Cecil Steven Heilligger v Government of Sint Maarten

Hearing date: 7 February 2023

Approved Judgment

This judgment was handed down remotely at 10.00am on 28 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The island of Saint Martin lies in the northeast Caribbean Sea. The northern part of the island is known by its French name, Saint Martin, and is constitutionally a collectivité d'outre-mer (overseas territory) of the French Republic. The southern part is known by its Dutch name, Sint Maarten, and is one of four autonomous landen (countries) of the Kingdom of the Netherlands. Curaçao, in the southern Caribbean Sea, is another. Sint Maarten and Curaçao have been designated category 2 territories for the purposes of the Extradition Act 2003 (“the 2003 Act”): see SI 2003/333 as amended.

Mr R.H. de Haan is Solicitor General for Curaçao, Sint Maarten, Bonaire, Sint-Eustatius and Saba, the latter three being special municipalities of the Netherlands (sometimes referred to collectively as “the Caribbean part of the Netherlands”). On 19 November 2020, he signed a request for the appellant's extradition to Curaçao pursuant to the European Convention on Extradition. He said that a domestic arrest warrant had been issued against the appellant by the Public Prosecutor of Sint Maarten, Ms Esmahan Ahbata, following an investigation undertaken jointly by her and the public prosecutor of Curaçao into a criminal organisation called “No Limit Soldiers” and that the appellant would be prosecuted before “the Joint Court of Justice of Aruba, Curaçao, Sint Maarten and of Bonaire, Sint Eustatius and Saba before the Court of Curaçao”.

Mr de Haan attached a sworn statement by Ms Ahbata, which indicates that the appellant is suspected of seven criminal offences: (1) participation in a criminal organisation in Curaçao and Sint Maarten; (2) inciting or co-perpetrating the attempted murder by shooting of K. Gumbs, which took place in Saint Martin (French part); (3) inciting or co-perpetrating the murder by shooting of one K. Metura, which took place in Saint Martin (French part); (4) inciting or co-perpetrating the murder by shooting of A.R.L. Browne-Thewet, which took place in Sint Maarten; (5) inciting or co-perpetrating the attempted murder by shooting of M.C.G. Nunes, which took place in Sint Maarten; (6) inciting or co-perpetrating the attempted unlawful deprivation of liberty, hostage taking and extortion of “a person named Rachid” and/or “a person named François”, which took place in Sint Maarten, Saint Martin and/or France; (7) money laundering.

The extradition request was transmitted to the Lord Chancellor by Quincy Girigori, Minister of Justice of Curaçao, on 20 November 2020.

On 11 January 2021, the Secretary of State for the Home Department certified under s. 70 of the 2003 Act that “the request from Sint Maarten” was valid and had been made in the approved way. On 27 January 2021, an arrest warrant was issued by District Judge Branston at Westminster Magistrates' Court. That warrant was executed on 19 March 2021 and the appellant has been in custody ever since.

The extradition hearing took place on 4–6 August 2021 before the Chief Magistrate. He asked for written assurances in relation to Articles 2 and 3 ECHR. On 1 November 2021, he delivered his judgment in open court, dismissing the appellant's objections to extradition and sending the case to the Secretary of State, who on 9 December 2021 ordered the appellant's extradition to Sint Maarten.

There were initially five grounds of appeal. Permission to appeal was refused on the papers in relation to all of them by Heather Williams J on 5 December 2022. The application for permission to appeal was renewed. In his oral submissions, Mr Alun Jones KC, for the appellant, confirmed at the hearing that only three grounds were now pursued. These were grounds 1 and 2 (which challenge the Chief Magistrate's decision to send the case to the Secretary of State) and 5 (which challenges the Secretary of State's decision to order the appellant's extradition). In relation to grounds 1 and 5, only parts of the arguments in the Perfected Grounds of Appeal were pursued.

Ground 1

Under ground 1, the appellant submitted that the Chief Magistrate was wrong to hold that he was accused of extradition offences within the meaning of s. 137 of the 2003 Act. As originally pleaded, this ground was advanced on two bases: first (in relation to all offences) that the request was for extradition to Curaçao and no sufficient conduct was alleged to have been committed there; second (in relation to some offences only), even if the request was properly regarded as having been for extradition to Sint Maarten, no sufficient conduct is alleged to have been committed there.

Mr Jones confirmed at the hearing that he was abandoning the first basis of challenge. He now conceded that the request was for extradition to Sint Maarten, as the Secretary of State had certified. Any challenge to that certificate would have had to be by way of judicial review. No such challenge has been brought. If a challenge had been brought, it would not have succeeded in the light of the further information provided by Mr den Haan in his letter of 11 June 2020. This sets out in detail the interrelation between the jurisdictions of Curaçao and Sint Maarten and establishes that the appellant is to be prosecuted before the Court of First Instance of Sint Maarten, which would sit for this purpose in Sint Maarten (though it is “based” in Curaçao).

Ground 1 was therefore pursued only on the second basis (i.e. that the request was for extradition to Sint Maarten) and, as Mr Jones confirmed at the hearing, only in relation to offences 2, 3 and 6.

Offences 2 and 3

In the case of the other offences, the respondent says that the conduct complained of had intended effects in Sint Maarten and that, applying the principle in Belgium v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, this is sufficient to establish that the conduct occurred in that territory for the purposes of s. 137(3)(a) of the 2003 Act. But in respect of offences 2 and 3, the shootings are said to have taken place in the French part of Saint Martin and the respondent must accordingly establish that the conditions in s. 137(4) apply. These are that:

“(a) the conduct occurs outside the category 2 territory;

(b) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment;

(c) the conduct is so punishable under the law of the category 2 territory.”

The respondent submits that these conditions are satisfied because attempted murder and murder are extra-territorial offences under s. 9 of the Offences Against the Person Act 1861 (“OAPA”), or, alternatively, under s. 4 of the Suppression of Terrorism Act 1978 (“STA”).

Section 9 of the OAPA is headed “Murder or manslaughter abroad” and provides in material part as follows:

“Where any murder or manslaughter shall be committed on land out of the United Kingdom, whether within the Queen's dominions or without, and whether the person killed were a subject of Her Majesty or not, every offence committed by any subject of Her Majesty in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, may be dealt with, inquired of, tried, determined, and punished in England or Ireland…”

Peter Caldwell, for the respondent, submits that the phrase “every offence… in respect of any such case” is deliberately broad language, which establishes that the provision applies to offences of attempted murder as well as to offences of murder. This does not seem to me to be obvious, in the absence of any authority on the point. To my mind, the immediately following words (“whether the same shall amount to the offence of murder or manslaughter”) make it at least arguable that s. 9 applies only to those offences and not to attempted murder. It might be argued that, where Parliament wishes to establish extra-territorial jurisdiction in respect of attempts, it does so expressly: cf. s. 4(1)(b) of the STA. If s. 9 of the OAPA had been the sole basis for the respondent's argument that the conditions in s. 137(4) of the 2003 Act are satisfied, I would have granted permission to appeal, at least in relation to offence 2.

But, as I have said, the respondent has an alternative basis for asserting that s. 137(4) is satisfied. The STA implemented the UK's obligations under the European Convention on the Suppression of Terrorism. Section 4 of the STA is headed “Jurisdiction in respect of offences committed outside the United Kingdom” and provides as follows:

“(1) If a person, whether a citizen of the United Kingdom and Colonies or not, does in a convention country any act which, if he had done it in a part of the United Kingdom, would have made him guilty in that part of the United Kingdom of—

(a) an offence mentioned in paragraph 1… of Schedule 1 to this Act; or

(b) an offence of attempting to commit any offence so mentioned,

he shall, in that part of the United Kingdom, be guilty of the offence or offences aforesaid of which the act...