Re­bec­ca Du­rant Stu­dent, Hugh Wood­ing Law School

What is Ex­tra­di­tion?

Ex­tra­di­tion is the le­gal process by which one coun­try (the re­quest­ed state) re­turns a per­son ac­cused or con­vict­ed of an ex­tra­ditable of­fence in an­oth­er coun­try (the re­quest­ing state) to that coun­try to stand tri­al for the al­leged of­fence.

In T&T this process is gov­erned by the Ex­tra­di­tion (Com­mon­wealth and For­eign Ter­ri­to­ries) Act No 36 of 1985 (the Act).

It is a com­mon mis­con­cep­tion that ex­tra­di­tion pro­ceed­ings de­ter­mine guilt or in­no­cence. They on­ly de­ter­mine whether it is rea­son­able for an in­di­vid­ual to face tri­al abroad.

The Re­quest

A re­quest can be made to the At­tor­ney Gen­er­al by any state with which there is an ex­tra­di­tion agree­ment. There are 51 Com­mon­wealth states to which the Act specif­i­cal­ly ap­plies. Ad­di­tion­al­ly, there are treaties with the Unit­ed States and sev­er­al oth­er coun­tries fa­cil­i­tat­ing ex­tra­di­tion.

A re­quest must con­tain:

�2 a de­scrip­tion of the in­di­vid­ual;

�2 an out­line of the facts and the law on which the re­quest is based;

�2 a war­rant is­sued for the in­di­vid­ual in the re­quest­ing state; and

�2 a sum­ma­ry of the ev­i­dence against the in­di­vid­ual or ev­i­dence of their con­vic­tion.

Once sat­is­fied with the re­quest the At­tor­ney Gen­er­al will then is­sue an "Au­thor­i­ty to Pro­ceed" in re­spect of the re­quest and it is sent to a mag­is­trate.

The mag­is­trate can is­sue a war­rant for the in­di­vid­ual's ar­rest once sat­is­fied that if an­oth­er per­son com­mit­ted the of­fence with­in T&T, the ev­i­dence pro­vid­ed would or­di­nar­i­ly jus­ti­fy is­su­ing an ar­rest war­rant. The in­di­vid­ual can choose to con­sent to the ex­tra­di­tion and be re­turned to the re­quest­ing state. Oth­er­wise the case is ar­gued be­fore a mag­is­trate.

Hear­ing be­fore a Mag­is­trate

In or­der to com­mit the in­di­vid­ual for ex­tra­di­tion the mag­is­trate must be sat­is­fied that:

�2 The of­fence is ex­tra­ditable;

�2 The in­di­vid­ual has been prop­er­ly iden­ti­fied; and

�2 Ev­i­dence shows the of­fence was com­mit­ted on a bal­ance of prob­a­bil­i­ties (this is low­er than the usu­al crim­i­nal stan­dard of be­yond a rea­son­able doubt).

Dur­ing this hear­ing the mag­is­trate has the dis­cre­tion to grant bail at the re­quest of the in­di­vid­ual once sat­is­fied that they won't flee.

Ex­tra­ditable of­fences

An of­fence is ex­tra­ditable once it is an of­fence in both the re­quest­ing and re­quest­ed states; and pun­ish­able with at least 12 months im­pris­on­ment or death. Al­ter­na­tive­ly, an agree­ment or treaty can spec­i­fy of­fences which are to be ex­tra­ditable.

Bars to Ex­tra­di­tion

Ex­tra­di­tion will not be or­dered where:

�2 The of­fence is po­lit­i­cal;

�2 An of­fence is be­ing used as a cov­er to pun­ish the in­di­vid­ual for his race, re­li­gion, gen­der, sex­u­al pref­er­ence, na­tion­al­i­ty or po­lit­i­cal opin­ions;

�2 The tri­al will be prej­u­diced be­cause of the in­di­vid­ual's race, re­li­gion, gen­der, sex­u­al pref­er­ence, na­tion­al­i­ty or po­lit­i­cal opin­ions; or

�2 The in­di­vid­ual has been ac­quit­ted or con­vict­ed and served his sen­tence in re­spect of the same of­fence.

Dis­cre­tion to Refuse Ex­tra­di­tion

De­ci­sions made can be sub­ject to re­view by the High Court in habeas cor­pus or ju­di­cial re­view pro­ceed­ings.

Among the fac­tors the court will con­sid­er in re­fus­ing ex­tra­di­tion are: the triv­ial na­ture of the of­fence, the pas­sage of time since the of­fence, that the re­quest was made in bad faith, in­di­vid­ual rights as against in­ter­na­tion­al co­op­er­a­tion or any oth­er suf­fi­cient cause, mak­ing it un­just and op­pres­sive to re­turn the in­di­vid­ual.

The AG can al­so refuse ex­tra­di­tion on the same grounds. No­tably, ex­tra­di­tion can be re­fused where the of­fence could at­tract the death penal­ty in the re­quest­ing state but would not in T&T.Al­though T&T al­lows ex­tra­di­tion in re­spect of death penal­ty of­fences, it is lim­it­ed in this re­gard.

Ap­peals

An in­di­vid­ual has the right to ap­peal ex­tra­di­tion pro­ceed­ings all the way to the Privy Coun­cil.

This col­umn is not le­gal ad­vice. If you have a le­gal prob­lem, you should con­sult a le­gal ad­vis­er. Co-or­di­na­tor: Roshan Ram­char­i­tar