S.I. No. 221/1994 - Extradition (Rule of Specialty and Re-Extradition For Purposes of Part III of Extradition Act, 1965) Order, 1994.

S.I. No. 221 of 1994.

EXTRADITION (RULE OF SPECIALTY AND RE-EXTRADITION FOR PURPOSES OF PART III OF EXTRADITION ACT, 1965) ORDER, 1994.

I, MÁIRE GEOGHEGAN-QUINN, Minister for Justice, in exercise of the powers conferred on me by section 3 of the Extradition (Amendment) Act, 1987 (No. 25 of 1987), hereby order as follows:

1. (1) This Order may be cited as the Extradition (Rule of Specialty and Re-extradition for Purposes of Part III of Extradition Act, 1965) Order, 1994.

(2) This Order shall come into operation on the 22nd day of August, 1994.

2. In this Order, a reference to a Part, section, subsection, paragraph or subparagraph is a reference to a Part, section, subsection, paragraph or subparagraph of the Extradition Act, 1965 (No. 17 of 1965), as amended, unless it is indicated that reference to some other provision is intended.

3. Subject to the provisions of this Order, section 20 (which subjects the power to grant the extradition of a person under Part II to certain restrictions relating to the taking of proceedings against and the sentencing or restricting of the personal freedom of the person concerned in the requesting country in respect of offences other than the offence for which he is extradited) shall apply in relation to the delivery of a person under Part III into the custody of a member of a police force of a place in relation to which Part III applies, with the following adaptations and modifications:

( a ) in subsection (1)—

(i) "An order shall not be made under section 47 (1) if it is shown that provision is not made by the law in force in the place in relation to which Part III applies in which the relevant warrant was issued" shall be substituted for "Extradition shall not be granted unless provision is made by the law of the requesting country or by the extradition agreement",

(ii) in paragraph (a)—

(I) "or otherwise dealt with in any of the places in relation to which Part III applies" shall be inserted after "freedom",

(II) "delivery other than the offence specified in the relevant warrant" shall be substituted for "surrender other than that for which his extradition is requested",

(III) in subparagraph (ii)—

(A) "to go to the territory of any country outside the places in relation to which Part III applies" shall be substituted for "to leave the territory of that country",

(B) "for which he was delivered up" shall be substituted for "for which he was extadited", and

(C) "has, after going to any such territory, gone, or gone back, to any of those places, or" shall be substituted for "has returned to the territory of that country after leaving it, and",

and

(IV) the following subparagraph shall be inserted after subparagraph (ii):

"(iii) where, in proceedings in relation to the offence for which that person was delivered up, he could be convicted for that other offence under the law in force in the place in relation to which Part III applies in which the relevant warrant was issued, and",

and

(iii) in paragraph (b)—

(I) "the place in relation to which Part III applies in which the proceedings for the offence are taking place" shall be substituted for "the requesting country",

(II) ",sentenced or detained with a view to the carrying out of a sentence or detention order, or otherwise restricted in his personal freedom or otherwise dealt with," shall be substituted for "or sentenced", and

(III) "for which the person could be delivered up under Part III" shall be substituted for "which would allow extradition",

( b ) subsections (2) and (4) shall be deleted, and

( c ) the following subsection shall be substituted for subsection (3):

"(3) A request for the consent of the Minister shall be supported by such documents as the Minister thinks necessary in order to enable the Minister to decide whether to comply with or refuse the request.",

and the said subsection (1), as adapted and modified by this Article, is set out in the Table to this Article.

TABLE

(1) An order shall not be made under section 47 (1) if it is shown that provision is not made by the law in force in the place in relation to which Part III applies in which the relevant warrant was issued—

( a ) that the person claimed shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order, or otherwise restricted in his personal freedom or otherwise dealt with in any of the places in relation to which Part III applies, for any offence committed prior to his delivery other than the offence specified in the relevant warrant, except in the following cases—

(i) with the consent of the Minister, or

(ii) where that person, having had an opportunity to go to the territory of any country outside the places in relation to which Part III applies, has not done so within forty-five days of his final discharge in respect of the offence for which he was delivered up or has, after going to any such territory, gone, or gone back, to any of those places, or

(iii) where, in proceedings in relation to the offence for which that person was delivered up, he could be convicted for that other offence under the law in force in the place in relation to which Part III applies in which the relevant warrant was issued, and

( b ) that where the description of the offence charged in the place in relation to which Part III applies in which the proceedings for the offence are taking place is altered in the course of proceedings, he shall only be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order, or otherwise restricted in his personal freedom or otherwise dealt with, in so far as the offence under its new description is shown by its constituent elements to be an offence for which the person could be delivered up under Part III.

4. Subsections (1) and (2) of section 21 (which subject the power to grant the extradition of a person to a country under Part II to certain restrictions as to the re-extradition of the person concerned by that country to a third country) shall apply in relation to the delivery of a person under Part III into the custody of a member of a police force of a place in relation to which Part III applies, with the following adaptations and modifications:

( a ) in subsection (1)—

(i) "An order shall not be made under section 47 (1) if it is shown that provision is not made by the law in force in the place in relation to which Part III applies in which the relevant warrant was issued that there will not be surrendered from that place to any country outside the places in relation to which Part III applies, other than the State, a person delivered up to the said place" shall be substituted for "Extradition shall not be granted unless provision is made by the law of the requesting country or by the extradition agreement that that country shall not surrender to another country a person surrendered to the requesting country",

(ii) "that country" shall be substituted for "the other country" and "delivery to the said place" shall be substituted for "surrender to the requesting country", and

(iii) in paragraph (b)—

(I) "to go to the territory of any country outside the places in relation to which Part III applies" shall be substituted for "to leave the territory of that country",

(II) "the offence for which he was delivered up" shall be substituted for "the offence for which he was extradited", and

(III) "has, after going to any such territory, gone, or gone back, to any of those places" shall be substituted for "has returned to the territory of that country after leaving it",

and

( b ) in subsection (2), "such documents as the Minister thinks necessary in order to enable the Minister to decide whether to comply with or refuse the request" shall be substituted for "the documents mentioned in section 25",

and the said subsections (1) and (2), as adapted and modified by this Article, are set out in the Table to this Article.

TABLE.

(1) An order shall not be made under section 47 (1) if it is shown that provision is not made by the law in force in the place in relation to which Part III applies in which the relevant warrant was issued that there will not be surrendered from that place to any country outside the places in relation to which Part III applies, other than the State, a person delivered up to the said place and sought by that country for an offence committed before his delivery to the said place, except in the following cases—

( a ) with the consent of the Minister, or

( b ) where that person, having had an opportunity to go to the territory of any country outside the places in relation to which Part III applies, has not done so within forty-five days of his final discharge in respect of the offence for which he was delivered up or has, after going to any such territory, gone, or gone back, to any of those places.

(2) Before acceding to a request for consent to the extradition of a person to whom subsection (1) applies, the Minister may request the production of such documents as the Minister thinks necessary in order to enable the Minister to decide whether to comply with or refuse the request.

5. Subsection (3) of section 21 (which, in the case of a person extradited to the State under Part II, prohibits, subject to certain exceptions, his re-extradition to a third country for an offence committed prior to his surrender) shall apply in relation to a person who has been delivered up to the State under a law corresponding to Part III, with the following adaptations and modifications:

( a ) "has been delivered up" shall be substituted for "has been surrendered" and "delivery" shall be substituted for "surrender",

( b ) "under a law corresponding to Part III" shall be substituted for "by a requested country" where it first occurs,

( c ) in paragraph (a)—

(i) "the Secretary of State in the Government of the United Kingdom of Great Britain and Northern Ireland" shall be substituted for "the requested country",

(ii) "by a certificate purporting to be given by him or on his behalf" shall be substituted for "under the seal of a minister of state of that country", and

(iii) "which certificate" shall be substituted for "which seal",

and

( d ) in paragraph (b), "delivered up" shall be substituted for "surrendered",

and the said subsection (3), as adapted and modified by this Article, is set out in the Table to this Article.

TABLE

(3) A person who has been delivered up to the State under a law corresponding to Part III shall not be surrendered to a third country for an offence committed before his delivery, except in the following cases—

(a) with the consent of the Secretary of State in the Government of the United Kingdom of Great Britain and Northern Ireland signified by a certificate purporting to be given by him or on his behalf, which certificate shall be judicially noticed, or

(b) where that person, having had an opportunity to leave the State, has not done so within forty-five days of his final discharge in respect of the offence for which he was delivered up to the State or has returned to the State after leaving it.

6. Subject to the provisions of this Order, section 39 (which, in the case of a person extradited to the State under Part II, prohibits, subject to certain exceptions, the taking of proceedings against and the sentencing or restricting of the personal freedom of the person for any offence committed prior to his surrender other than that for which he was surrendered) shall apply to a person who has been delivered up to the State under a law corresponding to Part III, with the following adaptations and modifications:

(a) in subsection (1), "delivered up to the State under a law corresponding to Part III" shall be substituted for "surrendered to the State by a requested country",

(b) in subsection (2)—

(i) ", imprisoned or detained with a view to the carrying out of a sentence or order for detention," shall be substituted for "or imprisoned",

(ii) "or otherwise dealt with," shall be inserted after "freedom",

(iii) "delivery" shall be substituted for "surrender" and "delivered up" shall be substituted for "surrendered",

(iv) in paragraph (a)—

(I) "the Secretary of State in the Government of the United Kingdom of Great Britain and Northern Ireland" shall be substituted for "the requested country,",

(II) "by a certificate purporting to be given by him or on his behalf" shall be substituted for "under the seal of a minister of state of that country", and

(III) "which certificate" shall be substituted for "which seal",

(v) in paragraph (b), "after leaving it, or" shall be substituted for "after leaving it." and "delivered up" shall be substituted for "surrendered", and

(vi) the following paragraph shall be inserted after paragraph (b):

"(c) where, in proceedings in relation to the offence for which that person was delivered up, he could be convicted for that other offence under the law of the State.",

and

(c) in subsection (3)—

(i) "in the State" shall be inserted after "the offence charged",

(ii) ", sentenced, imprisoned or detained with a view to the carrying out of a sentence or order for detention, or otherwise restricted in his personal freedom or otherwise dealt with," shall be substituted for "or sentenced", and

(iii) "delivered up to the State under a law corresponding to Part III" shall be substituted for "surrendered to the State",

and the said section 39,as adapted and modified by this Article, is set out in the Table to this Article.

TABLE.

39. (1) This section applies to a person who has been delivered up to the State under a law corresponding to Part III.

(2) He shall not be proceeded against, sentenced, imprisoned or detained with a view to the carrying out of a sentence or order for detention, or otherwise restricted in his personal freedom or otherwise dealt with, for any offence committed prior to his delivery other than that for which he was delivered up, except in the following cases—

(a) with the consent of the Secretary of State in the Government of the United Kingdom of Great Britain and Northern Ireland signified by a certificate purporting to be given by him or on his behalf, which certificate shall be judicially noticed, or

(b) where that person, having had an opportunity to leave the State, has not done so within forty-five days of his final discharge in respect of the offence for which he was delivered up or has returned to the State after leaving it, or

(c) where, in proceedings in relation to the offence for which that person was delivered up, he could be convicted for that other offence under the law of the State.

(3) Where the description of the offence charged in the State is altered in the course of proceedings, he shall only be proceeded against, sentenced, imprisoned or detained with a view to the carrying out of a sentence or order for detention, or otherwise restricted in his personal freedom or otherwise dealt with, in so far as the offence under its new description is shown by its constituent elements to be an offence for which he would be liable to be delivered up to the State under a law corresponding to Part III.

7. (1) For the purposes of the application of subsection (1) of section 20 or subsection (1) of section 21 to a person referred to in that subsection, the law in force in a place in relation to which Part III applies shall not be regarded as making the provision specified in that subsection if it is shown that it does not provide that such a person delivered up to that place shall not, while he is on bail, be regarded as having had an opportunity to go to the territory of any country outside the places in relation to which Part III applies or as having, after going to any such territory, gone, or gone back, to any of those places.

(2) For the purposes of the application of subsection (3) of section 21 or subsection (2) of section 39 to a person referred to in that subsection, a person shall not, while he is on bail, be regarded as having had an opportunity to leave the State or as having returned to the State after leaving it.

(3) References in paragraphs (1) and (2) of this Article to sections 20, 21 and 39 are references to those sections as modified and adapted by this Order.

8. This Order applies in cases where the warrant concerned is endorsed on or after the commencement of this Order for execution in the State under section 43 or in a place in relation to which Part III applies under corresponding arrangements in force in that place.

GIVEN under my Official Seal, this 21st day of July, 1994.

MÁIRE GEOGHEGAN-QUINN,

Minister for Justice.

EXPLANATORY NOTE.

This Order applies, with certain adaptations and modifications, the provisions of sections 20, 21 and 39 (rule of specialty and re-extradition) of the Extradition Act, 1965 for the purposes of Part III of that Act.