Cartwright v Superintendent of HM Prison
| Jurisdiction | UK Non-devolved |
| Judge | Lord Steyn,Lord Hoffmann,Lord Rodger of Earlsferry |
| Judgment Date | 10 February 2004 |
| Neutral Citation | [2004] UKPC 10 |
| Court | Privy Council |
| Docket Number | Appeal No. 40 of 2003 |
| Date | 10 February 2004 |
[2004] UKPC 10
Present at the hearing:-
Lord Steyn
Lord Hoffmann
Lord Rodger of Earlsferry
Sir John Roch
Sir Swinton Thomas
Privy Council
[Majority judgment delivered by Lord Steyn]
This is an appeal by Frank Cartwright and Samuel Knowles from the decision of the Court of Appeal of The Bahamas (Sawyer P, Churaman and Ibrahim JJA) dated 22 January 2003 which ordered their extradition to the United States to stand trial in Florida on charges of having committed drugs offences. Lemuel Gibson was also a party to the Court of Appeal proceedings and affected by the decision. However, he is at large and he is not an appellant before the Board.
The forensic history
On 8 December 2000 the appellants Cartwright and Knowles (along with others) were indicted by a United States Federal Grand Jury on (so far as relevant) the following counts:
(a) at a time unknown between 11 November 1997 and 8 December 2000, conspiracy to possess cocaine and marijuana with intent to distribute it; and
(b) during the same period, conspiracy to import the same drugs into the United States of America.
It is common ground that these would also be offences under the law of The Bahamas. On 22 January 2001 the Government of the United States requested the extradition of Cartwright and Knowles from The Bahamas on the alleged drugs offences. On 29 March and 2 April 2001 the Attorney General of The Bahamas issued his authority under the Extradition Act 1994 to proceed in respect of each appellant. In the meantime provisional warrants for the arrest of the two appellants had been issued and enforced. Knowles was already in prison, having been convicted in October 2000 on an unrelated charge of possession of dangerous drugs with intent to supply.
On 13 and 14 June 2001 a committal hearing took place before the stipendiary and circuit magistrate (Mrs Carolita Bethel). The requesting state relied mainly on the evidence of an alleged accomplice of the two appellants, one Herbert Hanna. His account was detailed and, subject to one point, appeared on its face to point convincingly to the guilt of the appellants on serious drugs charges. Prima facie it was a cogent case for extradition. The qualification was that it was argued that this evidence was not direct testimony because the relevant passages of the authenticated statement were preceded by the words "I provided the following information … to [Special Agents in Miami]". In her written decision the 5 October 2001 the magistrate rejected this argument and acting pursuant to section 10(5) of the Extradition Act 1994 committed the appellants to await extradition to the United States.
The appellants applied to the Supreme Court for writs of habeas corpus ad subjiciendum. The matter came before Isaacs J for hearing. During argument the question arose, perhaps as a result of questions put by the judge, whether in respect of a challenge to the sufficiency of evidence, the appropriate remedy is certiorari. In any event, the judge gave leave to add an application for judicial review and the necessary papers were lodged pursuant to his leave. The judge then proceeded to hear the habeas corpus and judicial review applications together. In his judgment given on 5 February 2002 Isaacs J concluded that the magistrate had erred in treating Hanna's evidence as admissible. He said:
"… to my mind section 14(1)(a) [of the Extradition Act 1994] speaks to direct evidence when it mentions 'testimony given on oath'. And in that regard, a mere summary of information the affiant may have previously provided to someone, does not fall to be regarded as direct evidence of the matters stated therein. Hanna does no more than say 'I swear this is what I told Agent Weis and others on 9th August, 2000'. Hanna ought to have sworn to the truth of the contents of his affidavit in the form 'do make oath and swear as follows' or some similar formulae."
In any event, Isaacs J summarised his conclusion as to Cartwright and Knowles in this way:
"I find that the magistrate erred in law when she held that the evidence of Hanna was direct evidence and, hence, admissible as evidence of the applicants' participation in a conspiracy with him.
…
Inasmuch as the magistrate relied on Hanna's evidence in her ' weighing up' of the Requesting State's case against the applicants, … I find that the orders of committal are void. In the premises the writs must issue and the applicants released. And I so order.
I do not here make any determination in respect of the certiorari applications upon the view I have taken on the habeas corpus applications."
(References to case against Gibson deleted)
No formal order was drawn up. It is clear, of course, that the judge did not subjectively intend to make any decision on certiorari. That is, however, not the right question to address in reconstructing what the judge in fact decided. The correct approach is to ask, against the relevant context, what the legal effect of the pronounced decision is. None of this is controversial: what is controversial is the legal effect of what the judge decided.
The Government of the United States of America (together with The Superintendent of Her Majesty's Prison) lodged an appeal against the decision of Isaacs J. There were two discrete matters before the Court of Appeal. The first issue was whether the Court of Appeal had jurisdiction to entertain the appeal of the requesting state. If the Court of Appeal had jurisdiction, the question arose whether the decision of Isaacs J on the merits was correct.
In a detailed judgment Sawyer P, with the agreement of Churaman and Ibrahim JJA, held that the Court of Appeal had jurisdiction to entertain the appeal and that Isaacs J had erred in setting aside the magistrate's order. The Court of Appeal allowed the appeal of the requesting state and restored the order of the magistrate. It will be necessary to set out the reasoning of the Court of Appeal on the jurisdictional issue. Before that can be done it is necessary to explain the legal context.
The Legislative Provisions
Orders 53 and 54 of the Rules of the Supreme Court 1978 respectively provide for judicial review and applications for habeas corpus.
The legal position in respect of rights of appeal from decisions in habeas corpus and judicial review proceedings is uncontroversial and can be summarised briefly. The legislature made no provision for an appeal from the grant of habeas corpus by the Supreme Court. On the other hand, section 10(7) of the Extradition Act 1994 provides:
"If the court of committal refuses to make an order under subsection (5) in relation to a person in respect of the offence or, as the case may be, any of the offences to which the authority to proceed relates, the approved State seeking the surrender of that person to it may question the proceeding on the ground that it is wrong in law by applying to the court to state a case for the opinion of the Supreme Court on the question of law involved."
In other words, a magistrate's grant of freedom to a prisoner could be appealed by the requesting state; if upheld by the Supreme Court, that decision could be further appealed by the requesting state.
Section 11 read as follows:
"(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."
By section 11(5) the legislature therefore made express provision for an appeal against a judge's refusal to grant freedom to the fugitive on a habeas corpus application. But, as already pointed out, the legislature did not provide for an appeal against the grant of habeas corpus by the Supreme Court.
Section 17 of the Court of Appeal Act as amended contains inter alia the following provisions:
"17(1) Any person aggrieved by any judgment order or sentence given or made by the Supreme Court in its appellate or revisional jurisdiction, whether such judgment, order or sentence has been given or made upon appeal or revision from a magistrate or any other court, board, committee or...
To continue reading
Request your trial
-
Gibson v Government of the United States of America
...to two the Board (Lord Steyn, Sir John Roch and Sir Swinton Thomas, Lord Hoffmann and Lord Rodger of Earlsferry dissenting)— Cartwright v Superintendent of HM Prison, [2004] 1 WLR 902—dismissed the appeal, concluding on the facts that section 17(3) of the Court of Appeal Act was applicable......
-
R (Al-Skeini) v Secretary of State for Defence
...Court: Brown v Stott [2003] 1 AC 681; [2001] 2 WLR 817; [2001] 2 All ER 97, PC Cartwright v Superintendent of Her Majesty's Prison [2004] UKPC 10; [2004] 1 WLR 902, Chahal v United Kingdom (1996) 23 EHRR 413 Higgs v Minister of National Security [2000] 2 AC 228; [2000] 2 WLR 1368, PC Ignacc......
-
Government of Germany v Kleinschmidt and another
...of the Board of the Judicial Committee of the Privy Council in a Bahamian appeal, Cartwright v Superintendent of Her Majesty's Prison [2004] 1 WLR 902,para 14: "Throughout extradition law there are two principal threads. First, in exercising powers of extradition courts of law must … be vig......
-
Joe Anthony Chappell v Secretary of State for the Home Department
...to the interpretation of extradition legislation. The Court's approach to interpretation 29 In Cartwright v Superintendent of HM Prison [2004] 1 WLR 902, the Privy Council had to consider whether the Court of Appeal of The Bahamas had been correct to entertain an appeal by the USA against ......