DRAFT
BILL
AN ACT to make provision for the endorsement and execution in Trinidad and Tobago of warrants of arrest issued in Scheduled Organization of American States (OAS) countries for the purpose of the return of persons to those countries.
EnactmentENACTED by the Parliament of Trinidad and Tobago as follows:
Short title1.This Act may be cited as the Backing of Warrants Act,
2005.
OAS2.If:
provisional
arrest warrant
First Schedule (a)an application is made to a Judge in Chambers on
behalf of a requesting country listed in the First Schedule for the issue of a provisional warrant
for the arrest of a person and the Judge is told by affidavit:
(i)that an original warrant for the arrest of the person has been issued in the requesting country but the warrant is not available in Trinidad and Tobago;
(ii)that the person named in the original warrant is, or is suspected of being, in or on his way to Trinidad and Tobago;
(iii) the offence the suspected person is charged with, the circumstances surrounding the offence and the means of identifying the person named in the original warrant; and
(b)the Judge is satisfied that it is reasonable in the circumstances to issue such a warrant,
Form Athe Judge shall issue a provisional warrant in the manner
Second Scheduleprescribed at Form A of the Second Schedule for the arrest of the person.
Endorsement of3.If:
warrant issued
in requesting(a)an application is made to a Judge in Chambers on
countrybehalf of a requesting country listed in the First Schedule for the endorsement of a warrant for the arrest of a person issued in the requesting country (an “original warrant”); and
(b)the Judge in Chambers is told by affidavit:
(i)that the person named in the original warrant is, or is suspected of being, in or on his way to Trinidad and Tobago; and
(ii)the offence the person is charged with, the circumstances surrounding the offence and the means of identifying the person named in the original warrant,
Form Bthe Judge shall endorse the original warrant in the manner Second Schedule prescribed at Form B of the Second Schedule to authorize
the arrest of the person under that warrant in Trinidad and Tobago.
Arrest and4(1)A person who is arrested under an endorsed warrant shall
remand onbe brought before a magistrate as soon as practicable.
endorsed
warrant (2)The magistrate shall:
(a) remand the person in custody; or
(b) if the magistrate is satisfied that the person is unlikely
to abscond,
remand the person on bail.
Act No. 18(3)A magistrate who remands a person on bail has the same
of 1994powers in relation to recognisances and reporting
conditions as he has under the Bail Act.
(4)If a magistrate remands the person in custody the person shall have the right to apply to a Judge in Chambers for release on bail during that remand.
Arrest and5(1)A person arrested under an OAS provisional arrest
remand onwarrant must be brought before a magistrate as soon as
OASpracticable.
provisional
arrest warrant
(2) The magistrate shall:
(a)remand the person in custody: or
(b)if the magistrate is satisfied that the person is
unlikely to abscond, remand the person on bail,
until the requesting country produces the original warrant
on which the OAS provisional arrest warrant was granted.
(3)A magistrate who remands a person on bail:
Act No. 18(a)has the same powers in relation to recognisances
of 1994 and reporting conditions as he has under the Bail Act; and
(b)may order that the person’s passport and other travel documents be surrendered to the magistrate until the surrender proceedings in relation to the person are concluded.
(4)A person shall not be remanded in custody or on bail under subsection (2) for a period exceeding 28 days.
Release from6(1)If:
remand
(a)a person is on remand in custody or on bail 28 days after the day on which the person was arrested; and
(b)an endorsed warrant for the arrest of the person has not been obtained,
the person shall be brought before a magistrate.
(2)The magistrate shall order:
(a)the release of the person from custody; or
(b)the discharge of the recognisances on which bail was granted;
as the case requires, unless the magistrate is satisfied that the endorsed warrant will be obtained within a particular period that is reasonable in all the circumstances.
Committal to7.Subject to Section 9, if either:
custody to
await surrender (a)a person has been remanded after being arrested
under an OAS provisional arrest warrant and the original warrant has been received and endorsed in Trinidad and Tobago; or
(b)a person has been remanded after being arrested under the endorsed warrant,
Form Cand the Magistrate is satisfied at the proceedings for his Second Schedule surrender that the person remanded is the person sought and should be surrendered, the Magistrate shall by warrant
Form Eissued in the manner prescribed at Form C of the Second
Second ScheduleSchedule order that the person be surrendered to the requesting country and by warrant issued in the manner prescribed at Form E of the Second Schedule order that the person be committed to prison until he is surrendered to the requesting country.
Application8(1).The magistrate shall, on committing any person to custody
for habeasunder Section 7, inform that person in ordinary language of
corpushis right to make an application to the High Court for
habeas corpus and shall forthwith give notice of the committal to the Attorney-General.
(2)A person committed to custody under Section 7 shall not be returned under this Act if an application for habeas corpus is made in his case, so long as proceedings in that application are pending.
Consent to9(1)At the beginning of the proceedings for the return of a surrender remanded person under Section 7(a) or (b), the magistrate
shall ask the person if he consents to being surrendered.
(2)If:
(a)the person tells the magistrate that he consents to being surrendered; and
(b)the magistrate is satisfied that the consent was given voluntarily,
the magistrate shall inform the person that he will be:
(c) committed to prison without further proceedings; and
(d) returned to the requesting country as soon as
practicable.
(3) If the person maintains his consent to being returned after
being informed by the magistrate under subsection (2), the magistrate shall;
Form D(a)by warrant issued in the manner prescribed at Form
Second ScheduleD of the Second Schedule, order that the person be surrendered to the requesting country; and
Form E(b)by warrant issued in the manner prescribed at Form
Second ScheduleE of the Second Schedule, order that the person be committed to prison until the person is returned to the requesting country.
Determination 10(1)The magistrate shall determine that the person should be
whether personsurrendered unless he is satisfied that:
should be
surrendered (a)the offence for which surrender is sought is of a
political or trivial nature;
(b)if the offence is one of which the person is accused but not convicted, the accusation was not made in good faith and in the interests of justice;
(c)an unreasonably lengthy period has lapsed since the offence was committed; or
(d)it would be unjust, oppressive or too severe a punishment to surrender the person.
(2)If the magistrate determines that the person should be surrendered, the magistrate must:
(a)by warrant issued in the manner prescribed at Form
Form EE of the Second Schedule order that the person be Second Schedule committed to prison until the person is surrendered
to the requesting country;
(b)inform the person that he may, within 15 days of the day on which the order is made, seek a review of the order under section 11;
(c)record in writing his decision and the offence for which the person is to be surrendered; and
(d)give a copy of the record to the person and to the Attorney- General.
(3)Notwithstanding subsection (2), if the magistrate determines that the person should be surrendered and the person is serving a custodial sentence in Trinidad and Tobago for an offence committed in Trinidad and Tobago, the magistrate shall refer the matter to the Attorney-General.
(4) Where the magistrate determines that the person should not
be surrendered to the requesting country, the magistrate shall:
(a)order that the person be released pending any application under Section 11(2) from the requesting country for a review of the order; and
(b)advise the Attorney-General in writing of the order
and of his reasons for determining that the person should not be surrendered.
Review of 11(1)If a magistrate makes an order for the surrender of a person,
magistrate’sthe person may apply to the High Court for a review of the
decision order.
(2) If a magistrate makes an order for the release of a person,
the requesting country may apply to the High Court for a
review of the order.
(3) An application under subsection (1) or (2) shall be made
made within 15 days after the day on which the magistrate makes the order.
(4) The court shall have regard only to the material that was
before the magistrate.
(5) The court may, by order, confirm or quash the order of the
magistrate and order that the person be released or be
surrendered.
(6) If the court orders that the person be surrendered, the court
shall order that the person remain in or be committed to custody until the person is surrendered.
Surrender 12(1)Where a person has been committed to custody to await warrant surrender to the requesting country under Section 7 or
Section 9 3(b) and has not applied for a review of the magistrate’s decision within the time stipulated at Section 11(3) or where a person has been ordered by the High Court to custody under Section 11(b), the magistrate shall
Form Fissue a warrant of surrender in the manner prescribed at
Second Schedule Form F of the Second Schedule.
12(2)The surrender warrant shall:
(a)require any person who has custody of the person to hand the person over to a police officer;
(b)authorize a police officer to:
(i)transport the person from a place where the
police officer takes custody of the person to another place within Trinidad and Tobago for the purpose of handing the person over to the custody of an escorting officer assigned by the requesting country; and
(ii)hold the person in custody for so long as is necessary to enable the person to be handed over to the assigned escorting officer; and
(c)authorize the assigned escorting officer to transport the person out of Trinidad and Tobago.
(3)If the person is serving a custodial sentence, or has been admitted to bail in Trinidad and Tobago for an offence committed or allegedly committed in Trinidad and Tobago, the surrender warrant must not be executed until:
(a)the person has been released from custody; or
(b)the recognisances have been discharged.
Temporary13(1)Where the magistrate refers a matter to the Attorney-
surrenderGeneral under subsection 10(3), the Attorney-General
warrantsmay issue a temporary surrender warrant instead of a surrender warrant if:
(a)the person is serving a custodial sentence in Trinidad and Tobago;
(b)surrender is sought for an offence for which the person is accused but of which the person has not been convicted;
(c)the Attorney-General is satisfied that the requesting country has given adequate undertakings that:
(i)the person will be given a speedy trial in the requesting country;
(ii)the person will be returned to Trinidad and Tobago after the trial and sentence; and
(d)the Attorney-General is satisfied that adequate provision has been made for the travel of the person to the requesting country and for his return to Trinidad and Tobago.
(2)The temporary surrender warrant shall:
(a)be in writing;
(b)require any person who has custody of the person to hand the person over to a police officer;
(c)authorize a police officer to:
(i)transport the person from a place where the police officer takes custody of the person to another place within Trinidad and Tobago for the purpose of handing the person over to the custody of an escorting officer assigned by the requesting country; and
(ii)hold the person in custody for so long as is necessary to enable the person to be handed over to the assigned escorting officer; and
(d)authorize the assigned escorting officer to transport the person out of Trinidad and Tobago.
(3)If a person who was the subject of a temporary surrender warrant:
(a)has been returned to Trinidad and Tobago after trial and sentence in the requesting country; and
(b)has completed his sentence in Trinidad and Tobago,
a magistrate shall issue a surrender warrant for the surrender of the person to the requesting country.
Execution of14(1)If a person is not surrendered under a surrender warrant
surrenderwithin 2 months after:
warrant
(a)the date the surrender warrant was issued; or
(b)if the person is serving a custodial sentence, or has been admitted to bail in Trinidad and Tobago, the date the person has been released from custody or the recognisance has been discharged,
the person may apply to a magistrate to be released
from custody and shall inform the Attorney-General
of the application.
(2)If the magistrate is satisfied that:
(a)the Attorney-General has been informed of the application; and
(b)there is no reasonable cause for delay in surrendering the person,
the magistrate shall order that the person be released from custody.
(3) Without limiting paragraph 2(b), reasonable cause for delay exists if:
(a)it would have been a danger to the person’s life, or prejudicial to the person’s health, to surrender the person;
(b)there was no suitable means of transporting the person to the requesting country and all reasonable steps were taken to obtain suitable transport; or
(c)there was delay by Trinidad and Tobago in responding to a request for permission to transport the person, and all reasonable steps were taken to obtain the permission.
Amendment to15.The Attorney-General may by Order subject to the negative
Schedulesresolution of Parliament amend the Schedules to this Act.
FIRST SCHEDULESections 2,3
COUNTRIES WHICH MAY REQUEST PROVISIONAL OR ENDORSED WARRANTS OF ARREST
1
Antigua and Barbuda
Argentina
Bahamas
Barbados
Belize
Bolivia
Brazil
Canada
Chile
Colombia
Costa Rica
Cuba*
Dominica
Dominican Republic
Ecuador
El Salvador Grenada
Guatemala
Guyana
Hati
Honduras
Jamaica
Mexico
Nicaragua
Panama
Paraguay
Peru
Saint Kitts and Nevis
Saint Lucia
Saint Vincent and the Grenadines
Suriname
Trinidad and Tobago
United States of America
Uruguay
Venezuela
1
SECOND SCHEDULESection 2
FORM A
ORGANIZATION OF AMERICAN STATES PROVISIONAL ARREST WARRANT
Country
To
There being evidence that (hereafter referred to as the person accused) is accused of the offence of……………… against the laws of [Requesting Country].
And there being in my opinion such evidence as would justify the issue of a warrant for the arrest of a person accused of committing a corresponding offence in Trinidad and Tobago:
And there being information that the person accused is or is believed to be in or on his way to Trinidad and Tobago:
You are hereby commanded to arrest the person accused and to bring him before a magistrate to be dealt with in accordance with the provisions of the Backing of Warrants Act.
Dated the day of ,20 .
(Signed)
Judge of the High Court
SECOND SCHEDULESection 3
FORM B
AUTHORIZATION FOR ARREST ON ENDORSED WARRANT
Country
To
In my opinion there is significant evidence to justify the issue of a warrant for the arrest of the person accused of the offence stated overleaf.
I hereby authorize the arrest of the person accused who should be brought before a magistrate to be dealt with in accordance with the provisions of the Backing of Warrants Act.
Dated the day of , 20 .
(Signed)
Judge of the High Court
SECOND SCHEDULESection10(2)(a)
FORM C
ORGANIZATION OF AMERICAN STATES WARRANT ORDERING SURRENDER TO REQUESTING COUNTRY
Country
To the Keeper of Prison and to all Constables.
Whereas a request was made to Trinidad and Tobago on behalf of [Requesting Country] for the surrender to that country of (hereafter referred to as the accused) who is accused of the offence of……………………………..:
And whereas I am satisfied that the evidence before me would be sufficient to warrant the accused trial for that offence if it had been committed in Trinidad and Tobago.
And whereas the accused has not been discharged from custody by order of the High Court:
Now, therefore, I hereby order that the accused be surrendered to [Requesting Country] in respect of the offence for which he was accused.
Dated the day of ,20 .
(Signed)
Magistrate
SECOND SCHEDULESection 9(3)(a)
FORM D
ORGANIZATION OF AMERICAN STATES WARRANT FOR COMMITTAL TO PRISON FOR RETURN (BY CONSENT) TO REQUESTING COUNTRY
Country
To the Keeper of Prison and to all Constables.
Whereas a request has been made on behalf of [Requesting Country] for the surrender to that country of (hereinafter referred to as the accused) who is accused of the offence of…………………………..:
And whereas the accused consented before me on the day of , 20 to being surrendered to [Requesting Country]:
Now, therefore, I hereby order that the accused be surrendered to [Requesting Country] in respect of the offence for which he was accused.
Dated theday of, 20 .
(Signed)
Magistrate
SECOND SCHEDULESection 9(3)(b)
FORM E
ORGANIZATION OF AMERICAN WARRANT FOR COMMITTAL TO PRISON FOR RETURN TO REQUESTING COUNTRY
Country
To the Keeper of Prison and to all Constables.
Whereas a request has been made on behalf of [Requesting Country] for the surrender to that country of (hereinafter referred to as the accused) who is accused of the offence of…………………………..:
And whereas I ordered on the day of , 20 that the accused be surrendered to [Requesting Country]:
Now, therefore, I hereby order that the accused be committed to prison until he is surrendered to [Requesting Country].
Dated the day of , 20 .
(Signed)
Magistrate
SECOND SCHEDULE Section 12(1)
FORM F
ORGANIZATION OF AMERICAN STATES WARRANT SURRENDERING PRISONER TO REQUESTING COUNTRY
To the Keeper of Prison and to all Constables.
Whereas a request was made on behalf of [Requesting Country] for the surrender to that country of ………………… (hereinafter referred to as the prisoner) who is accused of the offence of………………………
And whereas I/the High Court ordered on the day of , 20 that the prisoner be committed to prison until he is surrendered to [Requesting Country].