Privy Council Appeal Nos 64 of 2004 and 70 of 2005

Samuel Knowles Jr   							Appellant
v.
(1) The Government of the United States of America
(2) The Superintendent of Prisons of the 
Commonwealth of the Bahamas	Respondents

FROM

THE COURT OF APPEAL OF
THE BAHAMAS
- - - - - - - - - - - - - - - - - 

JUDGMENT OF THE LORDS OF THE JUDICIAL 
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 24th July 2006

- - - - - - - - - - - - - - - - - 

Present at the hearing:-

	Lord Bingham of Cornhill
	Lord Hutton
	Lord Rodger of Earlsferry
	Baroness Hale of Richmond	
	Lord Carswell

- - - - - - - - - - - - - - - -

		Delivered by Lord Bingham of Cornhill]		

  
1.	The Government of the United States of America (“the Government”) seeks the extradition of Mr Knowles, the appellant, from the Bahamas to stand trial on drugs charges in Florida.  To this end it has made two extradition requests, which have led to a proliferation of proceedings in the Bahamian courts, culminating in the two appeals now before the Board.  The issues which fall for decision in these appeals are best understood in the context of the procedural history of the two extradition requests.

The first extradition request

2.	On 8 December 2000 a federal grand jury indicted the appellant and others on counts of conspiracy to possess cocaine and marijuana with intent to distribute and conspiracy to import the same drugs into the United States.  On each count the period of the conspiracy charged was between 11 November 1997 and 8 December 2000.  This indictment founded the Government’s first extradition request, made on 26 March 2001.  Authority to proceed was promptly given, a committal hearing took place before the stipendiary and circuit magistrate (Mrs Carolita Bethel) and on 5 October 2001 she committed the appellant to await extradition to the United States.

3.	The appellant applied to the Supreme Court for an order of habeas corpus ad subjiciendum and, during a hearing before Isaacs J, applied also for an order of judicial review.  On 5 February 2002 the judge, taking the view that the evidence adduced by the Government was insufficient, made an order in the appellant’s favour.  But unfortunately no formal order was drawn up and doubt arose whether he had made an order of habeas corpus or certiorari.  The Government appealed against the judge’s order and the Court of Appeal heard argument on 8-11 April 2002.  The issues on appeal were whether the Court of Appeal had jurisdiction to entertain the appeal at all, which depended on whether the order made was one of habeas corpus or certiorari, and, if the latter, whether the judge’s order should be upheld.  On 22 January 2003 the court (Sawyer P, Churaman and Ibrahim JJA) gave its reasons for concluding that the judge had exercised a judicial review function, that accordingly the Court of Appeal had jurisdiction to entertain an appeal and that the judge had erred in making the order he had.  The effect was to uphold the magistrate’s committal order.  On the appellant’s appeal to the Board against this decision, all members agreed (Cartwright and another v Superintendent of Her Majesty's Prison and another [2004]  UKPC 10, [2004] 1 WLR 902) that the judge had been clearly wrong in his assessment of the evidence, but opinion was divided on whether he had made an order of habeas corpus or certiorari, and whether the Court of Appeal had had jurisdiction to entertain the appeal.  On these issues the majority upheld the jurisdiction and the decision of the Court of Appeal and the minority accepted the appellant’s argument that the judge had made an order of habeas corpus and that the Court of Appeal had had no jurisdiction to entertain an appeal.  So when judgment was given by the Board on 10 February 2004 the committal order still stood.

4.	On 20 February 2004, however, the appellant again applied to the Supreme Court for an order of habeas corpus.  He founded this application on section 7(1)(c) of the Extradition Act 1994 which, so far as material, provides:
“(1)	A person shall not be extradited under this Act to an approved State or committed to or kept in custody for the purposes of such extradition if it appears to the Minister, to the court of committal or to the Supreme Court on an application for habeas corpus—

	(c)	that he might, if extradited, be denied a fair 		trial … by reason of his … nationality ... ”

The appellant contended that he might, if extradited to the United States, be denied a fair trial.  He based this contention on the fact that on 31 May 2002 the President of the United States had formally and publicly designated him as a drug “kingpin” within the meaning of the Foreign Narcotics Kingpin Designation Act 1999, with the result that he became subject to the sanctions and penalties provided by that Act.  Those so designated were under the Act denied access to the US financial system, and US companies and individuals were prohibited from entering into any trading or professional transaction with a designated person unless licensed by the Government to do so.  The appellant’s contention was that his designation as a foreign drugs kingpin was tantamount to a declaration of his guilt by the highest authority in the Government;  that this had already been published and could be found on a Government website;  that his extradition and trial would be bound to attract very considerable publicity;  that the jurors at his trial might well know or learn of his designation;  that his trial would not be fair if a juror were prejudiced by such knowledge;  and that this prejudice derived from his nationality, since the Act did not apply to US citizens.  The Government took strong issue with this contention, relying in particular on the safeguards provided by federal procedure in the United States to ensure that jurors do not know or learn of, or pay attention to, inadmissible evidence prejudicial to a defendant.

5.	The appellant’s application for habeas corpus was listed before Small J in the Supreme Court and partly heard on 6 and 7 April 2004.  The judge adjourned the hearing until May for the reception of expert evidence.  When the hearing was resumed on 17-19 May evidence of experts for the appellant and the Government was adduced on affidavit and orally.  The judge handed down his written judgment on 23 June 2004.  In this he considered in some detail, but rejected, an objection strongly urged by the Government, that the appellant’s application was an abuse of the court’s process because it could and should have been raised earlier on the application to Lyons J to which reference is made in para 10 below.  The judge found nothing to suggest that the appellant or his attorneys had been negligent or inadvertent in not raising the issue earlier, and concluded that the appellant had not made improper use of the machinery of the court in making the application.  On the substance of the matter, the judge summarised the evidence and the competing submissions and concluded that the prejudicial effect of the presidential designation had been established and might expose the appellant to unfairness at his trial.  Since only those who were not US citizens could be designated as drugs kingpins under the 1999 Act and the appellant, being a Bahamian citizen, was accordingly eligible for designation, this unfairness was by reason of his nationality.  The judge therefore ruled that the appellant’s claim for habeas corpus succeeded.  On this occasion an order was drawn up that the writ of habeas corpus should issue.  The effect was to discharge the order of committal made by the magistrate.

6.	The Government promptly appealed against the decision of Small J, on the ground that he had had no jurisdiction to hear and determine the application of the appellant for a writ of habeas corpus since it constituted an abuse of the process of the court.  The appeal came before the Court of Appeal (Sawyer P, Churaman and Ganpatsingh JJA), when the Government advanced this argument.  The appellant submitted that no appeal lay by the Government against an order granting habeas corpus, and that the Court accordingly had no jurisdiction to entertain the appeal.  In a judgment of the court delivered by Ganpatsingh JA on 11 May 2005, the court accepted the Government’s argument on jurisdiction and on the merits of the kingpin argument and rejected the appellant’s.  Thus the magistrate’s committal order was reinstated.

7.	The appellant challenges this decision of the Court of Appeal in the first appeal now before the Board.  This appeal (PC Appeal No 70 of 2005) gives rise to what is described below as “the first issue”:  it is whether the Court of Appeal was right to conclude that it had jurisdiction to entertain the Government’s appeal against the order of habeas corpus made by Small J.

The second extradition request

8.	The order made by Isaacs J for the release of the appellant on 5 February 2002 (para 3 above) prompted the Government to make a second extradition request, for which the same magistrate (Mrs Bethel) issued a provisional warrant on 6 February 2002.  This was founded on an indictment preferred by a federal grand jury on 25 May 2000.  It charged the appellant and others with counts of conspiracy to smuggle cocaine into the United States between June 1995 and 1997.  Thus the second extradition request differed from the first in two respects:  it was founded on an earlier grand jury indictment;  and it related to an earlier period of time.  It also charged different conspirators and depended on different evidence.

9.	The Government’s application to commit the appellant pursuant to its second extradition request was heard by the same magistrate in September-November 2002.  The appellant resisted, mainly on the grounds that the second extradition request was an abuse of the process of the court, that the Government had not made proper disclosure and that the evidence was insufficient to support the charges.  The magistrate rejected these arguments in a reasoned judgment given on 16 December 2002.  On the abuse point she was of the opinion that a magistrate had no jurisdiction to stay or dismiss extradition proceedings on grounds of abuse, but she held that she would not on the facts exercise such a jurisdiction even if she had it.  She made a committal order against the appellant on the first two charges in the second extradition request.

10.	In December 2002 the appellant applied for habeas corpus.  This application came before Lyons J in the Supreme Court on 7 March and 26 May 2003.  The argument before him was directed primarily to abuse, lapse of time, the risk of injustice and oppression and failure to make proper disclosure.  For reasons given in a written judgment delivered on 28 August 2003, the judge dismissed the appeal.  The appellant appealed to the Court of Appeal (Sawyer P, Churaman and Ganpatsingh JJA), which on 10 February 2004 dismissed the appeal for reasons given in writing on 28 April 2004.  Thus the magistrate’s committal order was affirmed by both the Supreme Court and the Court of Appeal.

11.	The appellant challenges this decision in the second appeal now before the Board.  This appeal (PC Appeal No 64 of 2004) gives rise to what is described below as “the second issue”:  whether the Court of Appeal erred in law in rejecting the appellant’s objections to the committal order made on the second extradition request.  As will be seen, the second issue calls for consideration of four sub-issues.

The first issue:  jurisdiction of the Court of Appeal to entertain an appeal from the order of habeas corpus made by Small J

12.	Laws governing extradition seek to reconcile two objectives, both of concern to states recognising the rule of law.  One objective is to give effect to the principle that, in the ordinary way, persons in one state who are credibly accused of committing serious crimes triable in another should be surrendered to that other to answer for their alleged misdeeds.  This is a principle which national authorities, including courts, will seek to honour.  The second objective is to protect those whose surrender is sought against such surrender in circumstances where they would, putting it very generally, suffer injustice or oppression.  States ordinarily seek to provide some safeguards against the surrender of those within their borders in such circumstances.

13.	Section 7 of the Extradition Act 1994, partly quoted in para 4 above, provides five grounds on which those in the Bahamas may not be extradited by the Minister, committed to custody by the court of committal, or kept in custody by the Supreme Court on an application for habeas corpus.  Section 7 is supplemented and reinforced by section 11, which is of central importance in these appeals and must be quoted in full (as it read before amendment by the Extradition (Amendment) Act 2004): 
“11.	(1)	Where a person is committed to custody under section 10(5), the court of committal shall inform him in ordinary language of his right to make an application to the Supreme Court for habeas corpus and shall forthwith give notice of the committal to the Minister.

(2)	A person committed to custody under section 10(5) shall not be extradited under this Act—

(a)	in any case, until the expiration of the period of fifteen days commencing on the day on which the order for his committal is made;  and

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

(3)	On any such application the Supreme Court may, without prejudice to any other power 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 the offence 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 interest of justice,

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

(4)	On any such application the Supreme Court may receive additional evidence relevant to the exercise of its jurisdiction under section 7 or under subsection (3) of this section.

(5)	An appeal shall lie to the Court of Appeal against the refusal of an application made under subsection (1) for an order of habeas corpus and for that purpose the Court of Appeal may exercise, as to the Court seems fit, any of the powers conferred upon it by subsection (4) of section 17 of the Court of Appeal Act.”

14.	The Government suggested, in reliance on obiter observations of Hall JA in McDonald v R (Court of Appeal, Bahamas, 2 May 2001, unreported), citing Jean v Minister of Labour and Home Affairs (1981)  31 WIR 1, that the role of the Supreme Court on an application for habeas corpus in criminal proceedings (such as extradition) is to review the formal validity of an order for detention and not enquire into its substantial merits.  This proposition cannot be accepted, for three compelling reasons.  First, it is contrary to sound Bahamian authority:  see R v Superintendent at Her Majesty's Prison Fox Hill, Ex p Darville (No 1) [1989-90]  1 LRB 128;  R v Superintendent at Her Majesty's Prison Fox Hill, Ex p Bain [1989-90]  1 LRB 156.   Secondly, it is contrary to English authority of high standing:  Armah v Government of Ghana [1968]  AC 192.  Thirdly, it is irreconcilable with sections 7 and 11 of the 1994 Act which expressly authorise the Supreme Court to enquire into specified aspects of the merits of the detention order which is challenged.

15.	As is evident from its terms, section 11(5) of the 1994 Act conferred a right of appeal on an applicant against the refusal of habeas corpus but not on a respondent against its grant.  This followed a well-established English rule (Cox v Hakes (1890) 15 App Cas 506), altered by section 15 of the Administration of Justice Act 1960, and now amended by the 2004 Act in the Bahamas.  But the appellant’s application to Small J was governed by the unamended section.  On the appellant’s first appeal to the Board, all members agreed that no appeal lay against the grant of habeas corpus:  Cartwright, above, paras 9, 10, 33-36.

16.	The jurisdiction of the Court of Appeal is wholly statutory, and at the relevant time the court had no jurisdiction to entertain an appeal against the grant of habeas corpus.  Section 10 of the Court of Appeal Act gives jurisdiction in civil proceedings, but extradition proceedings are criminal.  Section 12, regulating appeals by persons convicted on information in the Supreme Court is clearly inapplicable, as is section 21(1) relating to appeals against the Supreme Court in its exercise of appellate or revisional jurisdiction.  Section 21(3) provides:
“(3)	Any person aggrieved after the coming into operation of this subsection—

(a)	by any declaratory order, order of mandamus, order of prohibition or order of certiorari made by the Supreme Court in any proceedings, whether or not the proceedings are civil or criminal in nature;  or

(b)	by the refusal of the Supreme Court to make any such order,

	may appeal to the court against any such order, or, the refusal of any such order, on any ground of appeal which involves a point of law or of mixed fact and law, without prejudice to any other law or provisions of this Act which provide for such an appeal.”

Notable in this subsection, conferring jurisdiction on the Court of Appeal to entertain appeals against orders of the Supreme Court in the exercise of its supervisory jurisdiction, is the omission of any reference to habeas corpus.

17.	On the Government’s appeal to the Court of Appeal against the order of Small J, counsel for the appellant raised the preliminary objection that the court had no jurisdiction to entertain the appeal.  He further submitted that his application to Small J was not precluded by his earlier application to Isaacs J, since section 20(1) of the Supreme Court Act permitted a repeat application on different grounds or fresh evidence.  Section 20(1) provides:
“(1)	Notwithstanding anything to the contrary in any law, where a criminal or civil application for habeas corpus has been made by or in respect of any person, no such application shall again be made by or in respect of that person on the same grounds whether to the same court or judge or to any other court or judge unless fresh evidence is adduced in support of the application.”

Here, the appellant argued, the ground was different and the kingpin evidence had not been “fairly available to him” (R v Governor of Pentonville Prison, Ex p Tarling [1979]  1 WLR 1417, 1422,  per Ralph Gibson J) at an earlier stage, as Small J had accepted.  Having recorded these submissions the Court of Appeal did not at that stage address them, but instead proceeded to make strong criticisms of the judge’s conclusion on the kingpin argument.  His conclusion was described as “startling” (para 13).  It (para 13)
“seems to have been based on pure conjecture, and to have ignored altogether the function of the judge at trial to protect defendants from prejudice or adverse publicity.  This was plainly wrong.”

The court did not refer to, and had not of course heard, the evidence.

18.	In para 15 of its judgment the Court of Appeal criticised the appellant’s arguments as “attempts to elevate the restrictions on extradition in Section 7 to the status of grounds for habeas corpus”.  Having cited the terms of section 11 and noted that the statute left no room for a general discretion to grant relief (In re Schmidt [1995]  1 AC 339, 378-379), the court found (para 18) “a fundamental distinction between the jurisdiction under Section 7 and the jurisdiction under section 11”.  The matters contained in section 11 were “additional or statutory grounds for the grant of habeas corpus”;  the “matters in section 7 dealing with restrictions on extradition are not so intended”, although the court in an application based on any of the statutory grounds had jurisdiction to consider the matters in section 7(1) and make an appropriate order of restriction on extradition.  The court was of opinion (para 19) that the appellant’s first application for habeas corpus, although rejected, had been in order, but there “could hardly be fresh evidence that the committal was unlawful”.  He could have recourse to section 11(3), but he was not relying on any of those grounds.  The court continued in paras 20-22:
 
“20.	…	The considerations referred to in section 7 do not directly go to the lawfulness or otherwise of the applicant’s detention.  In other words the order to be made under section 7(1)(c), assuming a case is made out, is not one of discharge from custody as provided for in section 11(3) based on unjustness or oppressiveness.  It is one of prohibition against extradition, the court having determined that he be not kept in custody for that purpose, because it appears he might be denied a fair trial if extradited.  A reading of section 12(1) is in our view very instructive of the discrete jurisdictions conferred by Parliament in sections 11 and 7.  Section 12(1) reads:

‘(1)	Where a person is committed to await his extradition and is not discharged by order of the Supreme Court the Minister may, by warrant order him to be extradited to the approved state by which the request for the extradition was made unless the extradition of that person is prohibited or prohibited for the time being, by section 7 or by this section or the Minister decides under this section to make no such order in his case.’  [Original emphasis].

21.	The diverse nature of the reliefs available under section 11 (3) and section 7, that is to say, between an order of ‘discharge’ from custody in section 11(3), and an order that the applicant ‘be not kept in custody for the purposes of extradition’ in section 7, is in our view made pellucidly clear by the language of section 12(1).  This latter section speaks of ... ‘a person not discharged by order of the Supreme Court ...’ in contra-distinction to ‘... the extradition [being] prohibited ... by section 7 ...’  This contrast in language appears to us a cogent reason and a persuasive argument to conclude that Parliament intended that the common law right to habeas corpus be confined in the Act to those grounds of relief under section 11(3);  whereas an order of prohibition be limited to the restrictions on extradition set out in section 7.

22.	In our opinion Parliament did not in relation to any of the matters set out in section 7, categorize any order made under that section as a habeas corpus order.  What it did provide for, is that an order within the jurisdiction conferred by section 7 may be made in habeas corpus proceedings, which are proceedings founded on the common law ground of unlawful detention or on any of the statutory grounds set out in section 11(3) of the Act.  It is not surprising therefore that section 12 characterizes the distinction between the two orders of relief in the language used.”

The court accepted (in paras 23-24) that there could be no appeal against an order of habeas corpus, but that rule did not apply to an order under section 7 (para 24).  The judge’s order, if properly made at all, could only have been an order of prohibition (para 25) and therefore an appeal lay under the Court of Appeal Act.  In para 26 the court concluded:
“26.	We have come to the conclusion that this second application for habeas corpus was not based on ‘fresh evidence’ within the meaning of those words in section 20 of the Supreme Court Act, and therefore the learned judge fell into error in making the order he did.  It appears to us that whatever safeguard is available to the respondent at this stage of his extradition proceeding it must lie in the general discretion of the Minister conferred by section 7(1) of the Act.”

19.	In the Board’s respectful opinion, the Court of Appeal’s reasoning cannot be accepted.  Section 7(1) is addressed to the Minister, the court of committal and the Supreme Court in relation to their respective functions of extraditing, committing and keeping in custody or not extraditing, not committing or discharging from custody.  If it appears to the relevant body that any of the five specified conditions is satisfied, that body shall not (as the case may be) extradite, commit or keep in custody.  In the case of the Supreme Court the five grounds are grounds for granting habeas corpus.   This is clear from the language of section 7(1), and is made even clearer by section 11(3) where the Supreme Court’s power to discharge on the three grounds there specified is expressed to be “without prejudice to any other power of the Court”, and also by section 11(4) which permits the Supreme Court to receive additional evidence relevant to the exercise of its jurisdiction under section 7 or under section 11(3), the two provisions being treated in effect as one.  Section 12(1) is irrelevant, being directed (like the rest of the section) to the powers of the Minister:  extradition is prohibited by section 7 if it appears to the Minister that one of the specified conditions is satisfied, because the Minister is forbidden to extradite a person in such a case.  There is no warrant in the statute for the distinction which the Court of Appeal drew between section 7(1) and section 11(3).  In this case the judge was asked to make an order of habeas corpus and nothing else, and he made such an order because it appeared to him that the appellant might, if extradited, be denied a fair trial by reason of his nationality.  In para 26 of its judgment the Court of Appeal appeared to accept that the application was for habeas corpus, but its opinion that the application was not based on fresh evidence ran directly contrary to the finding of the judge.  For better or worse, the judge had granted the appellant an order of habeas corpus.  At the time, no appeal lay against such an order.  The Court of Appeal had no jurisdiction to entertain an appeal, and should not have done so.

20.	The Court of Appeal should not, therefore, have addressed the merits and demerits of the kingpin argument.  Counsel reviewed these in argument before the Board, but as it was wrong for the Court of Appeal to explore these matters, so it would be wrong for the Board to do so.  A person resisting extradition to a friendly foreign state with a respected and sophisticated legal system will always find it hard to rely successfully on condition (c) in section 7(1), but whether the appellant was able to do so was a matter for the judge and his decision to grant relief was final.  The Board cannot, however, suppress its unease that the appellant’s counsel, being of American as well as British nationality, should require the licence of a foreign government to represent a Bahamian citizen before the Judicial Committee of Her Majesty’s Privy Council.

21.	The Board will humbly advise Her Majesty that the appellant’s appeal against the Court of Appeal’s decision of 11 May 2005 on the first extradition request should be allowed and its order set aside.  The judge’s order should be restored:  whether it will lead to the appellant’s release will depend on the resolution of the second issue.

The second issue:  the correctness of the Court of Appeal's dismissal of the appellant's appeal against the committal order made on the second extradition request 

22.	The second issue calls for a decision on four sub-issues.

(1)  Abuse of the process of the court

23.	The appellant contends that the proceedings to extradite him pursuant to the second extradition request are an abuse of the process of the court. The factual foundation of this complaint is that the second extradition request was based on a grand jury indictment preferred on a date earlier than that of the indictment on which the first request was based, and relating to earlier events.  Yet the Government chose to take no action on this earlier indictment (the appellant says that the Government held it back), only relying on it when the order of Isaacs J defeated, or possibly defeated, the attempt to extradite the appellant under the first request.  Thus the appellant was lulled into the belief that the Government proposed to take no action in relation to events before November 1997, for which he could not have been tried had he been extradited under the first request, and he was detained under the second provisional warrant as the conditions for his release on bail following the order of Isaacs J were on the point of being finalised.  The appellant further complains that the Government wrongly charged as two separate conspiracies what was in truth, if a conspiracy at all, a single conspiracy, relating to a single course of conduct over a period, although involving different actors at different stages.  The appellant relies, as further evidence of abuse, on the Government’s failure to explain the reasons for acting as it has.

24.	The magistrate held that she had no jurisdiction to stay the proceedings as an abuse, but would not have exercised the jurisdiction had she had it.  Lyons J shared the magistrate’s view on jurisdiction, and also on the absence of abuse.  In his opinion the facts obviously showed two separate conspiracies, and he inferred that the Government proceeded on the later indictment first because it judged it to be the stronger.  The judge saw nothing sinister or reprehensible in the Government’s moving speedily to detain the appellant when he was about to be released on the order of Isaacs J, and it was reasonable to regard bail as an inadequate restraint.  The Court of Appeal shared the views of the courts below, both on jurisdiction and on the substance of the abuse complaint.  It accepted that there may be a single conspiracy spanning several years with some conspirators dropping out and others joining (para 25), but saw grounds to justify the framing of two conspiracies (para 26) and thought that the Government’s decision should be respected (paras 27-28).

25.	The appellant faces an uphill task in seeking to dislodge the conclusion of three courts below that the Government’s conduct in proceeding on the second extradition request was not abusive.  The Board would be very slow to intervene in the absence of a clear legal misdirection, and it finds none.  It appears that in June 2000, after preferment of the first grand jury indictment, a gentleman known as Herbert “Sharkhead” Hanna was arrested for importing cocaine into Florida, and that he gave the Government information about the appellant in August.  He was the main prosecution witness on the second indictment.  This may explain why the Government based its first request on the later indictment.  But it is, within broad limits, for a prosecutor to decide what charges he will prefer, and how he will frame his charges.  In the absence of unfairness or oppression, this is not a matter for the requested state and not a matter which calls for explanation.  Since the appellant did not know of the first grand jury indictment, he was not misled by the Government’s initial decision not to rely on it and it cannot be said that the Government made any implied representation to him.  It was, no doubt, a shock for the appellant to be detained under the second request as he was on the point of being released on bail under the first, but if (as the Court of Appeal and a majority of the Board held in Cartwright and another v Superintendent of Her Majesty’s Prison and another, above) the order made by Isaacs J was one of certiorari, it is not (as the Board understands) suggested that there was no jurisdiction to release the appellant on bail, and the Government cannot be criticised for moving quickly to detain the appellant.  The Board finds no fault in the Court of Appeal’s decision.

26.	This conclusion makes it strictly unnecessary for the Board to rule on whether a magistrate has jurisdiction to stay or dismiss extradition proceedings on grounds of abuse not falling within section 7(1) of the 1994 Act.  But the Board has heard full argument, the issue is one of general practical importance and the question is one of law alone.  It seems desirable that the Board should give its opinion.

27.	Section 10(2) of the Act provides:
“For the purposes of proceedings under this section, a court of committal shall have, as nearly as may be, the like jurisdiction and powers (including power to remand in custody or to release on bail) as it would have if it were conducting a preliminary inquiry and the person arrested were charged with an indictable offence committed within its jurisdiction.”

Those powers, the appellant submits, include a power to decline to inquire into an offence on grounds of abuse:  R v Telford Justices, Ex p Badhan [1991]  2 QB 78.  The Government responds by pointing to a settled line of authority establishing that, in extradition proceedings, a magistrate’s court has no discretion to refuse to commit on grounds of alleged abuse:  Atkinson v United States of America Government [1971]  AC 197;  R v Governor of Pentonville Prison, Ex p Sinclair [1991]  2 AC 64;  In re Schmidt [1995]  1 AC 339.   Section 10(2) was enacted against this background of authority (save for the House of Lords’ decision in the last case) and must be construed as giving effect to it.  The appellant counters by citing R (Kashamu) v Governor of Brixton Prison [2001]  EWHC Admin 980, [2002] QB 887.  In that case the Divisional Court (Rose LJ and Pitchford J) departed from the Atkinson line of authority, holding itself constrained to do so under the Human Rights Act 1998 by article 5 of the European Convention on Human Rights.  Article 5(1) recognises that a person against whom action is being taken with a view to extradition may be lawfully arrested or detained, but this provision is qualified by article 5(4) which provides:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

Article 5(4) was not satisfied, the court held, by a power of control in the executive nor by a delayed court decision, indicating that the magistrate should be held to have an abuse jurisdiction.  The Government seeks to distinguish that authority.  It refers to article 19(1)(g) of the Constitution which, so far as material, provides:
“(1)	No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases—

(g)	… for the purpose of effecting the ... extradition or other lawful removal from The Bahamas of that person or the taking of proceedings relating thereto ...”

Thus the Constitution, it is argued, omits the references on which the decision in Kashamu particularly turned:  there is no requirement of speedy decision nor of decision by a court.  The appellant replies that such an approach is inconsistent with the principle of the separation of powers on which the Bahamian Constitution and other like constitutions are founded:  it is the courts, not the executive government, which must protect the individual against subjection to proceedings which are an abuse of the court’s process.  The Government in response takes its stand on the Constitution itself.  It provides, in article 28(3):
“(3)	If, in any proceedings in any court established for The Bahamas other than the Supreme Court or the Court of Appeal, any question arises as to the contravention of any of the provisions of the said Articles 16 to 27 (inclusive), the court in which the question has arisen shall refer the question to the Supreme Court.”

If, therefore, a person alleges that he is detained pursuant to proceedings which are an abuse, such that he ought not to be detained, his remedy lies in recourse to the Supreme Court to complain that his rights under article 19(1)(g) have been infringed.  But the Constitution does not permit a magistrate to rule on such a complaint.

28.	The Board does not find this an altogether easy question to resolve, but on balance it prefers the Government’s argument, as did the courts below.  In enacting section 10(2) of the 1994 Act, the Bahamian Legislature may be taken to have assumed the general correctness of the Atkinson line of authority.  The Constitution does not include, in article 19(1) or elsewhere, the specific provisions which obliged the Divisional Court to distinguish the Atkinson line of authority in Kashamu.  The Constitution allocates to the Supreme Court, not to magistrates, the jurisdiction to redress constitutional grievances.  Thus the magistrate was right to rule as she did.

(2)    Good faith

29.	In reliance on section 11(3)(c) of the 1994 Act the appellant contends that the accusation made against him in the second extradition request is not made in good faith in the interests of justice.  The facts relied on to support this complaint are very much the same as those relied on as evidence of abuse.  The courts below found nothing to support this complaint.  Nor does the Board.

(3)    Lapse of time

30.	In reliance on section 11(3)(b) of the 1994 Act the appellant contends that, having regard to all the circumstances, it would be unjust or oppressive to extradite him by reason of the time which has elapsed since the date of the alleged offences on which the second extradition request is based.  There is indeed a substantial lapse of time from the period of the conspiracy charged (June 1995-1997) until September-November 2002, when the appellant first advanced his case on abuse before the magistrate, or March-August 2003, when he first advanced that case before a court with jurisdiction to entertain it:  Kakis v Government of the Republic of Cyprus [1978]  1 WLR 779, 782.   To bring himself within section 11(3)(b) a person must show injustice or oppression caused by the passage of time on the facts of the particular case: R v Governor of Pentonville Prison, Ex p Narang [1978]  AC 247, 290;  R v Secretary of State for the Home Department, Ex p Patel (1994)  7 Admin LR 56, 66. 

31.	The Board was referred to the valuable analysis of delay in the context of extradition made by the Divisional Court (Simon Brown LJ and Royce J) in Woodcock v Government of New Zealand [2003]  EWHC 2668 (Admin), [2004] 1 WLR 1979, from which it would extract and endorse the following propositions.  First, the question is not whether it would be unjust or oppressive to try the accused but whether, under the 1994 Act, it would be unjust or oppressive to extradite him (para 20).  Secondly, if the court of the requesting state is bound to conclude that a fair trial is impossible, it would be unjust or oppressive for the requested state to return him (para 21).  But, thirdly, the court of the requested state must have regard to the safeguards which exist under the domestic law of the requesting state to protect a defendant against a trial rendered unjust or oppressive by the passage of time (paras 21-22).  Fourthly, no rule of thumb can be applied to determine whether the passage of time has rendered a fair trial no longer possible:  much will turn on the particular case (paras 14-16, 23-25).  Fifthly, “there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive” (para 29).

32.	The mounting of a successful defence to the May 2000 indictment may no doubt be harder for the appellant than if the second extradition request had been made more promptly following the offences charged.  But it does not seem likely that the defence would ever have depended on documents which no longer exist or the oral evidence of witnesses whose recollections have faded.  It seems unlikely that the integrity of any trial would be compromised by the passage of time and that, if it were, the domestic law would fail to provide procedural safeguards.  The Board finds no reason to differ from the courts below on this sub-issue. 

(4)    Failure to disclose

33.	The appellant complains that the Government has wrongly failed to disclose documents relevant to the credibility of the three main prosecution witnesses against him.  The magistrate did not accept this submission, ruling that the Government had not failed to disclose any material information that might benefit the appellant.  The judge for his part accepted that the Government was subject to a duty to disclose details of prior statements made by witnesses that might tend to throw doubt on their reliability, and that earlier inconsistent statements should be disclosed if they existed, but he accepted the evidence that no such statements existed and therefore held that there was on the facts no duty to disclose.  The Court of Appeal upheld his decision (see the judgment of Sawyer P and Churaman JA, para 34;  Ganpatsingh JA, paras 21-22).  The Board has no reason to differ.

34.	Some doubt has arisen concerning a requesting state’s duty of disclosure in extradition cases.  Giving the judgment of the Divisional Court in R v Governor of Pentonville Prison, Ex p Lee [1993]  1 WLR 1294, 1300, Ognall J distinguished between extradition proceedings and domestic criminal proceedings, observing that “fairness is not a criterion relevant to the function of the committing court”.  It was suggested in R v Governor of HMP Brixton, Ex p Kashamu (Divisional Court, 6 October 2000, unreported) that this observation could not stand in the light of articles 5 and 6 of the European Convention, but in Lodhi v Governor of HMP Brixton [2001]  EWHC Admin 178, paras 108-115, Ognall J’s judgment was held by another Divisional Court to remain good law.  This was because it had been held by the European Commission in Kirkwood v United Kingdom (1984)  6 EHRR CD 373  that article 6 has no application to extradition proceedings.

35.	The Board would hesitate to adopt the full breadth of Ognall J’s observation.  There are many respects in which extradition proceedings must, to be lawful, be fairly conducted.  But a requesting state is not under any general duty of disclosure similar to that imposed on a prosecutor in English criminal proceedings.  It does, however, owe the court of the requested state a duty of candour and good faith.  While it is for the requesting state to decide what evidence it will rely on to seek a committal, it must in pursuance of that duty disclose evidence which destroys or very severely undermines the evidence on which it relies.  It is for the party seeking to resist an order to establish a breach of duty by the requesting state.  The Board would endorse the general approach laid down by Mitting J (sitting with Lord Woolf CJ in the Divisional Court) in Wellington v Governor of HMP Belmarsh [2004]  EWHC 418 (Admin), para 26.  In the present case the appellant has failed to discharge the burden lying on him.

36.	For all these reasons the Board will humbly advise Her Majesty that the appellant’s challenge to the Court of Appeal’s judgment of 28 April 2004 on the second extradition request should be dismissed and the committal order made on that request must stand.  There is, however, an outstanding application for habeas corpus by the appellant, referable to the second request, based on section 7(1)(c) of the 1994 Act and the kingpin grounds referred to above.  This was to have been heard in the Supreme Court by Small J on 12-13 May 2005, but in deference to a strong indication given by the Court of Appeal when allowing the Government’s appeal in relation to the first extradition request on 11 May 2005, he adjourned the hearing to await the Board’s judgment on the appellant’s appeal against that decision.  That application has not therefore been the subject of argument or decision.  The Board forbears to make any observation about it.

37.	The parties are invited to make written submissions on costs in relation to both appeals within 21 days of this judgment.