Contents

Chapter 7
Inquiry into the case against the person sought

International approaches

7.16Different countries and multinational organisations have developed a variety of approaches to the court’s role in assessing the case against a person sought for extradition. Some common law countries have, in recent years, enacted changes that have moved them closer to the civil law approach. Multinational organisations and multilateral treaties have also had influence in presenting models for extradition to enhance international cooperation.

Common law countries

United Kingdom

7.17The United Kingdom has shifted its approach recently, primarily in light of its closer ties with the rest of Europe. In 1991, it ratified the European Convention on Extradition.212 This provided for extradition without the prima facie case requirement in respect of state parties to the Convention. Further reform followed as a result of a 2001 review,213 which found that there were strong arguments in favour of removing the prima facie case requirement for the United Kingdom’s closest extradition partners, particularly where it could have confidence in the overall fairness of their judicial systems.214 The review noted two main objections to the prima facie case requirement: the United Kingdom was applying its domestic standard to evidence that would be examined in the requesting country under its own laws anyway; and requesting countries were failing to meet the prima facie standard, merely because they could not present their cases in a way that met the United Kingdom’s evidential requirements.215

7.18The United Kingdom’s Extradition Act 2003 provides different approaches for Category 1 countries (European Union countries) and Category 2 countries (non-European Union countries with which the United Kingdom has an ongoing extradition relationship). Extradition can occur with Category 1 countries without any inquiry into the evidence against the person. In relation to Category 2 countries, the court is required to inquire into the case against the person, but the evidential standard that is applicable differs for different countries and varies for different stages in the process.

7.19For a court to issue an arrest warrant for a person requested by any Category 2 country, it must be satisfied that the evidence would justify the issuing of a warrant in the United Kingdom “for the arrest of a person accused of the offence within the judge’s jurisdiction”.216 A “reasonable suspicion” test is applied to this evidence. This is an objective standard and is a lower threshold than the prima facie case standard,217 but some evidence is required.218 While the arrest warrant standard applies to extradition requests from all Category 2 countries, the nature of the evidence required may be modified for a country if it is so designated by the Secretary of State. If a country is designated for this purpose, it is only required to produce “information” rather than formal “evidence”.219
7.20At the substantive extradition hearing, the court will consider whether there is evidence that meets the prima facie case test.220 Again, within Category 2, some countries have been designated by the Secretary of State as being exempt from the prima facie case test.221 Of the 93 countries that are in Category 2, 24 countries, including New Zealand, Australia, Canada, and the United States, have been exempted from having to satisfy the court that there is a prima facie case against the person.222

Australia

7.21Australia’s extradition law has also undergone a shift away from requiring a court inquiry into the case. The change occurred in 1985 with an amendment to the Extradition Act 1988 (Cth).223 The 1988 Act does not require the court to be satisfied that there is a prima facie case against the individual and instead provides a default position that the courts will not inquire into the evidence of the case against the person sought. The primary reason for this reform was to facilitate the conclusion of treaties with civil law countries.224 The Act applies to a country if regulations are made extending coverage to that particular country. Coverage is extended to countries with which Australia has an extradition treaty as well as a number of designated non-treaty countries. Coverage may be subject to “such limitations, conditions, exceptions or qualifications as are necessary”.225 This means that regulations can preserve the need for the court’s inquiry and the prima facie case standard for particular countries. This has been preserved for most Commonwealth countries,226 although those with which Australia has a close relationship have in the last decade been given the status of “extradition country” by regulation, meaning the no evidential inquiry approach applies.227 The equivalent of a backed-warrant procedure applies in relation to requests from New Zealand.
7.22The legislation means that the no evidential inquiry approach is the default model for Australia’s bilateral extradition treaties. Since moving to the no evidential inquiry approach, Australia has concluded extradition treaties with 38 countries. It would not have been able to negotiate treaties with many of these countries while its extradition law required an inquiry into the case against the person sought, as some were unwilling to conduct extradition where such an inquiry is required.228
7.23There is concern that the courts no longer have a role in safeguarding the rights of an individual who is the subject of an extradition request.229 The Australian Government rejected a 2004 recommendation of the Joint Standing Committee on Treaties to review the approach that there would not be a court inquiry into the case against the person. This was because it considered the 1988 Act had allowed successful treaty negotiation and increased effectiveness in Australia’s participation in international efforts to combat serious and transnational crime.230
7.24The Australian system has also been criticised for applying more stringent standards to extradition requests from Commonwealth countries than those from civil law countries.231

Canada

7.25Like the United Kingdom and Australia, Canada made changes to its extradition legislation by enacting a new Extradition Act in 1999.232 It opted to retain the court inquiry into the case against the person sought and the prima facie case standard. Canada attempted to address the difficulties countries were having with cooperating with Canada in extradition by altering the way its extradition partners may present their evidence. It introduced a record of the case process that allows requesting countries to provide a summary of the evidence against the accused person as the basis for the Canadian court’s decision on eligibility for extradition.

7.26The Canadian record of the case procedure differs from that currently used in New Zealand in the following significant ways:

7.27Prior to the 1999 Act, and also prior to the introduction of the Canadian Charter of Rights and Freedoms 1982,238 the Canadian courts took a limited view of their role in assessing the case against a person sought for extradition. The Canadian Supreme Court, in the case of United States of America v Shephard, held that surrender must follow if there is any evidence upon which a jury could convict and that a judge is not entitled to withdraw a case merely because the evidence is manifestly unreliable, doubtful, or tainted.239
7.28With the introduction of the 1999 Act, the record of the case approach, and the continued application of the Shephard test regarding the limited role of the court, there was concern that Canadian judges were allowing surrender even where it was clear the evidence in the record of the case was unreliable or misleading.240 In Ferras, the Supreme Court of Canada found that the record of the case procedure was consistent with the right to a fair hearing as protected by the Charter of Rights and Freedoms and does not allow for a person to be extradited on inherently unreliable evidence.241 The Supreme Court commented that, while certification of a record of the case gives it a presumption of reliability, that presumption is rebuttable.
7.29In Ferras, the Supreme Court found that the principles of fundamental justice applicable in an extradition hearing require that the person sought for extradition receive a “meaningful judicial determination” of whether the case for extradition has been established to the prima facie case standard.242 The person subject to the request may challenge the extradition by “adducing evidence or making arguments on whether the evidence could be believed by a reasonable jury”, and the judge may engage in a “limited weighing of evidence to determine whether there is a plausible case”.243 In other words, the extradition proceedings are not merely a rubber-stamp process, but the court’s role is limited to looking at whether the presumption that the record of the case is reliable can be rebutted:244

Under [section] 29(1), the extradition judge is required to determine what evidence is admissible under the Act, and whether the admissible evidence is sufficient to justify committal. The inquiry into admissibility of the evidence depends on the nature of the evidence. Under the record of the case method, the inquiry is whether the certification requirements of the Act have been met. … The inquiry into the sufficiency of the evidence involves an evaluation of whether the conduct described by the admissible evidence would justify committal for trial in Canada. … [A] fair extradition hearing that accords with the Charter requires that the extradition judge must be able to decline to commit on evidence that is unavailable for trial or manifestly unreliable. … Section 29(1) requires the extradition judge to assess whether the admissible evidence shows the justice or rightness of committing a person to extradition. The evidence must be demonstrably able to be used by a reasonable, properly instructed jury to reach a verdict of guilty such that a case could go to trial in Canada.

United States

7.30Extradition law in the United States requires that there is a court inquiry into the case against the person in all extraditions. It applies a different sufficiency of evidence standard to the prima facie case standard, however. Requests for extradition from the United States must show that there is “probable cause” for the extradition, echoing the test that applies in domestic criminal cases under the United States Constitution for the issue of a warrant of arrest.245
7.31The probable cause standard is generally considered to equate to the need for information sufficient to warrant a reasonable belief that the wanted individual has committed a crime.246 This is an objective test based on the standpoint of a person of reasonable prudence.247
7.32An extradition request must contain evidence or information sufficient to meet the probable cause test. When a request is made, it is checked by the Department of Justice to ensure that it meets the test. It is then sent to the United States Attorney for the district in which the person who is the subject of the request is suspected of being. The Attorney applies to a magistrate or District Judge for an arrest warrant.248 The hearing is limited to an examination of the factual basis for the offence to ensure that all of the requirements for extradition are satisfied and there is sufficient information to support a reasonable belief that the person committed the offence.249
7.33There are considerable limitations on what evidence may be brought in support of the person who is the subject of the request. A rule of non-contradiction prohibits the defence from countering the requesting country’s evidence with contradictory evidence.250 However, there is variation in how this rule is interpreted. Many courts do allow evaluation of the credibility of the requesting country’s evidence,251 although generally, the person has no right to present a defence to the charges against him or her.252

London Scheme

7.34The London Scheme for Extradition within the Commonwealth, which was established in 1966 and amended in 1990 and 2002, is a non-binding framework for extradition agreed to by Commonwealth countries. It includes the requirement for an inquiry into the case against the person sought and the prima facie case standard.

7.35There has, at times, been debate about whether Commonwealth countries should continue to hold to this approach. At a 1986 meeting of Commonwealth Law Ministers, Australia proposed the abolition of the requirement for a court inquiry into the case against the person. Canada, in particular, rejected this proposal. At a 1990 meeting, Canada recommended as a compromise that the court inquiry and prima facie case standard be retained in the London Scheme but that admissibility requirements be relaxed. Canada recommended a process that was later developed into the record of the case approach adopted in Canada’s 1999 Act and New Zealand’s Extradition Act.253 The record of the case approach to the form and admissibility of evidence is included as an option in the London Scheme.

7.36Although the London Scheme is a non-binding framework, for many years, it has shaped the approach taken to extradition legislation in Commonwealth countries. Australia and the United Kingdom have both made significant steps away from the London Scheme approach to the requirements for evidence of the offending in extradition requests. Although generally opting for a no evidential inquiry approach, Australia does apply the London Scheme approach to most Commonwealth countries. However, it has made regulations that apply a no evidential inquiry approach to a number of Commonwealth and other countries with which it has a particularly close relationship. The United Kingdom has also applied a no evidential inquiry approach to several Commonwealth countries.

Civil law countriesTop

7.37The civil law approach to extradition has been not to require an inquiry into the case against the person sought for extradition. It is not for the courts in these countries to assess the strength of this case. This means that extradition requests to these countries do not require evidence regarding the person’s offending. Most civil law systems require only proof of identity and conformity of the request to the treaty and statutory requirements.254 Generally, extradition may be refused in relation to a country’s own national. Each country’s extradition law determines on what basis it will have an extradition relationship with other countries, such as whether a bilateral extradition treaty is needed or not.
7.38The Council of Europe’s European Convention on Extradition 1957 reflects this approach. The Convention requires that extradition requests are supported with a copy of the warrant of arrest, or conviction and sentence order, a statement of the offences with details of time and place, and the relevant legal provisions.255 Parties to the Convention have an obligation to extradite:256

… all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.

212European Convention on Extradition ETS 24 (opened for signature 13 December 1957, entered into force 18 April 1960). Ratification was given effect to by the European Convention on Extradition Order 1990 (UK).
213United Kingdom Home Office The Law on Extradition: A Review (March 2001).
214Baker, Perry and Doobay, above n 204, at [8.36]. United Kingdom Home Office, above n 213.
215Baker, Perry and Doobay, above n 204, at [8.38]. United Kingdom Home Office, above n 213.
216Extradition Act 2003, s 71(3).
217Baker, Perry and Doobay, above n 204, at [7.39].
218Baker, Perry and Doobay, above n 204, at [3.19], n 28.
219Extradition Act 2003 (UK), s 71(4). Countries are designated for the purposes of s 71(4) by the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (UK), art 3.
220Extradition Act 2003 (UK), s 84(1).
221Extradition Act 2003 (UK), s 84(7).
222These 24 countries are designated under the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (UK) and subsequent amendment orders for the purposes of s 84 of the Extradition Act 2003.
223Extradition (Foreign States) Amendment Act 1985 (Cth).
224EP Aughterson Extradition: Australian law and procedure (Law Book Co, Sydney, 1995) at 217. Since 1985, Australia has concluded or updated 38 bilateral extradition treaties; see Australian Attorney-General’s Department “International crime cooperation arrangements” <www.ag.gov.au>.
225Extradition Act 1988 (Cth), s 11.
226Extradition (Commonwealth Countries) Regulations 1988 (Cth).
227For instance, Canada, United Kingdom, South Africa, and the United States.
228Australian Senate Table Office Government Response to the Joint Standing Committee on Treaties Inquiry into Australia’s Extradition Law and Policy (17 May 2004).
229At [3.23]–[3.36].
230Australian Senate Table Office, above n 228.
231Joint Standing Committee on Treaties Extradition – A review of Australia's law and policy (Report 40, August 2001) at [3.1].
232Extradition Act SC 1999 c 18.
233Extradition Act SC 1999 c 18, s 33(3).
234Extradition Act SC 1999 c 18, s 10(2).
235Extradition Act SC 1999 c 18, s 33(2).
236Extradition Act SC 1999 c 18, s 32.
237Extradition Act SC 1999 c 18, s 32(2).
238Canada Act 1982 (UK) c 11, sch B pt 1 [Canadian Charter of Rights and Freedoms].
239United States of America v Shephard [1977] 2 SCR 1067; and Anne Warner La Forest La Forest’s Extradition to and from Canada (3rd ed, Canada Law Book, Ontario, 1991) at 149.
240Gary Botting “The Supreme Court Decodes the Extradition Act: Reading down the Law in Ferras and Ortega” (2007) 32 QLJ 446 at 456–457.
241United States of America v Ferras, above n 201, at [94(1)].
242At [26]. The Supreme Court of Canada describes the “meaningful judicial process” as requiring: “an independent judicial phase, an independent and impartial judge and a judicial decision based on an assessment of the evidence and the law”.
243At [54].
244At 79–80 (headnote).
245The Constitution of the United States of America, amendment IV. The “probable cause” test in the extradition context, however, has not been interpreted as emanating from the constitutional principle, although it is difficult to separate probable cause for extradition from probable cause for an arrest: M Cherif Bassiouni International Extradition: United States Law and Practice (5th ed, Oxford University Press, New York, 2007) at 878.
246Thomas Y Davies “Search and Seizure” in Kermit L Hall (ed) The Oxford Companion to American Law (Oxford University Press, New York, 2002) 719 at 720.
247Ornelas v The United States 517 US 690 (1996) at 696; and Illinois v Gates 462 US 213 (1983) at 238.
248Baker, Perry and Doobay, above n 204, at [7.50]–[7.53].
249Jacques Semmelman and Karen Snell “Defending the International Extradition Case” The Champion (Washington DC, June 2006) at 23.
250Jacques Semmelman “The Rule of Non-Contradiction in International Extradition Proceedings: A Proposed Approach to the Admission of Exculpatory Evidence” (2000) 23 Fordham Int’l LJ 1295.
251Semmelman and Snell, above n 249, at 24.
252Baker, Perry and Doobay, above n 204, at [7.55].
253See La Forest, above n 239, at 151–152; and Commonwealth Secretariat Canadian Revised Draft Proposals for the Amendment of Article 5 of the Commonwealth Scheme (November 1989).
254Shearer, above n 206, at 157.
255European Convention on Extradition ETS 24 (opened for signature 13 December 1957, entered into force 18 April 1960), art 12.
256European Convention on Extradition, above n 255, art 1.