CIRCUMSTANCES PRECLUDING RETURN (CLAUSE 9)
41.
Clause 8 sets out the grounds on which return will be precluded. Professor Shearer reviews the operation of this provision and in particula cluase 9 (3) which provides that return will be precluded if the competent
judicial or executive authority is satisfied that by reasons of (a) triviality, (b) good faith or interests of justice, or (c) panego ot) time, it would, having regard to all the circumstances under which the
offence was committed, be unjust or oppressive or too severe a punishment
to return the fugitive. He concentrates in particular on the equivalent provision at Section 8 (3) of the 1967 Act and in particular the cases of
Narang and Kakis.
42.
Professor Shearer considers whether clause 8 (3) should be extended
to allow the health of the fugitive to be a separate specific ground but
recommends that an additional ground of 'any other reason', which would
remain governed by unjust, oppressive or too great a punishment' should
be provided.
UK POSITION
43. The circumstances provided for in clause 9 are embodied in Section
(1) of the 1967 Act (General Restrictions on Return) and at Section 8 (3)
which provides additional grounds on which the High Court may order
discharge. Under Section 9 (3) the Secretary of State is required to
consider the restrictions set out in Section 4 (1) and 8 (3) before maki
an order.
4146. The workings of these provisions are considered by the Working Par at Chapters 3.24 (trivial offences), 6 (Political Offenders) and 7. (Additional Safeguards). The Working Party gave particular considerati to humanitarian considerations (paragraph 7.16), for example the
possibility of refusing extradition on the grounds of age, health, or
other personal circumstances, but concluded that there was no need for
specific provision as these were customarily a matter for consideration
context of the Secretary of State's over riding discretion to discharge fugitive.
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