The Chancellor pointed out that Section 5 of that Act spells out the offences for which extradition may be ordered and declared that the Courts would determine whether or not an offence is an extraditable offence by reference to Section 5 rather than to the terms of Article 3 of the Extradition treaty between the United Kingdom and the USA of December 22 of 1931 which was acknowledged in the 1988 Act as a treaty which had been in force before Independence and which remained in force.

Accordingly, he said, offences relating to narcotics are offences for which a person may be extradited from Guyana to the USA.

The Guyana Court of Appeal constituted by Chancellor Kennard and Justices of Appeal Mr. Maurice Churaman and Mr. Prem Persaud was delivering its judgment in the Garfield Sobers Extradition appeal in October 1999 when he disclosed that Extradition proceedings in Guyana are governed by the Fugitive Offenders Act 1988.

In relation to Sobers, the USA Government had requested the Guyana Government to extradite the Guyanese to the USA to stand trial there for various narcotic offences for which he was accused.

Acting on request from the USA, the Guyana Government, through the Minister of Home Affairs, forwarded an authority to Magistrate Dawn Gregory-Barnes, who was authorised to conduct an enquiry relative to the extradition of Garfield Sobers to the USA where he was wanted to stand trial for narcotic offences.

Sobers, through his counsel, applied to the High Court for a Writ of Habeas Corpus asking the Director of Prisons to produce the body of Sobers in Court on the grounds that the request for his extradition was irregular.

The High Court dismissed the application and affirmed the order of the magistrate.

Sobers appealed to the Court of Appeal against the refusal of the High Court to issue a writ of habeas corpus.

At the Appellate Court, Mr. Bernard De Santos, S.C., and Mr. Basil Williams appeared for the appellant.

Deputy Director of Public Prosecutions, Ms. Yonette Cummings (now High Court judge) associated with Ms. Roxanne George (now Acting Director of Public Prosecutions) appeared for the Respondent Director of Prisons.

Delivering his judgment, Chancellor Kennard explained: “Extradition, for the purposes of the type of case with which we are concerned here, may briefly be described as the surrender, by one Government, of an accused person, upon the request of another Government, to its justice.

“It is part of an interactive process that has developed principles, practices, understandings and arrangements that are shared and, in larger measure, institutionalised within the comity of nations and quite often embodied in bilateral treaties. Yet, there is no duty to extradite, as was said in Brownlie’s Principles of Public International Law”.

He added: “Apart from trial in absentia, an unsatisfactory procedure, States have to depend on the cooperation of other States, in order to obtain the surrender of suspected criminals or convicted criminals, who are, or have fled abroad.

“Where this cooperation rests on a procedure of request and consent, regulated by certain general principles, the form of international judicial assistance is called extradition. Much of the material on extradition depends on questions of internal and particularly of constitutional law and the effect of treaties on municipal rules.

“However, some courts, in granting extradition in the absence of a treaty, have abstracted from existing treaties and municipal provisions certain general principles of international law. The two leading principles are that of doubtful criminality that the act charged must be criminal under the laws of both the state of refuge and the requesting State, and that of specialty, according to which the person surrendered shall be tried and punished exclusively for offences for which extradition had been requested and granted.

Continuing, the Chancellor said: “The appellant has appealed to this court against the decision of the trial judge to refuse the issue of the writ of habeas corpus.

“Mr. De Santos, S.C. submitted before us that the decision of the trial judge to refuse the issue of the writ of habeas corpus was erroneous, in that there was not sufficient evidence before the magistrate which would justify the making of the extradition order.

“He based his arguments on two limbs, namely, that there was no positive proof that the substance to which the allegations relate is in fact cocaine as there was no scientific evidence relating to the substance referred to in the charges and, secondly, that there is no evidence that the Garfield Sobers who appeared before the magistrate is the same Garfield Sobers who is wanted in the USA.

“As regards the first limb of Mr. De Santos’s submission, I would say that even though there is no scientific evidence to prove that the substance referred to in the charges is in fact cocaine, there are sufficient facts in the affidavits sworn to by three of the witnesses in the USA from which the inference can be reasonably drawn that the substance is in fact cocaine.

“One must bear in mind that the proceeding before magistrate Barnes was not a trial. The inquiry before the magistrate was in the nature of a preliminary inquiry and all that she had to be satisfied about is whether there was sufficient evidence to justify the making of the order, that is to say whether the evidence is such that on it a reasonable jury, properly directed, could convict,” the Chancellor explained.

Chancellor Kennard said that it was the submission of Mr. Williams that the authority to proceed was invalid, in that it made reference to USA Law instead of Guyanese law.

“Accordingly, Mr. Williams submitted that the extradition order made by the magistrate was a nullity as she had no authority to make an order on an improperly issued authority to proceed’.

The Chancellor explained: “I have looked at the cases referred to by Mr. Williams in his arguments before us, but in my view, the cases do not support his proposition. Our Fugitive Offenders Act 1988 is a comprehensive piece of legislation and it is expressly stated in section 40, to which reference has already been made, that the Extradition Acts of 1870 to 1935 (United Kingdom) and the Fugitive Offenders Act 1881 (United Kingdom) cease to have any effect in Guyana. I hold therefore, that the authority to proceed was a proper one and that there has been compliance with section 12 of the Act.”

According to the Chancellor, the final submission made by Mr. Williams was that the offences for which the extradition was being sought were not extraditable offences, in that cocaine offences are not listed in the 1931 treaty as offences for which there can be extradition of a suspected criminal to the USA. He submitted that the 1931 treaty was not amended to include cocaine offences as extraditable offences and therefore the magistrate erred in making the order for extradition of the appellant.

He submitted too that there was nothing to suggest that cocaine is in fact a dangerous drug, so as to say that it can be included in the list of offences in the 1931 treaty particularly article 3:24 already referred to.

However, the Chancellor went on to say that Ms Cummings submitted in reply that one does not have to look to the treaty in order to determine what is an extraditable offence, but to Section 5 of our Fugitive Offenders Act 1988.