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

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Clause 156: Production orders

414.     This clause outlines the procedure for applying for a production order in an extradition case.

415.     Subsection (1) gives a judge (see subsection (8)) the power to make such an order, on the application of a police constable, if he is satisfied that the necessary conditions are met. These conditions are described below.

416.     Under subsection (2) the application is required to state that the production order is sought in connection with the extradition of a person under this Bill. It must also specify the premises and the material for which the order is sought. It must state that this is special procedure material or excluded material. It must state that the person specified in the application appears to have control of the material in question. 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)).

417.     Subsections (5) and (6) define a production order as an order requiring the person named in the application to hand over the material for a police constable to take away, or requiring him to allow the constable access to the material, within a specified period. This is required to be 7 days unless the judge making the order considers that a longer period is appropriate.

418.     Subsection (7) provides that production orders have effect as court orders. Subsection (8) explains that, for the purposes of this clause, "judge" refers to a circuit judge in England and Wales and a Crown Court judge in Northern Ireland.

Clause 157: Requirements for making of production order

419.     This clause specifies the conditions to be met for a production order to be made.

420.     For a production order to be made there must be reasonable grounds to believe (subsection (2)) 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);

  • there is material which is special procedure material or excluded material on the premises involved; and

  • the material could be used as evidence in a trial in the United Kingdom for the specified offence in question.

421.     In addition, it must appear to the judge (subsection (4)) that:

  • other ways of obtaining the material have already failed; or

  • other ways of obtaining the material have not been tried because they would have failed.

422.     Finally, (subsection (5)) it must be in the public interest for the material to be produced or for access to it to be given.

Clause 158: Computer information

423.     This clause applies if material specified in an application for a production order is held in electronic form. In such circumstances the material must be produced (or a constable given access to it) in a form in which it can be seen and read.

Clause 159: Warrants: special procedure material and excluded material

424.     This clause sets out the procedure for the application for and issue of a search and seizure warrant relating to special procedure material or excluded material in an extradition case.

425.     Subsection (1) gives a judge (see subsection (9)) the power to issue such a warrant, on the application of a police constable, if he is satisfied that the conditions for issuing a production order and the necessary additional conditions are met. These additional conditions are described below.

426.     Under subsection (2) the application 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 and the special procedure material or excluded 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)).

427.     Subsection (5) states that a warrant under this clause authorises a constable to enter and search the specified premises in question. He may seize and retain any relevant special procedure material and/or excluded material if the application states that the warrant is sought in relation to such material. Material is relevant if it could be used as evidence in a trial in the United Kingdom for the specified offence in question (subsections (6) and (7)).

428.     In addition, one of the conditions in subsection (8) must apply. These 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; or

  • that the material includes information classified as restricted or secret by statute and that it is likely to be disclosed in breach of that classification.

429.     Subsection (9) explains that, for the purposes of this clause, "judge" refers to a circuit judge in England and Wales and a Crown Court judge in Northern Ireland.

Clause 160: Entry and search of premises for purposes of arrest

430.     This clause gives a police constable power to enter and search premises, with a view to arresting a person under an extradition arrest power. The term "extradition arrest power" is defined for the purposes of this Part in clause 173 below.

431.     If a police constable has the power to arrest a person in connection with an extradition matter (subsection (1)), he is given power to enter and search any premises to exercise this power, subject to certain conditions. He must have reasonable grounds for believing that the person in question is on the premises (subsection (2)). The power to search is allowed only insofar as it is reasonably necessary to effect arrest (subsection (3)).

432.     Under subsection (4) a police constable may then seize and retain anything which is on the premises where he has reasonable grounds to believe:

  • that it has been obtained as the result of an offence or is evidence of an offence; and

  • that it is necessary to seize it to avoid the evidence being lost or interfered with in any way.

433.     Subsection (6) covers the situation where the premises in question include multiple dwellings (for example, a block of flats). A police constable is allowed, in this situation, to enter and search only the communal areas of the premises and any dwelling where he has reasonable grounds to believe the person in question might be.

Clause 161: Entry and search of premises on arrest

434.     This clause gives a police constable power to enter and search premises where a person is arrested under an extradition arrest power, unless arrest takes place at a police station (subsection (1)).

435.     Subsection (2) provides for a police constable to enter and search premises where the person is arrested, or in which he was immediately before arrest, if there are reasonable grounds to believe that there is evidence of the relevant offence or of the person's identity on the premises. "Evidence" in this context does not include items subject to legal privilege. The relevant offence (subsection (3)) is one on the basis of which a Part 1 warrant has been or will be issued (Part 1), or on the basis of which extradition has been or will be formally requested (Part 2).

436.     A police constable may search premises only for evidence (which does not include items subject to legal privilege) relating to the relevant offence and the person's identity and only so far as is reasonably necessary to find such evidence (subsection 4)). Subsection (5) allows a police constable to seize and retain anything discovered in exercise of this power.

437.     In addition to the powers described above a police constable may (subsection (6)), having entered premises in exercise of this power, confiscate anything he finds there where he has reasonable grounds to believe:

  • that it has been obtained as the result of an offence or is evidence of an offence; and

  • that it is necessary to seize it to avoid the evidence being lost or interfered with in any way.

438.     Subsection (8) covers the situation where the premises in question include multiple dwellings. A police constable is allowed, in this situation, to enter and search only the communal areas of the premises and any dwelling where the arrest took place, or in which the person was immediately before arrest.

Clause 162: Search of person on arrest

439.     This clause gives a police constable power to search a person on arrest under an extradition arrest power, unless the arrest takes place at a police station (subsection (1)).

440.     A police constable is allowed to search the person if he reasonably believes that the person could be a danger to himself or anyone else (subsection (2)). The constable may also seize and retain anything he finds as a result of this search, in accordance with subsection (6), if he reasonably believes that the person might use it to cause physical harm to himself or another person.

441.     A police constable, under subsection (3), is also allowed to search the person if he reasonably believes that the person may have something concealed on him that:

  • might be used to enable escape from custody; or

  • might be evidence of an offence or of the person's identity.

442.     A police constable may use this power to search a person only for anything described in subsection (3) and only so far as is reasonably necessary to find any such thing (subsection 4)). The police constable has power under subsection (7) to seize and retain anything found during such a search. The constable must have reasonable grounds for believing the person might use the item to assist in an escape from custody, that the item is evidence of an offence or of the person's identity, or that it has been obtained as the result of an offence.

443.     Subsection (5) sets out the limits of the search powers under subsections (2) and (3). The constable may not require a person to remove in public any clothes other than an outer coat, jacket or gloves. However, the constable is allowed to conduct a search of the person's mouth under these powers.

444.     The provisions of this clause do not affect the powers of a police constable to search a person suspected of terrorist offences under section 43 of the Terrorism Act 2000 (subsection (9)).

Clause 163: Entry and search of premises after arrest

445.     This clause gives a police constable power to enter and search premises after a person has been arrested under an extradition arrest power (subsection (1)).

446.     Subsection (2) allows a police constable to enter and search premises occupied or controlled by the arrested person, if there are reasonable grounds to believe that there is evidence of the relevant offence or of the person's identity on the premises. The relevant offence (subsection (3)) is one on the basis of which a Part 1 warrant has been or will be issued (Part 1), or on the basis of which extradition has been or will be formally requested (Part 2).

447.     A police constable may use the power to search premises only for evidence relating to the relevant offence and the person's identity and only so far as is reasonably necessary to find such evidence (subsection (4)). This evidence may not include any items subject to legal privilege. Subsection (5) allows a police constable to seize and retain anything relevant that is discovered in exercise of this power.

448.     In addition to the powers described above a police constable may (subsection (6)), having entered premises in exercise of the power in subsection (2), seize and retain anything he finds there if he has reasonable grounds to believe:

  • that it has been obtained as the result of an offence or is evidence of an offence; and

  • that it is necessary to confiscate it to avoid the evidence being lost or interfered with in any way.

449.     Under subsection (8) the powers to search premises and seize and retain evidence given in this clause may only be used with the written authorisation of a police officer of inspector level or higher. Subsection (9) gives the exception to this rule. The power to search in subsection (2) may be carried out without this authorisation before the arrested person is taken to a police station if the holding of the person somewhere other than a police station is necessary for an effective search to occur.

450.     Subsection (10) states that subsections (8) and (9) do not apply to Scotland. This means that the powers in subsections (2) and (5), to enter and search premises and to retain any evidence found as a result, may be exercised in Scotland without written authority.

Clause 164: Additional seizure powers

451.     This clause amends the Criminal Justice and Police Act 2001 so that the additional powers given in sections 50 and 51 of that Act will be available in extradition cases. These powers supplement other seizure powers in cases where it is not reasonably practicable to determine whether something found on premises or a person can be seized in exercise of the other power, or it is not reasonably practicable to separate something which a constable has power to seize from something which he does not have power to seize.

Clause 165: Fingerprints and samples

452.     This clause applies if a person is arrested under an extradition arrest power and detained at a police station.

453.     Subsections (2) and (3) give a police constable power to take fingerprints and samples only if the person has given his consent or if they have the appropriate authorisation. Under subsection (4) authorisation must come from a police officer of at least inspector level.

Clause 166: Searches and examination

454.     This clause applies if a person is arrested under an extradition arrest power and detained at a police station. The person may be searched or examined for the purpose of ascertaining his identity with the authorisation of a police officer of the rank of inspector or above. Ascertaining his identity includes establishing that he is not a particular person. (subsection (7)).

455.     If, during the course of a search or examination, an identifying mark is found, it may be photographed with the person's consent. It may still be photographed without that consent if consent is withheld or it is not practicable to obtain consent (subsection (3)). Under subsection (4) the only people allowed to conduct a search or examination or take a photograph under this clause are police constables or persons given this responsibility by the appropriate police officer. The appropriate officer is the chief police officer in the area in question for England and Wales. In Northern Ireland it is the Chief Constable of the Police Service of Northern Ireland (subsection (10)).

456.     Subsections (5) and (6) explain that no one is allowed to conduct a search or examination or photograph any part (except the face) of a person of the opposite sex. Furthermore, this clause does not allow an intimate search to be conducted.

Clause 167: Photographs

457.     This clause applies if a person is arrested under an extradition arrest power and detained at a police station. The person may be photographed with the appropriate consent; he may still be photographed without that consent if it is withheld or it is impractical to obtain consent, under subsection (2).

458.     A person proposing to take a photograph under this clause can, under subsection (3), require the person arrested to remove anything worn on the head or face. If this is not done the person taking the photograph is allowed to remove such items from the head or face of the person arrested. Under subsection (4) the only people allowed to take a photograph under this clause are police constables or persons given this responsibility by the appropriate police officer. The appropriate officer is the chief police officer in the area in question for England and Wales. In Northern Ireland it is the Chief Constable of the Police Service of Northern Ireland (subsection (6)).

Clause 168: Evidence of identity: England and Wales

459.     This clause amends the Police and Criminal Evidence Act 1984 (PACE). The PACE provisions that cover the identity issues outlined in clauses 165 to 167 above will no longer apply to a person arrested under an "extradition arrest power" (as defined below in clause 173) since in future the provisions in the Bill will apply. This relates to England and Wales only.

Clause 169: Evidence of identity: Northern Ireland

460.     This clause amends the Police and Criminal Evidence (Northern Ireland) Order 1989. The provisions in that Order that cover the identity issues outlined in clauses 165 to 167 above will no longer apply to a person arrested under an "extradition arrest power" (as defined below in clause 173) since in future the provisions of the Bill will apply. This relates to Northern Ireland only.

Clause 170: Other treatment and rights

461.     This clause applies if a person has been arrested at a police station, taken to a police station after arrest or detained after arrest in an extradition case. For such cases the Secretary of State can apply by order the four specified sections of PACE or, as appropriate, the corresponding Northern Ireland provisions (subsection (2)). These are listed in subsections (3) and (4) and determine the rights of an arrested person at a police station in relation to searches, the right to inform someone of the arrest and the right to have access to legal advice.

Clause 171: Delivery of seized property

462.     This clause relates to the handing over of seized property to an authority of a category 1 or category 2 territory. This applies to anything seized or produced under this Part of the Bill or anything seized under section 50 or 51 of the Criminal Justice and Police Act 2001 where a constable was relying on a power conferred by this Part of the Bill (subsection (1)).

463.     Subsection (2) allows a police constable to hand over any such items to a person acting on behalf of the relevant authority. A constable may do so if he has reason to believe that the authority's functions make it appropriate to hand the items over to it.

464.     Where anything has been seized under a warrant or order produced under this Part of the Bill, the relevant territory is the one that is specified in the application for the warrant or order (subsection (3)). Where anything is seized without a specific search warrant (see clauses 160 to 163) subsections (4) to (6) determine the relevant territory. The relevant territory is the one in which the Part 1 warrant was issued, or in a provisional arrest case, the one in which a constable has reason to believe such a warrant has been or will be issued. For category 2 the relevant territory is the one which has requested the person's extradition, or in a provisional arrest case, the one in which the person is accused or has been convicted of an offence.

465.     Subsections (7) to (9) set out the necessary modifications in the application of this clause to Scotland.

Clause 172: Codes of practice

466.     This clause requires the Secretary of State to issue codes of practice to cover the use of powers given in this Part of the Bill. These codes of practice must cover the use of police powers given by this Part of the Bill, the handling, return, access to and copying of anything seized during a search or produced under a production order, and the handling and destruction of any fingerprints, samples or photographs (subsection (1)).

467.     Subsections (2) and (3) explain what is to happen when the Secretary of State intends to issue a code of practice under this clause. He is required to publish the code in draft form, consider any issues arising from this consultation and, if considered appropriate, amend the code accordingly. The Secretary of State can then bring the code into effect by order (subsection (4)).

468.     It is possible to revise or replace any such code, using the same procedures as described above, as provided in subsection (5). Failure by a police constable to adhere to any such code will not of itself make him liable under either criminal or civil law (subsection (6)). A code of practice made under this clause can be admitted in court as evidence in an extradition case. Under subsection (7) a judge or court must take account of the code where it appears that it is relevant.

Clause 173: Interpretation

469.     This clause contains definitions of certain terms used in this Part of the Bill. Subsection (2) explains that an "extradition arrest power" is the power of arrest or provisional arrest given in Parts 1 and 2 of this Bill.

470.     Subsection (3) gives "excluded material" the meaning given in section 11 of PACE in England and Wales, and the corresponding provisions in Northern Ireland. This covers material, records or substances that are held in confidence (for example, personal records, medical samples or journalistic material).

471.     Subsection (4) gives "items subject to legal privilege" the meaning given by section 10 of PACE in England and Wales, and the corresponding provisions in Scotland and Northern Ireland. This covers any communication between a lawyer and his client (or a person representing either party) that is in whole or part concerned with legal advice or proceedings. However, anything held with the intention of furthering a criminal cause is not covered.

472.     Subsection (5) gives "premises" the meaning given in section 23 of PACE in England and Wales, and the corresponding provisions in Scotland and Northern Ireland. This covers any place, including any vehicle, vessel, aircraft, hovercraft, offshore installation, tent or movable structure.

473.     Subsection (6) gives "special procedure material" the meaning given in section 14 of PACE in England and Wales, and the corresponding provisions in Northern Ireland. This is material which is neither "excluded material" nor "items subject to legal privilege", but which is held in a professional or official capacity. The material must also be held subject to an implied or express undertaking to hold it in confidence or subject to an obligation of secrecy.

474.     Subsections (7) and (8) give other terms used in Part 4 the meanings given by section 65 of PACE in England and Wales, and the corresponding provisions in Northern Ireland. "Appropriate consent" is:

  • the person's own consent (if he has reached the age of 17 years);

  • the person's consent and his parent or guardian's consent (if he has reached 14 but is not yet 17);

  • the consent of the person's parent or guardian (if he is not yet 14).

475.     The term "fingerprints" includes palm prints. An "intimate search" is a search consisting of the physical examination of a person's body orifices other than the mouth. A "non-intimate sample" means a sample of hair other than pubic hair, a sample taken from a nail or under a nail, a swab taken from the body (but not an orifice), a footprint or other such impression (but not of the hand).

Clause 174: Customs officers

476.     This clause allows the Treasury to make an order authorising customs officers to perform the functions of police officers given in this Part of the Bill, with any necessary modifications specified in the order.

Clause 175: Service policemen

477.     This clause allows the Secretary of State to make an order authorising members of the services' police forces to perform the functions of police officers given in this Part of the Bill, with any necessary modifications specified in the order.

PART 5

MISCELLANEOUS AND GENERAL PROVISIONS

Clause 176: Extradition to Commonwealth countries etc.

478.     This clause provides that an Order in Council may apply any relevant extradition provision - that is those that would apply to extradition from the United Kingdom to certain category 2 territories - to a British overseas territory in modified form. These provisions, when applied, will then govern the extradition arrangements of that British overseas territory when extraditing to Commonwealth countries, other British overseas territories and the Hong Kong Special Administrative Region.

 
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Prepared: 27 March 2003