Derek Achong

For­mer Fi­fa vice pres­i­dent and gov­ern­ment min­is­ter Jack Warn­er has lost his fi­nal ap­peal over the dis­missal of his pre­lim­i­nary le­gal chal­lenge against the Unit­ed States’ ex­tra­di­tion re­quest for him.

De­liv­er­ing a judg­ment on Thurs­day, five Law Lords of the Unit­ed King­dom-based Privy Coun­cil re­ject­ed Warn­er’s ap­peal, as they up­held con­sis­tent de­ci­sions in the case from the lo­cal High Court and Court of Ap­peal.

How­ev­er, the out­come of the case, which co­in­ci­den­tal­ly came days af­ter Net­flix re­leased its doc­u­men­tary “Fi­fa Un­cov­ered,” which promi­nent­ly fea­tured Warn­er and on the eve of the start of the 2022 Fi­fa World Cup in Qatar, does not mean that Warn­er could be im­me­di­ate­ly ex­tra­dit­ed.

It sim­ply means that Warn­er’s ex­tra­di­tion pro­ceed­ings be­fore Chief Mag­is­trate Maria Bus­by-Ear­le-Cad­dle, which were put on hold as he pur­sued the civ­il law­suit, can now re­sume.

Sir De­clan Mor­gan, who wrote the judg­ment that was sup­port­ed by his four col­leagues, ruled that this coun­try’s ex­tra­di­tion treaty with the US did not con­tra­dict the Ex­tra­di­tion (Com­mon­wealth and For­eign Ter­ri­to­ries) Act, which was passed by Par­lia­ment in 1985 be­fore be­ing amend­ed in 2004.

In the case, Mor­gan had to con­sid­er whether an or­der is­sued by a for­mer at­tor­ney gen­er­al in 2000 to give ef­fect to the US ex­tra­di­tion treaty had to be com­pared to the orig­i­nal leg­is­la­tion or its amend­ed form.

Stat­ing that the amend­ment did not in­ter­fere with or­ders is­sued by at­tor­neys gen­er­al pri­or to its pas­sage, Mor­gan stat­ed that the orig­i­nal leg­is­la­tion ap­plied.

In de­ter­min­ing whether there was suf­fi­cient con­for­mi­ty be­tween the treaty and the orig­i­nal leg­is­la­tion to al­low for the or­der to be is­sued, Mor­gan ruled that mi­nor dif­fer­ences did not con­sti­tute a breach.

“For the rea­sons set out, the Board is sat­is­fied that a broad and gen­er­ous con­struc­tion should be ap­plied to the in­ter­pre­ta­tion of con­for­mi­ty in Sec­tion 4 (2) of the Act and that the mat­ters raised by the ap­pel­lant do not lead to any breach of the con­for­mi­ty test,” Mor­gan said.

As a sec­ondary is­sue in the ap­peal, Mor­gan and his col­leagues had to con­sid­er the ef­fect of a spe­cial arrange­ment agreed to by for­mer at­tor­ney gen­er­al Faris Al-Rawi, as he is­sued the au­thor­i­ty to pro­ceed (ATP) for the ex­tra­di­tion pro­ceed­ings.

Un­der the arrange­ment, Al-Rawi agreed to fa­cil­i­tate the ex­tra­di­tion re­quest if the US agreed to on­ly pros­e­cute Warn­er based on the charges it dis­closed and on less­er charges that arose from the ev­i­dence it pro­vid­ed.

Mor­gan ruled that the arrange­ment was per­mis­si­ble un­der the leg­is­la­tion.

“The cer­tifi­cate pro­vid­ed by the At­tor­ney Gen­er­al dis­closed a spe­cial­i­ty arrange­ment which com­plied with the Act and which the USA could be ex­pect­ed to ho­n­our,” he said.

Mor­gan al­so re­ject­ed claims that Al-Rawi’s is­suance of the ATP was pro­ce­du­ral­ly or sub­stan­tive­ly un­fair.

Not­ing that Al-Rawi in­vit­ed sub­mis­sions from Warn­er’s lawyers al­though his pre­de­ces­sor re­fused the same, Mor­gan stat­ed that such con­sul­ta­tion was not re­quired un­der the leg­is­la­tion.

How­ev­er, he com­mend­ed Al-Rawi for tak­ing the non-manda­to­ry step.

“Al­though there was no oblig­a­tion up­on him to do so, he (Al-Rawi) was per­fect­ly en­ti­tled to take that course,” Mor­gan said, as he not­ed that Warn­er’s at­tor­neys did not take Al-Rawi up on his of­fer.

The Of­fice of the At­tor­ney Gen­er­al al­so filed a cross-ap­peal over the abil­i­ty of the courts to re­view the con­for­mi­ty of ex­tra­di­tion treaties and the leg­is­la­tion as done in the case.

How­ev­er, the le­gal is­sues raised in the cross-ap­peal were not con­sid­ered based on the dis­missal of the sub­stan­tive ap­peal.

Warn­er, 79, is ac­cused of 29 charges re­lat­ed to fraud, rack­e­teer­ing and en­gag­ing in il­le­gal wire trans­fers dur­ing his tenure as a Fi­fa vice pres­i­dent.

The of­fences are al­leged to have tak­en place in the Unit­ed States, T&T and oth­er ju­ris­dic­tions be­tween 1990 and June 2011, when Warn­er quit Fi­fa af­ter be­ing sus­pend­ed.

Af­ter be­ing ar­rest­ed on a pro­vi­sion­al war­rant pur­suant to the ex­tra­di­tion re­quest, Warn­er was re­leased on $2.5 mil­lion bail.

He is one of sev­er­al then se­nior ex­ec­u­tives of world foot­ball’s gov­ern­ing body who were in­dict­ed on a se­ries of charges af­ter an in­ves­ti­ga­tion in­to cor­rup­tion in foot­ball, con­duct­ed by the US Fed­er­al Bu­reau of In­ves­ti­ga­tion (FBI) and De­part­ment of Jus­tice in 2015.

Sev­er­al of his for­mer col­leagues have plead­ed guilty to the charges and have been sen­tenced.

Warn­er’s sons, Daryan and Daryll, were al­so in­dict­ed and plead­ed guilty to their charges.

Warn­er was rep­re­sent­ed by Clare Mont­gomery, KC, Fyard Ho­sein, SC, Anil Maraj, Rishi Dass and Sasha Bridge­mo­hans­ingh. The AG’s Of­fice was rep­re­sent­ed by James Lewis, KC, Dou­glas Mendes, SC, and Rachel Scott.