This has the additional advantage of picking up on language used in Article 8. On Ricky Rhoda's point, we would certainly wish to retain the prima facie requirement - it is virtually inconceivable that Parliament would accept anything else.
12. Paragraph 4. We suggest that the brief on this paragraph opens with a general statement making it clear that the UK cannot contemplate the return as a convicted person of someone who has been tried in absentia: we could only return in these circumstances on the basis that there would be a new trial in which the accused would be able to defend himself. See also comments on Article 3(3).
Article 8(3)
13. Ricky Rhoda makes a valid point. We suggest that it would be much simpler to have a 60 day period at the outset. The first sentence of this paragraph then end after "..shall not have been received". The second sentence would be unchanged.
Article 10
14. Paragraph 1. The first sentence of the brief here is more relevant to subsequent paragraphs, and should be removed from this position. We always need the original warrant for the purposes of section 7 of the 1989 Act. It may be that in order to remove any doubt, we should insert the word "original" into line 2 of Article 7(3).
15. We agree with Ricky Rhoda's point about the place where evidence is taken, and would support the removal of the words "taken in the territory of the Requesting Party". (If we opt, eventually, for the option of describing HK as a former colony as a means of getting round the "foreign state" problem, we may need to make a change to section 27 of our Act, but this is something which we already have in mind. It need not be mentioned to the HK team.
Article 12
16. In new Article 12 (1)(b) we suggest that we use the language of section 9(8)(b) of the 1989 Act, ie
"...sufficient evidence that he has been so convicted and appears to be so at large."
By virtue of this subsection, it is necessary for the court to be satisfied of the conviction,
Article 13
17. We think, on balance, that we do not need to add anything to the wording of the existing draft, so long as we make it clear that this is our expectation of how the provision would work.
No comments yet.
Private notes are available after approval.