Criminal Justice (Terrorist Offences) Act 2005

Surrender of person by issuing state to other Member State.

81

81.—The Act of 2003 is amended by the substitution of the following section for section 23:

“23.—(1) In this section, except where the context otherwise requires—

‘offence’ means, in relation to a person to whom a European arrest warrant applies, an offence under the law of a Member State (other than the issuing state) committed before the person's surrender to the issuing state under this Act; and

‘Member State’ means a Member State other than the issuing state.

(2) Subject to this section, the High Court shall refuse to surrender a person under this Act if it is satisfied that—

( a) the law of the issuing state does not provide that a person who is surrendered to it pursuant to a European arrest warrant shall not be surrendered to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State in respect of an offence, and

( b) the person will be surrendered to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State in respect of an offence.

(3) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to surrender him or her to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State in respect of an offence, unless the contrary is proved.

(4) The surrender of a person under this Act shall not be refused under subsection (2) if the High Court—

( a) is satisfied that the issuing judicial authority will not surrender the person to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State, without first obtaining the consent thereto of the High Court,

( b) is satisfied that—

(i) the person consents to being surrendered under section 15,

(ii) at the time of so consenting he or she consented to being surrendered by the issuing state to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State, and was aware of the consquences of his or her so consenting, and

(iii) the person obtained or was afforded the opportunity of obtaining, or being provided with, professional legal advice in relation to the matters to which this section relates,

( c) is satisfied that—

(i) the person will not be surrendered by the issuing state to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State, before the expiration of a period of 45 days from the date of the person's final discharge in respect of the offence for which he or she is surrendered under this Act, and

(ii) during that period he or she will be free to leave the issuing state,

except where having been so discharged he or she leaves the issuing state and later returns thereto (whether during that period or later), or

( d) is satisfied that the person will not be surrendered to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State unless—

(i) the person voluntarily gives his or her consent to being so surrendered and is fully aware of the consequences of his or her so doing,

(ii) that consent is given before the competent judicial authority in the issuing state, and

(iii) the person obtains or is afforded the opportunity of obtaining, or being provided with, professional legal advice in the issuing state in relation to the matters to which this section relates before he or she gives that consent.

(5) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to the person being surrendered by the issuing state to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State, upon receiving a request in writing from the issuing state in that behalf.

(6) The High Court shall not give its consent under subsection (5) if the offence concerned is an offence for which a person could not by virtue of Part 3 or the Framework Decision (including the recitals thereto) be surrendered under this Act.”.