Extradition and ministerial discretion
Hugh Wilson, Contributor
THE GOVERNMENT of Jamaica has put to rest speculations as to whether it would accede to the United States' request for the extradition of Christopher Coke.
Prime Minister Bruce Golding identified two reasons for this decision. First, there is an in-sufficiency of credible evidence to substantiate a criminal charge against Christopher Coke. Second, the other available evidence was obtained in breach of the Interception of Communication Act, 2002.
However, the prime minister did not rule out honouring a renewed extradition request for Christopher Coke, if the information presented is in accordance with Jamaican law. He said, "The Jamaican Government indicated to the United States (US) authorities that if other evidence existed, the procurement and disclosure of which were not in violation of Jamaican law, the minister would be prepared to accept that evidence and issue the necessary authority to proceed. No such evidence has, up to now, been presented."
Clearly, the prime minister was of the view that the evidence obtained in breach of the act was inadmissible in a court of law of Jamaica. Is this the law? The general law is that relevant evidence obtained by the police by improper or unfair means is admissible in any criminal proceedings. The court is not concerned with the method by which it was obtained.
This principle of evidence was not affected by the act. Section 14 (2) makes admissible in any criminal proceedings the contents of a communication that is obtained by interception. It is important to understand that extradition proceedings are unique.
The question that arises is whether the evidence the US authorities allegedly obtained in breach of the act is admissible in an extradition proceeding. In answering this question, one has to make a distinction between intercepted communication that was obtained in strict compliance with the laws of the US, and intercepted communication that was not.
DISTINCTION: INTERCEPTED COMMUNICATION
The act deals with the interception of communication by only authorised Jamaican officers, not US personnel. However, if the US police obtained the authority of its government, unknown to the Jamaican police or other relevant persons, to intercept the communication of a Jamaican citizen, who is accused of a crime in the US, the evidence so obtained is admissible in law. There is nothing in the act to exclude that evidence.
However, assuming that the US police did not obtain the prerequisite permission under the equivalent of their interception of communication legislation, illegally intercepted communication of a Jamaican citizen, and intends to use that evidence in an extradition request, is the content of that evidence admissible in an extradition proceeding in Jamaica?
Again, it does not matter by what means that evidence was obtained, provided that the evidence is relevant to a fact in issue, the evidence improperly and unlawfully obtained is admissible.
The committal magistrate must decide whether the admission of the evidence would have an adverse effect on the fairness of the decision to extradite the accused person.
The committal magistrate's discretion to exclude illegally obtained evidence is strictly restricted. Lord Hoffman, in Re Levin (1997) 3 WLR 117, in explaining this restriction, said: "In extradition proceedings, there is even less scope for the exercise of the discretion, because extradition procedure is founded on the concepts of comity and reciprocity. It would undermine the effectiveness of international treaty obligation if the courts were to superimpose discretion based on local notions of fairness upon the ordinary rules of admissibility. I do not wish to exclude the possibility that the discretion may be used in extradition proceedings founded upon evidence which, though technically admissible, has been obtained in a way which outrages civilised value. But such cases are also likely to be very rare."
An extradition proceeding is not designed to determine guilt or innocence. That is a question for trial, which will take place in the US and will be governed by the US criminal practice and procedure.
Clearly, the reasons proffered by the prime minister are not in themselves sufficient and compelling to refuse an extradition request from the US with which Jamaica has a bilateral extradition treaty. Those are questions of law the admissibility of which ought to be determined by a court in the US.
Incidentally, the act vests in Jamaica's minister of justice the authority to deal with all matters dealing with extradition. Thus, it is the minister who should have addressed the country on the decision not to accede to the United States extradition request, not the prime minister.
BREACH OF EXTRADITION TREATY
The more fundamental issue, however, is whether the Govern-ment's 'unprecedented' posture is in breach of the extradition treaty.
Jamaica and the US entered into an extradition treaty on June 4, 1983. The treaty became a part of the domestic law of Jamaica by the Extradition (Foreign States) Order, 1991, which was published in the Jamaica Gazette Supplement, Proclamation, Rules and Regulations on June 27, 1991. As a consequence of the treaty, Parliament enacted the Extradition Act, 1991, which received the governor general's assent on March 14, 1991 and came into operation on July 8, 1991.
Former US President Ronald Reagan ratified the treaty, with the advice and consent of the Senate, on August 17, 1984. The treaty was ratified on behalf of the Government of Jamaica by Carl Rattray, the then minister of justice, on May 3, 1997.
Both the Extradition Act and the extradition treaty govern extradition proceedings in Jamaica. The Government of Jamaica's action or inaction, or its act of commission or act of omission, must be examined within the context of both instruments. Article VII of the treaty provides that "neither party shall be bound to deliver up its own national". Section 7 (5) of the Extradition Act is in similar term:
"The minister may, in his discretion, refuse to extradite a fugitive on the grounds that the fugitive is a citizen of Jamaica."
However, extradition shall not be refused if the person for whom an extradition request is made possesses dual nationality.
Therefore, both the act and the treaty confer a wide and general discretion on the minister to determine whether Jamaica should extradite one of its citizens to a foreign country to stand trial for alleged criminal offence(s). The reason is clear. It is prima facie a breach of the citizen's constitutional right not to be forcibly removed from his country where he has committed no infringement of its law to a foreign state on the basis of allegations. But this is not an absolute right and is subject to public-interest considerations in fighting transnational crime and bringing fugitives to justice.
Under the act, the minister's discretion is exercisable in two stages. The first stage I will refer to as the pre-committal stage and the second, post-committal stage.
In the pre-committal stage, the requesting state (in this case, the US) would request the extradition of a person accused of an offence in that country. The request is usually accompanied by a warrant issued by the requesting state for the arrest of the accused person, affidavit evidence of persons, usually convicted felons, co-conspirators and confidential informants on whose evidence the requesting state will rely on at the trial, and any other evidence sufficient to justify the issue of a warrant for the accused person's arrest.
When the request for extradition is made, it is the minister who must peruse the information presented and form an opinion, based on the material before her, whether or not an extraditable case has been made out against a Jamaican citizen.
If the minister is dissatisfied with the nature and quality of the information, she may request supplementary information and stipulate a time within which the requesting state is to provide that information.
Article IX of the treaty states:
"1. If the executive authority of the requesting state considers that the information furnished in support of the request for extradition is not sufficient to fulfil the requirement of this treaty, it shall notify the requesting state in order to enable the state to furnish additional informa-tion before the request is submitted to a court of the requested state.
2. The executive authority may fix a time limit for such information to be furnished."
In the present case, the minister had requested additional information which the US, it is claimed, had failed to provide.
Section 7(1) also confers a wide discretion on the minister not to authorise the extradition of a Jamaican citizen, if it appears to the minister, inter alia, to be prohibited by any law in force in Jamaica.
The second stage is the post-committal stage. This stage assumes that the minister has issued to a resident magistrate the appropriate authority to proceed. The authority to proceed confers jurisdictional powers on a magistrate to institute extradition proceedings.
Accordingly, the magistrate will issue a warrant for the arrest of the accused person and when he or she is brought before the court, an extradition hearing will commence. The director of public prosecutions is the designated authority in Jamaica who marshals the evidence on behalf of the US.
At the hearing, the committal magistrate has to satisfy herself or himself of three things:
a. that the offence for which the accused is charged has its counterpart in Ja-maica and is punishable under the law of Jamaica with imprisonment fora term of two years or any greater punishment.
b. that the person who is accused of committing an extradition offence overseas is the person before the court.
c. that there is a prima facie case against the accused person.
PRIMA FACIE CASE
In Jamaica and other common law jurisdictions, a prima facie case is usually made out on affidavit evidence of one or more of the following persons: a co-con-spirator, a convicted felon, a confidential informant or an anonymous witness all of whom have an interest to serve. Moreover, the fact that an accused person is designated a "foreign narcotic kingpin" will not affect the validity of the hearing. Indeed, the fact that a witness is discredited at the committal hearing will not, of itself, result in a finding that there is no prima facie case.
It does not even matter if the accused person has never travelled to the country that is requesting his extradition. If evidence is adduced at the hearing that telephone con-versation was made by the accused person in Jamaica to a co-conspirator overseas, that is sufficient evidence to ground the offence of conspiracy, although this offence was committed in Jamaica. The principle is that an act done in Jamaica with conse-quences in the US is intraterritorial in origin and extraterritorial in effect.
If the committing magistrate finds that an extradition offence is made out on the evidence, an order is made for the extradition of the accused person, who then has 15 days within which to apply to the Supreme Court for an order of habeas corpus. If the Supreme Court affirms the magistrate's decision, the accused person has the right to apply to the minister not to sign the warrant for his extradition.
ACTION OF THE MINISTER
Section 12(1) of the act provides:
"Where a person is committed to await his extradition and is not discharged by order of the Supreme Court, the minister may, by warrant, order him to be extradited to the approved state by which the request for the extradition was made unless the extradition of that person is prohibited, or prohibited for the time being, by Section 7 or by this section, or the minister decides under this section to make no such order in his case."
Section 3 provides:
"The minister shall not make an order under this section in the case of any person if it appears to the minister, on the grounds mentioned in Subsection (3) of Section 11, that it would be unjust or oppressive to extradite that person."
The matters referred to in Subsection (3) of Section 11 are:
a. the trivial nature of the offence.
b. delay in pre-senting the request for extradition.
c. the accusation against the accused is not made in good faith.
Therefore, the minister, in exercising her discretion, will take those matters into consideration in deciding whether or not it would be unjust and oppressive to extradite the accused person.
The discretionary power given to the minister at both stages of the extradition process is designed for the protection of the liberty of a citizen of Jamaica who is the subject of an extra-dition request. It is for this reason why the minister is obligated to exercise that discretion with the greatest care. She must strike a fair and just balance between protecting the liberty of a citizen of Jamaica who is accused of a serious extradition crime and the need for Jamaica to honour its treaty obligations to fight transborder crime.
It is desirable that Jamaica honour its obligations under the treaty with the US. Justice Hale, in R (Warren) v Secretary of State for the Home Department (2003) EWHC, summarised a country's treaty obligation in these words:
"The object of extradition is to return a person who is properly accused or has been convicted of an extradition crime in a foreign country to face trial or to serve his sentence there. The extradition process is only available for return to friendly foreign states with whom this country has entered into either a multilateral or a bilateral treaty obligation involving mutually agreed and reciprocal commitments.
"There is a strong public interest in our respecting such treaty obligation. Such international cooperation is all the more important in modern times, when cross-border problems are becoming ever more common, and the need to provide international solutions for them is ever clearer."
The foundation on which the extradition treaty is constructed is to fight transnational organised crime and to ensure that those who allegedly commit criminal offences in a foreign state are not immune from prosecution. The treaty imposes mutual obligations on both contracting parties and is founded on trust, respect and good faith. When a country enters into an extradition treaty, it does so on the premise or on the assumption that the country requesting the return of a foreign national will act honourably and in good faith.
It is in the interest of good international relations that a country honour its treaty obligations. This does not mean that a requesting state, which acts in breach of the spirit and intendment of the extradition treaty, expects, as a matter of right, that the requested state is obligated to honour its request under the treaty.
In Idziak v Canada (Minister of Justice), 1992 3SCR 631, Cory J, in examining the minister of justice's discretion to extradite, said at page 659:
"Parliament chose to give discretionary authority to the minister of justice. It is the minister who must consider the good faith and honour of this country in its relation with other states. It is the minister who has the expert knowledge of the political ramifications of an extradition decision."
In this context, the decision not to extradite is an executive or political decision which lies within sole province of the minister, who by reason of her training and experience should understand the geopolitical implications and consequential effects of that decision.
Assuming that the minister will not extradite Christopher Coke, what other option does the US have under the treaty to secure his presence in that jurisdiction to stand trial?
The US may resort to the doctrine of forcible abduction. The United States Supreme Court has in several cases held that forcible abduction is not prohibited by its extradition treaty with other countries. In United States v Humerto Alverez Machain, 504 US655, the respondent was abducted by Drug Enforcement Agency (DEA) officials from his medical practice in Guadalajara, Mexico, and flown by private plane to El Paso, Texas, where he was arrested and charged for the murder of a DEA agent.
The issue before the US Supreme Court was whether the abduction of the respondent from Mexico violated the extradition treaty between Mexico and the US and the court concluded that it did not. The Supreme Court said: "The fact of the respondent's forcible abduction does not, therefore, prohibit his trial in a court in the United States for violations of the criminal laws of the United States."
Unless the minister can show by compelling argument, that the extradition request of Christopher Coke to stand trial on charges of serious offences committed in the US is an unjustified or a dispro-portionate interference with his constitutional right, she must issue the authority to proceed so that a resident magistrate can adjudicate upon the matter.
Hugh Wilson is an attorney-at-law. Email feedback to firstname.lastname@example.org.