Jack Austin Warner v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Sir Declan Morgan,Lord Hodge,Lord Briggs,Lord Hamblen,Lord Burrows |
| Judgment Date | 17 November 2022 |
| Neutral Citation | [2022] UKPC 43 |
| Docket Number | Privy Council Appeal No 0026 of 2020 |
| Court | Privy Council |
[2022] UKPC 43
Lord Hodge
Lord Briggs
Lord Hamblen
Lord Burrows
Sir Declan Morgan
Privy Council Appeal No 0026 of 2020
Privy Council
Michaelmas Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Clare Montgomery KC
Fyard Hosein SC
Anil V Maraj
Rishi P. A. Dass
Sasha Bridgemohansingh
(Instructed by Simons Muirhead & Burton (Newman Street))
Respondent
James Lewis KC
Douglas L Mendes SC
Rachel Scott
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 27 and 28 April 2022
Sir Declan Morgan ( with whom Lord Hodge, Lord Briggs, Lord Hamblen and Lord Burrows agree):
The appellant is Jack Austin Warner, a politician, businessman and former Vice President of Fédération Internationale de Football Association (“FIFA”). He is charged by the prosecuting authorities in the United States of America (“USA”) with various crimes covering a period of more than three decades.
This is an appeal from the decision of the Court of Appeal of Trinidad and Tobago dismissing an appeal against the dismissal by the High Court of judicial review proceedings brought by the appellant. In those proceedings he challenged:
(1) whether the Extradition (United States of America) Order, 2000 (“the USA Order”), purportedly issued by the Attorney General pursuant to section 4 of the Extradition (Commonwealth and Territories) Act 1985 (“the Act”) was intra vires the Act or the Act as amended by the Extradition (Commonwealth and Foreign Territories) ( Amendment) Act, 2004 (“the 2004 Act”);
(2) whether the decision of the Attorney General to issue, pursuant to section 9 of the Act, an authority to proceed (“ATP”) in respect of the USA's request for the extradition of the appellant was in breach of the appellant's right to procedural fairness;
(3) whether the Attorney General was entitled to rely on a certificate issued pursuant to section 8(5) of the Act dealing with specialty without disclosing the specialty arrangement with the USA; and
(4) whether the Attorney General acted in conformity with the Constitution of Trinidad and Tobago.
As will be explained below (see para 34), there are four main specific issues for the Board to decide which arise from those four grounds of challenge.
On 27 May 2015 a provisional warrant was issued pursuant to section 10 of the Act by a Magistrate for the arrest of the appellant. He voluntarily surrendered himself to police and was taken to the Port-of-Spain Magistrates' Court where he was granted bail in the sum of $2.5 million upon condition that he surrender his passport and report twice per week to police. On 24 July 2015 a request for the extradition of the appellant was made by the USA on foot of the USA Order.
On 27 May 2015 the appellant made a request for the disclosure of all material relevant to the issue of an ATP so that he could make representations. This request was repeated by letters of 12 June, 3 July and 18 August 2015. The Attorney General by letter of 2 July 2015 refused disclosure of any such material and declined to afford the appellant the opportunity of making any representations prior to any decision in respect of an ATP. The position was reiterated in a further letter of 12 August 2015 in which the Attorney General invited the appellant's lawyers to agree that the timeframe for an ATP should be extended until the middle of September in light of imminent parliamentary elections in which the appellant was a candidate.
The Magistrate presiding over the extradition proceedings ruled that any ATP should be issued by 15 September 2015. On 9 September, following a change of government as a result of the general election, a new Attorney General was appointed. On 14 September 2015, the newly appointed Attorney General indicated that he had taken the decision to allow the appellant's attorneys to make representations as to whether or not he should issue an ATP. His letter asked the appellant's attorneys to confirm by 4:00 pm on the same day that they intended to make representations to the Attorney General and that they would agree that the date set by the Chief Magistrate for receipt of the ATP be vacated and reconsidered in the Magistrates' Court on 21 September 2015. A copy of the extradition request was provided to the appellant's lawyers at 3.45 pm that day.
The appellant's lawyers declined to make representations and did not agree to the proposed extension of time. The Magistrate made an Order extending time to 21 September 2015 and the ATP in respect of 29 offences of fraud, corruption and money laundering over a 30 year period was delivered to the Magistrate on that date.
The Act provides for extradition arrangements between Trinidad and Tobago and Commonwealth and foreign territories. It was amended by the 2004 Act. The statutory background will describe the relevant provisions of the Act and then deal with the amendments introduced by the 2004 Act.
Section 3 of the Act enables the Attorney General, by Order subject to negative resolution in Parliament, to declare a Commonwealth territory to be one to which the Act applies subject to any exceptions, adaptations, modifications or other provisions specified in the Order.
Section 4 deals with foreign territories outside the Commonwealth:
“(1) Where a treaty has been concluded, whether before or after the commencement of this Act, between Trinidad and Tobago and any foreign territory in relation to the return of fugitive offenders, the Attorney General may, by Order subject to negative resolution of Parliament, declare that territory to be a foreign territory (hereafter referred to as a declared foreign territory) in relation to which this Act applies, and where any such Order so declares, this Act applies in relation to that territory; and any such Order may provide that this Act applies in relation to that territory subject to such exceptions, adaptations, modifications or other provisions as may be specified in the Order and, where any such Order so provides, this Act applies in relation to that territory subject to such exceptions, adaptations, modifications or other provisions.
(2) An Order shall not be made under subsection (1) unless the treaty—
(a) is in conformity with the provisions of this Act, and in particular with the restrictions on the return of fugitive offenders contained in this Act; and
(b) provides for the determination of the treaty by either party to it after the expiration of a notice not exceeding one year.
(3) Any Order made under subsection (1) shall recite or embody the terms of the treaty and shall not remain in force for any longer period than the treaty; and the Order shall be conclusive evidence that the treaty complies with the requisitions of this Act and that this Act applies in relation to the foreign territory mentioned in the Order, and the validity of the Order shall not be questioned in any legal proceedings whatever.”
Neither section 3 nor section 4 was amended by the 2004 Act.
On 15 March 2000 the Attorney General exercised the power under section 4(1) to make the USA Order based on the Treaty between Trinidad and Tobago and the USA set out in the Order (“the Treaty”). The conditions imposed by section 4(2) of the Act have a long legislative history and can be traced back to section 4 of the Extradition Act 1870 (“the 1870 Act”) dealing with extradition to foreign states. The conclusive evidence and validity provisions in section 4(3) of the Act were originally set out in section 5 of the 1870 Act. The absence of a conformity obligation in section 3 of the Act in cases concerning Commonwealth territories reflects the general shared legislative history and comity between those territories.
Section 5 of the Act provides that those accused of an extraditable offence or alleged to be unlawfully at large after conviction of an indictable offence in a declared Commonwealth or foreign territory may be arrested and returned to that territory in accordance with the provisions of the Act. The 2004 Act added a point of clarification on extraterritorial offences but made no other amendment to this section.
Section 6 (which, as is explained in para 21 below, has been amended) defined extraditable offences in declared Commonwealth territories. There was a requirement for double criminality with the offences set out in the First Schedule to the Act however the offence was described in the requesting territory. The First Schedule set out a list of specific offences and legislative provisions giving rise to a range of offences. This approach is described as the enumerative approach as it involves specifying in the legislation the precise offences in respect of which extradition can be ordered. All of the offences specified in the First Schedule were indictable in Trinidad and Tobago but a range of indictable offences including sexual offences, firearms offences and certain common law offences were not included in the schedule. Provision was made for minimum gravity of not less than 12 months' imprisonment and there was inclusion of extraterritorial offences if in corresponding circumstances they would be contrary to law in Trinidad and Tobago. Inchoate offences associated with the offences in the First Schedule were also included.
Section 7 (which has also been amended) followed a similar structure for declared foreign territories with the same double criminality provision on the basis of the offences set out in the First Schedule to the Act. Article 2(1) of the Treaty, however, provides a wider definition of an indictable offence asserting that an extraditable offence is one which is indictable under the laws of Trinidad and Tobago.
Section 7(1) of the Act stated:
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