The Hon. Mr. Justice Odoki (Uganda) supported the suggestion and felt that governments should be free to choose by what method a right of appeal be pursued by a requesting state.
Mr. I.C. Jain (India) and the Hon. J. K. Kamere, MP (Kenya) re-emphasised their misgivings about the use of the expression "requesting state".
Dr. Shearer explained that as the recommendation would require legislation by member covernments, it would be for each member Government to ensure that the drafting style conformed with other parts of its extradition legislation. He felt that the intention behind this suggestion was quite clear the way it stood. He had sympathy with the point raised by New Zealand and Malaysia and he felt that acceptance of it by the Meeting might well be the mark of the consensus it had achieved. As the UK discussion paper made plain, there were grounds for considerable reservation about giving a requesting state a right of appeal on matters of fact. He could understand that some countries might find this more of a problem than others. It seemed to him unlikely that delegates would reach a consensus in favour of both grounds of appeal, and the matter might best be resolved by omitting the words to which New Zealand had referred, thus leaving it open for each country to decide how far it was able to go.
Mr. P. McDonald (Australia) said that Australia supported the stand taken by New Zealand.
or
The Chairman noted that 17 countries had spoken on the item and that near unanimous support had been forthcoming for the proposal, the only difference in support being that that of the degree to which this review can take place. He suggested that the meeting had reached a consensus that the requesting state should be allowed a method of appeal from the decision of the magistrate to hear the case at first instance. Whether the review should be limited to matters of law, whether it should include both law and fact should really be left to the individual Government to determine in the hope that those who would allow the appeal procedure to be limited to those based on law might be persuaded by the number of countries that allowed an appeal on both law and fact, to do likewise.
Mr. P. Robinson (Jamaica) affirmed that Jamaica will not wish to stand in the way of any consensus and asked that their own reservations for the time being be noted.
Tuesday, 23 November 1982
AGENDA ITEM 9(e)
CIRCUMSTANCES PRECLUDING RETURN
[Note: the Meeting had before it the following suggested amended Clause 9(3):-
19.
(3) The return of a fugitive offender, or his return before the expiry of a specified period, will be precluded by law if the competent judicial or executive authority is satisfied that by reason of
(a) the trivial nature of the case, or
(b) the accusation against the fugitive not having been in good faith or in
the interests of justice, or
(c)
the passage of time since the commission of the offence, or
(d)
any other facts of which there is evidence,
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, or, as the case may be, to return him before the expiry of a period specified by that authority".]
The Chairman noted that Dr. Shearer's consultative document, at paragraph 31, set out the background to the present clause 9 of the 1966 Scheme. It appeared from the considerable case law from various Commonwealth countries concerning the grounds for precluding return under both pre-1966 and post-1966 legislation,
37