Inquiry into the case against the person sought
7.1What ought a requesting country have to show about the alleged offence and conduct of the person sought for extradition, and against what standard ought it be judged? This chapter compares the current approach taken in New Zealand to that taken by other countries. We discuss several significant issues that underlie future approaches that New Zealand could choose to take.
7.2We propose the following:
- There should be no judicial inquiry into the case against the person sought for extradition by Category 1 countries (as it is now for countries under the backed-warrant procedure).
- There should be a judicial inquiry into the case against the person sought for extradition for requests from Category 2 countries. However, those countries should have to provide the court with a more limited and tailored account of evidence for the purpose of its inquiry. This is akin to the record of the case procedure, which currently applies to countries under Part 5 of the Extradition Act 1999.
7.3The proposed reforms in this chapter are aimed at tailoring the appropriate level of scrutiny of the case against the person to the true nature of extradition proceedings and the relationship between New Zealand and requesting countries. The reduction in requirements proposed in this chapter must be balanced against other proposals in this part of this issues paper, which are designed to add robustness to the scrutiny of extradition requests in the standard procedure: the central authority’s vetting of the quality of requests; the court’s consideration of broader grounds for refusing surrender, which allow human rights and justice system issues to be examined; and the court’s ability to request further information from a requesting country regarding the case against the person, if this is needed.
Admissibility and standard of evidence required
7.4The Canadian Supreme Court usefully described the distinction between the admissibility of evidence and the standard or sufficiency of evidence in United States of America v Ferras. The admissibility provisions were described by the Court as being “aimed at establishing threshold reliability”, while the standard of evidence determines whether the legal requirements for extradition are satisfied. Extradition legislation or treaties may allow summarised evidence or hearsay evidence and evidence that is not authenticated in the way normally required in domestic cases.
Admissible evidence required
7.5Common law countries have traditionally conducted a court inquiry into the case against the person sought for extradition. In contrast, the typical approach in continental Europe, and in many civil law jurisdictions, has been not to conduct an inquiry into the alleged offending but to require only proof of identity and conformity of the request to the treaty and statutory requirements.
7.6Under the “no evidential inquiry” approach, the consideration of the court in the requested country is limited to assessment of the warrant, a summary of the alleged conduct, and the legal provisions relating to the requirements for an extradition offence. Such an approach is not completely unheard of in our legal tradition. A similar no evidential inquiry approach applied under the Fugitive Offenders Act 1881 (Imp) among British dominions that, by reason of their “contiguity or otherwise”, made such a scheme “expedient”. Several Commonwealth countries have retained such an approach for extradition between countries that are particularly close.
7.7Where a court inquiry is required, generally a “prima facie” standard applies. This requires that the evidence is such that a reasonably minded jury might convict on the evidence if not contradicted at trial. The court in the requested country must be satisfied that a case against the alleged fugitive criminal is made out to a sufficient standard as to allow the case to go to trial under the domestic criminal law of the requested country, had the case arisen there. The prima facie case approach was used by the United Kingdom and is still used by much of the Commonwealth.
7.8The process used for extradition hearings in countries that use the prima facie standard has essentially been the same as that used in a proceeding leading to committal of a person for trial for a domestic criminal offence. This approach usually requires the requesting country to produce a significant amount of evidence and makes the court’s consideration a longer process than occurs in countries where a lower test applies.
7.9Some countries have reduced the difficulty for a country requesting extradition by altering the way in which evidence might be presented. Rules about the admissibility of evidence can be altered from those that are normally required in domestic criminal matters.