Contents

Chapter 8
Grounds for refusing surrender

Further grounds for consideration

8.130There are several further grounds for refusal that should be considered. These grounds are present either in another country’s extradition legislation or an international scheme.

Forum bars

8.131The United Kingdom has introduced a ground for refusing extradition if refusal would not be in the interests of justice because a substantial measure of the conduct relevant to the alleged offence occurred in the United Kingdom and the offence can thus be prosecuted in the United Kingdom instead. A number of factors are to be considered in deciding whether it is in the interests of justice, including where most of the harm or loss has occurred, the interests of any victims, whether evidence is available for a prosecution in the United Kingdom, potential for delay, and the individual’s connections with the United Kingdom.380

8.132The forum bar has the advantage of avoiding extradition for individuals where it is fairer for them to be prosecuted in the requested country. It applies particularly to cross-border crimes and provides a mechanism for deciding who tries the individual. A domestic prosecution is likely to result in less hardship for the individual than extradition.

8.133This may already be covered in New Zealand, in practice, by the provisions that allow a New Zealand prosecution to be completed before an extradition request and the prohibition on double jeopardy. It seems, however, that a specific ground for refusal would give the person sought for extradition the opportunity to raise the option of the offence being tried in New Zealand. It is possible, however, that having a specific ground for refusal could allow an individual to elect to be prosecuted in New Zealand for a crime, such as genocide, that, while theoretically prosecutable in New Zealand, would in fact be very difficult or even impossible to prosecute.

8.134It is unclear the extent to which this ground would be applicable and necessary, or problematic, in New Zealand.

Question

Q31 Should the new Extradition Act include a ground for refusing surrender on the basis that the offence would be more appropriately prosecuted in New Zealand?

No counsel presentTop

8.135The London Scheme for Extradition within the Commonwealth includes a discretionary ground for refusing extradition where:

8.136This ground is concerned with fair trial rights in the requesting country. Under our proposed revised grounds, concerns about lack of or inadequate legal representation at trial could be addressed under the general injustice or oppression ground.

Question

Q32 Should the new Extradition Act have extra protections in relation to fair trial rights in the requested country? If so, what protections are necessary?

380Extradition Act 2003 (UK), new s 19B inserted by the Crime and Courts Act 2013, sch 20, cl 3 (yet to take effect).
381London Scheme for Extradition within the Commonwealth, above n 293, cl 14(a).