The issuance of a warrant for the arrest of a person suspected of committing crimes abroad is the first step in a technical process. This process may lead to a series of hotly contested legal battles before it results in the extradition of the accused person, if at all. Where the wanted person, usually referred to as a fugitive offender, does not consent to extradition, it is up to the courts to decide whether it would be fair to grant the extradition request.
In Trinidad and Tobago, the process is governed by the Mutual Legal Assistance in Criminal Matters Act, which sets out a series of safeguards which can lead to the automatic denial of an extradition request. The act is also supplemented by decisions of the courts on how the act is to be interpreted.
All extraditions are preceded by a formal request from one government to another. Under the Act, all such requests must be made to the Central Authority, which is a department of the Ministry of the Attorney General. Commonwealth countries have an automatic right to make a request to the Central Authority. Other states may only make a request where there is already in place a treaty between that country and Trinidad and Tobago providing for extradition.
An extradition request will automatically be refused on any of several grounds set out in the act, including where the request is part of a political persecution or based solely on the fugitive offender’s race, sex, gender, nationality or religious or political beliefs; or where it would be contrary to this country’s Constitution to grant the request.
The request may also be refused where:
• the conduct for which the offender is charged in the overseas territory does not constitute an offence under the laws of Trinidad and Tobago;
• the prosecution of the offence has become statute-barred;
• facilitating the request would present an excessive burden in the resources of this country; or
• the formal request itself does not conform to the strict requirements of the act, among other grounds.
The grounds for refusal are safeguards for preventing an unfair or unlawful extradition. These grounds are not a closed category, and it is possible for the fugitive offender to argue that there are other reasonable grounds to deny the request. In a recent example, the High Court ruled that it would have been unfair to grant an extradition request where the alleged criminal conduct related to offences committed in this country, and it would be unfair to require the offenders to face trial abroad.
Once the Central Authority is satisfied that the request is proper, a provisional warrant for the arrest of the fugitive offender is issued. Once the warrant is executed, the fugitive offender is brought before the courts. If the offender does not consent to the extradition request, the Central Authority must set out the evidence of the extradition request and the offence.
If satisfied that the request is a proper one and there are no grounds for denying it, the court will order the extradition. Either party, i.e. the offender or the Central Authority, may appeal the decision of the courts up to the Privy Council. The approval of an extradition request by the courts does not mean that the fugitive offender is guilty of the offences alleged. The offender must then face trial abroad.