Extradition (Provisional Arrest) Act 2020

Commentary on provisions of Bill/Act

Section 1: Power of arrest for extradition purposes

27. Section 1 provides a summary of the Schedule to the Act.

Section 2: Extent, commencement and short title

28. Section 2 makes general provision on extent, commencement and the short title of the Act.
29. Subsection (1) provides that any amendment or repeal made by the Act has the same extent as the provision being amended or repealed.
30. Subsection (2) provides that the existing powers in the 2003 Act to extend provisions of that Act to the British Overseas Territories and Crown Dependencies by Order in Council can be used to extend the amendments made by this Act.
31. Subsections (3) to (7) make provision in relation to commencement. Section 2 will commence on Royal Assent. The remaining provisions of the Act will commence on the day appointed by regulations, and different days may be appointed for different purposes.
32. Subsection (8) sets out the short title of the Act – the Extradition (Provisional Arrest) Act 2020.

The Schedule: Power of arrest for extradition purposes

33. The Schedule to the Act sets out the substantive provisions of the Act. It is divided into Part 1 (main amendments to the Extradition Act 2003) and Part 2 (consequential amendments).

Part 1 – Main Amendments to the Extradition Act 2003

34. Part 1 amends Part 2 of the 2003 Act, which makes provision for the extradition of persons to category 2 territories (i.e. territories which have been designated by order for the purposes of Part 2). The amendments in Part 1 create a new power of arrest, without a UK warrant, for the purpose of extraditing people for serious offences.
35. Paragraph (2) inserts new sections 74A to 74E into Part 2 of the 2003 Act. In summary, new section 74A sets out that the new power of arrest applies where a request for a person’s arrest has been certified under new section 74B. It also provides that a person arrested under the new power must be brought before the appropriate judge as soon as practicable. New sections 74B and 74C set out the requirements for certifying a request for a person’s arrest. The procedure to be followed upon the person being brought before the judge is set out in new sections 74D and 74E. No amendments are made to the provisions in Part 2 concerning any subsequent extradition hearing.

Section 74A

36. Subsection (1) provides constables, customs officers and service police officers with a power to arrest a person on the basis that a certificate has been issued in respect of the person under the procedure in new section 74B. This obviates the need to first obtain a warrant of arrest from a UK court. Whereas a constable or customs officer may exercise this power in any part of the United Kingdom, a service police officer may exercise the power anywhere, but only in relation to a person who is subject to service law or is a civilian subject to service discipline (subsections (5) to (6)).
37. Under subsection (2), the person must be given a copy of the certificate as soon as practicable after their arrest. If this requirement is not met and the person applies to the judge, new section 74D(10)(a)(i) provides that the judge may order the person’s discharge.
38. Subsection (3) requires any person arrested under this section to be brought, as soon as practicable after arrest, before the appropriate judge. The ‘appropriate judge’ is defined in section 139 of the 2003 Act and varies according to the different jurisdictions of the UK. If the requirement in subsection (3) is not met and the person applies to the judge, new section 74D(10)(b)(ii) provides that the judge must order the person’s discharge.
39. Subsection (7) prohibits a person from being arrested more than once on the basis of the same certificate.

Section 74B

40. This section provides for the issue of a certificate in respect of a person, for the purpose of enabling that person’s arrest under new section 74A.
41. Under subsection (1), the power to issue a certificate is conferred on the designated authority, which is the National Crime Agency (subsection (4)). The Secretary of State may alter the designated authority by regulations, including to designate more than one authority or to designate different authorities for different parts of the United Kingdom (subsections (5) and (6)). This provides flexibility should future operational arrangements require it.
42. Subsection (1) further provides that the power to issue a certificate in respect of a person is contingent upon the criteria in paragraphs (a) to (d) being met. Absence of reasonable grounds for issuing the certificate constitutes a mandatory ground of discharge, upon application to the judge, under new section 74D(10)(b)(i).
43. To meet the criterion in paragraph (a) of subsection (1), the designated authority must have received a request for arrest which complies with the criteria for a valid request in new section 74C and the request for arrest must have been made by an authority of a specified category 2 territory. Subsection (7) defines a "specified category 2 territory" as a category 2 territory that is specified in Schedule A1.
44. Under paragraph (b), the designated authority must be satisfied that the request is made under arrangements which allow such a request to be made only if a warrant for the person’s arrest has been issued in the category 2 territory or if the person is alleged to be unlawfully at large after conviction of an offence in the category 2 territory. This is intended to ensure that certificates are only issued where requests are underpinned by a domestic warrant, or a conviction, in the requesting territory.
45. The criteria in paragraphs (c) and (d) of subsection (1) are intended to ensure that certificates are only issued in respect of serious offences. Under paragraph (c), the designated authority must have reasonable grounds for believing that the offence described in the request is a serious extradition offence. Subsection (10) sets out that, for these purposes, a "serious extradition offence" is an extradition offence within the meaning of sections 137 and 138 of the 2003 Act, subject to certain modifications. The key modification is that the conduct in question must constitute an offence punishable in the United Kingdom by a custodial sentence of three years or more (rather than one year or more, as in sections 137 and 138). Additionally, the conduct may constitute an offence in any part of the United Kingdom, reflecting the fact that extradition proceedings in a particular jurisdiction of the United Kingdom will not have commenced at this stage. Under paragraph (d) of subsection (1), the designated authority must also be satisfied that the seriousness of the offence makes it appropriate to issue the certificate. For example, although the offence of theft carries a maximum custodial sentence of seven years (so that conduct constituting the offence of theft may meet the definition of a serious extradition offence), certification would not be appropriate if the conduct in question related to low-value shoplifting.
46. Subsection (2) sets out the information that must be included on the certificate. It requires certain matters – in particular, the validity of the request for arrest, the seriousness of the offence and the specification of the category 2 territory which made the request in Schedule A1 – to be certified in the certificate. It also requires information found in the request for arrest concerning the basis for arrest to be set out. Paragraph (a) of subsection (2) refers to the form of the request. If, for example the request was issued in the form of an Interpol Red Notice, the certificate must state this. Non-compliance with subsection (2) provides a discretionary ground for discharge in new section 74D(10)(a)(ii).
47. Under subsection (3), a certificate may be withdrawn and reissued on the basis of the same request if the person has not yet been arrested in reliance on it. This will enable the designated authority to fix a defective certificate if not yet relied upon. However, should a judge have exercised his or her discretion to discharge a person on the basis that the certificate did not meet the criteria in new section 74B(2), the designated authority would only be able to issue a further certificate under new section 74B in respect of a freshly issued request.
48. Subsection (8) allows the Secretary of State to amend, by regulations, the list of specified category 2 territories in Schedule A1 and to amend, in consequence, what it means to make a request "in the approved way" in new section 74C(6). This consequential power would, for example, allow for the fact that there may be different authorities within the newly specified territory which have the function of issuing requests in that territory and that it may be appropriate to single out one or more of them.

Section 74C

49. This section sets out the criteria that a request for a person’s arrest must meet to be valid for certification purposes.
50. Subsection (1) provides that a request for a person’s arrest is valid if it is made in the approved way and contains the correct statement and information referred to in subsections (2) to (5). Subsection (6) explains that a request is made in the approved way if it is made by an authority which the designated authority believes has the function of making such requests in that territory.
51. The statement and information that a request for arrest must contain under subsections (2) to (5) will vary according to whether the person is accused in the category 2 territory of the commission of an offence and is therefore wanted for prosecution or whether the person has been convicted of an offence by a court in the category 2 territory and is therefore wanted for the purposes of being sentenced or serving a sentence. The relevant provisions are self-explanatory.

Section 74D

52. 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.
53. 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.
54. If the judge determines that a warrant would not be issued, subsection (2) requires the judge to order the person’s discharge.
55. 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.
56. 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.
57. 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)).
58. 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.

Section 74E

59. This section sets out how the judge must proceed if he or she decides that a warrant would be issued under section 73 of the 2003 Act if the person were not already under arrest. New section 74E closely mirrors section 74(7) to (11) of the 2003 Act, concerning the procedure to be followed by the appropriate judge in respect of a person arrested under a provisional warrant. This reflects that the fact a person to whom new section 74E applies is in an analogous position to a person arrested pursuant to a provisional warrant.
60. Subsection (1) requires the judge to inform the person of the basis on which they are wanted, to give them the required information about consent to extradition, and to remand them in custody or release on bail. Subsection (2) sets out the necessary information about consent to extradition. Provision regarding consent to extradition can be found in sections 127 and 128 of the 2003 Act. Section 127, as amended by this Act, provides that a person arrested under new section 74A may consent to their extradition, subject to certain criteria (including legal representation at the time of consent) being met.
61. Subsection (3) sets out that, if the judge chooses to remand the person in custody, he or she may later decide to grant bail.
62. Subsection (4) provides that the judge must order the person’s discharge if the judge does not receive the full request for extradition and the certificate issued in respect of that extradition request under section 70 of the 2003 Act (together, these constitute the documents referred to in section 70(9) of the 2003 Act) within the required time-frame as defined in section 74(11) of the 2003 Act. The required time-frame is 45 days, starting with the day on which the person was arrested, or a longer period if the Secretary of State has so provided when designating a territory as a category 2 territory by order.
63. Paragraph 3 inserts new Schedule A1, which lists the specified category 2 territories, into Part 2 of the 2003 Act. The significance of Schedule A1 lies in the fact that, under new section 74B(1), a certificate may only be issued in relation to a person for the purposes of the new power of arrest if, among other criteria, the request for their arrest is made by an authority of a specified category 2 territory. The category 2 territories specified in new Schedule A1 are Australia, Canada, Liechtenstein, New Zealand, Switzerland and the United States of America.
64. Paragraph 4 amends the list of territories in new Schedule A1, to also include the EU Member States, Norway and Iceland. This provision will only take effect if those territories are made category 2 territories under the 2003 Act (section 2(4) of the Act) and is repealed at the end of 2021 to the extent that it has not been commenced. The practical effect of this is that the territories will become specified category 2 territories only in the event that the UK does not agree a new extradition relationship with the EU (or Norway and Iceland) by 31 December 2020, the end of the Transition Period.
65. Paragraph 6 allows a certificate to be issued under new section 74B in respect of a request for arrest made before the Act is enacted, with the effect that the new power of arrest can apply in relation to such requests.

Part 2 – Consequential Amendments

66. Part 2 makes provision for amendments that are required as a consequence of the creation of the new power of arrest.
67. Paragraphs 7 and 8 amend the definition of an "extradition arrest power" in section 65 of the Police and Criminal Evidence Act 1984 and Article 53(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 respectively to refer to the power of arrest in new section 74A. No such amendment is required to the equivalent legislation in Scotland, the Criminal Procedure (Scotland) Act 1995, since the definition of an extradition arrest power in that Act cross-refers to section 174(2) of the Extradition Act 2003.
68. Expanding the definition of an extradition arrest power in those enactments to include the new power of arrest created by this Act has the effect of disapplying provisions regarding police powers in those enactments in respect of a person arrested under the new power of arrest.
69. Paragraph 9 amends section 94(6A) of the Nationality, Immigration and Asylum Act 2002 so that the Secretary of State is not obliged to certify an asylum or human rights claim if the person concerned is the subject of certificate issued under new section 74B of the 2003 Act. The amendment is consistent with the approach taken in section 94(6A) in respect of persons who fall within the scope of the other extradition arrest powers.
70. Paragraphs 10 to 26 provide for consequential amendments to the 2003 Act.
71. Paragraph 11 amends section 76 so that the provisions for fixing a date for an extradition hearing apply to a person arrested under new section 74A as well as to a person arrested under a provisional warrant.
72. Paragraphs 12 and 13 amend sections 76A and 76B, which are concerned, respectively, with the scenario where a person is charged with an offence in the United Kingdom before the extradition hearing and the scenario where a person is serving a sentence in the United Kingdom before the extradition hearing. The effect of the amendments is to apply these sections to a person arrested under new section 74A.
73. The amendments made by paragraph 14 to section 127(2) ensure that a person arrested under new section 74A may consent to their extradition.
74. Paragraph 15 amends section 136, which deals with a situation where a request for a person’s extradition to a category 2 territory is made after their sentence has been transferred from one territory to another under an international arrangement (i.e. under measures allowing the transfer of prisoners or custodial sentences). The amendments provide that new sections 74B, 74C and 74E can be read with appropriate modifications where these circumstances apply. A modification is also applied in respect of section 74(7)(a) in consequence of these amendments.
75. Paragraphs 16 to 19 make amendments to Part 4 of the 2003 Act, which sets out various police powers in connection with extradition. The powers are exercisable where a person may or has been arrested under an extradition arrest power. Paragraph 19 amends the definition of an extradition arrest power in section 174 to include reference to the power of arrest in new section 74A. Paragraphs 16 to 18 make additional consequential amendments to powers of search and entry on arrest and after arrest (sections 162 and 164 respectively) and to the delivery of seized property to the requesting territory (section 172) to ensure that the powers in those provisions can be applied where a person has been arrested under new section 74A.
76. Paragraphs 20 and 21 amend sections 193 and 194 respectively. These sections allow for extradition, in certain circumstances, to territories which are not designated under Part 1 or 2. Section 193 is concerned with extradition requests to a territory that is party to a designated international convention, while section 194 deals with extradition requests to a territory with which the United Kingdom has special extradition arrangements. If the Secretary of State issues a certificate under either section, the 2003 Act applies as if the requesting territory were a Part 2 territory, with certain omissions. The amendments made by paragraphs 18 and 19 mean that the provisions relating to the new power of arrest cannot be applied in respect of territories falling within the scope of section 193 or 194.
77. The amendments made by paragraphs 22 and 23 to section 206B and 206C respectively apply provisions relating to the use of live links at certain hearings to those who have been or may be arrested under the new power.
78. Paragraph 24 amends section 208, which enables the Secretary of State to prevent a person’s extradition where their extradition would be against the interests of national security. The amendments mean that, where the Secretary of State has issued a direction that a request for a person’s extradition is not to be proceeded with, a person arrested under the new power does not need to appear or be brought before the appropriate judge and must be discharged. If the person arrested under the new power appears or is brought before the appropriate judge, the judge is no longer required to proceed with the matter.
79. Paragraph 25 amends the interpretative provisions in section 216 so that a different definition applies to references to ‘the designated authority’ in new sections 74B and 74C than applies to references to ‘the designated authority’ in the rest of the 2003 Act.
80. The amendments made by paragraph 26 to section 223 apply the affirmative resolution procedure to regulations made for the purpose of adding, varying or removing a reference to a territory in new Schedule A1. By omission, the negative resolution procedure is applied to regulations made for the purpose of designating an authority that may issue certificates under new section 74B.
81. Paragraphs 27 to 29 amend the UK Borders Act 2007. Paragraph 28 amends section 2 of that Act so that temporary detention at port can take place on the basis of a certificate issued under new section 74B in an analogous way to existing warrants issued under the 2003 Act.
82. Paragraph 29 amends section 33(5) of the UK Borders Act 2007 so that the auto-deport provisions in that Act do not apply if the person concerned is the subject of a certificate issued under new section 74B of the 2003 Act. The amendment is consistent with the approach taken in section 33(5) in respect of persons who fall within the scope of the other extradition arrest powers.
83. Paragraph 30 amends section 57A(3) of the Criminal Justice (Scotland) Act 2016, to add the power of arrest in new section 74A to the list of powers to arrest otherwise than in respect of an offence. This clarifies that, in respect of the new power of arrest, the modifications made by sections 57A and 57C of the 2016 Act to other provisions of Part 1 of that Act (which deal generally with arrest and detention) apply. No amendment is required to the definition of an "extradition arrest power" in the 2016 Act, since the definition cross-refers to section 174(2) of the Extradition Act 2003, which is amended by paragraph 17.
84. Paragraph 31 creates a power for the Secretary of State to make further consequential amendments by regulations. If such consequential amendments modify primary legislation, they are subject to the affirmative resolution procedure; if they do not, they are subject to the negative resolution procedure.