The extradition process — how it works from start to finish

BY JEDIAEL CARTER Staff reporter carterj@jamaicaobserver.com

Saturday, February 25, 2017

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Most Jamaicans remember the speed with which Tivoli Gardens convicted fugitive Christopher "Dudus" Coke was whisked away by US Marshals in 2010 after he was captured and handed over to US authorities to answer drugs and gun-running charges.


But, as a senior attorney-at-law in the Office of the Director of Public Prosecutions (DPP) explains, the extradition process can be lengthy, given the intricacy of each case.


"It’s only a lengthy process in relation to getting a court date, especially in the matter relating to the Supreme Court. That is where the length and the delay will arise. But it tends to go quite quickly through the Parish Court because these matters usually come down ready for hearing, so it’s once you leave the Parish Court and it reaches the Supreme Court the delay kicks in because it’s not very easy to get a date for hearing," the senior attorney who did not want to be named told the Jamaica Observer in an interview recently.


"It’s a matter of scheduling. You have to find three judges, because when it goes to the Supreme Court it is three judges that hear [and] it’s not very easy to put together. So you always have to be looking at the judges’ timetables, the judges’ roster and so on to find three available judges. So you’ll find that long dates tend to be set and then after that you would have to await the judgement, and then after that it’s to get, if he decides to appeal, it’s to get a date before the Court of Appeal," the attorney-at-law continued.


The extradition process is a multifaceted procedure that incorporates multiple arms of Government at various levels.


The prosecutor explained that requesting states — which can either be members of the Commonwealth or the United States, based on a treaty between Jamaica and the super power — would send through their embassies or high commissions a diplomatic note to the Ministry of Foreign Affairs and Foreign Trade. With this note the requesting states would send "authenticated documents containing the evidence against the person for whom they want the extradition".


The ministry then sends the documents to the Ministry of Justice — the central authority for extradition matters — where the minister will sign the relevant documents. This ministry then passes the documents on to the office of the Director of Public Prosecutions (DPP), which acts as lawyers for the requesting state.


Having received the information, it is perused by prosecutors who verify the existence of double criminality, meaning that the offence for which the person is wanted in the requesting state corresponds with an offence under Jamaican law.


"Whatever offence they’re wanted for, say in America or in a Commonwealth State, we must have a corresponding offence out here or else we won’t be able to give effect to the extradition. So when the papers come, we look at it and we study it and we find that there is an offence," he asserted.


"We then draft two documents. We draft an Authority to Proceed with the offences for which we find that are extradition offences, the double criminality has been made out and we send a draft of that to the honourable Minister of Justice advising that he can sign it; but he doesn’t have to take our advice. If he doesn’t want to sign it he doesn’t have to. The second document we prepare is a Warrant of Arrest," he noted.


The Authority to Proceed, the attorney-at-law said, gives jurisdiction for all other actions that follow in the process. "Without the authority to proceed, we cannot act," he emphasised.


Once signed by the minister, the Warrant of Arrest is taken to a parish judge (formerly called resident magistrate) in chambers, who examines the Authority to Proceed and the other documents. If comfortable with the documents, the judge then signs the warrant. Until this point, the prosecutor pointed out, all processes would have remained a secret to preserve the element of surprise.


"Once the warrant is signed, it is given to a member of the Fugitive Apprehension Team of the JCF (Jamaica Constabulary Force) and they go out in search of the person. When the warrant is executed and the person is arrested under the Extradition Act, in the great majority of extradition cases and some persons don’t understand, the persons have no local charges against them, so really they are arrested on the extradition warrant [and] the process for extraditing to another country is going to begin," the senior attorney told the Sunday Observer.


AFTER APPREHENSION


He said that the individual is then brought before the court "as soon as possible", estimating this to be between two and three days of arrest. In court, the accused has two options, including waiving the right to an extradition trial, which Coke opted for, or challenge the extradition.


If the first option is selected, the subject is sent to the requesting country after the warrant of committal is signed. If the subject opts for the second option, his lawyer is served copies of the documents sent from the requesting state in court and a date for hearing will be set.


"So on the hearing date, the evidence which is what we lawyers call formal evidence, we usually call somebody from the Ministry of Foreign Affairs to acknowledge that the request is made and we usually call the police officer who executed the warrant. Any other submissions in law that are going to be made are going to made on the documents that have been submitted which contain all the evidence," he stated.


The parish judge, upon hearing the evidence, can commit the person for extradition or discharge the person if not convinced that "the evidence doesn’t make out what is called a prima facie case" — the presentation of sufficient evidence to support the legal claim.


"An extradition hearing is not a trial, so you’re not going to acquit or so on. All the magistrate is there to do is to check whether the evidence is sufficient to charge. Based on the evidence, a person looking on it could say I could possibly find this person guilty. So it’s a very low standard in that sense; it’s what is called a prima facie case, it’s not proof beyond a reasonable doubt it’s a prima facie case. So as long as the evidence is enough to commit that person for trial, that is how it goes," the lawyer explained.



APPEALING THE COURT’S DECISION


The subject then has 15 days to determine whether or not he will challenge the parish judge’s decision. If nothing happens after the 15 days, then the process of sending to the Minister of Justice for him to sign a surrender warrant begins. But if within those days the subject files a case in the Supreme Court, the process is automatically halted.


In the Supreme Court a full court — a panel of three judges — has to be arranged to hear the matter.


"The three Supreme Court judges have broader powers than the parish judge because the parish judge is really only limited to see if there is a prima facie case made out. The Supreme Court judges now can look at everything surrounding the request," he told the
Sunday Observer.


At this level the court constitutes the same parties from the lower court (the applicant, the DPP’s office) in addition to the Attorney General’s chambers which represents the Commissioner of Corrections, who would now have responsibility for the subject awaiting extradition.


"Again, two things can happen: the Supreme Court judges can find that the applicant has made his case and they discharge him and that is the end of that, or they can find that he must be extradited. If they commit him for extradition, he only has one more avenue left — that’s to go to the Court of Appeal," explained the lawyer.


The subject again has 15 days to apply to the Court of Appeal where he can either be discharged or committed for extradition.


"When they order him to be extradited that is the end of it; there is no appeal to the Privy Council. The decision of the Court of Appeal is final in extradition matters. The only way you get to go to the Privy Council is if you add a constitutional argument. If you don’t do it, the matter is dead once the Court of Appeal finishes with it and orders that you must be extradited," he stressed.


After all channels are exhausted, the DPP’s office drafts the surrender warrant for the minister’s signature. The surrender warrant, he explained, is the document that gives the authority for a Jamaican to be taken out of the country. If signed, a copy is provided to the office of the DPP, the Commissioner of Corrections, as well as the requesting state.


"So the minister can consider everything, can read the varying judgements of all the courts, and he has the power to decide whether or not the person is to go. If he says the person is to go, that is it," he said. "None of us have tried to test the minister’s power except for that time with Presley Bingham and Ms Lightbourne."



REFUSAL OF AN EXTRADITION REQUEST


In January 2010, then Minister of Justice Dorothy Lightbourne refused the extradition request of Presley Bingham, a Jamaican whom the United States wanted for drug running. Bingham was first apprehended in 2005, then released in 2007 by the Court of Appeal after a writ of habeas corpus was filed on his behalf by his attorneys because he had not been extradited within the time prescribed by law. He was rearrested in 2009 on a renewed extradition request from the US. But Lightbourne at the time cited that the US breached an instruction given in 2007 by the Court of Appeal which said that Bingham should not have been rearrested on the same offence as one of her reasons America’s petition was denied.


Other than time, the lawyer indicated that an extradition can be refused if there is the view that the person is being punished for his race, political opinions or religious faith.


"So we determine that if the whole reason for extradition is really to persecute him for his political opinions, his race or his beliefs, we can deny extradition and that defence has been attempted to be used in the past. So when you have persons like Norris Nembhard and Lebert Ramcharam who were designated as foreign drug kingpins in the United States, they said that the designation was unfair, they would not get a fair trial and it’s clear that they were going to be punished for their race and so on, [but] the Court of Appeal did not agree and so they were sent off," the senior attorney said.


An extradition request, he said, can also be made in "emergency situations". In this case it is called a provisional request.


"So, for example, say that the requesting state is hunting down this person, they’re trying to track him down and at the last moment the person managed to jump on a plane, and [that’s] when they discover that the plane is in the air riding on its way to Jamaica. What they do is send out here asking, ‘Can we make a provisional request for us?’, he noted.


"So we get the diplomatic note asking for a provisional request. With the provisional request now, what we do is take the diplomatic note and we draft a warrant and we go to the judge in chambers saying this person is on their way here, or this person has just landed and the requesting state has not had time to make its formal request, we’re asking for the warrant. And the judge will sign the warrant if he feels everything is in order."


"That person is brought before the court as soon as possible after the warrant is executed and Jamaica requires 60 days, two months at least, for the foreign state to then send down the evidence. If 60 days pass and the foreign state doesn’t send it out, the man is discharged ... he is automatically released. This, of course ,is not a bar for the warrant to still come back for him being rearrested.



LIMITATION ON EXTRADITION OFFENCES


Last month a Jamaican man who was arrested in October 2016 was finally extradited to the US for the killing of a Miami Beach woman more than two decades ago.


It was reported that the man, Dale Ewers, aged 53, will face charges of murder, sexual battery, armed robbery, and kidnapping.


Police said that Ewers shot 34-year-old Perez to death inside her South Beach apartment in 1990 and raped her friend.


When asked whether a statute of limitation existed in extradition matters, the senior attorney stated that the Extradition Act has provision allowing the passage of time.


"So it can be that the minister or even a court, the Supreme Court, can look on the request and say too much time has passed to give effect to the request," he said, noting that the person alleging passage of time would have to show how the time passed would prejudice his defence in the requesting state.


"So you would have to show, [for example] my witnesses are dead or they have migrated or they have moved. You know, these documents that used to be at a certain place, either flood, fire or rats has eaten them. He’ll have to show how he has been prejudiced. And the requesting state must also show that they made efforts to find the person. So is not like they just sat down and didn’t do anything", stated the attorney.


"We had a case once in which the person was supposed to have pleaded guilty in the United States. They extended his bail, he jumped on a plane, came to Jamaica and hid for years and years until he decided to sponsor some fisherman’s regatta, and his picture was published and so they were able to find where he was. So they got him and we sent him off," he continued.


The lawyer explained that if the requesting states have statutes of limitations on an offence, they would have to show that they have acted to ensure that the statute has not expired.


"So, for example the United States, they would have to show that they procured a warrant for the persons arrested within the time limit. The same would have to be in any other country," he said.

 


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