Extradition Act 1965

Rule of specialty as applied by the State.

[Art. 14]

39

39. (1) This section applies to a person who has been surrendered to the State by a requested country.

(2) F72 [ Subject to subsection (2A) (inserted by section 16 (b) of the Extradition (European Union Conventions) Act, 2001), a person to whom this section applies shall not be proceeded against, sentenced or imprisoned or otherwise restricted in his personal freedom for any offence committed before his surrender other than that for which he was surrendered, except in the following cases ]

( a) with the consent of the requested country, signified under the seal of a F73 [ a minister of state, ministry or department of state of that country or such other person as performs in that country functions the same as or similar to those performed by the Minister under this Act, as may be appropriate, ], which seal 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 surrendered or has returned to the State after leaving it.

(3) Where the description of the offence charged is altered in the course of proceedings, he shall only be proceeded against or sentenced 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 surrendered to the State.

F74 [ (2A) A person to whom this section applies, who has been surrendered to the State by a Convention country pursuant to a request for his extradition from the Central Authority in the State, may

( a ) be proceeded against for an offence alleged to have been committed by him before his surrender (other than that for which he has been surrendered) provided that

(i) upon conviction he is not liable to a term of imprisonment or detention,

(ii) in circumstances where, upon conviction, he would be liable to a term of imprisonment or detention or such penalty as does not involve a restriction of his personal liberty, the said other penalty only shall be imposed should he be convicted of the offence concerned,

( b ) be subjected to a penalty (other than a penalty consisting of the restriction of his personal liberty) including a financial penalty, where apart from this section the law so provides in respect of an offence

(i) of which he has been convicted,

(ii) that was committed before his surrender, and

(iii) that is not an offence for which he has been surrendered,

notwithstanding that where such person fails or refuses to pay the penalty concerned (or, in the case of a penalty that is not a financial penalty, fails or refuses to comply with the order of the court by which the penalty has been imposed), he may in accordance with law and apart from this section be detained or otherwise deprived of his personal liberty, or

( c ) be proceeded against or, where apart from this section the law so provides, be detained for the purpose of executing a sentence of imprisonment or detention in respect of an offence

(i) of which he has been convicted,

(ii) that was committed before his surrender, and

(iii) that is not an offence for which he has been surrendered,

or, where apart from this section the law so provides, be otherwise restricted in his personal liberty as a consequence of being convicted of such offence, provided that he has consented to such execution or his personal liberty being so restricted before the High Court which shall, upon being satisfied that the person so consents voluntarily and is aware of the consequences of his so consenting, record that consent. ]

Annotations:

Amendments:

F72

Substituted (20.03.2002) by Extradition (European Union Conventions) Act 2001 (49/2001), s. 16(a), S.I. No. 85 of 2002.

F73

Substituted (20.03.2002) by Extradition (European Union Conventions) Act 2001 (49/2001), s. 25(b), S.I. No. 85 of 2002.

F74

Inserted (20.03.2002) by Extradition (European Union Conventions) Act 2001 (49/2001), s. 16(b), S.I. No. 85 of 2002.

Modifications (not altering text):

C16

Section applied with modifications (22.08.1994) by Extradition (Rule of Specialty and Re-Extradition For Purposes of Part III of Extradition Act, 1965) Order 1994 (S.I. No. 221 of 1994), arts. 6-8, in effect as per art. 1(2).

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.