Extradition Act 2003 (c. 41)

(The document as of February, 2008)

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203 Documents sent by facsimile

(1) This section applies if a document to be sent in connection with proceedings under this Act is sent by facsimile transmission.

(2) This Act has effect as if the document received by facsimile transmission were the document used to make the transmission.

204 Part 1 warrant: transmission by other electronic means

(1) This section applies if a Part 1 warrant is issued and the information contained in the warrant --

(a) is transmitted to the designated authority by electronic means (other than by facsimile transmission), and

(b) is received by the designated authority in a form in which it is intelligible and which is capable of being used for subsequent reference.

(2) This Act has effect as if the information received by the designated authority were the Part 1 warrant.

(3) A copy of the information received by the designated authority may be received in evidence as if it were the Part 1 warrant.

205 Written statements and admissions

(1) The provisions mentioned in subsection (2) apply in relation to proceedings under this Act as they apply in relation to proceedings for an offence.

(2) The provisions are--

(a) section 9 of the Criminal Justice Act 1967 (c. 80) (proof by written statement in criminal proceedings);

(b) section 10 of the Criminal Justice Act 1967 (proof by formal admission in criminal proceedings);

(c) section 1 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (c. 28) (proof by written statement in criminal proceedings);

(d) section 2 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (proof by formal admission in criminal proceedings).

(3) As applied by subsection (1) in relation to proceedings under this Act, section 10 of the Criminal Justice Act 1967 and section 2 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 have effect as if--

(a) references to the defendant were to the person whose extradition is sought (or who has been extradited);

(b) references to the prosecutor were to the category 1 or category 2 territory concerned;

(d) references to subsequent criminal proceedings were to subsequent proceedings under this Act.

206 Burden and standard of proof

(1) This section applies if, in proceedings under this Act, a question arises as to burden or standard of proof.

(2) The question must be decided by applying any enactment or rule of law that would apply if the proceedings were proceedings for an offence.

(3) Any enactment or rule of law applied under subsection (2) to proceedings under this Act must be applied as if--

(a) the person whose extradition is sought (or who has been extradited) were accused of an offence;

(b) the category 1 or category 2 territory concerned were the prosecution.

(4) Subsections (2) and (3) are subject to any express provision of this Act.

(5) In this section "enactment" includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.

Other miscellaneous provisions

207 Extradition for more than one offence

The Secretary of State may by order provide for this Act to have effect with specified modifications in relation to a case where--

(a) a Part 1 warrant is issued in respect of more than one offence;

(b) a request for extradition is made in respect of more than one offence.

208 National security

(1) This section applies if the Secretary of State believes that the conditions in subsections (2) to (4) are satisfied in relation to a person.

(2) The first condition is that the person's extradition is sought or will be sought under Part 1 or Part 2 in respect of an offence.

(3) The second condition is that--

(a) in engaging in the conduct constituting (or alleged to constitute) the offence the person was acting for the purpose of assisting in the exercise of a function conferred or imposed by or under an enactment, or

(b) as a result of an authorisation given by the Secretary of State the person is not liable under the criminal law of any part of the United Kingdom for the conduct constituting (or alleged to constitute) the offence.

(4) The third condition is that the person's extradition in respect of the offence would be against the interests of national security.

(5) The Secretary of State may certify that the conditions in subsections (2) to (4) are satisfied in relation to the person.

(6) If the Secretary of State issues a certificate under subsection (5) he may--

(a) direct that a Part 1 warrant issued in respect of the person and in respect of the offence is not to be proceeded with, or

(b) direct that a request for the person's extradition in respect of the offence is not to be proceeded with.

(7) If the Secretary of State issues a certificate under subsection (5) he may order the person's discharge (instead of or in addition to giving a direction under subsection (6)).

(8) These rules apply if the Secretary of State gives a direction under subsection (6)(a) in respect of a warrant--

(a) if the designated authority has not issued a certificate under section 2 in respect of the warrant it must not do so;

(b) if the person is arrested under the warrant or under section 5 there is no requirement for him to be brought before the appropriate judge and he must be discharged;

(c) if the person is brought before the appropriate judge under section 4 or 6 the judge is no longer required to proceed or continue proceeding under sections 7 and 8;

(d) if the extradition hearing has begun the judge is no longer required to proceed or continue proceeding under sections 10 to 25;

(e) if the person has consented to his extradition, the judge is no longer required to order his extradition;

(f) if an appeal to the High Court or House of Lords has been brought, the court is no longer required to hear or continue hearing the appeal;

(g) if the person's extradition has been ordered there is no requirement for him to be extradited.

(9) These rules apply if the Secretary of State gives a direction under subsection (6)(b) in respect of a request--

(a) if he has not issued a certificate under section 70 in respect of the request he is no longer required to do so;

(b) if the person is arrested under a warrant issued under section 71 or under a provisional warrant there is no requirement for him to appear or be brought before the appropriate judge and he must be discharged;

(c) if the person appears or is brought before the appropriate judge the judge is no longer required to proceed or continue proceeding under sections 72, 74, 75 and 76;

(d) if the extradition hearing has begun the judge is no longer required to proceed or continue proceeding under sections 78 to 91;

(e) if the person has given his consent to his extradition to the appropriate judge, the judge is no longer required to send the case to the Secretary of State for his decision whether the person is to be extradited;

(f) if an appeal to the High Court or House of Lords has been brought, the court is no longer required to hear or continue hearing the appeal;

(g) if the person's extradition has been ordered there is no requirement for him to be extradited.

(10) These must be made under the hand of the Secretary of State--

(a) a certificate under subsection (5);

(b) a direction under subsection (6);

(11) The preceding provisions of this section apply to Scotland with these modifications--

(a) in subsection (9)(a) for "he has" substitute "the Scottish Ministers have" and for "he is" substitute "they are";

(b) in subsection (9)(e) for "Secretary of State for his" substitute "Scottish Ministers for their".

(12) In subsection (3) the reference to an enactment includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.

209 Reasonable force

A person may use reasonable force, if necessary, in the exercise of a power conferred by this Act.

210 Rules of court

(1) Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings under this Act.

(2) In Scotland any rules of court under this Act are to be made by Act of Adjournal.

211 Service of notices

Service of a notice on a person under section 54, 56, 58, 129, 130 or 131 may be effected in any of these ways--

(a) by delivering the notice to the person;

(b) by leaving it for him with another person at his last known or usual place of abode;

212 Article 95 alerts: transitional provision

(1) This section applies in a case where an article 95 alert is issued before 1 January 2004 by an authority of a category 1 territory.

(2) In such a case, this Act applies as if--

(a) the alert were a Part 1 warrant issued by the authority;

(b) any information sent with the alert relating to the case were included in the warrant.

(3) As applied by subsection (2), this Act has effect with these modifications--

(a) in sections 2(7) and (8), 28(1), 30(1) and (4)(d), 32(2)(b), 33(6)(b), 35(4)(b), 36(3)(b), 47(3)(b), 49(3)(b), 190(3) and 191(2)(a) for "authority which issued the Part 1 warrant" substitute "authority at the request of which the alert was issued";

(b) omit section 5;

(c) in sections 33(4)(b), 42(2)(a), 43(2)(a) and (4) and 61(1)(d) and (e), for "authority which issued the warrant" substitute "authority at the request of which the alert was issued";

(d) in section 66(2), for the words from "believes" to the end substitute "believes is the authority at the request of which the alert was issued".

(4) An article 95 alert is an alert issued pursuant to article 95 of the Convention implementing the Schengen agreement of 14th June 1985.

Interpretation

213 Disposal of Part 1 warrant and extradition request

(1) A Part 1 warrant issued in respect of a person is disposed of--

(a) when an order is made for the person's discharge in respect of the warrant and there is no further possibility of an appeal;

(b) when the person is taken to be discharged in respect of the warrant;

(c) when an order is made for the person's extradition in pursuance of the warrant and there is no further possibility of an appeal.

(2) A request for a person's extradition is disposed of--

(a) when an order is made for the person's discharge in respect of the request and there is no further possibility of an appeal;

(b) when the person is taken to be discharged in respect of the request;

(c) when an order is made for the person's extradition in pursuance of the request and there is no further possibility of an appeal.

(3) There is no further possibility of an appeal against an order for a person's discharge or extradition--

(a) when the period permitted for giving notice of an appeal to the High Court ends, if notice is not given before the end of that period;

(b) when the decision of the High Court on an appeal becomes final, if there is no appeal to the House of Lords against that decision;

(4) The decision of the High Court on an appeal becomes final--

(a) when the period permitted for applying to the High Court for leave to appeal to the House of Lords ends, if there is no such application;

(b) when the period permitted for applying to the House of Lords for leave to appeal to it ends, if the High Court refuses leave to appeal and there is no application to the House of Lords for leave to appeal;

(d) at the end of the permitted period, which is 28 days starting with the day on which leave to appeal to the House of Lords is granted, if no such appeal is brought before the end of that period.

(5) These must be ignored for the purposes of subsections (3) and (4)--

(a) any power of a court to extend the period permitted for giving notice of appeal or for applying for leave to appeal;

(b) any power of a court to grant leave to take a step out of time.

(6) Subsections (3) to (5) do not apply to Scotland.

214 Disposal of charge

(1) A charge against a person is disposed of--

(a) if the person is acquitted in respect of it, when he is acquitted;

(b) if the person is convicted in respect of it, when there is no further possibility of an appeal against the conviction.

(2) There is no further possibility of an appeal against a conviction--

(a) when the period permitted for giving notice of application for leave to appeal to the Court of Appeal against the conviction ends, if the leave of the Court of Appeal is required and no such notice is given before the end of that period;

(b) when the Court of Appeal refuses leave to appeal against the conviction, if the leave of the Court of Appeal is required and notice of application for leave is given before the end of that period;

(c) when the period permitted for giving notice of appeal to the Court of Appeal against the conviction ends, if notice is not given before the end of that period;

(d) when the decision of the Court of Appeal on an appeal becomes final, if there is no appeal to the House of Lords against that decision;

(e) when the decision of the House of Lords on an appeal is made, if there is such an appeal.

(3) The decision of the Court of Appeal on an appeal becomes final--

(a) when the period permitted for applying to the Court of Appeal for leave to appeal to the House of Lords ends, if there is no such application;

(b) when the period permitted for applying to the House of Lords for leave to appeal to it ends, if the Court of Appeal refuses leave to appeal and there is no application to the House of Lords for leave to appeal;

(d) at the end of the permitted period, which is 28 days starting with the day on which leave to appeal to the House of Lords is granted, if no such appeal is brought before the end of that period.

(4) These must be ignored for the purposes of subsections (2) and (3)--

(a) any power of a court to extend the period permitted for giving notice of appeal or of application for leave to appeal or for applying for leave to appeal;

(b) any power of a court to grant leave to take a step out of time.

(5) Subsections (2) to (4) do not apply to Scotland.

215 European framework list

(1) The European framework list is the list of conduct set out in Schedule 2.

(2) The Secretary of State may by order amend Schedule 2 for the purpose of ensuring that the list of conduct set out in the Schedule corresponds to the list of conduct set out in article 2.2 of the European framework decision.

(3) The European framework decision is the framework decision of the Council of the European Union made on 13 June 2002 on the European arrest warrant and the surrender procedures between member states (2002/584/JHA).

216 Other interpretative provisions

(1) References to a category 1 territory must be read in accordance with section 1.

(2) References to a category 2 territory must be read in accordance with section 69.

(3) References to the designated authority must be read in accordance with section 2(9).

(4) References to a Part 1 warrant must be read in accordance with section 2.

(5) References to a Part 3 warrant must be read in accordance with section 142.

(6) References to a valid request for a person's extradition must be read in accordance with section 70.

(7) "Asylum claim" has the meaning given by section 113(1) of the Nationality, Immigration and Asylum Act 2002 (c. 41).

(8) A customs officer is a person commissioned by the Commissioners of Customs and Excise under section 6(3) of the Customs and Excise Management Act 1979 (c. 2).

(9) "High Court" in relation to Scotland means the High Court of Justiciary.

(10) In relation to Scotland, references to an appeal being discontinued are to be construed as references to its being abandoned.

(11) "Police officer" in relation to Northern Ireland has the same meaning as in the Police (Northern Ireland) Act 2000 (c. 32).

(12) A provisional warrant is a warrant issued under section 73(3).

(13) A service policeman is a member of the Royal Navy Regulating Branch, the Royal Marines Police, the Royal Military Police or the Royal Air Force Police.

(14) The Provost Marshal of the Royal Air Force and any officer appointed to exercise the functions conferred on provost officers by the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) are to be taken to be members of the Royal Air Force Police for the purposes of subsection (13).

(15) This section and sections 213 to 215 apply for the purposes of this Act.

General

217 Form of documents

The Secretary of State may by regulations prescribe the form of any document required for the purposes of this Act.

218 Existing legislation on extradition

These Acts shall cease to have effect--

(a) the Backing of Warrants (Republic of Ireland) Act 1965 (c. 45);

(b) the Extradition Act 1989 (c. 33).

219 Amendments

(1) Schedule 3 contains miscellaneous and consequential amendments.

(2) The Secretary of State may by order make--

(a) any supplementary, incidental or consequential provision, and

(b) any transitory, transitional or saving provision,

which he considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to any provision of this Act.

(3) An order under subsection (2) may, in particular--

(a) provide for any provision of this Act which comes into force before another such provision has come into force to have effect, until that other provision has come into force, with such modifications as are specified in the order, and

(b) amend, repeal or revoke any enactment other than one contained in an Act passed in a Session after that in which this Act is passed.

(4) The amendments that may be made under subsection (3)(b) are in addition to those made by or under any other provision of this Act.

220 Repeals

Schedule 4 contains repeals.

221 Commencement

The preceding provisions of this Act come into force in accordance with provision made by the Secretary of State by order.

222 Channel Islands and Isle of Man

An Order in Council may provide for this Act to extend to any of the Channel Islands or the Isle of Man with the modifications (if any) specified in the Order.

223 Orders and regulations

(1) References in this section to subordinate legislation are to--

(a) an order of the Secretary of State under this Act (other than an order within subsection (2));

(b) an order of the Treasury under this Act;

(2) The orders referred to in subsection (1)(a) are--

(a) an order for a person's extradition or discharge;

(b) an order deferring proceedings on a warrant or request;

(3) Subordinate legislation--

(a) may make different provision for different purposes;

(b) may include supplementary, incidental, saving or transitional provisions.

(4) A power to make subordinate legislation is exercisable by statutory instrument.

(5) No order mentioned in subsection (6) may be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(6) The orders are--

(a) an order under any of these provisions--

section 1(1);
section 69(1);
section 71(4);
section 73(5);
section 74(11)(b);
section 84(7);
section 86(7);
section 142(9);
section 173(4);
section 215(2);

(b) an order under section 219(2) which contains any provision (whether alone or with other provisions) amending or repealing any Act or provision of an Act.

(7) A statutory instrument is subject to annulment in pursuance of a resolution of either House of Parliament if it contains subordinate legislation other than an order mentioned in subsection (6) or an order under section 221.

(8) A territory may be designated by being named in an order made by the Secretary of State under this Act or by falling within a description set out in such an order.

(9) An order made by the Secretary of State under section 1(1) or 69(1) may provide that this Act has effect in relation to a territory designated by the order with specified modifications.

224 Orders in Council

(1) An Order in Council under section 177 or 178 is subject to annulment in pursuance of a resolution of either House of Parliament.

(2) An Order in Council under this Act--

(a) may make different provision for different purposes;

(b) may include supplementary, incidental, saving or transitional provisions.

225 Finance

The following are to be paid out of money provided by Parliament--

(a) any expenditure incurred by the Lord Chancellor under this Act;

(b) any increase attributable to this Act in the sums payable out of money provided by Parliament under any other enactment.

226 Extent

(1) Sections 157 to 160, 166 to 168, 171, 173 and 205 do not extend to Scotland.

(2) Sections 154, 198, 200 and 201 extend to England and Wales only.

(3) Sections 183 and 199 extend to Scotland only.

(4) Sections 184 and 185 extend to Northern Ireland only.

227 Short title

This Act may be cited as the Extradition Act 2003.

SCHEDULES

Sections 188 and 189

SCHEDULE 1 Re-extradition: modifications

Part 1 Category 1 territories

1 In section 11(1), omit paragraphs (c), (g) and (h).

2 Omit sections 14, 18 and 19.

3 In section 21(3), for "must" substitute "may".

4 In section 31(2), for paragraphs (a) and (b) substitute "would (apart from section 187(1)) be released from detention pursuant to the UK sentence (whether or not on licence)".

5 In section 39(2)(a), for "a certificate is issued under section 2 in respect of the warrant" substitute "the person would (apart from section 187(1)) be released from detention pursuant to the UK sentence (whether or not on licence)".

6 In section 44(2)(a), for "following his arrest under this Part" substitute "under section 187(1)".

7 In section 45(1), for the words from "arrested" to "issued" substitute "brought before the appropriate judge under section 187(1) may consent to his extradition to the territory in which the overseas sentence was imposed".

Part 2 Category 2 territories

8 In section 78, omit subsections (2), (3), (5) and (8).

9 In section 78, for subsection (4) substitute--

" (4) The judge must decide whether the offence specified in the request is an extradition offence. "

10 In section 78(6), for "any of the questions" substitute "the question".

11 In section 78(7), for "those questions" substitute "that question".

12 In section 79(1), omit paragraph (c).

13 Omit section 82.

14 In section 87(3), for the words from "must send the case" to "extradited" substitute "may order the person to be extradited to the category 2 territory".

15 In section 87, after subsection (3) insert--

" (4) If the judge makes an order under subsection (3) he must remand the person in custody or on bail to wait for his extradition to the territory.

(5) If the judge remands the person in custody he may later grant bail. "

16 In section 103(1)--

(a) for the words from "sends a case" to "extradited" substitute "orders a person's extradition under this Part"; and

(b) for "the relevant decision" substitute "the order".

17 In section 103(2), for the words from "the person" to "the Secretary of State" substitute "the order is made under section 128".

18 In section 103, omit subsections (3), (5), (6), (7) and (8).

19 In section 103(9), for the words from "the Secretary of State" to "person" substitute "the order is made".

20 In section 104, omit subsections (1)(b), (6) and (7).

21 In section 106, omit subsections (1)(b), (7) and (8).

22 In section 117(1)(a), for "the Secretary of State" substitute "the appropriate judge".

23 In section 117(1)(b), for the words from "permitted period" to "extradition" substitute "period permitted under that section".

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