CONFIDENTIAL
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MODEL AGREEMENT FOR THE SURRENDER OF FUGITIVES HOME OFFICE COMMENTS
Preamble: we suggest that "arrangements" might be better than "provisions".
Article 1: on the face of it, this is a much narrower basis for extradition than could be accommodated under section 2 of the Extradition Act 1989.
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Article 2: this is a curious approach to the definition of an "extradition crime". Our old legislation and Treaties proceed on the "list" basis. We are seeking to move entirely away from this, and the Extradition Act 1989 adopts the "twelve month minimum" criterion. We and others found the list system full of practical problems. The 1989 Act does allow for the "list" system to continue in respect of those old Treaties which have not yet been renegotiated or superseded by the European Convention on Extradition, but it could not accommodate the definition proposed for a new arrangement. In any event, it seems distinctly odd, and unnecessary, to have to meet two conditions.
It would be helpful to know what is envisaged by the words "...other form of detention..." and "...detention..." in paragraphs 1 and 2 of this Article. We would wish to be able to secure the return of escaped offenders who are the subject of detention under the Mental Health Act, as opposed to conventional prison custody, but the current wording could be open to several interpretations. Unless there is a clear mutual understanding about scope, we suggest that further consideration should be given to this choice of words.
In relation to paragraph 3, our more recent extradition agreements require that, in conviction cases, the requesting state provides a statement indicating whether or not the conviction was obtained in the accused's presence. We entered a reservation to this effect when ratifying the European Convention, and we would like to see a similar requirement here, at least in relation to requests made to the UK. Presumably Article 7 would be the place for this.
Article 3: it is not UK practice to withhold extradition of our own nationals, and we try, wherever possible, to persuade others to take the same view. We would not wish to see the first sentence of this Article included. Nevertheless, we recognise that in many states there are constitutional or other major obstacles which prevent others taking the same line. It is normal practice for those of our arrangements with states who can or will not extradite in these circumstances to include a requirement that, in relevant cases, the requested state considers the exercise of extra-territorial jurisdiction to try the case themselves. It therefore follows that state must take steps to give itself the necessary jurisdiction. At the very least, we would wish to see such a provision in any Hong Kong/UK agreement.
CONFIDENTIAL
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