Jean-Rony Jean Charles v The Honourable Carl Bethel (in his Capacity as Attorney General of the Bahamas) and 4 others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hodge,Lord Reed,Lord Kitchin,Lord Hamblen,Lady Rose |
| Judgment Date | 15 December 2022 |
| Neutral Citation | [2022] UKPC 51 |
| Docket Number | Privy Council Appeal No 0100 of 2019 |
| Court | Privy Council |
[2022] UKPC 51
Lord Reed
Lord Hodge
Lord Kitchin
Lord Hamblen
Lady Rose
Privy Council Appeal No 0100 of 2019
Privy Council
Michaelmas Term
From the Court of Appeal of the Commonwealth of the Bahamas
Appellant
Edward Fitzgerald KC
Frederick Smith KC
Adrian de Froment
Roderick Dawson Malone
(Instructed by Simons Muirhead Burton LLP (London))
Respondents
Tom Poole KC
Kayla Green Smith, Crown Counsel
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 5 July 2022
Lord Hodge ( with whom Lord Reed, Lord Kitchin, Lord Hamblen and Lady Rose agree):
On 18 September 2017 officers of The Bahamas Immigration Department arrested and detained a man who gave his name as “Jean Charles” and his date of birth as 1 December 1985. The arrest took place in the Fire Trail Road area of New Providence. Because he had no documents in his possession when he was asked to produce them, he was taken to the Carmichael Road Detention Centre. The detained man later signed an immigration profile form in which he confirmed his name and the date of birth which he had given the officers. The profile had a photograph of the man in the top right-hand corner of the document. The authorities checked the birth records at The Bahamas Registrar General's Department and found no record of a “Jean Charles” having been born in The Bahamas on 1 December 1985. The authorities did not charge him with any offence or take him before any court, no deportation or detention order was made in respect of him, but on 24 November 2017 he was expelled to Haiti.
The appellant, Jean-Rony Jean Charles, asserts that he was that man. The respondents admit that the person who was expelled on 24 November 2017 is the same person as the man who was returned to The Bahamas in response to the order of the court described below. They also admit that that person was returned to The Bahamas under an emergency travel document under the name of “Jean-Rony Jean Charles” with a date of birth of 5 December 1982. The emergency travel document contained a photograph of the appellant when he was aged 18 years, which, according to the appellant's counsel, the Ministry of Foreign Affairs obtained from their files. The appellant's legal representative, Mr Frederick Smith KC, objected to the use of an out-of-date photograph and provided the Ministry with an updated photograph of the appellant. Nonetheless, the respondents assert that there is an unresolved issue as to whether the appellant is the same man as the “Jean Charles” whom they expelled and then returned to The Bahamas. As explained below, on the information provided at the hearing of this appeal, the Board struggles to see any substance in the suggested issue as to whether the appellant is the person whom the respondents expelled and returned to The Bahamas. That however is not determinative of the appeal.
The principal issues on this appeal at the outset were (i) whether the appellant was entitled to seek constitutional redress in the context of an application for habeas corpus, (ii) whether the judge had the power to grant him constitutional redress after the judge had dismissed the writ of habeas corpus, and (iii) whether, in the circumstances in which the application for constitutional redress was made, the judge failed to act with procedural fairness in granting him constitutional redress. The parties have since agreed that the first question should be answered in the affirmative. The parties raised other issues as to whether the appellant's constitutional rights had been breached and, if so, what remedial order should have been made, and whether an appellate court could resolve those matters, but, as explained below, those issues do not arise because of the Board's decision on the question of procedural fairness.
The appellant was born in Princess Margaret Hospital, Nassau, New Providence, The Bahamas on 5 December 1982. His parents were not citizens of The Bahamas. His mother was and is a citizen of Haiti and the appellant has not been registered as a citizen of the Bahamas. The appellant's sister, Clotilde Jean Charles (“Clotilde”), in an affidavit dated 28 November 2017 in the proceedings described below, explains these circumstances of the appellant's birth and asserts that the appellant has never travelled outside The Bahamas. The respondents wish to investigate her assertions.
Clotilde explained in her affidavit, and the respondents do not challenge her factual account before the Board, that she is the appellant's sister. She asserted that the appellant had been arrested and imprisoned in the Carmichael Road Detention Centre about 12 weeks before, that she and other members of the appellant's family had made numerous attempts to secure his release, that the family had been told that the matter was being investigated and that his documents which they had submitted to the Department of Immigration could not be found. In the affidavit Clotilde also asserted that her brother's imprisonment was both unlawful and unconstitutional. She asked the High Court for leave to issue a writ of habeas corpus directing the respondents to show cause why the appellant should not be immediately released.
On 29 November 2017 the appellant's family filed an ex parte summons for leave to issue a writ of habeas corpus on behalf of the appellant. The writ was supported by Clotilde's affidavit which the Board has described in paras 4 and 5 above. The writ was also supported by an affidavit by Akeira Martin, the appellant's attorney, sworn on 7 December 2017, exhibiting email correspondence which had passed between the appellant's counsel, Mr Frederick Smith KC, and among others, the first, second and third respondents in which he protested about his inability to see the appellant at the detention centre and narrated that immigration officers had told him that his client had been repatriated on 24 November 2017.
After an ex parte hearing on 7 December 2017 Hilton J, by order of that date, gave permission to issue the writ of habeas corpus with a return date of 19 December 2017. The third and fourth respondents filed a Return on 18 December 2017 which was made by Keturah Ferguson, the acting Director of Immigration. In the Return the acting Director of Immigration narrated that neither Jean Charles, date of birth 1 December 1985, nor the appellant, date of birth 5 December 1982, was detained in custody on 29 November or 7 December 2017. The acting Director of Immigration described the detention of the adult male Haitian, Jean Charles, on 18 September 2017, the absence of evidence that he was born in or had legally entered The Bahamas which gave him status to remain, and his escorted “return” to Haiti by charter flight on 24 November 2017. The Return narrated that “Jean Charles” had confirmed his identity and stated date of birth in the immigration profile and at a roll call. The Return included a redacted document listing the Haitian nationals scheduled for deportation on 24 November 2017 which included as one of that number “Jean Charles aka Jean Roni”. The Return stated:
“13. At the material time there is no record or conclusive evidence confirming or reason to believe that the said Jean Charles (DOB: 1 December 1985) base[d] on the information he provided to the authorities and/or the subject of this writ herein, Jean-Rony Jean Charles are one and the same person.”
Notwithstanding that assertion, in their written submissions filed on 19 December 2017 the respondents stated (para 9): “the Applicant is currently in Haiti having travel[led] on board Bahamas Air Charter # C6-BFC on Friday 24 November 2017, escorted by Immigration and Defence Force Officers.”
The hearing on the writ and the Return took place before Hilton J in the Supreme Court on 19 December 2017. On the morning of the hearing the appellant's legal team filed a notice of motion seeking a finding of contempt of court and constitutional redress under article 28 of The Bahamas Constitution. The respondents objected to the court entertaining the application for constitutional redress on the basis that an alternative remedy was available to the appellant. The judge heard arguments in relation to both the writ of habeas corpus and the constitutional motion.
Hilton J, in a judgment dated 26 January 2018, which was handed down on 30 January 2018, dismissed the writ of habeas corpus because the appellant was not detained by the respondents on the date when the writ was issued. The judge dismissed the objection to the application for constitutional redress, holding that the appellant did not have adequate means of redress through a civil suit for false imprisonment. In para 21 of his judgment the judge stated:
“It is undisputed that:
(a) The applicant was arrested by the immigration authorities on 18 September 2017 and then detained by them at the Carmichael Road Detention Centre until 24 November 2017.
(b) The applicant was never charged with any offence under the Immigration Act or any other statute in the Bahamas.
(c) The applicant was never taken to any court to answer any charges.
(d) No deportation order or detention order was issued against the applicant.
(e) The applicant was put on a plane and involuntarily taken to Haiti on 24 November 2017.
(f) The reason for his arrest, detention and expulsion from The Bahamas was stated in the document attached to the Return labelled ‘Profile’ as follows: ‘Subject was arrested on a routine status check on Fire Trail Road. The subject was asked to produce documents and had no documents in his possession. Subject was brought to the Detention Centre for further processing.’ The name listed was Jean...
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