Jack Austin Warner v Attorney General of Trinidad and Tobago (Trinidad and Tobago)

The legality of an extradition order under section 4(1) is assessed against the statute in force when the order was made. “Conformity” under section 4(2) requires broad and generous correspondence, not exact replication. The statutory scheme permits adaptations in the order and allows specialty protection through domestic law or a specific arrangement with the requesting state. Differences between enumerative and eliminative offence definitions, treatment of extraterritorial conduct, minimum gravity and specialty do not themselves invalidate a treaty. An authority to proceed is only a condition precedent to court proceedings. The Act does not generally require prior representations, although fairness may require an opportunity in some cases. Where an opportunity is offered and declined, the procedure is not unfair.

The appellant faced a United States extradition request concerning alleged offences over more than three decades. A Magistrate issued a provisional warrant, and the Attorney General later issued an authority to proceed under section 9 of the Act. The High Court dismissed the appellant’s judicial review proceedings, and the Court of Appeal dismissed his appeal. Before the Board, the issues concerned the temporal basis for assessing the 2000 USA Order, the degree of treaty conformity required by section 4, the effect of an undisclosed specialty arrangement and certificate, and procedural fairness in issuing the authority to proceed. The respondent cross-appealed on the ouster and conclusive-evidence provisions.

The Board dismissed the appeal. Sir Declan Morgan delivered the single judgment, with Lord Hodge, Lord Briggs, Lord Hamblen and Lord Burrows agreeing. The respondent’s cross-appeal raised issues concerning section 4(3), but the Board did not determine them because they could not affect the result.

1. Temporal question. The 2000 USA Order had to be assessed against the form of the Extradition (Commonwealth and Territories) Act 1985 in force when the Order was made. The 2004 amendments did not alter section 4 or impose an additional conformity test when an authority to proceed was later considered.
2. Conformity. Section 4(2) requires broad and generous conformity, not exact correspondence. The interpretation must accommodate the power in section 4(1) to specify exceptions, adaptations and modifications, the diversity of extradition treaties, the facilitation of extradition and the protection of fundamental rights through the domestic Act. The approach was supported by R v Governor of Ashford Remand Centre, Ex parte Postlethwaite [1988] AC 924, Liangsiriprasert v Government of the United States of America [1991] 1 AC 225 and In re Ismail [1999] 1 AC 320. The Treaty’s eliminative approach to extraditable offences did not invalidate its conformity with the Act’s former enumerative approach. Section 7(1) included extraterritorial offences, consistently with R (Al-Fawwaz) v Governor of Brixton Prison [2002] 1 AC 556. The Treaty and Act also contained conformable minimum-gravity provisions.
3. Specialty. Section 8 allowed specialty protection to be secured by the law of the requesting state or by an arrangement with that state. The certificate disclosed a precise arrangement and satisfied section 8(5). Dean (Zain Taj) v Lord Advocate [2019] SLT 757 was distinguishable because the arrangement there was uncertain. The Board had no basis for doubting the conclusion in Welsh v Secretary of State for the Home Department [2006] EWHC 156 (Admin); [2007] 1 WLR 1281, and the USA could be expected to honour the arrangement.
4. Authority to proceed and fairness. An authority to proceed is a condition precedent to the Magistrate proceeding with extradition proceedings. It does not determine entitlement to extradition or the conditions of return. The Act does not generally require prior representations, although fairness may require an opportunity in some cases. The statutory scheme, practical concerns about fugitives and the opportunity actually provided were relevant. The new Attorney General offered an opportunity to make representations, which the appellant declined. There was no unfairness. The reasoning in Ramjohn v Permanent Sec, Ministry of Foreign Affairs [2011] UKPC 20; [2012] 2 LRC 362 concerned materially different public-appointment decisions, while R v Secretary of State for the Home Department, Ex parte Norgren [2000] QB 817 supported the approach to prior representations.

• Privy Council — Appeal from the Court of Appeal dismissed. Constitutional issues raised by the respondent’s cross-appeal were not addressed.
• Court of Appeal of the Republic of Trinidad and Tobago — Appeal from the High Court dismissed.
• High Court of Trinidad and Tobago — Judicial review proceedings dismissed.