Criminal Justice Act 1988

Part I — Extradition

Preliminary

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Orders in Council as to arrangements for extradition

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• (1) Where general extradition arrangements have been made, Her Majesty may, by Order in Council reciting or embodying their terms, direct that extradition procedures shall be available as between the United Kingdom and the foreign state, or any foreign state, with whom they have been made, subject to the limitations, restrictions, exceptions and qualifications, if any, contained in the Order.

• (2) An Order in Council under this section shall not be made unless the general extradition arrangements to which it relates—

• (a) provide for their determination after the expiration of a notice given by a party to them and not exceeding one year or for their denunciation by means of such a notice; and

• (b) are in conformity with the provisions of this Part of this Act, and in particular with the restrictions on return contained in this Part of this Act.

• (3) An Order in Council under this section shall be conclusive evidence that the arrangements therein referred to comply with this Part of this Act and that this Part of this Act applies in the case of the foreign state, or any foreign state, mentioned in the Order.

• (4) An Order in Council under this section shall be laid before Parliament after being made.

• (5) An Order in Council under this section which does not provide that a person may only be returned to the foreign state requesting his return if the court before which he is brought under section 6 below is satisfied that the evidence would be sufficient to warrant his trial if the extradition crime had taken place within the jurisdiction of the court shall be subject to annulment in pursuance of a resolution of either House of Parliament.

• (6) On the commencement of this Part of this Act the power conferred by section 2 of the Extradition Act 1870 to direct that that Act shall apply in the case of a foreign state shall cease to be exercisable, but nothing in this Part of this Act affects any Order in Council made under that section or the operation of any enactment in relation to a foreign state in whose case an Order in Council under that section is in force.

Marriage and other relationships

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• (1) A person shall not be returned to a foreign state under this Part of this Act, or committed to or kept in custody for the purposes of such return, if it appears to an appropriate authority—

• (a) that the offence of which that person is accused or was convicted is an offence of a political character;

• (b) that it is an offence under military law which is not also an offence under the general criminal law;

• (c) that the request for his return (though purporting to be made on account of an extradition crime) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or

• (d) that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.

• (2) A person who is alleged to be unlawfully at large after conviction of an extradition crime by a court in a foreign state shall not be returned to that state, or committed to or kept in custody for the purposes of such return, if it appears to an appropriate authority—

• (a) that the conviction was obtained in his absence; and

• (b) that it would not be in the interests of justice to return him to the foreign state on the ground of that conviction.

• (3) A person accused of an offence shall not be returned to a foreign state, or committed to or kept in custody for the purposes of such return, if it appears to an appropriate authority that if charged with that offence in the United Kingdom he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction.

• (4) A person shall not be returned to a foreign state, or committed to or kept in custody for the purposes of such return, unless provision is made by the law of that state, or by an arrangement made with that state, for securing that he will not, unless he has first had an opportunity to leave that state, be dealt with in that state for or in respect of any offence committed before his return to it other than—

• (a) the offence in respect of which his return is ordered;

• (b) an offence, other than an offence excluded by subsection (5) below, which is disclosed by the particulars furnished under section 4(2)(b) below; or

• (c) subject to subsection (6) below, any other offence being an extradition crime in respect of which the Secretary of State may consent to his being dealt with.

• (5) The offences excluded from paragraph (b) of subsection (4) above are offences in relation to which an order for the return of the person concerned could not lawfully be made in accordance with the provisions of this Part of this Act.

• (6) The Secretary of State may not give consent under paragraph (c) of that subsection in respect of an offence in relation to which it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Part of this Act.

• (7) In this Part of this Act “appropriate authority” means—

• (a) the Secretary of State;

• (b) the court of committal;

• (c) the High Court or High Court of Justiciary on an application for habeas corpus or for review of the order of committal.

Procedure

Extradition request and authority to proceed

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• (1) Subject to the provisions of this Part of this Act relating to provisional warrants, a person shall not be dealt with under this Part of this Act except in pursuance of an order of the Secretary of State (in this Part of this Act referred to as an “authority to proceed”) issued in pursuance of a request (in this Part of this Act referred to as an “extradition request”) for the surrender of a person under this Part of this Act made by some person recognised by the Secretary of State as a diplomatic representative of a foreign state.

• (2) There shall be furnished with any such request—

• (a) particulars of the person whose return is requested;

• (b) particulars of the offence of which he is accused or was convicted (including information sufficient to justify the issue of a warrant for his arrest under this Part of this Act);

• (c) in the case of a person accused of an offence, a warrant for his arrest issued in the foreign state; and

• (d) in the case of a person unlawfully at large after conviction of an offence, a certificate of the conviction and sentence,

and copies of them shall be served on the person whose return is requested before he is brought before a court under section 6 below.

• (3) Rules under section 144 of the Magistrates' Courts Act 1980 may make provision as to the procedure for service under subsection (2) above in England and Wales.

• (4) The High Court of Justiciary may, by Act of Adjournal, make rules as to the procedure for service under subsection (2) above in Scotland.

• (5) On receipt of any such request the Secretary of State may issue an authority to proceed unless it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Part of this Act.

• (6) An authority to proceed shall specify the offence or offences under the law of the United Kingdom which it appears to the Secretary of State would be constituted by equivalent conduct in the United Kingdom.

• (7) In this Part of this Act “warrant”, in the case of any foreign state, includes any judicial document authorising the arrest of a person accused or convicted of a crime.

Arrest for purposes of committal

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• (1) For the purposes of this Part of this Act a warrant for the arrest of a person accused in a foreign state of an extradition crime, or alleged to be unlawfully at large after conviction in a foreign state of an extradition crime, may be issued—

• (a) on the receipt of an authority to proceed, by—

• (i) the chief metropolitan stipendiary magistrate or metropolitan stipendiary magistrate designated for the purposes of this Part of this Act by the Lord Chancellor; or

• (ii) the sheriff of Lothian and Borders;

• (b) without such an authority—

• (i) by a metropolitan stipendiary magistrate;

• (ii) by a justice of the peace in any part of the United Kingdom; and

• (iii) in Scotland, by a sheriff,

upon information that the said person is or is believed to be in or on his way to the United Kingdom;

and any warrant issued by virtue of paragraph (b) above is in this Part of this Act referred to as a “provisional warrant”.

• (2) A person empowered to issue warrants of arrest under this section may issue such a warrant if he is supplied with such information as would in his opinion authorise the issue of a warrant for the arrest of a person accused of conduct which would constitute an offence punishable under the law of the United Kingdom with imprisonment for a period of not less than 12 months or, as the case may be, of a person alleged to be unlawfully at large after conviction of such an offence within his jurisdiction.

• (3) Where a provisional warrant is issued under this section, the authority by whom it is issued shall forthwith give notice to the Secretary of State, and transmit to him the information, or certified copies of the information, upon which it was issued; and the Secretary of State may in any case, and shall, if he decides not to issue an authority to proceed in respect of the person to whom the warrant relates, by order cancel the warrant and, if that person has been arrested under it, discharge him from custody.

• (4) A warrant of arrest issued under this section may, without being backed, be executed in any part of the United Kingdom and may be so executed by any person to whom it is directed or by any constable.

Proceedings for committal

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• (1) A person arrested in pursuance of a warrant under section 5 above shall (unless previously discharged under subsection (3) of that section) be brought as soon as practicable before a court (in this Part of this Act referred to as “the court of committal”) consisting of the chief metropolitan stipendiary magistrate or a metropolitan stipendiary magistrate designated as mentioned in section 5(1)(a) above or the sheriff of Lothian and Borders, as may be directed by the warrant.

• (2) For the purposes of proceedings under this section the court of committal shall have the like jurisdiction and powers, as nearly as may be, including power to remand in custody or on bail, as a magistrates' court acting as examining justices.

• (3) For the purposes of proceedings under this section a court of committal in Scotland shall have the like powers, including power to adjourn the case and meanwhile to remand the person arrested under the warrant either in custody or on bail, and the proceedings shall be conducted as nearly as may be in the like manner, as if the proceedings were summary proceedings in respect of an offence alleged to have been committed by that person; and the provisions of the Legal Aid (Scotland) Act 1986 relating to such proceedings or any appellate proceedings following thereon shall apply accordingly to that person.

• (4) Where an Order in Council such as is mentioned in subsection (8) below is in force in relation to the foreign state, there is no need to furnish the court of committal with evidence sufficient to warrant the trial of the arrested person if the extradition crime had taken place within the jurisdiction of the court.

• (5) Where the person arrested is in custody by virtue of a provisional warrant and no authority to proceed has been received in respect of him, the court of committal may fix a period (of which the court shall give notice to the Secretary of State) after which he will be discharged from custody unless such an authority has been received.

• (6) In exercising the power conferred by subsection (5) above in a case when the extradition request is made under general extradition arrangements the court shall have regard to any period specified for the purpose in the Order in Council relating to the arrangements.

• (7) Where—

• (a) the extradition request is made under general extradition arrangements but no period is so specified; or

• (b) the application is made under special extradition arrangements,

the court of committal may fix a reasonable period.

• (8) Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any representations made in support of the extradition request or on behalf of that person, that the offence or any of the offences to which the authority relates is an extradition crime, and is further satisfied—

• (a) where that person is accused of the offence, unless an Order in Council giving effect to general extradition arrangements otherwise provides, that the evidence would be sufficient to warrant his trial if the extradition crime had taken place within the jurisdiction of the court;

• (b) where that person is alleged to be unlawfully at large after conviction of the offence, that he has been so convicted and appears to be so at large,

the court, unless his committal is prohibited by any other provision of this Part of this Act, shall commit him—

• (i) to await the Secretary of State’s decision as to his return to the foreign state that made the extradition request; and

• (ii) if the Secretary of State decides that he shall be returned to that state, to await his return.

• (9) If the court commits a person under subsection (8) above, it shall issue a certificate of the offence against the law of the United Kingdom which would be constituted by his conduct.

• (10) A person may be committed in the exercise of the power conferred by subsection (8) above either to custody or on bail.

• (11) If the court commits a person to custody in the exercise of that power, it may subsequently grant him bail if it considers it appropriate to do so.

• (12) If—

• (a) the court is not satisfied as mentioned in subsection (8) above in relation to the person arrested; or

• (b) his committal is prohibited by a provision of this Part of this Act,

it shall discharge him.

Statement of case by court

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• (1) If the court of committal refuses to make an order of committal in relation to a person under section 6 above in respect of the offence or, as the case may be, any of the offences, to which the authority to proceed relates, the state seeking the surrender of that person to it may question the proceeding on the ground that it is wrong in law by applying to the court to state a case for the opinion of the High Court or, in Scotland, the High Court of Justiciary on the question of law involved.

• (2) If the state seeking his surrender immediately informs the court of committal that it intends to make such an application, the court shall make an order providing for his detention, or directing that he shall not be released except on bail.

• (3) Rules of Court may specify—

• (a) a period within which a state must make such an application unless the Court grants a longer period; and

• (b) a period within which the court of committal must comply with such an application.

• (4) Where the court of committal fails to comply with an application under subsection (1) above within the period specified in Rules of Court, the High Court or, in Scotland, the High Court of Justiciary may, on the application of the state that applied for the case to be stated, make an order requiring the court to state a case.

• (5) The High Court or High Court of Justiciary shall have power—

• (a) to remit the case to the court of committal to decide it according to the opinion of the High Court or High Court of Justiciary on the question of law; or

• (b) to dismiss the appeal.

• (6) Where the court dismisses an appeal relating to an offence, it shall by order declare that that offence is not an offence in respect of which the Secretary of State has power to make an order under section 9 below in respect of the person whose return was requested.

• (7) An order made by a metropolitan magistrate under subsection (2) above shall cease to have effect if—

• (a) the court dismisses the appeal in respect of the offence or all the offences to which it relates; and

• (b) the state seeking surrender does not immediately—

• (i) apply for leave to appeal to the House of Lords; or

• (ii) inform the court that it intends to apply for leave.

• (8) An order made by the sheriff of Lothian and Borders under subsection (2) above shall cease to have effect if the court dismisses the appeal in respect of the offence or all the offences to which it relates.

• (9) In relation to a decision of a court on an appeal under this section, section 1 of the Administration of Justice Act 1960 (right of appeal to House of Lords) shall have effect as if so much of subsection (2) as restricts the grant of leave to appeal were omitted.

• (10) The House of Lords may exercise any powers of the High Court under subsection (5) above and subsection (6) above shall apply to them as it applies to that Court.

• (11) Subject to subsections (7) and (8) above, an order under subsection (2) above shall have effect so long as the case is pending.

• (12) For the purposes of this section a case is pending (unless proceedings are discontinued) until (disregarding any power of a court to grant leave to take any step out of time) there is no step that the foreign state can take.

• (13) In the application to Scotland of this section, subsections (9) and (10) shall be omitted and, in relation to an appeal under this section in Scotland, the court may make an order providing for the detention of the person to whom it relates or it may grant bail; and section 446(2) of the Criminal Procedure (Scotland) Act 1975 shall apply for the purpose of such an appeal as it applies for the purpose of an appeal such as is mentioned in section 444 of that Act.

Application for habeas corpus etc

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