Alain Charron v The Government of the United States of America and Another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hutton |
| Judgment Date | 26 June 2000 |
| Judgment citation (vLex) | [2000] UKPC J0626-2 |
| Date | 26 June 2000 |
| Court | Privy Council |
| Docket Number | Appeal No. 53 of 1999 |
[2000] UKPC J0626-2
Privy Council
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hutton
Lord Millett
Sir Patrick Russell
Mr. Justice Blanchard
[Delivered by Lord Hutton]
On 22nd January 1998 the appellant was committed into custody by a magistrate in The Bahamas to await his extradition to the United States of America for drug offences pursuant to section 10(5) of the Extradition Act 1994 of The Bahamas ("The 1994 Act"). The Supreme Court refused his application for habeas corpus on 17th March 1998 with reasons given on 5th May 1998 and his appeal to the Court of Appeal was dismissed on 9th March 1999. He now appeals to this Board.
The alleged offences in the United States
On 28th March 1996 a woman named Johanne La Plante swore an affidavit before a Notary Public in Florida in the United States. In her affidavit, briefly summarised, she stated that she had known the appellant since approximately 1991. In January 1993 she provided assistance to the appellant and other persons to possess illegally with intent to distribute and with intent to attempt to export approximately 50 kilograms of cocaine from the United States to Canada. Her role was to act as an intermediary in the purchase of the cocaine by the appellant, who intended to purchase the cocaine for distribution in the Montreal/Quebec area of Canada. In January 1993 she spoke to a man named Besterio Palomeque who had possession of the 50 kilograms of cocaine. She then contacted the appellant and asked if he wished to purchase this cocaine and the appellant indicated that he would do so. She then contacted Palomeque and Palomeque made arrangements for the cocaine to be transported to Buffalo, New York, where it would be picked up. The appellant would then arrange for the cocaine to be shipped from Buffalo to Montreal. She then met with the appellant who advised her that his transportation people would travel to Buffalo to pick up the cocaine and carry it back to Montreal.
On 20th September 1995 a Grand Jury sitting in the United States District Court for the Western District of New York filed against the appellant an indictment charging him on two counts as follows:-
COUNT I
The Grand Jury Charges:
Between in or about January, 1991 and continuing to in or about December 1993, the exact dates being unknown to the grand jury, in the Western District of New York and elsewhere, the defendant, ALAIN CHARRON, did knowingly, willfully and unlawfully combine, conspire and agree with others, known and unknown, to commit offenses against the United States, that is, to possess with intent to distribute, and to distribute five (5) kilograms or more of a mixture or substance containing cocaine, a Schedule II controlled substance; in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A); all in violation of Title 21, United States Code, Section 846.
COUNT II
The Grand Jury Charges:
Between in or about January, 1991 and continuing to in or about December 1993, the exact dates being unknown to the grand jury, in the Western District of New York and elsewhere, the defendant, ALAIN CHARRON, did knowingly, willfully and unlawfully combine, conspire and agree with others, known and unknown, to commit an offense against the United States, that is, to export to Canada five (5) kilograms or more of a mixture or substance containing cocaine, a Schedule II controlled substance; in violation of Title 21, United States Code, Sections 953(a), 960(a) and 960(b)(1)(A); all in violation of Title 21, United States Code, Section 846."
On 20th September 1995, following the filing of the indictment, a magistrate sitting in the United States District Court for the Western District of New York issued a warrant for the arrest of the appellant.
The extradition proceedings in The Bahamas
There has been very considerable and regrettable delay in the extradition proceedings in The Bahamas, but it has not been submitted on behalf of the appellant that this delay has, in itself, invalidated the order for committal made by the magistrate on 22nd January 1998. The preliminary and defective proceedings which preceded the proceedings which give rise to the present appeal were as follows:-
16th February 1996. A provisional warrant for the arrest of the appellant was issued by a magistrate under section 9(1)(b) of the 1994 Act.
Section 9 provides:-
"(1) A warrant for the arrest of a person accused of an extradition offence, or alleged to be unlawfully at large after conviction of such an offence, may be issued -
(a) on receipt of an authority to proceed, by a magistrate; or
(b) without such an authority, by a magistrate upon information that such person is in The Bahamas or is believed to be on his way to The Bahamas; so, however that the warrant, if issued under this paragraph, shall be provisional only."
17th February 1996. The appellant was arrested when he arrived in The Bahamas from Canada for a holiday.
19th February 1996. The appellant was remanded in custody.
16th April 1996. The Minister issued an authority to proceed.
13th May 1996. The appellant was discharged by a magistrate after committal proceedings failed, but he was immediately re-arrested under a second provisional warrant issued by another magistrate.
14th May 1996. The appellant was remanded in custody.
15th May 1996. The Minister issued a second authority to proceed.
8th August 1996. The appellant's application for prerogative relief was dismissed by the Supreme Court.
21st October 1997. The appellant was discharged again by a magistrate after committal proceedings failed, but he was again immediately re-arrested under a third provisional warrant issued by a magistrate.
The proceedings which are the subject of the present appeal commenced on 5th December 1997 when the Minister issued a third authority to proceed pursuant to section 8 of the 1994 Act. Section 8 provides:-
"(1) Subject to the provisions of this Act relating to provisional warrants, a person shall not be dealt with under this Act except in pursuance of an order of the Minister (in this Act referred to as an 'authority to proceed') issued in pursuance of a request made to the Minister by or on behalf of an approved State in which the person to be extradited is accused or was convicted.
…
(3) On receipt of such a request the Minister may issue an authority to proceed, unless it appears to him that an order for the extradition of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act."
The authority to proceed was in the following terms:-
"To Stipendiary and Circuit Magistrate, Nassau, The Bahamas
WHEREAS in pursuance of a treaty between the Commonwealth of the Bahamas and the United States of America listed in the Extradition (Application to the United States) Order 1994 S.I. No. 58 of 1994 relating to the extradition of fugitive offenders and binding on the Government of The Bahamas a request has been made to me Cornelius A. Smith M.P., the Acting Minister of Foreign Affairs of the Commonwealth of The Bahamas, by the Government of the United States of America of (sic) Alain Charron presently believed to be in the Commonwealth of the Bahamas, accused of extradition offences against the laws of the United States of America set out in the warrants of arrest attached hereto.
NOW I hereby authorize you, by this Order given under my hand and seal, to proceed against Alain Charron in accordance with the Extradition Act 1994 in respect of the said extradition offences. I am satisfied that the offences against the law of the United States with which Alain Charron is accused are offences provided for in the Extradition treaty with the United States and that the acts and omissions constituting the offences would constitute the offences of CONSPIRACY TO POSSESS DANGEROUS DRUGS WITH INTENT TO SUPPLY contrary to Section 22(1), 22(2)(a) and Section 29(1) of the Dangerous Drugs Act, Chapter 213, CONSPIRACY TO EXPORT DANGEROUS DRUGS contrary to Section 14(4) and Section 29(1) of the Dangerous Drugs Act, Chapter 213, against the law of the Bahamas, if they took place in the Bahamas, the offences not being of a political character."
The authority to proceed refers to "warrants of arrest attached hereto" but no warrants were attached thereto.
A hearing then took place before a magistrate pursuant to the provisions of section 10 of the 1994 Act. Section 10 provides:-
"(1) A person arrested in pursuance of a warrant issued under section 9 shall, unless previously discharged under subsection (4) of that section, be brought as soon as practicable before a magistrate (in this Act referred to as 'the court of committal') who shall hear the case in the same manner, as nearly as may be, as if he were conducting a preliminary inquiry under the Criminal Procedure Code and as if that person were brought before him charged with an indictable offence committed within his jurisdiction.
…
(5) Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the extradition of that person or on behalf of that person, that the offence to which the authority relates is an extradition offence and is further satisfied -
(a) where the person is accused of the offence that the evidence would be sufficient to warrant his trial for that offence if the offence had been committed in The Bahamas; …
the court of committal shall, unless his committal is prohibited by any other provision of this Act, commit him to...
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