Knowles Jr v. United States of America & Anor (The Bahamas )  UKPC 38 (24 July 2006)
Privy Council Appeal Nos 64 of 2004 and 70 of 2005
Samuel Knowles Jr Appellant
(1) The Government of the United States of America
(2) The Superintendent of Prisons of the
Commonwealth of the Bahamas Respondents
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 24th July 2006
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Present at the hearing:-
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Baroness Hale of Richmond
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Delivered by Lord Bingham of Cornhill]
The first extradition request
"(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.
The second extradition request
The first issue: jurisdiction of the Court of Appeal to entertain an appeal from the order of habeas corpus made by Small J
"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."
"(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.
"(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  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.
"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."
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
(1) Abuse of the process of the court
"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  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  AC 197; R v Governor of Pentonville Prison, Ex p Sinclair  2 AC 64; In re Schmidt  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  EWHC Admin 980,  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.
(2) Good faith
(3) Lapse of time
(4) Failure to disclose