When push comes to shove

Hiren Mistry, Richard Wakeham and Philip Sinel examine the potential effects as the Extradition (Jersey) Law 2004 makes its presence felt

Jersey introduced extradition by statute when the Extradition ­(Jersey) Law 2004 (the 2004 law) came into force on 1 October 2004.

The power of extradition is a draconian one, the exercise of which involves incarcerating and sending a person to another ­country, where they will in turn be incarcerated pending trial in that foreign jurisdiction. The process is lengthy, uncertain, expensive and may result in a further period of ­incarceration in a foreign jurisdiction.

Only now, five years after its ­introduction, are the Jersey courts dealing with their first extradition request under the 2004 law.

The process

The question of whether to extradite a ­person from Jersey under the 2004 law will be decided differently, depending on where the extradition request originates.

While requesting countries must be a ’designated territory’, if an order for extradition is to be made under the 2004 law there are two differently treated subclasses of designated territories. Those falling within the first subclass have a lesser evidential burden to discharge to obtain an extradition order.

Irrespective of this, the extradition process is initiated by the requesting ­country issuing a valid request to the attorney-­general, who shall certify that the request has been made in the approved way and issue the certificate and the request to the magistrate.

On receipt of the certificate, the ­magistrate may issue a warrant for the arrest of a person whose extradition has been requested if they have reasonable grounds for believing that the person in question has been accused or convicted of an ­extradition offence.

In determining whether the offence in question is an ’extradition offence’, for the main part the magistrate must be satisfied that (a) the offence occurred in the designated territory or is otherwise punishable in that designated territory, and (b) that the offence would constitute a recognisable offence under Jersey law carrying a ­sentence of imprisonment for 12 months or more.

If these points are satisfied an arrest warrant is issued and the alleged offender brought before the magistrate. At that first appearance the magistrate will fix a date for the extradition hearing, which unless the interests of justice dictate otherwise will take place within two months.

At the extradition hearing the magistrate must determine whether there is a case to answer or whether the conviction is credible. Either way, if answered affirmatively the magistrate will consider whether any human rights are infringed by making the order and, if not, the matter is referred to the attorney-general to decide whether an order for extradition ought to be made.

Scope of the 2004 law

The 2004 law has a long reach, extending to anybody employed in Jersey with a ­tangential involvement in transactions in any designated territory. This power has potentially severe repercussions for Jersey residents, who are perhaps not aware of all applicable criminal laws in foreign ­jurisdictions to where they are liable to be extradited.

Defences under the 2004 law

Generally, extradition orders may be ­challenged under the following: the rule of double jeopardy; extraneous considerations; passage of time; and hostage-taking ­considerations.

It is also possible to challenge any ­extradition order made by attacking the procedural/administrative steps leading up to the making of such an order. This approach was taken unsuccessfully by the appellant in the recent case of De ­Figueiredo v Commonwealth of Australia (2010), involving a challenge to the first ­extradition order made in Jersey.

There the magistrate, the attorney-­general and the Royal Court of Jersey all effectively upheld the Australian request to extradite. This was despite the fact that the offences regarded the management of an individual’s affairs relating to the evasion of income tax, which arguably at least is a ­matter between the levying state and the paying individual, and irrespective of the fact that the financial scheme in question was devised in Switzerland.

The case was of further interest insofar as the Royal Court considered the effect of the enshrined right to respect for private and family life under Article 8 of the ­European Convention on Human Rights. The Royal Court made plain that it will “…only be in the rarest cases that Article 8 will be capable of being successfully invoked”.

In making this observation, the Royal Court aligned itself to the English ­jurisprudence on the matter as set out in Norris v USA (2010). This alignment ­preserves the argument that extradition requests might be refused where the offence is not sufficiently grave and there are strong family-based arguments to counter the request.

So although the 2004 law abounds with measures to protect individuals from ­domineering states and unjustifiable laws and regimes, its provisions can cut through national frontiers with relative ease.

It is likely, therefore, that this new level of cross-border assistance in the enforcement of the rule of foreign law could cause these issues to surface across numerous, if not all, offshore jurisdictions in the immediate or near future as the use of extradition processes modelled on the English/Commonwealth models becomes ­increasingly widespread for financial-­related (including tax) state matters.

Hiren Mistry and Richard Wakeham are associates and Philip Sinel is principal at Sinels Advocates in Jersey