33. in
Clause 9 (3) of the 1966 Scheme is clearly narrower scope than section 10 of the 1881 Act, despite the addition of passage of time as a specified ground for relief. The general clause (interpreted as above) allowing discharge or postponement where for any other reason surrender would unjust, oppressive or too severe a punishment has been removed; its removal is only partly counterbalanced by the provisions relating to political offences and prejudice on account of race, religion, nationality or political opinions, which were not part of the 1881 Act.
34.
Some disquiet has been expressed in academic circles concerning the difficulties in interpreting Clause 9 (3), or rather its equivalent in the 1967 U.K. Fugitive Offenders Act. The leading case is Union of India v. Narang (1978) A.C. 247 where the House of Lords held that, in deciding whether it would be unjust or oppressive to return a fugitive, only circumstances relevant to the ground or grounds set out in the subsection on which the application for release was based were to be taken into account. The fact that detention orders under India's state of emergency regulations had been made against the fugitive during the passage of time was not relevant, since those orders had not been brought about by the passage of time, or arisen from it, and were not a circumstance relevant to it. Shortly afterwards another case relating to the same subsection came before the House of Lords. In Kakis v. Government of
Cyprus (1978) I W.L.R. 779 the fugitive argued for release on the basis that a witness vital to his defence had left Cyprus during the passage of time since the fugitive's flight to England, and would no longer be a compellable witness at the trial. The House of Lords accepted the argument. Lords Russell of Killowen and Scarman said that the circumstances that can be taken into account under Clause 9 (3) (c) are not restricted to circumstances from which the passage of time resulted but include circumstances taking place during the passage of time which may give to the particular passage of time a quality or significance leading to a conclusion that the return of the fugitive would be unjust or oppressive. A case- note by Gray in 38 Camb. L.J. (1979) 17-20 regards these two cases as incompatible and as leaving the meaning of section 8 (3) obscure. Lloyd Jones in (1980) Crim. L. Rev. 29-36 expresses a preference for the 1881 formula.
35.
In the Discussion Paper, attention was directed towards the New Zealand case of Re H. (1971) N.Z.L.R. 982 as raising the possibility that an extension of Clause 9 (3) should be considered in order to allow the health of the fugitive to be a separate specific ground. The observations of governments to this proposal were mostly non-committal. It might be more appropriate, therefore, to suggest a broader ground for discharge or postponement which would effectively restore the 1881 position. This would not only allow for physical or mental health to be taken into account, but it would also obviate the rather esoteric jurisprudence developing in the interpretation of Clause 9 (3). It is not considered that an additional ground of "any other reason" would be unduly generous to fugitives; the governing considerations still remain enshrined in the words "unjust,
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