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.
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 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.
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.