EXTRADITION - The Unvarnished Truth

David Batts, Contributor

"It is not what a lawyer tells me I may do; but what humanity, reason and justice tells me I ought to do." Edmund Burke [1775].

Tyranny, it is said, thrives on the silence of good men. In Jamaica, we have no shortage of good men and women. They fill our churches each Saturday and Sunday, they trumpet from the pulpit, they fill our lodge meetings and some are even to be found in Gordon House with the title 'Honourable'. Why then is there an unholy silence from these quarters on this matter of extradition?

I have decided to write this article lest at any time in the future our good men and women, when called upon to account, are heard to say that they "did not know". I, therefore, set forth the truth of the matter.

• Truth One:

An application for extradition and, indeed, an order for extradition does not necessarily imply guilt in the person extradited. Extradition is the voluntary surrender by one State to another of a person located within its borders who has either been convicted of, or who is charged with an offence. In the 'Dudus' affair, there has as yet been no conviction, only allegations yet to be proved in court. The person to be extradited in this case, therefore, has a right, as does everyone in a country where the rule of law applies, to a fair trial. He is presumed innocent unless and until it is proved otherwise in a court of law.

• Truth Two:

The extradition request from the United States did not rely primarily on tape-recorded evidence. The primary evidence relied upon is from a person (hereinafter referred to as Witness 1), who was formerly incarcerated on other offences and who acted as a double agent. That person alleges that he dealt directly with transactions involving illegal drugs and guns. He purports to identify the subject of the extradition application with whom he says he met and spoke. This document can be found among the attachments to the Affidavit of Dorothy Lightbourne (Attorney General), dated April 14, 2010, and filed in suit HCV-1860/2010.

• Truth Three:

The above stated evidence is sufficient basis for the issue by the minister of an 'authority to proceed'. This authority to proceed allows for the issue of a warrant and the commencement of judicial proceedings for extradition. The minister's 'order', therefore, does not grant extradition. Section 8 (2) sets out clearly what needs to be provided by the requesting state before the authority to proceed is granted: "There shall be furnished with any request made for the purposes of this section by or on behalf of any approved state -

(a) in the case of a person accused of an offence, a warrant for his arrest issued in that state; or

(b) in the case of a person unlawfully at large after conviction of an offence, a certificate of the conviction and sentence in that state and a statement of the part, if any, of that sentence which has been served, together with, in each case, the particulars of the person whose extradition is requested, and of the facts upon which and the law under which he is accused or was convicted, and evidence sufficient to justify the issue of a warrant for his arrest under Section 9."

Section 8 (3) makes it clear that provided the provisions of Section 8 (2) are satisfied, the minister is to issue an authority to proceed unless "it appears to him that an order for the extradition of the person concerned could not lawfully be made, or would not in fact be made in accordance with this Act".

• Truth Four:

The evidence sufficient to "justify the issue of a warrant", within the meaning of Section 8 (2) need only be sufficient to provide reasonable cause to suspect that an offence has been or is about to be committed. That threshold is even lower than the prima facie case test required before the court will make an extradition order. It is, therefore, manifest that there is evidence to support the issue, of a warrant. Once the authority to proceed is issued the court will then have to consider whether there is evidence to support a prima facie case. Included in this will be questions as to whether the evidence is admissible and whether in all the circumstances, it is fair to the accused to make an order for extradition.

• Truth Five:

The wire-tapped telephone conversations corroborate the evidence of Witness 1. The wire-tapping was not illegally done but was pursuant to an order of the court, which stated that the commissioner of police among others, was to be the person to whom it was to be disclosed. The commissioner was entitled to use the tape in connection with law enforcement duties. Sharing that information with police departments around the world could arguably be within the contemplation of the order approving the wiretap. In any event, the order approving a wiretap can be amended by further application to the court in order to allow its use in these extradition proceedings. Expost facto applications to regularise procedural defects are not unheard of even if they are sometimes frowned upon.

• Truth Six:

Ever since the Privy Council decision in Kuruma v R [1955] 1 AER 236, it has been generally accepted that illegally obtained evidence is admissible in criminal proceedings. In extradition proceedings, the test is not whether the evidence is illegally obtained but rather whether, in all the circumstances, including the fact that the evidence was illegally obtained, it is fair to allow extradition. See R v. Gov. of Pentoville Prison exp. Chinoy [1992] 1 AER 317; R (Saifi) v Gov.of Brixton Prison [2001] 1 WLR 1134; R v. Gov. of Balmarsh Prison exp. Martin [1995] 2 AER 548; R. v Preston [1993] 4 AER 638. The court always has a discretion to exclude evidence if the prejudicial effect outweighs its probative value, but the mere fact it was illegally obtained will not mean it is inadmissible. See Phipson on Evidence 14th ed. Para. 1-14 and R v Sang [1979] 2 AER 1222. There is no express statutory provision making illegally obtained wire-tapped evidence inadmissible in criminal proceedings in Jamaica.

• Truth Seven:

Surrendering the matter to a judicial process, as contemplated by the Act, allows for a ventilation of the issues in full public view. The facts and the judicial reasoning would be made public. It is in the interest of good governance that the decision whether to extradite should be and should be seen to be fair and in accordance with the law. A minister opens himself to allegations, suspicions and adverse inferences when, except in the clearest of circumstances, he fails to allow such matters to be determined by the courts once the provisions of Sections 7 and 8 (2) are satisfied.

Section 8 (3) of the Act allows the minister to refuse to issue an authority to proceed where, "it appears to him that an Order for the extradition of the person concerned could not lawfully be made, or would not in fact be made in accordance with the Act."

A minister's exercise of discretion must always be in accordance with the Act and cannot be for bad reasons, or for improper purposes or for reasons which are erroneous in law. Neither must the exercise of the discretion be so unreasonable that no reasonable minister in his position would have exercised it in that manner. Any of these circumstances may result in a court of judicial review quashing the action of the minister, Padfield v Ministry of Agriculture [1968] 1 AER 694.

• Truth Eight:

The application brought before the court by the minister does not ask the court to determine whether, on the facts of the case, an authority to proceed ought to have been granted. Nor, indeed, does the application ask whether the minister was correct in law in the reason stated for the refusal to issue the authority to proceed. These questions would invite a review by the court of the minister's exercise of the discretion.

• Truth Nine:

The leader of the Opposition did not accept the opportunity afforded her to, by counterclaim, place these questions before the court in which she was named a respondent by the Minister. The Opposition seems more concerned with the Manatt, Phelps side issue, as serious as that is, than with the question whether the minister's reason for the decision not to issue the authority to proceed can withstand scrutiny by way of judicial review.

• Truth Ten:

Sam Sharpe stated that he would rather die on yonder gallows than continue to live as a slave. Were he with us today, he would perhaps say that he would rather die by a gunman's bullet than live in a country where it is gangster law, not the rule of law, which prevails. This because under gangster law, the law does not apply to the gangster. Under gangster law, the rules are arbitrary, and under gangster law there is neither justice nor equity.

The rule of law, on the other hand, means that no man is above the law and everyone against whom an accusation is leveled has a right to be heard in his own defence before an impartial tribunal. If our democratic tradition is to be preserved, Jamaicans need to express their support for the rule of law. If we do not, the rule of the gangster may replace the rule of law sooner than you think.

David G Batts is an attorney-at-law. Feedback may be sent to columns@gleanerjm.com.