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Explanatory Notes to Extradition Act
2003 Chapter 41 |
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These notes refer to the Extradition Act 2003 (c.41) which received Royal Assent on 20th November 2003 EXTRADITION ACTEXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Extradition Act which received Royal Assent on 20th November 2003. They have been prepared by the Home Office in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament. 2. These notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given. 3. Sections 157 to 160, 166 to 168, 171, 173 and 205 of the Act apply only to England, Wales and Northern Ireland. Sections 154, 198, 200 and 201 apply only to England and Wales. Sections 183 and 199 apply only to Scotland, and sections 184 and 185 apply only to Northern Ireland. All other sections of the Act apply to the whole of the United Kingdom. SUMMARY 4. This Act reforms the law on extradition. 5. Extradition takes place when, at the request of another jurisdiction, a person accused or convicted of a serious offence is returned by the United Kingdom to that jurisdiction, or where a person is returned from another jurisdiction, at the United Kingdom's request, to stand trial or serve a custodial sentence. (This is distinct from deportation where the country in which the person is present initiates the removal process.) BACKGROUND 6. Crime, particularly serious crime, is becoming increasingly international in nature and criminals can flee justice by crossing borders with increasing ease. Improved judicial co-operation between nations is needed to tackle this development. The reform of the United Kingdom's extradition law is designed to contribute to that process. 7. Extradition is an important tool in dealing with international crime: no one should be able to escape justice by simply crossing a border. The law should provide a quick and effective framework to extradite a person to the country where he is accused or has been convicted of a serious crime, provided that this does not breach his fundamental human rights. 8. Current United Kingdom extradition legislation was enacted in 1989. However, the 1989 Act is essentially a consolidation of three earlier pieces of legislation: Part 1 of the Criminal Justice Act 1988, the Fugitive Offenders Act 1967 and the Extradition Act 1870 (as amended). 9. The Government set out its proposals to reform the law on extradition in a consultation document "The Law on Extradition: A Review" in March 2001. It was the outcome of an exercise started in 1997 to consider the legislative requirements of two European Union Conventions on Extradition. However, it developed into a much more extensive inquiry, following the adoption at the Tampere Special European Council in October 1999 of the principle of mutual recognition of judicial decisions by Member States of the European Union. 10. The publication of the Review followed an extensive period of consultation with officials from a number of organisations including the Crown Prosecution Service, Lord Chancellor's Department, Bow Street Magistrates' Court, Metropolitan Police, Foreign and Commonwealth Office and others. Its proposals, which were aimed at modernising arrangements between the United Kingdom and its extradition partners, included:
11. There were 22 written responses to the proposals contained in the document, seven of which requested that their responses should not be published. The remaining 15 were published on 24 October 2001. Many detailed comments were made, but overall, the majority of those that responded supported the Review's proposals. THE ACT 12. The Act makes provision to give effect to the proposals in the Review, although there are some changes which reflect the results of the consultation exercise and developments since the Review was published. (Accession to the 1995 and 1996 European Union Conventions on Extradition was approved by both Houses of Parliament on 19 December 2001.) The proposals in the Review have also been overtaken by progress in respect of extradition to other European Union Member States. This Act includes provisions implementing the following European Community Legislation: the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). A Transposition Note setting out how the Government will transpose into United Kingdom law the main elements of this framework decision is available from the libraries of both Houses of Parliament, or from the Home Office: Extradition Act 2003 Team http://www.homeoffice.gov.uk/crimpol/oic/extradition/bill/index.html 13. The Extradition Bill was published in draft form on 27 June 2002 and was open to public consultation until 30 September 2002. There were 11 responses to the consultation documents, nine of which were published and are available from the libraries of both Houses of Parliament, or on the Home Office website (above). (Two contributors asked for their responses not to be made public.) The Bill therefore included a number of amendments in the light of the comments received since it was published in draft. 14. The Act makes provision for new extradition procedures, the main features of which are:
TERRITORIAL APPLICATION: WALES 15. The Act does not affect the powers of the National Assembly for Wales. PART 1 EXTRADITION TO CATEGORY 1 TERRITORIES Section 1: Extradition to category 1 territories 16. This section defines the territories that are covered by Part 1 of the Act. 17. Subsections (1) and (2) explain that Part 1 of the Act deals with extradition from the United Kingdom to those territories designated as category 1 territories by order made by the Secretary of State. Under subsection (3) a territory may not be designated as a category 1 territory if the death penalty is retained as a punishment under the general criminal law of that country. Section 2: Part 1 warrant and certificate 18. This section sets out the arrangements for certifying a Part 1 warrant when it is received by the designated authority (defined below). 19. Subsection (2) defines a Part 1 warrant as an arrest warrant which has been issued by a judicial authority in the relevant category 1 country. It must contain either the statement given in subsection (3) and the information in subsection (4), or the statement given in subsection (5) and the information in subsection (6). 20. The subsection (3) statement must state that the person in question is accused in the territory issuing the warrant of the commission of a specified offence and that the warrant has been issued for the purposes of arrest and prosecution. The information required by subsection (4) is:
21. The subsection (5) statement must state that the person is unlawfully at large after conviction of a specified offence by a court in the territory issuing the warrant, and that the warrant has been issued for the purposes of his being sentenced or serving a custodial sentence in respect of that offence. The information required by subsection (6) is:
22. Subsection (7) gives the designated authority power to issue a certificate if it believes that the Part 1 warrant has been issued by a judicial authority in the category 1 territory which has the function of issuing arrest warrants in that territory. Subsection (8) requires the certificate to state that the authority has the function referred to in subsection (7). 23. Subsection (9) defines the designated authority as being the authority that has been specified in an order made by the Secretary of State to perform this role. Subsection (10) enables more than one authority to be designated and enables an order to specify authorities for different parts of the United Kingdom. (The authorities for the United Kingdom are intended to be the National Criminal Intelligence Service and, in Scotland, the Crown Office.) Section 3: Arrest under certified Part 1 Warrant 24. This section sets out the procedure for arrest on the basis of a certified Part 1 warrant. 25. Subsection (2) provides that an arrest on the basis of a Part 1 warrant can be made by a police constable or customs officer anywhere in the United Kingdom. A warrant can also be executed by a service policeman, but only if the person arrested is subject to the relevant service law, and in a place where the service policeman would have the authority to arrest the person under that law (subsections (3), (4) and (6)). The arresting officer need not have the warrant in his possession at the time of arrest in order to make that arrest (subsection (5)). Section 4: Person arrested under Part 1 warrant 26. This section applies when a person has been arrested under the powers conferred in section 3 (subsection (1)). 27. Subsection (2) requires a copy of the warrant to be given to the arrested person as soon as is practicable after his arrest. If this requirement is not met and the person applies to the judge, the judge may order the person's discharge (subsection (4)). 28. Subsection (3) requires the arrested person to be brought before the appropriate judge (defined in section 67) as soon as practicable. If this requirement is not met and the arrested person applies to the judge, the judge must order the person's discharge (subsection (5)). A person is considered to be in legal custody until he is brought before the judge or discharged (subsection (6)). Section 5: Provisional arrest 29. This section sets out the procedure for arrest where there are reasonable grounds to believe that a Part 1 warrant has been, or shortly will be, issued by a recognised authority in a category 1 territory. 30. Subsection (1) describes who may make an arrest in these circumstances. As with an arrest under section 3, a constable or a customs officer may make a provisional arrest anywhere in the United Kingdom. A service policeman may arrest a person who is subject to the relevant service law, in a place where he would have the authority to arrest that person under that law (subsections (2) to (5)). Section 6: Person arrested under section 5 31. This section applies when a person has been arrested under the powers conferred in section 5 (subsection (1)). 32. Subsection (2) requires any person provisionally arrested to be brought, within 48 hours of arrest (subsection (3)), before the appropriate judge. Specific documents must also be produced to the judge within this period, being the relevant Part 1 warrant and certificate (as described in section 2) (subsection (4)). If this requirement is not met and the arrested person applies to the judge, the judge must order the person's discharge (subsection (6)). 33. Under subsection (5) the person must be given a copy of the Part 1 warrant as soon as practicable after his arrest. However, if this requirement is not met and the person applies to the judge, the judge may order the person's discharge under subsection (7). A person is considered to be in legal custody until he is brought before the judge or discharged (subsection (6)). Section 7: Identity of person arrested 34. This section requires the judge to establish that the person brought before him is the person in respect of whom the warrant was issued. 35. Subsection (1) explains that this section applies where a person who has been arrested, either under a Part 1 warrant or provisionally, is brought before the judge. Subsection (2) requires the judge to decide if the person brought before him is the person in respect of whom the warrant was issued. The judge is required to make this decision on the balance of probabilities (subsection (3)). If the judge decides the person brought before him is not the person in respect of whom the warrant was issued, then he must order his discharge (subsection (4)). If the judge decides the person brought before him is the person in respect of whom the warrant was issued, then he must proceed under the provisions of section 8 (subsection (5)). 36. Subsection (6) gives the judge the same powers (as nearly as possible) as a magistrates' court would have if the proceedings were a summary trial in England and Wales. In Scotland the judge is to have the same powers (as nearly as possible) as if the proceedings were summary proceedings (subsection (7)). In Northern Ireland the judge has the same powers (as nearly as possible) as a magistrates' court would have if the proceedings were the hearing and determination of a complaint (subsection (8)). These powers include the power to adjourn the proceedings. If the judge does adjourn the proceedings he must remand the arrested person on bail or in custody (subsection (9)). If he remands the person in custody he may subsequently grant him bail (subsection (10)). Section 8: Remand etc. 37. This section deals with the arrangements for the remand of the arrested person and the judge's duty to inform the person of the contents of the warrant, and to explain that the person may consent to his extradition. 38. Subsection (1) requires the judge to:
39. Under subsection (3) the required information about consent is:
Section 9: Judge's powers at extradition hearing 40. The section provides for the powers available to the judge at the extradition hearing under this Part of the Act. 41. The powers available to the judge at an extradition hearing in England & Wales are (as nearly as possible) the same as those available to a magistrates' court at a summary trial in England and Wales. In Scotland the judge has the same powers (as nearly as possible) as if the proceedings were summary proceedings; in Northern Ireland the judge has the same powers (as nearly as possible) as a magistrates' court would have in the hearing and determination of a complaint (subsections (1) to (3)). The judge therefore has the power to adjourn the hearing and remand a person in custody or on bail (subsections (4) and (5)). Section 10: Initial stage of extradition hearing 42. This section requires the judge to consider whether the offence specified in the warrant is an extradition offence, where a person is brought before him at an extradition hearing under this Part of the Act. 43. If the judge is satisfied that the offence is an extradition offence then he must proceed to consider whether there are any statutory bars to extradition (subsection (4)), under the provisions of section 11. If the judge decides that the offence is not an extradition offence then he must order the person's discharge (subsection (3)). Section 11: Bars to extradition 44. This section establishes a number of statutory bars to extradition. The judge must consider whether any of these bars prevent the extradition of the person. The person must be discharged if any of the bars are applicable. 45. The bars are:
46. Sections 12 to 19 explain what is meant by each bar (subsection (2)). Subsection (3) requires the judge to order the person's discharge if any of the bars in subsection (1) apply. If the judge decides that none of the statutory bars apply, and the person is accused of being unlawfully at large after conviction (described in these notes as being a "conviction case") then the judge must proceed under section 20 (subsection (4)). If the judge decides that none of the bars apply, and the person is accused of having committed the extradition offence (described in these notes as being an "accusation case"), then subsection (5) requires that the judge proceed to consider human rights issues under section 21. Section 12: Rule against double jeopardy 47. The effect of this section is to bar the extradition of a person if he would be entitled to be discharged if charged with the offence in question in the part of the United Kingdom where the judge exercises jurisdiction, because of rules of law relating to a previous acquittal or conviction. Section 13: Extraneous considerations 48. The effect of this section is to bar a person's extradition if it appears that the Part 1 warrant (although purporting to be issued in respect of the extradition offence) has actually been issued for the purpose of prosecuting or punishing him for reasons of his race, religion, nationality, gender, sexual orientation or political opinions. His extradition would also be barred if it appears that he would be prejudiced at trial, or his liberty restricted, for any of the same reasons. Section 14: Passage of time 49. The effect of this section is to bar the extradition of a person where it appears that it would be unjust or oppressive to extradite him because of the time which has passed since he is alleged to have committed the extradition offence, or since he is alleged to have become unlawfully at large. Section 15: Age 50. The effect of this section is to bar the extradition of a person who would have been under the age of criminal responsibility, had the offence occurred in the part of the United Kingdom where the hearing is taking place, at the time the extradition offence was committed. Section 16: Hostage-taking considerations 51. A person's extradition is barred if the category 1 territory requesting extradition is a party to the Hostage-taking Convention and certain conditions apply. These are that, if extradited, communication between the person and the appropriate (consular) authorities would not be possible and the conduct constituting an extradition offence would constitute an offence under section 1 of the Taking of Hostages Act 1982 or an attempt to commit such an offence (subsection (1)). 52. Subsections (2) to (4) make interpretative provision relating to the hostage-taking bar to extradition. Section 17: Speciality 53. The speciality rule is a long-standing protection in extradition. It prohibits a person from being prosecuted in the requesting territory after his extradition for an offence committed before his extradition. The exceptions to this rule are where the offence is that in respect of which he was extradited, where the consent of the requested state is obtained or the person has had an opportunity to leave the country to which he was extradited but has failed to do so. 54. The effect of this section is to bar extradition if there are no speciality arrangements with the category 1 territory where the Part 1 warrant was issued (subsection (1)). 55. Subsection (2) provides that there are considered to be speciality arrangements in place if a person may be dealt with in the requesting territory for an offence committed before his extradition only if the offence falls within subsection (3) or if the condition in subsection (4) is met. The offences in subsection (3) are:
56. The condition in subsection (4) is that the person is given the opportunity to leave the category 1 territory and does not do so within 45 days (subsection (5)) or leaves within that period and then returns to that country. 57. Under subsection (6) speciality arrangements may be made with any Commonwealth country or British overseas territory in category 1, either for a specific case or more generally. A certificate issued by or under the authority of the Secretary of State, stating the existence and terms of such arrangements, is conclusive evidence of those matters (subsection (7)). Section 18: Earlier extradition to United Kingdom from category 1 territory 58. A person's extradition to a category 1 territory is barred by reason of his earlier extradition to the United Kingdom from another category 1 territory (the extraditing territory), unless consent to his further extradition has been given on behalf of the extraditing territory. This applies only if the extradition arrangements between the United Kingdom and the extraditing territory require consent to be given. | |
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