HABLAS CORPUS (CLAUSE 8)
36. The Scheme requires that provision be made for review by an application, by or on behalf of a fugitive offender, for a writ of Habeas Corpus or other like process.
37. Professor Shearer reviews the workings of this provision and considers the possibility of providing for a corresponding right of appeal by the requesting Government against discharge by the committing Magistrate. He recommends that provision be added to the Scheme providing for review on questions of law and on the weight of the evidence.
UK POSITION
On an
38. Effect to clause 8 is given by Section 8 (1) of the 1967 Act. application, the High Court may also consider other grounds (eg triviality)
precluding for 1 return. The issue is considered in chapter 9 of the Working Party Report and in paragraphs 9.14-20 specific consideration is given to the right of the requesting State to appeal against refusal to commit. The Working Party thought that, as a matter of principle, the requesting State should have a right of appeal against the refusal of the Magistrate to commit a fugitive for surrender and having examined 3 possible forms which the requesting State's right of challenge might take use of prerogative orders, a statutory right of appeal on a point of law, and the case stated procedure; concluded that the case stated procedure would be best suited since it would enable the points of law at issue to be set out clearly for the consideration of the Court.
39. It appears following the application of the Singapore Government in the case of Slater for leave to apply for orders of Certiorari and Mandamus that there may be means for a requesting State to challenge a
In that case the Divisional Court chose not to Magistrate's decisions. decide whether these orders were available for such a purpose but assumed
The Government of Denmark for the purposes of argument, that they were.
in the case of Nielsen on the advice of DPP are at present seeking a declaration of law under Order 53 of the Rules of the Supreme Court.
LINE TO TAKE
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40. It remains a matter of uncertainty whether there is a means to
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