UKPC 23
Privy Council Appeal No 0048 of 2010
Rhett Allen Fuller (Appellant) v The Attorney General of Belize (Respondent)
From the Court of Appeal of Belize
SIR HENRY BROOKE
JUDGMENT DELIVERED BY
9 August 2011
Heard on 11-12 April 2011
Edward Fitzgerald QC
Eamon Courtenay SC
(Instructed by Allen & Overy LLP)
James Lewis QC
(Instructed by Charles Russell LLP)
LORD PHILLIPS :
The Constitution of Belize
"(a) life, liberty, security of the person, and the protection of the law. "
(1) A person shall not be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say-
…(i)…for the purpose of effecting his expulsion, extradition or other lawful removal from Belize.
(2) Any person who is arrested or detained shall be entitled –
…(d) to the remedy by way of habeas corpus for determining the validity of his detention.
(1) If any person alleges that any of the provisions of sections 3 to 19 inclusive of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the Supreme Court for redress.
(2) The Supreme Court shall have original jurisdiction-
(a) to hear and determine any application made by any person in pursuance of subsection (1) of this section; and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3) of this section,
and may make such declarations and orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 19 inclusive of this Constitution.
(3) If in any proceedings in any court (other than the Court of Appeal or the Supreme Court or a court-martial) any question arises as to the contravention of any of the provisions of sections 3 to 19 inclusive of this Constitution, the person presiding in that court may, and shall, if any party to the proceedings so requests, refer the question to the Supreme Court unless, in his opinion, the raising of this question is merely frivolous or vexatious.
The Extradition Act 1870
"This Act provides for a scheme of extradition of a person whose presence is required in a foreign country to stand trial in respect of a criminal offence for which he is charged. Once the request is made and the warrant is issued, the person is brought before the magistrate. The magistrate is required to hear the case 'in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence' committed in Belize (section 9). Evidence must be produced which would, according to the Law of Belize, justify the committal of the person for trial of an indictable offence. If there is no such evidence, the magistrate is required to discharge the prisoner. The powers under the Extradition Act are to be exercised in Belize by the Chief Magistrate. In committing the person, the Chief Magistrate is required to inform him that he will not be surrendered until after the expiration of fifteen days. In addition, the Chief Magistrate must inform the prisoner that he has the right to apply to the Supreme Court for a writ of habeas corpus. The Act does not give the appellant any right of appeal. It requires the Chief Magistrate to inform him of his right to apply for habeas corpus. The Act does not create the right to apply for habeas corpus. The Act merely recognizes that the right exist. Such right, in my view would have existed as part of the common law of England and as such became part of the common law of Belize. It is noted that the right to apply for habeas corpus is enshrined in the Constitution of Belize. "
This summary, while contentious below, has not been challenged before the Board. Nor has the finding of the Court of Appeal that the Minister of Foreign Affairs for Belize ("the Minister") is the person vested with the authority to perform the functions conferred on the "Secretary of State" by the 1870 Act.
The reasoning of the courts below
The English jurisprudence
"(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 it 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 interests of justice,
it would, having regard to all the circumstances, be unjust or oppressive to return him."
"In the case of magistrates this power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures" (p 64).
"My Lords, I summarise my conclusions on this branch of the case thus. Atkinson v United States of America Government  AC 197 decided that Parliament had excluded the jurisdiction of the courts to refuse to surrender a person under the 1870 Act when to do so would be unjust or oppressive. R v Governor of Pentonville Prison, Ex p Narang  AC 247 emphasised that the statutory powers conferred upon the courts by the 1881 Act in relation to the Empire had been considerably restricted by section 8(3) of the 1967 Act. R v Governor of Pentonville Prison, Ex p Sinclair  2 AC 64 pointed out that the re-enactment of section 8(3) in section 11(3) of the Act of 1989 demonstrated that in relation to foreign countries no discretion to refuse the return of a foreign fugitive had previously existed. The dicta in Government of Australia v Harrod  1 WLR 745 and In re Osman, 28 February 1992 were obiter. R v Horseferry Road Magistrates' Court, Ex p Bennett  1 AC 42 related to the very different situation of the power to stay an English prosecution. Accordingly, the position now is that in extradition proceedings under the 1989 Act the High Court has power to intervene only in the circumstances predicated by the Act and has no inherent common law supervisory power as contended for by the applicant. The principal safeguard for the subject of extradition proceedings therefore remains in the general discretion conferred upon the Secretary of State by Parliament in section 12. It follows that the Divisional Court were correct in concluding that the decisions in Atkinson and Sinclair had not been affected by Bennett and should be followed."
"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."
"29 Having regard, as this court must, to the Strasbourg jurisprudence, it seems to me to be clear that a court and not the Secretary of State is the appropriate forum for a decision as to the lawfulness of a fugitive's detention and, provided the Extradition Act 1989 can be so read, the magistrates' court is to be preferred to the High Court. As I have said, the House of Lords in Atkinson v United States of America Government  AC 197, R v Governor of Pentonville Prison, Ex p Sinclair  2 AC 64 and In re Schmidt  1 AC 339 held that a magistrate has no power to refuse to commit in extradition proceedings because of an abuse of process. The rationale of each of those authorities, however, is that it is open to the Secretary of State to respond to abuse by refusing to return the fugitive.
30 In my judgment, although that is so, it does not now, in the light of the provisions of article 5(4), provide a rationale for excluding the courts from exercising abuse jurisdiction in relation to the lawfulness of detention; and, whether section 11(3) is properly construed, as it was in In re Schmidt, as limiting the High Court's jurisdiction to the three matters identified in paragraphs (a), (b) and (c), or as preserving by its initial words, as Woolf LJ held in In re Osman  Crim LR 741, the High Court's common law general reviewing power, neither interpretation provides a sufficient basis on which to oust the jurisdiction of magistrates which, at first blush is conferred by the wide language of paragraph 6 (1), to consider the lawfulness of a fugitive's detention. Put another way, both section 11(3) and paragraph 6(1) of Schedule I can, and in my judgment should, be so read as to enable both the High Court and a committing magistrate to consider the lawfulness of detention under article 5(4)….
32 What is in issue in the present case is whether, when lawful extradition procedures are being used, a resultant detention may be unlawful by virtue of abuse of the court's process. The magistrates' court, rather than the High Court, is, in my judgment, the appropriate tribunal for hearing evidence and submissions, finding facts relevant to abuse and doing so speedily. Furthermore, as it seems to me, the district judge's obligation under section 6(1) of the Human Rights Act 1998 to act compatibly with Convention rights requires him to make a determination under article 5(4). It seems to me that that determination should be in accordance with Lord Hope's analysis in R v Governor of Brockhill Prison, Ex p Evans (No 2) 2 AC 19, that is he must consider whether the detention is lawful by English domestic law, complies with the general requirements of the Convention and is not open to criticism for arbitrariness.
33 It does not, however, follow that the district judge can be addressed on all the issues which may arise in the course of a summary trial. Extradition proceedings do not, nor does fairness require that they should, involve resolution of trial issues. Self-evidently, extradition contemplates trial in another jurisdiction according to the law there. It is there that questions of admissibility, adequacy of evidence and fairness of the trial itself will be addressed; and, if the Secretary of State has concerns in relation to these or other matters, it is open to him to refuse to order a fugitive's return."
Rose LJ added that it would only be in a very rare extradition case, provided the statutory procedures had been followed, that it would be possible to argue that abuse of process had rendered the detention unlawful under article 5(4).
The constitutional principle of the separation of powers.
"First, Mauritius is a democratic state constitutionally based on the rule of law. Secondly, subject to its specific provisions, the Constitution entrenches the principle of the separation of powers between the legislature, the executive, and the judiciary. Under the Constitution one branch of government may not trespass upon the province of any other. Thirdly, the Constitution gave to each arm of government such powers as were deemed to be necessary in order to discharge the functions of a legislature, an executive and a judiciary. Fourthly, in order to enable the judiciary to discharge its primary duty to maintain a fair and effective administration of justice, it follows that the judiciary must as an integral part of its constitutional function have the power and the duty to enforce its orders and to protect the administration of justice against contempts which are calculated to undermine it."
"Whatever overlap there may be under constitutions on the Westminster model between the exercise of executive and legislative powers, the separation between the exercise of judicial powers on the one hand and legislative and executive powers on the other is total or effectively so. Such separation, based on the rule of law, was recently described by Lord Steyn as 'a characteristic feature of democracies': R (Anderson) v Secretary of State for the Home Department  1 AC 837, 890-891 para 50."
The primary issue
"27……The Government seeks to distinguish that authority. It refers to article 19 of the Constitution, as set out in the Schedule to the Bahamas Independence Order 1973(SI 1973/1080), 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 the Kashamu case 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):
'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.
28. The Board does not find this an altogether easy question to resolve, but on balance it prefers the Government's argument, as did the courts below. In enacting section 10(2) of the 1994 Act, the Bahamian Legislature may be taken to have assumed the general correctness of the Atkinson line of authority. The Constitution does not include, in article 19(1) or elsewhere, the specific provisions which obliged the Divisional Court to distinguish the Atkinson line of authority in the Kashamu case. The Constitution allocates to the Supreme Court, not to magistrates, the jurisdiction to redress constitutional grievances. Thus the magistrate was right to rule as she did."
Abuse of process
The subsidiary issue
The appellant's case on the facts
"25 Following the offense, law enforcement officers were unable to locate Rhett Allen Fuller because he fled the United States.
26 In October of 1997, law enforcement officials discovered Rhett Allen Fuller was in Belize, and notified Dade County State Attorney's Office that he was residing at Mile Marker 2 & ½ Northern Highway, Kings Park, Belize City, Belize; and was working at Triton Ads Limited at the Fiesta Inn Hotel in Belize City, Belize.
27 When law enforcement officials notified the Dade State Attorney's Office that they had located Rhett Allen Fuller, an assistant state attorney for the Dade County State Attorney's Office prepared to indict Rhett Allen Fuller…"
The appellant's case on abuse of process
" 'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.
As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. So where the application for discharge under section 8(3) is based upon the 'passage of time' under paragraph (b) and not on absence of good faith under paragraph (c), the court is not normally concerned with what could be an invidious task of considering whether mere inaction of the requisitioning government or its prosecuting authorities which resulted in delay was blameworthy or otherwise. Your Lordships have no occasion to do so in the instant case."
"32 With regard to the concept of injustice, the law has moved on since Kakis, in part because of the developing abuse of process jurisdiction over the past 30 years. It is unnecessary to rehearse this at length. Rather it is sufficient to refer to the judgment of the Privy Council delivered by Lord Bingham of Cornhill in Knowles v Government of the United States of America  1 WLR 47, in particular para 31 where the Board approved the Divisional Court's judgment in Woodcock v Government of New Zealand  1 WLR 1979 from which it extracted and endorsed the following propositions:
'First, the question is not whether it would be unjust or oppressive to try the accused but whether . . . it would be unjust or oppressive to extradite him (para 20). Secondly, if the court of the requesting state is bound to conclude that a fair trial is impossible, it would be unjust or oppressive for the requested state to return him (para 21). But, thirdly, the court of the requested state must have regard to the safeguards which exist under the domestic law of the requesting state to protect the defendant against a trial rendered unjust or oppressive by the passage of time (paras 21-22). Fourthly, no rule of thumb can be applied to determine whether the passage of time has rendered a fair trial no longer possible: much will turn on the particular case (paras 14-16, 23-25). Fifthly, 'there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive' (para 29).'
33 The second of those propositions, it will be noted, invites consideration of whether, in any particular case, 'a fair trial is impossible', and that indeed we regard as the essential question underlying any application for a section 82 bar on the ground that the passage of time has made it unjust to extradite the accused. As was pointed out in Woodcock  1 WLR 1979 , para 17, a stay on the ground of delay in our domestic courts is only properly granted when 'there really is evidence of prejudice to the extent that a fair trial could not be held'. We acknowledge that in Kakis,  1 WLR 779 Diplock para 1 speaks of 'the risk of prejudice to the accused in the conduct of the trial itself'. But Viscount Dilhorne's leading speech in R v Government of Pentonville Prison, Ex p Narang  AC 247, 276 the previous year had used the language of impossibility:
'I see nothing in the material before this House to lead to the conclusion that as a result of the passage of time it would be impossible for [the two accused] to obtain justice, and, that being so, I am unable to conclude that by reason of the passage of time their return would be unjust or oppressive."