Section 42: Withdrawal of warrant while appeal to High Court pending

124.     This section applies if the High Court is informed that a Part 1 warrant is withdrawn before the end of the appeal hearing.

125.     Where these circumstances occur and the appeal is brought by the person (under section 26), the court is required to order his discharge and quash the extradition order. If the appeal has been brought by the issuing authority (under section 28), the court must dismiss the appeal (subsection (3)). Subsection (4) requires the court to inform the person of his discharge as soon as practicable if he is not present when it is ordered.

Section 43: Withdrawal of warrant while appeal to House of Lords pending

126.     This section applies if the House of Lords is informed that a Part 1 warrant is withdrawn before the House of Lords has given its decision on the case.

127.     Where these circumstances occur and the appeal is brought by the person, the House of Lords is required to order his discharge and quash the extradition order if one has been made (subsection (3)). If the appeal has been brought by the issuing authority the House of Lords must dismiss the appeal under subsection (4). Subsection (7) requires the House of Lords to inform the person of his discharge as soon as practicable if he is not present when it is ordered.

Section 44: Competing Part 1 warrants

128.     This section relates to the situation where two Part 1 warrants are issued in respect of the same person.

129.     Under subsections (1) to (3) this section applies if, at any time during proceedings on a Part 1 warrant before the person is extradited or discharged, the judge is informed that:

• another Part 1 warrant has been issued in respect of the same person;

• the judge (or another judge in the United Kingdom) is required to deal with the other warrant; and

• the competing warrant has not yet been disposed of.

130.     The judge may order proceedings on the warrant under consideration to be deferred pending disposal of the other warrant. Where an order has already been made for the person's extradition on the basis of the first warrant the judge may order that extradition be deferred pending disposal of the other warrant (subsection (4)). Subsection (5) means that the judge, if he makes such an order, is required to remand the person in custody or on bail, if the person is not already in custody or on bail. If the person is remanded in custody he may later be granted bail (subsection (6)).

131.     In deciding whether to make an order under subsection (4) the judge must take account of the following issues in particular (subsection (7)):

• the relative seriousness of the offences;

• the place each offence was committed or is alleged to have been committed;

• the date each warrant was issued; and

• whether the person is accused of the offences or unlawfully at large after conviction of an offence.

Section 45: Consent to extradition

132.     Subsections (1) and (2) allow a person arrested under Part 1 of the Act to consent to extradition to the category 1 territory issuing the warrant. A person who consents is considered to have waived his right to speciality protection (as to which, see paragraph 53 above) and can therefore be proceeded against in the category 1 territory for any offences committed before his extradition (subsection (3)). Consent must be given to the appropriate judge and recorded in writing; once given, consent cannot be revoked (subsection (4)).

133.     Subsections (5) and (6) provide that a person may only give his consent to extradition under certain circumstances. These are that the person is legally represented at the time he consents, or that he has been informed of his right to apply for legal aid but has failed to exercise this right, or legal aid has been refused or withdrawn. This has the effect that no person can consent to his extradition without having received, or having had the opportunity to receive, legal advice. Subsections (7) and (8) provide definitions for the purposes of this section.

Section 46: Extradition order following consent

134.     This section provides for the extradition of a person who consents to his extradition.

135.     If a person consents under section 45 the judge must remand the person in custody or on bail, although he may later grant bail if he initially remands the person in custody (subsections (1) to (3)). The judge does not have to set a date for the extradition hearing if he has not already done so (subsection (4)). If the extradition hearing has started, the judge is no longer required to proceed with it (subsection (5)). He must order the person's extradition within 10 days of consent, subject to sections 48 and 51 below. If this is not done the judge must, on the person's application, discharge him (subsections (6) to (8)).

Section 47: Extradition to category 1 territory following consent

136.     This section applies when a judge has ordered a person's extradition under section 46, following that person's consent to extradition (subsection (1)). Extradition must, under subsection (2), take place within the required period. This is 10 days from the date the order is made or, if the judge and the category 1 territory agree a later date, 10 days from the agreed date (subsection (3)).

137.     If the person has not been extradited within the 10-day period, the judge must, on the person's application, order his discharge, unless reasonable cause is shown for the delay (subsection (4)).

138.     Subsection (5) explains what is to happen when, after the judge has ordered a person's extradition following their consent, the relevant Part 1 warrant is withdrawn. Where the judge is informed of the withdrawal and the person has not yet been extradited, the requirement in subsection (2) for the person to be extradited within the required period no longer applies and the judge must order the person's discharge.

Section 48: Other warrant issued following consent

139.     This section provides for the situation where the person has consented to his extradition under section 45 and a second Part 1 warrant is issued in respect of him before the judge orders his extradition (subsections (1) and (2)).

140.     The judge is not required to order the person's extradition, but he may do so or he may postpone the proceedings until the other warrant has been disposed of (subsection (3)). This is subject to section 51 below (subsection (4)). In deciding whether or not to order extradition he must also take into account (subsection (5)) the following issues in particular:

• the relative seriousness of the offences;

• the place where each offence was committed or is alleged to have been committed;

• the date each warrant was issued; and

• whether the person is accused of having committed the offences or of being unlawfully at large after conviction.

Section 49: Other warrant issued: extradition to category 1 territory

141.     This section applies when a judge is informed that another Part 1 warrant has been issued and has ordered a person's extradition under section 48(3)(a), following that person's consent to extradition on the basis of the first warrant (subsection (1)). Extradition must, under subsection (2), take place within the required period. This is 10 days from the date the order is made or, if the judge and the category 1 territory agree a later date, 10 days from the agreed date (subsection (3)).

142.     If the person has not been extradited within the relevant 10-day period, the judge must, on the person's application, order his discharge, unless reasonable cause is shown for the delay (subsection (4)).

143.     Subsection (5) explains what is to happen when, after the judge has ordered a person's extradition following his consent, the first Part 1 warrant is withdrawn. Where the judge is informed of the withdrawal and the person has not yet been extradited, the requirement in subsection (2) for the person to be extradited within the required period no longer applies. Furthermore, the judge must order the person's discharge.

Section 50: Other warrant issued: proceedings deferred

144.     The context of this section is that a person has consented to his extradition under a Part 1 warrant but has not yet been extradited. This section applies if the judge is then informed that a competing Part 1 warrant has been issued and he orders, under section 48(3)(b), that further proceedings on the first warrant be deferred until the competing warrant has been disposed of (subsection (1)).

145.     In these circumstances the judge must remand the person in custody or on bail. If he remands the person in custody he may later grant bail (subsections (2) and (3)).

146.     If an order is subsequently made under section 180 for the deferred proceedings on the first warrant to be resumed, the judge then has 10 days from the time that order is made to order the person's extradition, under subsection (4).

Section 51: Extradition request following consent

147.     This section applies if the person consents to his extradition under a Part 1 warrant but, before the judge orders his extradition, the judge is informed that an extradition request in respect of that person has been made by a category 2 territory (subsections (1) and (2)).

148.     If the judge has been so informed he must not make an order for extradition to the category 1 territory on the basis of consent, until he is informed what order has been made under section 179(2) (subsection (3)). (Section 179(2) provides for the Secretary of State to order which of the Part 1 warrant and the Part 2 request is to proceed first.)

149.     If the order made under section 179(2) is for proceedings on the Part 1 warrant to be deferred until the Part 2 request has been disposed of, the judge must remand the person in custody or on bail (subsection (4)). If he remands the person in custody he may later grant bail (subsection (5)). If an order is subsequently made under section 180 for the resumption of deferred proceedings on the Part 1 warrant, the judge then has 10 days from the time that order is made to order the person's extradition, under subsection (6).

150.     If, however, the order made under section 179(2) is for proceedings on the competing request to be deferred until the Part 1 warrant has been disposed of, the judge must, under subsection (6), order the person's extradition to the category 1 territory within 10 days of being informed of the order.

Section 52: Undertaking in relation to person serving sentence

151.     This section applies where an extradition order is made under section 46(6) or 48(3)(a) after a person has consented to his extradition, and that person is serving a custodial sentence in the United Kingdom. (subsection (1)). It allows the 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 (subsection (2)).

152.     The judge can specify the terms of any such undertaking, including a requirement that the person is kept in custody during the entire proceedings in the category 1 territory. The judge may also require the person to be returned to the United Kingdom to serve his domestic sentence. This would apply on conclusion of the proceedings in the category 1 territory in respect of which the extradition order was made, or after serving any sentence(s) imposed in the category 1 territory in respect of either the extradition offence or any other offence in respect of which he is permitted to be dealt with in the category 1 territory (subsections (3) and (4)).

153.     Where the judge imposes a condition on an extradition order under the power given by this section, the 10-day period in which the person is to be extradited (under section 47(2) or 49(2)) begins on the day the judge receives the undertaking (subsection (5)).

Section 53: Extradition following deferral for competing claim

154.     This section applies where a person has consented to his extradition, which has then been deferred because of a competing Part 1 warrant or category 2 extradition request, and the judge subsequently orders that extradition is to go ahead under section 181(2) (subsection (1)).

155.     Where these circumstances occur the 10-day period in which the person is to be extradited (under section 47(2) or 49(2)) begins on the day the judge makes the order under section 181(2) (subsection (2)).

Section 54: Request for consent to other offence being dealt with

156.     Subsection (1) states that this section applies if, after a person has been extradited under this Part of the Act, a judge receives a certified request from a category 1 territory asking for his consent to the person being prosecuted for an offence other than that for which the person was extradited. The relevant designated authority in the United Kingdom may, under subsection (2), certify such a request if it is satisfied that it has come from the proper judicial authority for making such requests in that country.

157.     The judge must then serve notice on the person that a request for consent has been received, unless it would not be practicable to do so (subsection (4)).

158.     The consent hearing is required to begin within 21 days of the designated authority receiving the request (subsection (5)). The judge has the power to extend this time if he considers it to be in the interests of justice and he may do so more than once (subsection (6)), and even after the 21 days has passed (subsection (7)).

159.     The judge is required to refuse consent under subsection (8) if the hearing has not started by the end of the given time and no extension has been granted. Subsection (9) allows the judge to adjourn the hearing at any time and subsection (10) defines the consent hearing as being that at which the judge is to consider the request for consent.

Section 55: Questions for decision at consent hearing

160.     This section specifies the questions that the judge is required to decide at a consent hearing under section 54.

161.     The judge must first decide whether his consent is necessary (subsection (1)). If he decides it is not, the judge must inform the requesting authority of this decision (subsection (2)). If the judge decides that consent is necessary, he must then consider whether the offence to which the request relates is an extradition offence (subsection (3)). If he decides that it is not an extradition offence, consent must be refused (subsection (4)). If, however, the judge concludes that the offence is an extradition offence, then he must decide, in accordance with subsection (5), whether he would have ordered the person's extradition under sections 11 to 25 if the person were in the United Kingdom. If the judge decides that he would have done so, he must give consent (subsection (6)). If he decides that he would not have done so, consent must be refused (subsection (7)).

162.     Subsections (8) and (9) provide that consent is not required where the person has been given the opportunity to leave the territory in question and has not done so within 45 days, or has done so and then returned to that country. Subject to this exception, the judge must decide whether he is required to give consent by reference to what he believes to be the applicable law in the territory in question or the extradition arrangements between that country and the United Kingdom (subsection (10)).

Section 56: Request for consent to further extradition to category 1 territory

163.     This section applies if a person has been extradited to a category 1 territory and a judge receives a certified request for his consent to the person's extradition to another category 1 territory (subsection (1)). The relevant designated authority in the United Kingdom may, under subsection (2), certify such a request if it is satisfied that it has come from the proper judicial authority for making such requests in that country.

164.     The judge must then serve notice on the person that a request for consent has been received, unless it would not be practicable to do so (subsection (4)).

165.     The consent hearing is required to begin within 21 days of the designated authority receiving the request (subsection (5)). The judge has the power to extend this time if he considers it to be in the interests of justice and he may do so more than once (subsection (6)), and even after the 21 days has passed (subsection (7)).

166.     The judge is required to refuse consent under subsection (8) if the hearing has not started by the end of the given time and no extension has been granted. Subsection (9) provides for the judge to adjourn the hearing at any time and subsection (10) defines the consent hearing as being that at which the judge is to consider the request for consent.

Section 57: Questions for decision at consent hearing

167.     This section specifies the questions that the judge is required to decide at a consent hearing under section 56.

168.     The judge must first decide whether his consent is necessary (subsection (1)). If he decides it is not, he must inform the requesting authority of this decision (subsection (2)). If the judge decides that consent is necessary, he must then consider whether the offence to which the request relates is an extradition offence in relation to the further category 1 territory (subsection (3)). If he decides that it is not an extradition offence, consent must be refused (subsection (4)). If, however, the judge decides that the offence is an extradition offence, he must then decide, in accordance with subsection (5), whether he would have ordered the person's extradition under sections 11 to 25 if the person were in the United Kingdom. If the judge decides that he would have done so, he must give consent (subsection (6)). If he decides that he would not have done so, consent must be refused (subsection (7)).

169.     Subsections (8) and (9) provide that consent is not required where the person has been given the opportunity to leave the territory in question and has not done so within 45 days, or has done so and then returned to that country. Subject to this exception in the given circumstances, the judge must decide whether he is required to give consent by reference to what he believes to be the applicable law in the territory in question or the extradition arrangements between that country and the United Kingdom (subsection (10)).

Section 58: Consent to further extradition to category 2 territory

170.     Subsection (1) states that the section applies if a person has been extradited to a category 1 territory and the Secretary of State receives a certified request for consent to extradite the person from the category 1 territory to a category 2 territory. The relevant designated authority in the United Kingdom may, under subsection (2), certify such a request if it is satisfied that it has come from the proper judicial authority for making such requests in the requesting territory.

171.     The Secretary of State must then serve notice on the person that a request for consent has been received, unless it would not be practicable to do so (subsection (4)).

172.     Subsection (5) requires the Secretary of State to decide whether the offence is an extradition offence, as defined in section 137, in relation to the category 2 territory. If he decides that it is not, he must refuse consent (subsection (6)).

173.     If the Secretary of State decides that the offence is an extradition offence, then he must decide whether the appropriate judge would send the case to him under sections 79 to 91 if the person were in the United Kingdom (subsection (7)). If he decides that the judge would not, he must refuse consent (subsection (8)).

174.     If he decides that the judge would send him the case, the Secretary of State must then decide whether the person's extradition would have been barred, if the person were in the United Kingdom (subsection (9)). He must consider reasons relating to the death penalty, speciality or his earlier extradition from another territory (see sections 94 to 96). If it would not have been barred, the Secretary of State may then give his consent under subsection (10). If it would have been barred, the Secretary of State must refuse consent to re-extradition to the category 2 territory (subsection (11)).

175.     For the purposes of this section, where any of these functions are exercised solely in relation to cases in Scotland, references to the Secretary of State are to be read as references to the Scottish Ministers (subsection (12)).

Section 59: Return of person to serve remainder of sentence

176.     This section applies where a person who was serving a custodial sentence in the United Kingdom is extradited and then returned to this country to serve the rest of his domestic sentence (subsection (1)). In this situation the person is liable to be detained to serve the sentence and, if he is at large, he is to be regarded as being unlawfully at large (subsections (2) and (3)).

177.     Time spent out of the United Kingdom in connection with the person's extradition does not count as time served towards his sentence in the United Kingdom (subsection (4)), unless he is acquitted of the extradition offence or any other offence for which he was allowed to be dealt with in the requesting territory (subsection (5)). In this situation, as set out in subsection (6), time spent in custody outside the United Kingdom, in connection with these offences, does count as time served for the purposes of the United Kingdom sentence.

Section 60: Costs where extradition ordered

178.     This section allows for an order for costs to be made against a person who unsuccessfully challenges proceedings held under this Part of the Act. This is based on section 18 of the Prosecution of Offences Act 1985, which allows a court in a criminal case to make an award of costs against the accused.

179.     Subsection (1) states that this section applies when any of these occur:

• a person's extradition is ordered in pursuance of a Part 1 warrant;

• the High Court dismisses a person's appeal against an order for his extradition (brought under section 26);

• the High Court or House of Lords refuses a person leave to appeal a decision of the High Court under section 32;

• the House of Lords dismisses a person's appeal under section 32.

180.     In each of the above cases the relevant judge or court has the power to make an order for the person to pay costs that he/it considers just and reasonable (subsections (2) and (3)). Such an order for costs must specify the amount to be paid and may name of the person to whom the costs are to be paid (subsection (4)).

Section 61: Costs where discharge ordered

181.     This section allows an order for costs to be made in favour of a person who is discharged or taken to be discharged under this Part of the Act.

182.     Subsection (1) states that this section applies when any of these occur:

• a person's discharge is ordered under Part 1;

• a person is taken to be discharged under this Part;

• the High Court dismisses an appeal against an order for a person's discharge (brought under section 28);

• the High Court or House of Lords refuses the authority which issued a Part 1 warrant leave to appeal a decision of the High Court under section 32;

• the House of Lords dismisses the appeal of the authority which issued a Part 1 warrant under section 32.

183.     In each of the above cases the relevant judge or court has the power to make an order for costs in the discharged person's favour (subsections (2) to (4)). Subsection (5) provides for such an order to be an order for payment of an amount to be made out of money provided by Parliament. The amount is that which the relevant judge or court think is reasonably sufficient to compensate the person in question for any expenses incurred as a result of extradition proceedings under this Part of the Act (subsection (6)).

184.     Subsection (7) allows the relevant judge or court to come to a different decision where it is considered inappropriate for the person to recover the full amount under subsection (6). In this situation the judge or court is required to assess the amount considered to be just and reasonable and specify that as the appropriate amount in the order. In other circumstances, according to subsection (8), the appropriate amount must be specified in the order, where it is considered appropriate to do so and the discharged person agrees the amount, failing which the amount must be calculated in accordance with regulations made by the Lord Chancellor.

Section 62: Costs where discharge ordered: supplementary

185.     Subsections (1) and (2) of this section mean that section 20(1) and (3) of the Prosecution of Offences Act 1985 apply to section 61 in the same way that they apply in relation to Part 2 of that Act. In Northern Ireland (subsection (3)) the relevant provision is section 7 of the Costs in Criminal Cases Act (Northern Ireland) 1968, which applies to section 61 as it does to sections 2 to 5 of that Act.