CONFIDENTIAL
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MDLIAN 6471
PRECLUDE THE COURT FROM INTERFEREING, A COURT COULD INTEREFERE IF A CASE WERE NOT CAPABLE OF CALLING WITHIN THE TWO AREAS.
14.
15.
IT WOULD FOLLOW FROM THESE THOUGHTS THAT:
(1)
(2)
LEGISLATION WOULD PROVIDE THAT (A) A DECISION BY THE CE SHALL NOT BE INVALID SOLELY ON GROUNDS THAT CE HAS ACTED ON INSTRUCTIONS IN A CASE INVOLVING THE TWO AREAS: AND (B) A CERTIFICATE GIVEN BY THE CE THAT A CASE FELL WITHIN THE TWO AREAS SHALL BE CONCLUSIVE EVIDENCE OF THAT
FACT.
PROCEDURES WOULD BE DEALT WITH ADMINISTRATIVELY.
APART FROM CONFIRMING (1) (A) ABOVE, WE DO NOT THINK THAT AT THESE COMING TALKS OR IN THE PAPER WE SHOULD BROACH THIS APPROACH. THAT SHOULD RATHER AWAIT THE NEGOTIATION OF AGREEMENTS AND THE DRAFTING OF LEGISLATION.
16. INCIDENTALLY, WE SHOULD ALL THE WHILE REMEMBER THAT THOSE PARTS OF THE LEGISLATION DEALING WITH CPG INVOLVEMENT COULD NOT BE BROUGHT INTO EFFECT UNTIL AFTER 1997.
THE CRIMINAL JUSTICE ACT 1988
17.
WE HAVE STUDIED THE EXTRADITION PART OF THE CJA. SOME OF ITS PROVISIONS APPEAL, AND WE WILL IN DUE COURSE HAVE TO CONSIDER WHICH WE WISH TO IMPORT TO LEGISLATION. OUR PRELININARY VIEW IS THAT:
(A) THE RIGHT TO JUDICIAL REVIEW OF THE FINAL DECISION AND
TO MAKE REPRESENTATIONS TO THE CE SHOULD BE EXPRESSLY RECOGNISED IN THE LEGISLATION, WHICH SHOULD FURTHER PROVIDE THAT NO ORDER FOR SURRENDER WILL BE MADE UNTIL ALL SUCH RIGHTS ARE EXHAUSTED:
(B)
WE THINK WE SHOULD WAIT AND SEE WHAT TRANSPIRES IN BILAT- ERAL NEGOTIATIONS BEFORE WE KNOW WHETHER OUR LEGISLATION SHOULD FOLLOW THE CJA AS TO EXTRATERRITORIAL LEGISLATION AND ONLY THEN RAISE IT WITH THE CHINESE, IF NECESARY. HOWEVER, TESTS SUCH AS THOSE LAID DOWN BY SECTION 1(7) OF THE ACT COULD HAVE UNFORTUNATE RAMIFICATIONS FOR RENDITION WITH THE MAINLAND: AND
(C) THERE SHOULD BE EXPRESS PROVISION FOR APPEALS BY REQUESTING
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