Gibson v Government of the United States of America
| Jurisdiction | UK Non-devolved |
| Judge | Lord Brown of Eaton-under-Heywood,Lord Hoffmann, Lord Carswell,Lord Mance |
| Judgment Date | 23 July 2007 |
| Neutral Citation | [2007] UKPC 52 |
| Court | Privy Council |
| Docket Number | Appeal No 69 of 2005 |
| Date | 23 July 2007 |
[2007] UKPC 52
Present at the hearing:-
Lord Hoffmann
Lord Woolf
Lord Scott of Foscote
Lord Carswell
Lord Brown of Eaton-under-Heywood
Lord Mance
Sir Christopher Rose
Privy Council
[Majority judgment delivered by Lord Brown of Eaton-under-Heywood]
The government of the United States of America ("the USA") seeks the extradition of Lemuel Gibson ("the appellant") from The Bahamas to stand trial on drugs charges in Florida. The circumstances in which he now appeals against his committal to await such extradition are as follows.
On 8 December 2000 the appellant, Samuel Knowles and Frank Cartwright were indicted by a federal grand jury on charges of conspiracy to import and distribute large quantities of cocaine and marijuana into the USA. On 22 January 2001 the USA requested the three men's extradition and, following their arrest, authority to proceed against them was promptly given by the Attorney General of The Bahamas. On 5 October 2001, after a two-day hearing in June, the magistrate (Mrs Carolita Bethel), pursuant to section 10(5) of the Extradition Act 1994 ("the 1994 Act"), committed the three men to custody to await extradition. The evidence upon which the USA (the requesting state) principally relied was an affidavit from an accomplice, Herbert Hanna, who gave a detailed and damning account of the three men's close involvement in the conspiracy. Thousands of lbs of cocaine were found, millions of US dollars in cash.
On committing the men to custody the magistrate told them of their right to apply to the Supreme Court for habeas corpus. This was pursuant to section 11(1) of the 1994 Act:
"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 …"
On 17 October 2001 the three men each applied for habeas corpus and these applications (together with judicial review proceedings issued on 14 December 2001 upon the judge's own suggestion) were heard by Isaacs J in the Supreme Court on 5 February 2002. At the conclusion of the hearing the judge ordered writs of habeas corpus to issue with a return date of 26 February 2002, the men meanwhile to be released on bail subject to sureties. The final order of habeas corpus was duly made on 26 February 2002 when the three men were released unconditionally. On 5 February the judge had ruled:
"I find that the orders of committal are void. In the premises the writs must issue and the applicants [be] 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."
The judge's order was based upon his finding "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." This finding itself was based upon the form of words used by Mr Hanna in his affidavit as a prelude to giving his detailed account of the conspiracy: "I am a source of information for the US Drug Enforcement Administration …. On August 9, 2000, I provided the following information …."
As the Board was later to observe (when dealing, as will shortly be explained, with an appeal by the appellant's two co-accused), this was "an astonishing conclusion"; indeed, no court has since suggested that it could possibly be supported. Their Lordships readily acknowledge that it produced a serious miscarriage of justice. The critical question arising, however, is whether or not this injustice could be corrected. Did the USA have a right of appeal?
Section 11(5) of the 1994 Act provided that:
"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 …"
In short, it provided for an appeal against a judge's refusal to grant habeas corpus but not for an appeal against its grant. This provision notwithstanding, the USA on 12 February 2002 gave notice of appeal to the Court of Appeal against the order of 5 February 2002 for the issue of writs of habeas corpus, invoking for the purpose section 17(3) of the Court of Appeal Act as amended:
"Any person aggrieved … (a) by any declaratory order, order of mandamus, order of prohibition or order of certiorari made by the Supreme Court in any proceedings … may appeal to the court against any such order … on any ground of appeal which involves a point of law or of mixed fact and law …"
The USA argued that, properly analysed, the judge here had in fact been exercising a judicial review function and that accordingly the Court of Appeal had jurisdiction to entertain the appeal. The Court of Appeal (Sawyer P, Churaman and Ibrahim JJA) accepted this argument and on 22 January 2003 allowed the USA's appeal and restored the magistrate's orders for committal (initially against Knowles and Cartwright and then later, following his arrest on 9 February 2005, against the appellant too).
Knowles and Cartwright appealed to the Judicial Committee, the critical issue again being whether or not the Court of Appeal had had jurisdiction to entertain the USA's appeal. By a majority of three 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. In giving the opinion of the Board Lord Steyn said (para 5) that "[t]he correct approach is to ask, against the relevant context, what the legal effect of the pronounced decision is", before concluding (para 19):
"[The Court of Appeal's] view [that in substance the judge had been making an order for certiorari] is reinforced by the judge's conclusion that 'I find that the orders of committal are void'. The judge was in effect making a declaration that the orders of committal were void. From that decision it followed that the state was no longer entitled to detain the applicants. The judge had based his decision on judicial review. Accordingly there was a right of appeal against the critical order."
The dissenting minority (para 38) said this:
"Even if the judge (contrary to his express statement) is to be treated as having made an order of certiorari, we do not see how that helps the applicants. That only means that he made two orders: a deemed order of certiorari and an actual order that habeas corpus should issue. The applicants may have been entitled to appeal against the first. But that does not enable them to set aside the order for release unless they can also appeal against the second."
The minority then applied the same reasoning to the Board's suggestion that the judge should be treated as having made a declaratory order.
As already indicated, the appellant was still at liberty at the time of the Court of Appeal's judgment on 22 January 2003 and it was not applied to his case until after his arrest on 9 February 2005. By then, of course, it had been upheld by the Board as against Knowles and Cartwright. On 3 November 2005 the appellant himself obtained leave to appeal to the Judicial Committee.
Three issues now arise before their Lordships. First, is the appellant's case distinguishable from that brought by Knowles and Cartwright? Second, if not, is the decision of the (majority of the) Board on 10 February 2004 (the decision in Cartwright) correct? Third, even if incorrect, should it nevertheless be followed?
The first issue can be speedily disposed of. Mr Knowles seeks to distinguish the appellant's case from that of his two co-accused by reference to an order for habeas corpus signed by Isaacs J bearing the date 26 February 2002 but in fact prepared by the appellant's attorney, placed by him ex parte before the Court and signed by the judge in February 2005 following the appellant's re-arrest.
The argument is a hopeless one. Not only is there nothing to suggest that the draft order was even shown to (let alone agreed by) the USA's attorney, or that the judge's attention had been drawn to the judgment of the Board in Cartwright, but, conclusively, the USA's appeal against the order had already been allowed so that whatever order had previously been made by the judge was long past any process of perfection or correction.
The second issue requires somewhat fuller discussion although, since each of the seven members of the Board as presently constituted is of the clear view that the minority opinion of the Board in Cartwright was correct and that the Court of Appeal had had no jurisdiction to hear the USA's appeal in these cases, their Lordships need not labour the points unduly.
Mr Knox QC for the respondent government seeks to uphold the Court of Appeal's assumption of jurisdiction on two grounds. First he submits that the opinion of the (majority of the) Board in Cartwright was correct for the reasons given. Mr Knox chose not to elaborate this submission but rather to allow Lord Steyn's opinion to speak for itself. With the utmost respect to that opinion their Lordships cannot see how it meets the decisive objection noted by the minority: the fact that, whether or not the judge also made an order for certiorari or a declaration, he undoubtedly made an order for habeas corpus and against that particular order there was no appeal. Paragraph 41 of the minority's opinion encapsulates the essential difficulty in the majority's view:
"The interpretation given by the majority to the judgment of Isaacs J means that not only did he (presumably on the authority of Molière) make a declaratory...
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