PUBLIC RECORD OFFICE
CO.
Reference :-
885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
12 PUBLIC RECORD OFFICE, LONDON
10. Sir Henry was to annex, for our information, copies of the reports of Sir Thomas Henry and of the Law Officers of July last.
In obedience to your Lordship's commands we have taken the matter into our con- sideration and have the honour to
Report
That we entirely concur in the views taken by your Lordship of the nature of the objections to the Colonial Act suggested by the Law Officers in their Report of the
28th of March.
We think that the principal objection to such Act is in respect of the power reserved by its first section to the Parliament of Canada to make subsequent modifications in the Act, and that it is further objectionable in respect of the power given to the Governor of directing to (which of) all subsequent Extradition Treaties it shall apply.
We think that these objections may be removed by making the following amend- ments in the Bill; viz.,-
Amend the preamble by striking out from "but" at the commencement of line 14 on page 2 to the word "and" in line 18, both inclusive, and by inserting in lieu thereof the following :—
"And whereas arrangements having reference to the surrender of fugitive criminals have been made by Her Majesty with the several Foreign States mentioned in the second schedule to this Act, and the short particulars of the Treaties or Conventions by which such arrangements have been made are also set forth in the said schedule, and other like arrangements may have been or may hereafter be made by Her Majesty:
And whereas ".
Amend clause 1 by omitting all the words following the word "it" in line 5 to the end of the clause.
Amend clause 2 by omitting the whole of the clause, with the exception of the proviso commencing with the word "Provided in line 13, page 3, and by inserting
in lieu thereof the following:-
"This Act shall apply to the several Treaties or Conventions mentioned in the second schedule horeto, and to every other Treaty or Convention having reference to the surrender of fugitive criminals, which has been or shall be hereafter made by Her Majesty with any Foreign State (except only the Treaty with the United States of America referred to in the Canadian Act cited in the preamble of this Act) from the time or respective times when Her Majesty shall, by Order in Council, have suspended the operation of the said Imperial Act within the Dominion of Canada, so far as it relates to the Foreign States with which such Treaties or Conventions have respectively been made.'
"
Whether these amendments can be best effected by repealing the existing Act in toto, or in part only, is a question which can best be resolved by the Law Officers in the Colony. In either case we think that as further legislation will be necessary, it will he desirable to take advantage of it to repeal the ninth clause as recommended by Sir Thomas Henry in his letter of the 18th July 1873,
The Right Hon. the Earl of Carnarvon,
&c.
&c.
&c.
(Signed)
We have, &c.,
RICHARD BAGGALLAY. JOHN HOLKER.
#
5878.
No. 22.
(MALTA.)
LAW OFFICERS to FOREIGN OFFICE.
MY LORD,
We are honoured with your Lordship's commands, signified in Lord Tenterden's
Temple, 15th May 1874. letter of the 27th ultimo, stating that he was directed by your Lordship to transmit to us a correspondence on the subject of an application made by the Italian Consul at Malta, in September last, for the extradition of an Italian subject named Mendotia, accused of having committed homicide in the year 1864.
That upon that application the accused had been apprehended and brought before the magistrate at Malta, when it appeared in evidence that, at the original proceedings against him, he had been admitted to bail, and that in June 1867 his trial took place, when, not putting in an appearance, he was sentenced "in contumacia" to a term of imprisonment.
That the object of the application for extradition was, as we would perceive, to make the accused undergo the sentence passed upon him, but contained no provision for a trial. That the Italian Code, it must be observed, for the trial de novo" of any in contumacia" for serious crimes entailing heavy sentences upon
person sentenced the voluntary surrender or arrest of such person, and in case of a slighter offence and sentence, the accused might claim the same privilege, on observing certain formalities, which, in the case under consideration, the accused had neglected, and the execution of the sentence had accordingly pronounced "in contumacia."
That the Extradition Ordinance between Malta and Italy of 1863, providing only for the surrender of criminals with a view to their trial on British or Italian territory (Arts. 3, 5, and 11 of Ordinance), the magistrate released the accused, not feeling justified in surrendering him ;-a course which was approved by the Crown Advocate of Malta, who represented that, as he proposed to submit some amendments in the Ordinance in the next Session of Council, he would be glad to know whether any alteration was considered advisable in regard to the principle which had thus come under discussion; and the Secretary of State for the Colonies having inquired what was Lord Granville's opinion as to whether the Ordinance should be amended so as to include cases such as the one above referred, to, his Lordship was informed, in the letter of the 15th November last, therewith sent, of the reasons why, in Lord Granville's opinion, such a concession should not be made.
That the Italian Minister at that Court, having besides entered a protest against the principle which had been applied by the magistrate of Malta to that case, the Colonial Office had obtained from the Crown Advocate of Malta a full report on the matter, accompanied by a reply to the arguments used by the Italian Government. and in which he expressed the opinion that the magistrate was completely justified in ordering the release of the Italian from custody.
That other points had, as we would perceive, been raised in that correspondence. including the question of the extradition of a prisoner for the act of escaping from his prison; but that, after discussing this and other points, the Crown Advocate limited himself to the suggestion, in regard to any alteration of the Ordinance of 1863, that to avoid any difficulty it would be well to amend the Ordinance in such a manner as to authorise the Government to surrender to the Italian Government any person sentenced in Italy after a trial "in contradictorio" (that is to say, at which the accused has been present) for an extradition offence, adopting for that purpose, as near as possible, the words of the Imperial Extradition Act of 1870.
That the Colonial Office having asked for the opinion of that Department as to whether the Ordinance should be amended in the manner suggested by the Crown Advocate, Lord Tenterden was to request that we would take that case into our consideration, and favour your Lordship with our views upon that subject, and as to the construction with which the Crown Advocate should be funished thereupon.
In obedience to your Lordship's commands we have the honour to
Report
That the Extradition Ordinance (that of 1863) at present in force in Malta applies only to the surrender of persons charged with the commission of certain specified offences
▲ 12916.-99. 25.-12/84.