CIRCUMSTANCES PRECLUDING RETURN (Clause 9)
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Clause 9 deals with a variety of circumstances precluding return. Sub-clause (1) relates to political offences, as defined and described in a number of judicial decisions under the Extradition Act, 1870 as well as under the Commonwealth Scheme. Sub-clause (2) relates to the expanded concept of political offences, extending to prejudice on account of race, religion, nationality or political opinions, which has been borrowed from the European Convention on Extradition, 1957. Sub-clause (3) relates to special grounds for relief where it would be unjust, oppressive or too severe a punishment to surrender, either at all or until the expiry of a certain period. This sub-clause will be considered further below. Sub-clause (4) incorporates the rule of double jeopardy. Sub-clause (5) ensures that the grounds under the clause for relief will be considered only by the higher courts or by executive authority. Sub-clause (6) provides that executive determination as to the political nature of an offence is binding on the judicial authorities only where it is favourable to the fugitive and not otherwise.
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Sub-clause (3) has a troubled history. Its ancestor is Section 10 of the Fugitive Offenders Act, 1881 which provided that
"Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the appli- cation for the return of the fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities for communi- cation, and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period, such court may discharge the fugitive, either absolutely or on bail, or order that he shall not be returned until after the expira- tion of the period named in the order, or may make such other order in the premises as to the court seems just".
For some time it was uncertain whether a wide or а narrow view should be taken of the section. The difficulty of interpre- tation lay in the position of the comma after the word "otherwise". Was the section limited to the specified grounds together with a ground "otherwise not in good faith", or should the word "otherwise" be read with the following words So as to give courts the power to consider whether for any other reason it would be unjust etc. to surrender the fugitive? The latter (so-called wide) view ultimately prevailed: Ex p. Naranjan Singh (1961) 2 W.L.R. 980; Re Gorman (1963) N.Z.L.R. 17:
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