DISCRETION AS TO DEATH PENALTY (ANNEX 2, SUPPLEMENTARY PROVISION 1)
65. The Scheme allows a discretion on the surrender of an offender if he is likely to suffer the death penalty for the offence for which his return is requested. Professor Shearer finds this restrictive since it proposes a discretion either to return or refuse to return an offender likely to suffer the death penalty if convicted. He recommends current treaty practice of allowing the surrender conditional upon an assurance by the requesting State that the death penalty will not be imposed, or if imposed, will be commuted to a sentence of imprisonment.
UK POSITION
66. Affect was given to this provision by Section 9(4) of the 1967 Act which gives the Secretary of State a discretion to refuse surrender if the person could be or has been sentenced to death. This is comparable to the provision contained in a number of our extradition treaties. The Secretary of State has not exercised this discretion and it does not appear to have been a factor in any case under the Act. The discretion would be exercised in the light of all the circumstances of the case, including a likelihood of enforcement of the death penalty in the particular case and where relevant the offender's nationality and background.
LINE TO TAKE
67. The proposed amendment would be acceptable and there would be no objection to this provision being included in the body of the Scheme.
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