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

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Clause 177: Extradition to other category 2 territories

479.     This clause applies any relevant extradition provision - that is those that would apply to extradition from the United Kingdom to a category 2 territory not mentioned in clause 176 - to a British overseas territory. Modifications of the Act can be made by the law of the British overseas territory or the Order designating the category 2 territory in question. As modified, the Bill will then govern the extradition arrangements of the British overseas territory when extraditing to category 2 territories other than Commonwealth countries, British overseas territories and the Hong Kong Special Administrative Region.

Clause 178: Extradition from Commonwealth countries etc.

480.     This clause provides that an Order in Council may apply any relevant extradition provision - that is those that would apply to extradition to the United Kingdom from 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 from Commonwealth countries, other British overseas territories or the Hong Kong Special Administrative Region.

Clause 179: Extradition from other category 2 territories

481.     This clause applies any relevant extradition provision - that is those that would apply to extradition to the United Kingdom from a category 2 territory not covered in clause 178 - to a British overseas territory. Modifications of the Act can be made by the law of the British overseas territory or the Order designating the category 2 territory in question. As modified, the Bill will then govern the extradition arrangements of that British overseas territory when extraditing from category 2 territories other than Commonwealth countries, British overseas territories and the Hong Kong Special Administrative Region.

Clause 180: British overseas territories and the United Kingdom

482.     This clause allows any provision of this Bill to be applied, by an Order in Council, and modified as appropriate to extradition between the United Kingdom and a British overseas territory.

Clause 181: Competing claims to extradition

483.     Subsection (1) applies, if, at the same time, there is a Part 1 warrant in respect of a person and a request for the person's extradition under Part 2. Where the person has not yet been extradited or discharged under either category, the Secretary of State may order proceedings on either the warrant or the request to be deferred until the other one has been disposed of (subsection (2)), taking into account (subsection (3)):

  • the relative seriousness of the offences;

  • the place where the offence occurred/was alleged to have occurred;

  • the dates the warrant and request were issued; and

  • whether the person is accused of the offences or is alleged to be unlawfully at large after conviction of them.

484.     Where the 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)).

485.     Subsection (4) provides for the situation where both of the competing extradition claims were certified in Scotland. In these circumstances the references in this clause to the Secretary of State are to be read as references to the Scottish Ministers.

Clause 182: Proceedings on deferred warrant or request

486.     This clause applies when an order has been made under this Bill on competing extradition claims (a claim being a Part 1 warrant or a request from a category 2 territory - subsection (7)) and proceedings on one of them are deferred until the other has been disposed of. This clause sets out what is to happen with the deferred claim once the other claim has been disposed of (subsection (1)).

487.     Under subsection (2) the judge has the power, if the person applies to him, to order the person's discharge. Within 21 days of the first claim being disposed of, the judge is either to order that proceedings on the deferred claim be resumed or to order the person's discharge. If this is not done the person must be taken to be discharged (subsections (3) and (4)). Subsections (5) and (6) define who is the appropriate judge for the purposes of this clause, depending on whether the deferred proceedings were under Part 1 or Part 2 of the Bill.

Clause 183: Proceedings where extradition deferred

488.     This clause applies when an order has been made under this Bill on competing extradition claims and a person's extradition under one of the claims is deferred until the other has been disposed of. This clause sets out what is to happen with the deferred extradition once the other claim has been disposed of (subsection (1)).

489.     Under subsection (2) the judge has the power, if the person applies to him, to order the person's discharge. Within 21 days of the first claim being disposed of, the judge is either to order that the extradition cease to be deferred or to order the person's discharge. If this is not done the person must be taken to be discharged (subsections (3) and (4)). Subsections (5) and (6) define who is the appropriate judge for the purposes of this clause, depending on whether the deferred extradition was ordered under Part 1 or Part 2 of the Bill.

Clause 184: Legal aid: Scotland

490.     This clause means that the provisions of the Legal Aid (Scotland) Act 1986 apply to extradition proceedings (including any subsequent appeal) in Scotland, under Part 1, 2 or 5 of this Bill, in the same way that they apply to summary proceedings in Scotland.

Clause 185: Grant of free legal aid: Northern Ireland

491.     This clause gives an appropriate judge and the High Court the power to grant free legal aid to a person in connection with proceedings under Part 1 or 2 of the Bill in Northern Ireland (see clause 212). The provision of legal aid in connection with extradition cases for other parts of the United Kingdom is contained in the appropriate legal aid legislation, which will be amended by secondary legislation.

492.     Subsection (1) provides for the appropriate judge to grant free legal aid to a person in connection with extradition proceedings before the judge or the High Court. Similarly, a judge of the High Court can grant a person free legal aid in connection with extradition proceedings before that court or the House of Lords (subsection (2)). Where a judge refuses to grant free legal aid in connection with proceedings before the High Court, the person can appeal this decision to the High Court. The High Court may itself then grant free legal aid (subsection (3)). A judge of the High Court may grant free legal aid in connection with proceedings on such an appeal (subsection (4)). On such an appeal the High Court may either allow or dismiss the appeal. If it allows the appeal it must then grant the person free legal aid in connection with the relevant proceedings under Part 1 or 2 of this Bill (subsections (6) and (8)).

493.     Subsections (5) and (7) set out the criteria on which the judge or court is to decide whether free legal aid is to be granted. The judge or court may grant free legal aid, or allow an appeal against refusal of free legal aid, only where it appears that:

  • the person's means are insufficient to enable him to obtain legal aid, and

  • it is desirable in the interests of justice that free legal aid be granted.

494.     If, in deciding this question, there is any doubt as to whether either test is satisfied, the decision must be made in the person's favour (subsection (9)).

495.     Where this clause refers to "free legal aid" it means appointing for the person a solicitor and/or counsel to represent him (subsection (10)).

Clause 186: Free legal aid: supplementary

496.     This clause sets out supplementary provisions regarding the provision of free legal aid in Northern Ireland in connection with extradition proceedings under Part 1 or 2 of this Bill.

497.     Subsections (1) to (3) apply the existing legislation in Northern Ireland about legal aid in criminal cases to legal aid under clause 185 in proceedings before the judge or High Court, so that existing rules operate in relation to legal aid in extradition cases. The provisions relate to (subsection (2)):

  • the person's statement of means in connection with a grant of legal aid;

  • the payment of legal aid coming from money provided by Parliament;

  • the Lord Chancellor's power to make rules regarding the practical arrangements for legal aid;

  • the exclusion of certain solicitors from legal aid work;

  • the amounts payable to solicitors and counsel for legal aid work;

  • the exemption of legal aid certificates from stamp duty.

498.     Subsection (3) applies the relevant provisions described above as if clause 185 formed part of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981.

499.     Any expenses or fees of counsel or a solicitor assigned to a person under clause 185 in proceedings before the House of Lords must be paid by the Lord Chancellor (subsection (4)). Under subsection (5) such fees or expenses must not exceed the amount allowed by the House of Lords or an officer(s) of the House designated by order.

500.     Subsection (6) makes clear that, as clause 185 applies only to Northern Ireland, the appropriate judge in this context is any county court judge or resident magistrate designated for proceedings under either Part 1 or 2, as appropriate.

Clause 187: Asylum appeal to High Court where extradition ordered

501.     This clause sets out the right of appeal against the rejection of an asylum claim where an extradition claim is also outstanding in respect of the person in question.

502.     This clause therefore applies if the person sought for extradition makes an asylum claim at any time during the extradition proceedings, that claim is rejected by the Secretary of State and an order is made for the person to be extradited under Part 1 or 2 of this Bill (subsection (1)). For the purposes of this clause the extradition proceedings start when a certificate is issued under clause 2 or 69 and end when the person is extradited, an order is made for his discharge or he is taken to be discharged under any provision of this Bill (subsection (2)).

503.     In these circumstances this clause grants the person a right to appeal to the High Court against the Secretary of State's decision in place of the right of appeal that would otherwise apply under section 83 of the Nationality, Immigration and Asylum Act 2002 (subsections (3) and (4)). Subsection (5) applies to the High Court appeal those provisions of the Nationality, Immigration and Asylum Act that apply to an appeal under section 83 of that Act. Subsection (6), in conjunction with subsections (5)(d) and (5)(e), mean that an appeal under this clause can be heard by the Special Immigration Appeals Commission where appropriate for reasons of national security, etc. This will apply in the same way that it does to section 83 of the Nationality, Immigration and Asylum Act.

504.     Subsection (7) defines an extradition claim as a Part 1 warrant or an extradition request under Part 2 of this Bill. "Asylum claim" has the meaning given by section 113 of the Nationality, Immigration and Asylum Act 2002 (subsection (8)) - see clause 39 above.

Clause 188: Asylum appeal to House of Lords where extradition ordered

505.     This clause gives a person the right to appeal to the House of Lords against the decision of the High Court on an asylum appeal under clause 187. An appeal can be brought under this clause by a party to the High Court appeal but only with the leave of either the High Court or the House of Lords (subsections (1) to (3)). Leave to appeal under this clause will only be given if the High Court has certified that the decision involves a point of law of general public importance and the court feels that it is one which ought to be considered by the House of Lords (subsection (4)).

506.     Subsection (5) states that an application to the High Court for leave to appeal to the House of Lords must be made within 14 days of the High Court's decision. A person then has 14 days, starting from the time the High Court refuses leave to appeal, to apply to the House of Lords for leave (subsection (6)). Under subsection (7) the High Court has the power to grant bail to a person appealing or applying for leave to appeal under this clause.

507.     Subsections (8) and (9) apply provisions of the Appellate Jurisdiction Act 1876 which concern the composition of the House of Lords for hearing and determination of appeals. Subsections (10) and (11) apply section 102(1), (2) and (4) of the Nationality, Immigration and Asylum Act 2002 to an appeal to the House of Lords, as they would apply to an appeal to the Immigration Appeal Tribunal under section 101 of that Act.

Clause 189: Human rights: appropriate tribunal

508.     Section 7(1)(a) of the Human Rights Act 1998 allows a person who claims that a public authority has acted in a way that is incompatible with the European Convention on Human Rights to bring proceedings against the authority. This clause establishes that the only appropriate court or tribunal for hearing human rights claims arising out of the extradition process will be the appropriate judge dealing with the extradition proceedings under Parts 1 or 2 of this Bill (subsection (1)). For a case under Part 1 of the Bill the appropriate judge is as defined in clause 66 and for Part 2 is as defined in clause 139 (subsections (2) and (3)).

Clause 190: Delivery up to International Criminal Court

509.     This clause amends the International Criminal Court Act 2001, so as to extend the application of the provisions in that Act about delivery of persons subject to extradition proceedings to include proceedings under this Bill.

Clause 191: Genocide, crimes against humanity and war crimes

510.     This clause ensures that genocide, crimes against humanity, war crimes and related offences are included as extradition offences. Conduct that would be punishable in the United Kingdom under any of the provisions listed in subsection (2) amounts to an extradition offence even if it would not have been an offence at the time when and the place where it occurred.

Clause 192: Custody

511.     This clause applies to any person being held in custody under a power given in this Bill.

512.     Subsection (1) provides that, where a judge remands a person in custody, the person must be taken into custody in the same way as if he had been charged with an offence and the judge had remanded him in custody. In addition, if a person escapes from custody following arrest under this Bill, he can be retaken into custody lawfully in any part of the country, in the same way as if he had been in custody following arrest on a domestic warrant (subsections (2) and (3)).

513.     Under subsections (4) and (5) where a person held in custody is required to be transferred to another part of the country (other than over land), after being remanded in custody under this Bill, he must be treated as being in continuous legal custody until the transfer is complete.

514.     Subsection (6) provides for an order for a person's extradition made under this Bill to be sufficient authority for that person to be received, held in custody pending extradition and then extradited to the relevant territory. This power is available to a constable or to the person to whom the order is directed (subsection (7)).

Clause 193: Bail: England and Wales

515.     This clause amends the Bail Act 1976 so that extradition proceedings under this Bill are governed by the bail provisions that apply in other criminal justice proceedings (subsections (1) to (3)).

516.     The amendments to section 4 of the Bail Act contained in subsections (4) and (5) extend the presumption in favour of bail to proceedings in extradition cases where a person is accused of an offence. Currently the presumption in favour of bail does not apply to extradition cases and these amendments remove this anomaly, to bring extradition proceedings into line with other criminal proceedings. In conviction cases the presumption in favour of bail does not apply.

517.     The amendments in subsection (6) relate to the situation where a person has been granted bail in the course of extradition proceedings. A court is given power to withhold bail or vary or impose conditions of bail, on the application by the person representing the requesting state in extradition proceedings.

518.     Subsections (7) to (11) apply when a person has been granted bail in the course of extradition proceedings. Their effect is that the person is subject to the same liability to arrest as if he was granted bail and is under a duty to surrender into custody in the course of a criminal case. Therefore, where the person fails to surrender as required, a magistrates' court has the power to issue a warrant for his arrest. In addition, where there is reason to believe that the person is likely to break his bail conditions or fail to surrender, the person may be arrested without warrant by a constable. A constable also has this power if, where applicable, a person's surety gives notice in writing that the person is unlikely to surrender and so the surety requests to be relieved of his associated obligations. If a person is arrested in this manner without a warrant he must be brought before a justice of the peace within 24 hours (this is calculated to except Sundays and certain public holidays). The justice of the peace will decide whether the person is then to be granted bail again or committed to custody.

519.     The amendments in subsections (12) to (14) are to Part 1 of Schedule 1 of the Bail Act. Their effect is that this Part of the Schedule, which governs the decision-making process for granting bail in criminal law cases involving imprisonable offences, also applies in extradition cases.

Clause 194: Bail: Scotland

520.     This clause amends the Criminal Procedure (Scotland) Act 1995. A new section 24A is inserted into Part 3 of that Act, modifying the Act's provisions on bail in relation to extradition proceedings. The effect of the new provisions is that the existing Scots law of bail applies to persons facing extradition, in so far as this is consistent with the Bill. This is to reflect the situation in England and Wales.

521.     In Scotland, unlike in England and Wales, the police have no power to grant bail. However, the Lord Advocate has the power to grant bail to any person charged with any crime or offence. The new section 24A(1)(b) makes it clear that the Lord Advocate can exercise this power in relation to a person subject to extradition proceedings.

522.     The new section 24A also includes an order-making power to enable the Scottish Ministers to amend the bail provisions in the Criminal Procedure (Scotland) Act 1995, in so far as is necessary or expedient, for the purposes of extradition.

Clause 195: Appeal against grant of bail

523.     This clause amends the Bail (Amendment) Act 1993 in order to give the person acting on behalf of the requesting territory the right to appeal against a judge's decision to grant a person bail in the course of extradition proceedings. This would confers a right of appeal in the same way that the prosecution has a right of appeal against a decision to grant bail in the course of certain criminal proceedings in this country.

524.     There are certain conditions attached to this right of appeal. For example, the effect of subsection (3) is that an appeal can only be brought if representations were made against bail before it was granted. Similarly, the consequence of subsection (4) is that, where such an appeal is to be brought, oral notice of this must be given at the end of the proceedings in which bail was given and before the person has been released from custody.

525.     Written notice of the appeal must then be given within two hours of the conclusion of the relevant proceedings, or the appeal will be treated as having been disposed of. Any appeal brought under this clause must start within two working days of the date on which oral notice was given.

Clause 196: Remand to local authority accommodation

526.     This clause amends section 23 of the Children and Young Persons Act 1969 (and, consequently, section 98(1) of the Crime and Disorder Act 1998) in relation to the detention on remand of a child or young person in connection with extradition proceedings.

527.     The effect of subsection (3) is that, where a child or young person who is the subject of extradition proceedings is not granted bail, remand is to be to local authority accommodation. That accommodation may be required to be secure accommodation only when each of three conditions are met, as set out in subsections (4) to (7).

528.     The first condition is that the person is 12 years of age (or older) and of a description prescribed by reference to age or sex or both by an order of the Secretary of State. The second condition is that:

  • the offence for which extradition is sought would, if committed in the UK by an adult, attract imprisonment for 14 years or more; and/or

  • the person has previously absconded from proceedings connected with the offence or from the extradition proceedings in question (whether in the UK or the requesting territory).

529.     The third condition is that the court is of the opinion, after considering all the options, that only remanding the person to secure local authority accommodation would be adequate:

  • to protect the public from serious harm from him; or

  • to prevent the commission by him of imprisonable offences.

Clause 197: Extradition for more than one offence

530.     This clause allows the Secretary of State to apply this Bill with modifications, by order, to take account of a particular case where a Part 1 warrant or a request for extradition to a category 2 territory is made in respect of more than one offence.

Clause 198: National security

531.     This clause enables the Secretary of State to prevent a person's extradition where it would be against the interests of national security.

532.     Subsection (1) provides for the clause to apply if the Secretary of State believes that the conditions in subsections (2) to (4) apply. The condition in subsection (2) is that the person's extradition is sought, or likely to be sought, under either Part 1 or Part 2 of this Bill. Subsection (3) gives two conditions, either of which must be met. The first is that the person was acting pursuant to a statutory power of this country in engaging in the conduct amounting to, or alleged to amount to the offence. The second is that the person is not liable under the criminal law of any part of the United Kingdom for the conduct amounting to, or alleged to amount to the offence as a result of an authorisation given by the Secretary of State. The third condition that must be met is that the person's extradition for the offence in question would be against the interests of national security (subsection (4)).

533.     If satisfied that the necessary conditions are met the Secretary of State can issue a certificate to this effect (subsection (5)). Subsection (6) allows the Secretary of State, having issued such a certificate, to direct that the relevant Part 1 warrant or extradition request (Part 2) is not to be proceeded with for the offence in question. He may also, in addition to or in place of a direction to that effect, order the person's discharge (subsection (7)).

534.     Subsection (8) sets out what is to happen in the event of the Secretary of State giving a direction under subsection (6)(a) (a Part 1 warrant):

  • the designated authority must not issue a certificate if it has not already done so (see clause 2);

  • the person is not required to appear before a judge and must be discharged if he has already been arrested (see clauses 3 to 6);

  • the judge is not required to proceed with the case if the person has already been brought before him (see clauses 7 and 8);

  • the judge is not required to continue proceedings if they have already begun (see clauses 10 to 25);

  • if the person has consented to his extradition the judge is not required to order his extradition;

  • the court is not required to deal with an appeal if one has been brought to the High Court or the House of Lords;

  • the person is not required to be extradited if his extradition has been ordered.

535.     Subsection (9) sets out what is to happen in the event of the Secretary of State giving a direction under subsection (6)(b) (a Part 2 request):

  • the Secretary of State is not required to issue a certificate if he has not already done so (see clause 69);

  • the person is not required to be brought before a judge and must be discharged if he has already been arrested (see clause 70);

  • the judge is not required to proceed with the case if the person has already been brought before him (see clauses 71, 73, 74 and 75);

  • the judge is not required to continue proceedings if they have already begun (see clauses 77 to 90);

  • if the person has consented to his extradition the judge is not required to send his case to the Secretary of State;

  • the court is not required to deal with an appeal if one has been brought to the High Court or the House of Lords;

  • the person is not required to be extradited if his extradition has been ordered.

536.     Subsection (10) stipulates that the Secretary of State is required to sign in person any certificate, direction or order issued under this clause.

537.     Subsections (11) and (12) contain the appropriate modifications for this clause to apply to Scotland.

 
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Prepared: 27 March 2003