The Judicial Committee of the Privy Council Decisions

Heath & Anor v United States of America (St. Christopher and Nevis) [2005] UKPC 45 (28 November 2005)

ADVANCE COPY

Privy Council Appeal No. 58 of 2004

(1) Noel Heath and

(2) Glenroy Matthew Appellants

v.

The Government of the United States of America Respondent

FROM

THE COURT OF APPEAL OF

ST. CHRISTOPHER AND NEVIS

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

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 28th November 2005

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

Present at the hearing:-

Lord Hope of Craighead

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood

Lord Mance

[Delivered by Lord Brown of Eaton-under-Heywood]

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

1. These two appellants, citizens of the Federation of St Christopher and Nevis (the Federation), are wanted by the respondent government (the USA) for trial there on serious drugs charges. Both are alleged to have conspired to supply and import cocaine into the USA, Heath into New York, Matthews into Florida.
2. The USA requested the appellants' extradition as long ago as 24 May 1996 and on 24 June 1996 the Federation's Minister of Foreign Affairs ordered the senior magistrate of the relevant district at that time, Dr Haynes Blackman, to issue warrants for their apprehension.

Extradition in the Federation is governed by the Extradition Act 1870 and it was the magistrate's duty, pursuant to sections 9 and 10 of that Act, to hear the case in the same manner as if the prisoner were charged with an indictable offence committed in England (section 9) and, if the evidence produced would justify the prisoner's committal for trial, to commit him to prison, otherwise discharge him (section 10).

3. On 28 October 1996, following a five-day hearing in August, Dr Blackman ruled that the admissible evidence did not justify the appellant's committal for trial and accordingly he ordered their discharge. Although those discharge orders were quashed in judicial review proceedings on 17 April 1998, the appellants have been at liberty ever since. The intervening years, however, have seen a whole series of proceedings, some described in the opinion of the Board (differently constituted) delivered by Lord Hutton on 19 June 2002 dismissing an earlier appeal – Heath v Government of the United States of America [2002] UKPC 33. (Their Lordships were informed that the third appellant to that appeal, Charles Miller, had subsequently returned voluntarily to the USA and been convicted.) Nothing daunted, the appellants continued to resist their extradition by all means available.
4. To understand the nature of the present appeal some account of the overall course of proceedings is unavoidable; the Board will keep it as short as possible.
5. The appellants were, as stated, discharged from custody by the magistrate, Dr Blackman, on 28 October 1996. In judicial review proceedings then brought by the USA to challenge that decision, Smith J on 17 April 1998 quashed the discharge orders, ruling that the magistrate had erred in law in his consideration of the evidence. The Court's formal order dated 17 July 1998 required the discharge orders to be sent to the Registrar of the High Court and further ordered that the matter be remitted to Dr Blackman for him to resume the hearing in light of the Court's judgment (a judgment which recorded that the magistrate "had already heard and completed the inquiry"), "and to determine whether to commit" the appellants in accordance with section 10 of the 1870 Act.
6. As Lord Hutton observed when later the matter came before the Board: "the proceedings thereafter took an unfortunate course". Following further argument before Dr Blackman on 11 August and 12 October 1998, he ruled on 26 January 1999, remarkably as it would seem, that, because the formal order of 17 July 1998 had omitted, after directing the discharge orders to be sent to the Registrar, a further direction for them then to be quashed, the orders had not in fact been quashed so that it was impossible to resume the hearing; rather the appellants continued to stand discharged.
7. Hardly surprisingly the USA brought a fresh judicial review challenge and on 19 January 2000 Smith J quashed Dr Blackman's order of 26 January 1999, confirming that his own earlier judgment had indeed set aside the original discharge orders. In this second judgment Smith J observed that "now the way would be pellucid for the magistrate to get the [appellants] back before the Court for the purpose of having the law followed which would mean that the magistrate would be bound to commit the respondents on the evidence which had also already been the subject of some scrutiny in this Court", and concluded:

"that would mean that the magistrate is still to effect and carry out the order of this Court made on 17 April 1998 and identified in the document perfected and entered on 17 July 1998. That order was that the magistrate must, in effect, follow the law in this case, that is, to get the [appellants] before the Court, consider the matter in the light of the judgment of the Court delivered on 17 April 1998 and commit the [appellants] under the provisions of section 10 of the Extradition Act, 1870."

8. It was against that judgment (together with Smith J's earlier judgment of 17 April 1998) that the appellants brought their first appeal to the Board. They advanced four principal submissions: first, that the Minister of Foreign Affairs had no power to issue the requisitions to the magistrate on 24 June 1996; second, that Smith J was himself in error in ruling that the magistrate had taken a wrong approach to the evidence before him (in particular by holding that the transcripts of certain tape-recorded telephone conversations, apparently implicating the appellants in the alleged drug offences, were not properly admissible in evidence in the extradition proceedings); third, that section 14 of the Federation's Constitution prohibited the USA's judicial review challenge to the magistrate's original discharge orders made under section 10 of the 1870 Act; fourth, that there had been such delay in the case as to constitute oppression and an abuse of process.
9. Having considered and rejected each of those submissions, the Board advised Her Majesty to dismiss the appeal and remit the case to the High Court. The judgment ended as follows:

"Their Lordships understand that Dr Haynes Blackman has retired from his position as a magistrate, and it will therefore be for the High Court to decide what the next step in the proceedings should be, but it is clearly desirable that the High Court and the parties should act with the utmost expedition."

10. Before passing to the next stage of this long history of proceedings, it is helpful to note the following brief further passages from the Board's judgment:

"34. Before the Board Mr Fitzgerald QC, for the appellants, did not advance any substantial argument that if all the matters referred to by Smith J in his first judgment had been properly in evidence before the magistrate the judge would have been in error in holding that the magistrate should have committed the three appellants to prison pursuant to section 10. But Mr Fitzgerald submitted that the transcripts ... were not properly in evidence before the magistrate.

41. ... their Lordships reject the submission that the High Court was in error in ruling that on the evidence before the magistrate he should have committed the appellants to prison pursuant to section 10 of the 1870 Act."

11. Following the Board's order of 26 June 2002, the appellants, having been notified that the remittal was to be heard by Baptiste J on 16 December 2002, promptly applied to the High Court for constitutional redress, alleging that by reason of the delay it would be unfair and oppressive to continue the extradition proceedings against them. That application was consolidated with the remittal and, following hearings on 16 December 2002, 14 March 2003 and 28 April 2003, Baptiste J on 9 July 2003 dismissed the constitutional application and ordered the senior magistrate of the relevant district "to resume the hearing of the extradition proceedings and commit [the appellants] ... under the provisions of section 10 of the Extradition Act 1870".
12. Once again the appellants appealed, this time to the Court of Appeal of St Christopher and Nevis (Redhead, Saunders and Alleyne JJA) which heard the appeal on 17 and 18 September 2003. Three main grounds of appeal were advanced: first, that the tape-recorded phone conversations were inadmissible, a variation of the argument previously rejected by the Board; second, that the delay (including the delay since the Board's judgment) was such that the proceedings should be discontinued; third, that Baptiste J had acted unconstitutionally in ordering the magistrate to commit the appellants under section 10. The Court rejected all three grounds and dismissed the appeal on 21 October 2003. On 4 November 2003, however, they granted conditional leave to appeal to the Board and on 31 July 2004 final leave.
13. It is this appeal of which the Board is presently seised and the principal argument which Mr Fitzgerald QC now urges upon it is that the judge acted unlawfully in directing the magistrate to commit the appellants under section 10 of the 1870 Act so that the Court of Appeal were wrong to have upheld that order. Mr Fitzgerald acknowledges that at any further hearing the magistrate would be bound by the Board's earlier ruling as to the admissibility and sufficiency of the evidence adduced in the extradition proceedings by the respondent government. But he advances essentially three reasons why the Board should nevertheless conclude that it was wrong to issue mandamus directing the magistrate to commit the appellants. First, he submits that such an order would deny the appellants the opportunity to call or give evidence should they wish to do so. Secondly, he contends that the new magistrate, unlike Dr Blackman who has now retired, would not have heard any evidence in the matter and could not therefore properly commit the appellants under section 10. Thirdly, he indicates that the appellants wish to advance yet further arguments as to why it would be an abuse of process now to extradite them for trial in the USA. Their Lordships will consider these three submissions in turn.

An opportunity to call evidence

14. There can be no question but that in extradition proceedings, just as in committal proceedings, the defendant is entitled if he wishes to call or give evidence with a view to undermining the prima facie case against him. Seldom is such a right exercised, defendants on the whole preferring to keep their powder dry. Its existence, however, is not in doubt — see Re Gross CO/2/98, an unreported decision of the Divisional Court dated 4 June 1998.
15. Critical to Mr Fitzgerald's argument is that the opportunity to give evidence had not already been accorded to these appellants in the course of the original committal hearings before Dr Blackman in August 1996. Is that, however, so? The record of those hearings must be examined. It reveals the following. All three defendants were represented by Dr Fenton Ramsahoye QC. The proceedings against Heath were heard first, the evidence in his case being adduced on 19 and 20 August. At the conclusion of that evidence the record reads: "Dr Ramsahoye QC: 'we are not leading any evidence'". Dr Ramsahoye then addressed the Court, followed by counsel for the USA (whose address continued on 21 August), followed by Dr Ramsahoye in reply. The Court then announced that it would give its decision at a later date and that the proceedings against Matthew and Miller would commence the following morning. The evidence against the defendants in that case was given on 22 and 23 August following which once again Dr Ramsahoye and counsel for the USA addressed the Court. Later, on 28 October 1996, Dr Blackman gave his reserved judgment concluding that in neither case did the evidence adduced by the USA justify the defendants' committal for trial.
16. Having regard to those facts their Lordships are wholly unpersuaded that by the conclusion of the hearing on 23 August the appellants still retained any right to call or give evidence in the committal proceedings. It is essential to the appellants' argument that on 20 August Dr Ramsahoye, so far from having decided not to lead any evidence, as he is recorded as asserting, was in fact indicating instead that he proposed to make a submission of no case to answer, reserving his right, were the submission to fail, to call or give evidence at a later stage. It seems to the Board inconceivable that, had Dr Blackman eventually ruled (as it is now plain he should have done) the other way, it would then have been open to the appellants to call evidence and have the whole case against them considered afresh.
17. Still less does it appear to their Lordships that there was any evidence then available to the defendants which could possibly have refuted the prima facie case against them assuming that the transcripts of the intercepted telephone conversations had been held, as they should have been, admissible. Certainly no such evidence has been suggested: all that is put before the Board is a recent short affidavit from a Mr McBean, Heath's alleged co-conspirator, who pleaded guilty to the charge in 1992 and served 8 years' imprisonment in the USA, baldly stating that he does not know Mr Heath and believes him not to have been involved. Not only would Mr McBean not have been available as a witness for Mr Heath in 1996 but his evidence could hardly have served to defeat the extradition request. Small wonder that Dr Ramsahoye stated that he was not leading any evidence, a statement in truth incomprehensible had he been proposing instead to reserve his position and first make a submission of no case to answer. Their Lordships appreciate that Dr Ramsahoye apparently made no such express statement in Matthews' case, but conclude that logically he must have been adopting the same course there. In short, these cases could hardly be further from the situation arising in Re Gross where the magistrate had expressly refused to allow the defendant's request to call evidence himself.
18. It is not entirely clear when first the suggestion arose in the course of these protracted proceedings that mandamus should not go to direct the appellants' committal because they would thereby be denied their right to give evidence. It appears, however, to have been comparatively late in the day and, for the reasons given, to have been based on a misunderstanding of the true factual position. In their Lordships' view it gains nothing from a certificate dated 26 October 2005 (nine years after the event) signed by Dr Ramsahoye himself, now asserting that he intended to make a no-case submission and did not intend to waive his clients' rights were that submission to be overruled.

Dr Blackman's retirement

19. It is the appellants' submission that, even assuming an order of mandamus could properly have gone to Dr Blackman, it could not go to his successor who would not himself have heard the evidence. Under sections 9 and 10 of the Extradition Act 1870, it is submitted, only the magistrate who hears the case has the authority to commit the defendant to prison, and this is so notwithstanding that, as Mr Fitzgerald concedes, the magistrate would be bound by the Board's previous ruling as to the admissibility and sufficiency of the requesting state's evidence.
20. In their Lordships' view there is nothing in this argument. They recognise that it was apparently by reference to Dr Blackman's retirement that the Board thought it right on the 2002 appeal to remit the matter to the High Court to decide on the next step but their Lordships see no inconsistency between that order and the decision then taken by Baptiste J on the remittal to order the new magistrate to commit. The position is no different from that which can arise on a prosecutor's appeal by way of case stated from a decision of justices. If the Divisional Court conclude that the justices erred in law and that the only proper course open to them was to have convicted, they will send the case back to the justices with a direction to convict and it would be quite immaterial whether or not the constitution of the Bench had meantime changed.
21. It is Mr Fitzgerald's submission that, even assuming that the appellants, by expressly forgoing the right, had lost their opportunity to give evidence before Dr Blackman, by the mere happenstance of that magistrate's subsequent retirement a fresh right to give evidence then arose. It would be very remarkable were this to be so and in their Lordships' view it is not.

The Appellants' proposed further arguments as to why they should not now be extradited

22. Two such arguments are canvassed. First the appellants wish to contend yet again that the delay in their committal is such that it would now be an abuse of process to extradite them to the USA. Secondly they submit, by reference to their formal designation by the President of the United States on 2 June in 2000 as global drug traffickers under the Foreign Narcotics Kingpin Designation Act (the full implications of which were not clear to Mr Fitzgerald until February 2004), that they could not get a fair trial in the USA; there is, submits Mr Fitzgerald, a real risk that they would suffer a flagrant denial of justice.
23. Their Lordships conclude that these arguments fail on two grounds. First, assuming, as their Lordships would hold, that it was proper for Baptiste J on 9 July 2003, pursuant to the Board's earlier judgment, to order the new magistrate to commit the appellants to prison, it matters not whether grounds have subsequently arisen for contending that it would be oppressive or otherwise unfair now to extradite them. Following committal under section 10, it will be for the Minister then to decide whether to surrender them to the requesting state. No doubt it would be open to them to challenge the Minister's decision by judicial review were there good grounds for doing so. That would not, however, invalidate the section 10 committal.
24. Secondly and perhaps more importantly, however, it is their Lordships' view that there is simply no merit in either of the proposed fresh arguments.

(a) Delay

The longer the appellants manage to draw out these proceedings, the longer the delay before they can eventually be extradited for trial. It by no means follows, however, that they can invoke this further delay to establish a case of hardship or oppression. In the first place it is they themselves who are largely responsible for it: as Lord Hutton pointed out in the Board's earlier judgment, it was Dr Ramsahoye's arguments which surprisingly persuaded the magistrate that Smith J's first order had failed to quash the original discharge orders. As for the subsequent delay, this has resulted from the appellants' relentless attempts to thwart the extradition process. Secondly, the appellants can establish no convincing prejudice consequent upon the delay. They have, as stated, been at liberty ever since 28 October 1996. They can hardly complain, although Mr Fitzgerald does, of the sword of Damocles hanging over them. Nor are their Lordships persuaded by the argument that, had they been brought to trial with reasonable expedition, they would have avoided designation under the United States Kingpin legislation in June 2000: their own efforts would inevitably have delayed extradition beyond that date.

(b) 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 Fitzgerald points out, despite specific provision being made in the legislation for a person's name not to be disclosed if the US Attorney General determines that such disclosure may jeopardise 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 Fitzgerald's basic submission that the United States courts would be unable to safeguard the appellants against the prejudicial effects of their designation. He recognises, as he must, that to avoid extradition on this ground he has 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.

25. Their Lordships regard this as an impossible argument. As Lord Mustill said in giving the judgment of the Board in Nankissoon Boodram v Attorney General (1996) 47 WIR 459, 495:

"The proper forum for a complaint about publicity is the trial court, where the judge can assess the circumstances which exist when the defendant is about to be given in charge of the jury, and decide whether measures such as warnings and directions to the jury, peremptory challenge and challenge for a cause will enable the jury to reach its verdict with an unclouded mind, or whether exceptionally a temporary or even permanent stay of the prosecution is the only solution."

26. A convenient statement of that principle in the specific context of extradition law is to be found in Lamer J's judgment in the Supreme Court of Canada in The Republic of Argentina v Mellino [1987] 1 SCR 536, 558:

"Our courts must assume that [the defendant] will be given a fair trial in the foreign country. Matters of due process generally are to be left for the courts to determine at the trial there as they would be if he were to be tried here. Attempts to pre-empt decisions on such matters, whether arising through delay or otherwise, would directly conflict with the principles of comity on which extradition is based."

In their Lordships' view the evidence comes nowhere near establishing that the appellants would be at risk of suffering a flagrant denial of justice were they to be extradited. Rather the United States courts must be trusted to secure them a fair trial.

27. In summary, their Lordships conclude that there is nothing in any of the grounds of appeal and no substantial reasons advanced why these extradition proceedings should not now be brought to a speedy and final conclusion. The appeal is dismissed with costs. Three years ago the Board observed that it was "clearly desirable" that those concerned with the next stage of the proceedings "should act with the utmost expedition". Still more clearly is that desirable now. These appellants should be committed under section 10 without further delay.