R v Commissioner of Police and Others, ex parte Cephas (No 2)
| Jurisdiction | Jamaica |
| Judgment Date | 09 April 1976 |
| Date | 09 April 1976 |
| Court | Supreme Court (Jamaica) |
(Henry, Rowe and Willkie JJ.)
The individual in international law Extradition Of nationals Alleged murder committed abroad Extradition request Power to arrest without warrant Extradition Act 1870 The law of Jamaica
Jurisdiction In general Personal Over nationals in respect of crimes committed abroad Alleged murder committed abroad Extradition request Power to arrest without warrant Common law power to arrest and detain fugitives Whether replaced by Extradition Act 1870 The law of Jamaica
Summary: The facts:Cephas, a Jamaican national, was arrested by the police in Jamaica without a warrant and informed that he was wanted in the United States on a charge of murder. While he was in custody the United States requested that he be arrested on a provisional warrant pursuant to the extradition treaty between the two countries. He was then arrested on a warrant for murder. No warrant under the Extradition Act 1870 was issued against him. His application for habeas corpus was refused and he appealed. The application was opposed on the grounds (a) that the common law power to arrest, detain or bring a fugitive before a magistrate pending a formal request of extradition still existed parallel with the procedure laid down in the Extradition Act, and (b) that the Jamaican courts had powers to try a national who had allegedly murdered another national abroad and with a view to such a trial the person charged was liable to arrest and detention by the police with or without a warrant.
Held:(Unanimously) The application was granted.
There was no power to arrest without warrant a national for a crime committed abroad. The Extradition Act was clearly intended to cover all aspects of extradition and inasmuch as it contained specific provisions relating to the apprehension of fugitives and the issue of warrants for that purpose, those provisions had to be regarded as having superseded any common law provisions for the apprehension of such persons without a warrant. If it was considered desirable for the police to have that power, then it had to be conferred by Parliament.
The following is the text of the judgments delivered in the Supreme Court:
HENRY, J.: The applicant. Orville Winston Cephas, is a Jamaican. On November 30, 1975, he was arrested without a warrant at Vernamfield in Clarendon and taken to the Central Police Station in Kingston. At the time of that arrest he was informed that he was wanted in the United States of America on a charge of murder. He states in his affidavit on January 8, 1976, that he has been to the United States of America but that he is not involved in any murder there. On December 9, 1975, an ex parte application for a writ of habeas corpus came before me and I directed that notice of the application be given to the Director of Prisons, the Attorney General and the Commissioner of Police. On December 19, 1975. Parnell, J., granted leave to issue the writ and a hearing on the merits was fixed for December 30, 1975.
Corporal Roy Augustus Malcolm in his affidavit of January 23, 1976, states that on December 19, 1975, he was informed by the Ministry of External Affairs that the United States Embassy requested that Orville Cephas be arrested on a provisional warrant pursuant to the extradition treaty between Jamaica and the United States of America and on that same day Mr. Robert Dianora of the New York City Police identified Orville Cephas to him at the lock-up at Central Police Station as a fugitive wanted for murder in the United States of America.
On December 19, 1975, a warrant for the arrest of the applicant was issued by a Justice of the Peace for Kingston, the particulars of the offence being that Orville Cephas on the 1st day of June, 1975, being a Jamaican citizen murdered Douglas Slack another Jamaican citizen at the County of Richmond City in New York, U.S.A., contrary to 33 Henry VIII c. 23. On December 23, 1975, the applicant was arrested on this warrant by Corporal Malcolm.
December 30, 31, 1975, Parnell, J., heard the application for a writ of habeas corpus and at the conclusion of the hearing dismissed the application with costs and discharged the order nisi granted on the December 19, 1975.
On January 5, 1976, the applicant applied to a Full Court for a writ of habeas corpus on the ground that his detention is unlawful and that application was heard on January 26, 27, 28, 29, 30, 31 and February 7, 1976. On February 7, 1976, the Full Court ordered that the applicant be released from custody and promised to put their reasons in writing. We now do so.
At the outset, it was conceded by all the parties concerned that the Full Court has jurisdiction to entertain the application notwithstanding the fact that a single judge in court had already dealt with a previous application by the applicant made on similar grounds to those advanced in support of the present application. The basis for this concession is the decision of the Privy Council in Eshugbayi Eleko v. Nigeria Government Officer Administering(1). In delivering the judgment of the court Lord Hailsham had this to say:
If it be conceded that any judge has jurisdiction to order the writ to issue, then in the view of their Lordships each judge is a tribunal to which application can be made within the meaning of the rule, and every judge must hear the application on the merits. It follows that although by the Judicature Act the Courts have been combined in the one High Court of Justice each Judge of this Court still has jurisdiction to entertain an application for a writ of habeas corpus in term time or in vacation and that he is bound to hear and determine such an application on its merits notwithstanding that some other judge has already refused a similar application.
That judgment is binding on this court because although it was given in a case coming from another territory the issue of law in both cases is the same (Fatuma Binti Mohamed Bin Salim Bakhshuwen v. Mohamed Bin Salim Bakhshuwen(2). The decision in the Eleko case (1) gives rise to the anomalous situation of one judge of the Supreme Court being required to act as court of appeal from the decision of another judge of the same court and it also makes possible a series of applications to the court which might cease only when all the judges and all the possible combinations of judges in a Full Court had dealt with the applications. The decision was not followed in England where it was not binding (Re Hastings (No. 3)(3)) and the position is now regulated there by statute (the Administration of Justice Act I960). It is to be hoped that Parliament will see fit to enact similar legislation in Jamaica limiting the applications which may be made but providing for appeals to the Court of Appeal by both parties.
I turn now to the merits of the application itself. It is one of the interesting features of the application that it is not opposed by Mr. Robinson who appears for the respondents. Mr. Robinson's submission in effect is that there is no proper basis for the arrest and detention of the applicant, and he offered well formulated arguments in support of that submission. Opposition to the application comes, however, from Mr. Downer and is based on two main grounds which he argued with force and skill and obviously after considerable research:
(1) that the common law power to arrest, detain or bring a fugitive before a magistrate pending a formal request of extradition still exists parallel with the procedure laid down in the Extradition Act;
(2) that the Jamaican courts have powers to try a Jamaican citizen who allegedly murders another Jamaican in a foreign land and with a view to such a trial the person charged is liable to arrest and detention by the police with or without a warrant.
On either of these grounds, Mr. Downer submits the applicant has been...
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