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Statutory
Instrument 2002 No. 1823
The Extradition (Overseas Territories) Order 2002
Crown Copyright 2002
2002 No. 1823
EXTRADITION
The Extradition (Overseas Territories) Order 2002
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Made
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16th
July 2002
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Laid before Parliament
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26th
July 2002
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Coming into force
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16th
August 2002
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At
the Court at Buckingham Palace, the 16th day of July 2002
Present,
The
Queen's Most Excellent Majesty in Council
Her Majesty, in exercise of the powers conferred upon Her by section 32 and
section 34(3) of the Extradition Act 1989[1] or otherwise in Her Majesty vested, is
pleased, by and with the advice of Her Privy Council, to order, and it
is hereby ordered, as follows: -
1. - (1) This Order
may be cited as the Extradition (Overseas Territories) Order
2002.
(2) This Order shall come into force on 16th
August 2002.
2. - (1) For the
purposes of extradition as between the territories listed in
Schedule 1 to this Order and the United Kingdom, Ireland, Commonwealth
countries and British overseas territories, the following
sections of the Extradition Act 1989 ("the 1989 Act"),
modified and adapted as in Schedule 2 to this Order, shall extend to
the territories listed in Schedule 1 to this Order: section 1,
section 2, sections 5 to 12, section 14, sections 16 and 17, sections 19, 20
and 21, section 23, section 24, section
25, sections 27 and 28, section 35
and section 36.
(2) In its extension to the British Antarctic Territory
and the British Indian Ocean Territory, the 1989 Act, as so modified
and adapted, shall be subject to the further modifications and adaptations
set out in, respectively,
Schedules 3 and 4 to this Order.
3. - (1) Subject to
paragraph (2) below the Orders listed in Schedule 5 to this Order
are hereby revoked.
(2) The foregoing paragraph shall not have effect in
relation to any case in which a warrant of arrest,
whether issued on receipt
of an authority to proceed or a provisional warrant, has been issued before
16th August 2002.
(3) Without prejudice to paragraph (2) above, this Order
applies to offences committed before as well as after the coming into force
of this Order.
A.K. Galloway
Clerk of the Privy Council
SCHEDULE
1
Article 2(1)
LISTED TERRITORIES
Anguilla
Bermuda
British Antarctic Territory
British Indian Ocean Territory
Cayman Islands
Falkland Islands
Montserrat
Pitcairn, Henderson, Ducie and Oeno Islands
St Helena and St Helena Dependencies
South Georgia and the South Sandwich Islands
Turks and Caicos Islands
The Sovereign Base Areas of Akrotiri and Dhekelia in the Island of Cyprus
Virgin Islands
SCHEDULE
2
Article 2(1)
PROVISIONS OF EXTRADITION ACT 1989 AS
EXTENDED TO THE LISTED TERRITORIES
PART I
INTRODUCTORY
General
1. - (2) Subject to the provisions
of this Act, a person in a listed territory who is accused of an extradition
crime -
(a) in the United
Kingdom;
(b) in a designated Commonwealth country;
(c) in a British overseas territory; or
(d) in Ireland,
or who is alleged to be unlawfully at
large after conviction of such an offence in any such country or in a British
overseas territory, may be arrested and returned to that
country or British overseas territory in accordance with extradition
procedures under Part III of this Act.
Extradition Crimes
2. - (1) In this Act "extradition
crime" means -
(a) conduct in the territory
of the United Kingdom, Ireland, a designated Commonwealth country or a
British overseas territory which, if it occurred in the
relevant listed territory, would constitute an offence punishable with
imprisonment for a term of 12 months, or any greater punishment, and which,
however
described in the law of the United Kingdom, Ireland, Commonwealth
country or British overseas territory, is so punishable under
that law;
(b) an extra-territorial offence against the law of the United
Kingdom, Ireland, a designated Commonwealth country or a British overseas
territory which is punishable under that law with imprisonment for a
term of 12 months, or any greater punishment, and which
satisfies -
(i) the condition
specified in subsection (2) below; or
(ii) all the conditions specified in subsection (3) below.
(2) The
condition mentioned in subsection (1)(b)(i) above is that in corresponding
circumstances equivalent
conduct would constitute an extra-territorial
offence against the law of the relevant listed territory punishable
with imprisonment for a term of 12 months, or any greater punishment.
(3) The conditions mentioned in subsection (1)(b)(ii)
above are -
(a) that the United
Kingdom, Ireland, designated Commonwealth country or British overseas territory
bases its jurisdiction on the nationality of the offender;
(b) that the conduct constituting the offence occurred outside the relevant
listed territory; and
(c) that, if it occurred in that listed territory it would constitute
an offence under the law of that territory punishable with
imprisonment for a term of 12 months, or any greater punishment.
(4) For the
purposes of subsections (1) to (3) above -
(a) the law of the
United Kingdom, Ireland, a designated Commonwealth country or a British overseas
territory includes the law of any part of it;
(b) conduct in a dependency of a designated Commonwealth country, or a
vessel, aircraft or hovercraft of such a country, shall
be treated as if it
were conduct in the territory of that country; and
(c) conduct in a vessel, aircraft or hovercraft of the United Kingdom, or of
a British overseas territory, or of Ireland shall be treated as
if it were conduct in the United Kingdom or in that British overseas territory
or in Ireland; but
(d) reference shall be made to the law of a dependency of a designated
Commonwealth country, and not (where different) to the
law of the
Commonwealth country, to determine the level of punishment applicable to
conduct in that dependency.
Designation etc.
5.
- (1) In this Act as it has effect under the law of a listed territory,
"designated Commonwealth country" means any country that is for the
time being a designated Commonwealth country
under this Act as it has effect
under the law of the United Kingdom.
(2) This Act has effect in relation to all British overseas
territories.
(3) Subject to any provision made by the Governor of
a territory under subsection (4) below, any Order of Her
Majesty in Council made under section 5(3) of this Act as it has effect under
the law of the United Kingdom, and any
provision made by an Order of
Her Majesty in Council in reliance on section 5(4) of this Act as it so has
effect, shall have effect also under the law
of a listed territory.
(4) The Governor of a listed territory may, by
order made with the approval of the Secretary of State, direct that
any Order of Her Majesty in Council made under section 5(3) of this
Act as it has effect under the law of the United Kingdom, or any provision
made by an Order of Her Majesty in Council in reliance on section 5(4)
of this Act as it so has effect, shall not have effect under the law of
that
listed territory or shall have effect subject to such exceptions,
adaptations or modifications as may be specified in the Governor's order.
(5) The Governor of a listed territory may by order
direct that this Act shall have effect in relation to the return of persons
to, or in relation to persons returned from, any
designated Commonwealth
country or any British overseas territory subject to such
exceptions, adaptations or modifications as may be specified in the order.
(6) Any order under this section may contain
such transitional or other incidental and supplementary provisions as may
appear to the Governor
to be necessary or expedient.
(7) For the purposes of any order under
section 5(1) of this Act as it has effect under the law of the United
Kingdom, any territory for the external relations of which a
Commonwealth country is responsible may be treated as part of that country
or, if the
Government of that country so requests, as a separate country.
(8) Any order made by the Governor of a territory
under this section shall be published in the Official Gazette of the territory.
PART II
RESTRICTIONS ON RETURN
6. - (1) A person shall not be
returned under Part III of this Act, or committed or kept in custody for the
purposes
of 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.
(3) A person
accused of an offence shall not be returned, or committed or kept in custody
for the purposes
of return, if it appears to an appropriate authority that if
charged with that offence in the relevant listed territory 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, or committed or
kept in custody for the purposes of such return,
unless provision is made by
the relevant law, or by an arrangement made with the relevant country or
British overseas territory, for securing that he will not,
unless he has first had an opportunity to leave it, be dealt with there 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 facts in respect of which
his return was ordered;
or
(c) subject to subsection (6) below, any other offence being an extradition
crime in respect of which the Governor 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.
(6) The Governor may not give consent under paragraph
(c) of subsection (4) above 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.
(7) Any such arrangement as is mentioned in
subsection (4) above may be an arrangement made for the
particular case or an
arrangement of a more general nature, and for the purposes of that subsection
a certificate issued by
or under the authority of the Governor confirming the
existence of an arrangement with a country or a British overseas territory
and stating its terms shall be conclusive evidence of the matters contained
in the certificate.
(8) The reference in subsection (1) above to an
offence of a political character does not include an
offence against the life
or person of the Head of the Commonwealth or attempting or conspiring to
commit, or assisting, counselling
or procuring the commission of or being
accessory before or after the fact to such an offence, or of impeding the
apprehension
or prosecution of persons guilty of such an offence.
(9) In this Act "appropriate authority"
means -
(a) the Governor;
(b) the court of committal;
(c) a superior court of the relevant listed territory, on an
application for habeas corpus or for review of the order of committal.
(10) In this
section, in relation to Commonwealth countries and colonies, "race"
includes
tribe.
PART III
PROCEDURE
General
7. - (1) Subject to the provisions
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 Governor (in this Act referred to as an "authority to proceed")
issued in pursuance of a request (in this
Act referred to as an "extradition
request") for the surrender of a person under this Act made to the
Governor by or on behalf of the Government of the United
Kingdom, or the
Government of a designated Commonwealth country or the Governor of a British overseas
territory or the Government of Ireland.
(2) There shall be furnished with any extradition
request -
(a) particulars of the
person whose return is requested;
(b) particulars of the offence of which he is accused or was convicted
(including evidence sufficient to justify the issue
of a warrant for his
arrest under this Act);
(c) in the case of a person accused of an offence, a warrant for his arrest
issued in that country or British overseas territory; 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 the court of
committal.
(4) On receipt of any such request the Governor 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 Act.
(5) An authority to proceed shall specify the offence
or offences under the law of the relevant listed
territory which it
appears to the Governor would be constituted by equivalent conduct in that territory.
8. - (1) For the purposes of this
Part of this Act a warrant for the arrest of a person may be issued by a
magistrate -
(a) on receipt of an
authority to proceed;
(b) without such an authority upon information that the said person is or is
believed to be in or on his way to the relevant
listed territory;
and any warrant issued by virtue of
paragraph (b) above is in this Act referred to as a "provisional
warrant".
(3) A person empowered to issue warrants of arrest
under this section may issue such a warrant if he
is supplied with such
evidence as would in his opinion justify the issue of a warrant for the
arrest of a person accused or,
as the case may be, convicted within his
jurisdiction and it appears to him that the conduct alleged would constitute
an extradition crime.
(4) Where a provisional warrant is issued under this
section, the magistrate by whom it is issued shall
forthwith give notice to
the Governor and transmit to him the information and evidence, or certified
copies of the information
and evidence, upon which it was issued; and the
Governor 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, cancel the
warrant and, if that person has been arrested under
it, discharge him from
custody.
(5) A warrant of arrest issued under this section may
be executed by any person to whom it is directed
or by any constable.
(6) Where a warrant is issued under this section for
the arrest of a person accused of an offence of
stealing or receiving stolen
property or any other offence in respect of property, a magistrate shall have
the like power to
issue a warrant to search for the property as if the
offence had been committed within the jurisdiction.
9. - (1) A person arrested in
pursuance of a warrant under section 8 above shall (unless previously
discharged under
subsection (4) of that section) be brought as soon as
practicable before a court (in this Act referred to as "the court of
committal") consisting of a magistrate.
(2) For the purposes of proceedings under this
section a 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 in proceedings for
committal in relation to an offence
triable on indictment in the relevant listed territory.
(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 Governor) after which he will be discharged from
custody unless such an authority has been received.
(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 to which the authority relates
is an extradition crime, and is further satisfied -
(a) where that person
is accused of the offence, 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 Act, shall commit him to custody or
on bail -
(i) to await the
Governor's decision as to his return; and
(ii) if the Governor decides that he shall be returned, 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 relevant listed territory which
would be constituted by his conduct.
(10) If the court commits a person to custody in the
exercise of that power, it may subsequently grant
bail if it considers it
appropriate to do so.
(11) 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 Act,
it shall discharge him.
10. - (1) If the court of
committal refuses to make an order in relation to a person under
section 9 above in respect of the offence or, as the case may be, any of the
offences to which
the authority to proceed relates, the country or British overseas
territory seeking his return 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 a superior court of the relevant listed territory on the
question of law involved.
(2) If the country or British overseas territory
seeking return immediately informs the court of committal that it intends to
make such an application, the court shall make
an order providing for
the detention of the person to whom the authority to proceed relates, or
directing that he shall not be released
except on bail.
(3) Rules of court may specify -
(a) a period within
which such an application must be made 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 by rules of court, the superior court may,
on the application of the country or British overseas territory
that applied for the case to be stated, make an order requiring the
court to state a case.
(5) The superior court shall have power -
(a) to remit the case
to the court of committal to decide it according to the opinion of the
superior court on the question
of law; or
(b) to dismiss the appeal.
(6) Where the
superior court dismisses an appeal relating to an offence, it shall by order
declare that the offence is not an offence in respect of which the Governor
has power to make an order for return in respect of the person whose
return was requested.
(7) An order made under subsection (2) above
shall cease to have effect if -
(a) the superior court
dismisses the appeal in respect of the offence or all the offences to which
it relates; and
(b) the country or British overseas territory seeking return
does not immediately -
(i) apply for leave to
appeal against that dismissal; or
(ii) inform the superior court that it intends to apply for leave.
(9) An appeal
against the decision of a superior court given under this section may be made
to the court
of the territory to which an appeal from the superior
court in criminal matters lies by the person whose return is sought or by the
country
or British overseas territory seeking his return but
may be so made only -
(a) by leave of the
superior court; or
(b) where that court has refused leave under paragraph (a) above, by special
leave of the court to which an appeal in that
case would lie.
(10) Without
prejudice to any other powers exercisable apart from this provision, a court
may, on an
appeal from a decision of a superior court under subsection (9)
above, exercise any powers of the superior court under subsection
(5) above,
and subsection (6) above shall apply to it as it applies to the superior
court in question.
(11) Subject to subsection (7) above, an order
under subsection (2) above shall have effect so long as the case is pending.
(12) For the purpose 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 and the power of Her
Majesty to grant special
leave to appeal to Her Majesty in Council) there is
no step that the country or British overseas territory seeking
the return can take.
11. - (1) Where a person is
committed under section 9 above, the court shall inform him in ordinary
language of his
right to make an application for habeas corpus, and shall
forthwith give notice of the committal to the Governor.
(2) A person committed shall not be
returned -
(a) in any case, until
the expiration of the period of 15 days beginning with the day on which the order
for his committal is made;
(b) if an application for habeas corpus is made in his case, so long as
proceedings on that application are pending.
(3) Without
prejudice to any jurisdiction, apart from this section, of the court of the
relevant listed
territory to which the application for habeas corpus
is made, the court shall order the applicant's discharge if it appears
to the court in relation to the offence, or each of the offences, in respect
of which
the applicant's return is sought, that -
(a) by reason of the
trivial nature of the offence; or
(b) by reason of the passage of time since he is alleged to have committed it
or to have become unlawfully at large, as the
case may be; or
(c) because the accusation against him is not made in good faith in the
interests of justice,
it would, having regard to all the circumstances,
be unjust or oppressive to return him.
(4) On any such application the court may receive
additional evidence relevant to the exercise of its
jurisdiction under
section 6 above or subsection (3) above.
(5) Proceedings on an application for habeas corpus
shall be treated for the purposes of this section
as pending (unless they are
discontinued) until (disregarding any power of a court to grant leave to
appeal out of time and
the power of Her Majesty to grant special leave to
appeal to Her Majesty in Council) there is no further possibility of an
appeal.
12. - (1) Where a person is
committed under section 9 above and is not discharged by order of a
superior court of the relevant listed territory, the Governor may by
warrant order him to be returned unless his return is prohibited, or
prohibited for the time being, by this Act, or the Governor decides under
this section to make no such order in his case.
(2) Without prejudice to his general discretion as to
the making of an order for the return of a person to a country or
British overseas territory -
(a) the Governor shall
not make an order in the case of any person if it appears to the
Governor in relation to the offence, or each of the offences, in respect of
which his return is sought, that -
(i) by reason of its
trivial nature; or
(ii) by reason of the passage of time since he is alleged to have committed
it or to have become unlawfully at large, as the
case may be; or
(iii) because the accusation against him is not made in good faith in the
interests of justice,
it would, having
regard to all the circumstances, be unjust or oppressive to return him; and
(b) the Governor may decide to make no order for the return of a
person accused or convicted of an offence not punishable with death in the
relevant listed territory if that person could be or has been
sentenced to death for that offence in the country by which the request for
his return
is made.
(3) An order
for return shall not be made in the case of a person who is serving a
sentence of imprisonment or detention, or is charged
with an offence, in the
relevant listed territory -
(a) in the case of a
person serving such a sentence, until the sentence has been served;
(b) in the case of a person charged with an offence, until the charge is
disposed of or withdrawn or unless an order is made for it to lie on
the file and, if it results in his serving a term of imprisonment or
detention, until the sentence
has been served.
(5) The Governor
may decide to make no order under this section for the return of a
person committed in consequence of an extradition request if another extradition
request (as defined in section 35 of this Act) has been made in respect of
him and it appears to the Governor, having regard
to all the circumstances of
the case and in particular -
(a) the relative
seriousness of the offences in question;
(b) the date on which each such request was made; and
(c) the nationality or citizenship of the person concerned and his ordinary
residence,
that preference should be given to that
other request or requisition.
(6) Notice of the issue of a warrant under this
section for the return of a person shall forthwith
be given to the person to
be returned.
14. - (1) A person may give notice
that he waives the rights conferred on him by section 11 above.
(2) A notice under this section shall be given in the
manner prescribed by rules for proceedings before
a magistrate in the
relevant listed territory and the power to make such rules shall
include power to make provision for a magistrate to order the
committal for return of a person with his consent at any time after his
arrest.
(4) Where an order is made by virtue of this
section, this Act shall cease to apply to the person in respect of whom it is
made, except that,
if he is not surrendered within one month after the order
is made, a superior court of the relevant listed territory, upon
application by or on behalf of that person, may, unless reasonable cause is
shown for the delay, order him to be discharged.
Effect of delay
16. - (1) If a person committed
under section 9 above is still in the relevant listed territory after
the expiration of the relevant period, he may apply to a superior court of
the territory for his discharge.
(2) Unless he has instituted proceedings for judicial
review of the Governor's decision to order his return, the relevant
period is -
(a) the period of two
months beginning with the first day on which, having regard to section 11(2)
above, he could have been
returned;
(b) where a warrant for his return has been issued under section 12 above,
the period of one month beginning with the day on
which that warrant was
issued.
(3) If he has
instituted such proceedings, the relevant period is the period expiring one
month after
they end.
(4) Proceedings for judicial review end for the
purposes of this section -
(a) if they are
discontinued, on the day of discontinuance; and
(b) if they are determined, on the day on which (disregarding any power of a
court to grant leave to appeal out of time and
the power of Her Majesty to
grant special leave to appeal to Her Majesty in Council) there is no further
possibility of an
appeal.
(5) If upon an
application under this section the court is satisfied that reasonable notice
of the proposed
application has been given to the Governor, the court may,
unless sufficient cause is shown to the contrary, by order direct the
applicant to be discharged and, if a warrant for his return has been issued
under section 12 above, quash that warrant.
17. - (1) Any person remanded or
committed to custody under this Part of this Act shall be committed to the
like institution
as a person charged with an offence before the court of
committal.
(2) If any person who is in custody by virtue of a
warrant under this Act escapes out of custody, he
may be retaken in like
manner as a person escaping from custody under a warrant for his arrest
issued in respect of an offence
committed in the relevant listed territory.
(3) Where a person, being in custody in any part of a
listed territory whether under this Part of this Act or otherwise, is
required to be removed in custody under this Act to another part of that
territory
and is so removed by sea or by air, he shall be deemed to continue in legal
custody until he reaches the place to which he
is required to be removed.
(4) A warrant for the return of any person shall be
sufficient authority for all persons to whom it
is directed and all
constables to receive that person, keep him in custody and convey him into
the jurisdiction to which he
is to be returned.
PART IV
TREATMENT OF PERSONS RETURNED
19. - (1) This section applies to
any person accused or convicted of an offence under the law of a listed territory
who is returned to that territory -
(a) from the United
Kingdom, under this Act as it has effect in the United Kingdom;
(b) from any designated Commonwealth country or Ireland, under any law of
that country corresponding with this Act;
(c) from any British overseas territory, under this Act, or the
Fugitive Offenders Act 1967[2], as extended to that British overseas
territory or under any corresponding law of that British overseas
territory.
(2)
A person to whom this section applies shall not, during the period described
in subsection (3) below,
be dealt with in the relevant listed territory
for or in respect of any offence committed before he was returned to that territory
other than -
(i) the offence in respect of which he was returned;
(ii) any lesser offence disclosed by the particulars furnished to the country
or British overseas territory on which his return is grounded;
or
(iii) any other offence in respect of which the Government of the country or
Governor of the British overseas territory from which he was
returned may consent to his being dealt with.
(3)
The period referred to in subsection (2) above in relation to a person to
whom this section applies
is the period beginning with the day of his arrival
in the relevant listed territory on his return as mentioned in
subsection (1) above and ending 45 days after the first subsequent day on
which he has the opportunity
to leave that territory.
(4) Where a person to whom this section applies has
been convicted before his return of an offence
for which his return was not
granted, any punishment for that offence shall by operation of this section
be remitted; but his
conviction for it shall be treated as a conviction for
all other purposes.
(5) In this section "dealt with" means
tried or returned or surrendered to any country or
British overseas territory
or detained with a view to trial or with a view to such return or surrender.
20. - (1) This section applies to
any person accused of an offence under the law of a listed territory
who is returned to that territory as mentioned in section 19(1) above.
(2) If in the case of a person to whom this section
applies either -
(a) proceedings against him for the offence for
which he was returned are not begun within the period of six months beginning
with the day of his arrival in that territory on being returned; or
(b) on his trial for that offence, he is acquitted or discharged (whether
conditionally or unconditionally),
the
Governor may, if he thinks fit, on the request of that person, arrange for
him to be sent back free of charge and with as
little delay as possible to
the jurisdiction of the country or British overseas territory
from which he was returned.
PART
V
SPECIAL
CASES
Repatriation
Cases
21. - (1) This section applies
where -
(a) a request is made by or on behalf of the
Government of the United Kingdom or the Government of Ireland or the
Government
of a designated Commonwealth country or the Governor of a British overseas
territory, for the arrest and return of a person in a listed territory
who is alleged to be unlawfully at large from a prison in which he was
serving a sentence in pursuance of international arrangements
for the repatriation
of prisoners sentenced in one country ("the country of conviction")
to serve their sentences
in another ("the country of
imprisonment"); and
(b) there are furnished with the request -
(i) particulars of the person whose return is
requested;
(ii) particulars of the offence of which he was convicted (including evidence
sufficient to justify the issue of a warrant
for his arrest under the
relevant legislation);
(iii) a certificate of the conviction and sentence; and
(iv) a certificate of the international arrangements for repatriation under
which he was held.
(2)
Where this section applies, the relevant legislation shall have
effect -
(a) if the request is from the country of
conviction, as if the person to whom the request relates were alleged to be
unlawfully
at large from a prison in that country; and
(b) if it is from the country of imprisonment, as if he were alleged to have
been convicted of a corresponding offence under
the law of that country
committed there,
and
the question whether the person to whom the request relates is to be returned
shall be determined, subject to subsection
(3) below, in accordance with that
legislation.
(3) A person shall not be returned under subsection
(2)(b) above unless -
(a) the offence was committed in the country of
conviction; or
(b) the offence was not committed there but was committed in circumstances in
which he might be returned on a request made
by the country of conviction.
(4)
In this section "the relevant
legislation" means the provisions of this Act that are
relevant -
(a) if the case falls within paragraph (a) of
subsection (2) above, to extradition to the country of conviction; and
(b) if it falls within paragraph (b), to extradition to the country of
imprisonment.
International
Convention Cases
23. - (1) For the purposes of this Act, no offence which,
if committed in the relevant listed territory, would be punishable as
an offence of genocide or as an attempt, conspiracy or incitement to commit
such an offence shall be
regarded as an offence of a political character, and
no proceedings in respect of such an offence shall be regarded as a criminal
matter of a political character.
(2) It shall not be an objection to any proceedings
against a person under this Act in respect of an
offence which, if committed
in the relevant listed territory, would be punishable as an offence of
genocide or as an attempt, conspiracy or incitement to commit such an offence
that under
the law in force at the time when and in the place where he is
alleged to have committed the act of which he is accused or of
which he was
convicted he could not have been punished for it.
24. - (1) For the purposes
mentioned in subsection (2) below -
(a) no offence to which section 1 of the Suppression
of Terrorism Act 1978[3] applies shall be regarded as an offence of
a political character; and
(b) no proceedings in respect of an offence to which that section applies
shall be regarded as a criminal matter of a political
character or as
criminal proceedings of a political character.
(2)
Those purposes are the purposes of a request for the return of a person from
a listed territory to which the Suppression of Terrorism Act 1978 has
been extended in accordance with extradition procedures under Part III
of this Act, made by a country to which this subsection applies.
(3) Subsection (2) above applies -
(a) to the United Kingdom;
(b) to a Commonwealth country in relation to which the Secretary of State has
made an order under section 5 of the Suppression of Terrorism Act 1978
applying that subsection;
(c) to any British overseas territory to which that Act has
been extended; and
(d) to Ireland.
25. - (1) A person shall not be returned under this Act
from a listed territory to which the Convention referred to in
subsection (3) below has been extended, to Ireland or to a designated
Commonwealth country
which is party to that Convention, or to a British overseas
territory to which that Convention has been extended, or committed or
kept in custody for the purposes of such return, if it appears to
the
appropriate authority -
(a) that he might, if returned, be prejudiced at his
trial by reason of the impossibility of effecting communications between him
and the appropriate authorities of the state entitled to exercise rights of
protection in relation to him; and
(b) that the act or omission constituting the offence of which he has been
accused or convicted also constituted an offence
under section 1 of the
Taking of Hostages Act 1982[4] as extended to that territory, or a
corresponding law of that territory, or an attempt to commit such an
offence.
(2)
Where the Governor of the relevant listed territory certifies that a
country is a party to the Convention or that a British overseas territory
is a British overseas territory to which the Convention has
been extended, the certificate shall, in any proceedings under this Act, be
conclusive evidence
of that fact.
(3) The Convention mentioned in subsections (1) and
(2) above is the International Convention against
the Taking of Hostages
opened for signature at New York on 18 December 1979.
PART
VI
MISCELLANEOUS
AND SUPPLEMENTARY
Evidence
27. - (1) In any proceedings under
this Act in relation to a person whose return has been requested from a
listed territory by the United Kingdom, a designated Commonwealth
country, Ireland or a British overseas territory, including
proceedings on an application for habeas corpus in respect of a person in
custody under this Act -
(a) a document, duly authenticated, which purports
to set out evidence given on oath in the United Kingdom, a designated Commonwealth
country, Ireland or a British overseas territory (other than
the relevant listed territory) shall be admissible as evidence of the
matters stated in it;
(b) a document, duly authenticated, which purports to have been received in
evidence, or to be a copy of a document so received,
in any proceeding in any
such country or British overseas territory shall be admissible
in evidence;
(c) a document, duly authenticated, which certifies that a person was
convicted on a date specified in the document of an offence
against the law
of, or of a part of, any such country or any British overseas territory
shall be admissible as evidence of the fact and date of the conviction.
(2)
A document shall be deemed to be duly authenticated for the purposes of this
section -
(a) in the case of a document purporting to set out
evidence given as mentioned in subsection (1)(a) above, if the document
purports to be certified by a judge or magistrate or officer in or of the
country or British overseas territory in question to be the
original document containing or recording that evidence or a true copy of
such a document;
(b) in the case of a document which purports to have been received in
evidence as mentioned in subsection (1)(b) above or to
be a copy of a
document so received, if the document purports to be certified as mentioned
in paragraph (a) above to have been,
or to be a true copy of a document which
has been, so received;
(c) in the case of a document which certifies that a person was convicted as
mentioned in subsection (1)(c) above, if the document
purports to be
certified as mentioned in paragraph (a) above,
and
in any such case the document is authenticated either by the oath of a
witness or by the official seal of a Minister of
the country or of the Governor
or a Minister, secretary or other officer administering a department of the
government of the
British overseas territory, as the case may
be.
(3) Nothing in this section shall prejudice the
admission in evidence of any document which is admissible
in evidence apart
from this section.
Warrants
and orders
28. - (1) Any warrant or order
to be issued or made by the Governor of a listed territory under this
Act shall be given under the hand of the Governor or any person for the time
being lawfully performing the functions
of the Governor.
(2) The Governor of a listed territory may by
regulations prescribe the form of any warrant or order to be issued or
made under this Act in its application to return to the United Kingdom,
Ireland, Commonwealth countries and
British overseas territories.
General
35. - (1) In this Act -
"appropriate authority" has
the meaning assigned to it by section 6(9) above;
"authority to proceed" has the
meaning assigned to it by section 7(1) above;
"constable" includes an
officer of the police force of the territory;
"court of committal" has the
meaning assigned to it by section 9(1) above;
"designated Commonwealth
country" has the meaning assigned to it by section 5(1) above;
"extradition crime" is
to be construed in accordance with section 2 above;
"extradition request"
has the meaning assigned to it by section 7(1) above, but in section 12(5)
above includes a request or requisition
made by some person recognised by the
Governor of the relevant listed territory as the consular
representative of a foreign State (or as the governor of a colony or
dependency of a foreign State) for the
surrender of a person to that State,
colony or dependency under the law in that behalf for the time being in force
in that
listed territory;
"Governor" means the person
for the time being lawfully administering the government of the territory;
"listed territory"
means a territory listed in Schedule 1 to this Order and
references to a relevant listed territory are references to a listed territory
from which the return of a person is sought or (as the case may be) to which
a person has been returned;
"provisional warrant" has the
meaning assigned to it by section 8(1) above;
"the United Kingdom" includes
the Channel Islands and the Isle of Man.
(2)
For the purposes of this Act a person convicted in his absence in a
designated Commonwealth country,
Ireland or a British overseas territory
shall be treated as a person accused of the offence of which he is convicted.
SCHEDULE
3
Article 2(2)
FURTHER MODIFICATIONS AND ADAPTATIONS TO
EXTRADITION ACT 1989 AS EXTENDED TO THE BRITISH ANTARCTIC TERRITORY
1. The references in this Schedule to
provisions of the 1989 Act are references to them as set out in Schedule 2 to
this Order and as they are extended to the British Antarctic Territory.
2. In section 8(1), for the words "a
magistrate" there shall be substituted the words "the Senior
Magistrate or
a designated magistrate (that is to say, a magistrate
designated for the purposes of this Act by the Commissioner)"; and
in
section 8(4) the words "or by any public officer" shall be added
after the word "constable".
3. At the end of section 9(1), there shall be
added the words "holding a Summary Court".
4. In section 9(2), for all the words after
the words "in custody or on bail", there shall be substituted the
words
"as a Summary Court sitting in committal proceedings (as defined
in section 2(2) of the Summary Courts (Criminal Proceedings)
Ordinance 1990[5] of the British Antarctic Territory".
5. For section 14(2) there shall be
substituted the following:
" (2) A notice under
this section shall be given in the manner prescribed by rules under section
42 of the Summary Courts (Criminal Proceedings) Ordinance 1990 of the British
Antarctic Territory or, subject to any such rules, as directed under
section 41 of that Ordinance, and a magistrate may order the committal
for return of a person with his consent at any time after his arrest.".
6. In section 17(1), for all the words after the words "this Part
of this Act" there shall be substituted the words "may
for that
purpose be dealt with in like manner as a person charged with an offence before
a Summary Court".
7. For section 17(3) there shall be
substituted the following:
" (3) Where a person,
being in custody in any part of the British Antarctic Territory
whether under this Part of this Act or otherwise, is required to be moved in
custody under this Act to another part of the
Territory and is so
removed by sea or air or, without prejudice to any provision in that behalf
in the Falkland Islands Courts (Overseas Jurisdiction) Order
1989[6], where such a person is required to be
removed to the Falkland Islands, he shall be deemed to continue to be in
legal custody
until he reaches the place to which he is required to be
removed.".
8. In section 17(4) the words "and public officers" shall be
inserted after the word "constables".
9. The following shall be added to section 19
as subsection (6) thereof:
" (6) References in
this section to a person's being returned to, or being dealt with in, a listed
territory include, in their application to the British Antarctic Territory,
references to his being returned to, or being dealt with in, a place where a
court of that Territory sits; the reference in subsection (3) above to
his arrival in, or opportunity to leave, such a territory includes, in
its application as aforesaid, a reference to his arrival in, or opportunity
to leave, such a place; and references
in this section to a court of the
British Antarctic Territory include, without prejudice to their generality,
references (to the extent provided for in section 35(3) below) to the Supreme
Court of the Falkland Islands (as defined in the said section 35(3)).".
10. The following shall be added to section 20 as subsection (3)
thereof:
" (3) Section 19(6)
above applies also for the interpretation of this section.".
11. The words "or of the Administrator" shall be added at
the end of section 28(1).
12. In section 35(1), for the definition
""Governor" means the person for the time being lawfully
administering
the government of the territory" there shall be
substituted the definition ""the Governor", in relation to the
British Antarctic Territory and without prejudice to the definition in
Schedule 1 to the Interpretation Act 1978[7], means the Commissioner."
13. The following additional definitions
shall be inserted, in their appropriate places (by alphabetical order),
in section 35(1):
"the Administrator" means the
person holding the office of Administrator of the British Antarctic Territory
and includes any person for the time being lawfully discharging the functions
of that office;
"the Commissioner" means the
person holding the office of Commissioner for the British Antarctic Territory
and includes any person for the time being lawfully discharging the functions
of that office;
"magistrate" means any person
appointed to be a magistrate under Part IV of the Administration of Justice
Ordinance
1990[8] of the British Antarctic Territory;
"public officer" has the
meaning assigned to it by section 7(1) of the Interpretation and General
Provisions Ordinance
1990[9] of the British Antarctic Territory
and, in any case where a member of a police force established under the law
of another country (including a British overseas territory
other than the British Antarctic Territory) has, by arrangement with
the Commissioner, been empowered under that law to act as a constable under
the law of the Territory for the purposes of, or in connection with, extradition
from the Territory, includes that member of that police force; and a
certificate by the Commissioner that that member was at the relevant time so
empowered shall, in any proceedings concerning anything done or omitted by
him, be conclusive of that fact;
"the Senior Magistrate" means
the person holding the office of Senior Magistrate under Part III of the
Administration
of Justice Ordinance 1990 of the British Antarctic Territory
and includes any person for the time being lawfully discharging the functions
of that office;
"Summary Court" means a court
established under Part IV of the Administration of Justice Ordinance 1990 of
the British
Antarctic Territory.
14. The following shall be added to section 35 as subsections (3) and
(4) thereof:
" (3)
(a) In their application to the British Antarctic Territory
and subject to paragraph (b) below, references in this Act to a superior
court of a listed territory are references to the Supreme Court of
that Territory.
(b) Without prejudice to the generality of sections 3 and 4 of the Falkland
Islands Courts (Overseas Jurisdiction) Order 1989, the
jurisdiction and powers conferred on the Supreme Court of the Falkland
Islands by those sections include the jurisdiction
to hear and determine any
matter that may under this Act be heard and determined by the Supreme Court of
the British Antarctic
Territory and all powers that under this Act are
vested in the latter court; and all references in this Act to the latter
court (including
references to the stating of a case to it or to appeals from
its decisions) shall be construed accordingly.
(c) Where it appears to the Judge of the Supreme Court of the British
Antarctic Territory that any proceedings that have been instituted
under this Act before that court could more appropriately be pursued, by
virtue
of paragraph (b) above, before the Supreme Court of the Falkland
Islands, he may, after consultation with the Chief Justice of
the Falkland
Islands, so order and may give any necessary directions for that
purpose.
(d) In this subsection, but subject to paragraph (b) above, references to the
Supreme Court of the British Antarctic Territory are references to the
court established by Part II of the Administration of Justice Ordinance 1990
of the British Antarctic
Territory; and references in this subsection
and in section 19(6) above to the Supreme Court of the Falkland Islands are
references to
the court established by section 77 of the Constitution of the
Falkland Islands set out in Schedule 1 to the Falkland Islands
Constitution Order
1985[10].
(4) For the avoidance of
doubt, any of the functions conferred by this Act on the Commissioner
(whether
expressly so referred to or referred to as the Governor) or the
Administrator or the Senior Magistrate may be performed either
within or
outside the British Antarctic Territory.".
SCHEDULE
4
Article 2(2)
FURTHER MODIFICATIONS AND ADAPTATIONS TO
EXTRADITION ACT 1989 AS EXTENDED TO THE BRITISH INDIAN OCEAN TERRITORY
1. The references in this Schedule to
provisions of the 1989 Act are references to them as set out in Schedule 2 to
this Order and as they are extended to the British Indian Ocean Territory.
2. In section 8(4), for the word
"constable" there shall be substituted the words "Peace Officer".
3. In section 9(2), for all the words after
the words "in custody or on bail," there shall be substituted the
words
"as the Magistrates' Court trying a criminal charge".
4. For section 14(2) there shall be
substituted the following:
"
(2) A notice under this section shall be given in such manner as may be
directed by the court
of committal, and a Magistrate may order the
committal for return of a person with his consent at any time after his
arrest.".
5. In
section 17(4), for the word "constables" there shall be substituted
the words "Peace Officers".
6. The words "or of the
Administrator" shall be added at the end of section 28(1).
7. In section 35(1), for the definition
""Governor" means the person for the time being lawfully
administering
the government of the Territory" there shall be
substituted the definition ""the Governor", in relation to the
British Indian Ocean Territory and without prejudice to the definition
in Schedule 1 to the Interpretation Act 1978[11], means the Commissioner (that is to say,
the person holding the office of Commissioner for that Territory or
any person for the time being lawfully discharging the functions of that
office)".
8. The following additional definitions shall
be inserted, in their appropriate places (by alphabetical order), in
section 35(1):
" "the Administrator"
means the person holding the office of Administrator of the British Indian
Ocean Territory and includes any person for the time being lawfully
discharging the functions of that office;
"Magistrate" means any person
appointed as such by under the Courts Ordinance 1983[12] of the British Indian Ocean Territory
and includes a Senior Magistrate so appointed;
"the Magistrates' Court" means
the Magistrates' Court established by the Courts Ordinance 1983 of the
British Indian
Ocean Territory;
"Peace Officer" means any
person appointed as such under the Courts Ordinance 1983 of the British
Indian Ocean Territory;".
9. The following shall be added to section 35 as subsection (3)
thereof:
" (3) For the avoidance
of doubt, any of the functions conferred by this Act on the Commissioner (as
"the Governor") or on the Administrator may be performed either
within or outside the British Indian Ocean Territory.".
SCHEDULE
5
Article 3
ORDERS REVOKED
The Fugitive Offenders (Bermuda) Order 1967, S.I. 1967/1905.
The Fugitive Offenders (Gibraltar) Order 1967, S.I. 1967/1909.
The Fugitive Offenders (Montserrat) Order 1967, S.I. 1967/1913.
The Fugitive Offenders (Virgin Islands) Order 1967, S.I. 1967/1915.
The Fugitive Offenders (Sovereign Base Areas of Akrotiri and Dhekelia) Order
1967, S.I. 1967/1916.
The Fugitive Offenders (Cayman Islands) Order 1968, S.I. 1968/112.
The Fugitive Offenders (Falkland Islands and Dependencies) Order 1968,
S.I. 1968/113.
The Fugitive Offenders (British Indian Ocean Territory) Order 1968,
S.I. 1968/183.
The Fugitive Offenders (St Helena) Order 1968, S.I. 1968/184.
The Fugitive Offenders (Turks and Caicos Islands) Order 1968, S.I.
1968/185.
The Fugitive Offenders (Overseas Territories) Order
1968, S.I. 1968/292.
The Fugitive Offenders (Pitcairn) Order 1968, S.I. 1968/884 (amended
by S.I. 1973 No. 761).
The Fugitive Offenders (Overseas Territories) (No. 2) Order
1968, S.I. 1968/1375.
The Fugitive Offenders (Anguilla) Order 1987, S.I. 1987/452.
The Extradition (British Antarctic Territory) (Commonwealth
countries, Colonies and Republic of Ireland) Order 1992, S.I.
1992/1300.
EXPLANATORY
NOTE
(This note is not part of the Order)
This Order extends to all the British overseas territories
except Gibraltar, with certain exceptions, adaptions and modifications, the
provisions of the Extradition Act 1989 relating to extradition
between the United Kingdom and Commonwealth countries or the British overseas
territories. It also applies those provisions as appropriate so as to
regulate extradition between the territories and Ireland and
the territories and the United Kingdom itself.
Notes:
[1]
1989 c.33.
[2] 1967 c.68.
[3] 1978 c.26.
[4] 1982 c.28.
[5] Ordinance No. 6 of 1990.
[6] S.I. 1989/2399.
[7] 1978 c.30.
[8] Ordinance No. 5 of 1990.
[9] Ordinance No. 4 of 1990.
[10] S.I. 1985/444.
[11] 1978 c.30.
[12] Ordinance No. 3 of 1983.
ISBN 0 11 042498 0
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