Investigations carried out by this writer have established beyond all reasonable doubt that while the Jamaican Supreme Court judge authorised the interception of conversations by Christopher Coke which helped the US grand jury to indict him on charges of conspiracy to distribute narcotics and conspiracy to traffic in firearms without a licence, the information was illegally forwarded to US authorities in clear violation of the extradition treaty.

The communication was illegally passed on to US authorities by a member of the Jamaica Constabulary Force who worked in the intercept facility in Kingston. The facility was established in 2004 by Jamaica, the United Kingdom and the USA to gather and share intelligence. The court order is always subject to the condition that the intercepted information must only be disclosed to a class of people authorised by the judge to receive such information. In no instance has any order ever been made authorising the disclosure of the information to a foreign government or an agency of a foreign government. The people who are usually authorised to receive such information are the commissioner of police and the assistant commissioner, the head of the Military Intelligence Unit and the superintendent of police in charge of the interception. The law has to be strictly followed and no mutual understandings arrived at between Jamaica and United States law enforcement authorities will do.

I understand that the Interception of Communications Act sets out the legislative mechanism for the interception of communications. The purpose of this mechanism is to preserve the overarching constitutional right to freedom of expression. Communication is only to be intercepted in special circumstances such as in the case of drug and firearms offences. In February 2007, Attorney General and Minister of Justice A J Nicholson applied to the Supreme Court for a warrant to intercept all communications to and from Coke’s telephone and a warrant was issued. Nicholson said he did not know in whose name the warrant was issued as that section was left blank. There is a general prohibition against interception, except as provided for in the Act. Consequently, the Act provides that any person who intercepts communication in circumstances not authorised by the Act commits a criminal offence and is liable to imprisonment for a period of three years or a fine not exceeding $3 million, or both. Further, the Act provides that any person who knowingly discloses the contents of any communication commits a criminal offence and is liable to imprisonment for a period of five years or a fine of $5 million or both.

The violation by the police constable represents a dangerous precedent. It is a straightforward case and the US government has an obligation to provide the government of Jamaica with all relevant information in order that it may determine when, where and how the communication was intercepted and whether or not it was done under the authority of a valid warrant. My understanding is that the police constable is now living in the USA. He should be tracked down and steps taken to have him extradited to face criminal charges as the offence he committed is an extraditable one. But this is unlikely to happen as it appears that he was a double agent. The police constable, tagged John Doe by the Americans to hide his identity is scheduled to give evidence at the trial of Coke in the USA if Coke is extradited.

Prime Minister Bruce Golding has directed the Minister of Justice and Attorney General Senator Dorothy Lightbourne to seek a declaration from the courts of Jamaica as to whether the minister has the authority and the obligation to consider breaches of our laws which led to a breach of the treaty, in coming to her decision. This is a waste of time. The Extradition Treaty sets out in clear language the provisions of the treaty and the minister’s responsibility, and this should be followed. I gather that there are other Jamaicans who were illegally wire-tapped so the outcome of the case against Coke is of particular importance.

Two other sections of the Extradition Act are worth mentioning:

*A person shall not be extradited if it appears to the minister that his extradition is prohibited by any law in force in Jamaica;

* The minister may not issue an authority to proceed if it appears to her that an Order

for extradition of the people concerned could not lawfully be made or would not in fact be made in accordance with the provisions of the Act.

Reference has also been made to the Mutual Assistance (Criminal Matters) Act. A request for assistance under this Act made by a foreign state shall be refused if, in the opinion of the Central Authority (the minister), with the request would contravene the provisions of the Jamaican Constitution, or prejudice the security, international relations or other essential public interest of Jamaica. Subject to the provisions of the Act, requests to Jamaica shall be executed in accordance with the relevant laws in force in Jamaica and the procedures applicable under those laws.

I have perused the Interception of Communications Act, the Extradition Treaty and the Mutual Assistance Act and I am unable to find a loophole through which the extradition of Coke could slip. I think the Americans should realise and admit that in the case against Coke they made an error in trying to use evidence illegally passed on to them. Therefore, the ball is now in the court of the Americans to make a fresh request based on legally obtained evidence to have Coke extradited and given a fair trial in the USA. The impasse between Jamaica and the USA over this matter should never have occurred. It has led to tense diplomatic relations between the two countries with the prospect of deterioration.