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Allie Baptiste seeks damages against former Grenada government minister

Justice Glasgow – delivered the judgement

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:

JUDGMENT
[1] GLASGOW, J.: There is an interesting question to be answered on this claim and it is this: 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[1] (the Act)? On this claim the claimant (Mr. Baptiste) charges that his extradition to the United Kingdom (UK) was “caused by the negligence of the Minister.”

Background
Mr. Baptiste was arrested on 25th February 2009 by police officers on a charge of conspiracy to import illicit drugs into the United Kingdom (the UK). On 26th February 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 Mr. 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 Mr. Baptiste on 15th October 2009 to be extradited to the UK.

Thereafter, Mr. Baptiste applied to the high court for bail and for an order asking the court to, among other things, set aside the extradition order. The high court granted bail on 21st December 2009 pending the hearing of the application to set aside the extradition order.

On 2nd May 2012, Price Findlay J (as she then was) ruled that the committal order against Mr. Baptiste was lawful and as such upheld the decision made by the committing Magistrate. On 17th May 2012, the Minister issued a warrant ordering Mr. Baptiste to be extradited to the UK with respect to the alleged charge of conspiracy to import drugs into the UK.

Mr. Baptiste’s case
It is Mr. Baptiste’s case that prior to his extradition to the UK he was in the business of blending alcohol for export to markets in Grenada and overseas, especially Tobago and the UK since about the year 2004. He pleads that he was also in the business of shipping blended rums and seafood, particularly lobster, to overseas markets.

Between the periods 2004 to 2007 Mr. Baptiste ventured into business relationships with one Delroy Gibson, a UK resident and, one, Oswin Moore, a resident of Republic of Trinidad and Tobago. Mr. Baptiste says he agreed to supply Mr. Gibson and Mr. Moore with shipments of seafood, namely lobster.

With respect to the commencement of the extradition proceedings, Mr. Baptiste pleads that on 19th February 2009 the Minister issued an “authority to proceed” pursuant to the Act. Further to the authority to proceed, proceedings before the committing Magistrate culminated with the magistrate signing a committal warrant.

Mr. Baptiste alleges that he was thereafter delivered by police officers into the custody of Her Majesty’s Prisons at Richmond Hill. He applied to the High Court to set aside that committal order. However, that application was refused by Price Findlay J on 2nd May 2012.

According to Mr. Baptiste, the next steps in his extradition story occurred when on 17 May 2012 he and his then Attorney, Ms. Sabina Gibbs, made representations to the Minister that he should not be extradited to the UK. Mr. Baptiste claims that notwithstanding those representations, the Minister, on even date, issued a “warrant of extradition” (hereinafter referred to as the surrender order) ordering him to be surrendered to the UK to face the charges of conspiracy to import illicit drugs into that country.

His assessment is that the Minister ruled that the magistrate’s decision to extradite Mr. Baptiste was not unjust or oppressive. On 11th June 2012, Mr. Baptiste was taken into custody by Grenadian police officers and was handed over to four UK police officers who held him in custody and transported him to the UK.

Mr. Baptiste’s main disquiet is that the Minister was negligent, in that he failed to “make proper enquiries and/or have proper inquiries” made about:

(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) The fact that 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.

At trial Mr. Baptiste maintained his case that the Minister did not consider his representations prior to issuing the surrender order and as such breached a duty of care that was owed to him by the Minister in the exercise of the discretion to order his surrender.

Mr. Baptiste pleads that as a consequence of the breach, the Minister caused him to sustain injury, damages, deprivation of liberty, loss of reputation and character, psychological hurt, embarrassment and financial loss. Mr. Baptiste also claims that –

(1) he lost his Toyota Noah valued at $35,000.00, rum flavour stock valued at $45,000.00, and a lot of land situate at Mardigras, St. George’s valued at $40,000.00;

(2) he was unable to service his debts valued at $80,000.00;

(3) he suffered losses in the sum of $41,695.86 as a result of his detention;

(4) Caribbean Microfinance (Grenada) Limited obtained judgment against him in the sum of $30, 700.19; and

(5) Communal Co-operative Credit Union Ltd. sold his property and he was called upon to pay the balance owed on the mortgage in the sum of $10, 995.67.

Attorney-General’s case
The Attorney-General’s (AG) answer to Mr. Baptiste’s claim is that –

(1) the Minister did not owe Mr. Baptiste any duty of care;

(2) if a duty of care exists, the AG denies that the Minister owed a duty of care of the kind and scope as alleged by Mr. Baptiste in his claim;

(3) if such a duty exists, it does not extend beyond that created in respect of the powers given to the Minister pursuant to the Act; and

(4) Mr. Baptiste did not suffer the injury, loss or damage set out at paragraph 35.1 of his statement of claim.

Mr. Alva Browne, the then Permanent Secretary in the Ministry of Foreign Affairs, (PS Browne) testified that on 16th May 2012, Mr. Baptiste indicated through his counsel that he desired to make representations to the Minister both orally and in writing as to why he should not be surrendered to the UK pursuant to its extradition request.

PS Browne further testified that among the representations made by Mr. Baptiste was that he was not involved in any drug trade and that he was innocent of the charges laid against him. The Minister advised Mr. Baptiste that this is an undertaking that can only be considered by a court of law and not one which he could undertake.

PS Browne stated at paragraph 18 of his witness statement that the Minister took into account the oral representations made by Mr. Baptiste along with the following matters when he made the order authorising Mr. Baptiste’s extradition.

The fact that the committal court which was seized of the facts and evidence presented for the extradition order had already examined those facts before making a pronouncement of committal;

A habeas corpus application made by Mr. Baptiste was refused by the High Court;

The duty and power bestowed on the Minister under the Extradition Act does not permit the Minister to embark on the sort of examination being contended in this claim;

When he is exercising powers of surrender under the Extradition Act, the Minister is not required in all cases to examine the quality of evidence on which committal was based;

No fresh evidence was adduced before the Minister to show that the Minister’s decision ought to differ from the Magistrate’s committal decision;

No case was presented by Mr. Baptiste during the representation before the Minister to demonstrate that the extradition was tainted by any bad faith.

However, at trial and under cross-examination by Queen’s Counsel Dr. Francis Alexis, PS Browne was not able to say for certain whether the representations by Mr. Baptiste were made orally or in writing.

Further, PS Browne was unable to state with certainty whether the representations on behalf of Mr. Baptiste were made on 16th May 2012 or 17th May 2012 when the Minister issued the surrender order.

Issues
The discourse in this case requires this court to determine (1) whether the Minister owed Mr. Baptiste a duty of care; (2) the extent of that duty and whether the Minister breached the duty. In particular, Mr. Baptiste contends that the Minister’s duty of care in this case enjoined him to “make proper enquiries and/or have proper inquiries made” into the several matters stated above regarding his financial dealings.

Had the Minister conducted those investigations, Mr. Baptiste asserts, he would have found that there was no basis for the surrender order. The Minister’s failure to conduct those specific investigations means that, in Mr. Baptiste’s view, the Minister acted negligently and as such breached the duty of care owed to him by the Minister.

Discussion and Analysis

Whether a duty of care exists
Mr. Baptiste’s claim, in essence, is that in exercising his statutory discretion under the Act, the Minister had a duty to consider his representations regarding his innocence. Mr. Baptiste’s complaint is that the Minister acted negligently and as a consequence, he breached that duty when he failed to make proper enquiries or to have enquiries made regarding Mr. Baptiste’s claims of innocence.

As noted above, the central issue in this claim is whether a claimant is permitted to bring a claim in those circumstances.

Mr. Baptiste’s claim does not fall within category (D) since he has not alleged that the Minister set

out to intentionally cause him harm or that the Minister acted with the knowledge that he was acting improperly and that Mr. Baptiste would suffer harm. With respect to categories (A) or (B), it does not appear that Mr. Baptiste is claiming that –

(a) there was a breach of the Minister’s statutory duties simpliciter; or

(b) that, without more (and in this context, without asserting a common law right of action), the Minister acted carelessly in the exercise of his statutory responsibility.

Rather, Mr. Baptiste has frontally proclaimed that in the exercise of his functions, a common law duty of care was imposed on the Minister. In particular, Mr. Baptiste pleads that the Minister was granted the power or discretion whether to issue the surrender order and that in the exercise of that power or discretion, the Minister was required to “make proper enquiries and/or have proper enquires made” into the several matters that Mr. Baptiste alleges would have militated against the exercise of the Minister’s power to order his surrender.

[16] With respect to “actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it”[2], Lord Browne Wilkinson observed that:

“It is clear that a common law duty of care may arise in the performance of statutory functions. But a broad distinction has to be drawn between: (a) cases in which it is alleged that the authority owes a duty of care in the manner in which it exercises a statutory discretion; (b) cases in which a duty of care is alleged to arise from the manner in which the statutory duty has been implemented in practice[3].”

[17] More specifically, His Lordship Browne Wilkinson explained that “[T]he distinction is between (a) taking care in exercising a statutory discretion whether or not to do an act and (b) having decided to do that act, taking care in the manner in which you do it[4].”

As I have noted above, Mr. Baptiste’s complaint is that the Minister was negligent in the manner in which he exercised the discretion to issue the surrender order.

In respect of a claimant’s ability to seek damages for alleged negligence as a consequence of the exercise of a discretion granted to an authority by statute, I find several helpful passages in the speech of His Lordship Browne Wilkinson.

His Lordship opined that –

“Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed. It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised. Therefore if the decisions complained of fall within the ambit of such statutory discretion they cannot be actionable in common law. However if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no a priori reason for excluding all common law liability[5].”

After considering a number of cases on the issue and in particular the impact of policy matters on the court’s determination of whether the discretion was properly exercised[6],

His Lordship concluded at page 371 that –

“I understand the applicable principles to be as follows. Where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise the discretion: nothing which the authority does within the ambit of the discretion can be actionable at common law. If the decision complained of falls outside the statutory discretion, it can (but not necessarily will) give rise to common law liability.”

18]   Based on this learning, it is therefore incumbent on the court to (1) examine the extent of the statutory discretion in question to determine its ambit and (2) assess the manner in which the discretion was exercised to ascertain whether the exercise was conducted within the scope and extent of the discretion. If the discretion was exercised within the scope and extent of the discretion, then there can be no claim of negligence.

If, however, the exercise of the discretion was outside of the ambit of the discretion, then the court will have to determine whether the impugned actions amount to a claim sustainable in common law liability.

On the latter score, the question whether a common law duty of care arises ” falls to be decided by applying the usual principles i.e. those laid down in Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605, 617-618. Was the damage to the plaintiff reasonably foreseeable? Was the relationship between the plaintiff and the defendant sufficiently proximate? Is it just and reasonable to impose a duty of care?”[7] These questions will largely be determined or more aptly stated, these questions “must be profoundly influenced by the statutory framework within which the acts complained of were done”.

The statutory scheme and the ambit of the discretion imposed therein
In view of the foregoing, the statutory scheme with respect to extraditions in Grenada comes into focus and must be examined. Of significance to this discourse are the provisions of section 9 et seq of the Act wherein the procedure for extraditions is set out. I recite a synopsis of the relevant parts:

(1) Section 9 – Where a request is made by Commonwealth country or a foreign state, the Minister is authorised to issue an Order called the “authority to proceed” with the request in accordance with the provisions of the Act. The request must be made by the requisite official (section 9(1) and accompanied by the stipulated documents (section 9(2).

The Minister is empowered to issue the authority to proceed “unless it appears to him or her that an order for the surrender of the person concerned could not lawfully be made, or could not in fact be made, in accordance with the provisions of the Act” (section 9(5));

(2) Section 10 deals with the process for the arrest of a person against whom the Minister has issued an authority to proceed;

(3) Section 11 – this section outlines the steps to be taken where a person is arrested under a warrant issued further to the authority to proceed.

(4) The arrested person is to be brought “as soon as practicable before a Magistrate …” (section 11(1));

(5) The magistrate will hear representations in support of the extradition and on behalf of the arrested. Where the magistrate is satisfied of the several matters set out at section 11(7), he or she may commit the arrested person to custody or admit the person to await the Minister’s decision on surrender (11(7) to (9);

TO BE CONTINUED

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