Extradition Act

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1. Short title.
2. Interpretation.
3. Persons liable to be returned.
4. Designated countries.
5. Relevant offences.
6. General restrictions on return.
7. Authority to proceed.
8. Arrest for purposes of committal.
9. Proceedings for committal.
10. Application for habeas corpus, etc.
11. Order for return to requesting country.
12. Discharge in case of delay in returning.
13. Evidence.
14. Custody.
15. Forms of warrants and orders.
16. Restriction upon proceedings for other offences.
17. Restoration of persons not tried or acquitted.
18. Persons convicted in absence.
19. Power to revoke or vary Orders etc.
20. Repeals and transitional provisions.

AN ACT TO MAKE PROVISION FOR THE RETURN FROM THE KINGDOM OF TONGA TO OTHER COUNTRIES OF PERSONS ACCUSED OR CONVICTED OF OFFENCES IN THESE COUNTRIES; TO REGULATE THE TREATMENT OF PERSONS ACCUSED OR CONVICTED OF OFFENCES IN THE KINGDOM OF TONGA WHO ARE RETURNED FROM SUCH COUNTRIES; AND FOR PURPOSES CONNECTED WITH THE MATTERS AFORESAID

2. In this Act the following expressions shall have the meanings hereby assigned to them, that is to say:

"application for habeas corpus" means an application for a writ of habeas corpus ad subjiciendum;

"country" includes any territory, colony, protected state, protectorate and dependency;

"dealt with" means tried or returned or surrendered to any country or detained with a view to trial or with a view to such return or surrender;

"designated country" means any country designated in terms of section 4 of this Act;

"Prime Minister" means the Prime Minister of the Kingdom of Tonga and includes any person for the time being performing his functions;

3. Subject to the provisions of this Act, a person found in Tonga who is accused of a relevant offence in any other country being a country designated in terms of section 4 of this Act or who is alleged to be unlawfully at large after conviction of such an offence in any such country may be arrested and returned to that country as provided by this Act.

4. (1) Where it appears to His Majesty that reciprocal arrangements are to be granted to Tonga by any other country, He may by Order in Council designate that country as a country to which the provisions of this Act shall apply, subject to such exceptions adaptations or modifications as may be specified in the Order in Council.

(2) For the purposes of any Order in Council under subsection (1), any territory for which a designated country is responsible may be treated as part of that country or, if the Government of that country so requests, as a separate country.

5. (1) For the purposes of this Act an offence of which a person is accused or has been convicted in a designated country is a relevant offence if-

(a) in the case of an offence against the law of a designated country, it is an offence which, however described in that law, falls within any of the descriptions set out in Schedule 1 to this Act, and is punishable under that law with imprisonment for a term of 12 months or any greater punishment;

(b) in any case, the act or omission constituting the offence against the equivalent act or omission, would constitute an offence against the law of Tonga if it took place within Tonga or, in the case of an extra-territorial offence, in corresponding circumstances outside Tonga.

(2) In determining for the purposes of this section whether an offence against the law of a designated country falls within a description set out in Schedule 1 to this Act, any special intent or state of mind or special circumstances of aggravation which may be necessary to constitute that offence under the law shall be disregarded.

(3) The descriptions set out in Schedule 1 to this Act include in each case offences of attempting or conspiring to commit, of assisting, counselling or procuring the commission of or being accessory before or after the fact to the offences therein described, and of impeding the apprehension or prosecution of persons guilty of those offences.

(4) References in this section to the law of any country include references to the law of any part of that country.

6. (1) A person shall not be returned under this Act to a designated country or committed to or kept in custody for the purposes of such return, if it appears to the Prime Minister, to the court of committal or to the Supreme Court on an application for habeas corpus-

(a) that the offence of which that person is accused or was convicted is an offence of a political character;

(b) that the request for his return (though purporting to be made on account of a relevant offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or

(c) that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.

(2) A person accused of an offence shall not be returned under this Act to any country, or committed to or kept in custody for the purposes of such return, if it appears as aforesaid that if charged with that offence in Tonga he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction.

(3) A person shall not be returned under this Act to any country, or committed to or kept in custody for the purposes of such return, unless provision is made by the law of that country, or by an arrangement made with that country, for securing that he will not, unless he has first been restored or had an opportunity of returning to Tonga, be dealt with in that country for or in respect of any offence committed before his return under this Act other than-

(b) any lesser offence proved by the facts proved before the court of committal; or

(c) any other offence being a relevant offence in respect of which the Prime Minister may consent to his being so dealt with.

(4) Any such arrangement as is mentioned is subsection (3) may be an arrangement made for the particular case or an arrangement of a more general nature; and for that purpose of that subsection a certificate issued by or under the authority of the Prime Minister confirming the existence of an arrangement with any country and stating its terms shall be conclusive evidence of the matters contained in the certificate.

(5) The reference in this section to any offence of a political character does not include-

(a) an offence against the life or person of the Head of the Country or any related offence described in section 5(3) of this Act; or

(b) any offence of genocide as defined by the Genocide Act, and any attempt or conspiracy to commit such an offence and any direct and public incitement to commit such an offence, and it shall not be an objection to any proceedings taken against a person by virtue of the provisions of this Act that under the law in force at the time when and in the place where he is alleged to have committed the act of which he is accused or of which he was convicted he could not have been punished therefor.

7. (1) Subject to the provisions of this Act relating to provisional warrants, a person shall not be dealt with thereunder except in pursuance of an order of the Prime Minister (in this Act referred to as an authority to proceed), issued in pursuance of a request made to the Prime Minister by or on behalf of the Government of the designated country, or by the Government of the dependency of the designated country in which the person to be returned is accused or was convicted.

(2) There shall be furnished with any request made for the purposes of this section on behalf of any country-

(a) in the case of a person accused of an offence, a warrant for his arrest issued in that country;

(b) in the case of a person unlawfully at large after conviction of an offence, a certificate of the conviction and sentence in that country, and a statement of the amount if any of that sentence which has been served,

together (in each case) with particulars of the person whose return is requested and of the facts upon which and the law under which he is accused or was convicted, and evidence sufficient to justify the issue of a warrant for his arrest under section 8 of this Act.

(3) On receipt of such a request the Prime Minister may issue an authority to proceed unless it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act.

8. (1) A warrant for the arrest of a person accused of a relevant offence, or alleged to be unlawfully at large after conviction of such an offence, may be issued-

(a) on the receipt of an authority to proceed, by the Chief Police Magistrate;

(b) without such an authority, by any magistrate in any part of Tonga, upon information that the said person is or is believed to be in or on his way to Tonga,

and any warrant issued by virtue of paragraph (b) above is in this Act referred to as a provisional warrant.

(2) A warrant of arrest under this section may be issued upon such evidence as would, in the opinion of the magistrate, authorise the issue of a warrant for the arrest of a person accused of committing a corresponding offence or, as the case may be, of a person alleged to be unlawfully at large after conviction of an offence, within the jurisdiction of the magistrate.

(3) Where a provisional warrant is issued under this section the authority by whom it is issued shall forthwith give notice to the Prime Minister, and transmit to him the information and evidence or certified copies of the information and evidence, upon which it was issued; and the Prime Minister may in any case, and shall if he decides not to issue an authority to proceed in respect of the person to whom the warrant relates, by order cancel the warrant and, if that person has been arrested thereunder, discharge him from custody.

(4) A warrant of arrest issued under this section may be executed in any part of Tonga and may be executed by any person to whom it is directed or by any officer or other member of the Police Force.

(5) Where a warrant is issued under this section for the arrest of a person accused of an offence of stealing or receiving stolen property or any other offence in respect of property, a magistrate in any part of Tonga shall have the like power to issue a warrant to search for the property, as if the offence had been committed within the jurisdiction of the magistrate.

9. (1) A person arrested in pursuance of a warrant under section 8 of this Act shall (unless previously discharged under subsection (3) of that section) be brought as soon as practicable before a court (in this Act referred to as the court of committal) consisting of a magistrate.

(2) For the purposes of proceedings under this section a court of committal consisting of a magistrate shall have the like jurisdiction and powers, as nearly as may be, including power to remand in custody or on bail, as a magistrate's court holding a preliminary inquiry.

(3) Where the person arrested is in custody by virtue of a provisional warrant and no authority to proceed has been received in respect of him, the court of committal may fix a reasonable period (of which the court shall give notice to the Prime Minister) after which he will be discharged from custody unless such an authority has been received.

(4) Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence to which the authority relates is a relevant offence and is further satisfied-

(a) where that person is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the court;

(b) where that person is alleged to be unlawfully at large after conviction of the offence, that he has been so convicted and appears to be so at large,

the court shall, unless his committal is prohibited by any other provision of this Act, commit him to custody to await his return thereunder; but if the court is not so satisfied or if the committal of that person is so prohibited, the court shall discharge him from custody.

10. (1) Where a person is committed to custody under section 9 of this Act, the court shall inform him in ordinary language of his right to make an application for habeas corpus, and shall forthwith give notice of the committal to the Prime Minister.

(2) A person committed to custody under the said section 9 shall not be returned under this Act-

(a) in any case, until the expiration of the period of 15 days beginning with the day on which the order for his committal is made;

(b) if an application for habeas corpus is made in his case, so long as proceedings on that application are pending.

(3) On any such application the Supreme Court may, without prejudice to any other jurisdiction of the court, order the person committed to be discharged from custody if it appears to the court that-

(a) by reason of the trivial nature of the offence of which he is accused or was convicted; or

(b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or

(c) because the accusation against him is not made in good faith in the interests of justice,

it would, having regard to all the circumstances, be unjust or oppressive to return him.

(4) On any such application the Supreme Court may receive additional evidence relevant to the exercise of its jurisdiction under section 6 of this Act or under subsection (3) of this section.

(5) For the purposes of this section, proceedings on an application for habeas corpus shall be treated as pending until any appeal in those proceedings is disposed of; and an appeal shall be treated as disposed of at the expiration of the time within which the appeal may be brought or, where leave to appeal is required, within which the application for leave may be made, if the appeal is not brought or the application made within that time.

11. (1) Where a person is committed to await his return and is not discharged by order of the Supreme Court, the Prime Minister may by warrant order him to be returned to the country by which the request for his return was made unless the return of that person is prohibited, or prohibited for the time being, by section 6 of this Act or this section, or the Prime Minister decides under this section to make no such order in his case.

(2) An order shall not be made under this section in the case of a person who is serving a sentence of imprisonment or detention, or is charged with an offence, in Tonga-

(a) in the case of a person serving such a sentence, until the sentence has been served;

(b) in the case of a person charged with an offence, until the charge is disposed of or withdrawn and, if it results in a sentence of imprisonment (not being a suspended sentence), until the sentence has been served.

(3) The Prime Minister shall not make an order under this section in the case of any person if it appears to the Prime Minister, on the grounds mentioned in section 10(3) of this Act, that it would be unjust or oppressive to return that person, and may decide to make no order under this section in the case of a person accused or convicted of an offence in the designated country if he considers, on any such grounds as are mentioned in paragraphs (a) to (c) of section 6(1) of this Act, that the order ought not to be made.

(4) The Prime Minister may decide to make no order under this section in the case of a person accused or convicted of a relevant offence not punishable with death in Tonga, if that person could be or has been sentenced to death for that offence in the country by which the request for his return is made.

(5) The Prime Minister may decide to make no order under this section for the return of a person committed in consequence of a request made on behalf of any country, if another request for his return under this Act, has been made on behalf of another designated country and it appears to the Prime Minister, having regard to all the circumstances of the case and in particular-

(c) the nationality or citizenship of the person concerned and his ordinary residence,

(6) Notice of the issue of a warrant under this section, shall forthwith be given to the person to be returned thereunder.

12. (1) If any person committed to await his return is in custody in Tonga under this Act after the expiration of the following period, that is to say-

(a) in any case, the period of 2 months beginning with the first day on which, having regard to section 10(2) of this Act, he could have been returned;

(b) where a warrant for his return has been issued under section 11 of this Act, the period of one month beginning with the day on which that warrant was issued.

(2) If upon any such application the court is satisfied that reasonable notice of the proposed application has been given to the Prime Minister, the court may, unless sufficient cause is shown to the contrary, by order direct the applicant to be discharged from custody and, if a warrant for his return has been issued under the said section 11, quash that warrant.

13. (1) In any proceedings under this Act, including proceedings on an application for habeas corpus in respect of a person in custody thereunder-

(a) a document, duly authenticated, which purports to set out evidence given on oath in the designated country shall be admissible as evidence of the matters stated therein;

(b) a document, duly authenticated, which purports to have been received in evidence, or to be a copy of a document so received, in any proceeding in any such country shall be admissible in evidence;

(c) a document, duly authenticated, which certifies that a person was convicted on a date specified in the document of an offence against the law of, or of a part of, any such country shall be admissible as evidence of the fact and date of the conviction.

(2) A document shall be deemed to be duly authenticated for the purposes of this section-

(a) in the case of a document purporting to set out evidence given as aforesaid, if the document purports to be certified by a judge or magistrate or officer in or of the country in question to be the original document containing or recording that evidence or a true copy of such a document;

(b) in the case of a document which purports to have been received in evidence as aforesaid or to be a copy of a document so received, if the document purports to be certified as aforesaid to have been, or to be a true copy of a document which has been, so received;

(c) in the case of a document which certifies that a person was convicted as aforesaid, if the document purports to be certified as aforesaid,

and in any such case the document is authenticated either by the oath of a witness or by the official seal of the Secretary of State or of a Minister of the designated country or of the Governor of a dependency of the designated country.

(3) In this section "oath" includes information or declaration; and nothing in this section shall prejudice the admission in evidence of any document which is admissible in evidence apart from this section.

14. (1) Any person remanded or committed to custody under section 9 of this Act shall be committed to the like institution as a person charged with an offence before the court of committal.

(2) If any person who is in custody by virtue of a warrant under this Act escapes out of custody, he may be retaken in any part of Tonga in like manner as a person escaping from custody under a warrant for his arrest issued in that part in respect of an offence committed therein.

(3) Where a person, being in custody in any part of Tonga whether under this Act or otherwise, is required to be removed in custody under this Act to another part of Tonga and is so removed by sea or by air, he shall be deemed to continue in legal custody until he reaches the place to which he is required to be removed.

(4) A warrant under section 11 of this Act for the return of any person to any country shall be sufficient authority for all persons to whom it is directed and all officers or other members of the Police Force to receive that person, keep him in custody and convey him into the jurisdiction of that country.

15. (1) Any warrant or order to be issued or made by the Prime Minister under any of the foregoing provisions of this Act shall be given under the hand of the Prime Minister or the Chief Secretary and Secretary to Cabinet.

(2) The Prime Minister may by order prescribe the form of any warrant or order to be issued or made under the foregoing provisions of this Act.

16. (1) This section applies to any person accused or convicted for an offence under the law of Tonga who is returned to Tonga from any designed country.

(2) A person to whom this section shall not, during the period described in subsection (3), be dealt with in Tonga for or in respect of any offence committed before he was returned to Tonga other than-

(b) any lesser offence proved by the facts proved for the purposes of securing his return; or

(c) any other offence in respect of which the Government of the country or Governor of the dependency from which he was returned may consent to his being dealt with.

(3) The period referred to in subsection (2) in relation to a person to whom this section applies, is the period beginning with the day of his arrival in Tonga on his return as mentioned in subsection (1) and ending 145 days after the first subsequent day on which he has the opportunity to leave Tonga.

17. (1) This section applies to any person accused of an offence under the law of Tonga who is returned to Tonga as mentioned in section 16(1) of this Act.

(a) proceedings against him for the offence for which he was returned are not begun within the period of 6 months beginning with the day of his arrival in Tonga on being returned; or

(b) on his trial for that offence, he is acquitted or discharged absolutely or conditionally,

the Prime Minister may, if he thinks fit, on the request of that person, arrange for him to be sent back free of charge and with as little delay as possible to the country from which he was returned.

18. For the purposes of this Act a person convicted of an offence in his absence shall be treated as a person accused of that offence.

19. Any power to make an Order in Council or order under this Act includes power to revoke or vary such an Order in Council or order by a subsequent Order in Council or order.

20. (1) Subject to the provisions of this section, the enactments described in Schedule 2 to this Act are hereby repealed as respects Tonga to the extent specified in the third column of that Schedule.

(2) The repeals effected by subsection (1) of this section shall not affect the operation of the United Kingdom Fugitive Offenders Act 1881 in any case where, before the date on which that subsection comes into force, a warrant endorsed under section 3 of that Act, or a provisional warrant issued under section 4 of that Act, has been executed in Tonga.

(3) Without prejudice to subsection (2) of this section, this Act applies to offences committed before as well as after the coming into force of this Act.

1. Murder of any degree.
2. Manslaughter or culpable homicide.
3. An offence against the law relating to abortion.
4. Maliciously or wilfully wounding or inflicting grievous bodily harm.
5. Assault occasioning actual bodily harm.
6. Rape.
7. Unlawful sexual intercourse with a female.
8. Indecent assault.
9. Procuring, or trafficking in, women or young persons for immoral purposes.
10. Bigamy.
11. Kidnapping, abduction or false imprisonment, or dealing in slaves.
12. Stealing, abandoning, exposing or unlawfully detaining a child.
13. Bribery.
14. Perjury or subornation of perjury or conspiring to defeat the course of justice.
15. Arson or fire-raising.
16. An offence concerning counterfeit currency.
17. An offence against the law relating to forgery.
18. Stealing, embezzlement, fraudulent conversion, fraudulent false accounting, obtaining property or credit by false pretences, receiving stolen property or any other offence in respect of property involving fraud.
19. Burglary, housebreaking or any similar offence.
20. Robbery.
21. Blackmail or extortion by means of threats or by abuse of authority.
22. An offence against bankruptcy law or company law.
23. Malicious or wilful damage to property.
24. Acts done with the intention of endangering vehicles, vessels or aircraft.
25. An offence against the law relating to dangerous drugs or narcotics.
26. Piracy.
27. Revolt against the authority of the master of a ship or the commander of an aircraft.
28. Contravention of import or export prohibitions relating to precious stones, gold and other precious metals.
29. Any offence of genocide and any attempt or conspiracy to commit such an offence and any direct and public incitement to commit such an offence.
30.* An offence under section 4 or 5 of the Aircraft Offences Act.

* Deemed to be included by section 7 of the Aircraft Offences Act and applies whether or not an Order in Council under section 4(1) has been made.

Chapter	Short Title	Extent of Repeal
1881 c. 69 ......................	The Fugitive Offenders	The whole Act (exception 25. In section 25 the words from and including "and the provisions of this Act" down to the end of the section.)
1890 c. 37 ......................	The Foreign Jurisdiction Act 1890	In Schedule 1 the entry relating to the Fugitive Offenders Act 1881.
1915 c. 39 ......................	The Fugitive Offenders (Protected States) Act 1915.	The whole Act.

1. This Order in Council may be cited as the Extradition (Designated Countries) Order.

2. The countries specified in the Schedule are hereby designated as countries to which the provisions of the Extradition Act apply.

3. The United States of America is hereby designated for the purposes of Section 4 subsection (1) of the Extradition Act to the extent and effect of the Extradition Treaty entered into between the Government of the United Kingdom and the Government of the United States of America signed at London on December 22, 1931 and extended to Tonga on August 1, 1966. (Added by G. 193/77.)

4. The Federal Republic of Germany is hereby designated for the purposes of Section 4 subsection (1) of the Extradition Act 1972 to the extent and effect of the Treaty of 14 May 1872 between Germany and the United Kingdom for Mutual Surrender of Fugitive Criminals, as amended by the Agreement of 23 February 1960 between the Government of the Federal Republic of Germany and the Government of the United Kingdom of Great Britain and Northern Ireland for the Extradition of Fugitive Criminals and applied to the Kingdom of Tonga with the following modifications:

(a) The territories to which the Treaty of 14 May 1872 shall apply are the Kingdom of Tonga of the one part, and the Federal Republic of Germany of the other part. All references to territories of the Contracting Parties in the Treaty of 1872 and the Agreement of 1960 shall be understood in this sense;

(b) The list of extraditable crimes pursuant to Article III of the Agreement of 23 February 1960 shall be supplemented to include hijacking of and endangering the safety of aircraft, crimes pursuant to the Convention of 14 December 1973 on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, and all other crimes for which extradition may be granted under the law of the two Contracting Parties;

"The Contracting Parties shall not be required to deliver up their own nationals. The competent authority of the requested State shall, however, be entitled to grant extradition of its own nationals if it deems this proper and if such extradition does not conflict with the constitution of the requested State. Neither Party shall be required by this Treaty to deliver up a prosecuted person who is a member of the armed forces of a third State stationed in the territory of the requested State. The same shall apply to a civilian accompanying and serving with those armed forces and to the dependants of any such member or civilian."

(d) Any provisions of the law of the requested State prohibiting extradition shall be observed;

(e) It is agreed that the present Arrangement shall not prevent the legislative bodies of either Contracting Party from enacting divergent laws and that either Government shall inform the other Government as soon as possible of any intention to introduce such a law and, if necessary, enter into negotiations on an amendment to the present Arrangement;

(f) This Arrangement shall also apply to Land Berlin, provided that the Government of the Federal Republic of Germany does not make a contrary declaration to the Government of the Kingdom of Tonga within three months of the date of entry into force of this Arrangement. (Added by G 1/83.)

Antigua & Barbuda
Australia
Bahamas
Bangladesh
Barbados
Belize
Botswana
Brunei
Canada
Cyprus
Dominica
Federal Republic of Germany*
Fiji
Gambia
Ghana
Grenada
Guyana
India
Jamaica
Kenya
Kiribati
Lesotho
Malawi
Malaysia
Maldives

Malta
Mauritius
Nauru
New Zealand
Nigeria
Papua New Guinea
Saint Lucia
Seychelles
Sierra Leone
Solomon Islands
St Christopher and Nevis
St Vincent
Sri Lanka
Singapore
Swaziland
Tanzania
Trinidad and Tobago
Tuvalu
Uganda
United Kingdom of Great Britain
United States of America^†
Vanuatu
Western Samoa
Zambia
Zimbabwe

Tonga Consolidated Legislation

Extradition Act