Section 19: Earlier extradition to United Kingdom from non-category 1 territory

59.     A person's extradition is barred by reason of his earlier extradition to the United Kingdom from a non-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 to dealing with him in the United Kingdom for the offence under consideration.

Section 20: Case where person has been convicted

60.     This section deals with conviction cases - that is those where the person has already been tried for the offence for which extradition is sought and has been found guilty.

61.     Subsection (1) requires the judge to consider whether the person was convicted in his presence or in his absence. If the person was convicted in his presence, the judge must proceed with the extradition hearing under section 21 (subsection (2)).

62.     If the person was convicted in his absence, the judge must then decide whether he deliberately absented himself from the trial (subsection (3)). If the person deliberately absented himself from his trial, the judge must proceed with the extradition hearing (subsection (4)).

63.     If the person did not deliberately absent himself from his trial, the judge must then decide whether he would be entitled to a retrial or review amounting to a retrial on return to the requesting territory (subsection (5)).

64.     If the person would be entitled to such a retrial, the judge must proceed with the extradition hearing. If he would not, the judge must order the person's discharge (subsections (6) and (7)).

65.     Subsection (8) provides that a person's extradition must not be ordered unless retrial proceedings would include specific rights for the person. These include the right to defend himself, be provided with free legal aid if necessary and to examine witnesses called to give evidence against him. These rights can be found in Article 6.3 of the European Convention on Human Rights.

Section 21: Human rights

66.     Under this section the judge must decide whether the person's extradition would be compatible with his human rights. The rights in question are those set out in the European Convention on Human Rights, incorporated into United Kingdom domestic legislation by the Human Rights Act 1998. The judge must order the person's extradition if it would be compatible with these rights (subsection (3)), but must order his discharge if it would not (subsection (2)). If the judge orders the person's extradition, he must remand the person in custody or on bail pending the extradition (subsections (4) and (5)).

Section 22: Person charged with offence in United Kingdom

67.     This section applies if a person who is subject to an extradition request has also been charged with an offence in the United Kingdom.

68.     Subsection (1) explains that this section applies if the judge is informed that the person has been charged with an offence in the United Kingdom. In these circumstances the judge must adjourn the extradition hearing until (subsection (2)):

• the charge is disposed of (see section 214 below) or withdrawn;

• proceedings on the charge are discontinued; or

• proceedings on the charge are discontinued with the option that a fresh prosecution on the same charge could be brought in the future.

69.     Where the person is given a custodial sentence for the United Kingdom offence, the extradition hearing can be adjourned until the sentence has been served (subsection (3)). If the judge has considered the question of double jeopardy under section 11 before adjourning the hearing, he must consider it again (subsection (4)).

Section 23: Person serving sentence in United Kingdom

70.     This section applies if the judge is informed that the person who is the subject of a Part 1 warrant is also serving a custodial sentence in the United Kingdom (subsection (1)). Under these circumstances the judge is allowed to adjourn the extradition hearing until the sentence has been served (subsection (2)).

Section 24: Extradition request

71.     This section deals with the situation where, during the extradition hearing, the judge is notified that the Secretary of State has issued a certificate under section 70 in respect of an extradition request. This section applies where that request has not yet been disposed of and an order has been made under section 179(2) for proceedings on the Part 1 warrant to be deferred until the category 2 request has been disposed of (subsection (1)). (Section 213 below defines the disposal of a Part 1 warrant and of an extradition request.)

72.     The judge is required, in these circumstances, to remand the person in custody or on bail. If he is remanded in custody the person may later be granted bail (subsections (2) and (3)).

Section 25: Physical or mental condition

73.     This section sets out what is to happen if the judge decides, at any time during the extradition hearing, that the person is not physically or mentally fit to be extradited (subsection (1)).

74.     If it appears to the judge that, by reason of the person's mental or physical condition, it would be unjust or oppressive to extradite him (subsection (2)), the judge must either order the person's discharge or adjourn the hearing. The hearing would continue at such time as the person's condition has improved to the extent that extradition would no longer be unjust or oppressive (subsection (3)).

Section 26: Appeal against extradition order

75.     This section gives a person a right to appeal against the decision of the judge to order extradition under Part 1 of the Act.

76.     Subsection (1) explains that a person may appeal to the High Court against a decision of a judge to order extradition, except where (subsection (2)) the person has consented to his extradition (see sections 46 and 48). Appeals may be made on a question of law or fact (subsection (3)) and notice of an appeal must be given to the High Court within 7 days of the extradition order being made by the judge (subsection (4)).

Section 27: Court's powers on appeal under section 26

77.     This section sets out the powers available to the High Court following an appeal against the extradition order.

78.     The High Court may allow the appeal (subsection (1)) only if the conditions in subsection (3) or those in subsection (4) are met (subsection (2)). The conditions in subsection (3) are that the judge ought to have decided a question before him at the extradition hearing differently and, if he had done so, he would have been required to order the person's discharge.

79.     The conditions in subsection (4) are that:

• an issue is raised or evidence is available that was not raised or available at the extradition hearing;

• the issue or evidence would have resulted in the judge making a different decision at the hearing; and

• this would have resulted in the judge ordering the person's discharge.

80.     The High Court must order the person's discharge and quash the order for his extradition if it allows the appeal (subsection (5)).

Section 28: Appeal against discharge at extradition hearing

81.     This section gives an authority of the requesting state a right to appeal against a decision at the extradition hearing to order the person's discharge.

82.     Subsections (1), (3) and (4) allow the authority that issued the Part 1 warrant to appeal to the High Court against the decision that resulted in the order to discharge the person. The appeal may be on any question of law or fact. The exception to this right of appeal, in subsection (2), is when the discharge was made under section 41, i.e. as a result of the warrant being withdrawn.

83.     The court must be notified of an appeal within 7 days of the order for the person's discharge being made (subsection (5)).

Section 29: Court's powers on appeal under section 28

84.     This section sets out the powers available to the High Court following an appeal against any order to discharge the person at the extradition hearing.

85.     The High Court may allow the appeal (subsection (1)) only if the conditions in subsection (3) or those in subsection (4) are met (subsection (2)). The conditions in subsection (3) are that the judge ought to have decided a question before him at the extradition hearing differently and, if he had done so, he would not have been required to order the person's discharge.

86.     The conditions in subsection (4) are that:

• an issue is raised or evidence is available that was not raised or available at the extradition hearing;

• the issue or evidence would have resulted in the judge making a different decision at the hearing; and

• as a result the judge would not have been required to order the person's discharge.

87.     If the High Court allows the appeal, the order discharging the person is quashed and the case sent back to the judge with a direction to proceed as he would have been required to do if he had decided the relevant question differently. Subsection (6) defines a relevant question as one that resulted in the order for the person's discharge.

Section 30: Detention pending conclusion of appeal under section 28

88.     This section sets out the arrangements for detaining a person if an authority of the requesting state gives notice of its intention to appeal against a decision at the extradition hearing to discharge the person.

89.     Subsection (1) states that this section applies if, immediately after the judge orders the person's discharge, the judge is informed that the requesting authority intends to appeal under the provisions of section 28 above. The judge must remand the person in custody or on bail for so long as the appeal is pending, but he may later grant bail if the person is remanded in custody (subsections (2) and (3)). The appeal ceases to be pending, under subsection (4), when the earliest of any of these applies:

• the proceedings on the appeal are discontinued;

• the High Court dismisses the appeal and the court is not immediately informed that the authority intends to apply for leave to appeal to the House of Lords (except for Scotland);

• the High Court dismisses the appeal (Scotland only - see subsection (5));

• leave to appeal to the House of Lords has been granted but no appeal is brought by the authority within 28 days (except for Scotland);

• there are no further avenues of appeal available to the authority.

Section 31: Appeal to High Court: time limit for start of hearing

90.     This section provides for the time limits within which the High Court must begin to hear an appeal under section 26 or 28.

91.     Subsection (1) states that rules of court must prescribe the period within which the High Court must begin to hear the appeal. The period will start from the date on which the person was arrested under the Part 1 warrant, or the date of provisional arrest (subsection (2)). The High Court must begin to hear the appeal before the end of the period (subsection (3)). The relevant period for these purposes is intended to be 40 days.

92.     The High Court may extend the relevant period, under subsection (4), where it is in the interests of justice to do so, and may do so after the period has expired (subsection (5)).

93.     Subsection (6) sets out what happens if the appeal is against a decision to order extradition (under section 26) and the High Court does not begin to hear the case within the set time period. In these circumstances the appeal will be considered to have been allowed, the person must be discharged and the order for the person's extradition quashed. If the appeal is by an authority of the requesting state (under section 28) and the High Court does not begin to hear the case within the set time period, the appeal will be considered to have been dismissed (subsection (7)).

Section 32: Appeal to House of Lords

94.     This section provides a right of appeal to the House of Lords

95.     An appeal can be made to the House of Lords from a decision of the High Court on an appeal brought under section 26 or 28 (subsection (1)). It can be made by either the person who has been arrested under the Part 1 warrant or the authority that issued the warrant (subsection (2)). But it can be made only with the leave of the High Court or the House of Lords (subsection (3)). Under subsection (4), leave may be granted only if:

• the High Court has certified that there is a point of law of general importance; and

• the court granting leave considers the point to be one which should be considered by the House of Lords.

96.     An application for leave to the High Court must be made within 14 days of the date that the court makes its decision (subsection (5)); an application for leave to the House of Lords must be made within 14 days of a High Court decision to refuse leave (subsection (6)). An appeal to the House of Lords must be brought within 28 days of leave being granted (subsection (7)). If it is not, the appeal is deemed to have been dismissed immediately after the end of the period permitted under subsection (7) (subsection (8)), ignoring any powers of a court to extend the period for bringing the appeal or to grant leave to take a step out of time (subsection (9)). The High Court has the power to grant bail to a person appealing or seeking leave to appeal under this section (subsection (10)). Subsections (11) and (12) apply provisions of the Appellate Jurisdiction Act 1876 which concern the composition of the House of Lords for the hearing and determination of appeals.

97.     Subsection (13) states that this section does not apply to Scotland. This is because the High Court of Justiciary (see section 216 below) is the final court of criminal appeal in Scotland and so the House of Lords has no jurisdiction in Scottish criminal matters.

Section 33: Powers of House of Lords on appeal under section 32

98.     This section sets out the powers available to the House of Lords on an appeal by the person who is the subject of the request or by the authority of the requesting state.

99.     Subsections (1) to (3) allow the House of Lords to allow or dismiss an appeal under section 32 made by a person who is the subject of an extradition order. If the appeal is allowed an order for the person's discharge must be made and the order for his extradition quashed.

100.     Subsections (4) and (5) provide that if the House of Lords allows an appeal by the authority of the requesting state against a decision of the High Court to discharge a person, the House of Lords is required to quash the order discharging the person and order his extradition.

101.     Subsections (6) to (9) apply where the authority of the requesting state appeals successfully to the House of Lords against a decision of the High Court to dismiss its earlier appeal against the discharge of a person at the extradition hearing. Where the judge would have been required to order the person's extradition if he had reached a different decision on the question which led to the order for the person's discharge (in other words, if it was the final matter on which the judge was required to take a view), then the House of Lords must quash the discharge order and order the person to be extradited. Otherwise, the House of Lords must remit the case to the judge and require him to proceed as he would have been required to do if he had reached a different decision on the question which resulted in the person's discharge.

Section 34: Appeals: general

102.     This section provides that a decision of a judge under this Part can be questioned only by means of the appeals procedure set out in this Part of the Act.

Section 35: Extradition where no appeal

103.     This section gives the time limit for a person's extradition where he does not appeal against the extradition order.

104.     Subsection (1) states that this section applies where the judge has ordered extradition and no appeal has been lodged within 7 days, ignoring any powers of a court to extend the period for giving notice of appeal or to grant leave to take a step out of time (see subsection (6)). It does not apply where a person's extradition is ordered with his consent, under the provisions of section 46 or 48 (subsection (2)). Subsections (3) to (5) provide that the person must be extradited within 10 days of the date the judge makes the order, or if the judge and the requesting state agree a later date, 10 days starting from the later date. If the deadlines are not complied with the judge must, on the person's application, order his discharge, unless reasonable cause is shown for the delay.

Section 36: Extradition following appeal

105.     This section provides the time limit for extraditing a person subject to an extradition order where an appeal has been brought and the outcome is that he is to be extradited.

106.     Subsection (1) states that this section applies where an appeal to the High Court under section 26 has been brought and the result of the final decision on the appeal is that the person is to be extradited. Subsections (2) and (3) require the person to be extradited within 10 days of the date on which the appeal decision becomes final or proceedings are discontinued. However, if the relevant court which made the appeal decision and the requesting state agree a later date, it must be 10 days starting from the later date. If the deadlines are not complied with the judge must, on the person's application, order his discharge, unless reasonable cause is shown for the delay (subsection (8)). Subsection (4) defines the relevant court as the High Court, where there is no appeal to the House of Lords, or the House of Lords if there is such an appeal. Subsection (5) explains that the decision of the High Court becomes final:

• when the period permitted for applying to the High Court for leave to appeal to the House of Lords ends, if no application for leave is made;

• when the period permitted for applying to the House of Lords for leave to appeal to it ends, if leave is refused by the High Court and there is no application for leave to the House of Lords;

• when the House of Lords refuses leave to appeal;

• after 28 days from the day on which leave to appeal to the House of Lords is granted, if no such appeal is brought in that time.

107.     For the purposes of determining when the decision of the High Court is final, any powers of a court to extend the period for applying for leave to appeal or to grant leave to take a step out of time must be ignored (subsection (6)).

108.     The decision of the House of Lords is immediately final (subsection (7)).

109.     Subsection (9) includes the relevant modifications for this section to apply to Scotland. For this purpose the relevant court in this section will always be the High Court and all references to the House of Lords are omitted.

Section 37: Undertaking in relation to person serving sentence in United Kingdom

110.     This section allows the appropriate judge to make an extradition order subject to a condition that extradition will not take place until he has received certain undertakings on behalf of the category 1 territory that submitted the extradition request. This section applies if the person is serving a custodial sentence in the United Kingdom (subsection (1)). However, this section does not apply if the extradition order was made under section 46 or 48 after the person has consented to his extradition (subsection (2)).

111.     The judge can specify the terms of any such undertaking. The terms include terms that the person is kept in custody during the entire proceedings in the category 1 territory. He may also require the person to be returned to the United Kingdom to serve his domestic sentence, on conclusion of those proceedings or after serving any sentence(s) imposed in the category 1 territory (subsections (3) to (5)).

112.     Subsections (6) to (8) apply where the judge makes an order subject to the receipt of an undertaking. Where the undertaking is not received within 21 days, and the person applies to the judge, the judge must order the person's discharge (subsection (7)).

113.     Where the judge imposes a condition on an extradition order under the power given by this section, and section 35 (extradition where no appeal) applies, the 10-day period described in section 35 begins on the day the judge receives the undertaking. Where a condition is imposed and section 36 (extradition following appeal) applies, the 10 days start from the day that the appeal decision becomes final or, if later, the day the judge receives the undertaking (subsection (8)).

Section 38: Extradition following deferral for competing claim

114.     This section applies where a person's extradition has been ordered under Part 1 but deferred, in the event of a competing Part 1 warrant or category 2 extradition request, and the judge subsequently orders that extradition to go ahead under section 181 (subsection (1)). However, this does not apply if the original order for the person's extradition was made under section 46 or 48 after he had consented to his extradition (subsection (2)).

115.     Where these circumstances occur and no appeal is made (see section 35, extradition where no appeal), the 10-day period described in section 35 begins on the day the judge makes the order under section 181 (subsection (3)). Where this situation occurs and there is an appeal (see section 36, extradition following appeal), the 10 days start from the day that the appeal decision becomes final or, if later, the day the judge makes the order under section 181 (subsection (4)).

Section 39: Position where asylum claimed

116.     This section sets out what is to happen where a person makes an asylum claim at any time during extradition proceedings under this Part of the Act. This section applies where such a claim is made by the person at any time between the issue of a certificate on a Part 1 warrant under section 2 and the person's extradition in pursuance of that warrant (subsections (1) and (2)).

117.     Subsection (3) states that the person in question must not be extradited until his asylum claim is finally determined. (Sections 35, 36, 47 and 49 set out the procedure for a person's extradition and take effect subject to this subsection.) Subsection (4) explains that this is also subject to section 40.

118.     Under subsection (5) an asylum claim is finally determined, if it is allowed, when the Secretary of State has made this decision. Where the Secretary of State rejects the claim, it is finally determined when the Secretary of State makes his decision, if there is no right to appeal that decision. Where there is a right of appeal, the claim is finally determined when the period allowed to appeal against the decision has lapsed (and no appeal has been brought), or when the appeal is finally determined, withdrawn or abandoned (subsection (6)). An appeal has been finally determined when a final decision on it has been made, it has been withdrawn or abandoned and there is no further possibility of appeal or applying for leave to appeal. The remittal of an appeal does not amount to final determination (subsections (7) and (8)). Under subsection (9) the possibility of leave to appeal out of time against the Secretary of State's decision on an asylum claim must be ignored.

Section 40: Certificate in respect of asylum claimant

119.     Subsection (1) provides that a person's extradition is not prevented (under section 39) before his asylum claim is finally determined where the Secretary of State has certified that certain conditions apply.

120.     The conditions set out in subsection (2) are that the requesting category 1 territory has accepted responsibility for considering the person's asylum claim and that the person is not a citizen of that country.

121.     Alternatively, under subsection (3), the conditions are that the Secretary of State believes that the person is not a citizen of the requesting territory, that he will not face persecution if returned to that territory and that he would not be removed from that territory other than in accordance with the Refugee Convention. Subsection (4) provides definitions to the terms used in this section.

Section 41: Withdrawal of warrant before extradition

122.     This section applies where the judge is informed that a Part 1 warrant is withdrawn before the person is extradited or discharged.

123.     In these circumstances the judge is required to order the person's discharge (subsection (3)). Subsection (4) requires the judge to inform the person of his discharge as soon as practicable if the person is not present when it is ordered.