Can a person who has been extradited file a private claim for damages against the Minister who issued a surrender order pursuant to the Extradition Act.
This was the question that High Court Judge, Justice Raulston Glasgow sought to answer in delivering judgment in a case brought against a Grenada Minister of Foreign Affairs by an individual who was charged by the police in a Cocaine-related case and ordered by the Magistrate’s Court.
Allie Baptiste was arrested on 25th February 2009 by police officers on a charge of conspiracy to import illicit drugs into the United Kingdom.
On February 26, 2009, he was taken before Chief Magistrate, Her Honour Tamara Gill (as she then was) for a preliminary hearing.
The Chief Magistrate then transferred the case to another Magistrate, Her Honour Karen Noel (the committing Magistrate) who on 27th March 2009 granted bail to Mr. Baptiste.
On or about 16th April 2009, the State commenced the extradition proceedings before the committing Magistrate on the ground that Baptiste committed an extradition offence against the law of the UK, namely, “conspiracy to evade the prohibition on the importation of a controlled drug of class A, namely cocaine”.
Upon completion of the extradition proceedings, Her Honour Noel committed Baptiste on 15th October 2009 to be extradited to the UK.
Through local attorney-at-law, Dr. Francis Alexis, QC, Baptiste took legal action against the government minister seeking damages for losses suffered during the ordeal.
THE NEW TODAY reproduces an edited version of the Glasgow ruling on the case:
The statutory scheme and the ambit of the discretion imposed therein
(6) Section 12 – deals with procedures where a Magistrate refuses to commit the arrested person. The section offers the Commonwealth country or foreign state the option to question the proceedings before the High Court;
(7) Section 13 – The person who is committed further to the hearing before the Magistrate (the committed person) may make a habeas corpus application to the High Court. Of particular significance to this present discourse is section 13(4) which permits the High Court to “receive additional evidence relevant to the exercise of its jurisdiction…”;
(8) Section 14 outlines what is happen where a person consents to be extradited;
(9) Sections 15 and 16 are of particular relevance to this discussion and will be recited in full –
Order for surrender
(1)Where a person is committed under section 11 and is not discharged by order of the High Court, the Minister may by warrant order him or her to be surrendered unless his or her surrender is prohibited by this Act.
(2)Without prejudice to his or her general discretion to issue a warrant for the surrender of a person to a foreign State or Commonwealth country—
(a) the Minister shall not issue a warrant for the surrender of any person if it appears to the Minister in relation to the offence in respect of which that person’s surrender is sought, that—
(i) by reason of its trivial nature,
(ii) by reason of the passage of time since he or she is alleged to have committed it or to have become unlawfully at large, as the case may be, or (iii) because the accusation against him or her is not made in good faith in the interests of justice, it would having regard to all the circumstances, be unjust or oppressive to surrender him or her; and
(b) the Minister may decide not to issue a warrant for the surrender of a person accused or convicted of an offence not punishable with death in Grenada if the person could be or has been sentenced to death for that offence in the country by which the request for his or her surrender is made.
(3) A warrant for surrender shall not be issued in the case of a person who is serving a sentence of imprisonment or detention, or is charged with an offence in Grenada— (a) in the case of a person serving such a sentence, until the sentence has been served; and
(b) in the case of a person charged with an offence, until the charge is disposed of or withdrawn or unless an order is made for it to lie on the file and, if it results in his or her serving a term of imprisonment or detention, until the sentence has been served.
(4) The Minister may decide not to issue a warrant for surrender under this section for the surrender of a person committed in consequence of an extradition request, if another extradition request has been made in respect of that person and it appears to the Minister, having regard to all the circumstances of the case and in particular— (a) the relative seriousness of the offences in question;
(b)the date on which each such request was made;
(c) the nationality or citizenship of the person concerned and his or her ordinary place of residence, that preference should be given to that other request.
(5) Notice of the issue of a warrant under this section for the surrender of a person to a Commonwealth country shall forthwith be given to the person to be surrendered.
Surrender to foreign State
(1)The Minister shall give to the person to whom an order under section 15 for the surrender to a foreign State would relate, notice in writing that he or she is contemplating making such an order.
(2).The person to whom such an order would relate shall have a right to make representations, at any time before the expiration of the period of fifteen days commencing with the date on which the notice is given, as to why he or she should not be surrendered to the foreign State, and unless he or she waives that right, no such order shall be made in relation to him or her before the end of that period.
(3)A notice under subsection (1) shall explain in simple and ordinary language the right conferred by subsection (2).
(4)It shall be the duty of the Minister to consider any representations made in the exercise of that right.
(5)Unless the person to whom it relates waives the right conferred on him or her by subsection (6), he or she shall not be surrendered to the foreign State until the expiration of the period of seven days commencing with the date on which the warrant is issued or such longer period as rules of court may specify.
(6)At any time within the period mentioned in subsection (5), the person may apply for leave to seek judicial review of the Minister’s decision to make the order.
(7)If the person applies for judicial review, he or she may not be surrendered so long as the proceedings for judicial review are pending.
(8)Proceedings for judicial review shall be treated for the purposes of this section as pending until, disregarding any power of the court to grant leave to appeal out of time, there is no further possibility of an appeal.
(9)A warrant under section 15—
(a) shall state in simple and ordinary language that the Minister has considered any representations made in the exercise of the right conferred by subsection (2); and (b) shall explain in simple and ordinary language the rights conferred by this section on a person whose surrender to a foreign State has been ordered under section 15, and a copy shall be given to the person to whom it relates as soon as the order for his or her surrender is made.”
[24] It is immediately apparent that section 15(1) gives the Minister a general discretion whether or not to issue an order for the surrender of a committed person. I observe that while the Minister is clothed with the general discretion to issue the surrender order, the exercise of the discretion is largely circumscribed by the matters set out in section 15(2) et seq and by the procedure stipulated by section 16.
This is significant since the ambit of the Minister’s discretion is in sharp focus on this discourse. Specifically, Mr. Baptiste wants this court to find that the exercise of the Minister’s discretion required him to conduct or have instigated a number of enquiries that would have established Mr. Baptiste’s innocence of the claims made by the requesting State.
Mr. Baptiste claims that he placed these matters before the Minister when he met with the Minister pursuant to section 16(4). Mr. Baptiste insists that the Minister should have enquired or have investigated these matters placed before him and in particular –
(1) The details of monies sent by Mr. Gibson to Mr. Baptiste’s accounts at Grenada Co-operative Bank; Communal Co-operative Credit Union and Grenada Building and Loan;
(2) Mr. Baptiste spent the monies in those accounts by using cheques issued to individuals and business places who were not engaged in a conspiracy;
(3) The business conducted by Mr. Baptiste with Mr. Gibson and Mr. Moore were all bona fide and legitimate business transactions; and
(4) Mr. Baptiste had never been convicted of any drug related offences.
[25] Interestingly and significantly, Mr. Baptiste indicated that the representation and evidence he gave to the Minister were also considered by the committal court. I have recited above the evidence given by PS Browne as to the matters which the Minister considered before he issued the surrender order.
The contours of the discretion
It may be somewhat difficult for the court to outline the precise contours of the Minister’s general discretion to issue a surrender order pursuant to section 15(1). But as I have stated above, the exercise of this general discretion is largely circumscribed by the matters set out in section 15(2) et seq and by the procedure stipulated by section 16.
But was the Minister, in addition, enjoined to have regard to the evidence that Mr. Baptiste placed before him? Admittedly, the committal court had this material before it when the committal order was made.
The question of whether the Minister, in the exercise of his general jurisdiction to issue a surrender order, may consider afresh material placed before the committal court is not without judicial comment and pronouncement by our courts in the Eastern Caribbean.
I would also remind myself that further to the committal court’s order, Mr. Baptiste applied to the high court pursuant to section 13 for a writ of habeas corpus. At that court, he had another occasion to canvass the same issues placed before the committal court.
He could have also placed additional evidence before the court hearing the habeas corpus application. See section 13(4) recited above. See also the judgment of Price Findlay J delivered 12th May 2012 refusing the habeas corpus application.
With respect to materials canvassed previously before the committal court, it is not suggested in any of the cases (and I do agree that this is a correct view of the ambit of the discretion), that the Minister could not advert to the material previously placed before the committing Magistrate and/or the High Court.
In fact it is said that “[T]he width of this discretion means that the Secretary of State is entitled to consider the representations of an applicant on the basis that the Magistrate has satisfied himself that, as a matter of law, there is a prima facie case made out against the person, whose case he is considering.”[8]
Additionally, the Minister is “quite entitled to take the view that it was not open to him to come to a different conclusion from that of the…”[9] committing Magistrate or the High Court since it is absolutely clear that the Minister has no business sitting as a review or appellate court, so to speak, from the assessment and decisions made by the committal court and/or the High Court.
As Ramdhani J pithily opined “In considering whether a request was made in good faith, a second defendant (The Minister) does not superimpose himself into the judicial process which leads to a committal. He has no business reviewing the decision of the committing court.”[10] (My insert in bold).
[29] Our Court of Appeal examined the law in this regard when Leroy King[11] appealed Ramdhani J’s decision to that court. In refusing the appellant’s request that the court depart from Ramdhani J’s assessment, the Court of Appeal succinctly articulated the law on this issue to be that –
“A minister exercising powers of return under section 14(2)(a) of the Extradition Act is not required in all cases to examine the quality of evidence on which committal for extradition was based and that such examination should only be in rare cases and for good cause. The learned judge in the case at bar accordingly held that having regard to the conclusions of the magistrate and the High Court judge, there was no arguable case that the Minister ought to, in the exercise of his judgment, personally examine afresh the quality of the evidence. The learned judge committed no error in so holding based on the evidence which was before him.[12]”
[30] It seems therefore from the foregoing that while it is accurate to define the ambit of the Minister’s discretion as being “wide and unstructured[13]” and even though it is within his discretion to so do, it would be indeed a rare case (on good cause) where he is obliged to consider afresh the quality of the evidence placed before the committing Magistrate and/or the High Court and indeed an even rarer case that the exercise of the ambit would permit him to take a view that is different from the committal court.
Therefore, in order to ground a private claim for damages on the grounds that the Minister acted negligently in such circumstances, a claimant would have to show on the pleadings and by evidence that his or her case falls within that fairly rare instance where the exercise of the Minister’s discretion obligated him or her to consider afresh the quality of evidence placed before the committing Magistrate and/or the High Court and that the Minister so failed to act.
My thoughts on the application of the law in this case
[34] Mr. Baptiste was afforded the opportunity to revisit the basis on which the committing Magistrate acted by applying pursuant to section 13 of the Act for a writ of habeas corpus. He adopted this route by applying before Price Findlay J for a writ of habeas corpus.
Mr. Baptiste could have also taken the opportunity to place fresh evidence before Price Findlay J on the habeas corpus application (see section 13(4) of the Act.) He has not indicated to me on this case whether he laid further evidence before the learned judge hearing the habeas corpus application. The habeas corpus application was refused by Price Findlay J.
All these antecedents were before the Minister when he was exercising the discretion to issue the surrender order. The Minister formed the view that he could not take a position any different from the committing Magistrate or the High Court.
This is since, as is correctly stated in the authorities, it is not part of the Minister’s remit to act as a review or an appellate body from either the decision of the committing Magistrate or the High Court.
The Minister, rightly in my view, accepted that the matters canvassed before him by Mr. Baptiste were fully investigated by and adjudicated on by both the committing Magistrate and the High Court.
Curiously, Mr. Baptiste has not indicated to this court why he did not utilise the process recited at section 16(6) of the Act. That section afforded him another occasion to apply to the high court for a judicial review of the Minister’s decision to issue the surrender order within 15 days of the decision to extradite him. Rather, he has applied by ordinary action on a claim alleging negligence.
I have above set out the matters considered by the Minister when he sought to exercise the general discretion to order Mr. Baptiste’s surrender to the UK. It was incumbent on Mr. Baptiste to demonstrate on the facts that the Minister was obliged to consider afresh the quality of the evidence assessed by the committal court and that by his failure to do so, he exceeded the ambit of this discretion.
Mr. Baptiste has asserted that had the Minister further investigated the matter or instigated an investigation into the material he would have formed a view that was different from the committal court.
However, Mr. Baptiste has not presented to me any evidence that what he presented to the Minister falls within the category of those rare cases where one can say that the exercise of the Minister may have obliged him to consider afresh the quality of the evidence placed before the Magistrate.
In the circumstances, I do not agree that the Minister was obliged to investigate or have the material further interrogated. The Minister acted well within the limits of the ambit of his discretion when he concluded that the material and indeed the contentions as to Mr. Baptiste’s innocence were already examined before the courts and as such he could not form any different view or was obligated to conduct further enquiries or have them conducted.
Conclusion
[Based on the above assessment of matters in this case, I find that Mr. Baptiste has failed to show that when the Minister decided to issue the order to surrender him to the UK, the Minister exceeded the ambit of the general discretion given to him by section 15(1) of the Act and that as a consequence, Mr. Baptiste was entitled to file a private claim for damages.
The claim therefore fails. Mr. Baptiste is to pay costs to the defendant in the assessed sum of $2,500.00.