Fugitive Offenders Act, 2002 (Gibraltar)

Fugitive Offenders Act, 2002

Published: 2002-12-19

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Fugitive Offenders

2002-15

FUGITIVE OFFENDERS ACT, 2002

Principal Act Act. No. 2002-15 Commencement 19.12.2002 Assent 16.12.2002

Amending enactments

Relevant current provisions

Commencement date

Acts. 2004-04 See note below* 28.1.2004 English sources None cited

* Act. 2004-04 removed all references to the Republic of Ireland and the United Kingdom wherever they may appear.

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ARRANGEMENT OF SECTIONS. Sections. 1. Title. 2. Persons liable to be returned. 3. Designated Commonwealth countries and United Kingdom

dependencies. 4. Relevant offences. 5. General restrictions on return. 6. Proceedings for return. 7. Arrest for the purposes of committal. 8. Proceedings for committal. 9. Application for habeas corpus, etc. 10. Order for return to requesting country. 11. Discharge in case of delay in returning. 12. Evidence. 13. Custody. 14. Form of warrants and orders. 15. Restriction upon proceedings for other offences. 16. Restoration of persons not tried or acquitted. 17. Interpretation. 18. Power to revoke or vary orders. 19. Transitional provisions. Schedule. - DESCRIPTION OF RELEVANT OFFENCES IN DESIGNATED COMMONWEALTH COUNTRIES.

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AN ACT TO MAKE PROVISION FOR THE RETURN OF OFFENDERS TO CERTAIN COMMONWEALTH COUNTRIES, THE UNITED KINGDOM OVERSEAS TERRITORIES. Title. 1. This Act may be cited as the Fugitive Offenders Act 2002. Persons liable to be returned. 2. Subject to the provisions of this Act, a person found in Gibraltar who is accused of a relevant offence in any other country being–

(a) Revoked, (b) a Commonwealth country designated for the purposes of this

section under section 3(1), or (c) a United Kingdom dependency as defined by section 3(2),

or who is alleged to be unlawfully at large after conviction of such an offence in any such country, may be arrested and returned to that country as provided by this Act. Designated Commonwealth countries and United Kingdom dependencies. 3.(1) The Governor may, with the approval of the Secretary of State, by order designate for the purposes of section 2 any country for the time being mentioned in Schedule 3 to the British Nationality Act 1981 (countries whose citizens are Commonwealth citizens), or any other country within the Commonwealth; and any country so designated is in this Act referred to as a designated Commonwealth country. (2) In this Act the expression “United Kingdom dependency” means any overseas territory (not being an overseas territory for whose external relations a country other than the United Kingdom is responsible). (3) The Governor may, with the approval of the Secretary of State, by order direct that this Act shall have effect in relation to the return of persons to, or in relation to persons returned from, any designated Commonwealth country or any United Kingdom dependency subject to such exceptions, adaptations or modifications as may be specified in the order. (4) For the purposes of any order under subsection (1) of this section, any territory for the external relations of which a Commonwealth country is

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responsible may be treated as part of that country or, if the Government of that country so requests, as a separate country. Relevant offences. 4.(1) For the purposes of this Act an offence of which a person is accused or has been convicted in a designated Commonwealth country or a United Kingdom dependency is a relevant offence if–

(a) in the case of an offence against the law of a designated Commonwealth country, it is an offence which, however described in that law, falls within any of the descriptions set out in the Schedule to this Act, and is punishable under that law with imprisonment for a term of twelve months or any greater punishment;

(b) in the case of an offence against the law of a United Kingdom

dependency, it is punishable under that law, on conviction by or before a superior court, with imprisonment for a term of twelve months or any greater punishment; and

equivalent act or omission, would constitute an offence against the law of Gibraltar if it took place within Gibraltar or, in the case of an extra-territorial offence, in corresponding circumstances outside Gibraltar.

(2) In determining for the purposes of this section whether an offence against the law of a designated Commonwealth country falls within a description set out in the Schedule to this Act, any special intent or state of mind or special circumstances of aggravation which may be necessary to constitute that offence under the law shall be disregarded. (3) The descriptions set out in the Schedule to this Act include in each case offences of attempting or conspiring to commit, of assisting, counselling or procuring the commission of or being accessory before or after the fact to the offences therein described, and of impeding the apprehension or prosecution of persons guilty of those offences. (4) References in this section to the law of any country include references to the law of any part of that country.

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General restrictions on return. 5.(1) A person shall not be returned under this Act to a designated Commonwealth country, or committed to or kept in custody for the purposes of such return, if it appears to the Governor, to the court of committal or to the Supreme Court on an application for habeas corpus–

(a) that the offence of which that person is accused or was convicted is an offence of a political character;

(b) that the request for his return (although purporting to be made

on account of a relevant offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or

detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.

(2) A person accused of an offence shall not be returned under this Act to any country, or committed to or kept in custody for the purposes of such return, if it appears as aforesaid that if charged with that offence in Gibraltar he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction. (3) A person shall not be returned under this Act to any country, or committed to or kept in custody for the purposes of such return, unless provision is made by the law of that country, or by an arrangement made with that country, for securing that he will not, unless he has first been restored or had an opportunity of returning to Gibraltar, be dealt with in that country for or in respect of any offence committed before his return under this Act other than–

(a) the offence in respect of which his return under this Act is requested;

(b) any lesser offence proved by the facts proved before the court

of committal; or (c) any other offence being a relevant offence in respect of which

the Governor may consent to his being so dealt with. (4) Any such arrangement as is mentioned in subsection (3) may be an arrangement made for the particular case or an arrangement of a more general nature; and for the purposes of that subsection a certificate issued by or under the authority of the Governor confirming the existence of an arrangement with any country and stating its terms shall be conclusive evidence of the matters contained in the certificate.

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(5) The reference in this section to an offence of a political character does not include an offence against the life or person of the Head of the Commonwealth or any related offence described in section 4(3) of this Act. Proceedings for return. 6.(1) Subject to the provisions of this Act relating to provisional warrants, a person shall not be dealt with thereunder except in pursuance of an order of the Governor (in this Act referred to as an authority to proceed), issued in pursuance of a request made to the Governor by or on behalf of the Government, in the case a designated Commonwealth country, or the Governor in the case of a United Kingdom dependency, of the country in which the person to be returned is accused or was convicted. (2) There shall be furnished with any request made for the purposes of this section on behalf of any country–

(a) in the case of a person accused of an offence, a warrant for his arrest issued in that country;

(b) in the case of a person unlawfully at large after conviction of

an offence, a certificate of the conviction and sentence in that country, and a statement of the amount if any of that sentence which has been served,

together (in each case) with particulars of the person whose return is requested and of the facts upon which and the law under which he is accused or was convicted, and evidence sufficient to justify the issue of a warrant for his arrest under section 7 of this Act. (3) On receipt of such a request the Governor may issue an authority to proceed unless it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act. Arrest for the purposes of committal. 7.(1) A warrant for the arrest of a person accused of a relevant offence, or alleged to be unlawfully at large after conviction of such an offence, may be issued–

(a) on the receipt of an authority to proceed, by a magistrate in

Gibraltar; (b) without such an authority, by a magistrate in Gibraltar, upon

information that the said person is or is believed to be in or on his way to Gibraltar;

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and any warrant issued by virtue of paragraph (b) above is in this Act referred to as a provisional warrant. (2) A warrant of arrest under this section may be issued upon such evidence as would, in the opinion of the magistrate, authorise the issue of a warrant for the arrest of a person accused of committing a corresponding offence or, as the case may be, of a person alleged to be unlawfully at large after conviction of an offence, within the jurisdiction of the magistrate. (3) Where a provisional warrant is issued under this section, the authority by whom it is issued shall forthwith give notice to the Governor, and transmit to him the information and evidence, or certified copies of the information and evidence, upon which it was issued; and the Governor may in any case, and shall if he decides not to issue an authority to proceed in respect of the person to whom the warrant relates, by order cancel the warrant and, if that person has been arrested thereunder, discharge him from custody. (4) A warrant of arrest issued under this section may be executed in any part of Gibraltar and may be executed by any person to whom it is directed or by any member of the Royal Gibraltar Police. (5) Where a warrant is issued under this section for the arrest of a person accused of an offence of stealing or receiving stolen property or any other offence in respect of property, a magistrate or justice of the peace shall have the like power to issue a warrant to search for the property as if the offence had been committed within the jurisdiction of the magistrate or justice. Proceedings for committal. 8.(1) A person arrested in pursuance of a warrant under section 7 shall (unless previously discharged under subsection (3) of that section) be brought as soon as practicable before a court (in this Act referred to as the court of committal) consisting of a magistrate. (2) For the purposes of proceedings under this section a court of committal consisting of a magistrate shall have the like jurisdiction and powers, as nearly as may be, including power to remand in custody or on bail, as a magistrates' court holding a preliminary inquiry on a charge of an indictable offence. (3) Where the person arrested is in custody by virtue of a provisional warrant and no authority to proceed has been received in respect of him, the court of committal may fix a reasonable period (of which the court shall give notice to the Governor) after which he will be discharged from custody unless such an authority has been received.

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(4) Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence to which the authority relates is a relevant offence and is further satisfied –

(a) where that person is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the court;

(b) where that person is alleged to be unlawfully at large after

conviction of the offence, that he has been so convicted and appears to be so at large,

the court shall, unless his committal is prohibited by any other provision of this Act, commit him to custody to await his return thereunder; but if the court is not so satisfied or if the committal of that person is so prohibited, the court shall discharge him from custody. Application for habeas corpus, etc. 9.(1) Where a person is committed to custody under section 8 of, the court shall inform him in ordinary language of his right to make an application for habeas corpus, and shall forthwith give notice of the committal to the Governor. (2) A person committed to custody under the said section 8 shall not be returned under this Act–

(a) in any case, until the expiration of the period of fifteen days beginning with the day on which the order for his committal is made;

(b) if an application for habeas corpus is made in his case, so long

as proceedings on that application are pending. (3) On any such application the Supreme Court may, without prejudice to any other jurisdiction of the court, order the person committed to be discharged from custody if it appears to the court that–

(a) by reason of the trivial nature of the offence of which he is accused or was convicted; or

(b) by reason of the passage of time since he is alleged to have

committed it or to have become unlawfully at large, as the case may be; or

the interests of justice,

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it would, having regard to all the circumstances, be unjust or oppressive to return him. (4) On any such application the Supreme Court may receive additional evidence relevant to the exercise of their jurisdiction under section 5 or under subsection (3) of this section. (5) For the purposes of this section proceedings on an application for habeas corpus shall be treated as pending until any appeal in those proceedings to the Court of Appeal is disposed of; and an appeal shall be treated as disposed of at the expiration of the time within which the appeal may be brought or, where leave to appeal is required, within which the application for leave may be made, if the appeal is not brought or the application made within that time. Order for return to requesting country. 10.(1) Where a person is committed to await his return and is not discharged by order of the Supreme Court, the Governor may by warrant order him to be returned to the country by which the request for his return was made unless the return of that person is prohibited, or prohibited for the time being, by section 5 or this section, or the Governor decides under this section to make no such order in his case. (2) An order shall not be made under this section in the case of a person who is serving a sentence of imprisonment or detention, or is charged with an offence in Gibraltar–

(a) in the case of a person serving such a sentence, until the sentence has been served;

(b) in the case of a person charged with an offence, until the

charge is disposed of or withdrawn and, if it results in a sentence of imprisonment (not being a suspended sentence), until the sentence has been served.

(3) The Governor shall not make an order under this section in the case of any person if it appears to the Governor, on the grounds mentioned in section 9(3) of this Act, that it would be unjust or oppressive to return that person, and may decide to make no order under this section in the case of a person accused or convicted of an offence in a United Kingdom dependency if he considers, on any such grounds as are mentioned in paragraphs (a) to (c) of section 5(1), that the order ought not to be made. (4) The Governor may decide to make no order under this section in the case of a person accused or convicted of a relevant offence not punishable with death in Gibraltar if that person could be or has been sentenced to

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death for that offence in the country by which the request for his return is made. (5) The Governor may decide to make no order under this section for the return of a person committed in consequence of a request made on behalf of any country if another request for his return under this Act, or a requisition for his surrender under the Extradition Act 1870 as it applies to Gibraltar, has been made on behalf of another country and it appears to the Governor, having regard to all the circumstances of the case and in particular–

(a) the relative seriousness of the offences in question; (b) the date on which each such request or requisition was made;

and (c) the nationality or citizenship of the person concerned and his

ordinary residence, preference should be given to the other request or requisition. (6) Notice of the issue of a warrant under this section shall forthwith be given to the person to be returned thereunder. Discharge in case of delay in returning. 11.(1) If any person committed to await his return is in custody in Gibraltar under this Act after the expiration of the following period, that is to say–

(a) in any case, the period of two months beginning with the first day on which, having regard to section 9(2), he could have been returned;

(b) where a warrant for his return has been issued under section

10, the period of one month beginning with the day on which that warrant was issued,

he may apply to the Supreme Court for his discharge. (2) If upon any such application the court is satisfied that reasonable notice of the proposed application has been given to the Governor, the court may, unless sufficient cause is shown to the contrary, by order direct the applicant to be discharged from custody and, if a warrant for his return has been issued under the said section 10, quash that warrant. Evidence. 12.(1) In any proceedings under this Act, including proceedings on an application for habeas corpus in respect of a person in custody thereunder–

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(a) a document, duly authenticated, which purports to set out evidence given on oath in a designated Commonwealth country or a United Kingdom dependency (other than Gibraltar) shall be admissible as evidence of the matters stated therein;

(b) a document, duly authenticated, which purports to have been

received in evidence, or to be a copy of a document so received, in any proceeding in any such country or dependency shall be admissible in evidence;

was convicted on a date specified in the document of an offence against the law of, or of a part of, any such country or dependency shall be admissible as evidence of the fact and date of the conviction.

(2) A document shall be deemed to be duly authenticated for the purposes of this section–

(a) in the case of a document purporting to set out evidence given as aforesaid, if the document purports to be certified by a judge or magistrate or officer in or of the country or dependency in question to be the original document containing or recording that evidence or a true copy of such a document;

(b) in the case of a document which purports to have been received

in evidence as aforesaid or to be a copy of a document so received, if the document purports to be certified as aforesaid to have been, or to be a true copy of a document which has been, so received;

convicted as aforesaid, if the document purports to be certified as aforesaid,

and in any such case the document is authenticated either by the oath of a witness or by the official seal of the Secretary of State or of a Minister of the designated Commonwealth country or of the Governor or a Minister, secretary or other officer administering a department of the Government of the dependency, as the case may be. (3) In this section “oath” includes affirmation or declaration; and nothing in this section shall prejudice the admission in evidence of any document which is admissible in evidence apart from this section. Custody.

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13.(1) Any person remanded or committed to custody under section 8 shall be committed to the like institution as a person charged with an offence before the court of committal. (2) If any person who is in custody by virtue of a warrant under this Act escapes out of custody, he may be retaken in like manner as a person escaping from custody under a warrant for his arrest issued in respect of an offence committed in Gibraltar. (3) Where a person, being in custody in any part of Gibraltar whether under this Act or otherwise, is required to be removed in custody under this Act to another part of Gibraltar and is so removed by sea or by air, he shall be deemed to continue in legal custody until he reaches the place to which he is required to be removed. (4) A warrant under section 10 for the return of any person to any country shall be sufficient authority for all persons to whom it is directed and all members of the Royal Gibraltar Police to receive that person, keep him in custody and convey him into the jurisdiction of that country. Form of warrants and orders. 14.(1) Any warrant or order to be issued or made by the Governor under any of the foregoing provisions of this Act shall be given under the hand of the Governor. (2) The Governor may by order prescribe the form of any warrant or order to be issued or made under the foregoing provisions of this Act. Restriction upon proceedings for other offences. 15.(1) This section applies to any person accused or convicted of an offence under the law of Gibraltar who is returned to Gibraltar–

(a) from the United Kingdom, under the Extradition Act 1989;

(b) from any designated Commonwealth country under any law of that country corresponding with this Act;

Act 1989 as extended thereto or under any corresponding law of that dependency.

(2) A person to which this section applies shall not, during the period described in subsection (3), be dealt with in Gibraltar for or in respect of any offence committed before he was returned to Gibraltar other than–

(a) the offence in respect of which he was returned;

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(b) any lesser offence proved by the facts proved for the purposes of securing his return; or

country or Governor of the dependency from which he was returned may consent to his being dealt with.

(3) The period referred to in subsection (2) in relation to a person to whom this section applies is the period beginning with the day of his arrival in Gibraltar on his return as mentioned in subsection (1) and ending forty-five days after the first subsequent day on which he has the opportunity to leave Gibraltar. Restoration of persons not tried or acquitted. 16.(1) This section applies to any person accused of an offence under the law of Gibraltar who is returned to Gibraltar as mentioned in section 15(1). (2) If in the case of a person to whom this section applies, either–

(a) proceedings against him for the offence for which he was returned are not begun within the period of six months beginning with the day of his arrival in Gibraltar on being returned; or

(b) on his trial for that offence, he is acquitted or discharged

absolutely or conditionally, the Governor may, if he thinks fit, on the request of that person, arrange for him to be sent back free of charge and with as little delay as possible to the country from which he was returned. Interpretation. 17.(1) In this Act the following expressions have the meanings hereby assigned to them, that is to say–

“application for habeas corpus” means an application for a writ of habeas corpus ad subjiciendum;

“country” includes any territory; “dealt with” means tried or returned or surrendered to any country or

detained with a view to trial or with a view to such return or surrender;

“designated Commonwealth country” and “United Kingdom

dependency” have the meanings assigned by section 3;

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“Governor” , in relation to Gibraltar, means the Governor of Gibraltar and includes any person or persons lawfully administering the government of Gibraltar;

“Governor” , in relation to any country other than Gibraltar, means the

person or persons administering the government of that country; “imprisonment” includes detention of any description; “race” includes tribe;

(2) For the purposes of this Act a person convicted of an offence in his absence shall be treated as a person accused of that offence. Power to revoke or vary orders. 18. Any power to make an order under this Act includes power to revoke or vary such an order by a subsequent order. Transitional provisions. 19. This Act applies to offences committed before as well as after its coming into force.

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SCHEDULE Section 4

DESCRIPTION OF RELEVANT OFFENCES IN DESIGNATED

COMMONWEALTH COUNTRIES

1. Murder of any degree. 2. Manslaughter or culpable homicide. 3. An offence against the law relating to abortion. 4. Maliciously or wilfully wounding or inflicting grievous bodily harm. 5. Assault occasioning actual bodily harm. 6. Rape. 7. Unlawful sexual intercourse with a female. 8. Indecent assault. 9. Procuring, or trafficking in, women or young persons for immoral purposes. 10. Bigamy. 11. Kidnapping, abduction or false imprisonment, or dealing in slaves. 12. Stealing, abandoning, exposing or unlawfully detaining a child. 13. Bribery. 14. Perjury or subornation of perjury or conspiring to defeat the course of justice. 15. Arson or fire-raising. 16. An offence concerning counterfeit currency. 17. An offence against the law relating to forgery. 18. Stealing, embezzlement, fraudulent conversion, fraudulent false accounting, obtaining property or credit by false pretences, receiving stolen property or any other offence in respect of property involving fraud. 19. Burglary, housebreaking or any similar offence.

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20. Robbery. 21. Blackmail or extortion by means of threats or by abuse of authority. 22. An offence against bankruptcy law or company law. 23. Malicious or wilful damage to property. 24. Acts done with the intention of endangering vehicles, vessels or aircraft. 25. An offence against the law relating to dangerous drugs or narcotics. 26. Piracy. 27. Revolt against the authority of the master of a ship or the commander of an aircraft. 28. Contravention of import or export prohibitions relating to precious stones, gold and other precious metals.