Dana See­ta­hal

In an Ad­vice ap­par­ent­ly so­licit­ed by at­tor­neys for Steve Fer­gu­son and Ish­war Gal­barans­ingh, for­mer pres­i­dent El­lis Clarke, an em­i­nent at­tor­ney-at-law, pro­ferred the opin­ion that the case for T&T be­ing the "fo­rum con­ve­niens" to try the ac­cused men is lu­cid and "com­pelling." This is not the first time that it has been ar­gued in re­spect of an ex­tra­di­tion mat­ter that lo­cal tri­al for peo­ple ac­cused of sim­i­lar of­fences in both the US and T&T should be pre­ferred. The point was tak­en in ex­tra­di­tion pro­ceed­ings in re­la­tion to some of the men lo­cal­ly ac­cused of killing Bal­ram Ma­haraj, a US cit­i­zen, and in re­spect of whom the US had sought ex­tra­di­tion for of­fences in­volv­ing hostage tak­ing. The ac­cused were even­tu­al­ly ex­tra­dit­ed.

Fo­rum con­ve­niens

This term has been held by the House of Lords to mean "more con­ve­nient, that is to say, prefer­able, for se­cur­ing the ends of jus­tice." In the Cana­da ar­gu­ments on this ba­sis are re­ferred to as the "Cotroni" analy­sis fol­low­ing a 1989 case of Unit­ed States of Amer­i­ca v Cotroni, where the US sought the ex­tra­di­tion of one Cotroni from Cana­da. Since T&T's law on ex­tra­di­tion is based on sim­i­lar leg­is­la­tion in Cana­da it is use­ful to con­sid­er how that has been in­ter­pret­ed. It is set­tled that a Cotroni analy­sis can be de­ter­mined at any time pri­or to sur­ren­der. The law is clear that it is for the ac­cused in an ex­tra­di­tion case to sat­is­fy the court that there is an­oth­er fo­rum that is more con­ve­nient.

Since the de­ci­sion whether or not to sur­ren­der a fugi­tive lies with the At­tor­ney Gen­er­al the per­son sought has a right to make sub­mis­sions to him with re­spect to any mat­ter rel­e­vant to his de­ci­sion to sur­ren­der the fugi­tive [to the State re­quest­ing the ex­tra­di­tion]. The AG is pre­clud­ed from sur­ren­der­ing the per­son if the sur­ren­der would be un­just or op­pres­sive hav­ing re­gard to all the rel­e­vant cir­cum­stances. As clar­i­fied in the 2006 case of US v Pru­den­za, be­fore sur­ren­der­ing a per­son for ex­tra­di­tion the rel­e­vant min­is­ter must con­duct a "Cotroni as­sess­ment" to de­ter­mine whether it would be un­just and op­pres­sive to ex­tra­dite him.

In that case, the ac­cused had ar­gued that the Min­is­ter had mis­ap­plied Cotroni in or­der­ing the sur­ren­der. The Court held that the Min­is­ter's view that the Amer­i­can pros­e­cu­tion would be "more ef­fec­tive and re­li­able" was an ap­pli­ca­tion of the prop­er test. Sir El­lis ar­gues that any AG ap­ply­ing "the law to the facts" in the Fer­gu­son-Gal­barans­ingh case must find that T&T is the prop­er fo­rum in which to try these men.

The facts

The men have been in­dict­ed for of­fences in the US in­volv­ing bid-rig­ging of the process in­volved in the grant­i­ng of con­tracts in re­spect of Con­struc­tion Pack­ages 9 and 13 in the Air­port Project. The air­port con­struc­tion had been bro­ken down in­to 18 con­struc­tion pack­ages. The ac­cused were al­so charged for con­spir­a­cy of­fences in the US in re­la­tion to these pack­ages. Pri­or to that they had been charged for bid-rig­ging and con­spir­a­cy to de­fraud in T&T which in­volved CP9 and CP13. On the face of it there­fore, there were two sets of pro­ceed­ings when the ex­tra­di­tion pro­ceed­ings ini­tial­ly start­ed.

On No­vem­ber 13, 2006, how­ev­er, then DPP Ge­of­frey Hen­der­son dis­con­tin­ued all crim­i­nal pro­ceed­ings in T&T as they per­tained to CP13. Two months lat­er on Jan­u­ary 9, 2007 he dis­con­tin­ued all fur­ther pro­ceed­ings in re­spect of of­fences re­lat­ing to CP9 and CP13.

In an af­fi­davit filed in Court on Oc­to­ber 30, 2007, the then DPP made it clear that it was his in­ten­tion to dis­con­tin­ue all pro­ceed­ings in T&T con­cern­ing the same con­duct in the US in­dict­ment. His rea­sons were that the US had wit­ness­es and doc­u­ments in these mat­ters that were not avail­able to the T&T pros­e­cu­tion.

Dis­con­tin­u­ance

As it stands, there­fore, it ap­pears that there are cur­rent­ly no of­fences in T&T for the ac­cused Fer­gu­son and Gal­barans­ingh to an­swer that in­volve the same con­duct as the of­fences for which they are charged in the US. In oth­er words there were sim­i­lar T&T of­fences to those charged in the US but they are now at an end. In such cir­cum­stances it is dif­fi­cult to ap­ply the law on fo­rum con­ve­niens to the facts of this mat­ter a la Sir El­lis–since it sim­ply does not ap­ply. There is no ques­tion of the AG hav­ing to chose a fo­rum as the on­ly fo­rum now for the bid rig­ging of­fences and the con­spir­a­cy of­fences in re­spect of CP9 and CP13 is the US. Fo­rum con­ve­niens just does not arise.

Record of the Case

Sir El­lis in his Ad­vice re­ferred to in pass­ing "the whol­ly un­ac­cept­able record of the case" which con­sti­tut­ed the ev­i­dence sent by the Re­quest­ing state when seek­ing ex­tra­di­tion. He ap­pears to sug­gest that the law is un­con­sti­tu­tion­al. Since these are ar­gu­ments that are now en­gag­ing the High Court in a con­sti­tu­tion­al mo­tion brought by the ac­cused it is suf­fi­cient to state that sim­i­lar ar­gu­ments have al­ready en­gaged the courts of Cana­da in re­spect of the same law, which has been held to be con­sti­tu­tion­al. Hav­ing prac­tised in the field of ex­tra­di­tion I had hoped that Sir El­lis' opin­ion would con­tribute to the de­bate on fo­rum con­ve­niens. In this case, giv­en the facts as at­test­ed to by the for­mer DPP and which sure­ly are known to the ac­cused, there is no longer any ques­tion of which is the ap­pro­pri­ate fo­rum in re­spect of the ex­tra­di­tion of­fences. T&T is out of the pic­ture.