Arrangement

SCHEDULE   14

A LAW to amend further the Extradition (Jersey) Law 2004

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

“ ‘Human Rights Convention’ has the meaning given to ‘Convention’ by Article 1(1) of the Human Rights (Jersey) Law 2000[2];”.

“ ‘Refugee Convention’ means the Convention relating to the status of Refugees done at Geneva of 28 July 1951 and the Protocol to that Convention;”.

“(1)    This Article sets out whether a person’s conduct constitutes an ‘extradition offence’ for the purposes of this Law in a case where the person –

(a)     is accused in a designated territory of an offence constituted by the conduct; or

(b)     has been convicted in that territory of an offence constituted by the conduct but not sentenced for it.

(2)     The conduct constitutes an extradition offence in relation to a designated territory if the conditions in paragraphs (3), (4) or (5) are satisfied.

(3)     The conditions in this paragraph are that –

(a)     the conduct occurs in the designated territory;

(b)     the conduct would constitute an offence under the law of Jersey punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in Jersey;

(c)     the conduct is so punishable under the law of the designated territory.

(4)     The conditions in this paragraph are that –

(a)     the conduct occurs outside the designated territory;

(b)     in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of Jersey punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment;

(c)     the conduct is so punishable under the law of the designated territory.

(5)     The conditions in this paragraph are that –

(a)     the conduct occurs outside the designated territory;

(b)     no part of the conduct occurs in Jersey;

(c)     the conduct constitutes, or if committed in Jersey would constitute, an offence to which paragraph (6) refers;

(d)     the conduct is punishable under the law of the designated territory with imprisonment or another form of detention for a term of 12 months or a greater punishment.”.

“(8)    References in this Article to ‘conduct’ (except in the expression ‘equivalent conduct’) are to the conduct specified in the request for the person’s extradition.”.

“(1)    This Article sets out whether a person’s conduct constitutes an ‘extradition offence’ for the purposes of this Law in a case where the person –

(a)     has been convicted, in the designated territory to which extradition is requested, of an offence constituted by the conduct; and

(b)     has been sentenced for the offence.

(2)     The conduct constitutes an extradition offence in relation to the designated territory if the conditions in paragraphs (3), (4) or (5) are satisfied.

(3)     The conditions in this paragraph are that –

(a)     the conduct occurs in the designated territory;

(b)     the conduct would constitute an offence under the law of Jersey punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in Jersey;

(c)     a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the designated territory in respect of the conduct.

(4)     The conditions in this paragraph are that –

(a)     the conduct occurs outside the designated territory;

(b)     in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of Jersey punishable as mentioned in paragraph (3)(b);

(c)     a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the designated territory in respect of the conduct.

(5)     The conditions in this paragraph are that –

(a)     the conduct occurs outside the designated territory;

(b)     no part of the conduct occurs in Jersey;

(c)     the conduct constitutes, or if committed in the Jersey would constitute, an offence mentioned in paragraph (6);

(d)     a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the designated territory in respect of the conduct.”.

“(8)    References in this Article to ‘conduct’ (except in the expression ‘equivalent conduct’) are to the conduct specified in the request for the person’s extradition.”.

“(3A) A designated territory may be specified in Part 1 of Schedule 1 for some purposes of this Law and specified in Part 2 of that Schedule for other purposes of this Law and references to a designated territory of the first category or the second category shall be construed accordingly.”.

“(aa)  specify any territory in Part 1 of Schedule 1 for some purposes of this Law and in Part 2 of that Schedule for other purposes of this Law;”.

“(2)    However, the Attorney General may refuse to issue a certificate under this Article if –

(a)     the Attorney General has power under Article 65 to order that proceedings on the request be deferred;

(b)     the person whose extradition is requested has been recorded by the Secretary of State as a refugee within the meaning of the Refugee Convention; or

(c)     the person whose extradition is requested has been granted leave to enter or remain in the United Kingdom on the ground that it would be a breach of Article 2 or 3 of the Human Rights Convention to remove the person to the territory to which extradition is requested.”.

“(9)    Paragraph (10) applies at all times after the Attorney General issues a certificate under this Article.

(10)    The Attorney General shall not consider whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights (Jersey) Law 2000[3].”.

“20A Forum

(1)     The extradition of a person (‘D’) to a designated territory is barred by reason of forum if the extradition would not be in the interests of justice.

(2)     For the purposes of this Article, the extradition would not be in the interests of justice if the Magistrate –

(a)     decides that a substantial measure of D’s relevant activity was performed in Jersey; and

(b)     decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.

(3)     The specified matters relating to the interests of justice are –

(a)     the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;

(b)     the interests of any victims of the extradition offence;

(c)     that the Attorney General believes that Jersey is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;

(d)     were D to be prosecuted in Jersey for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in Jersey;

(e)     any delay that might result from proceeding in one jurisdiction rather than another;

(f)      the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to –

(i)      the jurisdictions in which witnesses, co-defendants and other suspects are located, and

(ii)      the practicability of the evidence of such persons being given in Jersey or in jurisdictions outside Jersey;

(g)     D’s connections with Jersey.

(4)     In deciding whether the extradition would not be in the interests of justice, the Magistrate shall have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the designated territory concerned.

(5)     If, on an application by the Attorney General, it appears to the Magistrate that the Attorney General has considered the offences for which D could be prosecuted in Jersey in respect of the conduct constituting the extradition offence, the Magistrate shall make the Attorney General a party to the proceedings on the question of whether D’s extradition is barred by reason of forum.

(6)     In this Article ‘D’s relevant activity’ means activity that is material to the commission of the extradition offence and is alleged to have been performed by D.

20B   Effect of Attorney General’s certificates on forum proceedings

(1)     The Magistrate hearing proceedings under Article 20A (the ‘forum proceedings’) shall decide that the extradition is not barred by reason of forum if (at a time when the Magistrate has not yet decided the proceedings) the Magistrate receives an Attorney General’s certificate relating to the extradition.

(2)     That duty to decide the forum proceedings in that way is subject to the determination of any question relating to the Attorney General’s certificate raised in accordance with Article 20D.

(3)     The Attorney General may apply for the forum proceedings to be adjourned for the purpose of assisting the Attorney General –

(a)     in considering whether to give a certificate relating to the extradition;

(b)     in giving such a certificate; or

(c)     in sending such a certificate to the Magistrate.

(4)     If such an application is made, the Magistrate shall –

(a)     adjourn the forum proceedings until the application is decided; and

(b)     continue the adjournment, for such period as appears to the Magistrate to be reasonable, if the application is granted.

(5)     But the Magistrate shall end the adjournment if the application is not granted.

20C   Attorney General’s certificates

(1)     An ‘Attorney General’s certificate’ is a certificate given by the Attorney General that –

(a)     the Attorney General has considered the offences for which D could be prosecuted in Jersey in respect of the conduct constituting the extradition offence and decided that there are one or more such offences that correspond to the extradition offence (the ‘corresponding offences’); and

(b)     certifies either the facts set out in paragraph (2) or those set out in paragraph (3).

(2)     The facts are that –

(a)     the Attorney General has made a formal decision as to the prosecution of D for the corresponding offences;

(b)     that decision is that D should not be prosecuted for the corresponding offences; and

(c)     the reason for that decision is a belief that –

(i)      there would be insufficient admissible evidence for the prosecution, or

(ii)      the prosecution would not be in the public interest.

(3)     The facts are that the Attorney General believes that D should not be prosecuted for the corresponding offences because there are concerns about the disclosure of sensitive material in –

(a)     the prosecution of D for the corresponding offences; or

(b)     any other proceedings.

(4)     In relation to the extradition of any person to a designated territory, neither this Article nor any other rule of law (whether or not contained in an enactment) may require the Attorney General –

(a)     to consider any matter relevant to giving an Attorney General’s certificate; or

(b)     to consider whether to give an Attorney General’s certificate.

(5)     In this Article ‘sensitive material’ means material that appears to the responsible prosecutor to be sensitive, including material appearing to be sensitive on grounds relating to –

(a)     national security;

(b)     international relations; or

(c)     the prevention or detection of crime (including grounds relating to the identification or activities of witnesses, informants or any other persons supplying information to the police or any other law enforcement agency who may be in danger if their identities are revealed).

20D   Questioning of Attorney General’s certificate

(1)     No decision of the Attorney General relating to an Attorney General’s certificate in respect of D’s extradition (a ‘relevant certification decision’) may be questioned except on an appeal under Article 40 or Article 45 against an order for that extradition.

(2)     For the purpose of –

(a)     determining whether to give permission for a relevant certification decision to be questioned; and

(b)     determining any such question (if that permission is given),

the Royal Court shall apply the procedures and principles which would be applied by it on an application for judicial review.

(3)     When quashing an Attorney General’s certificate, the Royal Court shall decide the question of whether or not the extradition is barred by reason of forum.

(4)     In deciding that question –

(a)     Articles 20A to 20C and this Article apply in relation to the decision (with the appropriate modifications) as they apply to a decision by the Magistrate; and

(b)     in particular –

(i)      a reference in this Article to an appeal under Article 40 or Article 45 has effect as a reference to an appeal under Article 52 to the Privy Council,

(ii)      a reference in this Article to the Royal Court has effect as a reference to the Privy Council.

20E   Interpretation of Articles 20A to 20D

(1)     This Article applies for the purposes of Articles 20A to 20D (and this Article).

(2)     The following definitions apply –

‘Attorney General’s certificate’ has the meaning given in Article 20C(1);

‘D’ has the meaning given in Article 20A(1);

‘extradition offence’ means the offence specified in the request for extradition (including the conduct that constitutes the extradition offence);

‘forum proceedings’ has the meaning given in Article 20B(1).

(3)     In determining for any purpose whether an offence corresponds to the extradition offence, regard must be had, in particular, to the nature and seriousness of the 2 offences.

(4)     A reference to a formal decision as to the prosecution of D for an offence is a reference to a decision (made after complying with, in particular, any applicable requirement concerning a code of practice) that D should, or should not, be prosecuted for the offence.”.

“(6)    The Attorney General may order the person’s discharge if the person –

(a)     has been recorded by the Secretary of State as a refugee within the meaning of the Refugee Convention; or

(b)     has been granted leave to enter or remain in the United Kingdom on the ground that it would be a breach of Article 2 or 3 of the Human Rights Convention to remove the person to the territory to which extradition is requested.”.

“(7)    But where a person gives notice of application for leave to appeal after the end of the permitted period, the Royal Court shall not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given.”.

“(5)    But notice of an appeal under this Article may be given after the end of the permitted period if it is an appeal on human rights grounds.

(6)     Notice of any such appeal must be given in accordance with rules of court at a time before the person is extradited to the designated territory in accordance with Article 55.

(7)     Where notice of an appeal is given in accordance with paragraphs (5) and (6), the Royal Court shall consider the appeal only if it appears to the Court that –

(a)     the appeal is necessary to avoid real injustice; and

(b)     the circumstances are exceptional and make it appropriate to consider the appeal.

(8)     Where a person gives notice of application for leave to appeal after the end of the permitted period (whether or not the application is for leave to appeal on human rights grounds), the Royal Court shall not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given.

(9)     In this Article ‘appeal on human rights grounds’ means an appeal against the order for the person’s extradition on the grounds (and only on the grounds) that the extradition would not be compatible with the Convention rights within the meaning of the Human Rights (Jersey) Law 2000[4].”.

“(5)    If a person brings an appeal under Article 45 by virtue of paragraph (5) of that Article, this Article ceases to apply (but Article 56 applies instead).”.

“56A Court informed after extradition order that person is charged with offence in Jersey

(1)     This Article applies if –

(a)     the Attorney General has ordered a person’s extradition; and

(b)     before the extradition order is carried out the Royal Court is informed that the person is charged with an offence in Jersey.

(2)     The Royal Court shall order the extradition order not to be carried out until one of these occurs –

(a)     the charge is disposed of;

(b)     the charge is withdrawn;

(c)     proceedings in respect of the charge are discontinued;

(d)     an order is made for the charge to lie on the file.

(3)     If a sentence of imprisonment or another form of detention is imposed in respect of the offence charged, the Royal Court may order the extradition order not to be carried out until the person is released from detention pursuant to the sentence (whether on licence or otherwise).

(4)     Rules of court may provide that where there is an appeal against the extradition order –

(a)     a reference in this Article to the Royal Court has effect, in prescribed circumstances, as if it were a reference to the court hearing the appeal; and

(b)     this Article has effect with any other prescribed modifications.

56B   Court informed after extradition order that person is serving sentence in Jersey

(1)     This Article applies if –

(a)     the Attorney General has ordered a person’s extradition; and

(b)     before the extradition order is carried out the Royal Court is informed that the person is serving a sentence of imprisonment or another form of detention in Jersey.

(2)     The Royal Court may order the extradition order not to be carried out until the person is released from detention pursuant to the sentence (whether on licence or otherwise).

(3)     Rules of court may provide that where there is an appeal against the extradition order –

(a)     a reference in this Article to the Royal Court has effect, in prescribed circumstances, as if it were a reference to the court hearing the appeal; and

(b)     this Article has effect with any other prescribed modifications.”.

“Hong Kong Special Administrative Region (except for the purposes of Articles 8 and 10)”.

“6A   Forum

(1)     The re-extradition of a person (‘D’) to a designated territory is barred by reason of forum if the re-extradition would not be in the interests of justice.

(2)     For the purposes of this paragraph, the re-extradition would not be in the interests of justice if the Magistrate –

(a)     decides that a substantial measure of D’s relevant activity was performed in Jersey; and

(b)     decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.

(3)     The specified matters relating to the interests of justice are –

(a)     the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;

(b)     the interests of any victims of the extradition offence;

(c)     that the Attorney General believes that Jersey is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;

(d)     were D to be prosecuted in Jersey for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available Jersey;

(e)     any delay that might result from proceeding in one jurisdiction rather than another;

(f)      the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to –

(i)      the jurisdictions in which witnesses, co-defendants and other suspects are located, and

(ii)      the practicability of the evidence of such persons being given in the Jersey or in jurisdictions outside Jersey;

(g)     D’s connections with Jersey.

(4)     In deciding whether the extradition would not be in the interests of justice, the Magistrate shall have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the designated territory concerned.

(5)     If, on an application by the Attorney General, it appears to the Magistrate that the Attorney General has considered the offences for which D could be prosecuted in Jersey in respect of the conduct constituting the extradition offence, the Magistrate shall make the Attorney General a party to the proceedings on the question of whether D’s extradition is barred by reason of forum.

(6)     In this paragraph ‘D’s relevant activity’ means activity that is material to the commission of the extradition offence and is alleged to have been performed by D.

6B     Effect of Attorney General’s certificates on forum proceedings

(1)     The Magistrate hearing proceedings under paragraph 6A (the ‘forum proceedings’) shall decide that the extradition is not barred by reason of forum if (at a time when the Magistrate has not yet decided the proceedings) the Magistrate receives an Attorney General’s certificate relating to the re-extradition.

(2)     That duty to decide the forum proceedings in that way is subject to the determination of any question relating to the Attorney General’s certificate raised in accordance with paragraph 6D.

(3)     The Attorney General may apply for the forum proceedings to be adjourned for the purpose of assisting the Attorney General –

(a)     in considering whether to give a certificate relating to the extradition;

(b)     in giving such a certificate; or

(c)     in sending such a certificate to the Magistrate.

(4)     If such an application is made, the Magistrate shall –

(a)     adjourn the forum proceedings until the application is decided; and

(b)     continue the adjournment, for such period as appears to the Magistrate to be reasonable, if the application is granted.

(5)     But the Magistrate shall end the adjournment if the application is not granted.

6C     Attorney General’s certificates

(1)     An ‘Attorney General’s certificate’ is a certificate given by the Attorney General that –

(a)     the Attorney General has considered the offences for which D could be prosecuted in Jersey in respect of the conduct constituting the re-extradition offence and decided that there are one or more such offences that correspond to the extradition offence (the ‘corresponding offences’); and

(b)     certifies either the facts set out in paragraph (2) or those set out in paragraph (3).

(2)     The facts are that –

(a)     the Attorney General has made a formal decision as to the prosecution of D for the corresponding offences;

(b)     that decision is that D should not be prosecuted for the corresponding offences; and

(c)     the reason for that decision is a belief that –

(i)      there would be insufficient admissible evidence for the prosecution, or

(ii)      the prosecution would not be in the public interest.

(3)     The facts are that the Attorney General believes that D should not be prosecuted for the corresponding offences because there are concerns about the disclosure of sensitive material in –

(a)     the prosecution of D for the corresponding offences; or

(b)     any other proceedings.

(4)     In relation to the extradition of any person to a designated territory, neither this Article nor any other rule of law (whether or not contained in an enactment) may require the Attorney General –

(a)     to consider any matter relevant to giving an Attorney General’s certificate; or

(b)     to consider whether to give an Attorney General’s certificate.

(5)     In this paragraph ‘sensitive material’ means material that appears to the responsible prosecutor to be sensitive, including material appearing to be sensitive on grounds relating to –

(a)     national security;

(b)     international relations; or

(c)     the prevention or detection of crime (including grounds relating to the identification or activities of witnesses, informants or any other persons supplying information to the police or any other law enforcement agency who may be in danger if their identities are revealed).

6D     Questioning of Attorney General’s certificate

(1)     No decision of the Attorney General relating to an Attorney General’s certificate in respect of D’s re-extradition (a ‘relevant certification decision’) may be questioned except on an appeal under paragraph 25 against an order for that re-extradition.

(2)     For the purpose of –

(a)     determining whether to give permission for a relevant certification decision to be questioned; and

(b)     determining any such question (if that permission is given),

(3)     When quashing an Attorney General’s certificate, the Royal Court shall decide the question of whether or not the extradition is barred by reason of forum.

(4)     In deciding that question –

(a)     paragraphs 6A to 6C and this paragraph apply in relation to the decision (with the appropriate modifications) as they apply to a decision by the Magistrate; and

(b)     in particular –

(i)      a reference in this Article to an appeal under paragraph 25 has effect as a reference to an appeal under paragraph 37 to the Privy Council,

(ii)      a reference in this Article to the Royal Court has effect as a reference to the Privy Council.

6E     Interpretation of paragraphs 6A to 6D

(1)     This paragraph applies for the purposes of paragraphs 6A to 6D (and this paragraph).

(2)     The following definitions apply –

‘Attorney General’s certificate’ has the meaning given in paragraph 6C(1);

‘D’ has the meaning given in paragraph 6A(1);

‘extradition offence’ means the offence specified in the request for extradition (including the conduct that constitutes the extradition offence);

‘forum proceedings’ has the meaning given in paragraph 6B(1).

(3)     In determining for any purpose whether an offence corresponds to the extradition offence, regard must be had, in particular, to the nature and seriousness of the 2 offences.

(4)     A reference to a formal decision as to the prosecution of D for an offence is a reference to a decision (made after complying with, in particular, any applicable requirement concerning a code of practice) that D should, or should not, be prosecuted for the offence.”.

“(5)    But where a person gives notice of application for leave to appeal after the end of the permitted period, the Royal Court shall not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given.”.

“(3)    If –

(a)     the Royal Court allows an appeal under paragraph 25 by the person whose re-extradition is requested;

(b)     a person acting on behalf of the designated territory brings an appeal under paragraph 37 against the decision of the Royal Court; and

(c)     the Privy Council allows the appeal,

the Privy Council shall quash the order discharging the person made by the Royal Court under paragraph 26(5), or by the Magistrate, and order the person to be re-extradited.”.

“40A Court informed after re-extradition order that person is charged with offence in Jersey

(1)     This paragraph applies if –

(a)     the Magistrate has ordered a person’s re-extradition; and

(b)     before the extradition order is carried out the Royal Court is informed that the person is charged with an offence in Jersey.

(2)     The Royal Court shall order the re-extradition order not to be carried out until one of these occurs –

(a)     the charge is disposed of;

(b)     the charge is withdrawn;

(c)     proceedings in respect of the charge are discontinued;

(d)     an order is made for the charge to lie on the file.

(3)     If a sentence of imprisonment or another form of detention is imposed in respect of the offence charged, the Royal Court may order the extradition order not to be carried out until the person is released from detention pursuant to the sentence (whether on licence or otherwise).

(4)     Rules of court may provide that where there is an appeal against the re-extradition order –

(a)     a reference in this Article to the Royal Court has effect, in prescribed circumstances, as if it were a reference to the court hearing the appeal; and

(b)     this Article has effect with any other prescribed modifications.

40B   Court informed after re-extradition order that person is serving sentence in Jersey

(1)     This paragraph applies if –

(a)     the Magistrate has ordered a person’s re-extradition; and

(b)     before the extradition order is carried out the Royal Court is informed that the person is serving a sentence of imprisonment or another form of detention in Jersey other than the sentence referred to in Article 71(6).

(2)     The Royal Court may order the re-extradition order not to be carried out until the person is released from detention pursuant to the sentence (whether on licence or otherwise).

(3)     Rules of court may provide that where there is an appeal against the extradition order –

(a)     a reference in this Article to the Royal Court has effect, in prescribed circumstances, as if it were a reference to the court hearing the appeal; and

(b)     this Article has effect with any other prescribed modifications.”.