Omax Bye v Government of Sint Maarten

Hearing date: 16 January 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 5 February 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The respondent requesting territory wishes to extradite the appellant to St Maarten to stand trial for murder and possessing a firearm, under the law of St Maarten, an overseas territory of the Kingdom of the Netherlands. However, the respondent proposes that the appellant should be detained in the Netherlands during most of the pre-trial and trial process; and in Aruba for the final part of that process. The actual trial in Aruba is estimated to last two days.

The respondent proposes that if the appellant is acquitted, he will be released in St Maarten; and that if he is convicted, he will serve his sentence in a prison in the Netherlands and will be released in St Maarten when he has finished serving his sentence. It is therefore not envisaged by the respondent that the appellant will set foot in St Maarten until the end of the trial process and the end of any sentence if he is convicted.

The appellant says these proceedings are an abuse of process because while proposing to extradite the appellant to St Maarten, the respondent in fact intends to extradite him to the Netherlands. If the appellant is extradited, he will travel under escort not to St Maarten but to the Netherlands. The appellant says that is contrary to the Extradition Act 2003 ( the 2003 Act): it only permits removal to the geographical territory of the category 1 or 2 territory requesting extradition.

The respondent submits that there is no abuse of process here: the appellant's interpretation of the 2003 Act is wrong. The correct interpretation is that extradition to a particular “territory” includes removal of the requested person to a place not physically within that territory, but where its law applies to the criminal proceedings and where it has and exercises jurisdiction over the requested person at his trial.

The issue I have just identified is the only remaining point in this appeal. It was not argued before the magistrates' court. Mr Graeme Hall, now appearing for the appellant, did not appear below. The only point taken below was that extradition would be incompatible with the appellant's rights under article 8 of the European Convention. In the earlier phases of this appeal, the present issue was added, among others. Permission to appeal was refused by Wall J on the papers, but granted on oral renewal by Chamberlain J, on this issue only.

In his judgment on renewal, he described the point as a “short and crisp point of law” which “ought, in the interests of justice, to be decided even though the point was not taken at first instance.” He added that the point may “become relevant in other cases if extradition is later sought to territories which do not have their own detention facilities or, at least, do not have detention facilities which can be used in the individual case.”

Outline of the Facts

The appellant is a national of St Kitts and Nevis, born in June 1985. The respondent alleges that the appellant shot Mr Amador Jones six times near a snack bar in St Maarten on 16 April 2011. Mr Jones died of his wounds the next day. The killing is said by the prosecuting authorities in St Maarten to have occurred in the context of a feud about the trafficking of cocaine.

As Chamberlain J explained in Heilligger v Government of Sint Maarten and Secretary of State for the Home Department [2023] EWHC 422, at [1]:

“The island of Saint Martin lies in the northeast Caribbean Sea. The northern part of the island is known by its French name, Saint Martin, and is constitutionally a collectivité d'outre-mer (overseas territory) of the French Republic. The southern part is known by its Dutch name, Sint Maarten, and is one of four autonomous landen (countries) of the Kingdom of the Netherlands. Curaçao, in the southern Caribbean Sea, is another. Sint Maarten and Curaçao have been designated category 2 territories for the purposes of the Extradition Act 2003 ….”

The fourth land within the Kingdom of the Netherlands is Aruba, also designated as a category 2 territory under the 2003 Act.

The appellant came to the United Kingdom in February 2022. The St Maarten authorities issued an arrest warrant for him 30 March 2022. On 18 April 2022, Deputy Senior District Judge Ikram issued a provisional arrest warrant. The appellant was remanded in custody. On 12 May 2022, the Minister of Justice for St Maarten issued an extradition request. On 26 May 2022, the Secretary of State issued a certificate under section 70 of the 2003 Act, confirming that the extradition request was valid.

In October 2022, the St Maarten public prosecutor made two sworn statements explaining the proposed arrangements for the appellant's detention and trial, if he were extradited. He was considered a high risk prisoner for whom St Maarten's one prison was not suitable. He would initially be detained in a Netherlands prison. The trial would take place under the laws of St Maarten, which would bear the cost of his defence lawyer.

The first part of the trial process would take place in the Netherlands. As described by the prosecutor, it approximately corresponds to our case management process. Often, the defendant does not appear at hearings at which he is represented by his lawyer, or appears by video link. If the appellant were convicted, he would serve his sentence in the Netherlands but the law of St Maarten would apply to any release on parole.

In the second statement the prosecutor explained that the final phase of the trial, an oral hearing expected to last two days, would take place in Aruba, where the appellant would be detained in a court cell for the duration of the trial. If convicted, he would serve his sentence in the Netherlands. If acquitted, or on completion of his sentence, he would be returned to and released in St Maarten.

In a further statement made in December 2022, the Solicitor-General of St Maarten explained that the Dutch authorities had stated they would not comply with the request to implement the above arrangements (known as an “ORD” request) while the extradition process in the United Kingdom is ongoing; but they would comply with the ORD request if and when the appellant were extradited by the United Kingdom authorities.

The extradition hearing took place on 6 January 2023 before Senior District Judge Goldspring. He rejected the article 8 point and sent the case to the Secretary of State. On 1 March 2023, the latter ordered the appellant's extradition to St Maarten. The appellant appealed against the ruling that the case should be sent to the Secretary of State. Wall J refused permission to appeal on the papers, on 13 August 2023. On 5 November 2024, Chamberlain J granted permission on the single ground of appeal now before me.

Relevant Legal Framework

The Kingdom of the Netherlands (as stated in the skeleton argument of Mr Peter Caldwell for the respondent without dissent from the appellant) comprises:

“four countries: (a) the Netherlands; (b) Aruba; (c) Curaçao; and (d) Sint Maarten. In addition, the Islands of Bonaire, Sint Eustatius and Saba are special municipalities of the Netherlands. Although the separate countries of the Kingdom are self-governing, certain matters concerning the Kingdom as a whole (such as foreign affairs) are within the competence of the Kingdom itself. Only the Kingdom has international legal personality and thus can be considered to be a State with the power to conclude, ratify and accede to international legal agreements, such as treaties and conventions. Thus, it is the Kingdom (and not its constituent parts) that entered into extradition relations with the United Kingdom; it is the Kingdom that is responsible in international law for the legal obligations that arise from that relationship; and it is the Kingdom that has responsibility for ensuring that the Appellant's rights under the European Convention of Human Rights are respected.”

The Kingdom of the Netherlands ( the Kingdom) was one of the six founding member states of the European Economic Community ( EEC), being a signatory to the Treaty of Rome, signed on 25 March 1957. A protocol to the Treaty of Rome excluded the Caribbean parts of the Kingdom from the application of the Treaty of Rome, which was confined to the European parts of the Kingdom.

The same year, the European Convention on Extradition ( the ECE) was signed in Paris, on 13 December 1957. The signatories were Council of Europe member states, including the Kingdom and the United Kingdom. The official languages were English and French. Article 27(1) confined the application of the ECE to “the metropolitan territories of the Contracting Parties”.

However, there were exceptions and qualifications in article 27(2) and (3) in the case of France, the Federal Republic of Germany (i.e. West Germany) and the United Kingdom. Article 27(4) provided, and still provides, in the English text:

“By direct arrangement between two or more Contracting Parties, the application of this Convention may be extended, subject to the conditions laid down in the arrangement, to any territory of such Parties, other than the territories mentioned in paragraphs 1, 2 and 3 of this article, for whose...