11 Feb 2016

Law Commission proposes extradition shake-up

8:44 am on 11 February 2016

Imagine a high-profile extradition case of a foreigner accused of a crime that didn't involve millions of taxpayers' dollars and years of wrangling in the courts.

Kim Dotcom awaits the outcome of his extradition hearing.

Tens of thousands of Crown Law hours have been spent on the case to send Kim Dotcom to the US. Photo: RNZ/Diego Opatowski

The Law Commission, which has been wrestling with this under the shadow of the Kim Dotcom case, has arrived at its recommendations, which were tabled in Parliament yesterday.

The commission was coy about the cost savings, but it promised extradition battles could be shorter and more clear-cut, in line with a worldwide trend.

The numbers were not huge - 70 extradition requests from other countries in four years, and about 40 from New Zealand to other countries.

However, the sums and delays could be large - for example, tens of thousands of Crown Law hours on the Dotcom extradition case, multi-millions of dollars all round, and the appeal against extradition yet to be heard, and due in August.

The Law Commission's proposed remedy, which would not affect the Dotcom case, would rewrite what it called a confusing and outmoded mash of extradition laws, and centralise decision-making with the Attorney-General.

Commissioner Geoff McLay led the extradition project. "The US is obviously a party to a high-profile extradition at the moment. But we took the view when we started this that the next high-profile extradition could be literally from anywhere," Prof McLay said.

"Our major driver in figuring out what the law should look like is - what would we want New Zealand's response to be?"

The recommendations tabled in Parliament also related to mutual assistance between foreign law enforcement agencies - the police, for instance, would still handle requests for help from the FBI, say.

The backdrop was one of foreign fugitive numbers on the rise - but from a low base, which would remain part of the problem whether these changes went through or not, Waikato University law professor Neil Boister explained.

"To some extent we only really now, through the Dotcom litigation, are working out how that works in practice... If it's messy it's really because it's largely under-used and under-practised."

Prof Boister was about to embark on research into global trends in extradition.

Those were towards simplifying it - whether by the US to combat terrorism and tax fraud, or by China, to grab back corrupt state servants who fled with the loot.

Human rights concerns

But what if simplification really meant making it simpler to extradite? That was Auckland lawyer Tony Ellis's fear.

"There was a report by the English House of Lords which said that the UK procedures which were becoming easier to extradite people may well be a breach of human rights, because, you know, things get easier, the country requesting extradition has less to prove."

One of Dr Ellis's clients is New Zealand permanent resident Kyung Yup Kim who, from a prison cell here, has been fighting extradition to China on murder charges for five years.

China had given an assurance it would not seek the death penalty for him but Dr Ellis did not believe it.

The Law Commission's new extradition regime would accept the assurance - it was only where the accused would face the chance of execution that extradition would be a total no-go.

The new regime would also keep Australia in a fast-track group of two, alongside the UK, despite questions over Canberra's recent human rights record.

The fast-track group would allow extradition without going through the double scrutiny of the Attorney-General and district courts.

"We had a very long debate as whether the grounds for refusal [to extradite], the human rights matters, would be things which might be raised in a court hearing even though it was a simplified extradition," Prof McLay said.

"Why bother with these human rights concerns which might potentially slow some cases down?

"We have made a decision which says the human rights concerns would be dealt with by the court."

He could not foresee China getting into the fast-track simplified extradition group any time soon, as its legal system was not well understood here.

As for the US? It would have to make a case to the Justice Minister.

If there was a slippery slope in the new regime, was the possible expansion of the fast-track group it?

"We've also seen states slowly giving away their rights in extradition processes, which are to insist on dual criminality, rights to insist on a level of evidence, and so forth," Prof Boister said.

"You know, so the state-based rights have been eroded and the individual's rights are supposedly rising in a sense to balance it - but I really don't know if that is in fact what's happening."

Parliament must make a response to the Law Commission's recommendations within 120 working days.