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the hearing.
The approach to subsection (3)(b) of section 11 has been
considered by the House of Lords in two cases which were much
canvassed before us in argument. The first of those cases is
the case of Narang [1978] AC 247. Viscount Dilhorne, in his
speech, (at page 272) dealt with the relationship between the
passage of time, all the circumstances, injustice and
oppression.
What he said was:
"Where the application is, as it was in this case, on the ground that it was unjust or oppressive to return him by reason of the passage of time, I agree with Slynn J. that the circumstances to which regard may be had must be relevant to the question whether or not it would be unjust or oppressive to return a person because of the passage of time: see also per Lord Parker C.J. in Reg. v. Governor of Pentonville Prison, Ex parte Teja
[1971] 2 Q.B. 274, 290.
It was argued for the respondents that the trivial nature of the offence, the passage of time and mala fides were 'gateways' and once through a gateway the court, after having regard to all the circumstances, could order discharge of a fugitive if any circumstances existed which would render his return unjust or oppressive. In my opinion the language of section 8(3) does not permit of any such interpretation. It does not say that where the offence is trivial, where there has been passage of time and where there has been lack of good faith the court can order the discharge if it appears that there are any grounds for concluding that his return would be unjust or oppressive. I can only do so by reason of triviality, passage of time or bad faith. If this contention is right, then the omission of the words 'or otherwise' has little significance and the power of the court remains similar to that it had under the Act of 1881, despite the change of wording. I do not think this contention well founded and I reject it."
Lord Fraser, at page 289, in his speech expressed
similar sentiments:
"In order to entitle the court to order discharge it is
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