COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT
Common Law 2459/2002 and 11/2004

IN THE MATTER OF The Extradition Act 1994

AND

IN THE MATTER OF An Application for A 
Writ of Habeas Corpus ad Subjiciendum

Between

SAMUEL KNOWLES JR.
Applicant

AND

THE GOVERNMENT OF THE
UNITED STATES OF AMERICA
AND
THE SUPERINTENDENT OF PRISONS OF
THE COMMONWEALTH OF THE BAHAMAS

AND

IN THE MATTER OF The Extradition Act 1994

AND 

IN THE MATTER OF A Judicial Review

Between

SAMUEL KNOWLES
Applicant

AND

THE MINISTER OF FOREIGN AFFAIRS OF
THE COMMONWEALTH OF THE BAHAMAS
AND 
THE ATTORNEY GENERAL OF
THE COMMONWEALTH OF THE BAHAMAS
Respondents

Before:			The Honourable Mr. Justice Lyons

Appearances:	Mr. R. Minnis for the Applicant.

	Mr. F. Cumberbatch for the Respondents.

28 September 2006

	I have before me today a matter of Samuel Knowles and the Attorney General.  The case has received a great deal of publicity over the years and scheduled to be heard before me today, was a Habeas Corpus application by Mr. Knowles in respect of what can be termed as the Kingpin Act.  

I set the matter down for hearing on the 18 August.  On the 28 August, however, Mr. Knowles was removed from the jurisdiction and extradited to the United States.  I understand he is presently in Miami going through the process of being brought to trial there.  
I think it fair to say that this matter of the extradition of Samuel Knowles has wound a long course.  I understand some six years.  During that time a great number of strategies and tactics have been employed by both parties.  The courts do not have objection to the legitimate use of tactics and strategies in both criminal and civil proceedings.  The question that always looms in the minds of counsel and court is when do those strategies and tactics no longer become legitimate but fall into the category of an abuse of process?  I think it fair to say that the use of strategies generally involves, if I may use a term, sailing close to the wind.  A close-hauled case is permissible.  (I.e.: sailing close to the wind.  Luffing (sailing too close to the wind such that the sails flap) is not.

When I speak in this decision of abuses of process, as I will have to speak of, I must point out that I am not in any way making a personal criticism, nor political one, if that be the case.  I have been here long enough to know how much politics and personal issues play in public debate.  It is not my position to enter into that although there are times such as in cases like this where like it or not what a judge says or does, becomes part of the public debate.  I am familiar with this case.  I was involved in one facet of it.  In my involvement with it to date I was not able to see that in any sense that the counsel involved did anything but fight their hardest.  You cannot ask much more from counsel.

The facts of the matter are fairly well known but I will just briefly go through what I see as the salient points.

Samuel Knowles was the subject of extradition proceedings brought under our extradition treaty with, in this instance, the United States of America.  He had been indicted by a grand jury in the United States in respect of allegations that he was involved in a conspiracy to import drugs into the United States.  An order was made now some five or six years ago by Magistrate Bethel that he be extradited.  An Habeas Corpus application was brought before Mr. Justice Jon Isaacs.  That application was successful.  That decision by Mr. Justice Isaacs was appealed to the Court of Appeal.  The Court of Appeal reversed the judge’s decision.  In turn that decision went to the Privy Council.  The Privy Council by majority upheld the Court of Appeal decision.  There was, however, a very strong dissenting judgment.

The applicant for extradition, the United States Government, through the Office of the Attorney General (fairly soon after Mr. Justice Isaacs handed down his decision there being some debate as to whether that decision was appealable as the law then stood), decided to bring a second extradition application in respect of other charges that Samuel Knowles had been indicted on by the grand jury.  Again Magistrate Bethel ordered his extradition.  That matter came before me by way of an application for Habeas Corpus.  In May of 2003 I dismissed that application and ordered in effect that Samuel Knowles should be extradited in accordance with the Learned Magistrate’s order.  That decision was appealed.  The Court of Appeal dismissed that appeal.  The matter move then headed, (the second extradition request), to the Privy Council.

At around the time that that was going on, counsel for Samuel Knowles brought an application under the Extradition Act claiming that Samuel Knowles would not get a fair trail in the United States.  They cited in support of that what is known as “the Kingpin Legislation” in the United States.

Just to explain what the Kingpin Legislation is.  The citation is, the Foreign Narcotics Kingpin Designation (Act 21 USC 1901 – 1908).  Its purpose is to deny significant foreign narcotics traffickers their related business and their operatives access to the US financial system and all trade and transactions involving US companies and individuals.

The Kingpin Act authorizes the President to take these actions when he determines that a foreign narcotics trafficker presents a threat to the national security, foreign policy or the economy of the United States.  The Kingpin Act provides the criminal penalties of those who effectively deal with persons who are designated drug traffickers as per the Act.(1)

On the 31 May 2002 by press release from the Office of President George Bush, Samuel Knowles was added to what we call the Kingpin list.  The release said, “Samuel Knowles is a citizen of The Bahamas.  Knowles was first indicted on May 25 2000 by Federal Grand Jury in the Southern District of Florida for smuggling cocaine.  The Grand Jury returned a separate indictment on December 8 2000 and charges of conspiracy to possess with intent to distribute cocaine and marijuana, conspiracy to import cocaine and marijuana, possession with the intent to distribute cocaine and marijuana and importation of cocaine and marijuana.”  (ibid (1))

Samuel Knowles was added to the list.  There already appeared on that list some designations by the administration.  Two persons were previously put on that Kingpin list by the administration.  Their names have some significance as I move through this ruling.  The names are Noel Timothy Heath and Glenroy Vingrove Matthews.

As it transpired in July 2004, Mr. Justice Small delivered his decision on the Kingpin application.  His Lordship considered that Samuel Knowles could not get a fair trial in the United States, the effect being that in respect of the first extradition proceedings Samuel Knowles should be released from custody.  He could not be extradited on those first proceedings.  

At that time the Crown had no right of appeal from a judge at first instance on such an Habeas Corpus application.  The decision of Mr. Justice Small was appealed to the Court of Appeal.  The Court of Appeal upheld the appeal and effectively reversed Mr. Justice Small’s decision.  That matter, of course, went to the Privy Council.  The Privy Council in July of this year decided that the Court of Appeal was not vested with the power to hear an appeal from Mr. Justice Small’s decision and thus that decision (whatever the merit) must stand.  

I understand that the Extradition Act has now been amended where the Crown have a right to appeal from a first instance judge’s decision on a Habeas Corpus application.

Be that as it may though, the Privy Council in the same decision considered the second extradition request (that is the appeal from my decision of May 2003).  The Privy Council upheld the Court of Appeal decision, which meant effectively on that second extradition application, Samuel Knowles should be extradited.  

There remains, however, a similar Kingpin application for a Writ of Habeas Corpus relative to the second application.  The grounds were identical and the arguments, as best as I can understand, would have been identical to those put before Mr. Justice Small on the first application.

The Privy Council in the decision of the 24 July 2006 noted that the Habeas Corpus application was current.  Their Lordships did not comment much further on it other than to express a sentiment that Samuel Knowles had a difficult task in front of him.  It would, of course, have been inappropriate for their Lordships to say anything else because the application was still to be determined by the court here and there was nothing before them relative to that second Habeas Corpus application.

The second Habeas Corpus application, (the Kingpin application), was before Mr. Justice Small in his docket.  The learned judge had adjourned the matter pending the outcome of the appellate court’s decision relative to his first judgment.  Mr. Justice Small has since retired and in the course of the administration of the courts it fell to me to take over Mr. Justice Small’s list.  This and many others I have presently on my plate.

As I have said on the 18 August in the process of case management the matter was called on and I set the matter for hearing today.  As I said, in the intervening period Samuel Knowles has been extradited to the United States.

Mr. Minnis, as counsel, has made an application today pursuant to Order 54 rule 1 of the Supreme Court Rules that the court issue an order, a Writ of Habeas Corpus, requiring that Samuel Knowles be brought back into the jurisdiction so that he can be given due process and his application, the second Kingpin application, go through the process of, no doubt, past this court to the Court of Appeal and then to the Privy Council.  

Mr. Minnis’ argument is in theory quite correct.  That we have a process.  That process is to allow parties to come to court at first instance and then go through the process of appeal to our final court of appeal, the Privy Council.  The Privy Council decision is final.

Mr. Minnis seeks an adjournment submitting that the court should issue the Writ of Habeas Corpus that Samuel Knowles should be brought back to The Bahamas.  When back here then, of course, the second Kingpin application should be heard.  Mr. Minnis also foreshadowed that during this process that the Attorney General and the Minister for Foreign Affairs should appear before the court to explain their position.  

Whilst he did not delve deeply into this, (there was probably no need), I could readily see his position.  He foreshadowed that the court should consider contempt proceedings against the Attorney General and the Minister for Foreign Affairs and furthermore that the actions of those two officers of the State should be seen as breaching the doctrine of the separation of powers.  What he is saying is, that there is a court process.  That the Attorney General and the Minister of Foreign Affairs short circuited that court process and acting with undue haste and in an abuse of their executive powers, simply removed Samuel Knowles out of the jurisdiction thereby preventing the court from hearing his application.  

Mr. Minnis cited cases.  In Re Thompson (2) where the judges had some very frank words to say about executive actions short-circuiting court processes.

I intend to deal in this decision with the wider issues that need to be dealt with so as to bring focus to Mr. Minnis’ more narrow application.

My starting point in this is to express what my understanding is of the doctrine of separation of powers and the duties of the Attorney General and by association the Minister of Foreign Affairs.  The Minister of Foreign Affairs is, of course, the final word on extradition matters.  It is under the Minister’s hand that the extradition order is signed and under the Extradition Act, of course, the Minister has a wide discretion.

Without becoming too academic, my understanding of the separation of powers as is established by our Constitution (our supreme law), is that the governance of our country is in the hands of the Executive, (that is the Prime Minister and his Cabinet), the legislature, (which is the Parliament that includes both the elected members of the administration and the elected members of the opposition) and then the third organ of Government charged with the collective responsibility of giving good governance is, of course, the Judiciary.  The Judiciary’s task is to interpret and administer the law.  

The doctrine of separation of powers is established by the Constitution.  It is maintained by observance of those constitutional obligations and also those traditional and well established criteria called conventions.  The conventions are unwritten rules for acting in a way that establishes and maintains good governance.  Each of the three organs has a definite role to play.   There are times when there are those gray areas.  The Executive and the Legislature on those times have to be careful not to transgress on the others powers.   The Judiciary has to be careful not to transgress on the role of the Executive or the Legislature.  When that happens there is a risk of a constitutional crisis.  There may be times when the Executive is a little over zealous.  There may be times when the judges can be a little over zealous and rather than interpret legislation have attempted to write it.  It is a balancing act.  Persons who have been elected or appointed to be part of the triad of government (whether it be on the bench or in the Parliament or in the Executive) are credited with sufficient understanding, intellect, sensitivity and mutual respect to be able to understand where the limits are and work within them.

The Attorney General plays a pivotal role in this.  The Attorney General’s position is somewhat unique.  It is secured by our Constitution.  (Article 78).  Traditionally the Attorney General is the lawyer for the government, the legal advisor to the government.  It is said that the role of the Attorney General started in England as long ago as 1243 when one Lawrence Del Brooke was appointed as the professional attorney appearing on behalf of the sovereign for the princely sum of £20.00 a year.  He held that position for fourteen years.  There have been some notable persons such as Sir Francis Bacon.  In 1614 he was appointed the Attorney General of England.  The Attorney General enjoys independence.  It is called the doctrine of independent aloofness.  The Shawcross principle is another principle.  That means in effect that the Attorney General is expected to provide objective, independent advice to the government.  The Cabinet is expected to act on that advice.  If not the Attorney General is placed in a position of having to resign.  In 1977 an Australian well known to the Bahamas, the Honourable Robert Ellicott was then Attorney General of Australia.  Mr. Ellicott found himself in a position that the Cabinet was not accepting his advice and were trying to influence his advice.  Being a highly principled man and a person who well knew his position Mr. Ellicott resigned. 

The Attorney General is the chief law officer for the Crown and also the Attorney General is the leader of the Bar.  The Attorney General receives advices on law from lawyers in the Attorney General’s employ but in matters of Extradition, (the international matters), the Attorney General does not have to follow the advice of those officers.  (Article 78 (4)(b)).  In an instance such as this the practicalities are that the Attorney General seeks advice that advice is passed on to the Minister of Foreign Affairs.  The protocol is that that advice remains privileged.  The constitutional convention is that the Minister of Foreign Affairs follows that advice.(3)

The curious thing that happened in this particular case (and I can understand where Mr. Minnis is coming from) is that there was an application for Judicial Review in respect of the first extradition matter (Public Law matter 11 of 2004).  Samuel Knowles was the applicant.  The Minister of Foreign Affairs and the Attorney General were respondents.  It sought to prevent the extradition of Mr. Knowles until such time as all matters had been completed.  There was an interim order by Madam Justice Thompson injuncting the extradition.  The matter was resolved before Mr. Justice Small on the 21 May 2004 with the following order.  “It is ordered by consent that Mr. Samuel Knowles will not be extradited until all legal processes are complete in respect of both extradition applications against him.”  

This is Mr. Minnis’ point.  Both extradition applications had not, in his submissions, been completed.  He says that not only should Mr. Knowles be brought back into the jurisdiction for the final leg of his extradition proceedings but that the respondents to Public Law 11 of 2004 should be brought before the court to explain why they extradited him when the applications were not completed.  

There is no beating around the bush.  What he is saying is that the acts of the Minister of Foreign Affairs and the Attorney General were contemptuous.  He will be seeking my leave (and in fact I could of my own motion grant leave) to commence contempt proceedings against the respondents if I was satisfied that a contempt of court had likely been committed.  I have no doubt that ministers of the Crown even as senior as the Attorney General and the Minister of Foreign Affairs can answer to the courts in contempt proceedings. (4) 

Contempt of court is a very serious matter.  It is punishable by fine or term of imprisonment.  It is only at recent times, perhaps in the last eighty years, that a fine has been an option.  Prior to that contempt of court was visited upon with a term of imprisonment.  Obviously our courts could not function if persons were contemptuous of our court orders.  One would expect that persons of such high office as the Attorney General and the Minister of Foreign Affairs would be expected to obey court orders.  If it were to be that those persons, in this particular instance, (both of course members of the Bar, one being a leader of the Bar), were seen to get away with actions contemptuous of the court’s orders, how could you possibly expect others to observe the rule of law?  It would be expected that very serious measures would be taken against such bearers of high office.

The question then I must determine is whether I feel that there are grounds to grant leave for contempt of court proceedings or if I wish to exercise my own discretion and simply order that the Minister of Foreign Affairs and the Attorney General appear and show cause.

I know this about the law of contempt.  The first thing is that the order allegedly breached must be unambiguous.  Intent is not a question.  Mesne rea is not an issue.  It is strict liability.  The burden of proof in establishing a contempt is beyond a reasonable doubt.  It is not the mere balance of probabilities.  It is a very serious matter.  Custodial sentences are imposed so that it makes sense that the criminal burden of proof beyond a reasonable doubt applies. (5)

Looking at the order of Mr. Justice Small of the 21 May it spells out the general obligations of parties before the court; that is not to do anything to defeat the court’s order until the court process is complete.  Looking at it, it says that Samuel Knowles will not be extradited until “all legal processes are complete”.  

The critical words, in my view, are the words, “are complete”.  When is a matter complete?  That is the possible ambiguity.  Is a matter complete when all processes are taken through to their finality?  Or is the matter complete when all legitimate avenues are shut off?  They need not necessarily be at the same point.  In this instance arguably they are not.

Mr. Cumberbatch for the Crown pointed out to me the decision of the Privy Council of the 28 November 2005 in the matter of Noel Heath and Glenroy Matthew v Government of the United States of America.  It was an appeal from the Court of Appeal of St. Christopher and Nevis. (6)   As I said, the names Noel Heath and Glenroy Matthew would resurface.  This was a decision I was aware of when I set the matter down on the 18 August.  I did remark to Mr. Minnis that he would need to get around Matthew’s case.

Matthew’s case is a very strong decision by the Privy Council.  It is trite law that we are bound by those decisions of the Privy Council even if they are decisions of another jurisdiction so long as they are decisions on the same point.  In Heath and Matthew’s position they too, as I have said, were on the Kingpin list.  They were designated drug traffickers.  Their extradition proceedings commenced, I believe, in 1996. I understand that it was during the administration of President Bush that they were put on the list.

This is what the Privy Council had to say about it: -

	“Designation

The evidence is that the President’s designation of these appellants (as two of thirteen individuals) under the title “Foreign narcotics Kingpin” was announced in a press release on 1 June 2000, is contained in a US Government public website, has been published by the press, and may well be published again in connection with their proposed trial.  And this is so, Mr. Fritzgerald points out, despite specific provision being made in the legislation for a person’s name not to be disclose dif the US Attorney general determines that such disclosure may jeopardize the integrity or success of an ongoing criminal prosecution (the extradition proceedings having at the date of disclosure already been in progress for some four years).  Put succinctly, it is Mr. Fritzgerald’s basic submission that the United States courts would be unable to safeguard the appellants against the prejudicial effects of their designation.  He recognizes, as he must, that to avoid extradition on this ground he ahs to establish a real risk that the appellants will suffer a flagrant denial of justice in the requesting state.  The evidence, he submits, supports such a conclusion.

Their Lordships regard this as an impossible argument”.

Their Lordships then went on to quote Boodram’s case found at (1996) WIR 459 at 495 and The Republic of Argentina v Mellino [1987] 1 SCR 536 at 558.  And their Lordships ruling was that it was for the United States court to decide the issue as to whether or not in the circumstances of publication and designation on the Kingpin list, the designee, shall I say, could or could not get a fair trial.

	The important part of this decision is what their Lordships have said.  That they regard this as an impossible argument.  That is not saying that they think it is hopeless.  That is not saying that it is weak.  That is not saying that it lacks force.  Their Lordships are saying, this is an impossible argument.

	I do not think I have read a decision of any court that has said of an argument that it is impossible.  That is as strong as you can get.  That is less chance of success that the proverbial snowball in Hell.  In must then be accepted that Samuel Knowles continued argument on the second application under the Kingpin Act was impossible.  It was guaranteed to fail.

	The question then before the Attorney General, (I do not know what the advice given to the Attorney General was), but obviously the Attorney General had come to the understanding that Samuel Knowles could go nowhere else with any arguments before the courts in this country.  His only argument left open to him was impossible.  On that understanding of the facts, is it not open to the Attorney General to come to the conclusion that for all practical intents and purposes the proceedings, the legal processes open to Samuel Knowles were complete?  I do not have to answer that question.  It is only that I need pose it because when considering contempt applications I have to be mindful that I should not call on any party to show cause for contempt, if a judge can readily see on the face of the facts before the court that there is a strong argument to say the alleged contempt, may not or would not be considered to be in contempt “beyond a reasonable doubt”.  I ask myself this question when I read the strength of the Privy Council’s decision in Heath and Matthews. -  Does that not raise a reasonable doubt in the mind of a reasonable man that the Attorney General and the Minister of Foreign Affairs (as advised by Attorney General) had complied with the order because proceedings were complete? 

I must then look at the process and I think that it is important that we talk about process.  I began my decision by saying that the matter of abuse of process will loom large in this.  In essence what I am about to say will bring into focus, in my mind, the question of breaching the doctrine of separation of powers.

The Attorney General is not only the chief law officer of the Crown but the leader of the Bar.  The Attorney General’s traditional obligation (as is the traditional obligation of the Bar) as an officer of the court and most certainly as the chief legal officer of the Crown, is to protect the independence, the reputation and the image of the Judiciary and the judicial process.  The obligation is there to protect the Judiciary from falling into disrepute or being made a laughing stock.  The obligation is there to protect the Judiciary from any embarrassment either collectively or individually.  The Office of the Attorney General is no place for the faint hearted or those susceptible to compromise as indeed the Bar is no place for the faint hearted nor those too willing to compromise when it comes to matters of principle particularly as it relates to the independence, the reputation and the image of the Judiciary.

What were Samuel Knowles’ options?  He could come along and argue the second Kingpin application.  As the presiding judge on that application, I am bound by the Privy Council’s decision.  His application is impossible.  I would have given Mr. Minnis short shrift as much as that may have disturbed me.  I would have just had to say to him you cannot succeed.  Mr. Knowles, of course, would have had a right to appeal that.  The Court of Appeal would have said the same.  I doubt he would have been given leave to appeal to the Privy Council but, of course, he could have taken a direct application to the Privy Council to appeal there.  If the Privy Council were minded to hear him, they would have just said, it was impossible.  Heath and Matthew would be referred to.  Mr. Fitzgerald in Heath and Matthews is the same Mr. Fitzgerald who represented Knowles in this matter.  Knowles must have had notice of the decision.

Reflect on those facts for a while.  How stupid would our courts look?  Surely others would be entitled to roll back in their chair and laugh their heads off at what a bunch of fools were sitting on the bench in The Bahamas, that we even contemplated and allowed counsel to advance an argument that was positively doomed to fail.  

Counsel is an officer of the court.  Counsel’s first obligation is to the court.  His second obligation is to the client.  

Counsel has no place in bringing an application no mater what counsel’s instructions may be that would cause the court to fall into disrepute or to be made a laughing stock.  Some counsel may say that they are following instructions.  But those counsel must only follow instructions to the point that they are not abusing the process of the court.  Were I to accede to this application, it would allow Knowles to carry on with this impossible task.   After, perhaps another two or three year’s delay, he would have ended up in the same place.  I could order his return to the jurisdiction but in three years time after the appeals have been done he would be back in Miami.  

The question is one of an abuse of process.  The modern doctrine in respect of that comes from Lord Morris in Connelly v the Director of Public Prosecution.  Lord Morris said this: -

“There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction.  I would regard them as powers, which are inherent in its jurisdiction.  A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process”.  (7)

	In respect of what Lord Morris said Lord Lowry in R v Horseferry Road Magistrates Court, (8) Lowry said: -

“Is the first essential is to define abuse of process, which in my opinion must mean abuse of the process of the court which is to try the accused.  Archbald (1992 ed) at paragraph 4.44 calls it “a misuse or improper manipulation of the process of the court”.

	In my opinion to allow some party before the court to pursue an impossible task just to buy time and in the process likely cause the court to become a laughing stock, (I say it that strongly), is to manipulate the court in such a way as to be an abuse of the process.

	Whilst this present application (Order 54 r 1) before me now does not fall into that category, were I to grant it, it is inevitable that an abuse of process would follow. 
 
	I think in the light of those facts and the law, the question has to be posed; - did the Attorney General and the Minister of Foreign Affairs as members of the Bar take decisive action so that this court would not fall into disrepute and so that its processes were not abused? 

	I think that once the facts are known and the known law applied to them, the answer is self-evident.

	I accordingly dismiss the application brought under Order 54 rule 1.  Were I to grant it, an abuse of process would invariably follow.

	The fact of the matter is that Samuel Knowles has reached the end of the road.  He, and his counsel (and the respondents’ counsel) have fought a long hard fight, and with considerable credibility.  But it is over.  No extra time is allowed.

	I thank Mr. Minnis and Mr. Cumberbatch for their assistance.

	I so order.

	Dated the 28 September 2006.

	Delivered ex tempore as approved.

							John Lyons
							Justice