Problems have been created by the uncertainty as to how those matters can be established.
9.10However, there are significant differences between the backed-warrant and standard procedure in relation to the documentation that must be put before the judge and the form of the final warrant. These differences are set out below:
|TYPE OF PROCEDURE||SECTION||FORM OF THE APPLICATION||REQUIRED SUPPORTING MATERIAL||FORM OF THE FINAL WARRANT|
|Standard procedure |
|19||The Minister must (in writing): ||“Information” to satisfy the judge of the relevant criteria.||A new domestic arrest warrant.|
|Backed-warrant procedure |
|41||The applicant must produce to the judge an arrest warrant for the person sought, issued in the extradition country by a person having lawful authority under the law of that country to issue it.||There is no specific reference to supporting material in section 41.||An endorsement of the foreign arrest warrant.|
9.11The table gives the impression that, technically, a judge could be presented with a single document in support of an application for an arrest warrant: a letter from the Minister (under the standard procedure) or the foreign arrest warrant (under the backed-warrant procedure). The reality, however, is that neither of those documents would be capable, on their own, of satisfying the judge.
9.12The Act permits a high degree of flexibility in both the standard procedure and backed-warrant procedure but causes confusion by not giving the parties or the court guidance as to what might be appropriate. In backed-warrant proceedings, applicants are routinely producing exactly the same documents in support of the arrest warrant application as those that are later produced at the substantive hearing. Under both categories in the table above, all documents are provided through affidavit.
9.13At both the arrest warrant stage and the substantive hearing, a judge will need to decide whether there is an “extraditable person”, an “extradition country”, and an “extradition offence” and whether identity is sufficiently proven. There are some differences in the assessments at the different stages; however, the supporting documentation to be produced and the critical issues at both stages are very similar.
9.15The advantage of a judge making a preliminary decision on these critical issues is that it ensures that clearly unmeritorious cases are weeded out before there is any inconvenience caused to the person sought.
9.17The judge’s role would then be limited to confirming the correctness of the form of the central authority’s certificate, the foreign arrest warrant, and the identity and current location of the person sought.
9.18Currently, it is possible for an arrested person to challenge an arrest warrant either through judicial review or habeas corpus applications (where the Crown can be asked to justify the detention of a prisoner). These applications add to the complexity of proceedings and can delay the extradition process.
9.19We prefer it if the following occurs. There should be two avenues for challenge. The first and fundamentally important opportunity will be when an arrested person is required to be brought before the court at the first available opportunity. This is the time for any person sought to be extradited to raise any matter that they wish to. It will be for the judge to then decide what the response should be. The second opportunity should occur much later on and through a general right of appeal at a final judicial decision. This is the time when the person can raise any issue at all pertaining to the entire process.
9.20If this procedure is firmly understood and followed, we see no necessity in affording the rights of judicial review or habeas corpus. A person has other adequate remedies that are less complex and more efficient.
9.22Three technical matters have been brought to our attention:
Q34 What role should the new central authority have in processing an extradition request before it gets to the courts?
Q35 In the context of extradition, what should a judge be assessing in an arrest warrant application?