Leroy King v The Attorney General of Antigua and Barbuda

• Jurisdiction: Antigua and Barbuda
• Judge: Pereira CJ,Davidson Kelvin Baptiste,Justice of Appeal,Gertel Thom
• Judgment Date: 18 September 2018
• Judgment citation (vLex): [2018] ECSC J0918-2
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: ANUHCVAP2017/0011
• Date: 18 September 2018

[2018] ECSC J0918-2

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

ANUHCVAP2017/0011

Between:

Leroy King

Appellant

and

[1] The Attorney General of Antigua and Barbuda

[2] The Minister of Foreign Affairs

Respondents

Appearances:

Dr. David Dorsett, with him Mr. Jarid Hewlett, for the Appellant.

Mr. Reginald Armour, SC with him Ms. Vannesa Gopaul and Mrs. Carla Brookes Harris, Deputy Solicitor General for the Respondents.

Mr. Anthony Armstrong, Director of Public Prosecutions, holding a watching brief on behalf of the Requesting State.

Civil appeal — Constitutional law — Originating Motion — Habeas Corpus — Extradition — Breach of fundamental rights — Judicial review — Constitution of Antigua and Barbuda — Constitutional Relief — Mutual Legal Assistance Treaty 1997 — Mutual Legal Assistance in criminal matters (Government of Antigua and Barbuda and the Government of the United States) Ratification Act 2000 — Judge's discretion — Evidence by counsel — Statutory interpretation — Grounds of appeal not pleaded

The appellant, Mr. Leroy King, former Administrator and Chief Executive Officer of the Financial Services Regulatory Commission, was in 2010 subject to an extradition request made by the Government of the United States of America (“United States”).

Mr. King was committed by a magistrate under the Extradition Act of Antigua and Barbuda in 2011 and in 2012 his application for habeas corpus and certiorari was denied by Michel J. His appeal of the dismissal was then dismissed by the Court of Appeal. On 23 ^rd March 2012, the Minister of Foreign Affairs (“the Minister”) signed a warrant for his extradition to the United States and the warrant served on him on 1 ^st April 2012. Prior to that, on 20 ^th March 2012 Mr. King invoked the constitutional jurisdiction of the court by filing an originating motion and further amended his claim on 4 ^th April 2012, claiming breach of his fundamental rights and that the ought not be extradited.

In 2016 the proceedings came before the High Court and Mr. King filed a ‘second application’ in which he sought leave to apply for judicial review arguing breach of section 3 of the Constitution of Antigua and Barbuda and his right to procedural fairness.

On 19 ^th April 2017, Ramdhani J [Ag.] delivered judgment in the court below. The judgment dismissed the originating motion as well as the application for leave to apply for judicial review. Ramdhani J [Ag.] found that the original application for judicial review was bad in law as it failed to set out grounds on which it was based.

After considering all the evidence and facts, the learned judge found that there was no evidence that the Constitution or any of Mr. King's fundamental rights were breached. He also found that there was no interference with Mr. King's right of access to justice and protection of the law. In relation to the second application for leave for judicial review, he found that there was no arguable case of unlawful or unreasonable acts conducted by the Minister.

Being dissatisfied, Mr. King appealed, contending among other things that the learned judge erred in exercise of his case management powers, that he failed to have regard to relevant considerations in respect of the Mutual Legal Assistance Act and that he had misconstrued the provisions under the Extradition Act as it related to Mr. King's access to justice.

Held: dismissing the appeal and awarding costs to the respondent of a portion of the proceedings to be assessed unless agreed upon within 21 days, that:

• 1. The court has a duty to actively manage its cases. The Civil Procedure Rules 2000 (“CPR”) provides the court with the power among other things, to promptly decide which issues need full investigation at trial and those which may be summarily disposed; identify the issues at an early stage; dismiss or give judgment on a claim after a decision on a preliminary issue and try two or more claims on the same occasion. It is clear from his judgment that the learned judge, based on the formulation of the issues by counsel for appellant, as well as his own understanding of the issues, found it unnecessary to separate the originating motion from the leave application. He was entitled, pursuant to his case management powers under the CPR, to adopt such an approach if it facilitated an expeditious and just disposition of the matters.

  Parts 25 and 26 of the Civil Procedure Rules 2000 applied.

• 2. A minister exercising powers of return under section 14(2)(a) of the Extradition Act is not required in all cases to examine the quality of evidence on which committal for extradition was based and that such examination should only be in rare cases and for good cause. The learned judge in the case at bar accordingly held that having regard to the conclusions of the magistrate and the High Court judge, there was no arguable case that the Minister ought to, in the exercise of his judgment, personally examine afresh the quality of the evidence. The learned judge committed no error in so holding based on the evidence which was before him.

  R (on the application of Allison) v Secretary of State for Home Department [2001] EWHC Admin 506 applied; ( R v Secretary of State for Home Department ex p. Susan Hagan and Sally Anne Croft unreported, 15th December 1993) applied; Extradition Act Act No. 12 of 1993, Laws of Antigua and Barbuda applied.

• 3. The principles upon which an appellate court will interfere with the exercise of discretion are well settled. The function of an appellate court in such instances is not to exercise an independent discretion or to interfere with the learned judge's decision simply because this Court would have exercised the discretion differently. This Court would defer to the decision of the learned judge and would only intervene where he did not properly exercise the discretion by error of law or misapprehension of the facts.

  Michel Dufour et al v Helen Air Corporation Ltd. et al (1996) 52 WIR 188 applied.

• 4. The principle for leave to apply for judicial review is that an applicant must show that there is an arguable case, one that is not frivolous or hopeless. The learned judge was correct in refusing the grant of leave for judicial review. The learned judge considered all the issues before him and looking at the matter in the round he weighed the actions of the Minister against the relevant provisions of the Extradition Act in order to determine whether they were in conformity with the Act. There is no arguable case that the Minister's decision is bad in law as in each instance complained of, the actions taken by the Minister fell squarely within the provisions of the Act.

  Sharma v Antoine and others [2006] UKPC 57 applied; Lord Justice Brook, the White Book 2007: Civil Procedure Rules Vol. 1 (Sweet and Maxwell, 2007) considered; Regina v Industrial Disputes Tribunal (Ex parte J. Wray and Nephew Limited) Claim No. 2009 HCV04798 (delivered 23rd October 2009) applied.

• 5. A party is not permitted to re-litigate an issue or matter simply because he wishes to present a different argument. Having failed to exercise his right to apply to the Court of Appeal to have the committal order reviewed, and having not presented any fresh evidence to demonstrate that there is a different factual basis on which this Court may revisit the lawfulness of the committal order, the appellant cannot now through this appeal mount a collateral attack on the committal order. To do such is an abuse of the process of the court.

  Hunter v Chief Constable of the West Midlands Police [1982] AC 529 applied; Hoystead v Commissioner of Taxation [1926] A.C. 155 applied.

• 6. An appellant is not allowed to argue or rely on any ground not mentioned in the notice of appeal without permission of the Court. In this case, the appellant did not submit any application before this Court seeking permission to raise an additional ground of appeal. The Court therefore does not entertain it.

  Rule 64.4(8) of the Civil Procedure Rules 2000 applied.

• 7. The court must be able to correct obvious drafting errors but Parliament is presumed to know the law when passing legislation. In suitable cases, the court will add words, or omit words or substitute words where there are drafting mistakes. Caution must be had when adding, omitting or substituting words in legislation as a statute is expressed in language approved and enacted by the legislature. The Court must consider these three factors before interpreting a statute in the manner described: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. It is clear that Parliament did not intend to replicate the UK Extradition Act 1989. Section 8(9) of the Extradition Act 1993 of Antigua and Barbuda represents a deliberate drafting change in view of allowing the right of review of the committal order to be made directly to the Court of Appeal. No absurdity is thereby created. In the circumstances, a rectifying construction is not required in relation to section 8(9) of the Act,

  Driedger on the Construction of Statutes Driedger on the Construction of Statutes, (3rd ed., Butterworths, 1994) p. 288 applied; Attorney General's Reference SLUHCVAP2012/0018 (delivered 24th May 2013, unreported) applied; Inco Europe Ltd. and Others v First Choice Distribution (a firm) and Others [2000] 1 All ER 109 considered; Section 8(9) of the Extradition Act 1993 Laws of Antigua and Barbuda applied; Section 6(9) UK Tradition Act 1989 ...