Contents

Chapter 9
Procedure

The arrest warrant

9.9Under the current regime, regardless of whether an extradition request is subject to the backed-warrant or the standard procedure, the judge must be satisfied that:390

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
(Part 3)		 19 The Minister must (in writing):
  • notify the Judge that an extradition request has been made under Part 3; and
  • request that the Judge issue an arrest warrant.
(Note: There is no prescribed form for the Minister’s letter.)		 “Information” to satisfy the judge of the relevant criteria. A new domestic arrest warrant.
Backed-warrant procedure
​(Part 4)		 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.

Overlap with the substantive hearing decision

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.

9.14To determine whether a request involves an extradition country, an extraditable person, and an extradition offence, a judge may be called upon to consider complex legal and factual issues, compare foreign with domestic law, and examine treaty obligations.394

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.

Options for reformTop

Filtering out unmeritorious cases in the standard procedure

9.16New extradition legislation could contain prescriptive provisions surrounding the process of a central authority vetting incoming extradition requests. Any application for an arrest warrant should be accompanied by a certificate from the New Zealand central authority that the foreign central authority has reasonable grounds to believe that there is an extradition country, an extraditable person, and an extradition offence and the reasons why. This is the approach taken in Canada and the United Kingdom.395

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.

Challenging an arrest warrant

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.

9.21One of the benefits of this proposal would be that, in the future, habeas corpus applications would largely be limited to the comparatively straightforward issue of identity. The more complex issues relating to the existence of an extradition offence, an extraditable person, and an extradition country would be primarily dealt with in the appeal.396

Technical issuesTop

9.22Three technical matters have been brought to our attention:

(a) In the backed-warrant procedure, a judge cannot issue an arrest warrant unless satisfied that the person who issued the foreign arrest warrant had “lawful authority to issue it”.397 This has led to a cumbersome practice of applicants routinely producing an affidavit from a second foreign judge or official.398 In the context of countries with which New Zealand has a close extradition relationship, this is unnecessary. A judge should be able to take judicial notice of the foreign judge’s signature, which could still be challenged if there was any real concern regarding the foreign judge’s authority.
(b) There are mechanisms for the Minister or the court to cancel a provisional arrest warrant if specific criteria are not met within a reasonable timeframe. The Act does not, however, require the court to fix what would be a “reasonable” timeframe in advance. The Act should require the setting of a deadline, which could be extended in certain circumstances.
(c) The Act does not include a power of the Police to use reasonable force to take a detainee’s fingerprints and photographs. This power is available to the Police in relation to standard domestic criminal proceedings.399 This oversight should be fixed.400

Questions

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?

390Extradition Act 1999, s 19 for Part 3 and s 41 for Part 4.
391An “extradition country” is a country to which the Extradition Act 1999 applies: s 2, definition of “extradition country”.
392An “extraditable person” is a person suspected of, or who has been convicted of, committing an extradition offence: Extradition Act 1999, s 3.
393An “extradition offence” is an offence under the law of the requesting country punishable by 12 months or more in prison, and which, if that conduct had occurred in New Zealand at the relevant time, would also have been an offence in New Zealand punishable by 12 months or more in prison: Extradition Act 1999, ss 4 and 5.
394By way of example, see Warner v United Kingdom [2001] 1 NZLR 331 (HC), on appeal at [2001] 1 NZLR 337 (CA); Poon v Police [2000] 2 NZLR 86 (HC); Kim v Prison Manager, Mount Eden Corrections Facility [2012] NZHC 2417, [2012] NZAR 990; and Kim v Prison Manager, Mt Eden Corrections Facility [2012] NZCA 471, [2012] 3 NZLR 845.
395In Canada, the Minister of Justice must consider certain factors (including whether there is an “extradition offence”) and issue an “Authority to Proceed” in the prescribed form before the Attorney-General may make an application for an arrest warrant: see ss 15 and 16 of the Extradition Act SC 1999 c 18. In the United Kingdom, the Secretary of State must issue a “certificate” in the prescribed form and send it to the court if the criteria for a “valid” extradition request are met under Part 2 of their Act (which applies to non-European Union countries): see s 70 of the Extradition Act 2003 (UK).
396For instance, the provision could contain a statutory time limit for filing an application for review. It could also limit the grounds of appeal available to grounds similar to those that apply in judicial review proceedings. Thus, an appeal might only be available on the basis that the central authority’s decision to issue the certificate was the result of an error of law or was a decision that no reasonable decision maker could have reached.
397Extradition Act 1999, s 41(1).
398Extradition Act 1999, s 78(1)(c)(i). This second official does not, however, provide proof of his or her own authority.
399Policing Act 2008, s 32.
400This issue was recently discussed by the High Court in: Kim v Attorney-General [2014] NZHC 1383 at [97]–[108].