Commentary on Sections Schedule 20: Extradition
605.Part 1 of Schedule 20 amends the Extradition Act 2003 (“the EA 2003”) to provide for a new forum bar to extradition. Forum concerns the place where a person ought to be prosecuted for an offence he or she is alleged to have committed. Paragraphs 1, 2 and 3 of Schedule 20 amend Part 1 of the EA 2003, which deals with extradition to European Union Member States, while paragraphs 4, 5 and 6 similarly amend Part 2 of the EA 2003, which deals with extradition to non-European Union Member States with which the UK has extradition relations.
606.The amendments to the EA 2003 would require the judge at an extradition hearing to consider the issue of forum when deciding whether an individual should be extradited to face prosecution. Paragraphs 3 and 6 of Schedule 20 insert new sections 19B and 83A into the EA 2003, which provide that extradition can be barred by reason of forum if the judge decides that: firstly, a substantial measure of the relevant activity was performed in the UK; and secondly, having regard to a list of specified matters, it would not be in the interests of justice for the extradition to take place. Subsection (3) of new sections 19B and 83A outlines the specified matters relating to the interests of justice: (i) where most of the harm or loss occurred; (ii) the interests of any victims; (iii) any belief of a UK prosecutor that the UK is not the most appropriate place to prosecute the person; (iv) whether evidence needed to prosecute the person is or could be made available in the UK; (v) any delay that may result in proceeding in one country rather than another; (vi) the desirability and practicality of all prosecutions relating to the offence taking place in one place; and (vii) the person’s connections with the UK.
607.Paragraphs 3 and 6 also insert new sections 19C, 19D and 19E, and 83B, 83C and 83D into the EA 2003, which provide that extradition cannot be barred on forum grounds if a designated prosecutor issues a certificate that he or she has: firstly, considered the offences for which the person could be prosecuted in the UK; secondly, decided that there are one or more such offences which correspond to the extradition offence; and, thirdly, decided that either the person should not be prosecuted in the UK for a corresponding offence because the prosecutor believes that there is insufficient admissible evidence or it would not be in the public interest, or believes that the person should not be prosecuted in the UK because of concerns about disclosure of sensitive material. A designated prosecutor may apply for an adjournment in the proceedings in order to consider whether to give a certificate. The certificate can be challenged, but only as part of an appeal to the High Court under the EA 2003. The High Court must apply the procedures and principles of judicial review when reviewing a certificate. If the High Court quashes a certificate, it must then consider the issue of forum.
608.Paragraphs 7, 8 and 9 contain transitional provisions, savings and repeals consequent to the amendments made by paragraphs 1 to 6.
609.Paragraphs 10, 11, 12 and 13 of Part 2 of Schedule 20 amend the EA 2003 to provide that in Part 2 cases, that is those involving extradition to non-European Union Member States with which the UK has extradition relations, human rights issues, including those raised after the end of the normal statutory process, must not be considered by the Secretary of State, but may be raised with the courts right up until the time of surrender. At present, human rights matters in Part 2 cases are considered by the judge at an extradition hearing and any subsequent appeal hearing(s). However, once the appeal process is complete, but before the person’s surrender has taken place, the person may raise human rights issues with the Secretary of State, but only new representations that have not already been considered by the courts.
610.Paragraphs 10 to 13 of the new Schedule amend the process by ensuring that the Secretary of State is not to consider human rights issues raised after the end of the statutory appeal process or indeed at any time during the Part 2 process. Instead, in cases where the person wishes to raise late human rights issues he or she will be able to give notice of appeal out of time. The High Court will consider the appeal if it is satisfied that: (i) the appeal is necessary to avoid real injustice; and (ii) the circumstances are exceptional and make it appropriate to consider the appeal.
611.Part 3 of Schedule 20 addresses concerns raised by the UK Supreme Court about certain aspects of the operation of the EA 2003 when an appeal of a devolution issue is made to the UK Supreme Court under the Scotland Act 1998. Part 3 of the Schedule principally provides that where the authority or territory seeking a person’s extradition intends to appeal to the UK Supreme Court against the determination of a devolution issue, the court must remand the person whose extradition is sought in custody or on bail.
612.Paragraph 17 provides that where a judge has ordered a person’s discharge at an extradition hearing and the authority that issued the arrest warrant under Part 1 of the EA 2003 (“the issuing authority”) intends to appeal to the High Court under section 28 of the EA 2003, then the judge must remand the person in custody or on bail whilst the appeal is pending.  Paragraph 17 secures that section 30 of the EA 2003 does not apply to Scotland and inserts a new section 30A into the EA 2003 setting out when an appeal ceases to be pending where the issuing authority intends to appeal to the High Court under section 28 of the EA 2003.  This new section 30A takes account of there being a subsequent appeal of a devolution issue to the UK Supreme Court by the issuing authority.
613.Section 33 of the EA 2003 sets out the powers of the UK Supreme Court when considering an appeal under Part 1 of that Act in English and Welsh extradition proceedings.  This includes setting out when the UK Supreme Court must remand in custody or on bail the person who is the subject of extradition proceedings.  This section only applies to appeals to the UK Supreme Court under Part 1 of the Act and so does not apply to an appeal of a devolution issue to the UK Supreme Court in Scottish extradition proceedings. Paragraph 18 inserts new section 33ZA into the EA 2003 requiring the UK Supreme Court to remand a person in custody or on bail if on an appeal of a devolution issue in extradition proceedings the UK Supreme Court order that person’s extradition or remits the case to the High Court.
614.Section 33A of the EA 2003 requires the court to remand a person in custody or on bail whilst an appeal by the issuing authority to the UK Supreme Court under section 32 of the EA 2003 is pending.  Section 33A does not apply to Scotland. Paragraph 19 inserts new section 33B into the EA 2003 to require the High Court to remand a person is custody or on bail while an appeal of a devolution issue by the issuing authority to the UK Supreme Court is pending.
615.Paragraph 20 amends section 34 of the EA 2003 to make clear that the provisions of the EA 2003 do not prevent an appeal of a devolution issue to the UK Supreme Court.
616.Section 36 of the EA 2003 sets out the time limit for extraditing a person where there is an appeal under section 26 of that Act and the result of the appeal process is that the person is to be extradited.  Section 36 does not take account of the possibility of an appeal of a devolution issue to the UK Supreme Court in Scottish extradition proceedings. Paragraph 21 amends section 36 so that it does not apply to Scotland and inserts new section 36A that only applies to Scotland.  The new provision sets out the time limit for extraditing a person where there is an appeal under section 26 in Scottish extradition proceedings and the result of the appeal process is that the person is to be extradited.
617.Section 107 of the EA 2003 applies where a judge has ordered a person’s discharge at an extradition hearing and the category 2 territory requesting the person’s extradition intends to appeal to the High Court under section 105 of the EA 2003.  In these circumstances the judge is required to remand the person in custody or on bail while the appeal is pending.  In determining when an appeal ceases to be pending section 107 does not take account of there being a subsequent appeal of a devolution issue to the UK Supreme Court. Paragraph 23 provides that section 107 does not apply to Scotland and inserts new section 107A into the EA 2003 which only applies to Scotland.  The new provision is based on section 107 but in determining when an appeal ceases to be pending takes account of there being a subsequent appeal of a devolution issue to the UK Supreme Court.
618.Section 112 of the EA 2003 applies where the Secretary of State or Scottish Ministers order a person’s discharge from extradition proceedings.  Where the category 2 territory intends to appeal against this decision to the High Court under section 110, the remand order in respect of the person whose extradition is sought remains in force while the appeal is pending.   In determining when the appeal ceases, section 112 does not take account of the category 2 territory subsequently appealing a devolution issue to the UK Supreme Court. Paragraph 24 provides that section 112 does not apply to Scotland and inserts new section 112A into the EA 2003 which only applies to Scotland.  The new provision is based on section 112 but in determining when an appeal ceases to be pending, takes account of there being a subsequent appeal to the UK Supreme Court by the category 2 territory to the UK Supreme Court against the determination of a devolution issue by the High Court.
619.Section 115A of the EA 2003 applies where on appeal under Part 2 of the Act, the High Court orders a person’s discharge and the category 2 territory requesting the person’s extradition intends to appeal against the High Court’s decision under section 114 of the Act.  In these circumstances, the court must remand the person in custody or on bail while the appeal is pending.  This section does not apply to Scotland as there can be no appeal to the UK Supreme Court under section 114.  There is no equivalent provision where the category 2 territory intends to appeal a devolution issue to the UK Supreme Court. Paragraph 25 inserts new section 115B into the EA 2003 which applies to Scotland and provides where on an appeal under Part 2 of the EA 2003 the High Court orders a person’s discharge and the category 2 territory intends to appeal a devolution issue to the UK Supreme Court.  In these circumstances the High Court must remand the person is custody or on bail pending the UK Supreme Court appeal.
620.Section 116 of the EA 2003 provides that a decision by a judge, the Secretary of State or Scottish Ministers under Part 2 of the Act can only be challenged by means of an appeal under Part 2 of the Act.  Paragraph 26 amends section 116 to make clear that this section does not prevent an appeal of a devolution issue to the UK Supreme Court in Scottish extradition proceedings.
621.Section 118 of the EA 2003 applies where there is an appeal to the High Court under Part 2 of the Act against a decision relating to a person’s extradition and the effect of the appeal process is that the person is to be extradited.  Section 118 sets out the time limit for the person’s extradition.  Section 118 does not take account of there being an appeal of a devolution issue to the UK Supreme Court in Scottish extradition proceedings. Paragraph 27 amends section 118 so that it does not apply to Scotland and inserts new section 118A of the EA 2003 which only applies to Scotland.  The new provision sets out the time limit for extraditing a person where there is an appeal under Part 2 and the result of the appeal process is that the person is to be extradited and takes account of there being an appeal of a devolution issue to the UK Supreme Court.
622.Section 115 of the EA 2003 sets out the powers of the UK Supreme Court where there is an appeal under section 114 of the Act including the circumstances when the UK Supreme Court must remand a person in custody or on bail.   Section 114 does not apply to Scotland.  There is no equivalent provision in relation to remand where a devolution issue is appealed to the UK Supreme Court. Paragraph 28 inserts new section 118B into the EA 2003 requiring the Supreme Court to remand a person in custody or on bail if on an appeal of a devolution issue the UK Supreme Court orders the person’s extradition or remits the case to the High Court.