US fugitive in fresh challenge to extradition
Ordered extradited to the United States (US) late last month to face charges of murder, fugitive Troy Thomas has mounted fresh legal proceedings—this time before the constitutional court, as he seeks to further fight the extradition.
In a Fixed Date application which is scheduled to be heard before acting Chief Justice Roxane George-Wiltshire SC, on January 11th, 2019, Thomas, through his attorney Nigel Hughes, maintains his previous argument that though the Fugitive Offenders Act provides for the extradition of persons to a third country, that law had not been brought into domestic law, and as such he ought to not be extradited.
Against this background, he argues in his application that a magistrate, being a creature of statute, is not empowered to interpret and or apply the provisions of a treaty which has not been incorporated into the provisions of the domestic laws of Guyana.
He contends that in the absence of any provision in the treaty between the United Kingdom (UK) and the US, preventing the extradition of the applicant to a third state by the requesting state, the Minister of Public Security is not empowered to consider and or grant an authority to proceed to the Chief Magistrate for the extradition of the applicant from Guyana to the US.
Following the conclusion of extradition proceedings against him on November 30th, Principal Magistrate Sherdel IsaacsMarcus who had been acting as Chief Magistrate, and who presided over the case, overruled a no-case submission which Hughes had made on behalf of Thomas, thereby ordering that he be extradited.
Thomas, of South Ozone Park, Queens, New York, is wanted in the United States for the murder of Keith Frank, which he allegedly committed on December 11th, 2011.
Addressing the issue of whether the offence was an extraditable one, the magistrate had stated that if the murder had been committed in Guyana and the same witnesses were called, then the defendant would have been committed to stand trial based on the evidence presented.
The court also ruled that there is a valid extradition treaty that exists between the UK and the US and it extends to Guyana.
Magistrate Isaacs-Marcus, who noted that it is the Minister of Public Security Khemraj Ramjattan who has the final say on extradition, then proceeded to commit Thomas to custody at the Lusignan Prison by warrant to await extradition.
Earlier this year, Ramjattan had authorised proceedings for Thomas’ extradition, following which Minister of Foreign Affairs Carl Greenidge had issued a certificate that confirmed that there is an extradition agreement between the United States and the United Kingdom, which is enforced in Guyana.
Section 8(3) of the Fugitive Offenders Act authorises the extradition of a person to a Commonwealth country or treaty territory regardless of what is stated in any other law or treaty, once the minister considered that it was in the interest of justice.
The section states, “Notwithstanding anything contained in subsection (3)(b) or any other law or treaty, a fugitive offender or any class or category of fugitive offenders may be committed to, or kept in, custody for the purpose of extradition or may be extradited to a Commonwealth country or a treaty territory in connection with any extraditable offence, if the Minister considers it necessary in the interest of justice.”
In June of this year, counsel for Thomas, (the applicant) had approached the High Court challenging the jurisdiction of the Magistrate’s Court from proceeding to hear his extradition challenge.
Attorney Prithima Kissoon—one of a battery of attorneys representing Thomas, had argued that though the Fugitive Offenders Act provides for the extradition of persons to a third country, that law had not been brought into domestic law, and as such her client should not be extradited.
Justice Jo-Ann Barlow would, however, later dismiss the challenge to the jurisdiction of the magistracy to hear the proceedings, ruling that the hearings were neither illegal nor a breach of Thomas’ constitutional rights as he had been contending.
The judge declared that Section 8(3) of the Fugitive Offenders Amendment Act of 2009 authorised the extradition of a person to a Commonwealth country or treaty territory regardless of what is stated in any other law or treaty, once the minister considered that it was in the interest of justice.
Furthermore, Justice Barlow contended that the minister would have taken all things into consideration when arriving at his decision, and that he would be at liberty to exercise his discretion once all things were taken into account.
She called “untenable” the applicant’s claim that amendments to the local legislation (the Fugitive Offenders Act) was an attempt to amend the treaty, while stating that it instead amended part of domestic legislation.
In his newest action before the chief justice, Thomas argues that Section 8 of the Fugitive Offenders Amendment Act cannot purport to change and or direct a court to interpret as changing the terms and articles of the treaty between the US and UK as succeeded by Guyana.
Describing as “erroneous,” the ruling made by Justice Barlow, Thomas contends that Magistrate Isaacs-Marcus was then constrained to arrive at the only finding which was to issue the order of extradition.
Thomas further argues, that the effect of the ruling, “erroneous as it,” was to remove from the magistrate, the possibility of arriving at any other decision and consequently eroded his right to a fair trial.
According to him, as a result of Justice Barlow’s ruling, the extradition proceedings before the magistrate’s court were effectively concluded. He contends too, that he is being unlawfully detained and being made subject to legal processes “unsupported by any legal basis or foundation.”
As regards this very claim before Justice Barlow, however, of being denied his constitutional rights by being deprived of his personal liberty, the judge had told Thomas that the same Article on which he sought to rely to support that claim, limits him in that regard.
Article 139 (1) of the Constitution provides that no person shall be deprived of his personal liberty save as may be authorised by law “for the purpose of preventing the unlawful entry of that person into Guyana, or for the purpose of effecting expulsion, extradition or other lawful removal of that person from Guyana or for the purpose of restricting that person while he is being conveyed through Guyana in the course of his extradition or removal as a convicted prisoner from one country to another.”
As he had done in the lower court and his hearing before Justice Barlow, Thomas is again seeking to advance that his name is Marvin Williams and not Troy Thomas—the latter which he describes in his application as being the name he is referred to “by the Guyana Police Force.”
Magistrate Isaacs-Marcus had noted that when referred to as Troy Thomas, the defendant never objected to the name. Additionally, during a voir dire held to determine his identity, a number of witnesses were called and the defendant gave unsworn evidence. At the conclusion of the voir dire, it was determined that the person before the court was indeed Troy Thomas.
She noted too, that the signature of the defendant found in the Criminal Investigation Department record books and the court documents confirmed him to be Troy Thomas.
Addressing this very issue contested before her also by Thomas’ attorneys who argued that his name was Marvin Williams, Justice Barlow also concluded that based on court documentation, the man had answered to the name “Troy Thomas” on several occasions when called before the court and at no time complained that that was not his name.
Further, he was admitted to prison under that same name. The judge, therefore, found that since he answered to that name, it is reasonable to assume that he is or was sometime known as Troy Thomas.