Saturday, March 22, 2014

Can technology make extradition for trial unnecessary?

If you need clarification of disclosure obligations in the context of extradition proceedings involving the “record of case” procedure, Dotcom v United States of America [2014] NZSC 24 (21 March 2014) should be of assistance.

The decision of the Court is in the joint judgment of McGrath and Blanchard JJ (delivered by McGrath J), the concurring judgment of William Young J, and the partially concurring judgment of Glazebrook J. See [153], [172], [177], [191], [194]; [213] – [217], [221] – [223], [228].

Where legislation permits a slightly more relaxed approach to treaty obligations, so that there is more room for fairness, the dissent of Elias CJ, and the partial dissent of Glazebrook J deserve consideration.

The central concept is the “duty of candour”, pursuant to which a requesting state must disclose to the defendant any information that [152] “destroys or very seriously undermines the evidence” on which the requesting state relies (adopting Lord Bingham in Knowles v Government of the United States of America [2006] UKPC 38, [2007] 1 WLR 47 at [35]).

Enforcing this duty of candour, in the absence of judicial powers to make orders, requires the court to rely on the candour of a party that may well not want to be candid. Of course the judges didn’t put it like that [177]:

“We accept that there will be exceptional cases where an extradition judge might want further information to be sought from the requesting state. Such concerns will usually be resolved through dialogue between the Court and counsel. In cases where that does not meet the perceived need, we also accept the view expressed in [Norris v Government of the United States [2008] UKHL 16, [2008] AC 920 at [107]] by Lord Bingham that where the relevant extradition treaty provides for government-to-government requests to be made for additional information or evidence, as art 12 of the Treaty does, that formal procedure may be availed of. The Court should inform counsel for the requesting party that the Court wishes to receive further information from the requesting state. Counsel must then bring the matter to the attention of the appropriate New Zealand Ministers so that a decision on whether to request the further information through diplomatic channels is made and given due effect.”

The weakness in this legislated scheme is obvious. The “state” seeking extradition is really a group of people whose jobs are to be prosecutors. They have allegiance to their country. They believe they have right on their side. So-called “states” do not treat each other with candour: if they did there would be a lot of unemployed spies.

Is the meaning of a “fair” extradition hearing different from the meaning of a “fair” trial? Fairness in extradition hearings requires impartial determination of the facts – in the sense of giving the evidence appropriate weight and determining issues without bias – in deciding whether a prima facie case has been established by the requesting state. There must be evidence, summarised in the record of case (where that procedure applies), on every element that the prosecutor would have to prove at trial. None of that evidence can be so unreliable that no fact-finder would accept it. The defendant must be able to challenge the reliability of the evidence, and that may require access to information that only the prosecutor may have. The prosecutor may be unaware of weaknesses in the case for extradition, or may not appreciate the magnitude of a possible weakness.

There is a point on which one might have reservations about the reasoning at [161] of the joint judgment (and concurred by William Young J at [228]). Disclosure, the judges seem to be saying, is not required when the defendant has independent knowledge of the facts. But the difficulty with this is that disclosure enables the defendant to know how the prosecutor intends to prove the facts needed to establish a prima facie case. It doesn't matter what the defendant knows, it's what the prosecutor knows, and how that knowledge was obtained, and whether it is admissible as evidence, that the defendant needs disclosure of, to challenge the assertion that there is a prima facie case.

It seems obvious that the statutory scheme for extradition where the record of case procedure is used does not meet the requirements of a fair hearing, because of constraints on disclosure of the prosecutor's case and the requirement that courts accept - although on a supposedly "rebuttable" basis - the candour of the prosecutor. You could hardly get a clearer example of the legislature requiring the court to take a biased stance. Yet the majority judges don't accept this. In considering whether the scheme complies with the requirements of natural justice [193], [229], [239] they - in effect - explain why it doesn't then they say that it does.

If there are questions about the power of the legislature to require courts of justice to act unjustly, resort will be had to the inherent powers of the court to act in the interests of justice. Elias CJ and Glazebrook J seek to advance this principle. The majority refer [181] to the court's ability to refuse extradition after a "meaningful judicial assessment of whether the evidence is sufficient to meet the threshold of a prima facie case", and the word "meaningful" may, one may speculate, encompass cases where there is a judicial sense that unacceptable unfairness has occurred.

Lord Devlin said something sensible in Connelly v DPP [1964] AC 1254, 1354, which I quoted in an article that, for reasons that now nearly escape me, I called "Criminal Equity" [2000] New Zealand Law Journal 427, a copy of which is available here.

In these times of technological sophistication, when trials do not really require the presence of defendants, or often even of witnesses, because they can participate remotely by audio visual links, extradition may only be necessary when a person is required to be present in court for sentencing.