CONFIDENTIAL
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145530 MDHOAN 2370
CONFIDENTIAL
FM FCO
TO IMMEDIATE HONG KONG
TELNO 800
OF 260945Z APRIL 91
AND TO IMMEDIATE UKREP JLG
127
CORRECTED VERSION: PARAGRAPH 5
YOUR TELNO 1204: LORRAIN OSMAN: HABEAS CORPUS FIVE
1.
AS YOU WILL KNOW, OUR LEGAL ADVISERS HAVE BEEN WORKING WITH THE HOME OFFICE, TREASURY SOLICITORS AND THE HONG KONG
GOVERNMENT'S LEGAL ADVISERS ON A STRATEGY FOR RESISTING OSMAN'S FIFTH HABEAS CORPUS APPLICATION. HIS APPLICATION RAISES A NUMBER OF POINTS, INCLUDING THE FOLLOWING:
(A) PRIOR TO 4 APRIL 1990 THERE WAS NO BASIC LAW IN EXISTENCE, AND IT WAS ON THIS BASIS THAT THE COURTS DEALING WITH THE MATTER BEFORE THAT DATE MADE THE DECISIONS:
(B) ONE OF THE PROTECTIONS FOR PRISONERS UNDER THE EXTRADITION ACT 1989 IS THE 'SPECIALITY ASSURANCE'' WHICH PROVIDES BROADLY THAT NO PERSON EXTRADITED TO HONG KONG FROM THE UNITED KINGDOM WOULD BE TRIED FOR AN OFFENCE OTHER THAN THE OFFENCE FOR WHICH HE WAS RETURNED. OSMAN ASSERTS THAT THE EXISTING HONG KONG LEGISLATION IS INADEQUATE FOR THIS PURPOSE:
(C) BECAUSE THE BASIC LAW GIVES THE PRC THE RESPONSIBILITY FOR FOREIGN AFFAIRS AFTER 1997, (AND THE PRC HAS NO EXTRADITION AGREEMENTS WITH ANY OTHER COUNTRY) NONE OF THE EXTRADITION ARRANGEMENTS WHICH HKG ALREADY HAS IN PLACE WILL BE ABLE TO SURVIVE 1997.
2.
THE ADVICE OF HKG'S COUNSEL (WITH WHICH OUR LEGAL ADVISERS AGREE) IS THAT COUNSEL FOR THE HOME OFFICE SHOULD RESPOND BY MAKING (A) AN ABUSE OF PROCESS'' SUBMISSION SUPPORTED BY AN AFFIDAVIT, (B) AN UNDERTAKING IN RESPECT OF THE ''SPECIALITY ASSURANCE'' AND (C) A FURTHER EXPERT TESTIMONY REFUTING THE VARIOUS ARGUMENTS PUT BY OSMAN AND HIS EXPERT WITNESSES. THESE WOULD REQUIRE:
(A) AN AFFIDAVIT SWORN BY A MEMBER OF FCO EXPLAINING THAT THE TERMS OF THE BASIC LAW ON CONTINUATION OF LAWS SIMPLY REPLICATE THE TERMS OF THE JOINT DECLARATION PUBLISHED IN 1984,
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