Attorney General for Saint Christopher and Nevis v Rodionov
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill |
| Judgment Date | 20 July 2004 |
| Neutral Citation | [2004] UKPC 38 |
| Court | Privy Council |
| Docket Number | Appeal No. 65 of 2003 |
| Date | 20 July 2004 |
[2004] UKPC 38
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Rodger of Earlsferry
Lord Carswell
Lord Brown of Eaton-under-Heywood
Privy Council
[Delivered by Lord Bingham of Cornhill]
On 20 March 2003 the Board granted special leave to the Attorney General to appeal from a judgment of the High Court of Justice of St Christopher and Nevis dated 2 August 2002, which upon application by Mr Rodionov for habeas corpus ordered that he be discharged from custody. In granting special leave, the Board expressly reserved for full argument the question whether it had jurisdiction to do so and to entertain the appeal. Such argument has now been heard. The Board has concluded, not without difficulty, that it had no jurisdiction to grant special leave and has no jurisdiction to entertain the appeal.
Since the Board has heard no argument on the facts and merits of this case, which are the subject of strong dispute between the parties, it is inappropriate to do more than explain how the issue on jurisdiction arises.
The Government of Canada requested the extradition of Mr Rodionov from St Kitts and Nevis where he lived and of which he had become a citizen. His extradition was sought in order that he might stand trial in Canada on a charge or charges of conspiracy to defraud. The criminal conduct alleged against him related to the purchase in Russia at a low domestic price of stable isotopes and the resale of the isotopes outside Russia at the much higher price prevailing in the international market, a transaction procured (it was alleged) through bribery in Canada of a senior Russian official responsible, on behalf of the Russian public, for holding a large stock of stable isotopes in Russia. The Governor-General of St Kitts gave his authority to proceed, and after a protracted hearing the magistrate, Mrs Jenkins, found that there was sufficient admissible and cogent evidence to justify the committal of Mr Rodionov to await his return to Canada. She accordingly ordered his committal, duly advising him of his right under section 11(1) of the Fugitive Offenders Act No. 1 of 1969 to make application for habeas corpus.
Mr Rodionov sought judicial review of the magistrate's decision to commit, relying on various provisions of the Constitution of St Kitts. This application came before Baptiste J, who on 2 August 2002 dismissed it. Mr Rodionov did not appeal against that judgment, and no question now arises on it. Mr Rodionov also applied for habeas corpus under section 11 of the Fugitive Offenders Act. This application also came before Baptiste J, who heard argument over four days and, on 2 August 2002, gave judgment on this application also. He rejected certain of the grounds relied on by Mr Rodionov but concluded, applying section 11(3) of the Act, that by reason of the passage of time since the offence which Mr Rodionov was alleged to have committed it would, having regard to all the circumstances, be unjust or oppressive to return him to Canada. On that ground he ordered the release of Mr Rodionov.
It is common ground between the parties that, by virtue of section 31(3) of the West Indies Associated States Supreme Court (Saint Christopher, Nevis and Anguilla) Act 1975 (No. 17 of 1975), no appeal to the Court of Appeal could be brought against the judge's decision to discharge Mr Rodionov by the Superintendent of Prisons (at that stage the nominal respondent to the habeas corpus application) or the Government of Canada, which had also been represented on the hearing of the application. The same situation would, it is accepted, have obtained had the judge dismissed Mr Rodionov's application. Thus it was that, after some months of delay, the Attorney General petitioned the Board for special leave to challenge the judge's habeas corpus decision, recognising that there was no other procedural means by which the decision could be challenged.
In his address to the Board, the Attorney General spoke with eloquence of the threat posed by the growth of international crime and the need for international legal cooperation in bringing serious criminals to justice. While eschewing any comment on this particular case, the Board is in general sympathy with this submission. Its decision on jurisdiction must nonetheless be based on a correct interpretation of the relevant constitutional provisions which now govern appeals from the domestic courts of St Kitts, an independent nation within the Commonwealth, to the Board.
In British constitutional theory, the sovereign is regarded as the fountain of justice. Thus, as Viscount Sankey LC explained in British Coal Corporation v The King [1935] AC 500, 511-512, it was to the King that, in early days, any subject who had failed to get justice in the King's Court brought his petition for redress, a petition brought to the King in Parliament or to the King in his Chancery. Similarly, from the earliest days of empire, petitions from overseas colonies and plantations went to the King in Council, a practice which continued after the jurisdiction of the Privy Council in English common law cases had been abolished. See, generally, Bentwich, The Practice of the Privy Council in Judicial Matters, 3rd ed (1937), pp 2-3. With the growth of the Empire, the need to regulate the exercise of this important overseas jurisdiction became acute. The first important step was taken in the Judicial Committee Act 1833 which, reciting that "whereas, from the decisions of various courts of judicature in the East Indies, and in the plantations, colonies, and other dominions of His Majesty abroad, an appeal lies to His Majesty in Council", established (section 1) the Judicial Committee of the Privy Council. See Howell, The Judicial Committee of the Privy Council 1833-1876, (1979), pp 23 et passim. To this statutory body were to be referred (section 3) "All appeals or complaints in the nature of appeals whatever, which, either by virtue of this Act, or of any law, statute, or custom, may be brought before His Majesty or His Majesty in Council from or in respect of the determination, sentence, rule, or order of any court, judge, or judicial officer …".
The second important statutory step in regulating the overseas jurisdiction of the Board was taken by the Judicial Committee Act 1844. Section 1 of the Act provided:
"1. Her Majesty, by order in council, may provide for the admission of appeals from any court in any colony, although such court shall not be a court of appeal.
It shall be competent to her Majesty, by any order or orders to be from time to time for that purpose made with the advice of her privy council, to provide for the admission of any appeal or appeals to her Majesty in council from any judgments, sentences, decrees, or orders of any court of justice within any British colony or possession abroad, although such court shall not be a court of errors or a court of appeal within such colony or possession; and it shall also be competent to her Majesty, by any such order or orders as aforesaid, to make all such provisions as to her Majesty in council shall seem meet for the instituting and prosecuting any such appeals, and for carrying into effect any such decisions or sentences as her Majesty in council shall pronounce thereon: Provided always, that it shall be competent to her Majesty in council to revoke, alter, and amend any such order or orders as aforesaid, as to her Majesty in council shall seem meet: Provided also, that any such order as aforesaid may be either general and extending to all appeals to be brought from any such court of justice as aforesaid, or special and extending only to any appeal to be brought in any particular case: … Provided also, that nothing herein contained shall be construed to extend to take away or diminish any power now by law vested in her Majesty for regulating appeals to her Majesty in council from the judgments, sentences, decrees, or orders of any courts of justice within any of her Majesty's colonies or possessions abroad."
This section (as it now stands) has been quoted in full, since it was the cornerstone of the Attorney General's argument. He pointed out, correctly, that the section had never been repealed or revoked. He pointed out, again correctly, that the section made express provision for the grant of special leave to appeal on a case by case basis, even though the decision under challenge was not that of a court of errors or a court of appeal: see Howell, op. cit., pp 55-56. He accordingly submitted that the Board had clear jurisdiction to grant special leave to appeal in a case such as the present, despite the lack of any right of appeal to the Court of Appeal under the law of St Kitts. Had matters rested as they stood in 1844, there would have been no answer to this submission, as Mr Fitzgerald QC, representing Mr Rodionov, agreed. But it is clearly established that the powers conferred on the Board by the Acts of 1833 and 1844, and other later instruments, have superseded the old prerogative power formerly exercised by the King in Council: Mitchell v Director of Public Prosecutions [1986] AC 73, 78; Walker v The Queen [1994] 2 AC 36, 44; De Morgan v Director-General of Social Welfare [1998] AC 275, 284-285. If, properly construed, the Acts of 1833 and 1844 as modified by later instruments do not confer jurisdiction on the Board to entertain this appeal, there can be no reliance on any prerogative power extraneous to these legislative provisions.
The court and appellate structure pertaining to St Kitts has been the subject of several changes over the years. The Attorney General drew attention to the Windward Islands and Leeward Islands (Appeal to Privy...
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