CHAPTER
102
TRANSFER OF OFFENDERS |
ARRANGEMENT OF
SECTIONS |
SECTION |
|
Interpretation and evidence. |
Issue of warrant for transfer. |
Transfer out of The Bahamas. |
Transfer into The Bahamas. |
Operation of warrant and retaking prisoners. |
Revocation, etc., of warrants. |
|
SCHEDULE - Operation of Certain Laws in relation to the
Offender. |
CHAPTER 102 |
TRANSFER OF
OFFENDERS |
An Act to
make provision for facilitating the transfer between The Bahamas and other
countries of persons serving sentences for criminal offences. | 11 of 1992 |
[Assent 19th May,
1992]
[Commencement 1st July, 1992] |
1. This Act may be cited as the Transfer of Offenders
Act, 1992. | Short title. |
2. (1) In this Act- | Interpretation and evidence. |
"order"
includes any sentence, direction, warrant or other means of giving effect to
the decision of a court or tribunal; |
"Minister"
means the Minister charged with the responsibility for prisons; and |
"the
offender" has the meaning given by section 3(1)(b). |
(2) In any
proceedings, the certificate of the Minister- |
(a) that a
particular country or territory is a party to any such international
arrangements as are mentioned in section 3(1)(a); |
(b) that the
appropriate authority of a country or territory which is such a party has
agreed to the transfer of a particular person in accordance with any such
arrangements; or |
(c) that, for
the purposes of any provision of this Act, a particular person is or represents
the appropriate authority of any country or territory, |
shall be
conclusive of the matter certified. |
(3) On the
transfer of an offender referred to in section 5 documents supplied by the
foreign state from which the offender is transferred setting out the finding of
guilt and where the offender has been sentenced, the sentence imposed are, if
they purport to be signed by a judicial official or director of place of
confinement of the foreign state, in the absence of evidence to the contrary,
evidence of the facts alleged therein without proof of the signature or
official character of the person by whom they purport to be signed. |
3. (1) Subject to the following provisions of this
section where- | Issue of warrant for transfer. |
(a) The Bahamas
is a party to international arrangements providing for the transfer between The
Bahamas and a country or territory outside The Bahamas of persons to whom
subsection (7) applies; and |
(b) the
Minister and the appropriate authority of that country or territory have each
agreed to the transfer under those arrangements of a particular person (in this
Act referred to as "the offender"); and |
(c) the
offender has consented to being transferred in accordance with the
arrangements, |
the Minister
shall issue a warrant providing for the transfer of the offender into or out of
The Bahamas. |
(2) The Minister
shall not issue a warrant under this Act, and, if he has issued one; shall
revoke it, in any case where after the duty under subsection (1) has arisen and
before the transfer in question takes place circumstances arise, or are brought
to the Minister's attention, which in his opinion make it inappropriate that
the transfer should take place. |
(3) The Minister
shall not issue a warrant under this Act providing for the transfer of any
person into The Bahamas unless that person is a citizen of The Bahamas or the
holder of a certificate of permanent residence issued under the Immigration Act
and who is the spouse of a citizen. |
(4) The Minister
shall not issue a warrant under this Act, other than one superseding an earlier
warrant, unless he is satisfied that all reasonable steps have been taken to
inform the offender in writing in his own language- |
(a) of the
substance, so far as relevant to the offender's case of the international
arrangements in accordance with which it is proposed to transfer him; |
(b) of the
effect in relation to the offender of the warrant which it is proposed to issue
in respect of him; |
(c) in the case
of a transfer into The Bahamas of the effect in relation to the offender of the
law relating to his detention under that warrant (including the effect of any
enactment or instrument under which he may be released earlier than provided
for by the terms of the warrant); |
(d) in the case
of a transfer out of The Bahamas, of the effect in relation to the offender;
and |
(e) of the
powers of the Minister under section 7, |
and the
Minister shall not issue a warrant superseding an earlier warrant under this
Act unless the requirements of this subsection were fulfilled in relation to
the earlier warrant. |
(5) The Minister
shall not issue a warrant under this Act unless he is satisfied that the
consent given for the purposes of subsection (1)(c) was given in a manner
authorised by the international arrangements in accordance with which the
offender is to be transferred and was so given either- |
(a) by the
offender himself; or |
(b) in
circumstances where it appears to the Minister inappropriate by reason of the
physical or mental condition or the youth of the offender for the offender to
act for himself, by a person appearing to the Minister to be an appropriate
person to have acted on the offender's behalf. |
(6) A consent
given for the purposes of subsection (1)(c) shall not be capable of being
withdrawn after a warrant has been issued in respect of the offender; and,
accordingly, a purported withdrawal of that consent after that time shall not
affect the validity of the warrant, or of any provision which by virtue of
section 7 subsequently supersedes provisions of that warrant, or of any
direction given in relation to the offender under section 4(3). |
(7) This
subsection applies to a person if he is for the time being required to be
detained in a prison, a hospital or any other institution either- |
(a) by virtue
of an order made in the course of the exercise by a court or tribunal in The
Bahamas or in any country or territory outside The Bahamas of its criminal
jurisdiction; or |
(b) under the
provisions of this Act or any similar provisions of the law of any country or
territory outside The Bahamas. |
(8) In subsection
(7)(b) the reference to provisions similar to the provisions of this Act shall
be construed as a reference to any provisions which have effect with respect to
the transfer between different countries and territories (or different parts of
a country or territory) of persons who are required to be detained in prisons,
hospitals or other institutions by virtue of orders made in the course of the
exercise by courts and tribunals of their criminal jurisdiction. |
4. (1) The effect of a warrant providing for the
transfer of the offender out of The Bahamas shall be to authorise,
notwithstanding anything to the contrary in any other law, the surrender of the
offender by the authority from whose custody he is being transferred and- | Transfer out of The Bahamas. |
(a) the taking
of the offender to any place in any part of The Bahamas .and his delivery, at a
place of departure from The Bahamas into the custody of a person representing
the appropriate authority of the country or territory to which the offender is
to be transferred; and |
(b) the removal
of the offender by the person to whom he is so delivered to a place outside The
Bahamas. |
(2) Subject to
subsections (3) to (5), the order by virtue of which the offender is required
to be detained at the time such a warrant is issued in respect of him shall
continue to have effect after his removal from The Bahamas so as to apply to
him if he is again in The Bahamas at any time when under that order he is to
be, or may be, detained. |
(3) If, at any
time after the removal of the offender from The Bahamas it appears to the
Minister appropriate to do so in order that effect may be given to the
international arrangements in accordance with which the offender was
transferred, the Minister may give a direction varying the order referred to in
subsection (2) or providing for that order to cease to have effect. |
(4) The power by
direction under subsection (3) to vary the order referred to in subsection (2)
shall include power by direction- |
(a) to provide
for how any period during which the offender is, by virtue of a warrant under
this Act out of The Bahamas is to be treated for the purposes of that order;
and |
(b) to provide
for the offender to be treated as having been- |
(i) released
on licence under the
Prisons Act; or |
(ii) released
on licence under the
Children and Young Persons (Administration of Justice) Act. |
(5) References in
this section to the order by virtue of which the offender is required to be
detained at the time a warrant under this Act is issued in respect of him
include references to any order by virtue of which he is required to be
detained after the order by virtue of which he is required to be detained at
that time ceases to have effect. |
5. (1) The effect of a warrant providing for the
transfer of the offender into The Bahamas shall be to authorise- | Transfer into The Bahamas. |
(a) the
bringing of the offender into The Bahamas from a place outside The Bahamas; |
(b) the taking
of the offender to such place in The Bahamas, being a place at which effect may
be given to the provisions contained in the warrant by virtue of paragraph (c),
as may be specified in the warrant; and |
(c) the
detention of the offender in any part of The Bahamas in accordance with such
provisions as may be contained in the warrant, being provisions appearing to
the Minister to be appropriate for giving effect to the international
arrangements in accordance with which the offender is transferred. |
(2) A provision
shall not be contained by virtue of subsection (1)(c) in a warrant under this
Act unless it satisfies the following two conditions, that is, to say- |
(a) It is a
provision with respect to the detention of a person in a prison, a hospital or
any other institution; and |
(b) it is a
provision which at the time the warrant is issued may be contained in an order
made either- |
(i) in
the course of the exercise of its criminal jurisdiction by a court in The
Bahamas; or |
(ii) otherwise
than by a court but for the purpose of giving effect to an order made as
mentioned in subparagraph (i). |
(3) In determining
for the purposes of paragraph (c) of subsection (1) what provisions are
appropriate for giving effect to the international arrangement mentioned in
that paragraph, the Minister shall, to the extent that it appears to him.
consistent with those arrangements to do so, have regard to the inappropriateness
of the warrant containing provisions which- |
(a) are
equivalent to more than the maximum penalties (if any) that may be imposed on a
person who, in The Bahamas commits an offence corresponding to that in respect
of which the offender is required to be detained in the country or territory
from which he is to be transferred; or |
(b) are framed
without reference to the length- |
(i) of
the period during which the offender is, but for the transfer, required to be
detained in that country or territory; and |
(ii) of
so much of that period as will have been, or be treated as having been, served
by the offender when the said provisions take effect. |
(4) Subject to
subsection (6) and the Schedule, a provision contained by virtue of subsection
(1)(c) in a warrant under this Act shall for all purposes have the same effect
as the same provision contained in an order made as mentioned in subparagraph
(i) or, as the case may be, subparagraph (ii) of subsection (2)(b) and without
prejudice to the foregoing, for the purpose of The Bahamas giving effect to any
international arrangements the finding of the guilt and the sentence, if any, by
the court of a foreign state of an offender who is transferred to The Bahamas
shall be deemed a finding of guilt and a sentence imposed by a court of
competent jurisdiction in The Bahamas for a criminal offence. |
(5) A provision
contained by virtue of subsection (1)(c) in a warrant under this Act shall take
effect with the delivery of the offender to the place specified in the warrant
for the purposes of subsection (1)(b). |
(6) Subsection (4)
shall not confer any right of appeal on the prisoner against provisions
contained by virtue of subsection (1)(c) in a warrant under this Act. |
(7) The Schedule
shall have effect, with respect to the operation of certain laws in relation to
provisions contained by virtue of subsection (1)(c) in a warrant under this
Act. |
(8) For the
purposes of determining whether at any particular time any such order as is
mentioned in subsection (2)(b) could have been made as so mentioned, there
shall be disregarded both- |
(a) any
requirement that certain conditions must be satisfied before the order is made;
and |
(b) any
restriction on the minimum period in respect of which the order may be made. |
(9) An offender
who is transferred to The Bahamas- |
(a) shall be
credited with any time toward completion of his sentence that was credited to
him at the date of his transfer by the foreign state in which he was convicted
and sentenced; and |
(b) is eligible
to earn remission as if he had been committed to custody on the date of his
transfer pursuant to a sentence imposed by a court in The Bahamas. |
6. (1) Where a warrant has been issued under this Act
the following provisions of this section shall have effect for the purposes of
the warrant, except (without prejudice to section 5(4) or any enactment
contained otherwise than in this Act) in relation to any time when the offender
is required to be detained in accordance with provisions contained in the
warrant by virtue of section 5(1)(c). | Operation of warrant and retaking prisoners. |
(2) The offender
shall be deemed to be in lawful custody undergoing a sentence of imprisonment
at any time when being in The Bahamas or on board a Bahamian registered vessel
or a Bahamian registered aircraft he is being taken under the warrant to or
from any place or being kept in custody under the warrant. |
(3) The Minister
may, from time to time, designate any person as a person who is for the time
being authorised for the purposes of the warrant to take the offender to or
from any place under the warrant, or to keep the offender in custody under the
warrant. |
(4) A person
authorised by or for the purposes of the warrant to take the offender to or
from any place or to keep the offender in custody shall have all the powers,
authority, protection and privileges of a police officer. |
(5) If the offender
escapes or is unlawfully at large, he may be arrested without warrant by a
police officer and taken to any place to which he may be taken under the
warrant under this Act without prejudice to any other liability imposed upon
him by any other law. |
(6) In subsection
(2)- |
"Bahamian
registered vessel" means a vessel registered under the
Merchant Shipping Act; |
"Bahamian
registered aircraft" means an aircraft registered under the Civil
Aviation Act. |
7. (1) Subject to section 3(4), if at any time it
appears to the Minister appropriate, in order that effect may be given to any
such arrangements as are mentioned in section 3(1)(a) or in a case falling
within section 3(2) for a warrant under this Act to be revoked or varied, he
may, as the case may require- | Revocation, etc., of warrants. |
(a) revoke that
warrant; or |
(b) revoke that
warrant and issue a new warrant under this Act containing provision superseding
some or all of the provisions of the previous warrant. |
(2) Subject to
subsection (3)(c), the provision that may be contained in a new warrant issued
by virtue of subsection (1)(b) shall be any provision that could have been
contained in the previous warrant. |
(3) A new warrant
issued by virtue of subsection (1)(b) may provide- |
(a) that a
provision contained in it is to be treated as having taken effect when the
provisions which that provision supersedes took effect; |
(b) that things
done under or for the purposes of the superseded provisions are, accordingly,
to be treated as having been done under or for the purposes of the provision
contained in the new warrant; and |
(c) that an
enactment in force at the time the new warrant is issued is, for the purposes
of subsection (2) or this subsection to be treated as having been in force when
the superseded provisions took effect. |
(4) The powers
conferred by this section shall be exercisable notwithstanding any defect in
the warrant which is revoked. |
8. (1) Subject to subsection (2) any expenses incurred
by the Minister for the purposes of this Act shall be charged upon the
Consolidated Fund. | Expenses. |
(2) Subject to
subsections (3) and (4), it shall be the duty of the Minister, in the case of a
transfer of a person into The Bahamas under this Act, to secure the payment to
him by that person, or from some other source of the amount of the expenses
incurred by the Minister in connection with the conveyance of that person to
The Bahamas; and for this purpose the Minister shall have the power if
necessary to require a person to give an undertaking to pay to the Government
of The Bahamas the whole or any part of that amount which undertaking may be
sued upon in any court of summary jurisdiction as a civil debt due to the
Government. |
(3) Subsection (2)
shall not apply to the extent that in any case it appears to The Minister that
it would be unreasonable for him to exercise any of the powers conferred by
that subsection either because of the exceptional circumstances of the case or
because the means of the offender are insufficient to meet the expenses, and
their recovery, whether immediately or at some future time, from the offender
or from any other source is impracticable. |
(4) The expenses
mentioned in subsections (2) and (3) shall not include- |
(a) any
expenses of providing an escort for a person transferred into The Bahamas under
this Act; or |
(b) any expenses
of the conveyance of such a person beyond the place at which he first arrives
in The Bahamas. |
(5) The Minister
shall pay any sums received by him by virtue of subsection (2) into the
Consolidated Fund. |
SCHEDULE (Section 5) |
OPERATION OF
CERTAIN LAWS IN RELATION TO THE OFFENDER |
1. This
Schedule applies where a warrant is issued under the Act providing for the
transfer of the offender into The Bahamas; and in this Schedule "the
relevant provisions" means the provisions contained in the warrant by
virtue of section 5(1)(c). | Application of Schedule. |
2. (1) In
determining for the purposes of any law whether an offender has at any time
served a specific period of his sentence the offender's sentence shall, subject
to subparagraph (2), be deemed to begin with the day on which the relevant
provisions take effect. | Release on licence. |
(2) If the warrant
specifies a period to be taken into account for the purposes of this paragraph
the offender's sentence and the amount he has served shall be deemed to be increased
by that period in so far as the question whether he has served a specific
period of his sentence is concerned. |
3. The
relevant provisions shall be disregarded for the purposes of the application,
in relation to any offence of which the offender was convicted in a place
outside
The Bahamas, of the Rehabilitation of Offenders Act, 1991, except section 3(3)
(person not rehabilitated unless he serves sentence). | Rehabilitation of Offenders Act, 1991. |
4. Where
the relevant provisions include provision equivalent to such a sentence as is
mentioned in section 32 of the Firearms Act (possession of firearm by person
previously convicted of crime) that section shall apply in relation to the
offender as if for the reference in that section to the period of five years
from the date so mentioned there were substituted a reference to the period of
five years from the day on which the relevant provisions take effect. | The Firearms Act. |