Chapter 8
Grounds for refusing surrender

Decision maker for the grounds for refusal

8.31Some of the grounds for refusal are currently considered by the court and then also by the Minister of Justice. Decision makers should be entrusted with sole responsibility for particular decisions, with the assurance of a robust appeal process where a review is needed.

8.32Our view is that the majority of the grounds should be considered by the court because they fall within the court’s expertise. There are a few grounds that require diplomatic assurances or discretions that should be reserved for a Minister’s decision. This approach would be similar to that taken in the United Kingdom.

8.33Our proposal would involve a significant shift in the nature of the court hearing for extradition. The court would be required to consider an expanded number and type of grounds for refusal. The hearing may therefore become more complex and could involve an additional cost in terms of litigation time and resources, including the potential for additional legal aid costs.

8.34Despite these costs, we consider this move desirable. Under the current system, an in-depth consideration of all the grounds for refusal by the court may well arise in any case if the Minister’s decision on surrender is judicially reviewed or in appeals. It is better to have one clear stage where the grounds would be dealt with comprehensively.

8.35A thorough consideration by the court of the grounds for refusal would be an important protection of the sought person’s interests within the package of reform measures we propose. It also provides an important balance to our proposals in Chapter 7 to allow more streamlined processes to apply to the court’s consideration of the evidence of the person’s offending.304

8.36The division of the proposed grounds for refusal of extradition between the court and the Minister are presented in the following table.

Political offence
Double jeopardy
Mental health or intellectual disability
Injustice or oppression (including triviality, bad faith, delay, personal circumstances, and any other sufficient cause)
Ground added by treaty, including citizenship (unless reserved by treaty for the court)
Death penalty
Ground added by treaty, including citizenship (if decision is reserved by treaty for a Minister)
8.37The proposed shift in the court’s role raises issues regarding the admissibility of evidence.305 There are concerns that an ill-resourced person who is sought for extradition might be at a disadvantage. This is not our intention, and we ask whether there is a need for an independent person or organisation to be available to resource individuals with information to fight extradition proceedings. This would assist judges to fairly and robustly address the issues raised before exercising their powers.


Q17 What grounds for surrender ought the courts be considering, and what grounds for surrender ought to be considered by the Minister?

304See above at [7.86]–[7.90].
305See ch 7.