King v Attorney General and Minister of Foreign Affairs

• Jurisdiction: Antigua and Barbuda
• Judge: Ramdhani J.
• Judgment Date: 19 April 2017
• Neutral Citation: AG 2017 HC 4
• Docket Number: ANUHCV 2012/0220
• Court: High Court (Antigua)
• Date: 19 April 2017

High Court

Ramdhani, J. (Ag.)

ANUHCV 2012/0220

King

and

Attorney General and Minister of Foreign Affairs

Appearances:

Dr. David Dorsett and Mr. Fitzmore Harris for the claimant/applicant

Ms. Bridget Nelson, Senior Crown counsel for the Attorney General and the Minister of Foreign Affairs

Mr. Anthony Armstrong, Director of Public Prosecutions for the United States Government

Cases considered:

1. A and others v. United Kingdom (App no 3455/05) - [2009]

2. Amand v. Home Secretary and Minister of defence or Royal Netherlands Government [1943] AC 147Government of United States v. Bowe [1990]

3. Arorangi Timberland Ltd v. Minister of the Cook Islands national Superannuation Fund [2016] UKPC 32

4. Atanasova v. Holloway & Amor [2009] EWHC 2740 (Admin)

5. Attorney General v. Issac ANU HCVAP 2015/0014

6. Attorney General of Barbados v. Joseph and Boyce [2006] CCJ 3 (AJ), 87 WIR 178

7. Bahamas Hotel Maintenance & Allied Workers v. Bahamas Hotel Catering & Allied Workers. [2011] UKPC 4 at [23]

8. Belize Alliance of Conservation Non-Governmental Organisations v. Department of the Environment [2004] UKPC 6 at [86]-[87]

9. Bentley v. The Government of the USA [2005] EWHC 1078 Admin

10. Boddington v. British Transport Police [1999] 2 AC 143

11. Bushell v. Secretary of State for the Environment [1981] AC 75

12. Central Broadcasting Services Ltd v. Attorney General of Trinidad and Tobago [2006] UKPC 35, [2006] 1 WLR 2891

13. f CanadaDH and others v. Czech Republic - (2007) 23 BHRC 526

14. Fuller v. A.G. 79 W.I.R 173

15. Garcia Alva v. Germany [2001] ECHR 23541/94

16. Government of United States v. Bowe [1990] 1 AC 42

17. Hamza and others v. Secretary of State for the Home Department 455/11

18. Ismail v. Secretary of State for Home Department [2013] EWHC 663 (Admin). [2013] WLR (D) 133

19. Knowles Jr v. United States of America & Anor (The Bahamas) [2006] UKPC 38 (24 July 2006)

20. Lucas v. Chief Education Officer [2015] CCJ 15 (AJ), 87 WIR 178

21. Matthews v. Ministry of defence [2003] UKHL 4, [2003] 1 AC 1163

22. Maya Leaders Alliance v. The Attorney General of Belize [2015] CCJ 15 (AJ), 87 WIR

23. Mooren v. Germany (App no 11364/03) - [2009]

24. Opara v. N.E.O.C.C. Warden Case NO. 4: 14 CV 0827 (N.D.) Ohio, 2014

25. Omar v. France judgment of 29th July, 1998(43/1997/827/1033

26. Peerless Ltd v. Gambling Regulatory Authority [2015] UKPC 29 at [21]

27. R (Bermingham) v. Director of SFO [2007] QB727

28. Rahmatullah v. Secretary of State for Foreign and commonwealth Affairs [2011] EWCA Civ 11155540, [2012] 1 WLR 1462 at [43]

29. R (Lumba) v. Secretary of State for Home Department [2012] AC 245; [1998] AC 539

30. R (Guisto) v. Governor of Brixton Prison [2004] 1 AC 101

31. R (on the application of Allison) v. Secretary of State for the Home Department - [2001] EWHC Admin 506, [1998] AC 539

32. R (Rotterham Metropolitan Borough Council) v. Secretary of State for Business, Innovation and Skills [2015] UKSC 6, [2015] PTSR 322 at [61]

33. R (Saifi) v. Governor of Brixton Prison [2001] 1 WLR 34

34. R v. Chief Constable of the Merseyside Police ex parte Calveley and Others [1986] Q.B.

35. R v. Horseferry Road Magistrates' Court, ex p Bennett [1994] 1 AC 42

36. Reinprecht v. Austria (App no 67175/01) - [2005] ECHR 67175/01

37. Secretary of State for Education and Science and Tameside Metropolitan Borough Council [1997] AC 1014

38. Sharma v. Brown-Antoine and others [2006] UKPC 57, [2007] 1 WLR 780

39. Solomon v. Shuster MNI HCVAP2014/0004

40. St. Kitts Development Ltd v. Golfview Department Ltd SKN HCVAP2003/024 at [18]

41. Sutej v. The Governor of HMP Holloway and Another; [2003] EWHC 1940 (Admin)

42. Svipsta v. Latvia [2006] ECHR 66820/01

43. Texan Management Ltd. Pacific Electric Wire & Cable Co. Ltd. [2009] UKPC 46;

44. The Extradition Act 1993 of Antigua and Barbuda

45. The State v. Brad Boyce 65 WIR 65.

46. Thomas v. Gonsalves Civil Appeal. No. 9 of 2014 SVG HCVAP 2014/0009 at [15]

47. Toussaint v. Attorney general of Saint Vincent and the Grenadines [2007] UKPC 48, [2007] 1 WLR 2825

48. Umirov v. Russia (App. No. 17455/11) –

49. United States v. Ray L. Corona and Rafael Corona 804 F 2d. 1568

50. United States v. Broecker CR NO. 112-97-C (W.D. Ky.,2012)

51. U.S. v. Hickey, 580 F.3d 922 (9th Cir., 2009)

52. United States v. Miner No. 3:11-cr-25 (E.D. Tenn'2012)

53. United States v. Goff, 187 Fed. App'x 486, 491 (6th Cir. 2006)

54. United States v. Stricklin 591 F.2d 1112

55. Warren v. Attorney General for Jersey [2011] UKPC 10.

56. Watson v. Fernandes [2007] CCJ 1 (AJ) at [39]-[40]

Civil practice and procedure - Whether the court had jurisdiction to grant the orders sought — Whether the application for judicial review was properly before the court — Whether the claimant satisfied the court that the application for leave to apply for judicial review was properly before the court — Whether the new ‘superseding’ indictment showed that the United States no longer required the return of the claimant — Whether the proceedings had been overtaken.

Constitutional Law - Whether the omission of the Extradition Act, 1993 in providing the claimant with a right of appeal from the judge's refusal to grant Habeas Corpus deprived him of the protection of the law guaranteed by the protection of the Constitution of Antigua & Barbuda — Whether section 13 of the Extradition Act provided for a right of appeal to a requesting state to appeal to the court of appeal and beyond.

Held: Dismissing the claim for constitutional relief and the application for leave to apply for judicial review, and making no order as to costs, that:

• 1. A Constitutional Court has the jurisdiction to bar the extradition of any person against whom the extradition process has commenced if it is shown that the process has caused the breach of one or more of his fundamental rights. Breaches of the Constitution may or may not amount to breaches of a subject's fundamental right for the purposes of the exercise of this jurisdiction.

• 2. Extradition proceedings are not to be equated with the actual trial of the underlying charges on which the extradition is sought. Laws which govern the extradition process must in any event meet constitution muster and must be consistent with rights of access to justice and the protection of the law as required by sections 3, 5 and 15 of the Constitution of Antigua and Barbuda. At the minimum this will mean that the extradition process must be subjected to judicial scrutiny, where the process is truly adversarial, and there must be equality of arms.

• 3. The Extradition Act 1993 provides to a person who has been committed for extradition by a magistrate a right to apply for habeas corpus to the High Court. No order for return may be made by a Minister when such an application is pending. If habeas corpus is refused, there is no right of appeal given by the Act and the general provisions of section 31(2)(a) of the Eastern Caribbean Supreme Court Act which bars appeals to the Court of Appeal in civil matters which arises from a criminal cause or matter dispenses with any notions that an appeal lies to the Court from a refusal to grant a Writ of Habeas Corpus. Section 8 of the Act, however, gives to person who has been committed for extradition to make an application to the Court of Appeal to have a committal reviewed. Section 8 also designates the Court of Appeal as an ‘appropriate authority’ and is given power and discretion to bar the return on matters set out in section 8 of the Act. This right to apply for a review is properly to be exercised after the High Court has confirmed a committal on a Habeas Corpus application. The Minister's power under section 14 of the Act to order a return is not stayed by an application for a review to the Court of Appeal.

• 4. Section 12 of the Extradition provides to a requesting state where the court of committal refuses to make an order of committal, a right to question those proceedings on the ground that it is wrong in law by applying to the court refusing to make the committal to state a case for the opinion of the High Court on the question of law involved. By the express provisions of section 12 of the Act, overriding section 32(1)(a) of the Eastern Caribbean Supreme Court Act, where the High Court dismisses such an appeal, the requesting state has a right to appeal to the Court of Appeal. By virtue of the express provisions of section 122 of the Antigua and Barbuda Constitution there is the possibility of an appeal to the Privy Council from a decision of the Court of Appeal. Once any of these appeals rights have been engaged on behalf of the requesting state, the person may continue to be detained or released on bail as the case may be.

• 5. The differences as there are in access to justice rights given to a person whose return is sought and to the requesting state do not offend the protection of the law rights and the access of justice rights as are found in sections 3, 5 and 15 of the Antigua and Barbuda Constitution. These implied and express constitutional safeguards require that in extradition matters certain minimum standards of fairness be attendant to the proceedings, but do not require that a right of appeal from a refusal to grant a Writ of Habeas Corpus be given the person whose return is sought. In the context of the equality of arms principle, having regards to the rights of appeal given to requesting states, it is sufficient that the person has a right to make an application to the Court of Appeal to review the committal, and then possibly file an appeal to the Privy Council from the decision on that review. For these reasons, the differences as there are in access to justice rights are justifiable, and further they do not amount to a breach of section 14 of the Constitution as being discriminatory against a person whose return may be sought as no ‘different treatment’ has been afforded the requesting state on the basis of...