Contents

Chapter 8
Overview of court procedure

How to start an extradition case

8.14Any extradition proceeding will be commenced by filing a document called a “Notice of Intention to Proceed” (NIP)203 and we have included a form in Part Four of our Report setting out what we think this should look like. The jurisdiction of the Court will be based on this document.
8.15The NIP is like the charging document in a criminal proceeding. It will be filed by the Central Authority, who is the applicant.204 It will identify the respondent and the requesting country, and it will specify the foreign offence or offences that the respondent has been charged with, or convicted of, in the foreign jurisdiction.205 Most importantly, the NIP will also indicate the basis upon which the Central Authority considers that each foreign offence meets the test for being an “extradition offence” under our Act.206 More specifically, the NIP will identify the New Zealand offence or the offence listed in an applicable treaty that the Central Authority considers best fits the conduct underlying the alleged foreign offending (the parallel offence). The parallel offence will then play an important role in the extradition proceedings. In all proceedings it will be central to whether the test for existence of “an extradition offence” is met. Also, in standard cases the parallel offence will provide the judge with the framework for conducting a comparative inquiry into the sufficiency of the foreign evidence contained in the Record of the Case. This inquiry is discussed in detail in Chapter 9.

8.16The main aim of the NIP is for the Central Authority, the respondent and the Judge to be aware, at all times throughout the proceedings, of the basis upon which the Central Authority intends to seek determination that the respondent is liable for extradition at the end of the hearing.

8.17When the NIP is filed in Court, the Central Authority will also make an application for an arrest warrant in standard cases,207 or for endorsement of the foreign warrant in simplified cases.208 In support of such an application, the Central Authority will also need to provide information as to the respondent’s identity.209 That information will usually be in the form of a written statement from a New Zealand Police Officer.
8.18Our procedure envisages that as an extradition case proceeds, details pertaining to the NIP may need to be amended from time to time.210 We think that such flexibility is essential and, of course, judicial procedure will ensure that a respondent is made aware of, and accommodated in relation to, amendments.211 We envisage this as being similar to the process of amending a charge in domestic criminal proceedings. When the judge is finally in a position to determine whether or not the respondent is liable for extradition, it may be on a different basis or taking into account different specific factors than upon which the original notice was issued.
8.19As there is a substantial difference between standard and simplified cases, it will be important at the very outset of a proceeding for the court registrar and the judge to know which category applies. Therefore, we suggest that the Central Authority should develop a standardised format for these notices. That format should identify in the heading whether it is a standard or simplified case. A further distinguishing feature is that a simplified NIP will attach the foreign arrest warrant.212
8.20Before a NIP is filed in Court, a request to extradite would have been conveyed by a requesting country to New Zealand and that request will in the first instance be screened by the Central Authority.213 This process is discussed in detail in Chapter 2. In short, the Central Authority must check that all of the criteria required in either of the two types of extradition cases are capable of being met and that the circumstances of the case merit commencing the proceeding.

8.21In some situations where the person sought to be extradited is in New Zealand, but where there is a risk of imminent flight, arrest might be required before the Central Authority has received and vetted a formal extradition request. We acknowledge this and have therefore built into our procedure a provisional arrest warrant process, which should be used when arrest is the necessary first step. Our research tells us that these cases will be few, but we acknowledge that where arrest is sought in these circumstances, care must be taken to ensure that more comprehensive information is provided by the requesting country and any NIP is filed in a timely fashion following execution of the provisional arrest warrant.

Recommendation

203Extradition Bill, cls 26 and 39.
204Extradition Bill, cls 5 and 14(1).
205Extradition Bill, cls 26(2)(b)–(c) and (e)–(f) and 39(2)(a)(ii)–(iii) and (v)–(vi).
206Extradition Bill, cls 26(2)(g)–(h) and 39(2)(vii)–(viii).
207Extradition Bill, cl 28(1).
208Extradition Bill, cl 40(1).
209This is to satisfy the requirement in clauses 28(2)(b) and 40(2)(b) that the “respondent is, or is suspected of being, in New Zealand or on the way to New Zealand”.
210Extradition Bill, cl 90.
211Extradition Bill, cl 90(3) and 90(5) empower the Court to set a new timetable for extradition proceedings in response to an amendment of the NIP.
212Extradition Bill, cl 39(2)(b).
213Extradition Bill, cls 25 and 38.