Mr. G. Knight (Singapore) supported the new paragraph (d) and asked whether Dr. Shearer would comment on the suggestion made by Jamaica concerning the words "having regard to all the circumstances under which the offence was committed".
Mrs. S. Miller, QC (Jamaica) said that in Jamaica's view the circumstances which in practice were generally most appropriate were circumstances which had come into existence subsequent to the commission of the alleged offence. The Scheme should take account of these.
Dr. Shearer accepted what had been said by Jamaica and agreed that the suggested wording was an improvement. The words at present in the Scheme had appeared in the original U.K. Act of 1881 and they were simply part of the history of the Commonwealth Scheme. Perhaps the significance of the wording had not received detailed consideration in 1966. It was his view that the words "under which the offence was committed" should be removed, but the balance of the wording remains as this would provide essential guidance to the authorities who had to interpret the provision as a whole, and it would also maintain the essential balance.
Dr. B.L. Strayer, QC (Canada) supported the thrust of Dr. Shearer's suggestion and also the amendments proposed by Jamaica. The Canadian legislation contained this broader provision and Canada would seek to retain it in preparing new legislation.
Mr. A.R. Matebalavu (Fiji) supported the amendments suggested by Jamaica in addition to Dr. Shearer's paragraph.
The Hon. Ronan David (Dominica) drew attention to paragraph (a) and suggested a degree of incongurity in as much as the case would be sufficiently serious as to fall within the list of extradition offences. Further, he asked who it was who would determine the oppressiveness or the severity of the punishment to be effected. Then there was the ground of bad faith as justifying non-return. He could understand the ground of passage of time, but saw some problems emanating from other grounds. He would welcome Dr. Shearer's shedding of light on these questions.
Dr. Shearer noted that paragraphs (a), (b) and (c) all derive from the 1881 Act and that they had been accepted by the 1966 meeting as being particular grounds which had at one time or another been considered to be grounds precluding return. There was case law on each and everyone of them. The general approach in 1966 appeared to be that the 1881 arrangements should be as little interfered with as possible because a good deal of jurisprudence surrounded the interpretation of the 1881 Act. It would, of course, be open to the meeting to completely redraft clause 9 if it wished to do so. He could see this as being potentially a lengthy exercise and one which, at the end of the day, might not be regarded as having justified the effort. As he saw it, the major issue before the meeting was whether it wished to expand the grounds precluding return in a general way, or whether it wished merely to add one or two more specific
situations.
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