The Superintendent of HM Foxhill Prison and The Government of the United States of America v Viktor Kozeny
| Jurisdiction | UK Non-devolved |
| Judge | Lord Dyson,Lord Clarke |
| Judgment Date | 28 March 2012 |
| Neutral Citation | [2012] UKPC 10 |
| Date | 28 March 2012 |
| Docket Number | Appeal No 0073 of 2010,Appeal No 73 of 2010 |
| Court | Privy Council |
[2012] UKPC 10
Privy Council
Lord Hope
Lady Hale
Lord Kerr
Lord Clarke
Lord Dyson
Appeal No 0073 of 2010
Appellant
Alun Jones QC
Howard Stevens
(Instructed by Charles Russell LLP)
Respondent
Clive Nicholls QC
Hugo Keith QC
James Lewis QC
(Instructed by Davis & Co Bahamas)
Heard on 23–24 November 2011
Lord Clarke AND
With special leave granted by the Judicial Committee, the appellants appeal against the dismissal by the Court of Appeal (Dame Sawyer P, Longley and Blackman JJA) of their appeal against the grant by the Supreme Court (Isaacs J) of a writ of habeas corpus ad subjiciendum in respect of the respondent. It is contended on behalf of the respondent that the Judicial Committee had no jurisdiction to grant special leave to appeal. Before the Board addresses the issue of jurisdiction, it is necessary to set the scene. The facts are somewhat complex. For present purposes, however, it is sufficient to give only a brief outline.
The respondent, who is not a US national or resident, is accused in the United States of America ("US") of bribery of a foreign public official and of money-laundering. By virtue of a request dated 28 November 2005, the second appellant sought his extradition from the Bahamas to stand trial in New York on a 27 count indictment. Extradition between the US and The Bahamas is governed by the US/Bahamas Treaty dated 9 March 1990 and (by virtue of the Extradition (Application to the United States Order 1994: SI 59 of 1994) by the Extradition Act 1994 ("the 1994 Act"). Count 1 of the indictment alleges a conspiracy to violate the US Foreign Corrupt Practices Act 1977 ("FCPA"). Counts 2 to 13 allege substantive offences under the FCPA. Count 21 alleges a related money-laundering conspiracy. As will become clear, the Board is only concerned with counts 1, 11 and 21. The FCPA offences concern the alleged bribery by the respondent and others of certain public officials of Azerbaijan in connection with the purchase of vouchers and options during the abortive privatisation of the State Oil Company of the Azerbaijan Republic. It is common ground that the conduct alleged in the indictment does not concern the bribery of any US or Bahamian officials. It is concerned solely with the bribery of Azeri officials.
On 5 October 2005, the respondent was arrested in Nassau on a provisional warrant of arrest and remanded in custody. On 2 December 2005, the Minister of Foreign Affairs issued his first Authority to Proceed ("ATP") asserting that the conduct alleged against the respondent, if it had occurred in The Bahamas, would have given rise to 30 offences contrary to Bahamian law. On 1 February 2006, committal proceedings were commenced before the Stipendiary and Circuit Magistrate ("the Magistrate"). On 9 March 2006, during these proceedings, the Minister issued a second ATP stating that he was satisfied that the US offences alleged against the respondent were "offences provided for in the extradition treaty with the [US]" and that the acts and omissions constituting those offences would constitute offences contrary to Bahamian law if they took place within The Bahamas. Counts 1 and 11 of the indictment were said to correspond with the offence of conspiracy to corrupt a public officer contrary to sections 89(1) and 462 of the Bahamian Penal Code ("the Penal Code"). Count 21 was said to correspond with the offence of conspiracy to commit money laundering, contrary to section 9(2) of the Money Laundering (Proceeds of Crime) Act 1996 and section 89(1) of the Penal Code.
On 23 June 2006, the Magistrate dismissed all the first ATP charges as well as the money laundering charges which were the subject of the second ATP. But she ruled that all of the charges of corruption of a public official referred to in the second ATP were "made out". On 28 September, she confirmed her earlier ruling and ordered the committal of the respondent under sections 5(1)(b) and 10(5) of the 1994 Act in respect of the corruption charges in the second ATP. She rejected the second appellant's alternative submission that the conduct alleged against the respondent also constituted offences under Article VIII of the Inter-American Convention against Corruption ("IACC") and thus amounted to extradition offences under section 5(2) of the 1994 Act.
On 10 October 2006, the respondent applied to the Supreme Court for a writ of habeas corpus pursuant to section 11 of the 1994 Act. On 16 July 2007, the US District Court of the Southern District of New York (Judge Scheindlin) ruled that all the FCPA and money-laundering counts were time-barred, save for counts 1, 11 and 21.
The habeas corpus proceedings were heard by Isaacs J. On 24 October 2007, he held that by virtue of section 7(1)(d) of the 1994 Act, the respondent could only be extradited in respect of counts 1, 11 and 21, since the other counts were time-barred. He also held, inter alia that none of these counts was an "extradition offence" because (i) they did not give rise to an offence contrary to Bahamian law (as was required by section 5(1)(b) of the 1994); and (ii) it was not open to the second appellant (a) to re-introduce the money-laundering charges contained in the second ATP or (b) to rely in the alternative on section 5(2) of the 1994 Act. For these (and other reasons), the judge granted the application for a writ of habeas corpus and the committal order was set aside.
The appellants appealed to the Court of Appeal under section 11(5) of the 1994 Act against the order for release of the respondent. On 26 January 2010, their appeal was dismissed. The Court of Appeal held inter alia that (i) in order to challenge the Magistrate's decision that no money-laundering extradition offences had been "made out", the appellants should have brought appeal proceedings by way of case stated pursuant to section 10(7) of the 1994 Act; (ii) it was not open to the requesting state to argue, in defence of the legality of the respondent's detention, that his committal was lawful on the basis of other extradition offences that had not been established before the Magistrate; (iii) reliance could not be placed, in the alternative, on section 5(2) of the 1994 Act since that section had not been specified in the ATPs; and (iv) the transnational bribery conduct of which the respondent was accused in the US would not, if committed in The Bahamas, have constituted offences of corruption of a public officer (contrary to section 462 of the Penal Code) or related conspiracy charges (contrary to section 89(2) of the Penal Code).
The respondent was, therefore, unconditionally discharged on 26 January 2010. On 11 February 2010, the appellants applied to the Court of Appeal for leave to appeal. This application was abandoned (and therefore dismissed) on 22 April after the Court of Appeal had made it clear that it had no jurisdiction to grant leave to appeal to the Judicial Committee of the Privy Council. On 2 July 2010, the appellants then applied to the Board for special leave. The respondents objected in writing on grounds which included that the Board has no jurisdiction to hear an appeal from the Court of Appeal of The Bahamas against an order made in habeas corpus proceedings for the release of a person who is detained. Permission to appeal was granted by Order in Council dated 9 February 2011. But this grant of permission did not (and could not) give to the Board jurisdiction to entertain an appeal if it did not in fact have jurisdiction to do so.
Before the Board addresses the issue of jurisdiction, it is necessary to refer to the principal relevant provisions of the 1994 Act.
Section 5(1)(b) provides that an offence of which a person is accused in a treaty State is an "extradition offence" in the case of an offence against the law of the treaty State if:
"(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 or omission, would constitute an offence against the law of The Bahamas if it took place within The Bahamas or, in the case of an extra-territorial offence, in corresponding circumstances outside The Bahamas."
Section 5(2) provides:
"Any offence constituted by an act, including an act taking place in The Bahamas that is of a kind over which Contracting States to an international Convention to which The Bahamas is a party are required by that Convention to establish jurisdiction is an extradition offence for the purposes of this Act and shall be deemed to be committed within the jurisdiction of any such Contracting State that appears to a court in The Bahamas having regard to the provisions of the Convention, to be appropriate."
Section 10 contains detailed provisions regulating proceedings for committal. These include:
"(5) Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the extradition of that person or on behalf of that person, that the offence to which the authority relates is an extradition offence and is further satisfied –
(a) where the person is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence if the offence had been committed in The Bahamas; or…
The court of committal shall…commit him to custody to await his extradition under this Act…
(7) If the court of committal refuses to make an order under subsection (5) in relation to a person in respect of the offence or, as the case may be, any of...
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