Contents

Chapter 5
Extradition offences

Issues

Offences under extradition treaties

5.9The approach of covering offences that fall within a maximum penalty threshold works well for countries where there is no extradition treaty, as it is not necessary for the offence in question to appear on a predetermined list. However, where there is a bilateral treaty and the treaty defines “extradition offence”, the definition in the Act does not apply, as the Act must be construed to give effect to the treaty.

5.10The fact that bilateral treaties trump the Act’s definition of “extradition offence” can lead to extensive litigation about whether an offence can be treated as an extradition offence in New Zealand. Sections 101A and 101B have improved the situation somewhat by expanding the scope of the bilateral treaties and so allowing New Zealand to better meet its extradition obligations under multilateral treaties. However, the interpretation problem still remains.

5.11We make two proposals to alleviate the difficulty. First, the definition of “extradition offence” in the new Act should prevail over those in treaties. Given the outdated nature of the existing bilateral treaty offence lists, this approach should have the effect of expanding rather than contracting the range of offences for which a country can seek extradition.

5.12In keeping with our approach of allowing for flexibility within the regime, we also propose that the Act should state that bilateral extradition treaties can supplement the Act’s definition. Where a bilateral treaty contains a list of offences, a particular extradition request from that country could relate either to an offence that falls within the definition in the Act or within the treaty. This approach effectively allows treaties to expand on the offences that are extradition offences under the New Zealand Act but not to limit them.

Question

Q9 How do we best give certainty to the definition of “extradition offence” in the new Extradition Act as well as flexibility to best take into account the need to adjust the definition according to an extradition treaty?

Dual criminalityTop

5.13Dual criminality is a mandatory requirement under the Extradition Act 1999. This currently means that, for all extraditions from New Zealand, except where an applicable treaty alters this principle, extradition will only occur where the conduct involved is criminalised in New Zealand.

5.14The reason for the dual criminality requirement is said to be two-fold. First, it underlines the reciprocity in an extradition relationship between two countries. Second, it is considered undesirable for a country to assist in the enforcement of criminal law that is unknown in that country’s domestic law.156 However, the requirement of dual criminality can act as a fetter on extradition, as it limits New Zealand’s ability to cooperate with other countries.
5.15Throughout the modern history of extradition law, different approaches have been taken to dual criminality. The traditional, narrow approach is to require substantial correspondence between the offences in each country. The broader view is that it is not necessary that the crimes in each country are the same. Rather, the question is whether the criminal conduct in the requesting country, either in total or in part, amounts to criminal conduct in the requested country.157 The broader view has been preferred in recent decades. This approach is reflected in the wording of section 5 of the Extradition Act, which provides:
(1) A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.
(2) In making a determination for the purposes of section 4(2), the totality of the acts or omissions alleged to have been committed by the person must be taken into account and it does not matter whether under the law of the extradition country and New Zealand—
(a) the acts or omissions are categorised or named differently; or
(b) the constituent elements of the offence differ.
5.16In referring to the “totality of the acts or omissions” and by clarifying that it does not matter whether, under the law of the requesting country and New Zealand, the acts or omissions are categorised or named differently or the constituent elements differ, the Act has attempted to remove the barriers that can be created by a narrow approach to dual criminality. This accords with the approach in the London Scheme, that it is the totality of the conduct and whether this would constitute an offence in both countries that is relevant,158 and with the United Nations Model Treaty on Extradition, which clarifies that it is not necessary for the constituent elements of the offence to be identical.159
5.17Courts in Australia have also interpreted the dual criminality principle broadly.160 They have found that the law does not require particular facts in the requesting country’s statement of the offence to be directly matched to particular elements of offences in the law of the requested country.161 It has also been held that consideration of dual criminality requires some “translation” or “substitution” of factors, such as locality or geographic considerations, or matters such as institutions, officials, and procedures, in order to relate the offences in two different countries.162 However, this approach has been criticised as having the potential for wider, uncertain, and objectionable operation. It has been suggested that it should not be appropriate to make “translations” of the relevant institutions where doing so would align an objectionable offence in the requesting country with one that is quite different, in substance, in the requested country.163
5.18There has been some movement internationally towards less reliance on the principle of dual criminality at all. The Framework Decision on the European Arrest Warrant has effectively removed the dual criminality requirement between European countries for those offences that are included in a broadly defined list of offences.164 In the current international environment where there are increased efforts to combat transnational crime, it is seen as important to reduce barriers to cooperation and to ensure that each country’s criminal justice system can be as effective as possible.
5.19Despite section 5 of the Act, there have been several New Zealand cases where a person has been found not to be eligible for extradition because the dual criminality requirement has not been satisfied.165 The case of Radhi v New Zealand Police illustrates the difficulties with the current law. Radhi was charged in Australia with a people-smuggling offence relating to the transportation of illegal immigrants on a vessel that sank off the coast of Indonesia in 2001. After the District Court’s finding in 2012 that Radhi was eligible for surrender to Australia, the High Court, on appeal in 2013, found that the relevant New Zealand offence at the time of the offending required the arrival in New Zealand of the persons being smuggled. Despite the Extradition Act enjoining a “broad conduct approach”, the High Court found that, at the relevant time, the conduct attributed to Radhi did not constitute an offence in New Zealand and so the requisite dual criminality was not present.166 The relevant Immigration Act 1987 offence was repealed and replaced with a broader offence in 2002.167 The Court of Appeal has recently overturned the High Court’s decision on this point, finding that the relevant offence can be interpreted in a way that covers Radhi’s conduct, resulting in there being an equivalent New Zealand offence to the Australian offence for which extradition is requested.168 Nevertheless, the different decisions in this case illustrate the difficulties that can occur in trying to meet the dual criminality requirement.

5.20We think that the dual criminality limitation on extradition is justifiable, particularly on the basis that New Zealand should not extradite unless the conduct in question is criminal in this country. However, it appears that often the dual criminality requirement is breached on a relatively technical element of the offence, and there may be good reasons why a person subject to an extradition request should be held to account despite the alleged conduct not correlating with an offence in New Zealand. For example, some conduct is not an offence in New Zealand because of physical impossibility, such as where the offence requires crossing a land border.

5.21It is our view that the principle of dual criminality should continue to apply under New Zealand extradition law and should be interpreted broadly. While section 5 of the Extradition Act is intended to allow dual criminality to be interpreted broadly, it seems that there may continue to be cases were the dual criminality requirements, arguably unnecessarily, limit extradition. We are interested in views as to whether reform is needed to the definition of dual criminality to allow an even broader interpretation of this element of an extradition offence.

5.22An alternative reform would be to shift dual criminality from being an element of the “extradition offence” test to a ground for refusing surrender. This would mean that the courts would be able to consider whether lack of dual criminality should prevent an extradition in the particular circumstances of the case. For instance, this discretion might be exercised where there are concerns about the nature of the offence for which extradition is requested. This approach would provide greater flexibility. However, it would require that an extradition request proceed through most of the process before dual criminality would be considered. It would also be out of line with the way that dual criminality is addressed in other jurisdictions. For these reasons, we prefer the option of exploring more expansive wording of the dual criminality element.

Question

Q10 Is there a need for more expansive wording on dual criminality in the new Extradition Act? How could this be achieved?

Is the 12-month maximum penalty threshold appropriate?Top

5.23There is an issue with whether the 12-month maximum penalty threshold continues to be appropriate. It is arguable that this level is too low. There are some less serious offences that would probably not justify extradition that have a maximum penalty of 12 months’ imprisonment or more, for example:

5.24Notwithstanding this, our preliminary view is that the 12-month maximum penalty threshold should be retained. It is difficult to see that the inclusion of offences that are of a relatively low level of seriousness would be a problem in practice. An extradition request creates expense for both the requesting country and the requested country. It makes sense to ensure that there is a reasonable threshold of seriousness, although not one that limits extradition too greatly, and given the cost, it is unlikely that a foreign country will go to the trouble of requesting extradition in relation to a minor offence. It is possible, of course, that extradition may be requested in relation to an offence that seems much more serious in the requesting country than it does in New Zealand, for instance, because of differing cultural or religious values. In such cases, our proposed ground for refusing surrender on the basis of injustice or oppression would likely provide a way for New Zealand to refuse the surrender.174
5.25An alternative would be to rely on the comparatively new offence categories in the Criminal Procedure Act 2011. That Act introduced four offence categories based on the severity of the maximum penalty. It would be possible to redraft the penalty threshold in the Extradition Act so that it relies on the Criminal Procedure Act categories, delineating extradition offences in a way that uses a two-year maximum penalty threshold. For instance, the Extradition Act could require that an offence ought to align to category 3 or 4 offences in New Zealand (covering offences punishable by imprisonment for two years or more or as listed in Schedule 1 of the Criminal Procedure Act) in order for extradition to occur.175 This would align the extradition offence categories with domestic offence categories.

5.26We acknowledge, however, that whatever approach is taken, there is an unavoidable arbitrariness to the setting of maximum penalties for extradition offences. Various penalties for domestic offences have been subject to change over the years. Consequently, there is likely little to be gained by aligning the extradition threshold with domestic offence thresholds. Relying on the Criminal Procedure Act categories may also introduce an undesirable level of complexity, particularly for foreign governments needing to work out whether extradition is available under New Zealand law.

5.27The 12-month maximum penalty threshold is consistent with the approach in Australia and the United Kingdom176 and is within the options provided for in the United Nations Model Treaty,177 although Canada178 and the London Scheme179 use the higher threshold of 24 months’ maximum imprisonment.

Decreasing the threshold where a person has already been sentenced

5.28Some countries take a different approach in relation to extradition requests for a person has already been convicted and sentenced for offending. In the United Kingdom and other countries in Europe, based on the European Convention on Extradition,180 such a person can be extradited even where the offence concerned has a maximum penalty of less than one year, provided that the individual has received an actual sentence of four or six months’ imprisonment. This is justified on the basis that the person’s guilt and the seriousness of the offence have already been established by a court. The approach means that those countries can provide greater cooperation to their neighbours in extraditing known criminals. There are significantly fewer cases of extradition where the person sought has already been tried, convicted, and sentenced than where the person has not yet been tried. This means that it would be only seldom that this rule was relevant. However, a reduction to the penalty threshold where the person sought has already been convicted and sentenced may allow some increase in the number of requests.

Question

Q11 What is the correct extradition threshold when someone is accused? What is the correct threshold when someone is convicted?

Should some countries be treated differently?Top

5.29The case can be made that the extradition offence requirements, including either or both of the 12-month maximum penalty threshold and the dual criminality test, should not be required in relation to requests from some countries.

5.30The argument in favour of this is that, where New Zealand has a close, trusting relationship with the requesting country because its legal system and legal values are similar, whether the request meets the technicalities of the extradition offence definition should not matter. Removing the requirements would mean that extradition requests would not require as much supporting information and could proceed more quickly. It would mean the extradition offence issues would not need to be considered by the court, which would simplify these court proceedings.

5.31The converse argument is that the extradition offence requirements form an important check on how far New Zealand is willing to go in extradition. It is arguable that the questions of the seriousness of the offence and whether it is considered criminal in New Zealand are just as important whether the request comes from a close partner or any other country. The extradition offence test reflects important values that are key to New Zealand’s approach to extradition relating to the seriousness of a crime and its recognition under New Zealand law.

5.32The case for the removal of these requirements may be strongest in relation to Australia. Under Australia’s Extradition Act, the “extradition offence” requirements do not apply in relation to extradition requests from New Zealand. The Australian courts will endorse a New Zealand arrest warrant without investigating whether the offence meets the maximum penalty threshold or dual criminality.181 This approach would further simplify the requirements for extradition from New Zealand to Australia. It would allow New Zealand’s legislation to reciprocate Australia’s and may enhance cooperation between the two countries.

Question

Q12 Should the “extradition offence” requirements (or the maximum penalty threshold or dual criminality requirements) differ for some countries?

156EP Aughterson Extradition: Australian law and procedure (Law Book Co, Sydney, 1995) at 59−60; IA Shearer Extradition in International Law (Manchester University Press, Manchester, 1971) at 137–138; M Cherif Bassiouni International Extradition: United States Law and Practice (5th ed, Oxford University Press, New York, 2007) at 494; and Anne Warner La Forest La Forest’s Extradition to and from Canada (3rd ed, Canada Law Book, Ontario, 1991) at 52–53.
157Aughterson, above n 156, at 61.
158London Scheme for Extradition within the Commonwealth (incorporating the amendments agreed in Kingstown in November 2002), cl 2.
159Model Treaty on Extradition GA Res 45/116, A/Res/45/116 (1990), art 2(2)(b).
160Gavan Griffith and Claire Harris “Recent Developments in the Law of Extradition” (2005) 6 MJIL 33 at 38−41, citing Cabal v United Mexican States [No 3] [2000] FCA 1204, (2000) 186 ALR 188; and Dutton v O’Shane [2003] FCAFC 195, (2003) 132 FCR 352.
161Cabal v United Mexican States [No 3], above n 160, at [210]–[214].
162Dutton v O’Shane, above n 160, at [66].
163​Griffith and Harris, above n 160, at 41.
164Council Framework Decision 2005/584/JHA on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1, art 2(2).
165For instance, Radhi v Police [2013] NZHC 163; and United States of America v Wong [2001] 2 NZLR 472 (HC).
166Radhi v Police, above n 165, at [47]−[49].
167Immigration Amendment Act 2002, which repealed s 142(fa) of the Immigration Act 1987 and replaced it with s 142(eb) and (ec).
168Police v Radhi [2014] NZCA 327, [2014] NZAR 1019 at [28]–[35].
169Crimes Act 1961, s 86.
170Crimes Act 1961, s 145.
171Crimes Act 1961, s 196.
172Crimes Act 1961, s 216I.
173Crimes Act 1961, s 223.
174See ch 8 for our proposed expanded ground for refusing extradition on the basis of injustice and oppression, which would incorporate the current triviality ground: see Extradition Act 1999, s 8.
175Criminal Procedure Act 2011, s 6.
176Extradition Act 2003 (UK), s 64.
177Model Treaty on Extradition, above n 159, art 2(1).
178Extradition Act SC 1999 c 18, s 3.
179London Scheme for Extradition within the Commonwealth, above n 158, cl 2(2).
180European 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).
181Extradition Act 1988 (Cth), pt 3.