TNAG-2654-FCO40-3847-Extradition-cases-from-the-UK-and-France-to-Hong-Kong-Lorrai-1992 — Page 148

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case of applications by all governments) the matters of which

the stipendiary magistrate has to be satisfied do not materially

differ in their effect under the two Acts. Here section 7(5)

of the 1967 Act provides, as far as relevant:

"Where

the court of committal is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence to which the authority relates is a relevant offence and is further satisfied

(a) where the person is accused of the offence, that the

evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the court;

the court shall, unless his committal is prohibited by any other provision of this Act, commit him to custody to await his return

: but if the court is not so satisfied or if the committal of that person is so prohibited, the court shall discharge him from custody."

The combined effect of these provisions is therefore that while

the stipendiary magistrate has a similar jurisdiction and powers

to magistrates acting as examining justices, if the court is

satisfied that there is evidence which would be sufficient to

warrant the fugitive's trial the court is required to make a

committal order. It has no discretion.

The lack of discretion in the committing magistrate is

alleviated by the statutory habeas corpus jurisdiction given to

the court by section 11 of the Extradition Act 1989 and

previously by section 8 of the 1967 Act (which again do not

materially differ), and the discretion of the Secretary of State

under section 12 of the 1989 Act and section 9 of the previous

legislation not to make an order for return.

The relevant provision on the present statutory application

for habeas corpus is section 11 of the 1989 Act. So far as

relevant that section provides in subsection (3):

"Without prejudice to any jurisdiction of the High Court

apart from this section, the court shall order the

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