Chapter 8: Extradition and Abduction
215
It is relevant to note that, in this case, the court limited itself to considering whether
certain aspects of domestic criminal procedure such as the duty to make available
relevant unused material applied to extradition proceedings. Based on current
practice in domestic criminal proceedings,
203
the applicant argued that in extradition
cases the prosecution had a duty to furnish the defence with all unused material.
Failure to do so was unfair because it deprived the magistrate of the opportunity to
assess all the evidence.
204
Rejecting this submission, the court held that the inherent
power of the judge at common law to ensure a fair trial did not extend to extradition
proceedings because fairness was not a criterion relevant to the function of the
committing court.
205
Maintaining that the character of extradition proceedings is
essentially different from domestic criminal proceedings, the court noted that, whilst
s 9(2) of the EA 1989 gave the committing court jurisdiction and powers, as nearly as
may be to its powers in domestic criminal proceedings, it construed this ‘as nearly
as may be consistent with the terms and purpose of extradition legislation’. Citing
Kindler v Canada,
206
as lending support for this view, the court expressed concern
that imposing principles of fairness could interfere with obligations established under
the treaty. The majority of the Supreme Court of Canada accepted that extradition
proceedings were fundamentally different from domestic criminal proceedings in
form and function. McLachlin considered that while the extradition process is: ‘…an
important part of our system of criminal justice, it would be wrong to equate it to the
criminal trial process. It differs from the criminal process in purpose and procedure
and, most importantly, in the factors which render it fair. Extradition procedure,
unlike the criminal procedure, is founded on the concepts of reciprocity, comity and
respect for difference in other jurisdictions.’
207
The principal safeguard for the fugitive against unfairness in the UK is the
Secretary of State’s discretion to refuse to surrender the applicant conferred by s 12
of the EA 1989. In holding that the High Court has no inherent supervisory power at
common law to intervene in extradition proceedings,
208
Lord Jauncey of Tullichettle,
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