The Schedule: Power of arrest for extradition purposes Part 1 – Main Amendments to the Extradition Act 2003 Section 74D
This section sets out the procedure to be applied once a person has been arrested and brought before the appropriate judge under new section 74A.
	Subsection (1) requires the judge to decide a hypothetical question: namely, whether, on the basis of any evidence or information produced, a warrant for the person’s arrest would be issued under section 73 of the 2003 Act if the person were not already under arrest. Section 73 of the 2003 Act sets out the criteria that must be met for a justice of the peace to issue a warrant of arrest (known as a provisional warrant) in circumstances where a full request for extradition has not yet been received. In accordance with those criteria, for the purposes of subsection (1), the judge must determine, amongst other matters, whether there are reasonable grounds for believing that the offence of which the person is accused or has been convicted is an extradition offence and whether there are reasonable grounds for believing that there is evidence or information that would justify the issue of a warrant. The judge’s answer to the hypothetical question will determine whether the proceedings are to be continued.
	If the judge determines that a warrant would not be issued, subsection (2) requires the judge to order the person’s discharge.
	Conversely, if the judge determines that a warrant would be issued, subsection (3) provides that the judge must proceed under new section 74E. In effect, this puts the person in the same position as a person arrested pursuant to a provisional warrant issued under section 73 of the 2003 Act.
	The requirement to order the person’s discharge in subsection (2) is, however, subject to subsection (4), according to which the judge may adjourn the proceedings to allow more evidence or information to be produced. The judge must be satisfied that evidence or information could not reasonably have been produced in time to avoid the need for the adjournment. This might, for example, be the case where a public holiday in the territory where the requesting authority is located has meant that the requesting authority was not able to respond in time.
	Subsection (5) provides that the judge must remand the person in custody or on bail in the event of granting an adjournment. If the person is remanded in custody, according to subsection (6), the judge may later grant bail. Under subsection (7), multiple adjournments may be granted, but their total period must not exceed 72 hours, with allowances made for days of the weekend and bank and court holidays (subsection (8)). On each occasion that the person comes before the judge following an adjournment, the judge must decide whether a warrant of arrest would be issued were the person not under arrest, unless he or she grants a further adjournment (subsection (9)).
	Subsection (10) sets out the circumstances in which, following an application by the person to be discharged, the judge either may or must order the person’s discharge. Discharge is discretionary where either a copy of the section 74B certificate was not provided to the person as soon as practicable after their arrest or the certificate does not contain the information set out in new section 74B(2) (subsection (10)(a)). Discharge is mandatory where the judge decides that there were no reasonable grounds for issuing the section 74B certificate (for example, because the conduct constituting the offence was plainly not sufficiently serious to warrant doing so) or because the person was not brought before the judge as soon as practicable after arrest.