Grant v Correctional Services
| Jurisdiction | UK Non-devolved |
| Judge | Lord Nicholls of Birkenhead |
| Judgment Date | 14 June 2004 |
| Neutral Citation | [2004] UKPC 27 |
| Date | 14 June 2004 |
| Year | 2004 |
| Court | Privy Council |
[2004] UKPC 27
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
Dame Sian Elias
Privy Council
[Delivered by Lord Nicholls of Birkenhead]
Before their Lordships' Board is a petition for special leave to appeal from a decision of the Court of Appeal of Jamaica dated 7 November 2002. By that decision the Court of Appeal, comprising Forte P, Panton and Smith JJA, dismissed an appeal by the petitioner, Mr Dave Antonio Grant, against the refusal of the Full Court of the Supreme Court, comprising Wolfe CJ, Granville James and Karl Harrison JJ, to grant a writ of habeas corpus to secure his release from prison where he was awaiting extradition to the United States. On 14 April 1998 the petitioner had pleaded guilty to a drugs offence before a district judge in Texas. Sentencing was postponed until 10 July 1998, but he failed to appear for sentencing. Instead he fled to Jamaica, of which country he is a citizen. The extradition proceedings were brought for the purpose of completing the case in which the petitioner had entered the plea of guilty.
The petitioner's petition for special leave to appeal came before their Lordships' Board on 12 November 2003. On that occasion a question was raised as to the Board's jurisdiction to hear the petitioner's appeal. The Board adjourned that question to a full board of the Judicial Committee. The Board held that if jurisdiction were found to exist special leave ought to be granted. The question now before the Board is the question of jurisdiction.
The basis of the submission that the Board has no jurisdiction is section 21A of the Judicature (Appellate Jurisdiction) Act of Jamaica. Part IVA of that Act, comprising section 21A, makes provision for appeals to the Court of Appeal in proceedings seeking a writ of habeas corpus or a prerogative order:
"(1) An appeal shall lie to the Court -
(a) in any proceedings upon application for a writ of habeas corpus in a criminal cause or matter against the refusal to grant the writ;
(b) in any proceedings upon an application for an order of certiorari, mandamus or prohibition, in a criminal cause or matter, against the grant of the order as well as against the refusal of such an order.
(2) For the purpose of disposing of an appeal under this section the Court may exercise any powers of the court below or remit the case to that court.
(3) The decision of the Court in any appeal under this Part shall be final."
The Solicitor-General submitted that subsection (3) displaced any scope for a further appeal to their Lordships' Board.
The nature of the Crown's right to grant special leave to appeal was considered most recently by the Board in De Morgan v Director-General of Social Welfare [1998] AC 275. The Board held that the right to entertain appeals to the Privy Council is no longer a wholly prerogative power but is regulated by the Judicial Committee Acts 1833 and 1844. It is not a normal prerogative power of the Crown. Lord Browne-Wilkinson said, at p 285, that it is "at best, a power which is in substance statutory, being regulated by the Judicial Committee Acts, with a vestigial and purely formal residue of the old prerogative powers". Accordingly, express words are not required to limit or abolish the right to entertain such appeals. It is enough if the statute excluding the right of appeal to the Privy Council shows "either expressly or by necessary intendment" that the power to entertain such appeals is to be abolished.
Section 21A of the Judicature (Appellate Jurisdiction) Act does not expressly abolish the Board's power to grant special leave to appeal. The question is whether subsection (3) of that section (the "decision of the Court in any appeal under this Part shall be final") abolishes the Board's power by necessary intendment. Their Lordships consider that it does. Before the enactment of section 21A there was no right of appeal to the Court of Appeal against refusal to grant a writ of habeas corpus or to make a prerogative order, although the Board had power to grant special leave to appeal. Section 1 of the Judicial Committee Act 1844 (7 & 8 Vict c 69) empowered Her Majesty by order in council to hear appeals from any court within a British colony. This power was not confined to appeals from courts of appeal: see In re Barnett (1844) 4 Moo PC 453. When the Parliament of Jamaica introduced a right of appeal to the Court of Appeal by section 21A, it made plain by subsection (3) that there was to be no further appeal. Thus, there could be no question of an applicant being entitled to appeal as of right to the Board from a decision of the Court of Appeal. Nor could there be any question of the Court of Appeal having a discretionary right to grant leave to appeal to the Board. Their Lordships can see no basis for concluding that, in these respects, the decision of the Court of Appeal was to be final, but that finality was to leave open an appeal pursuant to special leave granted by the Board. That would not achieve the intended finality.
There is a second, more difficult issue. Section 21A of the Judicature (Appellate Jurisdiction) Act was inserted into that Act by the Judicature (Appellate...
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