Knowles and Others v The Superintendent of HM Fox Hill Prison (The Commissioner, Bahamas Department of Correctional Services) and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hamblen |
| Judgment Date | 19 July 2021 |
| Neutral Citation | [2021] UKPC 19 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0095 of 2017 |
[2021] UKPC 19
Privy Council
Lord Lloyd-Jones
Lord Briggs
Lord Hamblen
Lord Leggatt
Lord Stephens
Privy Council Appeal No 0095 of 2017
Appellants
Edward Fitzgerald QC
Damian A L Gomez QC
Joseph Middleton
(Instructed by Simons Muirhead & Burton LLP)
Respondents
James Lewis QC
(Instructed by Charles Russell Speechlys LLP)
The appellants seek to challenge their extradition from The Bahamas to the United States of America to stand trial for conspiracy to commit drug trafficking offences.
This appeal concerns two grounds of challenge. The first is that the evidence adduced in support of the extradition was not “duly authenticated” in accordance with section 14(3)(a) of the Extradition Act 1994 (“the Act”) (“the authentication issue”). The second is that the appellants have been deprived of their constitutional right to have habeas corpus proceedings determined within a reasonable time, in violation of article 20(8) of the Constitution of The Bahamas and that they are entitled to a remedy by way of discharge from the proceedings (“the delay issue”).
The alleged conspiracy to traffic drugs concerns shipments of cocaine from The Bahamas to Florida between June and November 2002 involving over 1,000 kg of cocaine.
On 12 December 2002, the appellants and others were charged by a grand jury sitting in the US District Court for the Southern District of Florida. On 15 December 2002, the US authorities sent a request for the appellants’ provisional arrest with a view to their extradition. A full extradition request was sent on about 6 February 2003. The acting Minister of Foreign Affairs, Dr Marcus Bethel, issued an Authority to Proceed to the magistrate on 13 February 2003.
The committal proceedings began on 24 March 2003 before Stipendiary and Circuit Magistrate Carolita Bethell. The principal evidence relied on at committal consisted of a number of affidavits of the prosecution witnesses, namely Drug Enforcement Authority (“DEA”) agents, scientists, and co-conspirators who had been arrested when the importing vessels were seized and who inculpated other conspirators. These affidavits were exhibited to an affidavit of Karen Atkinson, an Assistant US Attorney. It is Karen Atkinson's affidavit which is said not to have been “duly authenticated”.
As summarised by the Court of Appeal, Karen Atkinson's affidavit “sets out her familiarity with the charges and her opinion as to the relevant law. It exhibits the affidavits of witnesses containing evidence given on oath before the grand jury which resulted in the Indictment, and on which the US relies for its Request for extradition. It certifies that the charges are felonies punishable by more than a year's imprisonment; sets out that warrants of arrest were issued and the dates on which they were issued; and attests that the evidence indicates that each of the appellants is guilty of the offences in the Indictment.”
At the committal hearing no challenge was made to the admission of Karen Atkinson's affidavit. The only objection raised by leading counsel then representing the appellants, Keir Starmer QC, was that parts of the evidence exhibited by her were hearsay. The magistrate expressly found that all the evidence had been duly authenticated.
On 12 November 2003, the magistrate committed the appellants to HM Prison Fox Hill to await extradition.
On 25 November 2003, the appellants applied to the Supreme Court for writs of habeas corpus. They made separate applications for judicial review of the instrument appointing Dr Bethel as acting Minister of Foreign Affairs. Both sets of proceedings were subsequently dealt with together in the Supreme Court.
In May 2004, the appellants applied for discovery relating to the appointment of Dr Bethel and for bail. Thompson J granted both applications, but in June 2004 the Court of Appeal allowed the State's appeal against both orders. The appellants appealed to the Judicial Committee, which in March 2005 dismissed the appeal on disclosure but allowed the appeal on bail: Knowles v Superintendent of Her Majesty's Prison Fox Hill [2005] 1 WLR 2546. On 25 March 2005, the appellants were admitted to bail and have remained on bail since then.
Between 2003 and 2015 there was correspondence between the parties and the courts as to the transmission of the certified transcripts and exhibits from the committal proceedings and the listing of the habeas corpus matter in the Supreme Court. The matter was also reassigned during that period from Thompson J to Allen J and then to Stephen Isaacs SJ.
Following several status hearings before Isaacs SJ, the substantive hearing of the habeas corpus applications took place between 29 February and 3 May 2016. The judge refused both the habeas corpus and judicial review applications.
On 23 October 2017, the appellants’ appeals against the rejection of their habeas corpus applications were dismissed by the Court of Appeal (Dame Anita Allen P; Isaacs and Crane-Scott JJA). On the same day, the appellants filed a joint notice of motion in the Court of Appeal for leave to appeal to the Judicial Committee, but leave was refused on 28 November 2017.
On 12 December 2017, all five of the appellants in the court below applied to the
Judicial Committee for permission to appeal. Two of the appellants, Austin Knowles and Sean Bruey, subsequently withdrew their applications. The Judicial Committee granted leave to appeal to the remaining three appellants on 10 April 2019.
The appellants’ extradition request was submitted pursuant to the Extradition Treaty concluded between The Bahamas and The United States in 1990 (“the Treaty”). The legal requirements for extradition from The Bahamas are set out in the Act.
Under section 10 of the Act the magistrate has to be satisfied (i) that the offence to which the Authority to Proceed relates “is an extradition offence” and (ii) that the evidence against the requested person “would be sufficient to warrant trial for that offence if the offence had been committed in The Bahamas”. Evidence must therefore be adduced to establish a prima facie case. If these requirements are satisfied, then the person is to be committed to custody to await extradition “unless his committal is prohibited by any other provision of this Act” — see section 10(5).
An “extradition offence” is as defined in section 5 of the Act, which materially provides as follows:
“5(1) Without prejudice to subsection (2) for the purposes of this Act, any offence of which a person is accused or has been convicted in an approved State is an extradition offence, if -
…
(b) in the case of an offence against the law of a treaty State -
(i) it is an offence which is provided for by the extradition treaty with that State; and
(ii) the act or omission constituting the offence, or the equivalent act of omission, would constitute an offence against the law of The Bahamas if it took place within The Bahamas or, in the case of an extraterritorial offence, in corresponding circumstances outside The Bahamas.
…
(3) Any offence which the Minister under his hand certifies is the subject matter of a request received from an approved State for the purposes of section 8 and that he is satisfied is constituted by acts in furtherance of the possession, distribution, importation or manufacture of dangerous drugs is an extradition offence for the purposes of this Act and of the extradition treaty with that approved State.”
The admissibility requirements in relation to evidence in extradition proceedings are set out in section 14 of the Act, which materially provides as follows:
“14(1) In any proceedings under this Act, including proceedings on an application for habeas corpus in respect of a person in custody under this Act -
(a) a document, duly authenticated, which purports to set out testimony given on oath in an approved State shall be admissible as evidence of the matters stated therein;
(b) a document, duly authenticated, which purports to have been received in evidence, or to be a copy of a document so received in any proceedings in an approved State shall be admissible in evidence;
…
(3) A document shall be deemed to be duly authenticated for the purposes of this section -
(a) in the case of a document which purports to set out testimony given as referred to in subsection (1)(a), if the document purports to be certified by a judge, magistrate or officer of the Court in or of the approved State in question or an officer of the diplomatic or consular service of that State to be the original document containing or recording that testimony or a true copy of that original document;
(b) in the case of a document which purports to have been received in evidence as referred to in subsection (1)(b) or to be a copy of a document so received, if the document purports to be certified as aforesaid to have been, or to be a true copy of a document which has been so received;
…
(5) A document purporting to be issued under the hand of the Minister for the purposes of section 5(3) shall be admissible in evidence in any proceedings under this Act and shall be prima facie evidence of the facts stated in that document.
(6) Nothing in this section shall prevent the proof of any matter, or the admission in evidence of any document, in accordance with any other law of The Bahamas.”
Section 7(1) of the Act sets out circumstances in which extradition and committal to or retention in custody is prohibited:
“7(1) A person shall not be extradited under this Act to an approved State or committed to or kept in custody for the purposes of such...
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