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Extradition and the Jurisdiction of the High Court

THE Extradition Act 1989, s. 11 (3) provides, as regards one committed by magistrates for extradition: "Without prejudice to the jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence . . . that it would, having regard to all the circumstances be unjust or oppressive to return him" on grounds (a) of "the trivial nature of the offence", (b) of "the passage of time since he is alleged to have committed it" or (c) that "the accusation against him is not made in good faith or in the interests of justice." The question of the court's jurisdiction under section 11(3) arose in Re Schmidt [1994] 3 W.L.R. 229. Schmidt, a German national, accused by the German authorities of serious drug offences in Germany, had taken up residence in Ireland ("he set up a business in kites and model aeroplanes"); application by the German authorities for his extradition from Ireland failed on technical grounds (his activities clearly disclosed extraditable offences). He was tricked into coming to England by a Metropolitan police officer to ensure that he "could be arrested . . . and, if the Germans were to make a request for his extradition, . . . be extradited to Germany". Following his arrest and an application for extradition, authority to proceed for his extradition issued on the Secretary of State's behalf (Extradition Act 1989, s. 7); a magistrate duly committed him "to await the Secretary of State's decision [for] his return". He sought habeas corpus and judicial review to quash the decision to proceed on the basis of section 11(3) and Ex p. Bennett [1994] 1 A.C. 42. The Divisional Court dismissed both applications. The House of Lords unanimously dismissed Schmidt's appeal against refusal of habeas corpus. Schmidt never contended that the request for extradition fell within