Vincent Ashman v Commissioner of Correctional Services and Others
| Jurisdiction | Jamaica |
| Judge | G. Smith J,Sykes J,Edwards J |
| Judgment Date | 28 May 2012 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2011 HCV 06398 |
| Date | 28 May 2012 |
[2012] JMSC Full 2
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE FULL COURT
Honourable Ms. Justice G Smith
Honourable Mr. Justice B Sykes
Honourable Ms. Justice C Edwards
CLAIM NO. 2011 HCV 06398
In the Matter of the Extradition Act
and
In the Matter of the Application by Vincent Ashman for a Writ of Habeas Corpus in Respect of the Order for Committal made by the Resident Magistrate for the Corporate Area
and
and
Mr Oswald James and Mr Brian Barnes instructed by Oswald James and Company for the applicant.
Mrs Ann-Marie Feurtado Richards and Mr Adley Duncan instructed by the Director of Public Prosecutions for the second respondent.
Mr. Curtis Cochrane instructed by the Director of State Proceedings for third respondent.
EXTRADITION — DISCHARGE DUE TO DELAY IN SURRENDERING FUGITIVE — WHETHER AUTHORITY TO PROCEED REQUIRED TO COMMIT TO AWAIT EXTRADITION WHEN FUGITIVE CONSENTS — EFFECT OF DISCHARGE — WHETHER SECOND REQUEST AFTER DISCHARGE AN ABUSE OF PROCESS — WHETHER EARLIER DISCHARGE A BAR TO EXTRADITION — WHETHER AUTREFOIS AQUIT APPLIES — HABEAS CORPUS APPLICATION — EXTRADITION ACT SS 7, 8, 9, 10, 11, 17 — CONSTITUTION ORDER IN COUNCIL SS 15 & 25 — CHARTER OF RIGHTS ARTICLE 14.
APPLICATION FOR HABEAS CORPUS — APPLICABILITY OF THE CIVIL PROCEDURE RULES TO APPLICATIONS FOR HABEAS CORPUS PURSUANT TO THE EXTRADITION ACT — AFFIDAVIT NOT MADE BY PERSON RESTRAINED — AFFIDAVIT MADE BY ATTORNEY-AT-LAW — NO INDICATION WHY DETAINEE NOT ABLE TO MAKE AFFIDAVIT — WHETHER APPLICATION IN BREACH OF THE RULES — EFFECT OF BREACH — CIVIL PROCEDURE RULES, RULES 2, 26 & 57.
I have had the advantage of reading in draft the Judgments of my learned colleagues Sykes J and Edwards J. I am in agreement with their reasonings and conclusions and I have nothing further to add.
This is an application by Mr Vincent Ashman (the fugitive) for a writ of habeas corpus to be issued by this court ordering his release from custody after he was committed to custody pending his extradition to the United Kingdom (UK) following a second request from the United Kingdom Government (UKG).
This application rests on four grounds which are:
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1. the applicant was previously released and an extradition order quashed by the Full Court on April 14, 2011;
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2. the requesting state failed, refused and neglected to appeal the order of the court to discharge the applicant and to quash the aforesaid extradition order;
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3. the applicant was rearrested and detained upon a subsequent request for his extradition;
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4. the Extradition Act does not provide for subsequent arrest and detention of a fugitive after he is discharged by the court for delay of the process
In the written and oral submissions learned counsel advanced the impossible argument that the doctrine of autrefois acquit applies to this case. Learned counsel persisted in his submission even in the face of the well established authority that the doctrine can only arise if the defendant was acquitted in a previous trial in which he was in danger of a valid conviction ( Richards (Lloydell) v R (1992) 41 WIR 263 ). An extradition hearing, by definition, is not a trial and therefore the concept of autrefois acquit cannot possibly arise. There is no trial and consequently no possibility of a valid conviction or acquittal. This ground fails.
Two of the four grounds can be dealt with summarily at this early stage. In respect of ground two, it is to be observed that no right of appeal is given to the requesting state or the authorities representing them in extradition proceedings in Jamaica. This is so because section 21A of the Judicature (Appellate Jurisdiction) Act confers a right of appeal where the application for the writ of habeas corpus was refused and not where it is granted ( Gibson v Government of the United States of America (2007) 70 WIR 34 PC reversing Cartwright and Knowles v Government of the United States of America (2004) 64 WIR 1 PC interpreting similarly worded provisions from the Commonwealth of the Bahamas). The requesting state has no right of appeal in these circumstances. Consequently, there is no basis for urging this ground.
In respect of ground 4, the statute is silent on the issue of whether there can be resubmission of a previous request for extradition after the fugitive has been discharged either at the hearing, or on an application for a habeas corpus in the Supreme Court. Unless precluded by statute or some other principle of law, there is no rational reason why a second application cannot be made. The issue to my mind is not so much whether a second application can be made but whether any subsequent application is sustainable in law and fact. There is no basis for a blanket, automatic, inflexible rule. It all depends on the reasons why the first extradition failed. If, for example, the failure was due a technical breach such as failure to submit authenticated documents then, in my view, there is no reason why a second request cannot be made. On the other hand, if the failure occurred because the court said that the allegations do not in law amount to an offence in Jamaica (failure to meet the dual criminality test) and the second extradition is based on the identical facts, then clearly, there would be good ground for a writ of habeas corpus. This may amount to an abuse of process. Ground four therefore fails.
Grounds one and three raise the issue of abuse of process. The more promising submissions of counsel were directed at this issue. In dealing with the abuse of process ground this judgment will set about this task in three parts. The first will summarise the facts leading up to the two extradition hearings. The second will analyse and interpret the relevant statutory provisions of the Extradition Act (the Act). The third part will address the issue of abuse of process in light of facts and interpretation of the legislation.
The events leading to the fugitive's first appearance before the Resident Magistrate's Court for the Corporate Area, sitting as extradition magistrate, began on November 18, 2010 when the UKG submitted a request for the issuing of provisional warrant of arrest for the fugitive. This first request was in respect of the offence of murder alone. A number of other communication followed which culminated in an information being laid and a provisional warrant being issued by Her Honour Mrs Stephanie Jackson-Haisley, one of the Resident Magistrate for the Corporate Area. The warrant was issued on November 24, 2010.
On November 26, 2010, the fugitive was taken before Her Honour Mrs Lorna Shelly-Williams, another Resident Magistrate for the Corporate Area. Mrs Shelly-Williams was sitting as a court of committal under the Act. The fugitive, having been informed of his right to a formal hearing under the Act, indicated that he wished to be extradited immediately and did not want a formal hearing. On the same day, the fugitive signed a document which confirmed what he had orally indicated to the court. The effect of this was that the fugitive consented to be returned to the United Kingdom voluntarily and without a formal hearing.
On December 3, 2010, the Office of the Director of Public Prosecutions (DPP) who represented the requesting state, sent a draft surrender warrant to the Minister with responsibility for Justice (the Minister) for her to sign. A number of other documents accompanied the draft. The surrender warrant would have enabled the fugitive to be removed from Jamaica to the UK.
The Minister took the view that the entire procedure before the two magistrates was incorrect and she would not be signing the surrender warrant. The basis of her refusal was that no extradition, even in the case of a person who signed a document indicating his waiver of a formal hearing after being informed of his right by the magistrate, could validly take place unless she had issued an authority to proceed to the RM. Since there was no authority to proceed issued by her, the Minister, concluded that the fugitive could not be extradited and his consent with full knowledge of his rights was irrelevant. In Mr Cochrane's language “the Minister is the alpha and the omega” of the extradition process. The authority to proceed is absolutely necessary to begin any kind of process relating to extradition, even if a provisional warrant is issued, and ends with the surrender warrant. The logician would say that the Minister was moving from a universal premise with no known exceptions.
The DPP took a different position. Her view was that once the fugitive indicated that he wanted to go then the Resident Magistrate, sitting as court of committal under the Act and acting under section 17 of the Act has no choice, but to commit him to prison to await his extradition. There was no need for a formal hearing and consequently no need for an authority to proceed which is only necessary when a formal hearing is to be embarked on. As can be seen, the DPP's major premise is different from that of the Minister. One of the issues in this hearing is whether the major premise of the Minister or the DPP or indeed any of them is correct.
The by-product of this disagreement was that the time within which the fugitive should have been sent to the UK (sixty days) passed without him being extradited. The next step was that the fugitive applied to the Supreme Court for a writ of habeas corpus.
The application came before the Supreme Court on April 14, 2011. On that date, the DPP and the Attorney General indicated that they could not resist the application. The DPP told the court that the...
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