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Criminal Justice and Immigration Bill


Criminal Justice and Immigration Bill
Part 6 — International co-operation in relation to criminal justice matters

68

 

93      

Issue of warrant transferring responsibility for detention and release of an

offender to or from the relevant Minister

After section 4 of the Repatriation of Prisoners Act 1984 (c. 47) (transfer into the

United Kingdom) insert—

“Transfer of responsibility for detention and release of offender present outside the

5

country or territory in which he is required to be detained

4A      

Issue of warrant transferring responsibility for detention and release

of offender

(1)   

This section enables responsibility for the detention and release of a

person to whom subsection (2) or (3) applies to be transferred between

10

the relevant Minister in the United Kingdom and the appropriate

authority in a country or territory outside the British Islands.

(2)   

A person falls within this subsection if that person—

(a)   

is a person to whom section 1(7) applies by virtue of—

(i)   

an order made in the course of the exercise by a court or

15

tribunal in any part of the United Kingdom of its

criminal jurisdiction; or

(ii)   

any of the provisions of this Act or any similar

provisions of the law of any part of the United Kingdom;

and

20

(b)   

is present in a country or territory outside the British Islands.

(3)   

A person falls within this subsection if that person—

(a)   

is a person to whom section 1(7) applies by virtue of —

(i)   

an order made in the course of the exercise by a court or

tribunal in a country or territory outside the British

25

Islands of its criminal jurisdiction; or

(ii)   

any provisions of the law of such a country or territory

which are similar to any of the provisions of this Act;

and

(b)   

is present in the United Kingdom.

30

(4)   

Terms used in subsection (2)(a) and (3)(a) have the same meaning as in

section 1(7).

(5)   

Subject to the following provisions of this section, where—

(a)   

the United Kingdom is a party to international arrangements

providing for the transfer between the United Kingdom and a

35

country or territory outside the British Islands of responsibility

for the detention and release of persons to whom subsection (2)

or (3) applies,

(b)   

the relevant Minister and the appropriate authority of that

country or territory have each agreed to the transfer under those

40

arrangements of responsibility for the detention and release of

a particular person to whom subsection (2) or (3) applies (in this

Act referred to as “the relevant person”), and

(c)   

in a case in which the terms of those arrangements provide for

the transfer of responsibility to take place only with the relevant

45

person’s consent, that consent has been given,

 
 

Criminal Justice and Immigration Bill
Part 6 — International co-operation in relation to criminal justice matters

69

 

   

the relevant Minister shall issue a warrant providing for the transfer of

responsibility for the detention and release of the relevant person from

that Minister (where subsection (2) applies) or to that Minister (where

subsection (3) applies).

(6)   

The relevant Minister shall not issue a warrant under this section

5

providing for the transfer of responsibility for the detention and release

of a person to the relevant Minister unless—

(a)   

that person is a British citizen;

(b)   

the transfer appears to the relevant Minister to be appropriate

having regard to any close ties which that person has with the

10

United Kingdom.

(7)   

The relevant Minister shall not issue a warrant under this section

where, after the duty in subsection (5) has arisen, circumstances arise or

are brought to his attention which in his opinion make it inappropriate

that the transfer of responsibility should take place.

15

(8)   

The relevant Minister shall not issue a warrant under this section (other

than one superseding an earlier warrant) unless he is satisfied that all

reasonable steps have been taken to inform the relevant person in

writing in his own language—

(a)   

of the substance, so far as relevant to the case, of the

20

international arrangements in accordance with which it is

proposed to transfer responsibility for his detention and release;

(b)   

of the effect in relation to the relevant person of the warrant

which it is proposed to issue under this section;

(c)   

in the case of a person to whom subsection (2) applies, of the

25

effect in relation to his case of so much of the law of the country

or territory concerned as has effect with respect to transfers

under those arrangements of responsibility for his detention

and release;

(d)   

in the case of a person to whom subsection (3) applies, of the

30

effect in relation to his case of the law relating to his detention

under that warrant and subsequent release (including the effect

of any enactment or instrument under which he may be

released earlier than provided for by the terms of the warrant);

and

35

(e)   

of the powers of the relevant Minister under section 6;

   

and the relevant Minister shall not issue a warrant superseding an

earlier warrant under this section unless the requirements of this

subsection were fulfilled in relation to the earlier warrant.

(9)   

A consent given for the purposes of subsection (5)(c) shall not be

40

capable of being withdrawn after a warrant under this section has been

issued in respect of the relevant person; and, accordingly, a purported

withdrawal of that consent after that time shall not affect the validity of

the warrant, or of any provision which by virtue of section 6

subsequently supersedes provisions of that warrant, or of any direction

45

given in relation to the prisoner under section 4B(3).

(10)   

In this section “relevant Minister” means—

(a)   

the Scottish Ministers in a case where the person who is the

subject of the proposed transfer of responsibility is—

 
 

Criminal Justice and Immigration Bill
Part 6 — International co-operation in relation to criminal justice matters

70

 

(i)   

a person to whom subsection (2) applies who is for the

time being required to be detained at a place in Scotland;

or

(ii)   

a person to whom subsection (3) applies, if it is proposed

that he will be detained at a place in Scotland;

5

(b)   

the Secretary of State, in any other case.

4B      

Transfer of responsibility from the United Kingdom

(1)   

The effect of a warrant under section 4A relating to a person to whom

subsection (2) of that section applies shall be to transfer responsibility

for the detention and release of that person from the relevant Minister

10

(as defined in section 4A(10)) to the appropriate authority of the

country or territory in which he is present.

(2)   

Subject to subsections (3) to (6), the order by virtue of which the

relevant person is required to be detained at the time such a warrant is

issued in respect of him shall continue to have effect after the transfer

15

of responsibility so as to apply to him if he comes to be in the United

Kingdom at any time when under that order he is to be, or may be,

detained.

(3)   

If, at any time after the transfer of responsibility, it appears to the

relevant Minister appropriate to do so in order that effect may be given

20

to the international arrangements in accordance with which the

transfer took place, the relevant Minister may give a direction—

(a)   

varying the order referred to in subsection (2); or

(b)   

providing for the order to cease to have effect.

(4)   

In subsection (3) “relevant Minister” means—

25

(a)   

the Scottish Ministers, where Scotland is the part of the United

Kingdom in which the order referred to in subsection (2) has

effect; and

(b)   

the Secretary of State in any other case.

(5)   

The power by direction under subsection (3) to vary the order referred

30

to in subsection (2) includes power by direction—

(a)   

to provide for how any period during which the detention and

release of the relevant person is, by virtue of a warrant under

section 4A, the responsibility of a country or territory outside

the United Kingdom is to be treated for the purposes of the

35

order; and

(b)   

to provide for the relevant person to be treated as having been

released or discharged as mentioned in any paragraph of

section 2(4)(b).

(6)   

Except in relation to any period during which a restriction order is in

40

force in respect of the relevant person, subsection (2) shall not apply in

relation to a hospital order; and, accordingly, a hospital order shall

cease to have effect in relation to that person—

(a)   

at the time of the transfer of responsibility, if no restriction order

is in force in respect of him at that time; and

45

(b)   

if at that time a restriction order is in force in respect of him, as

soon after the transfer of responsibility as the restriction order

ceases to have effect.

 
 

Criminal Justice and Immigration Bill
Part 6 — International co-operation in relation to criminal justice matters

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(7)   

In subsection (6) “hospital order” and “restriction order” have the same

meaning as in section 2(6).

(8)   

References in this section to the order by virtue of which a person is

required to be detained at the time a warrant under section 4A is issued

in respect of him include references to any order by virtue of which he

5

is required to be detained after the order by virtue of which he is

required to be detained at that time ceases to have effect.

4C      

Transfer of responsibility to the United Kingdom

(1)   

The effect of a warrant under section 4A relating to a person to whom

subsection (3) of that section applies shall be to transfer responsibility

10

for the detention and release of that person to the relevant Minister (as

defined in section 4A(10)) and to authorise—

(a)   

the taking of that person in custody to such place in any part of

the United Kingdom as may be specified in the warrant, being

a place at which effect may be given to the provisions contained

15

in the warrant by virtue of paragraph (b); and

(b)   

the detention of that person in any part of the United Kingdom

in accordance with such provisions as may be contained in the

warrant, being provisions appearing to the relevant Minister to

be appropriate for giving effect to the international

20

arrangements in accordance with which responsibility for that

person is transferred.

(2)   

A provision shall not be contained by virtue of subsection (1)(b) in a

warrant under section 4A unless it satisfies the following two

conditions, that is to say—

25

(a)   

it is a provision with respect to the detention of a person in a

prison, a hospital or any other institution; and

(b)   

it is a provision which at the time the warrant is issued may be

contained in an order made either—

(i)   

in the course of the exercise of its criminal jurisdiction by

30

a court in the part of the United Kingdom in which the

person is to be detained; or

(ii)   

otherwise than by a court but for the purpose of giving

effect to an order made as mentioned in sub-paragraph

(i).

35

(3)   

Section 3(3) applies for determining for the purposes of paragraph (b)

of subsection (1) above what provisions are appropriate for giving

effect to the international arrangements mentioned in that paragraph in

a relevant person’s case as it applies for the purposes of section 3(1)(c)

in the case of a prisoner who is to be transferred into the United

40

Kingdom.

(4)   

Subject to subsection (6) and Part 2 of the Schedule to this Act, a

provision contained by virtue of subsection (1)(b) in a warrant under

section 4A shall for all purposes have the same effect as the same

provision contained in an order made as mentioned in sub-paragraph

45

(i) or, as the case may be, sub-paragraph (ii) of subsection (2)(b).

(5)   

A provision contained by virtue of subsection (1)(b) in a warrant under

section 4A shall take effect with the delivery of the relevant person to

the place specified in the warrant for the purposes of subsection (1)(a).

 
 

Criminal Justice and Immigration Bill
Part 6 — International co-operation in relation to criminal justice matters

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(6)   

Subsection (4) shall not confer any right of appeal on the relevant

person against provisions contained by virtue of subsection (1)(b) in a

warrant under this section.

(7)   

Part 2 of the Schedule to this Act shall have effect with respect to the

operation of certain enactments in relation to provisions contained by

5

virtue of subsection (1)(b) in a warrant under section 4A.

(8)   

For the purposes of determining whether at any particular time any

such order as is mentioned in subsection (2)(b) could have been made

as so mentioned, there shall be disregarded both—

(a)   

any requirement that certain conditions must be satisfied before

10

the order is made; and

(b)   

any restriction on the minimum period in respect of which the

order may be made.”

94      

Powers to arrest and detain persons believed to fall within section 4A(3) of the

Repatriation of Prisoners Act 1984

15

After section 4C of the Repatriation of Prisoners Act 1984 (c. 47) (as inserted by

section 93) insert—

“Persons believed to fall within section 4A(3): powers of arrest and detention

4D      

Arrest and detention with a view to establishing whether a person

falls within section 4A(3) etc.

20

(1)   

The Secretary of State or the Scottish Ministers may issue a certificate

stating that the issuing authority—

(a)   

considers that there are reasonable grounds for believing that a

person in the United Kingdom is a person falling within section

4A(3), and

25

(b)   

has requested written confirmation from the country or

territory concerned of the details of that person’s case.

(2)   

The issuing authority may send the certificate (with any other

documents appearing to the authority to be relevant) to the appropriate

judge with a view to obtaining the issue of a warrant under subsection

30

(3).

(3)   

The appropriate judge may, on receiving the certificate, issue a warrant

for the arrest of the person concerned if the judge is satisfied that there

are reasonable grounds for believing that the person falls within section

4A(3).

35

(4)   

The warrant may be executed anywhere in the United Kingdom by any

designated person (and it is immaterial whether or not he is in

possession of the warrant or a copy of it).

(5)   

A person arrested under this section shall, as soon as is practicable—

(a)   

be given a copy of the warrant for his arrest; and

40

(b)   

be brought before the appropriate judge.

(6)   

The appropriate judge may order that a person before him who is the

subject of a certificate under this section is to be detained from the time

 
 

Criminal Justice and Immigration Bill
Part 6 — International co-operation in relation to criminal justice matters

73

 

the order is made until the end of the period of seven days beginning

with the day after that on which the order is made.

(7)   

The purpose of an order under subsection (6) is to secure the detention

of the person concerned while—

(a)   

written confirmation is obtained from a representative of the

5

country or territory concerned of the details of his case;

(b)   

it is established whether he is a person falling within section

4A(3); and

(c)   

any application for an order under section 4E(6) is made in

respect of him.

10

(8)   

Subject to subsection (9), a person detained under such an order may be

released at any time during the period mentioned in subsection (6) and

shall be released at the end of that period (if not released sooner).

(9)   

Subsection (8) ceases to apply to the detained person if, during that

period, an order under section 4E is made in respect of him.

15

(10)   

It is immaterial for the purposes of subsection (6) whether or not the

person concerned has previously been arrested under this section.

4E      

Arrest and detention with a view to determining whether to issue a

warrant under section 4A

(1)   

The Secretary of State or the Scottish Ministers may issue a certificate

20

stating that the issuing authority—

(a)   

considers that a person in the United Kingdom is a person

falling within section 4A(3), and

(b)   

has received written confirmation from a representative of the

country or territory concerned of the details of that person’s

25

case;

   

and it is immaterial for the purposes of this section whether or not the

person concerned has been previously arrested or detained under

section 4D.

(2)   

The issuing authority may send the certificate (with a copy of the

30

written confirmation mentioned in subsection (1)(b) and any other

documents appearing to that authority to be relevant) to the

appropriate judge with a view to obtaining the issue of a warrant under

subsection (3).

(3)   

The appropriate judge may, on receiving the certificate, issue a warrant

35

for the arrest of the person concerned if the judge is satisfied that there

are reasonable grounds for believing that the person falls within section

4A(3).

(4)   

The warrant may be executed anywhere in the United Kingdom by any

designated person (and it is immaterial whether or not that person is in

40

possession of the warrant or a copy of it).

(5)   

A person arrested under this section shall, as soon as is practicable—

(a)   

be given a copy of the warrant for his arrest; and

(b)   

be brought before the appropriate judge.

(6)   

The appropriate judge may, on the application of the Secretary of State

45

or the Scottish Ministers, order that a person before the judge who—

 
 

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Part 6 — International co-operation in relation to criminal justice matters

74

 

(a)   

is the subject of a certificate under this section, and

(b)   

the judge is satisfied is a person falling within section 4A(3),

   

shall be detained from the time the order is made until the end of the

period of fourteen days beginning with the day after that on which the

order is made.

5

(7)   

The purpose of an order under subsection (6) is to secure the detention

of the person concerned until—

(a)   

it is determined whether to issue a warrant under section 4A;

and

(b)   

if so determined, such a warrant is issued.

10

(8)   

Subject to subsection (9), a person detained under such an order may be

released at any time during the period mentioned in subsection (6) and

shall be released at the end of that period (if not released sooner).

(9)   

Subsection (8) ceases to apply to the detained person if, during that

period, a warrant under section 4A is issued in respect of him.

15

(10)   

It is immaterial for the purposes of subsection (6) whether or not the

person concerned has previously been arrested or detained under

section 4D or arrested under this section.

4F      

Sections 4D and 4E: supplementary provisions

(1)   

This section has effect for the purposes of sections 4D and 4E.

20

(2)   

A “designated person” is a person designated by the Secretary of State

or the Scottish Ministers.

(3)   

The appropriate judge is—

(a)   

in England and Wales, any District Judge (Magistrates’ Courts)

who is designated for those purposes by the Lord Chief Justice

25

after consulting the Lord Chancellor;

(b)   

in Scotland, the sheriff of Lothian and Borders; and

(c)   

in Northern Ireland, any county court judge or resident

magistrate who is designated for those purposes by the Lord

Chief Justice of Northern Ireland after consulting the Lord

30

Chancellor.

(4)   

A designation under subsection (2) or (3)(a) or (c) may be made—

(a)   

for the purposes of section 4D or 4E (or both); and

(b)   

for all cases or only for cases (or cases of a description) specified

in the designation.

35

(5)   

A designated person shall have all the powers, authority, protection

and privileges of a constable in any part of the United Kingdom in

which a person who may be arrested under section 4D or 4E is for the

time being.”

95      

Amendments relating to Scotland

40

(1)   

The amendments of section 1 of the Repatriation of Prisoners Act 1984 (c. 47)

made by section 44(2) and (3) of the Police and Justice Act 2006 (c.48) (which

amend the requirement for the prisoner’s consent to any transfer to or from the

United Kingdom) apply in relation to cases in which the relevant Minister for

the purposes of section 1 is the Scottish Ministers as they apply in other cases.

45

 
 

 
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