Coke (Christopher Michael) v Minister of Justice, DPP and Attorney General

• Jurisdiction: Jamaica
• Judge: McCALLA. C.J.
• Judgment Date: 09 June 2010
• Judgment citation (vLex): [2010] 6 JJC 0901
• Court: Supreme Court (Jamaica)
• Date: 09 June 2010

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2010 HCV 02529

IN CHAMBERS

BETWEEN

CHRISTOPHER MICHAEL COKE

APPLICANT

AND

THE MINISTER OF JUSTICE

1 ^ST RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND RESPONDENT

AND

THE ATTORNEY GENERAL

3 ^RD RESPONDENT

^st

^nd

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW-ORDER OF CERTIORARI AND PROHIBITION-STAY OF EXTRADITION PROCEEDINGS-WHETHER AUTHORITY TO PROCEED UNLAWFULLY ISSUED-ALLEGATIONS OF INTERFERENCE WITH MINISTER'S DISCRETION-WHETHER APPLICATION FOR JUDICIAL REVIEW IS PREMATURE.

JUDICIAL REVIEW - Leave - Application for - Orders of Certiorari and Prohibition - Stay of extradition proceedings - Whether authority to proceed unlawfully issued - Allegations of interference with Minister's discretion - Whether application for judicial review is premature

McCALLA. C.J

1 In this application, Christopher Coke, ("the applicant"), seeks leave of this court to apply for judicial review of the decision of the Minister of Justice, The Honourable Dorothy Lightbourne, C.D, Q.C., ("the 1 ^st respondent") to issue an authority to proceed on a request by the Government of the United States of America for his extradition. The applicant seeks the following reliefs:

i. "An order of certiorari to remove into this Honourable Court and quash the decision of the 1 ^st Respondent issued or purported to be issued on 171 ^th or 18 ^th May, 2010, to issue authority to proceed pursuant to Section 8 of The Extradition Act;

ii. An order of prohibition directed to the 1 ^st Respondent to restrain her from carrying into effect the said decision;

iii. An order of prohibition directed to the 2 ^nd and 3 ^rd Respondents to restrain them from proceeding with the Extradition request from the United States of America, or providing assistance for the implementation of the said Extradition request;

iv. A stay of any proceedings in the Resident Magistrates Court arising from the 1 ^st Respondent's decision to proceed with Extradition proceedings pending determination of the action herein;

v. Such further and other relief as to this Honourable Court may seem just."

2 The application initially named the Attorney General as 3 ^rd Respondent, but by consent, an order was made on May 31, 2010 to have the Attorney General removed as a party to the proceedings.

3 The requirement for an applicant to obtain leave to apply for judicial review is stated in the case of Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd. [1981] 2 All E.R. 93 at 105 (j). Lord Diplock stated as follows:

"The need for leave to start proceedings for remedies in public law is not new. It applied previously to applications for prerogative orders, though not to civil actions for injunctions or declarations. Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived."

This requirement is also stated in the White Book, 2007, Civil Procedure, in relation to comparable rules in the English jurisdiction, Volume 1, Section 54.4.2 states:

"Permission will be granted only where the court is satisfied that the papers disclose that there is an arguable case that a ground for seeking judicial review exists which merits full investigation at a full oral hearing with all parties and all the relevant evidence, ( R. v Legal Aid Board Ex P. Hughes (1992) 5 Admin. L. Rep. 623 ).

4 The learned authors of De Smith's Judicial Review , 6 ^th Edition, have stated at paragraph 16–020 that:

"...in most situations there can be no constitutional or practical objection to the Administrative Court routinely refusing permission to proceed with a judicial review claim where there is a statutory appeal to a tribunal or a court. To hold otherwise would risk subverting Parliament's intention in creating such appeals."

5 Part 56 of the Civil Procedure Rule 2002 (CPR) deals with applications for judicial review and sets out the relevant requirements for an applicant wishing to apply for judicial review.

6 The applicant seeks leave to apply for judicial review of the decision of the 1 ^st respondent to issue an authority to proceed on the request for his extradition and he is required to comply with the relevant provisions of this part of the CPR.

7 The request for the extradition of the applicant was made on August 25, 2009 for the purpose of preferring criminal charges against him in the United States of America.

8 The authority to proceed was issued by the 1 ^st respondent on May 18, 2010 by virtue of section 8 of the Extradition Act of 1991, ("the act") and as a consequence, a warrant for the arrest of the applicant was issued by a Resident Magistrate for the Corporate Area Criminal Court in accordance with the provisions of that Act. The relevant sections are as follows:

Section 8: Authority to Proceed:

(1) "Subject to the provisions of this Act relating to provisional warrants, a person shall not be dealt with under this Act except in pursuance of an order of the Minister (in this Act referred to as "authority to proceed") issued in pursuance of a request made to the Minister by or on behalf of an approved State in which the person to be extradited is accused or was convicted.

(2) There shall be furnished with any request made for the purposes of this section by or on behalf of any approved State-

• (a) in the case of a person accused of an offence, a warrant for his arrest issued in that State; or

• (b) in the case of a person unlawfully at large after conviction of an offence, a certificate of the conviction and sentence in that State and a statement of the part, if any, of that sentence which has been served,

together with, in each case, the particulars of the person whose extradition is requested, and of the facts upon which and the law under which he is accused or was convicted, and evidence sufficient to justify the issue of a warrant for his arrest under section 9.

(3) On receipt of such a request the Minister may issue an authority to proceed, unless it appears to him that an order for the extradition of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act."

Section 9: Arrest for purposes of committal:

(1)"A warrant for the arrest of a person accused of an extradition offence, or alleged to be unlawfully at large after conviction of such an offence, may be issued-

• (a) on receipt of an authority to proceed, by a magistrate within the jurisdiction of whom such person is or is believed to be; or

• (b) without such an authority, by a magistrate upon information that such person is in Jamaica or is believed to be on his way to Jamaica; so, however, that the warrant, if issued under this paragraph, shall be provisional only.

(2) A warrant of arrest under this section may be issued upon such information as would, in the opinion of the magistrate, authorize the issue of a warrant for the arrest of a person accused of committing a corresponding offence or, as the case may be, of a person alleged to be unlawfully at large after conviction of an offence, within the jurisdiction of the magistrate.

(3) A warrant of arrest issued under this section (whether or not it is a provisional order) may, without an endorsement to that effect, be executed in any part of Jamaica, whether such part is within or outside the jurisdiction of the magistrate by whom it is so issued, and may be so executed by any person to whom it is directed or by any constable.

(4) Where a provisional warrant is issued, the magistrate by whom it is issued shall forthwith give notice of the issue to the Minister, and transmit to him the information and evidence, or a certified copy of the information and evidence, upon which it was issued; and the Minister may in any case, and shall, if he decides not to issue an authority to proceed in respect of the person to whom the warrant relates, by order cancel the warrant and, if that person has been arrested thereunder, discharge him from custody.

(5)..."

9 There is no statutory provision for a challenge before an authority to proceed is issued. In accordance with the procedure laid down in the Extradition Act, on apprehension or surrender of the applicant, he would be taken before a Resident Magistrate's Court for a hearing. If a prima facie case for his extradition is made out, the Resident Magistrate is required to advise him of his right to apply for habeas corpus within 15 days, to enable the matter to be brought before the Supreme Court, for a hearing before the full court.

10 The request for the extradition of the applicant was received by the 1 ^st respondent on August 25, 2009, but as noted at paragraph 8, the authority to proceed was not issued until May 18, 2010. It is common ground that the 1 ^st respondent filed an application in the Supreme Court seeking certain declarations from the court. The assertions contained in the affidavit filed by the 1 ^st respondent in support of her affidavit which sought declarations from the court and her subsequent signing of the authority to proceed, has given rise to the applicant's contention that this court ought to grant him permission to seek the reliefs referred to at paragraph 1.

11 There is no evidence that the warrant issued pursuant to the authority to proceed has been executed and...