The European Union Extradition Regulations 2002

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2002 No. 419
EXTRADITION
The European Union Extradition Regulations 2002

	Made	25th February 2002
	Coming into force on a date to be notified in the London, Edinburgh and Belfast Gazettes

Whereas the Convention drawn up on the basis of Article K.3 of the Treaty on European Union on Simplified Extradition Procedure between the Member States of the European Union (referred to in these Regulations as "the 1995 Convention")[1], the terms of which are set out in Schedule 1 to these Regulations, was opened for signature in Brussels on 10th March 1995 and was signed by the United Kingdom on that date;

     And whereas the United Kingdom has made the reservation, declarations and statements set out in Schedule 2 to these Regulations;

     And whereas the States listed in Schedule 3 to these Regulations are parties to the Convention and have made the reservations, declarations and statements set out in Schedule 4 to these Regulations;

     And whereas the Convention drawn up on the basis of Article K.3 of the Treaty on European Union relating to Extradition between the Member States of the European Union (referred to in these Regulations as "the 1996 Convention")[2] the terms of which are set out in Schedule 5 to these Regulations, was opened for signature in Dublin on 27th September 1996 and was signed by the United Kingdom on that date;

     And whereas the United Kingdom has made the declarations and statements set out in Schedule 6 to these Regulations;

     And whereas the States listed in Schedule 7 to these Regulations are parties to the Convention and have made the reservations, declarations and statements set out in Schedule 8 to these Regulations;

     And whereas the 1995 Convention and the 1996 Convention are third pillar measures for the purposes of section 111(1) of the Anti-terrorism, Crime and Security Act 2001 [3] by virtue of section 111(2)(a) and (b) of that Act;

     And whereas the said section 111(1) provides that an authorised Minister may by regulations make provision for the purpose of implementing any obligation of the United Kingdom created or arising by or under any third pillar measure, or enabling any such obligation to be implemented, or for the purpose of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of any third pillar measure to be exercised, or for the purpose of dealing with matters arising out of or related to any such obligation or rights;

     And whereas, under section 112(1) and (3) of the said Act, the Secretary of State is an authorised Minister for the purposes of the said section 111(1);

     And whereas a draft of these Regulations has been laid before and approved by a resolution of each House of Parliament;

     Now, therefore, in exercise of the powers conferred upon him by the said section 111(1) and (3), the Secretary of State hereby makes the following Regulations:

Citation, commencement and interpretation
     1. - (1) These Regulations may be cited as the European Union Extradition Regulations 2002 and shall come into force on a date to be notified in the London, Edinburgh and Belfast Gazettes.

    (2) In these Regulations "the Act" means the Extradition Act 1989[4].

Application of the 1989 Act
     2. - (1) The Act is amended as set out in Schedule 9 to these Regulations.

    (2) These Regulations apply only to requests for return made by a foreign state to the United Kingdom or by the United Kingdom to a foreign state after the coming into force of the Regulations.

    (3) Where a state has made a declaration under Article 6(3) of the 1996 Convention, in the application of the Act by virtue of the European Convention on Extradition Order 2001 [5], Article 5 of the European Convention on Extradition shall not apply, and extradition shall not be refused to that state in respect of an offence which is connected with excise, value added tax or customs.

Bob Ainsworth
Parliamentary Under-Secretary of State

Home Office
25th February 2002

SCHEDULE 1Preamble

THE CONVENTION ON SIMPLIFIED EXTRADITION PROCEDURE BETWEEN MEMBER STATES OF THE EUROPEAN UNION ("THE 1995 CONVENTION")

The High Contracting Parties to this Convention, Member States of the European Union,

Referring to the Council Act of 10 March 1995,

Desiring to improve judicial co-operation between the Member States in criminal matters, with regard both to proceedings and the execution of sentences,

Recognising the importance of extradition in judicial co-operation in order to achieve these objectives,

Convinced of the need to simplify extradition procedures to the extent that this is compatible with their fundamental legal principles, including the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms,

Noting that, in a large number of extradition proceedings, the person claimed consents to his surrender,

Noting that it is desirable to reduce to a minimum , in such cases, the time necessary for the extradition and any period of detention for extradition purposes,

Considering that, as a result, application of the European Convention on Extradition of 13 December 1957 should be made easier by simplifying and improving extradition procedures,

Considering that the provisions of the European Convention on Extradition remain applicable for all matters not covered by this Convention,

Have agreed the following provisions:

ARTICLE 1
GENERAL PROVISIONS
     1. The aim of this Convention is to facilitate the application, between the Member States of the European Union, of the European Convention on Extradition, by supplementing its provisions.

     2. Paragraph 1 shall not affect the application of more favourable provisions in the bilateral and multilateral agreements in force between Member States.

ARTICLE 2
OBLIGATION TO SURRENDER PERSONS
Member States undertake to surrender to each other under simplified procedures as provided for by this Convention persons sought for the purpose of extradition, subject to consent of such persons and the agreement of the requested State given in accordance with this Convention.

ARTICLE 3
CONDITIONS FOR SURRENDER
     1. Pursuant to Article 2, any person who is the subject of a request for provisional arrest in accordance with Article 16 of the European Convention on Extradition shall be surrendered in accordance with Articles 4 to 11 and Article 12(1) of the present Convention.

     2. The surrender referred to in paragraph 1 shall not be subject to submission of a request for extradition or the documents required by Article 12 of the European Convention on Extradition.

ARTICLE 4
INFORMATION TO BE PROVIDED
     1. The following information from the requesting State shall be regarded as adequate for the information of the arrested person for the purpose of applying Articles 6 and 7 and for the competent authority referred to in Article 5(2):

2. Notwithstanding paragraph 1, further information may be requested if the information provided for in the said paragraph is insufficient to allow the competent authority of the requested State to give agreement to the surrender.

ARTICLE 5
CONSENT AND AGREEMENT
     1. The consent of the arrested person shall be given in accordance with Articles 6 and 7.

     2. The competent authority of the requested State shall give its agreement in accordance with its national procedures.

ARTICLE 6
INFORMATION TO BE GIVEN TO THE PERSON
Where a person wanted for the purpose of extradition is arrested on the territory of another Member State, the competent authority shall inform that person, in accordance with its national law, of the request relating to him and of the possibility of his consent to his surrender to the requesting State under the simplified procedure.

ARTICLE 7
ESTABLISHING CONSENT
     1. The consent of the arrested person and, if appropriate, his express renunciation of entitlement to the speciality rule, shall be given before a competent judicial authority of the requested State in accordance with the national law of that State.

     2. Each Member State shall adopt the measures necessary to ensure that consent and, where appropriate, renunciation, as referred to in paragraph 1, are established in such a way as to show that the person concerned has expressed them voluntarily and in full awareness of the consequences. To that end, the arrested person shall have the right to legal counsel.

     3. Consent and, where appropriate, renunciation, as referred to in paragraph 1, shall be recorded; the recording procedure shall be in accordance with the national law of the requested State.

     4. Consent and, where appropriate, renunciation, as referred to in paragraph 1, may not be revoked. Upon deposit of their instruments of ratification, acceptance, approval or accession, Member States may indicate, in a declaration, that consent and, where appropriate, renunciation may be revoked, in accordance with the rules applicable under national law. In this case, the period between the notification of consent and that of its revocation shall not be taken into consideration in establishing the periods provided for in Article 16(4) of the European Convention on Extradition.

ARTICLE 8
NOTIFICATION OF CONSENT
     1. The Requested State shall immediately notify the requesting State of the consent of the person. So that the requesting State may submit, where applicable, a request for extradition, the requested State shall notify it, no later than 10 days after provisional arrest, whether or not the person has given his consent.

     2. Notification referred to in paragraph 1 shall be made directly between the competent authorities.

ARTICLE 9
RENUNCIATION OF ENTITLEMENT TO THE SPECIALITY RULE
Each Member State may declare, upon deposit of its instrument of ratification, acceptance, approval or accession, or at any other time, that the rules laid down in Article 14 of the European Convention on Extradition do not apply where the person, in accordance with Article 7 of the present Convention:

ARTICLE 10
NOTIFICATION OF THE EXTRADITION DECISION
     1. Notwithstanding the rules laid down in Article 18(1) of the European Convention on Extradition, the extradition decision taken pursuant to the simplified procedure and the information concerning the simplified extradition procedure shall be notified directly between the competent authority of the requested State and the authority of the requesting State which has requested provisional arrest.

     2. The decision referred to in paragraph 1 shall be notified at the latest within 20 days of the date on which the person consented.

ARTICLE 11
DEADLINE FOR SURRENDER
     1. Surrender shall take place within 20 days of the date on which the extradition decision was notified under the conditions laid down in Article 10(2).

     2. After the deadline laid down in paragraph 1, if the person is being held, he shall be released on the territory of the requested State.

     3. Should surrender of the person within the deadline laid down in paragraph 1 be prevented by circumstances beyond its control, the authority concerned referred to in Article 10(1) shall so inform the other authority. The two authorities shall agree on a new surrender date. In that event, surrender will take place within 20 days of the new date thus agreed. If the person in question is still being held after expiry of this period, he shall be released.

     4. Paragraphs 1, 2 and 3 of this Article shall not apply in cases where the requested State wishes to make use of Article 19 of the European Convention on Extradition.

ARTICLE 12
CONSENT GIVEN AFTER EXPIRY OF THE DEADLINE LAID DOWN IN ARTICLE 8 OR IN OTHER CIRCUMSTANCES
     1. Where an arrested person has given his consent after expiry of the deadline of 10 days laid down in Article 8, the requested State:

2. Where no request for provisional arrest has been made, and where consent has been given after receipt of a request for extradition, the requested State may avail itself of the simplified procedure as provided for in this Convention.

3. Upon deposit of its instrument of ratification, acceptance, approval or accession, each Member State shall state whether it intends to apply paragraph 1, second indent, and paragraph 2 and, if so, under what conditions.

ARTICLE 13
RE-EXTRADITION TO ANOTHER MEMBER STATE
Where the speciality rule has not been applied to the person extradited, in accordance with the declaration of the Member State provided for in Article 9 of this Convention, Article 15 of the European Convention on Extradition shall not apply to the re-extradition of this person to another Member State, unless the aforementioned declaration provides otherwise.

ARTICLE 14
TRANSIT
In the event of transit under the conditions laid down in Article 21 of the European Convention on Extradition, where extradition under the simplified procedure is concerned, the following provisions shall apply:

2. Paragraph 1 shall not affect the application of more favourable provisions in bilateral or multilateral agreements between Member States, nor, as provided for in Article 28(3) of the European Convention on Extradition, shall it affect extradition arrangements agreed on the basis of uniform or reciprocal laws providing for the execution in the territory of a Member State of warrants of arrest issued in the territory of another Member State.

ARTICLE 2
EXTRADITABLE OFFENCES
     1. Extradition shall be granted in respect of offences which are punishable under the law of the requesting Member State by deprivation of liberty or a detention order for a maximum period of at least 12 months and under the law of the requested Member State by deprivation of liberty or a detention order for a maximum period of at least six months.

     2. Extradition may not be refused on the grounds that the law of the requested Member State does not provide for the same type of detention order as the law of the requesting Member State.

     3. Article 2(2) of the European Convention on Extradition and Article 2(2) of the Benelux Treaty shall also apply where certain offences are punishable by pecuniary penalties.

ARTICLE 3
CONSPIRACY AND ASSOCIATION TO COMMIT OFFENCES
     1. Where the offence for which extradition is requested is classified by the law of the requesting Member State as a conspiracy or an association to commit offences and is punishable by a maximum term of deprivation of liberty or a detention order of at least 12 months, extradition shall not be refused on the ground that the law of the requested Member State does not provide for the same facts to be an offence, provided the conspiracy or the association is to commit:

     2. For the purpose of determining whether the conspiracy or the association is to commit one of the offences indicated under paragraph 1 (a) or (b) of this Article, the requested Member State shall take into consideration the information contained in the warrant of arrest or order having the same legal effect or in the conviction of the person whose extradition is requested as well as in the statement of the offences envisaged in Article 12 (2)(b) of the European Convention on Extradition or in Article 11 (2)(b) of the Benelux Treaty.

     3. When giving the notification referred to in Article 18(2), any Member State may declare that it reserves the right not to apply paragraph 1 or to apply it under certain specified conditions.

     4. Any Member State which has entered a reservation under paragraph 3 shall make extraditable under the terms of Article 2 (1) the behaviour of any person which contributes to the commission by a group of persons acting with a common purpose of one or more offences in the field of terrorism as in Articles 1 and 2 of the European Convention on the Suppression of Terrorism, drug trafficking and other forms of organised crime or other acts of violence against the life, physical integrity or liberty of a person, or creating a collective danger for persons, punishable by deprivation of liberty or a detention order of a maximum of at least 12 months, even where that person does not take part in the actual execution of the offence or offences concerned; such contribution shall be intentional and made having knowledge either of the purpose and the general criminal activity of the group or of the intention of the group to commit the offence or offences concerned.

ARTICLE 4
ORDER FOR DEPRIVATION OF LIBERTY IN A PLACE OTHER THAN A PENITENTIARY INSTITUTION
Extradition for the purpose of prosecution shall not be refused on the ground that the request is supported, pursuant to Article 12(2)(a) of the European Convention on Extradition or Article 11(2)(a) of the Benelux Treaty, by an order of the judicial authorities of the requesting Member State to deprive the person of his liberty in a place other than a penitentiary institution.

ARTICLE 5
POLITICAL OFFENCES
1. For the purposes of applying this Convention, no offence may be regarded by the requested Member State as a political offence, as an offence connected with a political offence or an offence inspired by political motives.

2. Each Member State may, when giving the notification referred to in Article 18(2), declare that it will apply paragraph 1 only in relation to:

3. The provisions of Article 3(2) of the European Convention on Extradition and of Article 5 of the European Convention on the Suppression of Terrorism remain unaffected.

4. Reservations made under Article 13 of the European Convention on the Suppression of Terrorism shall not apply to extradition between Member States.

ARTICLE 6
FISCAL OFFENCES
     1. With regard to taxes, duties, customs and exchange, extradition shall also be granted under the terms of this Convention, the European Convention on Extradition and the Benelux Treaty in respect of offences which correspond under the law of the requested Member State to a similar offence.

     2. Extradition may not be refused on the ground that the law of the requested Member State does not impose the same type of taxes or duties or does not have the same type of provisions in connection with taxes, duties, customs and exchange as the law of the requesting Member State.

     3. When giving the notification referred to in Article 18(2), any Member State may declare that it will grant extradition in connection with a fiscal offence only for acts or omissions which may constitute an offence in connection with excise, value-added tax or customs.

ARTICLE 7
EXTRADITION OF NATIONALS
     1. Extradition may not be refused on the ground that the person claimed is a national of the requested Member State within the meaning of Article 6 of the European Convention on Extradition.

     2. When giving the notification referred to in Article 18(2), any Member State may declare that it will not grant extradition of its nationals or will authorise it only under certain specified conditions.

     3. Reservations referred to in paragraph 2 shall be valid for five years from the first day of application of this Convention by the Member State concerned. However, such reservations may be renewed for successive periods of the same duration.

12 months before the date of expiry of the reservation, the depositary shall give notice of that expiry to the Member State concerned.

No later than three months before the expiry of each five-year period, the Member State shall notify the depositary either that it is upholding its reservation, that it is amending it to ease the conditions for extradition or that it is withdrawing it.

In the absence of the notification referred to in the preceding subparagraph, the depositary shall inform the Member State concerned that its reservation is considered to have been extended automatically for a period of six months, before the expiry of which the Member State must give notification. On expiry of that period, failure to notify shall cause the reservation to lapse.

ARTICLE 8
LAPSE OF TIME
     1. Extradition may not be refused on the ground that the prosecution or punishment of the person would be statute-barred according to the law of the requested Member State.

     2. The requested Member State shall have the option of not applying paragraph 1 where the request for extradition is based on offences for which that Member State has jurisdiction under its own criminal law.

ARTICLE 9
AMNESTY
Extradition shall not be granted in respect of an offence covered by amnesty in the requested Member State where that State was competent to prosecute the offence under its own criminal law.

ARTICLE 10
OFFENCES OTHER THAN THOSE UPON WHICH THE REQUEST FOR EXTRADITION IS BASED
     1. A person who has been extradited may, in respect of offences committed before his surrender other than those upon which the request for extradition was based, without it being necessary to obtain the consent of the requested Member State:

     2. Waiver on the part of the person extradited as referred to in paragraph 1(d) shall be given before the competent judicial authorities of the requesting Member State and shall be recorded in accordance with that Member State's national law.

     3. Each Member State shall adopt the measures necessary to ensure that the waiver referred to in paragraph 1(d) is established in such a way as to show that the person has given it voluntarily and in full awareness of the consequences. To that end, the person extradited shall have the right to legal counsel.

     4. When the requested Member State has made a declaration pursuant to Article 6(3), paragraph 1 (a), (b) and (c) of this Article shall not apply to fiscal offences except those referred to in Article 6(3).

ARTICLE 11
PRESUMPTION OF CONSENT OF THE REQUESTED STATE
Each Member State, when giving the notification referred to in Article 18(2) or at any time, may declare that, in its relations with other Member States that have made the same declaration, consent for the purposes of Article 14(1)(a) of the European Convention on Extradition and Article 13(1)(a) of the Benelux Treaty is presumed to have been given, unless it indicates otherwise when granting extradition in a particular case.

Where in a particular case the Member State has indicated that its consent should not be deemed to have been given, Article 10(1) still applies.

ARTICLE 12
RE-EXTRADITION TO ANOTHER MEMBER STATE
     1. Article 15 of the European Convention on Extradition and Article 14(1) of the Benelux Treaty shall not apply to requests for re-extradition from one Member State to another.

     2. When giving the notification referred to in Article 18(2), a Member State may declare that Article 15 of the European Convention on Extradition and Article 14 (1) of the Benelux Treaty shall continue to apply except where Article 13 of the Convention on simplified extradition procedure between the Member States of the European Union provides otherwise or where the person concerned consents to be re-extradited to another Member State.

ARTICLE 13
CENTRAL AUTHORITY AND TRANSMISSION OF DOCUMENTS BY FACSIMILE
     1. Each Member State shall designate a central authority or, where its constitutional system so requires, central authorities responsible for transmitting and receiving extradition requests and the necessary supporting documents, as well as any other official correspondence relating to extradition requests, unless otherwise provided for in this Convention.

     2. When giving the notification referred to in Article 18(2) each Member State shall indicate the authority or authorities which it has designated pursuant to paragraph 1 of this Article. It shall inform the depositary of any change concerning the designation.

     3. The extradition request and the documents referred to in paragraph 1 may be sent by facsimile transmission. Each central authority shall be equipped with a facsimile machine for transmitting and receiving such documents and shall ensure that it is kept in proper working order.

     4. In order to ensure the authenticity and confidentiality of the transmission, a cryptographic device fitted to the facsimile machine possessed by the central authority shall be in operation when the equipment is being used to apply this Article.

Member States shall consult each other on the practical arrangements for applying this Article.

     5. In order to guarantee the authenticity of extradition documents, the central authority of the requesting Member State shall state in its request that it certifies that the documents transmitted in support of that request correspond to the originals and shall describe the pagination. Where the requested Member State disputes that the documents correspond to the originals, its central authority shall be entitled to require the central authority of the requesting Member State to produce the original documents or a true copy thereof within a reasonable period through either diplomatic channels or any other mutually agreed channel.

ARTICLE 14
SUPPLEMENTARY INFORMATION
When giving the notification referred to in Article 18(2), or at any other time, any Member State may declare that, in its relations with other Member States which have made the same declaration, the judicial authorities or other competent authorities of those Members States may, where appropriate, make requests directly to its judicial authorities or other competent authorities responsible for criminal proceedings against the person whose extradition is requested for supplementary information in accordance with Article 13 of the European Convention on Extradition or Article 12 of the Benelux Treaty.

In making such a declaration, a Member State shall specify its judicial authorities or other competent authorities authorised to communicate to communicate and receive such supplementary information.

ARTICLE 15
AUTHENTICATION
Any document or any copy of documents transmitted for the purposes of extradition shall be exempted from authentication or any other formality unless expressly required by the provisions of this Convention, the European Convention on Extradition or the Benelux Treaty. In the latter case, copies of documents shall be considered to be authenticated when they have been certified true copies by the judicial authorities that issued the original or by the central authority referred to in Article 13.

ARTICLE 16
TRANSIT
In the case of transit, under the conditions laid down in Article 21 of the European Convention on Extradition and Article 21 of the Benelux Treaty, through the territory of one Member State to another Member State, the following provisions shall apply:

To that end, the following information shall be sufficient:

(b) the request for transit and the information provided for in point (a) may be sent to the Member State of transit by any means leaving a written record. The Member State of transit shall make its decision known by the same method;

(c) in the case of transport by air without a scheduled stopover, if an unscheduled landing occurs, the requesting Member State shall provide the transit Member State concerned with the information provided for in point (a);

(d) subject to the provisions of this Convention, in particular Articles 3, 5 and 7, the provisions of Article 21 (1), (2), (5) and (6) of the European Convention on Extradition and Article 21 (1) of the Benelux Treaty shall continue to apply.

1995 and 1996 Convention cases

34A Application of Act in 1995 and 1996 Convention cases
Schedule 1A provides for the application of this Act as between -

4. In section 35(1) (interpretation)[6]after the definition of "Hong Kong Special Administrative Region" insert -

" "the 1995 Convention" means the Convention drawn up on the basis of Article K.3 of the Treaty on European Union on Simplified Extradition Procedure between the Member States of the European Union;

"the 1996 Convention" means the Convention drawn up on the basis of Article K.3 of the Treaty on European Union relating to Extradition between the Member States of the European Union;

"party to the 1995 Convention" means a state in respect of which the 1995 Convention is in force either generally or between it and the United Kingdom;

"party to the 1996 Convention" means a state in respect of which the 1996 Convention is in force either generally or between it and the United Kingdom;".

5. After Schedule 1 insert -

" SCHEDULE 1A

THE 1995 CONVENTION AND THE 1996 CONVENTION

PART 1

THE 1995 CONVENTION
Application of Act
     1. This Act applies as if the terms of the 1995 Convention were general extradition arrangements made between the United Kingdom and the states other than the Republic of Ireland that are parties to it.

Adaptations of Act
     2. As applied by paragraph 1 above, this Act has effect as between the United Kingdom and the states other than the Republic of Ireland that are parties to the 1995 Convention with the following adaptations.

     3. In section 6 after subsection (6) insert -

4. In section 9 after subsection (3) insert -

(3B) The court of committal shall also inform the person arrested that -

5. After section 14 insert -

" 14A Consent to return

    (1) A person arrested in pursuance of a warrant under section 8 above may consent to his return to the foreign state that made the extradition request.

    (2) Any consent under this section is irrevocable.

    (3) If the person has not been committed under section 9 above, any consent under this section must be given by notice in writing to the court of committal.

    (4) In England and Wales, the notice is to be given in the manner prescribed by rules under section 144 of the Magistrates' Courts Act 1980[

6. In section 18 after subsection (1) insert -

(1B) In a case where the foreign state by which the person is returned has made a declaration under Article 9(b) of the 1995 Convention, subsection (1) above does not apply if -

PART 2

THE 1996 CONVENTION
Application of Act
     7. This Act applies as if the terms of the 1996 Convention were general extradition arrangements made between the United Kingdom and the other states other than the Republic of Ireland that are parties to it.

Adaptations of Act
     8. As applied by paragraph 7 above, this Act has effect as between the United Kingdom and the states other than the Republic of Ireland that are parties to the 1996 Convention with the following adaptations.

     9. - (1) Section 2[

    (3) In subsection (1)(b) after "imprisonment" insert ", or any form of detention wherever served,".

    (4) In subsections (2) and (3) for "12 months" substitute "6 months".

     10. - (1) Section 6[9]is amended as follows.

    (2) In subsection (1), omit paragraph (a).

    (3) In subsection (4) after paragraph (a) insert -

(4) After subsection (4) insert -

(5) After subsection (6) insert -

11. - (1) Section 18 is amended as follows.

(2) In subsection (1) after paragraph (b) insert -

(3) After subsection (1) insert -

12. - (1) Section 26[10] is amended as follows.

(2) For subsection (1) substitute -

(3) In subsection (2) for "(1)(b)" substitute "(1)".".

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations will implement the provisions of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union on simplified extradition procedures between the Member States of the European Union which was opened for signature on 10th March 1995 ("the 1995 Convention") and the Convention drawn up on the basis of Article K.3 of the Treaty of European Union relating to extradition between the Member States of the European Union which was opened for signature on 27th September 1996 ("the 1996 Convention"). The Conventions are set out in Schedules 1 and 5 to the Regulations.

These Regulations amend the Extradition Act 1989 ("the Act") and are made under sections 111 and 112 of the Anti-terrorism, Crime and Security Act 2001. Those sections extend to the whole of the United Kingdom and the Regulations follow the extent provision of those sections.

As it is possible that the Conventions will be in force between the United Kingdom and some (but not all) Member States, there is provision in the Regulations to cater for this. Regulation 2(2) ensures that the Regulations apply only to requests made to or from the United Kingdom after the coming into force of the Regulations (which under regulation 1 will be on a date to be notified in the London, Edinburgh and Belfast Gazettes). Schedule 9 to the Regulations (in particular paragraph 4 which amends section 35(1)) ensures that a party to the 1995 or 1996 Convention for the purposes of the amendments to the Act, is a party in respect of which the Convention is in force either generally (because the last notification/ratification has been made) or specifically between it and the United Kingdom (because declarations have been made to enable the Conventions to apply before the entry into force date).

These Regulations will not apply to extradition between the Republic of Ireland and the United Kingdom: such extradition will be regulated by the Backing of Warrants (Republic of Ireland) Act 1965. The Republic of Ireland is a party to the 1995 and 1996 Conventions but is not a party to the Conventions for the purposes of the Regulations.

Section 4 of the Act provides that where general extradition arrangements have been made, Her Majesty may, by Order in Council reciting or embodying their terms, direct that the Act applies as between the United Kingdom and the state with whom the arrangement has been made. The Regulations follow this model and paragraphs 1 and 7 of Schedule 1A to the Act (as inserted by paragraph 5 of Schedule 9 to the Regulations) provide that the 1995 and 1996 Conventions are general extradition arrangements. Schedules 1 and 5 to the Regulations contain the Conventions, Schedules 2 and 6 contain the United Kingdom's reservations, declarations and statements, Schedules 3 and 7 list the parties to the Conventions and Schedules 4 and 8 contain their reservations, declarations and statements.

Schedule 9 to the Regulations contains the amendments to the Act.

Paragraph 2 of Schedule 9 excludes countries that are parties to the 1996 Convention from the effect of section 24 of the Act, which provides that no offence to which section 1 of the Suppression of Terrorism Act 1978 applies is to be regarded as a political offence and 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. This is because pursuant to the 1996 Convention the United Kingdom will not treat any offence as an offence of a political character. Accordingly there has also been an amendment to section 6 of the Act which is explained below.

Paragraph 3 of Schedule 9 inserts a new section (section 34A) after section 34 of the Act. The effect of this new section is to apply the new Schedule 1A to the Act to the United Kingdom and the states other than the Republic of Ireland that are parties to the 1995 and the 1996 Conventions. Paragraph 4 inserts new definitions in section 35(1) of the Act and under those definitions "party to the 1995 Convention" and "party to the 1996 Convention" means a state in respect of which the 1995 and 1996 Convention is in force either generally or between it and the United Kingdom.

Paragraph 5 of Schedule 9 to the Regulations inserts Schedule 1A in to the Act. Schedule 1A contains the amendments to the Act required to give effect to the 1995 and 1996 Conventions. It is divided into two parts: Part 1 contains the amendments necessary to give effect to the 1995 Convention and Part 2 contains the amendments necessary to give effect to the 1996 Convention.

1995 Convention
Paragraph 3 of Schedule 1A inserts a new subsection (subsection 6A) after section 6(6) of the Act, the effect of which is to disapply section 6(4) of the Act (speciality protection) where the person has consented to his return to the relevant state.

Paragraph 4 of Schedule 1A inserts two new subsections ((3A) and (3B)) into section 9 of the Act. Section 9(3A) requires the court of committal, as soon as practicable and before it issues an order for committal under section 9(8) to inform the person arrested that he may consent to his return to the state that has requested his extradition, of the effect of any such consent (loss of speciality) and of the procedure that will apply if he gives his consent.

Section 9(3B) requires the court of committal to inform the arrested person that the consent is to be given in writing and is irrevocable and that it is to given to the court before an order for committal is made or to the Secretary of State or the Scottish Ministers after an order for committal has been made.

Paragraph 5 of Schedule 1A inserts a new section (section 14A "Consent to return") after section 14 of the Act. Section 14A(1) provides that a person may consent to his return to the state that has requested his return. Section 14A(2) provides that such consent is irrevocable. Section 14A(3) provides that if the person has not been committed under section 9 of the Act, any consent under this section must be made by notice in writing to the court of committal. Sections 14(A)(4), (5) and (6) replicate the provisions of section 14(2) and (3) of the Act for these cases; namely that the notice is to be given in the manner prescribed by rules under section 144 of the Magistrates' Courts Act 1980 and in Scotland the notice is to be given in the manner prescribed by the High Court of Justiciary by Act of Adjournal.

Section 14A(7) replicates the provisions of section 14(4) of the Act and provides that where an order is made under section 14A(5) or (6), the Act shall cease to apply to the person in respect of whom the order is made subject to the provisions of section 14A(8). This means that if consent is given to the magistrate or the sheriff, no order for return is made by the Secretary of State or Scottish Ministers under section 12 of the Act. Instead the magistrate or sheriff order the committal for return.

Section 14A(8) provides that if a person is not returned within 20 days after their return is ordered, the High Court or the High Court of Justiciary in Scotland may on application by him or his behalf, order him to be discharged unless reasonable cause is shown for the delay.

Section 14A(9) provides that if a person has been committed under section 9 of the Act, any consent must be given to the Secretary of State or the Scottish Ministers. Section 14A(10) provides that the Secretary of State or the Scottish Ministers may, by warrant, order his return at any time. That return is ordered under section 14A of the Act so section 12 and 13 would not apply.

Paragraph 6 of Schedule 1A inserts two subsections ((1A) and (1B)) into section 18 of the Act. Section 18(1A) disapplies section 18(1) of the Act if the state which has extradited the person has made a declaration under Article 9a of the 1995 Convention (ie that Article 14 of the European Convention on Extradition (speciality protection) does not apply where someone consents to extradition) and the person has consented to their return and has not revoked that consent, where state has made a declaration under Article 7(4) of that Convention (ie that consent may be revoked). Section 18(1B) disapplies section 18(1) of the Act if the foreign state which has extradited the person has made a declaration under Article 9b of the 1995 Convention (ie that Article 14 of the European Convention on Extradition (speciality protection) does not apply where someone consents to extradition and expressly renounces his entitlement to the speciality rule) and the person has consented to his return and has renounced the benefit of section 18(1) of the Act and he has not revoked his consent or renunciation, where the state has made a declaration under section 7(4) of that Convention.

1996 Convention
Paragraph 9 of Schedule 1A amends the definition of "extradition crime" in section 2 of the Act. Paragraphs 9(2)(a) and 9(4) of Schedule 1A change the definition of "extradition crime" in section 2(1)(a), (2) and (3) of the Act from an offence punishable for a term of imprisonment of 12 months or more in both the United Kingdom and the foreign state to one punishable for a term of imprisonment of six months or more in the United Kingdom and punishable for a term of imprisonment of 12 months or more in the foreign state.

Paragraphs 9(2)(b) and 9(3) extend the definition of "imprisonment" in section 2 of the Act to include any form of detention, wherever served.

Paragraph 10 of Schedule 1A amends section 6 of the Act. Paragraph 10(2) omits section 6(1)(a) of the Act. This is because the United Kingdom will not for the purposes of the 1996 Convention treat offences as offences of a political character.

Paragraph 10(3) amends section 6(4) of the Act which deals with speciality protection. It adds three new subsections ((aa); (ab); and (ac)) after section 6(4)(a) of the Act which provide that a person may be dealt with without first having had an opportunity to leave if the offence is not punishable with imprisonment or other form of detention; if the offence is one for which he will not be detained in connection with his trial, sentence or appeal or if the offence is punishable with imprisonment or other form of detention but the appropriate authority is satisfied that a sentence of imprisonment or other form of detention will be imposed only if the person has specifically waived the right. Where a state has made a declaration under Article 6(3) of the 1996 Convention, the three new subsections will not apply to fiscal offences except fiscal offences connected with excise, valued-added tax or customs.

Paragraph 10(5) inserts a new subsection (6A) after section 6(6) of the Act, the effect of which is to disapply that section where the state has made a declaration under Article 11 of that Convention and the Secretary of State or the Scottish Ministers have not indicated that their consent should not be deemed to have been given in the person's case.

Paragraph 11 of Schedule 1A amends section 18 of the Act which relates to persons extradited to the United Kingdom. Paragraph 11(2) inserts four new subsections ((ba); (bb); (bc) and (bd)) after section 18(1)(b) which provide that a person returned to the United Kingdom may be triable or tried in the United Kingdom without first having had the opportunity of leaving the United Kingdom for an offence which is not punishable with imprisonment; for an offence in respect of which no custodial sentence will be imposed; for an offence in connection with which the person returned will not be detained in custody or for an offence in respect of which he has notified the court in writing that he waives the right not to be tried for that offence.

Paragraph 11(3) inserts a new subsection after section 18(1) of the Act which disapplies the effect of section 18(1) if the state has made a declaration under Article 11 of the 1996 Convention and it has not indicated that its consent should not be deemed to have been given in the person's case.

Paragraph 12 of Schedule 1A amends section 26 of the Act. It replaces sections 26(1) with a new subsection 26(1) the effect of which is to require a copy of any arrest warrant or certificate of conviction submitted to be deemed authenticated if it is certified as a true copy by the judicial or other authority of the state concerned. Paragraph 12(3) has the effect of rendering documents authenticated in this way receivable in evidence.

Notes:

[1] Cm. 2958.back

[2] Cm. 3533.back

[3] 2001 c. 24.back

[4] 1989 c. 33.back

[5] S.I. 2001/962.back

[6] The definition of "Hong Kong Administrative Region" was inserted by S.I. 1997/1178.back

[7] 1980 c. 43.back

[8] Section 2 has been amended, but the amendments are not relevant to the subject matter of these Regulations.back

[9] Section 6 has been amended, but the amendments are not relevant to the subject matter of these Regulations.back

[10] Section 26 has been amended, but the amendments are not relevant to the subject matter of these Regulations.back

ISBN 0 11 039399 6

Prepared 5 March 2002

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