Chapter 8
Grounds for refusing surrender

Features of grounds for refusal in other jurisdictions

8.12Different approaches to the grounds for refusing extradition are taken in Australia, the United Kingdom, and Canada. The approach in Australia is similar to New Zealand’s. The magistrate has a role in considering several factors.286 These factors are then reconsidered by the Attorney-General, along with further factors that are only for the Attorney-General’s decision.287 It is possible for extradition treaties to introduce new grounds for refusal or modify those in the Act. A key difference, however, is that all grounds are mandatory.
8.13Under the United Kingdom’s Extradition Act 2003, the majority of the “bars to extradition” are for the consideration of the judge, with a small group determined by the Secretary of State.288 Again, all of the grounds for refusal are mandatory. Also, a judge is prohibited from ordering extradition where to do so would be incompatible with the defendant’s rights under the European Convention on Human Rights.289 The bars to extradition under the United Kingdom’s Extradition Act do not appear to be able to be modified or removed by treaty.
8.14The Canadian Extradition Act 1999 places responsibility for consideration of all reasons for refusing extradition with the Minister of Justice. Some of these grounds are mandatory, and some are discretionary.290 The Canadian Act clearly spells out certain grounds that apply in all cases and others that may be overruled by the provisions of an extradition treaty (default statutory grounds). A treaty may either specifically state grounds for refusal that apply, in which case, those grounds prevail over the Act, or may be silent on grounds for refusal, in which case, it is taken that none of the default statutory grounds apply.291 In doing this, that Act anticipates that treaty negotiators will have canvassed all possible refusal grounds before including them or excluding them from a treaty.292
8.15The structure of restrictions on surrender in New Zealand’s Extradition Act has followed that of the London Scheme for Extradition within the Commonwealth. The London Scheme contains several reasons why extradition must be refused293 and then reasons why extradition may be refused.294
286Extradition Act 1988 (Cth), ss 19(2) and 7.
287Extradition Act 1988 (Cth), s 22(3).
288Extradition Act 2003 (UK), ss 79 and 93. This is the case for category 2 countries, which are the majority of those covered by the Act. In the case of requests from category 1 countries (European Union countries), only the bars to extradition considered by the judge are applicable, and the Secretary of State does not have a role.
289Extradition Act 2003 (UK), ss 25 and 87. Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 222 (opened for signature 4 November 1950, entered into force 3 September 1953).
290Extradition Act SC 1999 c 18, ss 44−47.
291Extradition Act SC 1999 c 18, s 45. In relation to multilateral treaties, the reasons for refusal contained in a relevant multilateral agreement prevail over the default statutory grounds only to the extent of any inconsistency between the Act and the agreement.
292Gary Botting Canadian Extradition Law Practice (2012 ed, LexisNexis, Markham (Ontario), 2011) at 229.
293London Scheme for Extradition within the Commonwealth (incorporating the amendments agreed in Kingstown in November 2002), cls 12–13.
294London Scheme for Extradition within the Commonwealth, above n 293, cls 14–15.