Fuller v Attorney General
| Jurisdiction | UK Non-devolved |
| Judge | LORD PHILLIPS |
| Judgment Date | 09 August 2011 |
| Neutral Citation | [2011] UKPC 23 |
| Date | 09 August 2011 |
| Docket Number | Appeal No 0048 of 2010 |
| Court | Privy Council |
[2011] UKPC 23
Lord Phillips
Lord Mance
Lord Clarke
Lord Hamilton
Sir Henry Brooke
Privy Council
Appellant
Edward Fitzgerald QC
Eamon Courtenay SC
Ben Silverstone
(Instructed by Allen & Overy LLP)
Respondent
James Lewis QC
Rachel Scott
(Instructed by Charles Russell LLP)
Introduction
On 22 March 1990 a man called Larry Miller was shot and killed in Miami, Dade County, Florida. On the following day a warrant was issued in Miami for the arrest of the appellant on charges which included the first degree murder of Mr Miller. The appellant was not then apprehended. He left the United States and went to Belize. On 28 January 1998 a Grand Jury in Florida indicted the appellant for the first degree murder of Mr Miller. On 17 August 1998 the United States Embassy in Belize made a formal request for the appellant's extradition to the United States. The appellant was arrested and remanded in custody on 21 October 1998. On 26 February 1999, after a hearing, the Chief Magistrate ordered his extradition, remanding him to prison to await this. On 5 May the appellant was granted leave to apply for a writ of habeas corpus and on 16 June he was granted bail, pending the hearing of his application. The application was refused by the Chief Justice, sitting in the Supreme Court, on 29 April 2002. Leave to appeal to the Court of Appeal was granted on 20 May 2002, bail was granted pending appeal and a Notice of Appeal was filed on the following day. Nearly 6 years of inertia followed. On 27 March 2009 the Court of Appeal dismissed the appellant's appeal. His appeal comes before the Board pursuant to leave to appeal which was granted by the Court of Appeal on 2 March 2010.
The major issue raised by this appeal relates to the extent of the jurisdiction of the Supreme Court of Belize on an application for habeas corpus in an extradition case. It was and is the appellant's contention that this case has various features, not least the delay that has occurred, which render the application for extradition an abuse of process. This was, in essence, the basis of his application for habeas corpus. The Chief Justice rejected his application on the ground that the Supreme Court had no jurisdiction to entertain a challenge to extradition based on abuse of process. The discretion to discharge a person, committed in extradition proceedings, on the ground of abuse of process was vested exclusively in the Minister of Foreign Affairs of Belize.
In the Court of Appeal the appellant contended that not merely the Supreme Court, but also the Chief Magistrate, had had jurisdiction to entertain a challenge to extradition proceedings, based on abuse of process. The Court of Appeal rejected this submission, holding that neither the Supreme Court nor the magistrates' court has jurisdiction to entertain such a challenge. It was for the Minister of Foreign Affairs to consider any question of abuse of process when making the executive decision of whether to accede to a request for extradition. The Minister's decision was subject to judicial review, but at no earlier stage of the extradition process did a court have jurisdiction to consider an allegation of abuse of process.
Before the Board Mr Fitzgerald QC for the appellant has argued that the Supreme Court and the Court of Appeal erred in holding that the former had no jurisdiction to entertain the abuse of process challenge. He invites the Board to remit the case to the Supreme Court for consideration of that matter. He has further argued, in support of his submission in relation to the jurisdiction of the Supreme Court, that the Chief Magistrate had also had jurisdiction to entertain an abuse of process challenge. If consideration of abuse fell within the jurisdiction of the Chief Magistrate, it must, a fortiori, have fallen within the jurisdiction of the Supreme Court.
The Board observes at the outset that part of the problem raised by this appeal lies in the fact that "abuse of process" is not a term that sharply defines the matter to which it relates. It can describe (i) making use of the process of the court in a manner which is improper, such as adducing false evidence or indulging in inordinate delay, or (ii) using the process of the court in circumstances where it is improper to do so, as for instance where a defendant has been brought before the court in circumstances which are an affront to the rule of law, or (iii) using the process of the court for an improper motive or purpose, such as to extradite a defendant for a political motive. In this case the allegation of abuse of process is founded largely, though not exclusively, on the delay that has occurred. In so far as this delay has occurred in the judicial process in Belize, the allegation is of abuse of process that falls into the first category, but the reliance on delay amounts also to an allegation of abuse of process that falls into the second category, in as much as Mr Fitzgerald has argued that it is unjust or oppressive that the appellant should be subjected to the process of extradition when such a lengthy period has been allowed to elapse since the crime that he is alleged to have committed.
A subsidiary issue was raised before the Supreme Court and the Court of Appeal. This was whether the admissible evidence before the Senior Magistrate sufficed to found a request for extradition. Both courts were in no doubt that it did. In his written case Mr Fitzgerald has also attacked the findings of the courts below on this issue, but in his oral submissions he concentrated on the primary issue, which is that ofjurisdiction.
The argument advanced on behalf of the appellant on the jurisdiction issue can be summarised as follows. The Constitution of Belize provides for the separation of powers. It also provides for the protection of fundamental rights and freedoms, which reflect those protected by the European Convention on Human Rights. One of those rights is the right to personal liberty. Habeas corpus is the procedure by which the right to personal liberty is protected. Abuse of process in extradition proceedings is capable of rendering the detention of the person whose extradition is sought unlawful.
The separation of powers requires the courts and not the executive to rule on the legality of detention. It follows that, under the Constitution of Belize, the courts must have jurisdiction to consider abuse of process.
If the Board accepts this argument, it will be necessary to consider whether there is, on the facts, an arguable case of abuse of process that requires that this case be remitted to the Supreme Court of Belize.
The Constitution of Belize
The Constitution of Belize, came into force when Belize obtained its full independence from the United Kingdom on 21 September 1981. Section 1(1) provides that Belize shall be a sovereign democratic state. Section 2 provides that any law that is inconsistent with the Constitution is to be void to the extent of the inconsistency. Section 3 sets out the fundamental rights and freedoms to which every person in Belize is entitled. These include:
"(a) life, liberty, security of the person, and the protection of the law."
Section 5 provides:
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(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.
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(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.
The Constitution has separate parts that make provision for "the Executive", "the Legislature", and "the Judiciary". Section 94 in Part VII, which deals with the judiciary, establishes the Supreme Court and the Court of Appeal.
Section 20(1) provides:
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(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.
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(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.
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(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.
Section 96(1) provides that, subject to specified exceptions, where, in any court in Belize a substantial question of law arises as to the interpretation of the Constitution, the court shall refer the question to the Supreme Court.
Transitional provisions include section 134(1), which provides that existing laws are to remain in force subject to such...
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