Extradition (Commonwealth and Foreign Territories)

CHAPTER 12:04

EXTRADITION (COMMONWEALTH AND FOREIGN TERRITORIES) ACT

1. Short title and application.
(1) This Act may be cited as the Extradition (Commonwealth and Foreign Territories) Act.
(2) This Act applies to extraditable offences committed before as well as after the commencement of this Act.


PART I
INTERPRETATION

2. Interpretation.
In this Act—
“application for habeas corpus” means an application for a writ of habeas corpus ad subjiciendum;
“authority to proceed” has the meaning assigned to it by section 9(1);
“conviction” does not include or refer to a conviction which under the law of some other territory is a conviction for contumacy, but the term “person accused” includes a person convicted of contumacy;
“dealt with” means tried or returned or surrendered to any territory or detained with a view to trial or with a view to such return or surrender;
“declared Commonwealth territory” has the meaning assigned to it by section 3(1);
“declared foreign territory” has the meaning assigned to it by section 4(1);
“extraditable offence” has the meaning assigned to it by section 6;
“foreign territory” means any State outside Trinidad and Tobago other than a Commonwealth territory, and includes every constituent part, colony or dependency of such State;
“fugitive offender” or “offender” means any person being or suspected of being in Trinidad and Tobago, who is accused or who is alleged to be unlawfully at large after conviction of an extraditable offence committed within the jurisdiction of, or part of, a declared Commonwealth territory or a declared foreign territory, as the case may be;
“Governor”, in relation to any territory, means the person or
persons administering the government of that territory;
“imprisonment” includes detention of any description;
“provisional warrant” has the meaning assigned to it by section 10(1);
“race” includes tribe;
“treaty” means any convention, treaty, agreement or arrangement for the time being in force between Trinidad and Tobago and any foreign territory for the return or surrender of offenders;
“warrant”, in the case of any foreign territory, includes any judicial document authorising the arrest of a person accused or convicted of crime.


PART II
TERRITORIES TO WHICH ACT APPLIES

COMMONWEALTH TERRITORIES
3. Declared Commonwealth territories.
(1) The Attorney General may, by Order subject to negative resolution of Parliament, declare a Commonwealth territory other than Trinidad and Tobago to be a Commonwealth territory (hereafter referred to as a declared Commonwealth territory) in relation to which this Act applies, and where any such Order so declares, this Act applies in relation to that territory; and any such Order may provide that this Act applies in relation to that territory subject to such exceptions, adaptations, modifications or other provisions as may be specified in the Order and, where any such Order so provides, this Act applies in relation to that territory subject to such exceptions, adaptations, modifications or other provisions.

(2) For the purposes of any Order made under subsection (1), any territory for the external relations of which a Commonwealth country is responsible may be treated as part of that country or, if the Government of that country so requests, as a separate country.

FOREIGN TERRITORIES
4. Declared foreign territories.
(1) Where a treaty has been concluded, whether before or after the commencement of this Act, between Trinidad and Tobago and any foreign territory in relation to the return of fugitive offenders, the Attorney General may, by Order subject to negative resolution of Parliament, declare that territory to be a foreign territory (hereafter referred to as a declared foreign territory) in relation to which this Act applies, and where any such Order so declares, this Act applies in relation to that territory; and any such Order may provide that this Act applies in relation to that territory subject to such exceptions, adaptations, modifications or other provisions as may be specified in the Order and, where any such Order so provides, this Act applies in relation to that territory subject to such exceptions, adaptations, modifications or other provisions.

(2) An Order shall not be made under subsection (1) unless the treaty—
(a) is in conformity with the provisions of this Act, and in particular with the restrictions on the return of fugitive offenders contained in this Act; and
(b) provides for the determination of the treaty by either party to it after the expiration of a notice not exceeding one year.
(3) Any Order made under subsection (1) shall recite or embody the terms of the treaty and shall not remain in force for any longer period than the treaty; and the Order shall be conclusive evidence that the treaty complies with the requisitions of this Act and that this Act applies in relation to the foreign territory mentioned in the Order, and the validity of the Order shall not be questioned in any legal proceedings whatever.


PART III
EXTRADITION FROM TRINIDAD AND TOBAGO

5. Persons liable to be returned.
(1) A person found in Trinidad and Tobago—
(a) who is accused of an extraditable offence; or
(b) who is alleged to be unlawfully at large after conviction of an extraditable offence,
in a declared Commonwealth territory, or in a declared foreign territory, may, subject to and in accordance with the provisions of this Act, be arrested and returned to the declared Commonwealth territory or the declared foreign territory, as the case may be.

(2) For greater certainty, a person may be returned under this Act whether or not the conduct on which the declared Commonwealth or foreign territory bases its request occurred in territory over which it has jurisdiction.


6. Extraditable offences.
(1) For the purpose of this Act, an offence in respect of which a person is accused or has been convicted in a declared Commonwealth territory, or a declared foreign territory, is an extraditable offence if—
(a) it is an offence against the law of that territory which is punishable under the law with death or imprisonment for a term of not less than twelve months;
(b) the conduct of the person would constitute an offence against the law of Trinidad and Tobago if it took place in Trinidad and Tobago, or in the case of an extra-territorial offence, if it took place in corresponding circumstances outside Trinidad and Tobago, and would be punishable under the law of Trinidad and Tobago with death or imprisonment for a term of not less than twelve months; and
(c) in the case of a declared foreign territory, extradition for that offence is provided for by a treaty between Trinidad and Tobago and that territory.

(2) For the purpose of this section, in determining whether an offence against the law of a declared Commonwealth territory, or a declared foreign territory, is an offence against the law of Trinidad and Tobago, any special intent, state of mind or special circumstances of aggravation which may be necessary to constitute that offence under the law of Trinidad and Tobago shall be disregarded.

(3) For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterised by the declared Commonwealth territory, or the declared foreign territory, in the same way as it is in Trinidad and Tobago.

(4) An offence constituted by conduct, whether in Trinidad and Tobago or not, that is of a kind over which Contracting States to an international Convention to which Trinidad and Tobago is a party are required by that Convention to establish jurisdiction, and which jurisdiction Trinidad and Tobago has so established, is an extraditable offence for the purpose of this Act.

7. Further proceedings.
For greater certainty, the discharge of a person under this Act does not preclude further proceedings, whether or not they are based on the same conduct, with a view to the return of the person under this Act unless the High Court is of the opinion that those further proceedings would be an abuse of process.

8. General restrictions on return.
(1) A person shall not be returned under this Act, other than under section 11, to a declared Commonwealth territory or a declared foreign territory, or committed to or kept in custody for the purposes of the return, if it appears to the Attorney General, to the Magistrate on proceedings under section 12, to the High Court on an application for habeas corpus or under section 14 for review of an order, or to the Court of Appeal on the hearing of an appeal under section 15—
(a) that the offence in respect of which that person is accused or was convicted is an offence of a political character;
(b) that the request for his return (though purporting to be made on account of an extraditable offence) is in fact made for the purpose of prosecuting or, punishing him on account of his race, religion, gender, sexual preference, nationality or political opinions; or
(c) that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, gender, sexual preference, nationality or political opinions.

(2) A person accused of an offence shall not be returned under this Act, other than under section 11, to a declared Commonwealth or foreign territory, or committed to or kept in custody for the purposes of the return, if it appears as aforesaid that if charged with that offence in Trinidad and Tobago he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction.

(3) A person shall not be returned under this Act to a declared Commonwealth or foreign territory, or committed to or kept in custody for the purposes of the return, unless provision is made by the law of that territory, or by an arrangement made with that territory, that he will not, until he has left or has been free to leave that territory, be dealt with in that territory for or in respect of any offence committed before his return under this Act other than—
(a) the offence in respect of which he is returned;
(b) any lesser offence proved by the facts proved before the Magistrate on proceedings under section 12; or
(c) any other offence being an extraditable offence in respect of which the Attorney General may consent to his being so dealt with.

(4) The Attorney General shall not give his consent under subsection (3)(c) if he has reasonable grounds for believing that the offence to which the request for consent relates could have been charged prior to return if due diligence had been exercised.

(5) Any such arrangement as is mentioned in subsection (3) may be an arrangement made for the particular case or an arrangement of a more general nature; and for the purposes of that subsection a certificate issued by or under the authority of the Attorney General confirming the existence of an arrangement with any territory and stating its terms is conclusive evidence of the matters contained in the certificate.

(6) A person’s return, under this Act, to a declared Commonwealth or foreign territory shall not be debarred by reason only of the fact that the person will be sent from that territory to another territory for or in respect of any offence committed before his return under this Act.

(7) The reference in this section to an offence of a political character does not include—
(a) an offence against the life or person of a Head of State, Head of Government, or Minister of Government, or of his spouse, or of any dependant relative of his;
(b) an act declared, under any multilateral international convention having the force of law in Trinidad and Tobago, to constitute an offence for which a person may be returned under this Act to a declared Commonwealth or foreign territory, notwithstanding the political character or motivation of such act.

(8) For the purposes of this Act, an offence against a declared Commonwealth or foreign territory may be regarded as being an offence of a political character notwithstanding that there are not competing political parties in that territory.

8A. Restriction on return: hostage-taking.
(1) A person accused of an offence under the Taking of Hostages Act shall not be returned under this Act to a declared Commonwealth territory or a declared foreign territory, which is party to the Convention, or committed to or kept in custody for the purposes of the return, if it appears to the Attorney General, to the Magistrate on proceedings under section 12, or to the High Court on an application for habeas corpus or under section 14 for review of an order, or to the Court of Appeal on the hearing of an appeal under section 15—
(a) that that person might, if returned, be prejudiced at his trial by reason of the impossibility of effecting communications between him and the appropriate authorities of the State entitled to exercise rights of protection in relation to him; and
(b) that the facts constituting the offence of which he has been acquitted or convicted also constitute an offence under section 3 of the Taking of Hostages Act.

(2) Where the Minister certifies that a territory is a party to the Convention the certificate shall, in any proceedings under this Act, be conclusive evidence of that fact.

(3) In this section “the Convention” means the Convention referred to in section 2 of the Taking of Hostages Act.


9.Request for return.
(1) Subject to the provisions of this Act relating to provisional warrants, a person shall not be dealt with thereunder except in pursuance of an order of the Attorney General (hereafter referred to as an authority to proceed), issued in pursuance of a request made to the Attorney General by or on behalf of the Government of the declared Commonwealth territory, or the declared foreign territory, in which the person to be returned is accused or was convicted.

(2) There shall be furnished with any request made for the purposes of this section on behalf of any territory a record of the case which shall include—
(a) in the case of a person accused of an extraditable offence, a warrant for his arrest issued in that territory and a document summarising the evidence available to that territory for use in the prosecution of the person;
(b) in the case of a person unlawfully at large after conviction of an extraditable offence, a certificate of the conviction and sentence in that territory, and a statement of the amount, if any, of that sentence which has been served;
together in each case with—
(c) particulars of the person whose return is requested;
(d) particulars of the facts upon which and the law under which he is accused or was convicted;
(e) evidence that provision is made by the law of that territory for the specialty rule provided for by section 8(3), where the specialty rule is not made by an arrangement with that territory; and
(f) evidence sufficient to justify the issue of a warrant for his arrest under section 10.

(3) On receipt of a request made for the purposes of this section on behalf of any territory, the Attorney General may, in the form set out in Form 1 in the Second Schedule, issue an authority to proceed signifying to a Magistrate that a request has been made and requiring him to proceed with the case in accordance with the provisions of this Act.

(4) The Attorney General may receive supplementary evidence to the record of the case and re-issue an authority to proceed to replace one issued under subsection (3) or this subsection at any time before proceedings under section 12 begin, and all previous documents issued and orders made by the Magistrate apply in respect of a re-issued authority to proceed, unless the Magistrate, on application of the person or the Attorney General, orders otherwise.

(5) Where the Attorney General re-issues an authority to proceed under subsection (4) and the person applies for another date to be set for the beginning of proceedings under section 12, in order to give the person an opportunity to examine the re-issued authority to proceed, the Magistrate may set another date for the hearing.

(6) The Attorney General may amend the authority to proceed after the hearing has begun in accordance with the evidence that is produced during the hearing.

(7) The Attorney General may not issue an authority to proceed or may withdraw one already issued if it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act.

(8) Where the Attorney General withdraws an authority to proceed after proceedings under section 12 have begun, the Magistrate shall discharge the person and set aside any order made with respect to the remand of the person in custody or on bail.


10. Arrest for purposes of committal.
(1) A warrant for the arrest of a person accused of an extraditable offence, or alleged to be unlawfully at large after conviction of an extraditable offence, may be issued by a Magistrate—
(a) in the form set out in Form 2 in the Second Schedule, on the receipt of an authority to proceed; or
(b) in the form set out in Form 3 in the Second Schedule, without an authority to proceed, upon information that the said person is or is believed to be in or on his way to Trinidad and Tobago,
and any warrant issued by virtue of paragraph (b) is in this Act referred to as a provisional warrant.

(2) A warrant of arrest under this section may be issued upon such evidence as would, in the opinion of the Magistrate, justify the issue of a warrant for the arrest of a person accused of committing a corresponding offence or, as the case may be, of a person alleged to be unlawfully at large after conviction of an offence, if the offence had been committed or the offender convicted in Trinidad and Tobago; and for the purposes of the issue of a provisional warrant, there may be received in evidence any document which purports to bear the seal of the International Criminal Police Organisation (generally referred to as Interpol) and was issued to the Commissioner of Police for the purpose of requesting the assistance of the Commissioner in the ascertainment of the location of a person accused of an extraditable offence, or alleged to be unlawfully at large after conviction of an extraditable offence, in a declared Commonwealth or foreign territory.

(3) Where a provisional warrant is issued, the Magistrate by whom it is issued shall forthwith give notice to the Attorney General, and transmit to him the information and evidence, or certified copies of the information and evidence, upon which it was issued; and the Attorney General shall, if he decides not to issue an authority to proceed in respect of the person to whom the warrant relates, or may in any other case, by order cancel the warrant and, if that person has been arrested thereunder, discharge him from custody.

(4) A warrant of arrest issued under this section may be executed in any part of Trinidad and Tobago and may be so executed by any person to whom it is directed or by any constable.

(5) Where a warrant is issued under this section for the arrest of a person accused of an offence of stealing or receiving stolen property or any other offence in respect of property, a Magistrate in any part of Trinidad and Tobago shall have the like power to issue a warrant to search for the property as if the offence had been committed within the jurisdiction of the Magistrate.

11. Consent order for return.
(1) Where the return of any person is requested under this Part by a declared Commonwealth territory or a declared foreign territory and such person is arrested in pursuance of a warrant under section 10, such person may request the Attorney General to order his return without any proceedings before a Magistrate under section 12.

(2) Where the Attorney General consents to the request made by such person under subsection (1) and is satisfied that such person understands the consequences of the request, the Attorney General shall, without any proceedings before a Magistrate under section 12, in the form set out in Form 4 in the Second Schedule, order such person to be committed to custody, there to be kept for the purposes of the return unless admitted to bail; and at any time thereafter the Attorney General shall, with the consent of such person, by warrant in the form set out in Form 5 in the Second Schedule, order him to be returned to the territory by which the request for his return was made.

(3) Where a person whose return has been ordered under subsection (2) withdraws his consent to the order before his departure from Trinidad and Tobago, he shall be brought as soon as practicable before a Magistrate for the purposes of proceedings under section 12, and thereupon shall be dealt with as if the Attorney General had not made the order.

(4) The provisions of sections 8(3), (4), (5) and (6) apply to the return of any person under this section unless the contrary is expressly requested by that person.

12. Proceedings for committal or discharge.
(1) A person arrested in pursuance of a warrant issued under section 10 and in respect of whom no order under section 11(2) has been made shall [unless previously discharged under section 10(3)], be brought as soon as practicable before a Magistrate.

(2) For the purposes of proceedings under this section a Magistrate shall have the like jurisdiction and powers, as nearly as may be, including power to adjourn the case and meanwhile to remand the person arrested under the warrant either in custody or on bail, as when the Magistrate is acting at a preliminary enquiry.

(3) Where any person is arrested and in custody by virtue of a provisional warrant but no authority to proceed has been received in respect of him, the Magistrate may fix a reasonable period (of which the Magistrate shall give notice to the Attorney General) after which the person will be discharged from custody unless the authority to proceed has been received.

(4) Where an authority to proceed has been issued in respect of the person arrested and the Magistrate is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence to which the authority to proceed relates is an extraditable offence and is further satisfied—
(a) where the person is accused of the offence, that—
(i) there is evidence admissible under this Act of conduct that, had it occurred in Trinidad and Tobago, would justify committal for trial in Trinidad and Tobago for the offence set out in the authority to proceed; and
(ii) the person is the person sought by the declared Commonwealth or foreign territory; or
(b) where the person is alleged to be unlawfully at large after conviction of the offence, that—
(i) the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed;
(ii) the person is the person who was convicted; and
(iii) the person appears to be unlawfully at large, the Magistrate shall, unless his committal is prohibited by any other provision of this Act, commit him to custody by warrant in the form set out in Form 6 in the Second Schedule to await the warrant of the Attorney General for his return; but if the Magistrate is not so satisfied or if the committal of that person is so prohibited, the Magistrate shall discharge him from custody.

13. Application for habeas corpus.
(1) The Magistrate shall, on committing any person to custody under section 12, inform that person in ordinary language of his right to make an application to the High Court for habeas corpus and shall forthwith give notice of the committal to the Attorney General.

(2) A person committed to custody under section 12 shall not be returned under this Act—
(a) until the expiration of the period of fifteen days beginning with the day on which the order for his committal is made, unless he waives, in writing, the entire period or any part thereof;
(b) if an application for habeas corpus is made in his case, so long as proceedings on that application are pending.

(3) On any such application made under this section the High Court may, without prejudice to any other jurisdiction of the High Court, order the person committed to be discharged from custody if it appears to the High Court that by reason of—
(a) in the case of a declared Commonwealth territory, the trivial nature of the extraditable offence of which he is accused or was convicted; and
(b) in the case of a declared Commonwealth or foreign territory—
(i) the passage of time since he is alleged to have committed the extraditable offence or to have become unlawfully at large, as the case may be;
(ii) the accusation against him not having been made in good faith in the interests of justice; or
(iii) any other sufficient cause, it would, having regard to all the circumstances, be unjust or oppressive to return the person.

(4) On any such application the High Court may receive additional evidence relevant to the exercise of its jurisdiction under section 8 or under subsection (3).

(5) For the purposes of this section, proceedings on an application for habeas corpus shall be treated as pending until any appeal in those proceedings is disposed of; and an appeal shall be treated as disposed of at the expiration of the time within which the appeal may be brought or, where leave to appeal is required, within which the application for leave may be made, if the appeal is not brought or the application made within that time.

PART IV
ARREST AND SURRENDER OF PERSON TO ICC

Remand and Bail

39. (1) A person arrested on a warrant issued under section 34 or 36 shall, unless sooner discharged, be brought before the Court as soon as possible.

(2) The person—
(a) is not entitled to bail as of right; and
(b) may not go at large without bail.
(3) If the High Court remands the person on bail, it may impose any conditions of bail that it thinks fit.
(4) Without limiting the other factors that may be taken into account in making a decision to grant bail, the High Court shall have regard to the following:
(a) the gravity of the alleged crimes;
(b) whether there are urgent and exceptional circumstances that favour the grant of bail; and
(c) whether necessary safeguards exist to ensure that Trinidad and Tobago can fulfill its duty under the Statute to surrender the person to the ICC.
(5) Without limiting the other factors that may be taken into account in making a decision to grant bail, the High Court may not consider whether any warrant of arrest or judgment issued by the ICC was properly issued in accordance with the Statute.
40. (1) If an application for bail is made, the Attorney General shall notify the ICC which may make recommendations to the Attorney General that shall be conveyed to the High Court that is considering the application.
(2) Before rendering its decision, the High Court shall consider any recommendations that the ICC has made, including any recommendations on measures to prevent the escape of the person.
(3) If the person is granted bail, the Attorney General shall, if the ICC requests, provide periodic reports to the ICC on the person’s bail status.
(4) This section applies with any necessary modifications to any bail application made during the period until the person is surrendered to the ICC or discharged according to law.

41. In proceedings under this Part, except as expressly provided in this Act or in Regulations made under section 170 or 180, the High Court has the same jurisdiction and powers, and shall conduct the proceedings in the same manner, as if the person were charged with a summary offence alleged to have been committed within the jurisdiction of Trinidad and Tobago.
42. (1) This section applies if the High Court orders the detention of a person at any time under this Part.
(2) If the High Court concludes that detaining the person in prison would risk the person’s life or health or be undesirable for any reason, the High Court may order that the person be held in custody—
(a) at the place where the person is for the time being; or
(b) at any other place that the Court considers appropriate, having regard to the risk or reason involved.
(3) The person may be held as specified in subsection (2) until—
(a) the person can be detained in a prison with¬out risk to life or health;
(b) the reason for not detaining him or her in prison no longer applies; or
(c) he or she is surrendered or discharged according to law.
(4) In making the order specified in subsection (2), the High Court shall have regard to any recommen¬dations that the ICC may make regarding the place of the person’s detention.

PART IV
ARREST AND SURRENDER OF PERSON TO ICC

Eligibility for Surrender

46. (1) This section applies if—
(a) the Court has determined in accordance with section 43 that a person is eligible for surrender; or
(b) a person has consented to surrender to the ICC in accordance with section 45.

(2) If this section applies, the Court shall—
(a) issue a warrant for the detention of the person in a prison or other place authorized in accordance with section 42 of this Act, pending the surrender of the per¬son to the ICC or the person’s discharge according to law;
(b) send to the Minister a copy of the warrant of detention and such report on the case as the court thinks fit;
(c) inform a person to whom subsection (1)(a) applies that—
(i) subject to section 70, the person will not be surrendered until the expiration of fifteen days after the date of the issue of the warrant;
(ii) during that time the person has the right to make an application for a writ of habeas corpus; and
(iii) the person has the right to lodge an appeal under section 67; and

(d) inform a person to whom subsection (1) applies that the Attorney General is required to determine whether to issue a surrender order before the person can be surrendered to the ICC; and
(e) inform the person that if a surrender order is made and he is not removed within two months, he may apply to be discharged under section 74.
(3) If the Court issues a warrant under subsection (2), the Court may grant bail to the person in accordance with section 39.
(4) If the Court is not satisfied that the person is eligible for surrender, it shall discharge the person, unless under section 69 it orders that the person continue to be detained or issues a warrant for the arrest and detention of the person, pending the determination of an appeal under section 67.