PARLIAMENT has started the process of extending the provisions of the Mutual Assistance (Criminal Matters) Act which allows for the extradition of persons between countries, to British territories in the Caribbean.
However, Minister of Justice Senator Mark Golding was unable to clarify whether the provisions will extend retroactively to requests made prior to the issue of the order.
The motion seeking approval for the issue of a Ministerial Order under the Mutual Assistance (Criminal Matters) Act, passed by the Senate on Friday, affects “Designated Commonwealth States” or British territories, including Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Montserrat and the Turks and Caicos Islands.
The Act provides for mutual agreement between Jamaica and foreign states in terms of several criminal issues, including restrictions on use of evidence or information obtained or documents or articles produced; request for the appearance of foreign inmates as witnesses; immunities and privileges; status of person prosecuted after departure from relevant foreign state; release of certain persons upon request; arrest of person who escaped from custody; requests for making or enforcement of forfeiture; and requests for the issue of orders in a foreign state.
Senator Golding explained that he had brought the resolution to the Senate after receiving a letter from the Office of the Director of Public Prosecutions (DPP) in March, bringing to his attention that Jamaica was unable to respond favourably to requests from British overseas territories for mutual assistance, because they were not within the ambit of the current Act. He noted that one such request, dated from 2008, was still pending.
He said that he had been requested by the DPP to make an order bringing these countries under the Act, as stronger mutual assistance between Jamaica and the territories was important in fighting transnational crimes, including money laundering, as several of them were offshore banking centres.
Government member K D Knight, who was guarded in his support, said he had concerns because he had experienced a similar situation in which, after the Act was amended to include a foreign nation, a request was dealt with retroactively, raising concerns within the legal fraternity.
He asked the minister to state whether the amendment would affect requests made prior to the issue of the order, or would be restricted to matters arising subsequently.
“The legislative instrument now creating that jurisdiction ought not to be of retroactive effect. I think those principles are sacrosanct and should not be violated or trifled with,” Knight insisted.
In his response, Minister Golding said that while retroactivity, generally, ought to be avoided, there were instances where it was necessary. He said that he did not consider the request pending from 2008, which triggered the request from the DPP, as retroactive.
“Simply put, the request is only being given effect, after the order comes into effect. But, this is really a matter for the competent authority to consider now that it has been raised,” he said.
The bill was passed, but it was obvious that there were still concerns about the retroactivity which is likely to be raised when it reaches the House of Representatives.