections (3) to (5) allow a category 2 territory to request extradition for offences over which it claims extra-territorial jurisdiction. Extra-territorial jurisdiction is where a country claims jurisdiction (and therefore the right to prosecute) even though the conduct did not take place on its soil. Conduct is therefore an extradition offence if (subsection (3)):

  • the conduct occurs outside the category 2 territory;

  • it is punishable under the law of the category 2 territory with a custodial sentence of 12 months or more;

  • in corresponding circumstances the equivalent conduct would constitute an extra-territorial offence against the law of the United Kingdom punishable with a custodial sentence of 12 months or more.

357.     Under subsection (4) conduct is also an extradition offence if:

  • the conduct occurs outside the category 2 territory and no part of it occurs in the United Kingdom;

  • the conduct would amount to an offence punishable with detention for 12 months or more if it occurred in the United Kingdom;

  • it is similarly punishable under the law of the category 2 territory.

358.     Subsection (5) states that conduct also constitutes an extradition offence if:

  • the conduct occurs outside the category 2 territory and no part of it occurs in the United Kingdom;

  • it is punishable under the law of the category 2 territory with detention for a term of 12 months or more;

  • the conduct constitutes an offence mentioned in subsection (6).

359.     The offences in subsection (6) 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.

360.     Subsection (7) provides that if conduct constitutes an offence under the military law of a category 2 territory but not an offence under the general criminal law of the United Kingdom, it does not amount to an extradition offence within the definitions given in this clause. Where there is reference to the relevant part of the United Kingdom this means the part of the United Kingdom where the extradition proceedings have taken place, or are taking place, as appropriate (subsection (8)).

Clause 138: Extradition offences: person sentenced for offence

361.     This clause defines the different types of conduct that constitute an extradition offence in respect of category 2 territories in cases where the person has been convicted and sentenced for the offence (subsection (1)).

362.     Under subsection (2) conduct constitutes an extradition offence if the following conditions are met:

  • the conduct occurs in the category 2 territory;

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

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

363.     Conduct also constitutes an extradition offence if (subsection (3)):

  • the conduct occurs outside the category 2 territory;

  • a custodial sentence of 4 months or more has been imposed in that territory for the conduct;

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

364.     Under subsection (4) conduct would also constitute an extradition offence if:

  • it occurs outside the category 2 territory and no part of it occurs in the United Kingdom;

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

  • a sentence of detention for 4 months or more has been imposed for the conduct in the category 2 territory.

365.     Under subsection (5) conduct would also constitute an extradition offence if:

  • the conduct occurs outside the category 2 territory and no part of it occurs in the United Kingdom;

  • it is punishable under the law of the category 2 territory with detention for a term of 12 months or more;

  • the conduct constitutes or would constitute an offence mentioned in subsection (6).

366.     The offences in subsection (6) 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.

367.     Subsection (7) provides that if conduct constitutes an offence under the military law of a category 2 territory but not an offence under the general criminal law of the United Kingdom, it does not amount to an extradition offence within the definitions given in this clause. Where there is reference to the relevant part of the United Kingdom this means the part of the United Kingdom where the extradition proceedings have taken place, or are taking place, as appropriate (subsection (8)).

Clause 139: The appropriate judge

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

369.     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 140: The extradition hearing

370.     The extradition hearing is defined as the hearing at which the judge is required to deal with a request for extradition to a category 2 territory.

Clause 141: Scotland: references to Secretary of State

371.     This clause applies to all references in this Part of the Bill to the Secretary of State. Where any provision in this Part is being used solely in Scotland the reference should be taken to mean the Scottish Ministers (subsection (1)). Subsection (2) gives the exceptions to this rule, which are in clause 82(3) (hostage-taking considerations), clause 100(5) (making of order for extradition or discharge) and clause 119 (where asylum claimed).

PART 3

EXTRADITION TO THE UNITED KINGDOM

Clause 142: Issue of Part 3 warrant

372.     This clause provides for the issue of an arrest warrant to form the basis of extradition to the United Kingdom from a category 1 territory.

373.     The appropriate judge (this term is defined for this Part in clause 149 below) has the power to issue this warrant, on the application of a police constable or other appropriate person, if the condition in subsection (2) is met. (An appropriate person is someone who has been given authority to perform this role by the Secretary of State (subsection (10)). Subsection (11) states that subsection (1) applies to Scotland but with the modification that it is only a procurator fiscal who can apply for a Part 3 warrant.) The Secretary of State designates such persons by statutory instrument subject to the affirmative resolution procedure in both Houses of Parliament (see clause 209). A domestic warrant must have been issued in this country for the arrest of the person in question. There must also be grounds to believe that the person has committed an extradition offence or is unlawfully at large after having been convicted of an extradition offence in this country.

374.     Subsection (3) defines a Part 3 warrant as one that contains the necessary statement and certificate. The statement must be:

  • that the person is accused is this country of a specified extradition offence and that the warrant is issued for the purpose of his arrest, extradition and prosecution (subsection (4)); or

  • that the person is alleged to be unlawfully at large, having been convicted of a specified extradition offence in this country, and that the warrant is issued for the purpose of his arrest, extradition and sentencing or serving a sentence (subsection (5)).

375.     Subsection (6) provides that the certificate must certify:

  • whether the conduct amounting to the specified extradition offence falls within the European framework list;

  • whether the offence is an extra-territorial offence;

  • what is the maximum punishment that could be imposed if the person is convicted or, if the person has been sentenced, what sentence was imposed.

376.     Subsection (7) ensures that conduct falling within the European framework list includes associated offences. This covers any aiding, abetting, counselling or procuring such conduct or an attempt, conspiracy or incitement to commit such conduct. Subsection (8) defines the European framework list as the conduct set out in the list under article 2.2 of the European framework decision (see clause 65 above).

377.     Subsection (9) provides that a domestic warrant is an arrest warrant issued under any of the provisions listed. This covers warrants routinely issued in criminal proceedings in the United Kingdom.

Clause 143: Undertaking in relation to person serving sentence

378.     This clause concerns the situation where a person, in respect of whom a Part 3 warrant is issued, is already serving a custodial sentence in the category 1 territory to which the warrant is sent. In these circumstances the person's extradition to the United Kingdom may be made subject to conditions relating to the treatment of the person whilst in this country and/or that person's return to the category 1 territory (subsection (1)).

379.     Under subsection (2) the Secretary of State can give an undertaking regarding the treatment in this country and/or return to the category 1 territory of the person named on the warrant. The terms of such an undertaking could include terms that the person is kept in custody in this country until all proceedings have finished and that he is returned to serve the remainder of the sentence in the category 1 territory on conclusion of the proceedings here (subsection (3)).

380.     Subsection (4) covers the situation where a person's extradition is sought in a conviction case. Where the person's extradition is sought in order for him to serve the remainder of a custodial sentence in the United Kingdom, an undertaking can still be given under this clause. This could include terms that the person will be returned to the category 1 territory (to serve the rest of his domestic sentence there) after he has served the remainder of the sentence in this country for the offence of which he was originally convicted here.

381.     For the purposes of this clause, where the Part 2 warrant was issued by a sheriff, references to the Secretary of State are to be read as references to the Scottish Ministers (subsection (5)).

Clause 144: Return to extraditing territory to serve sentence

382.     This clause concerns the return of a person convicted in the United Kingdom to the extraditing territory to serve his sentence there. Subsection (1) provides that the clause applies in the following circumstances. The person must have been extradited to the United Kingdom from a category 1 territory on the basis of a Part 3 warrant, for the purposes of being prosecuted. His extradition must have been on the condition that, if convicted and sentenced to a term of detention, he will be returned to the extraditing country to serve the custodial sentence. The person must have been convicted and a sentence of detention imposed.

383.     Under subsection (2) the person must be returned to the extraditing country as soon as is reasonably practicable. If he is returned in this way his sentence is taken to have been remitted but the conviction stands for all other purposes (subsection (3)). If the person is not returned as required, the judge must, on the person's application, order his discharge, unless reasonable cause can be shown for the delay (subsection (4)).

Clause 145: Service of sentence in territory executing Part 3 warrant

384.     This clause enables a person who is the subject of a Part 3 warrant issued on the basis of a conviction and sentence to serve his sentence in a category 1 territory in place of extradition to the United Kingdom. The clause applies where (subsection (1)) a Part 3 warrant has been issued on the basis of the person's conviction and sentence, an undertaking is given by a category 1 territory that he will be required to serve his sentence there and, on that basis, he is not extradited to the United Kingdom. In this case the person's sentence is taken to have been remitted but the conviction stands for all other purposes (subsection (2)).

Clause 146: Dealing with person for other offences

385.     This clause sets out the speciality arrangements for dealing with a person for offences committed before his extradition to the United Kingdom from a category 1 territory.

386.     Subsection (2) provides that a person may be dealt with for an offence committed before his extradition only if the offence falls within subsection (3) or the condition in subsection (4) is met. Under subsection (3) the offence must be:

  • the offence in respect of which the person was extradited;

  • an offence disclosed by the information provided to the category 1 territory in respect of the extradition offence;

  • an extradition offence in respect of which the relevant authority of the category 1 territory has consented to the person being dealt with in the United Kingdom;

  • an extradition offence in respect of which the relevant authority of the category 1 territory is treated as having consented to the person being dealt with in the United Kingdom (see subsection (6));

  • an offence which is not punishable with any form of detention;

  • an offence in respect of which the person will not be detained at any time; or

  • an offence in respect of which the person waives the right not to be dealt with.

387.     The condition in subsection (4) is that the person has had the opportunity to leave the United Kingdom, he has failed to do so within 45 days of his arrival in the United Kingdom, or he has left the United Kingdom and then returned.

Clause 147: Effect of consent to extradition to the United Kingdom

388.     This clause applies where a person is extradited to the United Kingdom under a Part 3 warrant with his consent. The speciality protection in clause 146(2) does not apply if the conditions in subsection (3) or the conditions in subsection (4) are met (subsection (2)).

389.     The conditions in subsection (3) are that the effect of the person's consent under the law of the category 1 territory is that he waives his right to the speciality protection given in clause 146(2) and he has not revoked that consent (if permitted to do so under the law of that country).

390.     Alternatively (subsection (4)), where the effect of his consent to extradition is not to waive his speciality rights, the person must have expressly waived his speciality rights under the law of that country. Additionally, he must not have revoked either his consent to extradition or the waiver of his speciality rights, if the law of that country so allows.

Clause 148: Extradition offences

391.     This clause defines an extradition offence for the purposes of clauses 142 to 147 (subsection (8)).

392.     Conduct constitutes an extradition offence if it occurs in the United Kingdom and is punishable here with detention of 12 months or more (subsection (1)). If the conduct occurs outside this country it will still amount to an extradition offence if it constitutes an extra-territorial offence and is punishable in the same way (subsection (2)).

393.     However, subsections (1) and (2) do not apply in cases where the person is unlawfully at large after conviction and has been sentenced (subsection (3)). In this situation, where the conduct occurred in this country, a sentence of detention for a period of 4 months or more must have been imposed (subsection (4)). Where the conduct occurred outside the United Kingdom, it must amount to an extra-territorial offence and the same minimum sentence requirement applies (subsection (5)).

394.     Where there is reference 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 (6) and (7)).

Clause 149: The appropriate judge

395.     This clause defines who is the appropriate judge, for the purposes of clauses 142 to 147, in England and Wales, Scotland and Northern Ireland.

Clause 150: Dealing with person for other offences: Commonwealth countries etc.

396.     This clause applies where a person is extradited to the United Kingdom from a category 2 territory that is a Commonwealth country, a British overseas territory or the Hong Kong Special Administrative Region.

397.     Subsection (2) provides that a person may be dealt with for an offence committed before his extradition only if the offence falls within subsection (3) or the condition in subsection (6) is met. The subsection (3) offences are:

  • the offence in respect of which the person was extradited;

  • a lesser offence disclosed by information provided to the category 2 territory in respect of that offence; or

  • an offence in respect of which the relevant authority of the category 2 territory has consented to the person being dealt with in the United Kingdom.

398.     A lesser offence is one that carries a maximum punishment that is less severe than the maximum punishment for the extradition offence (subsection (4)).

399.     The relevant authority is defined at subsection (5) as the:

  • government of a Commonwealth Country;

  • person administering a British overseas territory; or

  • government of the Hong Kong Special Administrative Region.

400.     A person may also be dealt with for offences committed before his extradition to the United Kingdom if the protected period of 45 days has ended (subsections (6) and (7)). The protected period starts on the first day after extradition that the person is given the opportunity to leave the United Kingdom.

401.     Subsection (8) explains that a person is dealt with in the United Kingdom if he is tried or detained with a view to trial in this country in respect of the offence in question.

Clause 151: Dealing with person for other offences: other category 2 territories

402.     This clause applies where a person is extradited to the United Kingdom from a category 2 territory not covered by clause 150 above.

403.     The provisions of this clause are similar to those in clause 150. The differences are that the person may be dealt with for an offence disclosed by the information provided to the category 2 territory even if it is not a lesser offence. In addition, there is no 45 day protected period. Instead the person must either have returned to the territory from which he was extradited or been given the opportunity to leave the United Kingdom (Subsection (4)).

Clause 152: Remission of punishment for other offences

404.     This clause applies to a person who has been convicted of an offence in the United Kingdom prior to his extradition but this is not the offence for which he has been extradited to the United Kingdom. Any punishment for the offence must be treated as remitted, although the conviction must be treated as a conviction for all other purposes.

Clause 153: Return of person acquitted or not tried

405.     This clause applies to a person who is accused of an offence in the United Kingdom, is extradited from a category 2 territory to stand trial and either of the conditions in subsections (2) and (3) is met. These conditions are that the proceedings have not started within six months of the person's return to the United Kingdom (subsection (2)) or the person is acquitted at his trial (subsection (3)). If these conditions are met then the Secretary of State is required, if asked by the person, to arrange for his return to the category 2 territory free of charge and as soon as possible (subsection (4)). If the case relates to an offence in Scotland the requirement in subsection (4) applies to the Scottish Ministers (subsection (5)).

Clause 154: Service personnel

406.     This clause allows the Secretary of State to make an order applying this Part of the Bill, with any modification as required, to an extradition case concerning a person subject to the law of the services.

PART 4

POLICE POWERS

Clause 155: Search and seizure warrants

407.     This clause sets out the procedure for the application for and issue of a search and seizure warrant in an extradition case.

408.     Subsection (1) gives a justice of the peace power to issue such a warrant, on the application of a police constable, if he is satisfied that the necessary conditions are met. These conditions are described below.

409.     Under subsection (2) the application for a search and seizure warrant is required to state that the warrant is sought in connection with the extradition of a person under this Bill. It must also specify the premises (see clause 173(5) below) and the material for which the warrant is sought. In addition, the application must state that the person is accused of a specified extradition offence in a specified category 1 or category 2 territory (subsections (3) and (4)).

410.     Subsections (5) to (7) provide what is meant by a search and seizure warrant. The warrant authorises a constable to enter and search the specified premises in question and to confiscate any relevant material that is found there. Material is relevant if it could be used as evidence in a trial in the United Kingdom for the specified offence in question. However, the material must not include anything that is subject to legal privilege, excluded material or special procedure material. These terms are defined in clause 173 below.

411.     For a search and seizure warrant to be issued there must be reasonable grounds to believe (subsection (8)) that:

  • the offence in question has been committed by the person named;

  • that person is in or on his way to the United Kingdom;

  • the offence in question is an extradition offence, in accordance with the definition given in clause 63 (for Part 1) or clause 137 (for Part 2); and

  • there is relevant material on the premises.

412.     In addition, there must be reasonable grounds for believing that one of the conditions laid down in subsection (9) applies. The conditions are:

  • that it is not practicable to communicate with someone who is entitled to allow entry to the premises;

  • that it is not practicable to communicate with a person entitled to give access to the material in question;

  • that permission to enter the premises will not be given without a warrant; or

  • that the purpose of a search may be jeopardised unless immediate entry to the premises can be assured.

413.     Subsection (10) sets out the necessary adaptations for this clause to apply in Scotland.

 
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Prepared: 27 March 2003