CONFIDENTIAL
105371
MDLIAN 6521
CONFIDENTIAL
FM HONG KONG
TO PRIORITY FCO
TELNO 482
OF 13113OZ FEBRUARY 89
+
"MKD 384 13 38413
нно
INFO ROUTINE PEKING, UKREP JLG HONG KONG
TOP COPY Q DIST ?
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EXTRADITION: MY FOURTH IPT: RETURN OF FUGITIVE OFFENDERS: COMMENTARY ON DRAFT PAPER
(A) TIMING OF NOTIFICATION AND INSTRUCTIONS
A QUESTION OF TIMING ARISES IN RELATION TO THE RIGHT TO INSTRUCT
AND IN RELATION TO ROUTINE NOTIFICATION. THE CHINESE SIDE HAVE
ALWAYS TALKED OF A RIGHT TO INSTRUCT ONLY IN RELATION TO THE FINAL
DECISION WHETHER OR NOT TO SURRENDER A FUGITIVE OFFENDER. IT IS
POSSIBLE, HOWEVER, THAT THEY MAY SEEK A RIGHT TO INSTRUCT THE CE AT AN EARLIER STAGE, NAMELY, WHEN THE CE HAS TO DECIDE WHETHER OR NOT TO ISSUE A WARRANT FOR THE APPREHENSION OF THE OFFENDER (SEE
SECTION 7 OF THE 1870 ACT) OR AN ORDER SIGNIFYING THAT A REQUIS-
ITION HAS BEEN MADE (SECTION 8 OF THE 1870 ACT).
2.
THE QUESTION OF WHETHER, AND IF SO TO WHAT EXTENT, THE GOVERNOR NOW HAS A DISCRETION AT THESE EARLIER STAGES IS COMPLEX. WERE THE CHINESE SIDE TO CHANGE THEIR STANCE AND ARGUE FOR A RIGHT TO INSTRUCT AT THE EARLIER STAGES, THEY MIGHT ARGUE THAT, REGARDLESS OF THE TRUE POSITION AS TO THE EXTENT OF THIS DISCRETION, THEY SHOULD BE PERMITTED TO INTERVENE AT ANY STAGE TO PROTECT THEIR INTEREST, EVEN IF THE CONSEQUENCY OF OBEYING THEIR INSTRUCTIONS WOULD RESULT IN A BREACH OF TREATY OBLIGATION. SUCH AN ARGUMENT SHOULD BE RESISTED, SINCE:
(A) WE WISH TO LIMIT THE RIGHT TO INSTRUCT AS MUCH AS POSSIBLE:
AND
(B)
A RIGHT TO INSTRUCT AT THE EARLIER STAGES WOULD NOT BE
SUBJECT TO THE SAME POLITICAL CONSTRAINTS AS A RIGHT TO INSTRUCT AFTER PUBLIC COURT PROCEEDINGS LEADING TO THE COMMITTAL OF THE OFFENDER.
3. THE DRAFT PAPER SUGGESTS THAT THE ROUTINE NOTIFICATION OF CASES
SHOULD OCCUR ONLY AFTER A COURT HAS COMMITTED AN OFFENDER PENDING A DECISION WHETHER OR NOT TO SURRENDER HIM. THE CHINESE SIDE MAY
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