PART II - EXTRADITION TO FOREIGN STATE
3 Effect of UK Extradition Acts
(1) Where, immediately before 21 September 1970 —
(a) under an Order in Council in force under the United Kingdom Extradition Acts, 1870 to 1935, those Acts applied to a foreign state specified in the Order; and
(b) those Acts, as they so applied, were extended to Mauritius,
this Part shall apply in relation to the state so specified in the Order.
(2) Where the operation of the Order in Council was subject to any limitations, conditions, exceptions or qualifications, then, subject to this section and sections 4 and 5, this Part shall apply in relation to that state subject to those limitations, conditions, exceptions or qualifications.
(3) The Minister may, by regulations, direct that this Part shall cease to apply in relation to a foreign state specified in the regulations being a foreign state in relation to which this Act applied by virtue of subsection (1), and, upon the coming into operation of the regulations that so provide, this Part shall cease to apply in relation to that state.
3A Commonwealth countries
(1) Subject to subsection (2), this Part shall apply to all Commonwealth countries.
(2) The Minister may, by regulations, provide that this Part shall not apply to a Commonwealth country or shall apply in relation to a Commonwealth country subject to such limitations, conditions, exceptions or qualifications as may be specified in the regulations and where any regulations so provide, this Part shall apply in relation to that country subject to those limitations, conditions, exceptions or qualifications.
4 Application of this Part
(1) Where an extradition treaty (including an extradition treaty that affects or amends an earlier extradition treaty) comes into operation between Mauritius and a foreign state, the Minister may, by regulations, direct that this Part shall apply to that state.
(2) Any regulations under subsection (1) shall recite the terms of the treaty and may provide that this Part shall apply in relation to the foreign state subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the treaty.
(3) Subject to section 7, this Act shall be read subject to the terms of the treaty and shall be construed as to give effect to the treaty.
5 Order applying this Part to foreign states
(1) Subject to subsection (2), where regulations are made under section 4 in relation to a foreign state, this Part shall apply in relation to that state.
(2) Where the regulations provide that this Part shall apply in relation to a foreign state subject to any limitations, conditions, exceptions or qualifications, this Part shall apply in relation to that state subject to those limitations, conditions, exceptions or qualifications.
6 Liability of offender to be surrended
Subject to this Act, where this Part applies to any foreign state, every offender from that state who is in Mauritius shall be liable to be arrested and surrendered in the manner provided by this Act, whether the act in respect of which the request for the surrender of the offender relates occurred before or after the application of this Act to that state, and whether or not any Court in Mauritius has jurisdiction in respect of that act.
7 Restrictions on surrender of persons
(1) An offender shall not be surrendered to a foreign state where
(a) the offence in respect of which the request for his surrender is made is one of a political character; or
(b) he proves to the satisfaction of the Minister that the request for his surrender has in fact been made with a view to trying or punishing him for an offence of a political character.
(2) An offender shall not be surrendered to a foreign state unless provision is made by the law of that state, or in the extradition treaty, or in the case of a Commonwealth country, that country has entered into an agreement with, or given an undertaking to Mauritius, that he will not, until he has left or has had an opportunity of leaving that state —
(a) be detained or tried in that state for any offence that is alleged to have been committed, or was committed, before his surrender other than —
(i) the offence to which the request for his surrender, relates or any offence of which he could be convicted upon proof of the facts on which that request was based; or
(ii) in the case of a Commonwealth country, any other extradition crime in respect of which the Minister consents to his being so detained or tried;
(b) be detained in that state for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before his surrender to that state, other than an offence to which the request for his surrender relates or any other offence of which he could be convicted upon proof to the facts on which that request for his surrender was based.
(3) A person who is held in custody or has been admitted to bail in Mauritius in respect of an offence that is alleged to have been committed in Mauritius, or is undergoing a sentence for a conviction in Mauritius, shall not be liable to be surrendered to a foreign state unless he has been discharged from custody or the recognizances upon which he was admitted to bail have been discharged, as the case may be, whether as a result of his acquittal on the expiration of his sentence or otherwise.
(4) A person shall not be surrendered to a foreign state in respect of an offence if he has been acquitted or pardoned by a competent tribunal or authority in any country, or has undergone the punishment provided by the law of, or of a part of, any country, in respect of that offence or of another offence constituted by the same act as that offence.
(5) An offender shall not be surrendered to a foreign state where the Minister has reasonable grounds for believing that —
(a) the request for his surrender although purporting to have been made in respect of an offence for which, but for this section, he may be liable to be surrendered to that state, was made for the purpose of prosecuting or punishing him on account of his race, caste, place of origin, nationality, political opinions, colour or creed; or
(b) if the offender is surrendered to that state he may be prejudiced at his trial, or punished, detained or restricted in his personal liberty, by reason of his race, caste, place of origin, nationality, political opinions, colour or creed.
(6) Where in respect of a Commonwealth country, the Minister is satisfied that by reason
of –
(a) the trivial nature of the offence that an offender is alleged to have committed;
(b) the accusation against an offender not having been made in good faith or in the interests of justice; or
(c) the passage of time since the offence is alleged to have been committed or was committed,
and having regard to all the circumstances under which the offence is alleged to have been committed, it would be unjust, oppressive or too severe a punishment to surrender the offender or, as the case may be, to surrender him before the expiration of a particular period, the offender shall not be surrendered or shall only be surrendered after that period, as the case may be.
8 Request for surrender
Every request for the surrender of an offender who is, or is suspected of being, in Mauritius, shall be made to the Minister for transmission to the Attorney-General –
(a) by a diplomatic or consular representative, or a Minister, of the foreign state which requests the surrender; or
(b) by such other means as may be specified in the extradition treaty, or in the case of a Commonwealth country, as may be agreed upon.
9 Notice to Magistrate by Attorney-General
(1) Subject to subsection (2), where a request for the surrender of an offender is transmitted to the Attorney-General under section 8, the Attorney-General may: by notice in writing in Form A of the Second Schedule directed to a Magistrate, inform the Magistrate that a request for the surrender of an offender has been made and authorise him to issue a warrant for the arrest of the offender.
(2) Where the Attorney-General is of opinion that the offender is not liable to be surrendered to the foreign state requesting his surrender, he shall not issue a notice under subsection (1) in respect of the offender.
10 Issue of warrant
(1) A warrant for the arrest of an offender who is, or is suspected of being, in Mauritius, may be issued –
(a) by a Magistrate on receipt of a notice from the Attorney-General under section 9, in Form B of the Second Schedule; or
(b) by a Magistrate on the production to him of a foreign warrant or on such other evidence as in his opinion shows there is reasonable ground for believing that the offender has been accused or convicted of an extradition crime, in Form C of the Second Schedule.
(2) Where a Magistrate issues a warrant under subsection (1) (b), he shall forthwith report the issue of the warrant to the Attorney-General, and send to him a certified copy of any foreign warrant or other documentary evidence produced to him and a note of any other evidence so produced.
(3) On receipt of a report under section 9, the Attorney-General may, if he thinks fit, by notice in writing, direct that the warrant be cancelled or state that a request has been transmitted to him under section 8 for the surrender of the offender.
11 Proceedings after arrest
(1) A person who is arrested under a warrant issued under section 10 shall, unless he is sooner released, be brought es soon as practicable before a Magistrate.
(2) The Magistrate may remand in custody a person brought before him under this section or admit him to bail for a period or periods not exceeding 7 days at any one time and, where a Magistrate remands him in custody or admits him to bail, he may, at the expiration of the period, be brought before that Magistrate or any other Magistrate.
(3) Where a person was arrested under a warrant issued without the authority of the Attorney-General under section 9, the Magistrate shall remand him in custody or admit him to bail until the Magistrate receives a notice in writing from the Attorney-General either directing that the warrant be cancelled or stating that a request has been transmitted to him under section 8 for the surrender of the offender.
(4) Where the Magistrate –
(a) does not receive the notice from the Attorney-General within such reasonable time as the Magistrate may fix having regard to all the circumstances; or
(b) receives a notice directing him that the warrant be cancelled,
the Magistrate shall –
(i) where the person arrested is held in custody, order that he be released; or
(ii) where he has been admitted to bail, make an order discharging the recognisances upon which he was admitted to bail.
(5) Where the person was arrested under a warrant issued with the authority of the Attorney-General under section 9 or after receipt of a notice from the Attorney-General stating that a request has been transmitted to him under section 8 for the surrender of the offender and –
(a) there is produced to the Magistrate a duly authenticated foreign warrant in respect of the person issued in the foreign state that made the request for the surrender of the person;
(b) there is produced to the Magistrate –
(i) in the case of a person who is accused of an extradition crime, such evidence as would, in the opinion of the Magistrate, according to the law in Mauritius, justify the committal for trial of the person if the act or omission constituting that crime had taken place, in, or within the jurisdiction of Mauritius; or
(ii) in the case of a person who is alleged to have been convicted of an extradition crime, sufficient evidence to satisfy the Magistrate that the person has been convicted of that crime; and
(c) the Magistrate is satisfied, after hearing any evidence tendered by the person, that is liable to be surrendered to the foreign state that made the request for the surrender,
the Magistrate shall, by warrant in Form of the Second Schedule, commit him to prison to remain there until he is surrendered to the foreign state.
(6) Where the Magistrate is of the opinion that it would be dangerous to the life or prejudicial to the health of the person to commit him to prison, he may, in lieu of committing him to prison, by warrant, order that he be held in custody at the place where he is for the time being, or at any other place to which the Magistrate considers that he can be removed without danger to his life or prejudice to his health, until such time as he can without such danger or prejudice be committed to prison or until he is surrendered.
(7) Where, under this section, a Magistrate commits a person to prison or otherwise orders that he be held in custody, he shall forthwith send to the Attorney-General a certificate to that effect and such report, if any, relating to the proceedings as he thinks fit.
12 Surrender of offender to foreign state
(1) Where, under this Part, a Magistrate commits a person (in this section referred to as the prisoner) to prison, or otherwise orders that he be held in custody; pending his surrender to a foreign state, the Magistrate shall inform the prisoner that he will not be surrendered until after the expiration of the period of 15 days from the date of the committal or order and that he may, within that period, apply for the issue of a writ of habeas corpus.
(2) After the expiry of the period specified in subsection (1) or, where a writ of habeas corpus is issued in respect of the prisoner, after the Supreme Court has decided, on the return to the writ, that he is not to be discharged from custody, whichever is the later, the Attorney-General may, if he is satisfied that the prisoner Is liable to be surrendered to the foreign state, by warrant in Form E of the Second Schedule, order that the prisoner be delivered into the custody of the person specified in the warrant and be conveyed by that person to a place in the foreign state or within the jurisdiction of, or of a part of, the foreign state and there surrendered to some person appointed by the foreign state to receive him.
(3) Until the prisoner is conveyed out of Mauritius he shall be deemed for the purposes of the law of Mauritius to be a person in lawful custody.
(4) Any property in the possession of the prisoner at the time of his arrest that may be material as evidence in proving the offence to which the request for his surrender relates shall, if the Attorney-General so directs, be delivered up on his surrender.
13 Discharge of offender
Where a person who, under this Part, has been committed to prison, or otherwise ordered to be held in custody, is in custody in Mauritius at the expiration of 2 months –
(a) after the date of the committal or order; or
(b) where a writ of habeas corpus is issued, after the Supreme Court has decided on the return to the writ,
whichever is the later, the Supreme Court shall, on application and on proof that reasonable notice of the intention to make the application has been given to the Attorney-General, order that the offender be released, unless sufficient cause is shown against the release.
