Knowles and Others v Superintendent of HM Fox Hill Prison and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Slynn of Hadley |
| Judgment Date | 23 March 2005 |
| Neutral Citation | [2005] UKPC 17 |
| Court | Privy Council |
| Docket Number | Appeal No. 45 of 2004 |
| Date | 23 March 2005 |
[2005] UKPC 17
Privy Council
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Slynn of Hadley
Lord Hoffmann
Lord Hope of Craighead
Sir Swinton Thomas
and Others
and Others
[Delivered by Lord Slynn of Hadley]
Each of the appellants was charged in the United States respectively with various offences relating to the possession, importation and supplying of dangerous drugs "in the Bahamas and abroad" contrary to the Dangerous Drugs Act 2000. An application was made for their extradition from The Bahamas to the United States. By an Authority to Proceed dated 13 February 2003 in relation to each of the appellants Dr Marcus Bethel as "Acting Minister of Foreign Affairs" authorised the Stipendiary and Circuit Magistrate, Nassau, to proceed against the appellants respectively on the various charges in accordance with the Extradition Act 1994, in respect of offences which he stated he was satisfied "are offences provided for in the extradition treaty with the United States and the acts and omissions constituting the offences would constitute the offences" respectively set out in each authorisation to proceed.
Orders were made by the Magistrate, Mrs Carolita Bethel for the appellants to be committed to prison to await extradition pursuant to section 10 (5) of the Extradition Act 1994 Ch 96. With the leave of Thompson J in the Supreme Court given on 25 November 2003 proceedings were issued seeking orders of habeas corpus for the release from prison of the appellants on the grounds specified in the originating Notices of Motion. On 25 November 2003 originating summonses were also issued seeking leave to apply for habeas corpus, for judicial review by certiorari of the Magistrate's decision and asking, in addition to immediate release, for damages.
The applicants also sought by separate applications for judicial review an order quashing the instrument of appointment of Dr Bethel and declaring both that his appointment and the subsequent extradition proceedings were ultra varies and void. On 22 April 2004 summonses were issued by the appellants asking that they be admitted to bail.
The appellants contended that Dr Bethel was not properly appointed so that he did not have the power to sign the Authorities to Proceed which were therefore invalid. They sought discovery of documents which they said were relevant to this issue. When the matter came before Thompson J she accepted that this question was "definitely a matter in issue between the parties" and that his appointment was "obviously vital to these proceedings". She also accepted that the documents of which discovery was sought would be in the possession of the Respondents and had not been disclosed. Accordingly in the exercise of her discretion she ordered pursuant to Order 24 of the Rules of the Supreme Court 1978 that the Respondents produce
"1. All documents pertaining to the alleged purported exercise of the Governor General's power of appointment of the Hon Dr Marcus Bethel as Acting Minister of Foreign Affairs in February 2003, including correspondence with the Rt Hon Prime Minister and the documented leave granted to the Hon Frederick Mitchell to permit him to leave the jurisdiction.
2. Bills and receipts for hotel accommodations, airfare with relevant warrants or other authorities for payment associated therewith.
3. Any formal documents or communiques' signed by Minister Mitchell on his official trip.
4. Confirmation in writing as to the date of publication of the Official Gazette relied upon by the Respondents in the purported proceedings before S & C Magistrate Bethel affecting the applicants."
It was contended by the appellants before the Court of Appeal that that Court did not have jurisdiction to hear the appeal against the Order for Discovery. That contention was robustly rejected by the Court but it is pursued before the Board on the grounds, first, that the appeals were raising only issues of fact or mixed fact and law, and secondly that they were interlocutory orders. Accordingly, the Court of Appeal could not hear them.
By section 10 of the Court of Appeal Act Ch. 52 it is provided that:
"Subject to the provisions of this Part of this Act and to the rules of court, the court shall have jurisdiction to hear and determine appeals from any judgment or order of the Supreme Court given or made in civil proceedings, and for all purposes of and incidental to the hearing and determination of any such appeal and the amendment, execution and enforcement of any judgment or order made thereon, the court shall, subject as aforesaid, have all the powers, authority and jurisdiction of the Supreme Court." (underlining added)
The first question is thus whether this order as to discovery is an order made in civil proceedings.
The distinction between civil and criminal proceedings was considered in Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147, where an application for habeas corpus had been refused by the Divisional Court, against which refusal there was no appeal if it was "a judgment in a criminal cause or matter". At p162 Lord Wright said:
"The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment such as imprisonment or fine, it is a 'criminal cause or matter'. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal.
In In Re O (Restraint Order: Disclosure of Assets) [1991] 2 QB 520, 527 Donaldson J drew a distinction between a judgment 'in a criminal cause or matter' and a judgment 'collateral to a criminal cause or matter'."
The challenge to Dr Bethel's authority raises clearly a constitutional issue. The appellants also claim damages including exemplary and aggravated damages. Neither of these claims is made in a criminal cause or matter in the sense explained by Lord Wright. They are on any view collateral to the challenge to the order of committal in custody pending extradition. The Court of Appeal accordingly had jurisdiction under section 10 of the Court of Appeal Act and it is unnecessary to consider whether there was also jurisdiction to hear the appeals under section 21(3) of that Act. The Board has no doubt that in the present case the Court of Appeal was right to hold that it had jurisdiction under section 10 to hear the appeals against the order for discovery.
The Court of Appeal regarded this challenge to Dr Bethel's appointment and the order for discovery as a method of impleading and impugning the Governor-General and other officers appointed under her authority in a way which was wholly unacceptable. "First, the Governor-General cannot be impleaded in any proceedings. Secondly, an order cannot be made against the Governor-General qua Governor-General. There are some institutions in this country – for obvious reasons as we said during the course of discussions – that are inviolable and ought to remain so. This order not only seeks to denigrate the office of Governor-General, but it also suggests unholiness in the office, lack of perspicacity in the office".
The Constitution provides as follows:
"2. This Constitution is the Supreme law of the Commonwealth of The Bahamas and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.
32. … [The Governor-General] shall be Her Majesty's representative in The Bahamas
71.(1) The Executive authority of The Bahamas is vested in Her Majesty.
71.(3) Nothing in this article shall prevent Parliament from conferring functions on persons or authorities other than the Governor-General
76.(1) Whenever a Minister other than the Prime Minister is unable, by reason of his illness or absence from The Bahamas or absence from his duties on leave, to perform the functions of his office, the Governor-General may, in writing, authorise another Minister to perform those functions or appoint a person to be a temporary Minister:
(2) Subject to the provisions of Article 74 of this Constitution, a temporary Minister shall hold office until he is notified by the Governor-General in writing that the Minister on account of whose inability to perform the functions of his office he was appointed is again able to perform those functions or that Minister vacates his office.
(3) the powers conferred on the Governor-General by this Article shall be exercised by him in accordance with the advice of the Prime Minister.
77. The Governor-General, acting in accordance with the advice of the Prime Minister, may, by directions in writing, charge the Prime Minister or any other Minister with responsibility for any business of the Government of The Bahamas, including the administration of any department of Government:
Provided that a Minister appointed from among members of the House of Assembly shall be charged with responsibility for finance.
79.(4) Where the Governor-General is directed to exercise any function on the recommendation or advice of, or with the concurrence of, or after consultation with, any person or authority, the question whether he has so exercised that function shall not be enquired into in any court.
85. The Governor-General, acting in accordance with the advice of the Prime Minister, may...
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