[HOUSE OF LORDS]

AND

AND

[On appeal from REGINA v. GOVERNOR OF PENTONVILLE PRISON,

Ex parte NARANG AND ANOTHER]

Fugitive Offender - "Unjust or oppressive" - Delay - Circumstances to be considered - Whether to be relevant to passage of time - Test to be applied in determining whether unjust or oppressive to return fugitive - Whether question of fact - Whether involving exercise of discretion - Power of House of Lords on appeal - Fugitive Offenders Act 1967 (c. 68), s. 8 (3) ¹

In 1967 two pillars were stolen from a temple in India, recovered and lodged at a police station. While there, they were borrowed with permission for archaeological research. Subsequently, two pillars were returned, but in 1970 it was discovered that they were not the originals but copies. Criminal proceedings were commenced against certain persons in connection with the disappearance of the originals. In May 1976 the alleged involvement of the respondents, M. and O., was discovered. Warrants for their arrest were issued by the Metropolitan Magistrate of Delhi. Requests for their return to India having been made, authority was given in accordance with section 5 of the Fugitive Offenders Act 1967 by the Secretary of State to the Chief Metropolitan Magistrate at Bow Street to proceed on various charges, to which the respondents pleaded not guilty. The stipendiary magistrate was satisfied on the evidence before him that it would be sufficient to warrant the trial of the respondents for the offences if they had been committed in the Inner London area, and committed the respondents in custody. On applications by them for habeas corpus pursuant to section 8 (3) of the Act of 1967, the Divisional Court of the Queen's Bench Division ordered their discharge, holding that, by reason of the passage of time, it would, having regard to all the circumstances, be unjust or oppressive to return them. In 1974, orders had been made for the detention of the respondent M. under Indian emergency legislation, and there was a possibility of a similar order against

1 Fugitive Offenders Act 1967, s. 8 (3): see post, p. 252E-F.

O. Those matters were brought to the attention of the Divisional Court, but it did not base its conclusion on them.

On appeal by the Indian government:-

Held, allowing the appeals, that in deciding under section 8 (3) of the Fugitive Offenders Act 1967 whether it would be unjust or oppressive to return a fugitive only circumstances relevant to the ground or grounds set out in the subsection on which the application for release was based were to be regarded, that the question was one of fact and the approach of the House of Lords to a decision of the Divisional Court under section 8 (3) should be similar to that of an appellate court to inferences drawn from primary facts by a judge; that there had been no material before the Divisional Court to lead to the conclusion that as a result of the passage of time since the alleged commission of the offences it would be impossible for the respondents to obtain justice or to support the view that complex issues would arise at the respondents' trial; that, while the detention orders against M. had been made during the passage of time, they had not been brought about by it or arisen from it and were not a circumstance relevant to it; and that, accordingly, it could not be concluded that by reason of the passage of time the respondents' return would be unjust or oppressive and the orders for their discharge should be revoked (post, pp. 272B-C, G - 273A,274D-E, 275H - 276A, E-G, 277D, G, 279D-H, 280C-E, 283B-D ,284B-C, 285G - 286B, D-E, 287D-E, 289B-C, H - 290A, G - 291B, 293E-F, 294G-H, 295B-D, 296F).

Zacharia v. Republic of Cyprus [1963] A.C. 634, H.L.(E.) considered.

Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370, H.L.(E.) applied.

Per Viscount Dilhorne, Lord Morris of Borth-y-Gest, Lord Edmund-Davies and Lord Keith of Kinkel. If for any of the reasons specified in section 8 (3) it appears that a return will be unjust or oppressive there is no room for any residual exercise of discretion by the court (post, pp. 273A-B, 281D,283E, 293F).

Decision of the Divisional Court of the Queen's Bench Division, post, p. 250 reversed.

The following cases are referred to in their Lordships' opinions:

Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370; [1955] 2 W.L.R. 418; [1955] 1 All E.R. 326, H.L.(E.).

Henderson, In re [1950] 1 All E.R. 283, C.A.

Kirby, In re; Kirby v. Government of Canada (unreported), June 25, 1976, D.C.; July 28, 1976, H.L.(E.).

Mersey Docks and Harbour Board v. Procter [1923] A.C. 253, H.L.(E.).

Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh [1962] 1 Q.B. 211; [1961] 2 W.L.R. 980; [1961] 2 All E.R. 565, D.C.

Reg. v. Governor of Pentonville Prison, Ex parte Fernandez [1971] 1 W.L.R. 987; [1971] 2 All E.R. 691, H.L.(E.).

Reg. v. Governor of Pentonville Prison, Ex parte Teja [1971] 2 Q.B. 274; [1971] 2 W.L.R. 816; [1971] 2 All E.R. 11, D.C.

Rex v. Governor of Brixton Prison, Ex parte McCheyne [1951] 1 T.L.R. 1155, D.C.

Shuter, In re [1960] 1 Q.B. 142; [1959] 3 W.L.R. 652; [1959] 3 All E.R. 481, D.C.

Ward v. James [1966] 1 Q.B. 273; [1965] 2 W.L.R. 455; [1965] 1 All E.R. 563, C.A.

Zacharia v. Republic of Cyprus [1963] A.C. 634; [1962] 2 W.L.R. 1163; [1962] 2 All E.R. 438, D.C. and H.L.(E.).

The following additional cases were cited in argument in the House of Lords:

Atkinson v. United States of America Government [1971] A.C. 197; [1969] 3 W.L.R. 1074; [1969] 2 All E.R. 1146; [1969] 3 All E.R. 1317, D.C. and H.L.(E.).

Reg. v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192; [1966] 3 W.L.R. 23; [1966] 2 All E.R. 1006, D.C.; [1968] A.C. 192; [1966] 3 W.L.R. 828, [1966] 3 All E.R. 177, H.L.(E.).

Reg. v. Governor of Brixton Prison, Ex parte Campbell, The Times, July 12, 1956, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Cook (1970) 114 S.J. 827, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Kotronis [1971] A.C. 250; [1969] 3 W.L.R. 1107; [1969] 3 All E.R. 1337, H.L.(E.).

The following cases are referred to in the judgments of the Divisional Court:

Government of Australia v. Harrod [1975] 1 W.L.R. 745; [1975] 2 All E.R. 1, H.L.(E.).

Reg v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192; [1966] 3 W.L.R. 23; [1966] 2 All E.R. 1006, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh [1962] 1 Q.B. 211; [1961] 2 W.L.R. 980; [1961] 2 All E.R. 565, D.C.

The following additional cases were cited in argument in the Divisional Court:

Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229; [1968] 2 W.L.R. 366; [1968] 1 All E.R. 543, C.A.

Martin v. Turner [1970] 1 W.L.R. 82; [1970] 1 All E.R. 256, C.A.

Reg. v. Customs and Excise Commissioners, Ex parte Cook [1970] 1 W.L.R. 450; [1970] 1 All E.R. 1068, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Caldough [1961] 1 W.L.R. 464; [1961] 1 All E.R. 606, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1963] 1 Q.B. 55; [1962] 2 W.L.R. 976; [1962] 2 All E.R. 176, D.C.

Reg. v. Governor of Pentonville Prison, Ex parte Teja [1971] 2 Q.B. 274; [1971] 2 W.L.R. 816; [1971] 2 All E.R. 11, D.C.

APPLICATIONS for habeas corpus.

The applicants, Manohar Lal Narang, otherwise Manu Narang, and Om Prakash Narang, otherwise Omi Narang, applied for writs of habeas corpus addressed to the governor of Pentonville Prison where they were detained by virtue of orders made by a metropolitan stipendiary magistrate under section 7 of the Fugitive Offenders Act 1967 following requests made to the Secretary of State by the respondents, the Union of India, for their return to India to answer criminal charges.

The facts are stated by Slynn J.

John Wilmers Q.C. and Kenneth Machin for the applicants.

Leonard Caplan Q.C. and V. C. Kothari for the Union of India.

David Tudor Price, Clive Nicholls and Colin Nicholls for the prison governor.

LORD WIDGERY C.J. I will ask Slynn J. to give the first judgment.

SLYNN J. In these proceedings Mr. Wilmers moves on behalf of Manohar Lal Narang (otherwise known as Manu Narang and whom I shall refer to as "Manu") and on behalf of Om Prakash Narang (otherwise known as Omi Narang whom I shall call "Omi") for writs of habeas corpus addressed to the governor of Pentonville Prison where the two applicants are at present detained. Each is so detained by virtue of orders made by the metropolitan magistrate under section 7 of the Fugitive Offenders Act 1967, following requests made to the Secretary of State by the government of India for their return to India to answer criminal charges. These charges fall into two groups and I think that it is convenient to deal with each group separately.

So far as the first group is concerned, Manu alone is involved. He is charged with conspiring between January 1963 and October 1965, in India, to commit, or cause to be committed, forgery of entries on shipping bills relating to the export of antiques from India. Two specific consignments are relied on, the first in May 1965 where the shipment was successfully effected and the second in October 1965 when goods were seized before shipment was completed. One of those involved 16 cases of goods and the other some 12 cases, including a rare 10th century sculpture. Manu was also charged with abetting the commission of forgery for the purpose of cheating in that he instigated two men to forge the signatures of customs officers and promised the payment of money for the commission of the forgery.

On May 26 and 27, 1976, warrants for the arrest of Manu were issued in India, and, having received a request dated May 27 for the return of Manu, the Secretary of State on August 9, 1976, pursuant to section 5 of the Act of 1967, ordered that the case should proceed.

Manu was arrested on a provisional warrant, and on September 24, 1976, as a part of the proceedings, the Secretary of State certified as follows:

"In pursuance of the powers conferred by section 4 (4) of the Fugitive Offenders Act 1967, I hereby certify under the authority of the Secretary of State that an arrangement has been made with the government of India in the case of Manohar Lal Narang, alias Manu Narang in the following terms: the government of India undertakes that if Manohar Lal Narang, alias Manu Narang, is returned to India in pursuance of the Fugitive Offenders Act 1967, he will not, unless he has first been restored or had an opportunity of returning to the United Kingdom, be dealt with in India for or in respect of any offence committed before his return under the Fugitive Offenders Act 1967 other than (a) the offence in respect of which his return under that Act is requested; (b) any lesser offence proved by the facts proved before the court of committal; or (c) any other offence being a relevant offence in respect of which the Secretary of State may consent to his being so dealt with."

The matter came before the metropolitan magistrate at Bow Street, and on October 5, 1976, he ordered that Manu be detained pending the warrant of the Secretary of State under section 9 of the Act, the magistrate being satisfied that the offences in the schedule were relevant offences and that there was sufficient evidence to warrant the committal.

So far as this group of charges is concerned, Mr. Wilmers has taken four points, the first of which I can deal with quite shortly. This is that section 4 (3) of the Act is not satisfied in that there is no provision in Indian law to ensure that Manu will not be dealt with in India unless he is first restored or has the opportunity of returning to the United Kingdom for, or in respect of, an offence committed before his return under this Act. It is said further that there can be no arrangement under which that position can be ensured in order to satisfy section 4 (3).

Mr. Wilmers has referred the court to a body of legislation and subordinate legislation enacted in India since 1971, and in particular to an Act entitled the Maintenance of Internal Security Act 1971, which has passed enabling the government to detain persons on grounds of security, and an Act which came into force on December 19, 1974, entitled the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, under which persons can also be detained. There was, in addition, reference to emergency legislation which it is said has come into force in India under which prescribed fundamental rights previously guaranteed by the constitution were either suspended or removed.

The importance of this legislation for the purposes of Mr. Wilmers's first point is that, an order having at one stage been made under the Act of 1971, on January 3, 1975, an order was made against Manu under the Act of 1974, and on May 23, 1975, he was given a direction to report to a specified officer with which he did not comply. Mr. Wilmers says that he can now be prosecuted for the offence under section 7 of the Act of 1974 for failing to comply with that direction. Once proceedings are started there is no way in which the government can stop them because the matter is entirely in the discretion of the court. Accordingly he submits that there is no safeguard in Indian law and no way in which any arrangement can be guaranteed.

The court has not heard Mr. Caplan on this point but so far as being dealt with for offences is concerned this, in my view, at present fails to have sufficient regard to the provisions of section 4 (4) of the Act of 1967, which provides that for the purposes of subsection (3) a certificate issued by or under the authority of the Secretary of State concerning the existence of an arrangement with any country and stating its terms shall be conclusive evidence of the matters contained in the certificate. Parliament seems clearly to intend that the duty of ascertaining whether an arrangement ensures compliance with section 4 (3) lies on the Secretary of State. Once he certifies in accordance with the section, this court, it seems to me, does not rule on the adequacy of the arrangement. Here the Secretary of State has certified that the arrangement has been made and the government has given an undertaking that Manu will not be dealt with otherwise than for the offences specified. No attack has been made on the bona fides of the certificate. That seems to me to be binding on this court, and we should not inquire into the ways in which this

undertaking could be carried out. On the arguments adduced to us by Mr. Wilmers I would accordingly not have accepted the submissions he made on this point, although we have not heard argument from Mr. Caplan to the opposite effect.

The second point taken by Mr. Wilmers is that no magistrate, properly applying his mind to the question, could conclude that the evidence was sufficient to warrant a trial of the relevant offences if committed here. In this context he refers to section 7 (5) (a) of the Act of 1967. Mr. Wilmers sought to rely on Indian law to support this, but, following what was said by Viscount Dilhorne in Government of Australia v. Harrod [1975] 1 W.L.R. 745, 756-757, this court ruled that before the magistrate Indian law was not relevant to the question of the admissibility of evidence but that the matter should be dealt with under English law.

Mr. Wilmers has addressed further argument as to the effect of evidence which is sought to be adduced on behalf of a witness who is an accomplice, which is said to be uncorroborated. It is also said that this evidence was given against the background of a conditional pardon. On both grounds it is said that the evidence is unreliable. Again we have not heard argument from Mr. Caplan on this point, but I would not at present decide this application in Mr. Wilmers's favour on this point which he has taken.

The third point, which is relevant to the main point with which we are concerned in the present decision, arises under section 8 (3) of the Act. This section provides for a person who is committed for custody under section 7 of the Act to apply to the High Court for a review of the order of committal by way of an application for habeas corpus. Section 8 (3) provides:

"On any such application the High Court ... may, without prejudice to any other jurisdiction of the court, order the person committed to be discharged from custody if it appears to the court that - (a) by reason of the trivial nature of the offence of which he is accused or was convicted; or (b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or (c) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him."

Subsection (4) provides:

"On any such application the High Court ... may receive additional evidence relevant to the exercise of their jurisdiction under section 4 of this Act or under subsection (3) of this section."

Mr. Wilmers's first point on section 8 is that the Act should be construed so as to give the court jurisdiction to refuse to send back persons the subject of a committal order if it is unjust or oppressive to do so for whatever reason. He has referred to section 10 of the Fugitive Offenders Act 1881, and to the decision of this court in Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh [1962] 1 Q.B. 211, and in particular to what was there said by Lord Parker C.J., at p. 217. That case was concerned with the words "or otherwise" which appeared in section 10 of

the Act of 1881, and they were given a wide rather than a narrow construction. Those words have gone. They have no equivalent in section 8 of the Act of 1967, and in my judgment it is quite impossible to read section 8 as conferring any jurisdiction other than in relation to the three matters which were referred to in paragraphs (a), (b) and (c) of subsection (3).

Accordingly Mr. Wilmers argues, under section 8 (3) (b), that by reason of the passage of time since he is alleged to have committed the offences it would, having regard to all the circumstances, be unjust or oppressive to return Manu now to India. Mr. Wilmers has argued that the words "having regard to all the circumstances" should be given a wide construction, and he has put forward many circumstances which he says it is proper to look at on an application of this kind.

It seems to me that the circumstances in a case where paragraph (b) is relied on must be such as to be relevant to the question of whether it would be unjust or oppressive to send back an applicant because of the passage of time. The circumstances must in subsection (3) relate to the context of the particular paragraph relied on, (a), (b) or (c). It is to be noted also that this question can only arise for the first time on an application for habeas corpus in this court. It is not a matter with which the magistrate is concerned on the committal proceedings. In a proper case the court is given power to receive additional evidence relevant to the exercise of the jurisdiction under section 8 (3).

Mr. Wilmers accordingly says that because of the passage of time there are certain consequences which inevitably flow, and it is unjust that this man should now go back to India to face the charges that have been made against him. He says also that it is relevant to have regard to the way in which the proceedings have been conducted, and he says that it is relevant, on the basis of what is said in Reg. v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192, that this is a very thin case, and that that factor should influence the court's discretion. He also relies on the existence of the emergency legislation to which I have referred, enabling detention, which he says would mean that Manu would be detained and witnesses who might otherwise have helped would now no longer come forward. This situation would not have arisen had the proceedings been dealt with earlier.

The facts relevant to this question can be dealt with very shortly. The conspiracy, although it is said to have taken place between 1963 and 1965, is in relation to specific consignments in May and October 1965. Between October 1965 and throughout 1966 it appears that the offences were investigated by customs officials, and the police began their investigation in 1966. By 1968 the police had made a report which is apparently colloquially known as a "charge sheet" in which the facts which they have found and charges which they seek to pursue are drawn to the attention of the court. The court then takes cognisance of them, and in this case on July 1, 1970, charges were framed by the court in accordance with the Civil Procedure Code. By July 1974 there had been 76 hearings in the Indian court at which Manu was present either by himself or by his counsel. Thereafter he was not from October 1974 in India and of course has taken no part in the proceedings there himself.

The other fact which is perhaps of some relevance in looking at the history of the proceedings is that by 1976 only a relatively small percentage of statements from witnesses which it was anticipated would be necessary have apparently been taken. We were told that in respect of one of the charges only 16 out of 55 witness statements had at this stage been prepared. Having read the schedule of hearings and the reports of some of the hearings which Mr. Caplan has referred to the court, it is clear that some of the delay which has occurred is due to Manu himself. There were frequent requests for adjournments on medical or other grounds, and since 1974 Manu has, as I have said, been out of the country. But nonetheless it is plain here that a very long time has elapsed since these events occurred. What is sufficient time to make it unjust to send a person back must depend on the relevant circumstances and facts. The courts have accepted in some cases that ten years and even two years can be sufficient. In other cases people have been returned even after a period of five years.

In my judgment there is no doubt in the present case that it would be necessary, if the matter went for trial, to investigate the movements and activities of persons named in the conspiracy charge, and in particular the activities of Rama and Manu between 1963 and 1965. The events in 1965 are at the heart of the prosecution case and the task of investigating those events is made even more difficult because of the various statements made by Mohan (the alleged accomplice) that sometimes attribute events to Rama and sometimes to Manu. To investigate these events which occurred 11 years ago is inherently difficult, whether they happened in India or, as they are said to have happened in one case, in New York.

Mr. Caplan has stressed that these were serious offences and that Manu was allegedly a ringleader, and that this was a carefully premeditated and planned crime.

Accepting all that, it seems to me that the seriousness of the charges must be seen not only from the point of view of the prosecution but also from the point of view of the defence, and it makes it even more important to ensure that it is not unjust or oppressive to send someone back to answer charges after such a long period.

Mr. Caplan says that it is a factor that Manu was not at all relevant times in the reach of the government and he has taken steps to keep out of their reach. This I consider to be only a partially valid argument. It is plain that from 1965 to 1974 Manu was in India for long periods. His comings and goings were not suggested to have been clandestine. It is true that the prosecution may not have felt that they had evidence to pin specific offences charged on him with certainty, but to my mind there was ample material in the early statements of Mohan to show that Manu was involved in the shipment of the May consignment and the planned but frustrated shipment of the October consignment.

Mr. Wilmers says that the earlier evidence shows that Manu was at most involved in a customs offence but not conspiracy to forge, but, having read Mohan's statements, I am not convinced that this is correct: On the contrary, I consider that, if the prosecution had wished, they could have gone ahead with the proceedings which were commenced in 1968 and on which the charges were formulated in 1970. This seems to

me particularly so if, as we are told, and it has not been challenged, the test of the magistrate in framing charges is whether he is satisfied that the evidence is such that, if unrebutted, it would warrant a conviction. Accordingly in 1970 the magistrate was apparently satisfied that the charges should be framed in the way which we have seen.

It may be - one does not know - that Mohan would have given a full statement earlier had the proceedings gone ahead and the defence would have had a better chance to prepare their case in 1970 and 1971. What in fact happened was that proceedings were allowed to drag on for a very long period. By 1974, when Manu had left India, already nine years had elapsed since the shipments and six years since the prosecution charges were first commenced.

In my judgment, even by 1974 it would probably have been unjust to send him back because of delay. Since then two more years have passed. Mr. Caplan says that this is explicable because Manu's whereabouts were not always known, and that even if they had been known there would have been difficulty in procuring his extradition because he had acquired a diplomatic status and the government would have had problems in ensuring his extradition at any rate from some countries in the world. He said that they did not know where he was, and, even if they had known, it would not have been possible to ensure his extradition.

It is clear that section 8 (3) talks only of the "passage of time" and does not say that any delay by the prosecution must be culpable. Nonetheless it seems to me that the court is entitled to consider whether the government has made real efforts to find and extradite within a reasonable period. On the material to which we have been referred, I am not satisfied that they did make real efforts, or that it can be said that the lapse of two years can be ignored because Manu was putting himself out of the reach of the government.

Mr. Tudor Price on behalf of the governor in his submissions to the court described the applicant's case on the forgery cases as being "overwhelming." One does not need to go as far as that. Although there may be factors in both directions, I am satisfied that because of the passage of time and the inherent difficulties of ensuring a fair trial after such a long period it would be unjust to send Manu back on the charges. I would accordingly on those charges order his discharge.

It is not necessary to consider to what extent the suggestion that this is a thin case should influence any decision under section 8, or whether this was in fact a thin case. Nor is it necessary to decide the other points taken by Mr. Wilmers that witnesses and lawyers are likely now to be deterred by the threats of detention orders against them under the legislation to which I have referred, nor whether, even if strictly subsection (3) of section 4 is satisfied, it would be right to consider sending Manu back only if further undertakings were given not to detain under the Act of 1974.

I turn, then, to the second group of charges. These relate to ancient pillars which were initially sited in a temple in a village named Amin. Manu and Omi were charged with conspiracy in 1968 with Rama (the other brother) and others fraudulently to obtain from the court, into whose keeping the pillars had come, those ancient pillars and to make replicas

of them. It is said that they sent the replicas back to the court, keeping the originals for themselves knowing them to have been stolen. Manu was in addition charged with receiving the stolen pillars.

In this case the warrant of arrest for both men was issued in India on July 20, 1976. The Secretary of State's authority to proceed was given on August 9, and on September 24 a certificate of arrangement identical in terms to that to which I have referred was given by the Secretary of State.

Mr. Wilmers has taken the same points as in relation to the first group of charges, and I need say nothing more about the first three of those points. One must, however, consider separately the claim made under section 8 (3) (b) in relation to the delay aspect of the matter. Counsel have only been heard on the second group of charges in relation to this aspect of the case.

The allegations made are that the pillars were stolen and, they having been recovered, the alleged thieves were prosecuted and apparently acquitted. Whilst the pillars were in the custody of the court it is said on the basis of the evidence of the alleged accomplice Malik (whose evidence was only obtained in July 1976) that Manu asked Malik if he had influence with anyone at the court. Rama is alleged to have said that if the pillars could be obtained through the hands of someone at the court he could bring artisans to copy the pillars. It is alleged that Malik arranged with one Mehra (a magistrate) that the pillars should be released to Malik for the purposes of examination. It is said that when the pillars were returned in May 1968 the replicas were returned and the originals kept. Subsequently it appears that the pillars were sent back to Amin, and it was only in 1970 that experts visiting the temple found the pillars in situ were not genuine pillars. Omi's involvement on the evidence that we have been shown appears to have been of a less substantial nature than that of Manu.

In this case the police began their investigation in 1971, and as a result of a police report dated December 30, 1972 (which apparently was filed on January 1, 1973), Malik and Mehra were charged with cheating and with conspiracy. At that stage there were no charges against either Manu or Omi. No indication to Manu or Omi of their possible liability to face charges in respect of the pillars was made until 1976. In the first week of May 1976 we are told that the government of India for the first time discovered the whereabouts of the pillars and learnt of the possible involvement of Manu and Omi. On June 26 of this year Malik applied to the court for a pardon, and on July 3 a conditional pardon was granted. Once again one has the story only revealed fully for the first time on the evidence of an accomplice who was granted a conditional pardon.

Eight years have passed in relation to this group. To that extent the case may be said to be weaker than the previous case in which 11 years had passed since the date of the alleged offences.

Mr. Caplan relies, in addition to the point to which I have already referred, on the fact that the government only knew of the Narang brothers' involvement in the first week of 1976. I would accept that this is a factor in considering whether the passage of time makes it unjust

to send a man back; it is a relevant factor that the government only knew at a late stage. But I do not regard this as a conclusive answer when other factors suggest that the delay may cause injustice. It is necessary to consider, as the section directs, whether because of the passage of time it would be unjust or oppressive to send the man back.

I have no doubt that there are here many instances of fact to be resolved. We have been told by Mr. Wilmers that it will be necessary to consider such matters as whether the original pillars were genuine and what happened to them whilst they were in possession of the court and during the police investigation. It is necessary to consider to what extent, if any, Manu and Omi were involved and what happened in the making of the replicas, how and when and where the pillars were returned and what was returned. Mr. Wilmers has made the claim that all these matters to which I have referred would be in issue at the proceedings, and even if some of them, like the originality and the genuineness of the original pillars, may perhaps sound optimistic points, it is nonetheless one which he has told us would be likely to be in issue if the proceedings went back.

It is plain that investigating these events which took place in 1967 and 1968 would be difficult at this distance of time. There are complex issues of fact which must, it seems to me, arise. Moreover, it is plain that Malik and Mehra were charged at an early stage, and from 1972 little appears to have been done to get on with the case. There may well be explanation of this in the procedural difficulties which occurred in the Indian court. But nonetheless the time has passed. If there had been a reasonable expedition in the proceedings it may be - one does not know - that Malik might have given his statement earlier and the two applicants would have been in a stronger position to prepare their defence.

At the end of the day I consider that because of the passage of time and the difficult issues raised it would again in this case be unjust to send the two men back for trial at this time. I express no views as to the other matters which have been relied on by Mr. Wilmers under section 8 (3) as in the other group of cases. Both these groups of charges raise matters which require anxious consideration, not the least because I would accept the importance stressed by Mr. Caplan of the government preventing the kind of removal of antiquities which it is alleged took place here. I am, however, satisfied on all the material which has been put before the court that in the light of all the relevant circumstances it would be unjust to send the two men back now, and I would accordingly order their discharge under the discretion conferred on the court by section 8 (3) of the Act.

TALBOT J. I agree with the judgment of Slynn J., and what I have to add is only by way of emphasis. I would like first to add a few words on the submission that was made to us by Mr. Wilmers as to the proceedings for committal under section 7 of the Fugitive Offenders Act 1967.

By section 8 (1) of that Act, this court may review the order of committal. One therefore looks to section 7 to see what it is that the magistrate has to consider. By section 7 (5) he first has to consider whether it is a relevant offence. Then he has to consider whether the evidence is sufficient to warrant trial for that offence if it had been committed within

the jurisdiction of the court. It seems to me, therefore, that his duty is to look at the evidence before him on the assumption that the offence had been committed within the jurisdiction of his court and then ask himself whether the evidence is sufficient to warrant trial.

In my judgment, therefore, clearly one does not go into matters of defence, and in this case one would not go into matters of defence which might arise under Indian law if the applicants were returned to that country. The Act does not require consideration of the evidence as to whether it is evidence sufficient to commit in the requesting country's court. Nor does the magistrate have to decide whether the evidence is sufficient to warrant trial in the requesting country's court. This view that I have expressed has the authority of Viscount Dilhorne in Government of Australia v. Harrod [1975] 1 W.L.R. 745, 756-757 to which Slynn J. has referred.

I have therefore reached the view, and concur with the view already expressed, that it was wrong to inquire as to the effect of these matters under the Indian law. With regard to the other matter under section 8 (3) (b), I entirely agree with Slynn J.'s remarks on that section, and I too have reached the conclusion that owing to complications and the age of this matter (in one case 11 to 13 years ago and in the other 8 years ago) the passage of time is such that it would be unjust and oppressive to return the applicants to their country. Therefore I have reached the same conclusion as Slynn J.

LORD WIDGERY C.J. I entirely agree with both judgments and, like Talbot J., I would wish to add a few words on the two procedural matters because these are matters of great importance to cases of this kind which have to be decided hereafter.

In what has been called the forgeries case, the principal evidence against Manu was the evidence of the accomplice Mohan, and not altogether surprisingly Mr. Wilmers and those instructing him made an attack on the evidence of Mohan with a view to excluding it, because, if they were successful in that, the case against Manu would have collapsed overnight. It seems to have been assumed that the proper way to test the admissibility of Mohan's evidence was according to Indian law because at the time when this matter was before the magistrates Government of Australia v. Harrod [1975] 1 W.L.R. 745 had not been reported in the House of Lords. I imagine that the magistrate reached his conclusion without the assistance of Viscount Dilhorne's speech and the acquiescence in it of Lord Simon of Glaisdale. I have no doubt, in view of what was said by their Lordships, that the law is as stated by Talbot J.

In other words, one has to consider, in deciding whether or not sufficient evidence has been tendered by the requesting country, what the situation would be if the magistrate were sitting in England to determine a case where the events disclosed in the evidence had happened in England. Whether it be a question of admissibility of evidence, or of statutory defences as it was in Harrod, in all these cases the magistrate is concerned with the English law and nothing else.

One only has to pause for a moment to consider the alternative to

realise how essential it is that that should be the case. We have here a bundle of papers perhaps 18 inches high. A great deal of this is concerned with the law of India, and it follows that if a magistrate is treating himself as having to apply the law of India he must sit with an expert Indian lawyer at his elbow all the time. It is quite impracticable.

There is nothing illogical about testing the matter by reference to English standards and to English law, because the hearing at Bow Street is in no sense a rehearsal in order to ascertain whether the proceedings of the prosecution are likely to succeed in India; it is not that at all. It is a test which has been applied in order to see whether it is fair and reasonable to order the suspect to be returned. The thinking behind it is simply this: that if in England by English standards and English law the evidence is strong enough to justify a committal then that is sufficient to justify the return of this suspect to the counry requesting him. Once it is grasped that it is not a rehearsal but an independent test, then it becomes much more logical, I think, to apply what Viscount Dilhorne says is the law and with which I respectfully agree.

The other point arises under section 8. It will be remembered that Slynn J. demonstrated that section 8 of the Act of 1967 is significantly more restrictive than its predecessor, which was section 10 of the Act of 1881. In particular, the all-embracing words "or otherwise" which appeared in the earlier Act have been deleted from the present Act, so the only possible conclusion in my view is that Parliament intended to restrict the circumstances in which applications to this court could be made under section 8 (3).

At one stage Mr. Wilmers was tendering evidence before us, and when challenged to show its relevance was inclined to say, almost as a matter of course: "It goes to a circumstance within section 8 (3)." This prompted Mr. Tudor Price to say that if we were not careful we should cancel the effect of the deletion of the words "or otherwise" by giving such a wide interpretation to "circumstances" that in effect the door was open to everything.

These fears are quite unfounded, as has been demonstrated. In the first case it must be remembered that we are concerned in section 8 (3) with this court and not with the magistrates. There can be no question of the magistrate admitting evidence simply because it goes to the circumstances. If it is not admissible on other grounds, it cannot be made admissible before him on those grounds. Once the matter comes here, it is to be observed that section 8 (4) contemplates that this court may allow additional evidence to be tendered, and amongst the additional evidence which can be tendered would be evidence relating to the circumstances. I do not see that we should have any difficulty in this court in distinguishing between that evidence said to relate to the circumstances which in our discretion we thought unhelpful from evidence similarly related which we thought could properly, helpfully and with probative value be included in the matter put before the court for determination. Looked at in that way, I hope that Mr. Tudor Price's fears are dispelled, and that in fact this procedural matter can be dealt with with a good deal less effort in terms of paper and copying than the instant case was.

In the result the two applicants will be discharged in respect of all warrants.

December 20. The Appeal Committee of the House of Lords (Lord Diplock, Lord Simon of Glaisdale and Lord Edmund-Davies) allowed a petition by the Union of India for leave to appeal.

John Hobhouse Q.C., Richard Du Cann Q.C. and V. C. Kothari for the Union of India. The point arising is, under section 8 (3) (b) of the Act of 1967, whether by reason of the passage of time it would be unjust to return the respondents. The passage of time is fully explained and accounted for.

The Act of 1967 and the law of fugitive offenders generally is part of an international scheme, representing the international obligations of the United Kingdom government. That is perhaps why the Secretary of State is given an important part in the procedure. It is also a statutory scheme.

The jurisdiction to refuse to send back a fugitive after committal is one which should only be exercised in extreme cases, which will inevitably be rare. There is no general discretion now.

The burden of proof is on the fugitive to bring himself within the appropriate wording in section 8 (3) and to adduce whatever evidence is necessary to procure that result. He has to demonstrate that by reason of the passage of time it would be unjust or oppressive to return him, having regard to all the circumstances of the case. The starting point must be "by reason of the passage of time."

The reasons given by the Divisional Court do not satisfy these criteria. Its decision was wrong, for the following reasons. (1) They failed to take into account that the burden of proof or persuasion is on the fugitive. (2) They failed to have regard to the necessity that the case must be shown to be exceptional. There must be something which by reason of the passage of time makes it an exceptional case. (3) They failed to evaluate properly the passage of time and whether it created injustice or oppression. On this, the Union of India makes the following comments. (i) The passage of time here primarily arose from the clandestine nature of the crime and the conduct of the fugitives: when the offences "came to light" is relevant. (ii) With regard to the fact that Malik made a statement in 1976, the circumstances under which he came to do so are adequately explained by Malik himself. (iii) It is not the policy of criminal law to allow mere passage of time to be a ground for avoiding prosecution. (4) They wrongly considered the complicated issues raised by the case. (5) This case does not come within the wording of section 8 (3). On the construction of the subsection, the Divisional Court has to be satisfied of either (a), (b) or (c) before it gets as far as exercising the discretion. Here, the Divisional Court could not have been properly satisfied. It was not a mere matter of discretion whereas under the Act of 1881 the discretion was very wide indeed, that is not the position under the Act of 1967. Contrast the wording of sections 8 and 9: in section 8 (3) the word is "may";

in section 9 (3) it is "shall." There were no substantial or sufficient grounds here. Alternatively, the Divisional Court misconstrued the Act. (6) The decision of the Divisional Court was inconsistent with the previous authorities. They did not direct themselves to the relevant legal criteria and took a wrong view of the facts.

The true approach for the House here is to say that the Divisional Court's exercise of discretion was wrong. There is sufficient to enable it to say that no reasonable court could have come to that conclusion. It is not a mere matter of discretion here because there is a statutory formula within which it has to be exercised. In re Henderson [1950] 1 All E.R. 283 was a delay case under the Act of 1881. Rex v. Governor of Brixton Prison, Ex parte McCheyne [1951] 1 T.L.R. 1155 was also under the Act of 1881. [Reference was made to Reg. v. Governor of Brixton Prison, Ex parte Campbell, The Times, July 12, 1956. Zacharia v. Republic of Cyprus [1963] A.C. 634 is an important case on the review of a discretion (contrast Viscount Simonds and Lord Radcliffe). It is also important on the court's attitude to political considerations (see per Lord Devlin). Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh [1962] 1 Q.B. 211 indicates that there was a wide discretion under the Act of 1881. The Divisional Court here has not had regard to the right considerations. Under the Act of 1967, see Reg. v. Governor of Pentonville Prison, Ex parte Teja [1971] 2 Q.B. 274: Reg. v. Governor of Pentonville Prison, Ex parte Fernandez [1971] 1 W.L.R. 987; and In re Kirby; Kirby v. Government of Canada (unreported), July 28, 1976.

The proper approach is to make findings of fact and then to come to a conclusion on those findings. Here the crime was clandestine. The passage of time was not such as to lead to oppression or injustice. The offence is a serious one. There are strong policy reasons why the respondents should be tried for them. It is a plain case. There has been no rebuttal of the case by the respondents. They will receive a trial which will achieve a just result.

There is in existence in India the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, which gives power to make orders of detention against persons believed to come within the scope of the Act. An order was made against Manu in 1975. He has stated in an affidavit that if he is returned to India he will be detained under that Act. This was not a ground taken into account by the Divisional Court - rightly - and so it has not so far been accepted by a court as affecting the position under the Act of 1967. It was advanced before the Divisional Court and not accepted. It is only put under section 8 (3) (b).

Robert Alexander Q.C., Kenneth Machin and Jonathan Hirst for the respondents. The appropriate test to be applied by the House in considering the judgment of the Divisional Court is whether it acted in the proper exercise of a judicial discretion. That discretion inevitably involves an appraisal of fact, because otherwise it would not be exercised judicially. The Divisional Court has not acted on any wrong principle, nor has it committed an error of law, nor has it failed to take into account matters which demand consideration: see Viscount Simonds in Zacharia v. Republic of Cyprus [1963] A.C. 634, 661. The respondents would add to

Viscount Simonds's three points: neither has it taken into account matters which it ought not to have taken into account.

Viscount Simonds's test is as applicable to the new Act of 1967 as it was to the old Act of 1881. He was correct in stating, at pp. 661-662, that the jurisdiction exercised by the Divisional Court was traditionally the province of the court of King's Bench. Two other passages in Zacharia tend to support this approach: per Lord Hodson, at p. 679, and Lord Devlin, at p. 688. Lord Radcliffe, at p. 667, is not postulating any essentially different test. He is pointing to the fact that the discretion is to be exercised having regard to the facts: that is assumed in the phrase "judicial discretion."

The test is, putting it another way: could any reasonable Divisional Court, applying its mind to the facts, have reached this conclusion? There is probably not much between the Union of India and the respondents, but the respondents' essential proposition is that the test is whether discretion was properly exercised although based on an appraisal of fact.

The test is the same under the new Act as it was under the old (section 10 of the Act of 1881). The one essential difference between the Acts is that in one respect the jurisdiction has been narrowed: the phrase "or otherwise" does not appear in the Act of 1967. Its disappearance clearly has a limiting effect in that the court can now take into account only the specific conditions indicated. The jurisdiction has, however, in one specific respect been widened: section 8 (3) (b) of the Act of 1967 for the first time makes the passage of time a specific reason for declining to return a fugitive. Those are the only differences between section 10 of the Act of 1881 and section 8 of the Act of 1967. When that is taken into account, there is no essential difference between the situation in Zacharia v. Republic of Cyprus [1963] A.C. 634 and the present case.

What Lord Diplock was saying in Reg. v. Governor of Pentonville Prison, Ex parte Fernandez [1971] 1 W.L.R. 987, at p. 990D, was an echo of Viscount Simonds in Zacharia, and in no sense was he suggesting that the test under the new Act was different from that under the old Act. Likewise, in In re Kirby; Kirby v. Government of Canada (unreported), July 28, 1976, the House was doing no more than agreeing with the Divisional Court, so it made no attempt to analyse the circumstances in which it should interfere with the discretion as exercised by the Divisional Court. Its adoption of that court's decision tends to show that it was supporting what had been said by Lord Widgery C.J., at p. 16 of the transcript: that if there had been a significant passage of time and the case had therefore got through the "gate" created by section 8 (3) then it would be a matter of discretion for the Divisional Court. That test is four-square with the test in Zacharia [1963] A.C. 634, under the Act of 1881. All that Lord Radcliffe was saying in that case, at p. 667, was that one could not exercise the discretion in the teeth of the facts. It must be exercised on a factual basis.

As to "having regard to all the circumstances," (1) once one is within the statutory requirement one can have regard to all the circumstances whether connected or unconnected with the passage of time. (2) In so far as one is concerned with the judgment of the Divisional Court, the Divisional Court adopted a narrower test, so that even if the respondents

are wrong on (1) it was right. (3) In any event, all the circumstances on which the respondents rely are circumstances which have arisen during the time which has passed and which are relevant to the passage of time.

There are certain aspects of the case favourable to the Union of India of which account was clearly taken by the Divisional Court. They took into account the seriousness of the offences. The Union of India has said here that the jurisdiction not to send a fugitive back should only be exercised in exceptional circumstances. The respondents do not accept that; it is a gloss on the statute which is not warranted by the terms of the statute itself. One should be particularly careful not to circumscribe the statute where injustice to the individual may result.

In re Henderson [1950] 1 All E.R. 283 was specifically concerned with the jurisdiction under the phrase "or otherwise." The respondents accept what Singleton L.J. said, at p. 288A-B, but they say that the effect of section 8 (3) (b) is that if the condition there is satisfied the court has every right, and a duty, to interfere. Rex v. Governor of Brixton Prison, Ex parte McCheyne [1951] 1 T.L.R. 1155 was also concerned with the jurisdiction under "or otherwise."

In Reg. v. Governor of Brixton Prison, Ex parte Campbell, The Times, July 12, 1956, the court took the view that it would be a great hardship on the applicant were she to be returned: she had been living here for nearly five years and her chances of defending herself must be prejudiced by the delay. There was no evidence that she had been hiding. It would be unjust in the circumstances to order that she be returned. It also regarded the failure of the government to explain the delay as a relevant circumstance. Thirdly, it does not refer to "exceptional cases" or "a rare class of case." "Exceptional" or variants were used in Henderson and McCheyne.

In Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh [1962] 1 Q.B. 211 the Divisional Court was construing the words "or otherwise." In construing the words widely, Lord Parker C.J. did not in any way suggest that exceptional circumstances were necessary or that the jurisdiction would only be exercised in a rare class of case. The decision also contemplates that delay should be explained: see at p. 217. In the present case, the Divisional Court were rightly troubled by the very slow pace at which the investigation of the case had taken place in India since 1970.

In Reg. v. Governor of Brixton Prison, Ex parte Cook, 114 S.J. 827 there was no talk of exceptional circumstances or of a rare class of case, though the report is rather short.

As to In re Kirby; Kirby v. Government of Canada (unreported), June 25, 1976; July 28, 1976, see the decision of the House, at pp. 15, 16. There was no suggestion there that the jurisdiction should only be exercised in exceptional circumstances or in a rare class of case, once one was through the "gate."

The respondents know of no case before the present where a fugitive has been released by the Divisional Court and there has been an appeal to this House.

The respondents comment on the phrase in Zacharia v. Republic of Cyprus [1963] A.C. 634, per Lord Parker C.J., at p. 642, only in

"comparatively rare" circumstances. The circumstances may be rare, but they do not have to be exceptional in the sense of extreme. Viscount Simonds, at p. 662, was dealing with a challenge to the good faith of the government of Cyprus, and what he said was said only in that context; see also per Lord Radcliffe, at p. 667, the last paragraph, and compare per Lord Devlin, at p. 688:

One other aspect of the Act of 1881 is that the magistrate would only make his order for return if the evidence raised a strong or probable presumption of guilt. So it was understandable that the courts were reluctant to intervene. Under the Act of 1967 the magistrate only has to be satisfied that the evidence warrants a committal.

The Act of 1967 should be construed according to what was said by Viscount Simonds and Lord Devlin in Zacharia v. Republic of Cyprus: what has to be decided is simply what the Act asks the court to decide, that is, whether by reason of the passage of time since the fugitive is alleged to have committed the offence it would, having regard to all the circumstances, be unjust or oppressive to return him.

The Union of India submitted that the Act of 1967 was different from the Act of 1881 in that the words "or otherwise" are absent. The respondents agree. Also, there is the matter of the passage of time specifically added. The Divisional Court had well in mind that "or otherwise" was absent. It may be that Parliament did not intend any substantial alteration of the Act of 1881. The omission of the words "or otherwise" is a very shaky platform to rest that on, particularly in view of the words specifically added. The Divisional Court, if it erred in construction at all on this point, erred against the respondents rather than in their favour.

The Union of India submitted that the burden of proof was on the person seeking to resist extradition. The respondents largely accept that. It is for that person to satisfy the court that the requirements of the section are satisfied. That does not mean that he has to undertake the burden of proving all the relevant facts. The whole case was approached in the Divisional Court on that basis.

The Union of India said that section 8 (3) must comprehend a case where because of the passage of time it was impossible to collect all the relevant evidence for the defence. It can also comprehend a case where because of the passage of time it must be very difficult either to gather the evidence for the defence or to break down a false charge.

As to the specific criticisms which the Union of India made of the reasons given by the Divisional Court, the Divisional Court must throughout have had in mind that it was the duty of the applicants to satisfy the court of the requirements of section 8, and their judgments show that they properly recognised that factor. It is almost unthinkable that the Divisional Court would overlook such a matter. The case was opened by the applicants, which is a traditional acceptance of the burden of satisfying the court. There was a body of evidence inappropriate to the proceedings before the magistrate but appropriate to the different issue before the Divisional Court, which was almost all adduced by the respondents. There are positive indications in the judgments of the Divisional Court that they had the duty well in mind.

The Union of India submitted that the Divisional Court failed to have regard to the fact that the case must be shown to be exceptional or out of the ordinary. This may be linked with their submission (iv), that the case raised no difficult issues. The respondents do not accept that test, but there was ample material on which the Divisional Court could reach the conclusion which they reached in this case. A right approach has been put by Viscount Dilhorne: when one has a passage of time one has regard to all the circumstances which bear on the injustice flowing from it. One should give "all the circumstances" its full meaning. It is not limited strictly to the passage of time.

As to the point raised that all that the respondents have done is to put the prosecution to proof of their case, it is a wrong approach to suggest that that is all that is happening. Before the magistrate the question is whether the facts warrant committal. It must be rarely that the facts satisfy him that there is no prima facie case. The view taken by the Divisional Court that complex issues are raised by the case is amply supported by the evidence. The fact that the case will involve complex investigation is evidenced by what has already happened in India concerning Malik and Mehra.

The respondents are not suggesting that all cases of handling or theft are complex. All of them, however, necessarily involve investigation, which must be complicated and difficult after nine years. There is also a distinction between complex facts and difficulty and complexity of investigation.

As to the Union of India's submission that this case does not come within section 8 (3) (b) at all, the Divisional Court was entitled to take the view that a very long time had passed and that having regard to all the circumstances it would be wrong and oppressive to return the respondents.

There is a distinction between interfering with the exercise of a discretion and interfering with findings of fact. As to the former, Zacharia v. Republic of Cyprus [1963] A.C. 634 is right. As to the latter, see Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370, especially per Viscount Simonds, at p. 372. The respondents do not accept that that applies to this class of case. It is entirely a question of discretion to determine whether on the facts it is unjust or oppressive to return the fugitive. If the contrary were true, the discretion would be emasculated to the point of non-existence. The essential phraseology, construed in Zacharia, is in both Acts, 1881 and 1967.

As to the Indian emergency legislation, the respondents refer to the letter of January 11, 1977, from the solicitors for the Union of India to the House, paragraph 4, containing the statement that the respondent Manu will be taken into detention under the Acts of 1971 and 1974.

In considering whether the passage of time renders the return of a fugitive unjust or oppressive, the court can have regard to everything that has happened during the time which has elapsed. If something has happened to make it oppressive and unjust to send the fugitive back, that is a circumstance to which the court can have regard.

Reg. v. Governor of Pentonville Prison, Ex parte Fernandez [1971] 1 W.L.R. 987 was dealing with something which Parliament would have

been expected to take into account. In the first place, in passing section 4 Parliament did not have in mind that people could be detained without trial for something for which people are normally tried. In the second place, Parliament did not contemplate permanent deprivation of liberty.

Everything that has happened in the past can be considered in considering whether it is unjust or oppressive to return the fugitives having regard to the passage of time. See Reg. v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192, per Edmund Davies J., at pp. 203-204, per Fenton Atkinson J., at p. 206E, per Lyell J., at p. 207F, and the decision of the House.

The Indian emergency legislation bears on the difficulty of the trial itself in that (a) witnesses for the prosecution will give evidence in the knowledge of the risk that they are liable to detention for which no reason need be given and to which there is no right of challenge in the courts; (b) in those circumstances, it will be very difficult to persuade witnesses for the defence to come forward: (c) the evidence indicates that there will be real difficulty in the respondents obtaining that fearless representation in relation to the trial that anyone accused of a serious crime would wish to have. Since the passage of time must involve consideration of the difficulties which will obtain at the trial, for example, in investigating the facts, or delay prejudicing the trial, it can equally involve the difficulties of representation at the trial following from the circumstances just mentioned. There is no logic in saying that one can take account of some of the difficulties which can arise at the trial but not of others. The emergency legislation also bears on the personal positions of the respondents. The respondent Manu will go back to immediate indefinite detention irrespective of any acquittal. He will be unable to know the reasons for or challenge that detention in any way. The respondent Omi is at risk of the same fate. Those also are circumstances which relate to the passage of time, and make it oppressive and unjust to send the respondents back, on an aspect of the case which could not be more fundamental.

In summary (a) there was evidence on which a reasonable Divisional Court could reach the conclusion which they did reach, (b) the judgment of the Divisional Court is one that should not be interfered with, alternatively, (c) if the whole matter is open to review, then, taking all the circumstances into account, by reason of the passage of time, the inherent difficulties of trial and the difficulty of obtaining a fair trial coupled with the prospect of detention, the order which the Divisional Court made was right and the respondents ought not to be returned.

David Tudor Price and Clive Nicholls for the governor of Pentonville Prison. The matters in question have been so fully canvassed that unless there is anything on which the House wishes to hear him the governor will not address it on them. The position under section 9 (1) of the Act of 1967 is that it is not a very felicitously worded subsection, but the views of the Director of Public Prosecutions and the lawyers advising the Home Office is that there is a residual power in the Home Secretary under section 9 (1) which comes from the word "may." The reading of the lawyers is that the remaining words in section 9 do not prevent "may" from giving the Home Secretary a general discretion. It would be

of assistance, if the House takes that view, if it would say so. Occasion to use this power has not yet arisen under this Act.

Hobhouse Q.C. in reply. As to the construction and application of the Act of 1967: (1) The Union of India agrees that the case has to be decided by construing and applying the Act. (When there was an unqualified discretion under the Act of 1881, that may have justified Lord Goddard C.J. in Rex v. Governor of Brixton Prison, Ex parte McCheyne [1951] 1 T.L.R. 1155, 1158 and Lord Parker C.J. in Zacharia v. Republic of Cyprus [1963] A.C. 634, 642, in sounding a warning note.) (2) Section 8 (3) specifically provides for a conditional discretion, because of the conjunction of "may" and "if." The idea of a conditional discretion is not novel in the law. As to the degree to which there is truly a discretion, see Lord Radcliffe in Zacharia v. Republic of Cyprus [1963] A.C. 634, 667. (Contrast section 9 (3): the Secretary of State "shall not" make the order.) Parliament may have contemplated that the situation might be fluid and changing (as in Zacharia), or that it might not be exactly the same before the Divisional Court as it had been before the magistrate. It is admittedly difficult to see what residual discretion there can be, but equally one must give some recognition to the wording. However, the conditions have to be satisfied. Whether the conditions are satisfied is a question of fact (of a secondary kind). (3) The condition to be satisfied here is that it must be unjust or oppressive by reason of the passage of time. The causal relationship is essential. For example, the alleged injustice arising from the Indian emergency legislation is completely independent of the passage of time. [Reference was made to Reg. v. Governor of Pentonville Prison, Ex parte Teja [1971] Q.B. 274, 290 and perSlynn J. and Lord Widgery C.J. in the present case.] (4) Section 8 applies at a stage after the fugitive has already been committed by the magistrate. This is the force of what Lord Diplock said in Reg. v. Governor of Pentonville Prison, Ex parte Fernandez [1971] 1 W.L.R. 987, 994. It is prima facie just that the fugitive should be returned for trial. (5) The Act of 1967 replaced the Act of 1881 totally. It was enacted after the decisions in Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh [1962] 1 Q.B. 211; Zacharia v. Republic of Cyprus [1963] A.C. 634 and Reg. v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192. (6) On section 9, the Union of India's submission is the same as the prison governor's. It is clear in its effect: the Secretary of State may order the fugitive's return, but he is not entitled to if certain conditions apply. There is a restriction on his discretion, but it is a restriction which only applies one way: it disentitles. There is nothing to compel him to return the fugitive.

As to the right approach of an appellate court to a matter of the present kind: the jurisdiction of the House on questions of fact is unfettered; it is entitled, obliged, to consider any question of fact raised by an appeal: see Halsbury's Laws of England, 4th ed., vol. 10 (1975). para. 744, p. 340; Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370; and section 8 (5) of the Act of 1967. The respondents' point that the Divisional Court arrived at a conclusion to which a reasonable Divisional Court could come is not the test. That would be the test for the verdict of a jury. The House should make up its own mind. It must of course be

persuaded that it ought to interfere. The Union of India has to displace the Divisional Court's findings of fact. Even if it was a question of discretion, the House should still intervene; it is entitled to if the Union of India can show that the Divisional Court has gone wrong on the facts, given undue weight to certain matters, or failed to give due weight to others, etc. As to questions of discretion, see Ward v. James [1966] 1 Q.B. 273. 293.

As to the facts of the present case as applied by the Divisional Court, Slynn J. said, ante, p. 257C-E, that there were complex and difficult issues which must arise. The issues which the respondents have relied on before the House are, however, not complex nor difficult. (In re Henderson [1950] 1 All E.R. 283, 287.) The respondents have failed to put in any evidence disclosing their defence. They have done no more than simply deny their guilt.

As to the Indian emergency legislation and the orders made against the respondent Manu (only): the Union of India makes three points. First, the facts of this case do not in any event establish injustice. Secondly, whether they do or do not, such injustice is in any event not one which arises "by reason of the passage of time." Thirdly, if any weight is to be given to this aspect of the case, it is a matter to be considered by the Secretary of State under section 9, first, because the question and the evidence relate to what Lord Devlin in Zacharia v. Republic of Cyprus [1963] A.C. 634, 690 called governmental matters, secondly, because the case does not come within sections 4 (1) or 8 (3). The consequence is that it is to be considered by the Secretary of State if at all.

On the first point, it is proved that the emergency legislation exists, but will expire at the end of the present emergency; that an order has been made against Manu, and prima facie it continues in force until the expiry of the emergency, but it is open to prior revocation; and that, therefore, Manu will be subject to detention if he returns to India, and the Union of India accepts that that will be for an indefinite period, be it short or long, without any right of appeal. The orders made have nothing to do with this crime. The Union of India accepts those facts, but a further fact is that there is no ground whatever for saying that Manu will not be tried for the pillar offences on his return. This is a matter which would be independent of the passage of time with which the House is concerned. It would have arisen in any event. If there is a lacuna in the Act, it is in the policy and drafting of section 4 (1) (c). This is really a section 4 problem rather than a section 8 one. There would only be material factually for saying that there would be injustice if there were serious grounds for thinking that Manu would be acquitted or sentenced to such a short term of imprisonment for the pillar offences that he would be released again very quickly but for the emergency orders. This is by contrast to the position in Reg. v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192, and it is emphasised that the respondents have not seen fit to indicate any defence to the charges. With regard to the question of undertakings, the Union of India invites the House to adopt the same approach as that of Lord Upjohn in Reg. v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192.

Lord Widgery C.J. in In re Kirby; Kirby v. Government of Canada (unreported), June 25, 1976, said that there was a discretion. If he meant that as widely as to bring it into line with what Viscount Simonds said in Zacharia v. Republic of Cyprus [1963] A.C. 634, then it was a loose use of the phrase.

There is a case in which the House has allowed an appeal from an order for the return of a fugitive: Reg. v. Governor of Brixton Prison, Ex parte Kotronis [1971] A.C. 250, under the Extradition Act 1870, under which the powers of the court are very limited. It followed Atkinson v. United States of America Government [1971] A.C. 197.

No injustice will be done here, because on the evidence the probability is that Manu will be convicted and sentenced to imprisonment for the pillar offences, so that the question of his serving a period under the detention order is likely to be academic. There is no basis for saying that he will not get a fair trial in India. The House must be satisfied that any matter is proved to its satisfaction: see per Lord Devlin in Zacharia v. Republic of Cyprus [1963] A.C. 634, 690. The discretion here is exercisable by the Secretary of State, not the House.

The detention order against Manu predates the present offences. It is independent of the charges brought against the respondents. If there is any injustice arising from the order, it arises completely independently of the passage of time. The same point about injustice could be made with equal force if, say, the crime had been committed in January 1976.

The discretion in section 9 (1) of the Act of 1967 serves a useful purpose. It was not by accident that the Secretary of State and the courts were given concurrent jurisdiction under the Act of 1881: Likewise under this Act.

It is just that the respondents should be returned to India.

Their Lordships took time for consideration.

March 23. VISCOUNT DILHORNE. My Lords, at Amin, a village in India, there were at a temple two sandstone pillars of great antiquity and great value. They were stolen between March 31 and April 1, 1967, but were recovered and lodged at a police station. On March 1, 1968, one Malik applied to the magistrate for the release of the pillars to him from police custody on the pretext that they were required for archaeological study for a temporary period. With the assistance of one Mehra, then a chief judicial magistrate, he obtained them and had them in his custody from that date.

On May 27, 1968, two pillars were delivered by Malik to the court and after the proceedings against those who had stolen the pillars from the temple were concluded, the two pillars lodged at the court were taken to Amin. On February 28, 1970, it was found that they were not the original pillars which had been stolen, but copies, and criminal proceedings, which have not yet been concluded, were consequently commenced against Malik and Mehra.

The original pillars were found in London in the possession, according to the prosecution but disputed by him, of Manohar Lal Narang, hereinafter referred to as "Manu." It was not until the first week of May 1976

that the involvement of Manu and of his brother Om Prakash Narang, hereafter referred to as "Omi," was discovered.

On May 13, 1976, an information report was filed by the Indian police alleging their involvement and that of a third brother Rama.

On June 26, 1976, Malik lodged a petition for a pardon. In that petition he stated that he had learnt that Manu had been arrested in London and that the original pillars had been recovered. He made a full confession and said that it was at the instigation of Manu that he approached Mehra to obtain the release of the original pillars from the police station with a view to having replicas made of them and returning not the originals but copies to the court, that the originals released were taken in a truck to Rama's house and that about a fortnight later he went to Rama and Manu's house and saw the original pillars in their backyard and two men engaged in making replicas of them. He said that two months later the originals were moved to the Narang brothers' factory and that the replicas were there completed.

Malik was granted a conditional pardon, and he later made a statement giving details of the parts played by Manu and Omi.

The information report referred to stated that the two artisans who made the replicas had testified that they had made three sets of replicas at the instance of the Narang brothers, that one set of replicas was intercepted while being taken out of India in a clandestine fashion and that 70,000 rupees had been paid by Omi to Malik in cash.

A warrant for the arrest of Manu was issued by the Metropolitan Magistrate of Delhi on July 20, 1976, on a number of serious charges, and a similar warrant was issued for the arrest of Omi on the same day.

Requests having been made for the return of Manu and Omi from England to India, authority to proceed was given in accordance with section 5 of the Fugitive Offenders Act 1967 by the Secretary of State to the Chief Magistrate at Bow Street on three charges of conspiracy, one of aiding and abetting and one of dishonestly receiving and handling the two genuine pillars knowing them to be stolen property. On October 5, 1976, a metropolitan stipendiary magistrate committed them to the custody of the Governor of Pentonville Prison, being satisfied that the evidence given before him would be sufficient to warrant their trial for these offences if they had been committed in the Inner London area.

In addition to the charges relating to the pillars, the return of Manu was also requested so that he might be tried for conspiring between January 1963 and October 1965 to commit or cause to be committed forgery of entries on shipping bills relating to the export of antiques from India. The magistrate also committed Manu to the custody of the governor for his return to India to face these charges.

Applications were then made to the Divisional Court on behalf of Manu and Omi for writs of habeas corpus and on November 29, 1976, that court ordered that they should be discharged from custody, holding that by reason of the passage of time it would, having regard to all the circumstances, be unjust or oppressive to return them. The court further ordered that they should not be released except on bail until the determination of a petition to this House by the government of India for leave to appeal and, if leave

was granted, pending the determination of the appeal. Leave to appeal was granted.

In this House, the Government of India did not seek to challenge the Divisional Court's conclusion that it would by reason of the passage of time be unjust or oppressive to return Manu to India to face the forgery charges. They sought only to challenge that court's conclusion so far as it related to the charges concerning the pillars.

Section 8 (3) of the Fugitive Offenders Act 1967 reads as follows:

"On any such application" (for habeas corpus) "the High Court ... may, without prejudice to any other jurisdiction of the court, order the person committed to be discharged from custody if it appears to the court that - (a) by reason of the trivial nature of the offence of which he is accused or was convicted; or (b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or (c) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him."

This subsection replaced section 10 of the Fugitive Offenders Act 1881 which was in the following terms:

"Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities for communication, and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period, such court may discharge the fugitive, either absolutely or on bail, or order that he shall not be returned until after the expiration of the period named in the order, or make such other order in the premises as to the court seems just."

The words "or otherwise" were omitted from section 8 (3). They were given a wide construction in a number of cases though it was not until Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh [1962] 1 Q.B. 211 that it was held that a wide construction was correct (see per Lord Parker C.J., at pp. 218 et seq.). This wide construction enabled the court to order a fugitive's discharge from custody if for any reason it had been made to appear to the court that it would be unjust or oppressive to return him.

The consequence of the omission of these words from the Act of 1967 is, as Lord Widgery C.J. and Slynn J. pointed out in the present case, and as Lord Parker C.J. pointed out in Reg. v. Governor of Pentonville Prison, Ex parte Teja [1971] 2 Q.B. 274, 290, that the powers of the court are now more restricted than they were and are now only exercisable if it appears that by reason of the trivial nature of the offence or by reason of the passage of time or because of mala fides it is unjust or oppressive to return a person.

Under section 6 of the Act of 1881 the Secretary of State had power not to order the return of a fugitive even though a court had refused

to discharge him from custody. That section provided that he might, if he thought it just, order his return. Section 9 (1) of the Act of 1967 gives the Secretary of State a similar discretion though it does not contain the words "if he thinks it just." If the case comes within subsection (3), (4) or (5) of that section, he cannot order the fugitive's return but apart from that his discretion is unfettered. He can exercise it for any reasons and its exercise is in no way affected by a contrary conclusion of a court. The Act of 1967, while restricting the powers of the judiciary, imposed no limitation on the powers of the executive.

Whether the application to the court under section 8 (3) be on the ground of the triviality of the offence or of the passage of time or of mala fides, the court is required to have regard to all the circumstances. In my opinion this can only mean circumstances relevant to the particular ground or grounds on which the application for release is based. Where that is sought by reason of the trivial nature of the offence, only circumstances relevant to the nature of the offence are to be regarded, for to order a person's release on that ground it must appear to the court that it would be unjust or oppressive to return him by reason of the trivial nature of the offence and not for any other reason.

Where the application is, as it was in this case, on the ground that it was unjust or oppressive to return him by reason of the passage of time, I agree with Slynn J. that the circumstances to which regard may be had must be relevant to the question whether or not it would be unjust or oppressive to return a person because of the passage of time: see also per Lord Parker C.J. in Reg. v. Governor of Pentonville Prison, Ex parte Teja [1971] 2 Q.B. 274, 290.

It was argued for the respondents that the trivial nature of the offence, the passage of time and mala fides were "gateways" and once through a gateway the court, after having regard to all the circumstances, could order discharge of a fugitive if any circumstances existed which would render his return unjust or oppressive. In my opinion the language of section 8 (3) does not permit of any such interpretation. It does not say that where the offence is trivial, where there has been passage of time and where there has been lack of good faith the court can order the discharge if it appears that there are any grounds for concluding that his return would be unjust or oppressive. It can only do so by reason of triviality, passage of time or bad faith. If this contention is right, then the omission of the words "or otherwise" has little significance and the power of the court remains similar to that it had under the Act of 1881, despite the change of wording. I do not think this contention well founded and I reject it.

How then should the Divisional Court approach its task? For it to order the discharge of a person, it must appear to the court that for a reason stated in section 8 (3) it would be unjust or oppressive to return him. This involves consideration by the court of the facts placed before it and the forming of an opinion as to the inferences to be drawn therefrom; in the present case it means considering all the materials before the court and then deciding whether or not the inference is to be drawn that it would be unjust or oppressive to return him. The court has, in

my opinion, to decide a question of fact, not of law or of mixed law and fact. On an appeal the question whether or not there were materials before the court on which it could come to its conclusion will, of course, be a question of law.

I do not see that the discharge of its task in deciding whether for one of the reasons stated the return would be unjust or oppressive involves an exercise of discretion by the court.

In a decision of this House on the Act of 1881 a contrary view of great weight was expressed and to that I must now refer. In Zacharia v. Republic of Cyprus [1963] A.C. 634 Viscount Simonds said, at p. 661:

"... the Divisional Court has exercised a discretionary jurisdiction under section 10 of the Act. Interference with such an exercise can only be justified if that court has clearly acted on some wrong principle, committed some error of law or failed to consider matters which demanded consideration. That is a principle upon which this House, sitting as a final court of appeal, has always acted and will, I hope, continue to act ..."

My Lords, Viscount Simonds began this part of his speech by stating that the Divisional Court had exercised a discretionary jurisdiction. That was exercisable where it was made to appear that for any reason the return would be unjust or oppressive. The court could act wherever and whatever circumstances existed which would have that result. The court has no longer power to do that.

In the same case Lord Radcliffe said, at p. 667:

"It was argued, however, on behalf of the Republic of Cyprus that in refusing to act under section 10 the Divisional Court had exercised a discretionary power vested in it by the Act and that this exercise could not be interfered with on appeal unless vitiated by the adoption of some principle of law which was itself incorrect. For more than one reason I do not think that this argument should succeed. A court acting under section 10 may in one sense be exercising or refusing to exercise a discretion, but when its power to act is introduced by the words 'where it is made to appear,' I think that it is primarily a question of law in each case whether what does appear amounts to one or more of the specified circumstances. If it does, it is, I think, the court's duty to act, not its privilege to decide whether to act or not. 'I hold that it is proved that the return of the fugitive would be unjust and oppressive and too severe a punishment, but nevertheless in the exercise of my discretion I shall take no action' is not in my opinion a maintainable attitude for a court faced with an application under this section."

Whether what does appear amounts to one or more of the specified circumstances may be, as I have indicated, a question to be considered on appeal, but I cannot think that Lord Radcliffe meant that the question was one of law for the Divisional Court and the illustration he gave commencing with the words "'I hold that it is proved'" appears to indicate that he was regarding that as a decision of fact.

We have, my Lords, to consider a different section in a different Act and in my opinion the argument advanced by Mr. Hobhouse is well-founded. The use of the word "may" in section 8 (3) suggests that the court has a discretion though sometimes the word "may" in a statute falls to be treated as an equivalent to "shall." Mr. Hobhouse contended that if by the use of the word "may" a discretion is given, it is conditional on the establishment of certain facts. If for any of the specified reasons it appears that a return would be unjust or oppressive, such discretion as there is will, as Lord Radcliffe pointed out, be only exercised in one way.

The question we have to consider is whether in reviewing the decision of the Divisional Court under the Act of 1967 we should apply the principles stated by Viscount Simonds. If we were to do so they should be applied, I think, with one addition, namely, that the exercise of discretion can be interfered with not only where there was a failure to consider matters which demanded consideration but also when there was consideration of matters which should not have been considered.

In Ward v. James [1966] 1 Q.B. 273, Lord Denning M.R. said, at p. 293, that the exercise of discretion by a judge would be interfered with when the appellate court came to the conclusion that he had decided wrongly. Viscount Simonds's observations in Zacharia v. Republic of Cyprus [1963] A.C. 634 were not drawn to that court's attention.

In my view the approach of this House to the decision of the Divisional Court should be similar to that of an appellate court to a finding of fact by a judge. In this case there were no concurrent findings of fact, for the question the Divisional Court had to decide was not and could not be raised before the magistrate. In Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370, it was said that an inference of fact by a judge would be more readily interfered with than a finding of primary facts and in the present case we are only concerned with the inference to be drawn from undisputed facts.

Whether Viscount Simonds was right in what he said as to the review of the exercise of discretion or Lord Denning in Ward v. James [1966] 1 Q.B. 273 or whether the decision is to be treated as a decision of fact matters not in my opinion in the present case, for, as I shall indicate, whichever approach is made the result is, in my opinion, the same.

The court was, and this House is, required by section 8 (3) to have regard to all the circumstances. There is no dispute as to the circumstances, though there is to the relevance certainly of one of them and different persons may attach varying degrees of weight to them. I propose to list the circumstances as follows: 1. The passage of time since the date when Manu and Omi are alleged to have committed the offences. At the time of the hearing before the Divisional Court it was over eight years and it is now approaching nine years. 2. For two years, that is to say, till 1970, the theft of the genuine pillars was, if the allegations made are correct, deliberately and successfully concealed by the substitution for them of the replicas. 3. There has been no delay on the part of the Indian authorities since they learnt of Manu's and Omi's involvement in May 1976. 4. The serious nature of the charges. They were accepted

as such by the Divisional Court. 5. The difficulties of trial when the events in issue have occurred so long ago. 6. The fact that in 1974 a detention order was made under the Maintenance of Internal Security Act 1971 of India for the detention of Manu and later that year that order was superseded by a further order for his detention made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act and that there is clearly a possibility that a similar detention order may be made in respect of Omi.

The matters referred to in paragraph 6 above were brought to the attention of the Divisional Court, but that court did not base its conclusion on them and before I consider them I propose to deal with the other five heads and the grounds on which the Divisional Court reached its conclusion.

That court accepted that it was a relevant factor that the Indian government only knew at a late stage of Manu's and Omi's involvement. No importance appears to have been attached to the fact that for two years of the time the theft of the pillars had been successfully concealed.

While I agree with Slynn J. that the fact that the Indian authorities only knew of the involvement of Manu and Omi at a late stage is not a conclusive factor, one must have regard to all the relevant factors, two of them clearly being the fact that the passage of two years was brought about by those who committed the offences and the gravity of the charges. If the offences charged are of a minor though not a trivial character, it may well be unjust or oppressive to return the alleged offenders after a passage of time which would not render their return unjust or oppressive if it was to face more serious charges.

I think the proper question to be asked in this case is, has the passage of time excluding that for which Manu and Omi are alleged to have been responsible been such as to make it appear that they will not now get a proper trial? It was on this ground that the Divisional Court made its decision.

Slynn J., with whose judgment Lord Widgery C.J. and Talbot J. agreed, held that there would be many issues of fact to be resolved. He said there were complex issues of fact which must arise. He also commented that if there had been reasonable expedition in the proceedings against Malik and Mehra "... it may be - one does not know - that Malik may have given his statement earlier ..." in which case Manu and Omi would have been in a stronger position to prepare their defence.

I cannot determine how much weight was attached by the court to this possibility, but it would not, I think, have been mentioned unless it was regarded as of some significance. With great respect I think that no importance should be attached to it, particularly as Malik's statement made to obtain a pardon was only made after and, it would appear, in consequence of Manu's arrest and the recovery of the genuine pillars in London.

Manu and Omi have not made any statements with regard to these matters. They have just said that they are not guilty. They were, of course, entitled to take that course but in the absence of anything more than a plea of not guilty I do not find that there is any material on which

one can come to a conclusion as to what issues of fact will arise at the trial or as to their complexity.

Before the Divisional Court Mr. Wilmers for Manu and Omi stated, as Slynn J.'s judgment shows, a number of matters which he said it would be necessary to consider. Some, Slynn J. said, sounded "optimistic." In this House Mr. Alexander placed more stress on the difficulty of investigating events which occurred so long ago. Some of the points he suggested sounded to me somewhat "optimistic" like the need to investigate to prove the impossibility of one of the accused having made a telephone call on a particular day.

In this connection the words of Tucker L.J. in In re Henderson [1950] 1 All E.R. 283 are pertinent. He said, at p. 287:

"It is said by counsel for the applicant ... that ... after the length of time that has elapsed the applicant cannot deal with the matters raised against him or adduce the witnesses to deal with it. We do not know nearly enough about the facts of the case to form any opinion as to the nature of the applicant's defence or the extent to which he will be prejudiced in the presentation of it by the delay which has taken place. These are all matters which can - and, no doubt, will - be considered by the tribunal of any civilised country which is dealing with a criminal matter. The length of time that has elapsed will, no doubt, be a relevant consideration for this tribunal to consider in weighing the evidence, but there is nothing in the material evidence which would, in my view, show that it is impossible for the applicant to obtain justice."

I see nothing in the material before this House to lead to the conclusion that as a result of the passage of time it would be impossible for Manu and Omi to obtain justice, and, that being so, I am unable to conclude that by reason of the passage of time their return would be unjust or oppressive.

Since the discovery of their involvement in May 1976 it must be remembered that, despite the lapse of time, the Indian authorities have since then been able to secure sufficient evidence to warrant their committal for trial had the offences charged been committed in this country.

Where, with respect, I think the Divisional Court erred was in concluding that complex issues of fact would arise at the trial without any materials before them to justify that conclusion, and, if they did so, in taking into account the speculative possibility that in certain circumstances Malik might have confessed earlier. The case which Manu and Omi have to meet I have outlined at the beginning of this speech. I cannot see that the nature of that case must inevitably give rise to complex issues of fact and I am certainly not prepared to conclude that it will in the absence of any real knowledge of the defence which they will seek to present.

So one approaches this case on the basis stated by Viscount Simonds extended to apply to cases where the court has taken into account matters which it should not have done, or whether on the basis stated by Lord Denning M.R. in Ward v. James [1966] 1 Q.B. 273 or as merely an inference of fact, the result is the same in my opinion and the decision

of the Divisional Court should not stand. As Lord Parker C.J. said in Reg. v. Governor of Pentonville Prison, Ex parte Teja [1971] 2 Q.B. 274, 290:

"At the end of the day, having considered all the circumstances, it is only when by reason of the passage of time that it is thought unjust or oppressive to return the applicant"

that an order for his discharge should be made.

I now turn to the sixth head to which I have referred, the order made for the detention of Manu and the possibility of a similar order for detention being made against Omi. Both orders made against Manu were made in 1974 before his involvement in these offences was discovered. They were not made with a view to his trial for any offence. They were for his indefinite detention without apparently any right of appeal or to have his detention reviewed. If detained, he could be detained until the emergency in India is terminated though he might be released earlier. It was argued that the effect of the order for detention would be that if Manu was granted bail in India or secured his acquittal he would be deprived of his liberty and that a similar order might with similar effect be made for the detention of Omi.

True it is that these orders were made during the passage of time since the alleged commission of the offences, but they were not brought about by the passage of time nor did they arise from the passage of time. They were not a circumstance relevant to the passage of time. It can be tested in this way. If the passage of time had been so short as to make it inconceivable that it would be unjust or oppressive to return Manu, it could not be said that if it was unjust to return him by reason of the detention order it was unjust or oppressive to do so by reason of the passage of time.

If it be unjust to return Manu on account of the detention order or to return Omi on account of the possibility of one, that cannot on the view I take of section 8 (3) entitle the court to order their discharge. It must be left to the Secretary of State if that be the case to exercise his discretion under section 9 (1).

While I do not think it strictly necessary for me to reach any conclusion on whether on account of the detention orders their return should be regarded as unjust or oppressive, I think I should make it clear that I am not satisfied that, even if the court had the powers it had under the Act of 1881, when it could have ordered their discharge if it had thought it unjust to return them or oppressive to do so with the detention orders in existence, it would have been right to do so.

For the reasons I have stated in my opinion the decision of the Divisional Court was wrong. These appeals should be allowed with the result that the orders for the discharge of Manu and Omi should be revoked. The respondents Manu and Omi should pay the costs of the Union of India and of the governor of Brixton Prison in this House and below.

LORD MORRIS OF BORTH-Y-GEST. My Lords, the determination of this appeal requires and depends upon an application of the provisions contained in the Fugitive Offenders Act 1967. That Act entirely replaced

the Fugitive Offenders Act 1881. Any decisions based upon the wording of the earlier Act must be read with the knowledge that only the wording of the current Act is now operative. The appeal concerns in particular the stage which is governed by section 8 of the Act in cases relating to the return from this country to a Commonwealth country of persons who are accused of having committed offences in the latter country.

There is no doubt that the present appeal relates to persons who are liable to be returned. There is no doubt that they have been accused of offences in India which are relevant offences within the terms of the Act. There is furthermore no doubt that there was compliance with certain statutory requirements in that there was an authority to proceed issued by the Secretary of State within the provisions of section 5 and there was a certificate issued pursuant to section 4 (4). Thereafter, following upon arrests, there were proceedings before the court of committal. That court was satisfied that the evidence concerning the offences referred to in the authority to proceed was such that it would be sufficient to warrant trial for those offences had the offences been committed within the jurisdiction of the court of committal. So the two persons were committed to custody to await their return. If they are returned to India it will be for the purpose of their being tried for offences alleged to have been committed in India with no finding save that had the offences been committed in this country the evidence would have been such as to warrant a trial taking place.

We are not concerned in this appeal with those proceedings for committal. But under the scheme of the Act there may after committal be two later stages before a person is actually returned. There may be a stage which is within the provisions of section 8. A person committed to custody may make an application for habeas corpus and one result might be that he would be discharged from custody. If, however, he was not so discharged or if he made no application for habeas corpus the next and separate stage rests with the Secretary of State as laid down by the provisions of section 9. Again we are not concerned with such stage. The Secretary of State has to decide whether or not he will make an order for the return. The Secretary of State "may" by warrant order the return. He may so order unless the return is prohibited by section 4 or section 9 or unless he "decides" under section 9 to make no such order. It is to be observed that under subsection (3) of section 9 there are certain circumstances under which the Secretary of State must not make an order for return and certain circumstances under which he may decide to make no order. The former covers the case of any person

"... if it appears to the Secretary of State, on the grounds mentioned in subsection (3) of section 8 of this Act, that it would be unjust or oppressive to return that person, ..."

Apart, therefore, from various other matters the Secretary of State has an independent duty to consider whether on the grounds mentioned in section 8 (3) it would be unjust or oppressive to return a person even if the High Court (or on appeal your Lordships) have already given consideration to that question.

The stage in respect of which your Lordships are concerned arose when the two Indian respondents exercised their right under section 8 to make an application for habeas corpus. The application was based upon the provision set out in section 8 (3) (b). It was heard by the Divisional Court. The court was invited to order that the two persons concerned be discharged from custody if it appeared to the court that by reason of the passage of time since the two persons were alleged to have committed the offences (i.e. those which were before the court of committal) it would, having regard to all the circumstances, be unjust to return them.

To the Divisional Court it did so appear. From the decision of that court appeal lies with leave to your Lordships' House (see section 15 of the Administration of Justice Act 1960). After leave was obtained appeal was brought. Certain submissions were made in regard to the approach on such an appeal. In my view the approach should be directed by a faithful application and following of the words of the statute. I would discountenance any formulation suggesting that it will only be in an exceptional or extremely rare case that a discharge after committal should be ordered. It may well be that in cases where applications are made under section 8 there will be a preponderance of those in which the claim is rejected that a return would be unjust. But whether this is so or not each case has to be considered on its own facts and circumstances and a view has to be formed in each case as to whether a return would or would not be unjust. There can therefore be no set pattern. There can be no standard case. Equally therefore it seems to me that if appeal is brought to this House the question whether a return would or would not be unjust is one to be determined in accordance with the opinions arrived at in this House. It was submitted that an appeal should be resolved by considering whether a Divisional Court could reasonably have arrived at the conclusion which they reached and, if so, that your Lordships should defer to it. I cannot accept such a submission. An appeal so contrived would be a barren and idle exercise. An opinion (for such it is) as to whether, having regard to certain circumstances, a return would or would not be "unjust" seems to me to require personal and individual judgment and consideration. No question concerning or assessing the veracity or the dependability of a witness enters into the matter.

The facts and circumstances which have to be surveyed in this appeal are those which were before the Divisional Court. The knowledge that the members of that court on a matter which essentially involves forming what must be a personal view as to what would or would not be "unjust" have formed a certain opinion naturally has the result that such opinion will be treated with the very greatest respect. An appellant will have the onus of displacing it. No contrary opinion will lightly be formed. But if after due consideration a contrary opinion is in fact formed, those upon whom devolves the duty of considering the matter cannot in my view be absolved or inhibited from expressing their opinion. If they were there would be little purpose in having an appeal.

The ground on which the application for habeas corpus was based was that which is set out in subsection (3) (b) of section 8. The High

Court may, without prejudice to any other jurisdiction of the court, order a person committed to be discharged from custody if it appears to the court that by reason of the passage of time since the person is alleged to have committed the offence or offences in question it would, having regard to all the circumstances, be unjust to return him. In a comparable way, mutatis mutandis, there might be an order of discharge in the case of a person who is alleged to be unlawfully at large after conviction if it would be oppressive to return him. In the present case the passage of time is said to be the period since the year 1968. For the purposes of the case I proceed on the basis that the words in section 8 (3) (b) - viz. the words "since he is alleged to have committed it" (i.e. the offence of which the person is accused) - denote the time since the date of the alleged offence rather than the time since the date when the allegation was first made against the accused person.

It is to be noted that the section requiring the court to consider whether by reason of the passage of time it would be unjust to return the person requires the court to consider whether that would be so having regard to all the circumstances. What, then, is the requirement which by the words "having regard to all the circumstances" is added to the function or duty of the court? It seems to me that the court is enjoined to have "regard" to all the circumstances which reasonably can have bearing on the question whether "by reason of the passage of time" an order to return would be unjust. The circumstances must all relate to the passage of time and relate to the question whether there would be injustice because of the passage of time if an order to return was made.

The circumstances will naturally have arisen during the period of the passage of time but not all such circumstances will be relevant. Those in contemplation are primarily the circumstances which have relation to the trial which, after a return, is to take place and to the defence to charges to be made and to the question whether "by reason of the passage of time" it would be unjust to a person to return him to take his trial.

Viewed in the abstract it would not seem to be unjust to bring it about that a person accused of an offence should be put on trial (and later be either convicted or cleared) if there is sufficient evidence to warrant the taking place of such a trial. Nor is there anything unjust in itself in ordering the return of such a person from the United Kingdom or a Commonwealth country. The Act of 1967 was enacted for the express purpose of making provision for such a return. Parliament has, however, recognised that such a return might be unjust. It might be so if the alleged offence was of a trivial nature. So also if an accusation was not made in good faith in the interests of justice. So also it might be in some cases by reason of the passage of time. A person might, for example, be prejudiced and placed in difficulty if by reason of the passage of time certain lines of defence became no longer available. Everything must, however, depend upon the facts and circumstances of each particular situation. I refrain from giving examples because there is peril of their being regarded as classifications. There may be cases where the passage of time has been brought about by some planned and devised

concealment which for long has been successful. It might be ironical that in such a case a plea to prevent injustice caused by the passage of time should be advanced by someone who had contrived the concealment. Such an approach ought, however, to be viewed with the utmost caution for to speak of concealment may involve an unwarranted assumption of some guilt or some complicity before an accusation has been investigated and proved.

I think that the present case must be approached simply by considering all the facts and circumstances which were before the Divisional Court and then deciding whether by reason of the passage of time it would be unjust if an order for return were made. Looking at the charges with which alone we are concerned (the various forgery charges not being before us) it does not seem to me that they are complex or complicated or difficult: it does not seem to me that the passage of time has presented problems for the defence to an extent that would now make it unjust to require the two persons to face the charges. Nor am I persuaded that any serious difficulties of investigation in regard to their defence have by now arisen.

I do not find it necessary to reiterate the various facts and circumstances inasmuch as they have been set out in the speech (which I have had the advantage of reading and with which I agree) of my noble and learned friend Viscount Dilhorne.

It was strongly urged that an order for return would be unjust for the reason that certain orders were made against Manu Narang under the terms of the Maintenance of Internal Security Act 1971 and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974. On January 31, 1975, a detention order was made against Manu Narang which is said to remain in force. On May 25, 1975, there was an order directing him to appear before the police commissioner at Bombay. A failure to comply with such order would constitute a criminal offence. Against being prosecuted for such offence the arrangement which has been made in accordance with section 4 of the Act would be a protection. But detention under the order would not be by reason of race, religion, nationality or political opinions and the restriction on return prescribed by section 4 (1) would in consequence not apply. It was urged therefore that if Manu is returned he would be returned pursuant to the terms of an Act which contemplates return only for the purpose of being tried in respect of particular prescribed charges whereas on the return of Manu the detention order against him would operate; it was urged that there would be risk that an order against Omi might be made. It was submitted that as a consequence it would be unjust to return them. It is to be observed that the orders against Manu were made before the criminal charges now in question were preferred. Whatever significance there may be in any of these matters it does not seem to me that they bear any sufficiently close relationship to the question whether an order for return would result in injustice by reason of the passage of time since the alleged events upon which the criminal charges are founded.

For the reasons which I have given I would allow the appeals.

LORD EDMUND-DAVIES. My Lords, this is seemingly the first case, certainly under the Fugitive Offenders Act 1967, in which the Divisional Court has ordered the discharge of a fugitive offender from custody and the requesting government has appealed to your Lordships' House against that order.

In numerous cases decided under the Fugitive Offenders Act 1881 it was said that in making or refusing an order for the release of a fugitive the Divisional Court was exercising a discretion. But in In re Henderson [1950] 1 All E.R. 283, 286 Tucker L.J. was prepared to express no "final view" on the point, and, contrary to the observations of Lord Goddard C.J. in Rex v. Governor of Brixton Prison, Ex parte McCheyne [1951] 1 T.L.R. 1155, 1158, that case is not the clearest authority for the proposition that section 10 of the Act of 1881 "... confers on this court a wide discretion, ..." But in Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh [1962] 1 Q.B. 211, 219 Lord Parker C.J. undoubtedly held that the court had "... unlimited discretion to do what in all the circumstances is just, ..." (p. 217), while in Zacharia v. Republic of Cyprus [1963] A.C. 634 Lord Devlin said, at p. 690, that "... the discretion given to the Secretary of State is as wide as that given to the court under section 10; ..." I must refer later to the speech of Viscount Simonds in that case regarding the grounds upon which an appellate court can interfere with the exercise by the Divisional Court of what he also described as "a discretionary jurisdiction under section 10 of the Act." (p. 661.) But it is appropriate at this stage to refer to the powerful dissenting observations of Lord Radcliffe, who said, at p. 667:

"A court acting under section 10 may in one sense be exercising or refusing to exercise a discretion, but when its power to act is introduced by the words 'where it is made to appear,' I think that it is primarily a question of law in each case whether what does appear amounts to one or more of the specified circumstances. If it does, it is, I think, the court's duty to act, not its privilege to decide whether to act or not. 'I hold that it is proved that the return of the fugitive would be unjust and oppressive and too severe a punishment, but nevertheless in the exercise of my discretion I shall take no action' is not in my opinion a maintainable attitude for a court faced with an application under this section."

In these appeals we are concerned to consider the working of section 8 of the Fugitive Offenders Act 1967. Its wording is, as Lord Parker C.J. said in Reg. v. Governor of Pentonville Prison, Ex parte Teja [1971] 2 Q.B. 274, 290, "very much narrower in its ambit" than section 10 of the Act of 1881, a point also stressed in the present case by Lord Widgery C.J. and Slynn J. Not only is the wording of the two provisions different, but the whole lay-out is dissimilar. It is true that the opening words of the old section 10 ("Where it is made to appear to a superior court ...") are echoed in the new section 8 (3) ("... if it appears to the court ..."), and that both sections require that regard be had "to all the circumstances." But there is omitted from the latter the important words "... or otherwise," which were held in Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh [1962] 1 Q.B. 211 to expand the ambit

of section 10 greatly, and the operation of section 8 (3) does not go beyond cases falling within the categories (a), (b) or (c) therein set out. These important differences in the statutory language enable this House, as I think, to approach the interpretation of section 8 (3) unfettered by decisions under the earlier Act.

What, then, is a Divisional Court called upon to do when considering an application for the release of a fugitive offender under section 8 (3)? In the light of all the circumstances, they have to ask themselves whether it "appears" to them that (a) the offence is of a trivial nature, or (b) there has been a passage of time since the fugitive is alleged to have committed the offence charged or to have become unlawfully at large, as the case may be, or (c) the accusation against him is not made in good faith in the interests of justice. If it does appear to them that the case falls within one or more of the three categories, the Divisional Court have then to decide whether "by reason" or "because" (the two are surely synonymous) of the foregoing facts it would be "unjust or oppressive" to return the fugitive. One begins, as Lord Radcliffe said in Zacharia v. Republic of Cyprus [1963] A.C. 634, 667, with a question of law, but what is finally called for is a conclusion of fact. Although it may be said correctly that at the end of their deliberations the Divisional Court have to form an opinion on the matter of injustice or oppression, that is as much a conclusion of fact as is, for example, an opinion or inference, based on primary facts, that in all the relevant circumstances the conduct of a party has been "reasonable" or "unreasonable," as the case may be.

Then what course is open if, at the end of their deliberations, a Divisional Court conclude that it would be unjust or oppressive to return the fugitive? Section 8 (3) provides that they "may ... order the person committed to be discharged from custody ..." Does that word "may" leave it open to the court to take any other course? Having concluded that to order the return of the fugitive would be unjust or oppressive, can it really be said that the Divisional Court nevertheless have a discretion to do that very thing? In my judgment, no such discretion exists. Conversely, if no injustice or oppression has been made to appear, the court have no alternative but to make the order sought by the requesting government. Not for the first time in statutory construction, the word "may" in section 8 (3), relating as it does to a man's liberty, has to be treated as equivalent to "shall"; see In re Shuter [1960] 1 Q.B. 142, a case on section 7 of the Fugitive Offenders Act 1881, and the decisions collected in Maxwell on Interpretation of Statutes, 12th ed. (1969), p. 281.

It is true that indications to the contrary appear in a few of the reported cases. Thus, in Reg. v. Governor of Pentonville Prison, Ex parte Fernandez [1971] 1 W.L.R. 987, Lord Diplock said, at p. 990, that a decision under section 8 was "one of fact and of discretion," but his conclusion was clearly one of pure fact flowing from the trivial nature of the case and the passage of time. And in In re Kirby (unreported), June 25, 1976, Croom-Johnson J. said that the question of injustice or oppression had to be "looked at widely and simply dealt with in the discretion of the court" (transcript, p. 16), but his conclusion was manifestly solely one of fact. Until now it seems that no court has been called upon to deal

with the direct question as to whether a decision to make or refuse an order under section 8 (3) turns, at the end, on the court's discretion. What the statutory provision does is to confer upon the court a power to make (or refuse) an order and it imposes on the court a duty to act according as to whether or not it is satisfied that to make an order would be unjust or oppressive. That being so, in my judgment it is wrong to adopt in relation to proceedings under the Act of 1967 (such as the present) the view expressed by Viscount Simonds in Zacharia v. Republic of Cyprus [1963] A.C. 634, 661 in relation to a case brought under section 10 of the Act of 1881 that an appellate committee must regard the Divisional Court decision as one arrived at in the exercise of a discretionary jurisdiction. Instead, your Lordships are, in my judgment, presently required to approach the decision in the case of Manu and Omi in the way indicated by this House in Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370. No question of the credibility of witnesses being involved, this means that this House is free to form its independent opinion regarding the alleged injustice or oppression which would follow were that order made which is sought by the appellants. Indeed, having given due weight to the decision of the Divisional Court, your Lordships are obliged to do just that.

Then upon what grounds did the Divisional Court order that these respondents be discharged from custody? Slynn J. did so because in his view:

"It is plain that investigating these events which took place in 1967 and 1968 would be difficult at this distance of time. There are complex issues of fact which must ... arise" (ante, p. 257C-D).

Let me say something about the two points involved in those observations.

(1) The passage of time. Section 8 (3) (b) requires time to be measured from 1968, when the accused are alleged to have committed the offences charged. But the Divisional Court recognised that not until 1970 was the commission of the crime discovered, and that it was not until the first week of May 1976 that the government of India learnt of the alleged involvement of the fugutives. Slynn J. said in terms that "this is a factor in considering whether the passage of time makes it unjust to send a man back," but he refused to regard it "as a conclusive answer when other factors suggest that the delay may cause injustice" (ante, p. 257A). What were those other factors? Apart from the suggested difficulty of investigation, only one seems to have been suggested, viz. that Malik and Mehra had been charged at an early stage, yet from 1972 little appeared to have been done, and:

"If there had been a reasonable expedition in the proceedings it may be - one does not know - that Malik might have given his statement earlier and the two applicants would have been in a stronger position to prepare their defence" (p. 257D-E).

Mr. Hobhouse described this as pure speculation, and I have to add, with respect, that it is speculation upon speculation and that I do not find it warranted by the available material. I have been somewhat puzzled, too, regarding the relevance of Slynn J.'s comment that Malik's statement incriminating the respondents was made only after his application for a

pardon, and that: "Once again one has the story only revealed fully for the first time on the evidence of an accomplice who was granted a conditional pardon" (ante, p. 256G).

In all the circumstances, it appears to me that the government of India cannot properly be held blameworthy in the matter of the passage of time since 1968, and, indeed, it is not clear to me that the Divisional Court thought it was. That fact bears upon the issue of injustice or oppression and was rightly borne in mind by Lord Parker C.J. in Reg. v. Governor of Pentonville Prison, Ex parte Teja [1971] 2 Q.B. 274, 290. And the task of establishing injustice or oppression, which rests upon the fugitive (Zacharia v. Republic of Cyprus [1963] A.C. 634, per Lord Parker C.J., at p. 639), is surely more onerous where time has passed by reason of the fugitive's skill in concealing even the fact that a crime was committed, as well as that he was involved in its commission.

Having said that, this is as convenient a stage as any to deal with the view expressed several times in cases under the Act of 1881 regarding the manner in which the Divisional Court should direct itself when, as here, habeas corpus is applied for. In Rex v. Governor of Brixton Prison, Ex parte McCheyne [1951] 1 T.L.R. 1155 Lord Goddard C.J. said of the applicant, at p. 1158, that the Divisional Court had

"come to the conclusion that this is a case of the rare and exceptional class in which we ought to exercise our power under section 10 and refuse to make an order for his return,"

and in Zacharia v. Republic of Cyprus [1963] A.C. 634 Lord Parker C.J. concluded, at pp. 641-642, that it was "not a case in which the court should exercise the very special powers given to them under section 10," and continued:

"I should add that it is comparatively rare for the court to exercise those powers, and for the very good reason that in dealing with the government of a friendly power it would only be in an extreme case that the court would think it right to refuse their request to have their national returned to their country for an alleged offence committed in that country."

But the wording of section 10 itself surely required the jurisdiction to refuse to make an order for the fugitive's return to be exercised in every case where the court was satisfied that it would be unjust or oppressive to return him, and not merely in an "extreme case" - whatever that may mean. And, whatever may have been the reason underlying this attitude of the court in relation to section 10 of the Act of 1881, I can conceive of no grounds upon which a similar attitude should be adopted and applied in administering section 8 of the Act of 1967. If the fugitives fail to satisfy the court as required by the section, the court has no jurisdiction to refuse an order for their return, but if they do satisfy the court it has no alternative but to refuse to make the order.

(2) Inherent difficulties. Is it correct to say, as the Divisional Court here did, that "complex" and "difficult" issues of fact are involved and that investigation into them has now become more onerous by the passage of time? Such material as was adduced before the Divisional Court and

this House does not, in my judgment, justify an affirmative answer to that question. The respondents are in the difficulty that, beyond a bare denial of guilt, they have proffered no version of the criminal matters in which they are said to have been implicated. It is undoubtedly true that they were under no sort of obligation to do so, but the fact is that, despite the valiant efforts of learned counsel for the fugitives, no persuasive indication has been given of issues more complex than those in many stealing or handling charges and this despite the unusual facts of the case. In these circumstances, it is well to recall some observations of Tucker L.J. in In re Henderson [1950] 1 All E.R. 283. He said, at p. 287:

"We do not know nearly enough about the facts of the case to form any opinion as to the nature of the applicant's defence or the extent to which he will be prejudiced in the presentation of it by the delay which has taken place. These are all matters which can - and, no doubt, will - be considered by the tribunal of any civilised country which is dealing with a criminal matter. The length of time that has elapsed will, no doubt, be a relevant consideration for this tribunal to consider in weighing the evidence, but there is nothing in the material evidence which would, in my view, show that it is impossible for the applicant to obtain justice."

Finding myself thus unable to adopt the grounds upon which the Divisional Court arrived at its decision, it follows that the outcome of these appeals must be the same whether (as I hold) it turns upon the view formed by this House of the facts or whether the Divisional Court's decision should be regarded as having been arrived at by the exercise of a discretion vested in them. For, even were it the latter, the case is one entitling and obliging this House to interfere, since, applying the test enunciated by Viscount Simonds in Zacharia v. Republic of Cyprus [1963] A.C. 634, 661, it has to be said respectfully that the Divisional Court took into consideration matters of conjecture and points which strike me as lacking cogency.

There remain to be considered the detention orders made in 1974 and still extant for the indefinite detention of Manu which would presumably be enforced on his arrival in India, and also the fear entertained by Omi that a similar order may then be made against him. As I am in respectful agreement with the observations of my noble and learned friend Viscount Dilhorne on this matter, I propose making only a few brief comments.

(A) The Divisional Court did not find it necessary to deal with these orders and, in any event, would have been no more competent than is your Lordships' House to decide whether they were justly made. As Lord Devlin said in Zacharia v. Republic of Cyprus [1963] A.C. 634, 690: "These are matters which must be the subject of governmental and not of judicial investigation." And section 9 of the Act of 1967 invests the Secretary of State with far wider powers than those of the court and enables him, notwithstanding an order to return the fugitives made by the court, to declare that such order should not be made and thereby to ensure that the fugitive does not have to leave this country.

(B) The wording of section 8 (3) (b) requires that it must be "by reason of the passage of time" that it would, having regard to all the

circumstances, be unjust or oppressive to return the fugitive. The fact that a detention order against Manu exists is undoubtedly a circumstance in his case, but I have some doubt that Omi's fear that a similar order may be made against him is equally a circumstance. Be that as it may, in Reg. v. Governor of Pentonville Prison, Ex parte Teja [1971] 2 Q.B. 274 Lord Parker C.J. said, at p. 290:

"... I very much doubt that one is entitled to take into consideration as part of the circumstances anything which does not flow from or is unconnected with the passage of time."

In the present case Slynn J. went further by saying without qualification ante, p. 253C:

"It seems to me that the circumstances in a case where paragraph (b) is relied on must be such as to be relevant to the question of whether it would be unjust or oppressive to send back an applicant because of the passage of time. The circumstances must in subsection (3) relate to the context of the particular paragraph relied on, (a), (b) or (c)."

In my respectful view that is the proper approach to the subsection. Applying it to the facts of this case, it is clear that neither the actual detention order in Manu's case nor Omi's fear of a similar order can be said to have come into being "by reason of the passage of time" since 1968. That being so, it follows that in my judgment they cannot properly be regarded as having any bearing upon the determination of this House as to the proper outcome of these appeals.

For the foregoing reasons I would allow them.

LORD FRASER OF TULLYBELTON. My Lords, these appeals have been taken against orders made by the Divisional Court under section 8 (3) (b) of the Fugitive Offenders Act 1967 on the ground that, by reason of the passage of time since the applicants were alleged to have committed the offences, it would be unjust or oppressive to return them to India for trial.

The first question that arises is: what is the proper test to be applied in considering whether the decision of the Divisional Court ought to be disturbed? In particular, was the decision made in the exercise of the court's discretion with the result that this House would only be entitled to alter it on the relatively limited grounds which justify interference with discretion, or is it a decision of fact which is open to review if this House considers that it was wrong? The answer to these questions depends upon the provisions of section 8 of the Fugitive Offenders Act 1967. Subsection (3) of section 8 provides that on an application by a person who has been committed to custody by the magistrate under section 7 of the Act the High Court "may" order him to be discharged "if it appears to the court" that it would be unjust or oppressive, etc. The word "may" is prima facie permissive and suggests that the court is being given a discretion, although it has sometimes been construed in statutes to mean "must." There is nothing in section 8 which, in my opinion, indicates that the word is used in subsection (3) in the

imperative sense. Indeed the indications from the contrast between the words "shall" and "may" as used throughout section 8 seem to me rather to the opposite effect. But any discretion given to the court by section 8 (3) is only conditional, coming into existence only "if it appears to the court" that for one of the reasons therein specified it would be unjust or oppressive to return the person for trial. Once that has been made to appear to the court, there seems to be little room for the court still having a discretion; I have not been able to imagine circumstances in which the discretion might be exercised against ordering discharge, nor were any plausible suggestions made during the argument. At the very most any discretion must in practice be so restricted that it could only be exercised in the most exceptional circumstances. It seems to me therefore that the view expressed by Lord Radcliffe in Zacharia v. Republic of Cyprus [1963] A.C. 634, 667 in relation to section 10 of the Fugitive Offenders Act 1881, and quoted by my noble and learned friend, Viscount Dilhorne, must in any ordinary circumstances be equally applicable to section 8 (3) of the Act of 1967. But I would not exclude the possibility that exceptional circumstances might occur in which the court could properly hold that, although it appeared that it would be unjust or oppressive on one of the specified grounds to return the person, yet the court would not order his discharge. I would therefore not go so far as to hold that the court is left with no discretion in this matter and, for the following reason, it does not appear to me necessary to go so far as that for the decision of the present appeals.

The passage to which I have referred in the speech of Lord Radcliffe contains, I think, the only reference in the speeches of the noble and learned Lords who took part in the decision of Zacharia v. Republic of Cyprus to the distinction between the two questions which were involved in that decision and which are, in my opinion, also involved in the present decision. The first question was whether it would be unjust or oppressive to return the fugitive, and the second question was whether, if the first question had been answered in the affirmative, an order for his discharge should be made. The opinion expressed in that case by Viscount Simonds, at p. 661, that the Divisional Court had exercised a discretionary jurisdiction under section 10 of the Act of 1881 (which has been quoted by my noble and learned friend, Viscount Dilhorne) was, I think, directed entirely to the first of those questions. That is apparent from the fact that Lord Simonds immediately went on to consider an argument that the request for the appellant's return to Cyprus had not been made in good faith, and that his return would therefore be unjust or oppressive. But the grounds on which the court could relevantly find injustice or oppression established under the Act of 1881 were different from, and much wider than, the grounds on which the court can relevantly find injustice or oppression under the Act of 1967. Accordingly Lord Simonds's opinion with regard to the discretion in answering the first question under the former Act does not appear to me to be applicable to the different provisions of the latter Act. In my opinion the court, in answering the first of the two questions necessary for a decision under the Act of 1967, is merely answering a question of fact which is open to

review on normal principles. The decisions which are under review in the instant appeals were plainly decisions on the first question, that is to say decisions as to whether it would be unjust or oppressive to return the fugitives.

For these reasons, I am of opinion that the decision of the Divisional Court was not reached by the exercise of any judicial discretion. It was an inference from the primary facts found, of the same kind as an inference that some action was reasonable or unreasonable. Such decisions, of course, involve matters of opinion but they are to be regarded as decisions of fact. It is therefore open to review in this House if your Lordships are of opinion that it was wrong: see Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370. I find support for that view in one of the few reported cases under the Act of 1967, Reg. v. Governor of Pentonville Prison, Ex parte Fernandez [1971] 1 W.L.R. 987, where Lord Diplock said, at p. 990:

"The fourth [ground of appeal] is one of fact and of discretion. It is that the appellant ought to have been discharged from custody under section 8 (3) of the Act because, by reason of the trivial nature of the offence of which he is accused and the passage of time since he is alleged to have committed it, it should have appeared to the Divisional Court that it would be unjust or repressive" (sic) "to return him to Singapore."

I read Lord Diplock's statement that the ground of appeal was one of "fact and discretion" as a reference to the two questions to which I have already referred, the first being a question of fact and the second of discretion.

The question then is whether the appellant has discharged the onus of showing that, on the balance of probabilities, the Divisional Court came to a wrong decision. The provisions of section 8 (3) so far as directly material are these:

"On any such application the High Court ... may, ... order the person committed to be discharged from custody if it appears to the court that - ... (b) by reason of the passage of time since he is alleged to have committed it [sc. the offence] ... it would, having regard to all the circumstances, be unjust or oppressive to return him."

In order to entitle the court to order discharge it is not enough for it to appear to the court that returning the fugitive would be unjust or oppressive; the injustice or oppression must arise by reason of the passage of time, that is to say it must be caused by the passage of time. The difficulty is in seeing exactly what effect is to be given to the words "having regard to all the circumstances." At one stage of the argument for the respondents it was suggested that, provided there had been a passage of a considerable period of time, any circumstance at all that had arisen during that period was relevant and material. I reject that argument because it overlooks the provision that the injustice must have been caused by the passage of time. On the other hand it was argued on behalf of the appellants that the only circumstances that could be

relevant were circumstances which were themselves caused by the passage of time. I reject that view as too limited. The importance of the provision that regard is to be had to all the circumstances is, in my opinion, that it requires the court to consider all the circumstances of the particular applicant and not to apply any general rule of thumb. But it is only if the passage of time, operating in those particular circumstances, would cause injustice or oppression that the condition for the court to make an order is satisfied.

It seems to me that the only circumstances in which passage of time can operate must be circumstances having some connection with the passage of time. I respectfully agree with the observations of Lord Parker C.J. in Reg. v. Governor of Pentonville Prison, Ex parte Teja [1971] 2 Q.B. 274, 290. I have no intention of making an exhaustive list of such circumstances but I think that they would include the reasons for the passage of time since the offence; if the reason was that the requesting government had been dilatory, then the passage of time would tell in favour of the fugitive - as in Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh [1962] 1 Q.B. 211 - but if the passage of time was inevitable - as in In re Henderson [1950] 1 All E.R. 283 - it would not. Other relevant circumstances might be the age of the appellant, and whether he has settled in the United Kingdom: see Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh.

The material facts in the instant appeals have been summarised by my noble and learned friend, Viscount Dilhorne, whose speech I have had the advantage of reading, and I agree with his summary. The passage of time between the beginning of the criminal activities alleged against the applicants in February 1968 and the bringing of charges against them in 1976 is, of course, very considerable. But there is no evidence tending to show that it was due to any lack of diligence by the government of India, and, since the discovery in May 1976 that the applicants were involved, the government has acted promptly. With all respect to Slynn J., with whose opinion Lord Widgery C.J. and Talbot J. agreed, I do not think there is any evidence to support a conjecture that, if there had been greater expedition in the proceedings in India, the confession by Malik which apparently led to the discovery that the applicants were involved in the offences would have been made any sooner.

Apart from the mere passage of time the other factor relied upon by the learned judge is that, as he puts it, "there are complex issues of fact which must ... arise." It is this part of the judgment which seems to me to require a decision as to whether the judgment is to be regarded as an exercise of discretion or not. Complexity is a matter of degree. With all respect to my noble and learned friends who think otherwise, I do not think it is possible to classify the issues that are likely to arise in this case, if it goes to trial, simply as either complex or not complex, as if these were sharply distinguishable descriptions like black and white. The issues do, in my view, have some degree of complexity; I have in mind particularly the investigation that may be required into how the ancient pillars came to be in London in May 1976 and also into the whereabouts and activities of the applicants on certain dates in 1968

when particular events are said to have taken place. I recognise that no defence of alibi, and indeed no defence at all other than a bare denial of the charges, has yet been made, but investigation of these matters on behalf of the defence seems to me likely to be required. If the decision of the Divisional Court had been reached by an exercise of discretion, I would not have felt entitled to interfere with it, because I am not satisfied that it proceeded upon any wrong principle or error of law. But, with all respect to the opinion of the learned judges of the Divisional Court, I have reached the opinion that the issues are not likely to be of such degree of complexity as to lead to a conclusion in favour of the applicants. If I am entitled, and indeed bound, to give effect to my own opinion, as I think I am, I would therefore allow the appeal.

With regard to the detention order made against Manu, and to the possibility that an order might be made against Omi, I agree with my noble and learned friend, Viscount Dilhorne, that these matters are not relevant to the passage of time. In any event I am far from satisfied that, even if they had been so relevant, there would be anything unjust or oppressive in returning the applicants to India while the order against Manu is in force and while a similar order might be made against Omi. Any question relating to the detention orders is not in my opinion a matter for your Lordships' House, although it may be very proper for consideration by the Secretary of State in the exercise of his powers under section 9 of the Act.

I would allow the appeals with the result stated by my noble and learned friend on the Woolsack.

LORD KEITH OF KINKEL. My Lords, the facts of this case have been fully set out by my noble and learned friend Viscount Dilhorne, and there is no need for me to restate them.

Section 8 (3) of the Fugitive Offenders Act 1967 provides that on any application for habeas corpus:

"... the High Court ... may, without prejudice to any other jurisdiction of the court, order the person committed to be discharged from custody if it appears to the court that - (a) by reason of the trivial nature of the offence of which he is accused or was convicted; or (b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or (c) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him."

The applicants in the present case founded only upon paragraph (b) of the subsection, and the Divisional Court decided in their favour. The question is whether that decision was correct.

It is necessary to consider first what is the correct test to apply for the purpose of reviewing the decision of the Divisional Court. It was argued for the appellants that the proper test was that normally applied when an appellate court is reviewing a decision of fact by a judge of first instance. The nature of that test was dealt with by this House in

Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370. Viscount Simonds, at p. 373, quoted with approval a passage from the speech of Viscount Cave L.C. in Mersey Docks and Harbour Board v. Procter [1923] A.C. 253, 258-259:

"The procedure on an appeal from a judge sitting without a jury is not governed by the rules applicable to a motion for a new trial after a verdict of a jury. In such a case it is the duty of the Court of Appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted, and to decide accordingly."

Lord Reid said, at p. 376:

"But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion."

Mr. Alexander, on the other hand, for the Narang brothers, argued that the appropriate test was that applicable when reviewing the exercise of a discretion. He founded particularly upon a passage from the speech of Viscount Simonds in Zacharia v. Republic of Cyprus [1963] A.C. 634. That was a case under section 10 of the Fugitive Offenders Act 1881, which was repealed and replaced by the Act of 1967. The passage is as follows, at p. 661:

"... the Divisional Court has exercised a discretionary jurisdiction under section 10 of the Act. Interference with such an exercise can only be justified if that court has clearly acted on some wrong principle, committed some error of law or failed to consider matters which demanded consideration. That is a principle upon which this House, sitting as a final court of appeal, has always acted and will, I hope, continue to act, ..."

In the same case Lord Radcliffe found difficulty in the view that the function of the Divisional Court under section 10 of the Act of 1881 was a discretionary one. He said, at p. 667:

"A court acting under section 10 may in one sense be exercising or refusing to exercise a discretion, but when its power to act is introduced by the words 'where it is made to appear,' I think that it is primarily a question of law in each case whether what does appear amounts to one or more of the specified circumstances. If it does, it is, I think, the court's duty to act, not its privilege to decide whether to act or not. 'I hold that it is proved that the return of the fugitive would be unjust and oppressive and too severe a punishment, but nevertheless in the exercise of my discretion I shall take no action' is not in my opinion a maintainable attitude for a court faced with an application under this section."

My Lords, the terms of section 10 of the Act of 1881 were significantly different from those of section 8 (3) of the Act of 1967. They were:

"Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities for communication, and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period, such court may discharge the fugitive, either absolutely or on bail, or order that he shall not be returned until after the expiration of the period named in the order, or make such other order in the premises as to the court seems just."

The words "or otherwise," which do not appear in section 8 (3) of the Act of 1967, have been interpreted widely as giving the court an unlimited field for finding grounds upon which it would be unjust or oppressive or too severe a punishment to return the fugitive: see Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh [1962] 1 Q.B. 211. In these circumstances the view that the function of the court under section 10 was a discretionary one is understandable, but it is unnecessary to decide whether or not it was correct. For the altered wording of section 8 (3) of the Act of 1967, and in particular the omission of the words "or otherwise," has created a new situation. Three grounds only are specified upon one or more of which the court may conclude that it would be unjust or oppressive to return the fugitive. The words "if it appears to the court that" have the meaning, in my view, that the court must survey the facts and draw an inference, or form an opinion, as to whether or not it would be unjust or oppressive to return the fugitive. It should approach this task, I think, in the same way as it deals, for example, with questions whether something is reasonable or whether there has been negligence. Once the court has concluded that it would be unjust or oppressive to return the fugitive, I cannot regard the word "may" as leaving it with any residual discretion. Viscount Radcliffe in Zacharia v. Republic of Cyprus [1963] A.C. 634, 667, was clearly right about this. The court must then order the fugitive to be discharged from custody.

For these reasons I am of the opinion that the test to be applied in reviewing a decision of the Divisional Court under section 8 (3) of the Act of 1967 is that stated in Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370, and not that propounded by Viscount Simonds in Zacharia v. Republic of Cyprus [1963] A.C. 634, 661.

Before turning to consider the reasons given by the Divisional Court for their decision, I must deal with some general matters which in the course of the argument were raised upon the construction of section 8 (3). In the first place it was argued by Mr. Hobhouse, for the appellants, that under the subsection a heavy burden of proof rested upon an applicant, which could only be discharged in an exceptional and extreme case. I do not agree. I consider that while, of course, an applicant must make out his case under the subsection, no more than the ordinary

burden of proof rests upon him. It must always be for the court to appraise the facts upon which it thinks it right to proceed, and form a conclusion upon the matter of injustice and oppression without any presumption in either direction. It may be that under section 10 of the Act of 1881, where the words "or otherwise" gave the court a very wide range of possible grounds of injustice and oppression, it would only be in rare cases that the court would act upon a ground other than those specified. But while reference was made to certain dicta supporting Mr. Hobhouse's argument (e.g. Rex v. Governor of Brixton Prison, Ex parte McCheyne [1951] 1 T.L.R. 1155, per Lord Goddard C.J., at p. 1158) Viscount Radcliffe spoke strongly in the opposite sense in Zacharia v. Republic of Cyprus [1963] A.C. 634, 668:

"In my opinion, the court has no right to demand a special standard of proof, such as 'very strong evidence,' or to decline to act except in 'an extreme case' or on 'comparatively rare' occasions either because the surrender is demanded by a Commonwealth government or by a friendly power, or because the good faith of such a demand is challenged on the application or because some imputation is sought to be made upon the judicial process to which the fugitive offender, if surrendered, will be subjected."

I respectfully agree, and I consider that the terms of section 8 (3) now provide no room whatever for the view that any special standard of proof is to be required of an applicant under it.

Then it was argued by Mr. Alexander that the words "having regard to all the circumstances" in section 8 (3) had the effect that, if the court should find any circumstances likely to be productive of injustice or oppression if the applicant were to be returned, the court could order his discharge, even although that circumstance was unrelated to the passage of time or to a matter mentioned in any other paragraph of the subsection. It was said that if there had been a long passage of time the applicant was, as it were, "through the gate" and other features involving injustice or oppression could be taken into account. The argument was particularly related to the fact that in 1974 the applicant Manu Narang had been made the subject of detention orders by the state of Maharashtra under the Maintenance of Internal Security Act 1971 and later under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, and that the applicant Omi Narang might be subjected to a similar order. It appears that a person against whom such an order has been made has no recourse to a court of law or to any review body. In my opinion it is clear that on a proper construction of section 8 (3) the court has power to order the discharge of an applicant only upon one or other of the three specified grounds and not upon any other ground. The court is required to have regard to all the circumstances, but should properly be influenced by any circumstance, in my view, only in so far as it bears upon the question whether any one or more of the three specified grounds is established. I do not think it possible to describe exhaustively the type of circumstances which might properly influence the court. So far as the passage of time is concerned, that being the only ground in issue in this case, I think it would always be material to take into account what seemed to be the reasons why the passage of

time had come about, for example, that it was prima facie due to concealment on the part of the applicant or to dilatoriness on the part of the authority seeking his return. I would also think it proper to be influenced in an appropriate case, by the personal circumstances of the applicant, for example, that he had long been settled in this country with his family and had led here a respectable life in a responsible position. The relatively minor nature of the offence alleged might also be relevant, even if it did not fall under the description of "trivial" in paragraph (a). In general, circumstances forming the background against which the passage of time is to be viewed are the sort of circumstances to be taken into account. What I consider not to be open to the court is to order discharge by reason of some circumstance which might of its own force result in injustice or oppression to the applicant in the event of his return, and which is such as to operate independently of any of the specified grounds. In my opinion Mr. Alexander's argument is unsound. If it be the case that the existence of the detention orders against Manu Narang and the possibility of a similar order being made against Omi Narang would result in injustice or oppression to them in the event of their return to India, that seems to me a matter independent of and unrelated to the passage of time. The orders would have had the same effect however short or long the passage of time had been since the commission of the alleged offences. Therefore I do not consider that the matter of the detention orders can properly be taken into account for present purposes.

In reaching their decision to order the discharge of the applicants, the Divisional Court took into account the seriousness of the offences with which they were charged and that eight years had elapsed between the alleged commission of the offences and the request for their return. It was accepted as being a relevant factor that the government of India did not know of the applicants' involvement in the alleged offences until the first week of May 1976, but other factors were considered to outweigh this. Slynn J., who delivered the leading judgment in which the other members of the court concurred, after describing certain issues of fact which would require to be resolved at any trial said, ante, p. 257D-F:

"It is plain that investigating these events which took place in 1967 and 1968 would be difficult at this distance of time. There are complex issues of fact which must, it seems to me, arise. Moreover, it is plain that Malik and Mehra were charged at an early stage, and from 1972 little appears to have been done to get on with the case. There may well be explanation of this in the procedural difficulties which occurred in the Indian court. But nonetheless the time has passed. If there had been a reasonable expedition in the proceedings it may be - one does not know - that Malik might have given his statement earlier and the two applicants would have been in a stronger position to prepare their defence. At the end of the day I consider that because of the passage of time and the difficult issues raised it would again in this case be unjust to send the two men back for trial at this time."

Approaching the question in the manner indicated in Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370 I have come to be of opinion that the Divisional Court reached a wrong conclusion. There is no dispute here

about the primary facts. In proceedings of this kind evidence is given, for the most part, on affidavit, and there is no cross-examination. Thus there is no proof of facts in the proper sense of the word and in certain cases there might be difficulty in deciding as to the primary facts upon which the court should proceed. But no difficulty of this kind arises in the present case. It is a matter of drawing the correct inference from undisputed facts. The period of time which elapsed between the alleged commission of offences and the request for the return of the Narang brothers was eight years. The picture presented in the evidence relied upon by the appellants at the committal proceedings, however, is that the commission of the offences was deliberately and successfully concealed by the substitution of replicas for the original pillars, so that it was not discovered until the pillars standing at the village of Amin were inspected by an expert at the end of 1970 and found to be fakes. The Divisional Court do not advert to this aspect. The possible involvement of the applicants was not discovered - by what means it was eventually discovered the evidence does not reveal - until the genuine pillars turned up in London in May 1976. After that the appellants lost no time in making their request for the applicants' return. It was not till later that the alleged accomplice Malik made his detailed confession deeply implicating the applicants. It may be that the Indian authorities could have pursued more vigorously the proceedings against Malik and the other alleged accomplice Mehra. But I can find no grounds for thinking it reasonably likely that had they done so Malik would have made his confession earlier. The Divisional Court appear to have taken into account to some extent the possibility of this, even although they themselves regarded it as entirely speculative. In my opinion they were wrong to do so. The principal ground for the Divisional Court's decision was that they regarded the issues likely to arise at the trial of the applicants as being difficult and complex. But the case made out against the applicants in the affidavit evidence is a simple and straightforward one.

Further, the applicants have simply stated that they are not guilty of the charges, as they are fully entitled to do. They have not put forward any statement of their own as to the facts of the case, such as might put a different complexion upon its prima facie simple and straightforward nature. On the material before them, the Divisional Court were not, in my opinion, justified in finding that the issues raised were likely to be difficult or complex.

Having given to the appraisal of the facts of the case the best consideration that I can, I have come to the conclusion that it would not, by reason of the passage of time since the applicants are alleged to have committed the offences, be unjust or oppressive to return them to India.

That is sufficient for the determination of the appeals, but it is to be observed that the ultimate decision whether or not the applicants are to be returned to India rests with the Secretary of State. On a proper construction of section 9 (1) of the Act of 1967, I am of opinion that he has a residual discretion in this regard. In the exercise of this discretion it would be proper for him, in my opinion, to consider and form a view as to the significance in the circumstances of the detention order against Manu Narang

and of the possibility of a similar order being made against Omi Narang. It is to be noted that section 4 (1) of the Act, which places a general restriction on the return of a person if it appears inter alia that he might if returned be detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions, does not contemplate the possibility of detention under an order such as has been made against Manu Narang and might be made against Omi Narang. Such possibility could however be a relevant consideration for the Secretary of State in exercising his discretion under section 9 (1).

In the result I would allow these appeals and I agree that an order should be made in the terms proposed by my noble and learned friend Viscount Dilhorne.

Solicitors: Stocken & Co.; Polden, Bishop & Gale; Director of Public Prosecutions.

M. G.