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document to seek to resist her extradition, bail would almost certainly be refused for the duration of the extradition proceedings.
(b) The majority of the bars that might be relied upon by Ms Maxwell3 require the extradition judge to make a finding that extradition would be oppressive. Quite apart from the other factors rendering those bars unavailable to Ms Maxwell, as set out in the Opinion, it is difficult to conceive of circumstances in which a finding of oppression could be made in relation to the serious charges faced by Ms Maxwell in circumstances where she had absconded from the United States and was contesting her extradition in breach of good faith undertakings relied upon to secure her bail. Similar considerations apply to the balancing exercise required in assessing whether extradition would breach the right to family life under Article 8 of the ECHR. The remaining bars to extradition and human rights bars are unlikely to be available to Ms Maxwell for the reasons given in the Opinion4.
(c) A breach of the undertakings in the waiver of extradition would be highly likely to be viewed as a sign of bad faith and cause the extradition judge to treat any evidence given by Ms Maxwell with scepticism.
4. Second, it is not correct that section 93 of the Extradition Act 2003 (‘the 2003 Act’) confers a general discretion on the Secretary of State to refuse extradition if a case is sent to her by the extradition judge5. The ambit of the power in section 93 is described at paragraph 8 of the Opinion. The Secretary of State may only refuse extradition on the grounds provided for in that section, namely: (a) if an applicable bar to extradition6 is found to exist; (b) the Secretary of State is informed that the request has been withdrawn7; (c) there is a competing claim for extradition from
3 Opinion, para. 26. Those bars are passage of time; forum; and mental and physical condition.
4 Opinion, paras. 27-29 and 36-37.
5 As appears to be submitted by the Government at p.19 of the Memorandum.
6 The bars to extradition that the Secretary of State must consider are: (a) the death penalty (s. 94); (b) speciality (s. 95); (c) earlier extradition to the United Kingdom from another territory (s. 96); and (d) earlier transfer to the United Kingdom from the International Criminal Court (s. 96A).
7 Extradition Act 2003, s. 93(4)(a).