Knowles v Government of the United States of America and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill |
| Judgment Date | 24 July 2006 |
| Neutral Citation | [2006] UKPC 38 |
| Court | Privy Council |
| Docket Number | Appeal Nos 64 of 2004 and 70 of 2005 |
| Date | 24 July 2006 |
[2006] UKPC 38
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hutton
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Privy Council
Delivered by Lord Bingham of Cornhill]
The Government of the United States of America ("the Government") seeks the extradition of Mr Knowles, the appellant, from the Bahamas to stand trial on drugs charges in Florida. To this end it has made two extradition requests, which have led to a proliferation of proceedings in the Bahamian courts, culminating in the two appeals now before the Board. The issues which fall for decision in these appeals are best understood in the context of the procedural history of the two extradition requests.
The first extradition request
On 8 December 2000 a federal grand jury indicted the appellant and others on counts of conspiracy to possess cocaine and marijuana with intent to distribute and conspiracy to import the same drugs into the United States. On each count the period of the conspiracy charged was between 11 November 1997 and 8 December 2000. This indictment founded the Government's first extradition request, made on 26 March 2001. Authority to proceed was promptly given, a committal hearing took place before the stipendiary and circuit magistrate (Mrs Carolita Bethel) and on 5 October 2001 she committed the appellant to await extradition to the United States.
The appellant applied to the Supreme Court for an order of habeas corpus ad subjiciendum and, during a hearing before Isaacs J, applied also for an order of judicial review. On 5 February 2002 the judge, taking the view that the evidence adduced by the Government was insufficient, made an order in the appellant's favour. But unfortunately no formal order was drawn up and doubt arose whether he had made an order of habeas corpus or certiorari. The Government appealed against the judge's order and the Court of Appeal heard argument on 8-11 April 2002. The issues on appeal were whether the Court of Appeal had jurisdiction to entertain the appeal at all, which depended on whether the order made was one of habeas corpus or certiorari, and, if the latter, whether the judge's order should be upheld. On 22 January 2003 the court (Sawyer P, Churaman and Ibrahim JJA) gave its reasons for concluding that the judge had exercised a judicial review function, that accordingly the Court of Appeal had jurisdiction to entertain an appeal and that the judge had erred in making the order he had. The effect was to uphold the magistrate's committal order. On the appellant's appeal to the Board against this decision, all members agreed ( Cartwright and another v Superintendent of Her Majesty's Prison and another [2004] UKPC 10, [2004] 1 WLR 902) that the judge had been clearly wrong in his assessment of the evidence, but opinion was divided on whether he had made an order of habeas corpus or certiorari, and whether the Court of Appeal had had jurisdiction to entertain the appeal. On these issues the majority upheld the jurisdiction and the decision of the Court of Appeal and the minority accepted the appellant's argument that the judge had made an order of habeas corpus and that the Court of Appeal had had no jurisdiction to entertain an appeal. So when judgment was given by the Board on 10 February 2004 the committal order still stood.
On 20 February 2004, however, the appellant again applied to the Supreme Court for an order of habeas corpus. He founded this application on section 7(1)(c) of the Extradition Act 1994 which, so far as material, provides:
"(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 extradition if it appears to the Minister, to the court of committal or to the Supreme Court on an application for habeas corpus—
(c) that he might, if extradited, be denied a fair trial … by reason of his … nationality …"
The appellant contended that he might, if extradited to the United States, be denied a fair trial. He based this contention on the fact that on 31 May 2002 the President of the United States had formally and publicly designated him as a drug "kingpin" within the meaning of the Foreign Narcotics Kingpin Designation Act 1999, with the result that he became subject to the sanctions and penalties provided by that Act. Those so designated were under the Act denied access to the US financial system, and US companies and individuals were prohibited from entering into any trading or professional transaction with a designated person unless licensed by the Government to do so. The appellant's contention was that his designation as a foreign drugs kingpin was tantamount to a declaration of his guilt by the highest authority in the Government; that this had already been published and could be found on a Government website; that his extradition and trial would be bound to attract very considerable publicity; that the jurors at his trial might well know or learn of his designation; that his trial would not be fair if a juror were prejudiced by such knowledge; and that this prejudice derived from his nationality, since the Act did not apply to US citizens. The Government took strong issue with this contention, relying in particular on the safeguards provided by federal procedure in the United States to ensure that jurors do not know or learn of, or pay attention to, inadmissible evidence prejudicial to a defendant.
The appellant's application for habeas corpus was listed before Small J in the Supreme Court and partly heard on 6 and 7 April 2004. The judge adjourned the hearing until May for the reception of expert evidence. When the hearing was resumed on 17-19 May evidence of experts for the appellant and the Government was adduced on affidavit and orally. The judge handed down his written judgment on 23 June 2004. In this he considered in some detail, but rejected, an objection strongly urged by the Government, that the appellant's application was an abuse of the court's process because it could and should have been raised earlier on the application to Lyons J to which reference is made in para 10 below. The judge found nothing to suggest that the appellant or his attorneys had been negligent or inadvertent in not raising the issue earlier, and concluded that the appellant had not made improper use of the machinery of the court in making the application. On the substance of the matter, the judge summarised the evidence and the competing submissions and concluded that the prejudicial effect of the presidential designation had been established and might expose the appellant to unfairness at his trial. Since only those who were not US citizens could be designated as drugs kingpins under the 1999 Act and the appellant, being a Bahamian citizen, was accordingly eligible for designation, this unfairness was by reason of his nationality. The judge therefore ruled that the appellant's claim for habeas corpus succeeded. On this occasion an order was drawn up that the writ of habeas corpus should issue. The effect was to discharge the order of committal made by the magistrate.
The Government promptly appealed against the decision of Small J, on the ground that he had had no jurisdiction to hear and determine the application of the appellant for a writ of habeas corpus since it constituted an abuse of the process of the court. The appeal came before the Court of Appeal (Sawyer P, Churaman and Ganpatsingh JJA), when the Government advanced this argument. The appellant submitted that no appeal lay by the Government against an order granting habeas corpus, and that the Court accordingly had no jurisdiction to entertain the appeal. In a judgment of the court delivered by Ganpatsingh JA on 11 May 2005, the court accepted the Government's argument on jurisdiction and on the merits of the kingpin argument and rejected the appellant's. Thus the magistrate's committal order was reinstated.
The appellant challenges this decision of the Court of Appeal in the first appeal now before the Board. This appeal (PC Appeal No 70 of 2005) gives rise to what is described below as "the first issue": it is whether the Court of Appeal was right to conclude that it had jurisdiction to entertain the Government's appeal against the order of habeas corpus made by Small J.
The second extradition request
The order made by Isaacs J for the release of the appellant on 5 February 2002 (para 3 above) prompted the Government to make a second extradition request, for which the same magistrate (Mrs Bethel) issued a provisional warrant on 6 February 2002. This was founded on an indictment preferred by a federal grand jury on 25 May 2000. It charged the appellant and others with counts of conspiracy to smuggle cocaine into the United States between June 1995 and 1997. Thus the second extradition request differed from the first in two respects: it was founded on an earlier grand jury indictment; and it related to an earlier period of time. It also charged different conspirators and depended on different evidence.
The Government's application to commit the appellant pursuant to its second extradition request was heard by the same magistrate in September-November 2002. The appellant resisted, mainly on the grounds that the second extradition request was an abuse of the process of the court, that the Government had not made proper disclosure and that the evidence was insufficient to support the charges. The magistrate rejected these arguments in a reasoned judgment given on 16 December 2002. On the abuse point she was of the opinion that a magistrate had no jurisdiction to stay or dismiss...
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