TNAG-0408-FCO40-454-Allegations-of-bribery-and-corruption-in-the-Hong-Kong-polic-1973 — Page 5

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(ii) The rule is also associated with the requirement to establish a prima facie case in the courts of the requested State. Without it, magistrates might be in difficulty in operating the prima facie case requirement on the basis of "foreign" law which has no counterpart in ours.

(iii) Breaching the rule might have awkward consequences in the

wider context of our relations with other Commonwealth, or indeed foreign, countries. If we showed ourselves willing to waive, for one country, a fundamental part of our approach to extradition we might open ourselves to all sorts of pressures to bend the rules in respect of other countries. This is a matter on which your colleagues elsewhere in the Foreign and Commonwealth Office might have views.

(iv) The course you propose would be seen as containing an element

of retrospection which would surely lay the government open to substantial criticism. Moreover, as you recognise in the penultimate paragraph of your letter, it would be of doubtful practical value because it would give r Godber ample notice that he would be well-advised to leave the country. (Even if his passport is impounded, what is to stop him going to Ireland?)

(v) Even if an amendment of the law enabled the Hong Kong

authorities to start extradition proceedings for Mr Godber's return, it would still rest with a U.K. magistrate to decide whether the evidence was sufficient to justify ordering his surrender. So, even if Mr Godber was compliant enough to remain here, legislation which would probably cause a great deal of fuss might not, at the end of the day, achieve anything.

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As to the history of the arrangements within the Commonwealth and of the provisions of the Fugitive Offenders Act 1967, our records show that our two Departments gave a lot of thought in 1966 to the question whether to keep on the 1881 Act provisions in respect of U.K. dependencies and if not, whether the double criminality rule should operate at the discretion of the Home Secretary (or the Governor as the case may be). Eventually it was decided at a meeting on 28 November 1966 (attended by Rushford and Jerrom of FCO) that the rule should be absolute in its operation vis a vis dependencies as in its application to independent Commonwealth countries. It could not therefore be claimed that the present situation was overlooked or somehow not contemplated when the present law was drawn up. You will appreciate that the definition of a relevant returnable offence under the Fugitive Offenders Act is already wider for a dependency than for an independent territory because it is not limited by the list of scheduled crimes section 3(1)(b) applies.

Finally, there is the question of how any attempt by Mr Godber to leave the country is to be handled. Following a request by your department, instructions were given to immigration officers on 31 July that should he present himself for embarkation from the United Kingdom (or on arrival) his passport was to be impounded by the immigration officer on behalf of the Chief Fassport Officer and he was to be advised that he was free to continue his journey but that the airline or shipping company might be unwilling to carry him without a passport. He would also be warned that the country to which he was travelling might be unwilling to admit him. This instruction is at present being treated as a

but I share your permanent one unless your Department withdraws its request: misgivings about it and I imagine that you will want to consider whether it can defensibly be maintained if the Hong Kong authorities are not soon able to find. evidence of an offence which is extraditable under existing law.

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