Charron v. Government of the United States of America (Bahamas) [2000] UKPC 25

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 53 of 1999Venue FROM THE COURT OF APPEAL OF THE BAHAMAS
Between
CharronAppellantGovernment of the United States of America (Bahamas)Respondent
Before
Lord Nicholls of BirkenheadLord HuttonLord MillettSir Patrick Russell MrDate 26 June 2000
[1]On 22nd January 1998 the appellant was committed into custody by a magistrate in The Bahamas to await his extradition to the United States of America for drug offences pursuant to section 10(5) of the Extradition Act 1994 of The Bahamas ("The 1994 Act"). The Supreme Court refused his application for habeas corpus on 17th March 1998 with reasons given on 5th May 1998 and his appeal to the Court of Appeal was dismissed on 9th March 1999. He now appeals to this Board. The alleged offences in the United States[2]On 28th March 1996 a woman named Johanne La Plante swore an affidavit before a Notary Public in Florida in the United States. In her affidavit, briefly summarised, she stated that she had known the appellant since approximately 1991. In January 1993 she provided assistance to the appellant and other persons to possess illegally with intent to distribute and with intent to attempt to export approximately 50 kilograms of cocaine from the United States to Canada. Her role was to act as an intermediary in the purchase of the cocaine by the appellant, who intended to purchase the cocaine for distribution in the Montreal/Quebec area of Canada. In January 1993 she spoke to a man named Besterio Palomeque who had possession of the 50 kilograms of cocaine. She then contacted the appellant and asked if he wished to purchase this cocaine and the appellant indicated that he would do so. She then contacted Palomeque and Palomeque made arrangements for the cocaine to be transported to Buffalo, New York, where it would be picked up. The appellant would then arrange for the cocaine to be shipped from Buffalo to Montreal. She then met with the appellant who advised her that his transportation people would travel to Buffalo to pick up the cocaine and carry it back to Montreal.[3]On 20th September 1995 a Grand Jury sitting in the United States District Court for the Western District of New York filed against the appellant an indictment charging him on two counts as follows:- " COUNT I The Grand Jury Charges: Between in or about January, 1991 and continuing to in or about December 1993, the exact dates being unknown to the grand jury, in the Western District of New York and elsewhere, the defendant, ALAIN CHARRON, did knowingly, willfully and unlawfully combine, conspire and agree with others, known and unknown, to commit offenses against the United States, that is, to possess with intent to distribute, and to distribute five (5) kilograms or more of a mixture or substance containing cocaine, a Schedule II controlled substance; in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A); all in violation of Title 21, United States Code, Section 846. COUNT II The Grand Jury Charges: Between in or about January, 1991 and continuing to in or about December 1993, the exact dates being unknown to the grand jury, in the Western District of New York and elsewhere, the defendant, ALAIN CHARRON, did knowingly, willfully and unlawfully combine, conspire and agree with others, known and unknown, to commit an offense against the United States, that is, to export to Canada five (5) kilograms or more of a mixture or substance containing cocaine, a Schedule II controlled substance; in violation of Title 21, United States Code, Sections 953(a), 960(a) and 960(b)(1)(A); all in violation of Title 21, United States Code, Section 846."[4]On 20th September 1995, following the filing of the indictment, a magistrate sitting in the United States District Court for the Western District of New York issued a warrant for the arrest of the appellant. The extradition proceedings in The Bahamas[5]There has been very considerable and regrettable delay in the extradition proceedings in The Bahamas, but it has not been submitted on behalf of the appellant that this delay has, in itself, invalidated the order for committal made by the magistrate on 22nd January 1998. The preliminary and defective proceedings which preceded the proceedings which give rise to the present appeal were as follows:- 16th February 1996. A provisional warrant for the arrest of the appellant was issued by a magistrate under section 9(1)(b) of the 1994 Act.[6]Section 9 provides:- "(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; or(b) without such an authority, by a magistrate upon information that such person is in The Bahamas or is believed to be on his way to The Bahamas; so, however that the warrant, if issued under this paragraph, shall be provisional only." 17th February 1996. The appellant was arrested when he arrived in The Bahamas from Canada for a holiday. 19th February 1996. The appellant was remanded in custody. 16th April 1996. The Minister issued an authority to proceed. 13th May 1996. The appellant was discharged by a magistrate after committal proceedings failed, but he was immediately re-arrested under a second provisional warrant issued by another magistrate. 14th May 1996. The appellant was remanded in custody. 15th May 1996. The Minister issued a second authority to proceed. 8th August 1996. The appellant’s application for prerogative relief was dismissed by the Supreme Court. 21st October 1997. The appellant was discharged again by a magistrate after committal proceedings failed, but he was again immediately re-arrested under a third provisional warrant issued by a magistrate.[7]The proceedings which are the subject of the present appeal commenced on 5th December 1997 when the Minister issued a third authority to proceed pursuant to section 8 of the 1994 Act. Section 8 provides:- "(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 an ‘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. … (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."[8]The authority to proceed was in the following terms:- "To Stipendiary and Circuit Magistrate, Nassau, The Bahamas WHEREAS in pursuance of a treaty between the Commonwealth of the Bahamas and the United States of America listed in the Extradition (Application to the United States) Order 1994 S.I. No. 58 of 1994 relating to the extradition of fugitive offenders and binding on the Government of The Bahamas a request has been made to me Cornelius A. Smith M.P., the Acting Minister of Foreign Affairs of the Commonwealth of The Bahamas, by the Government of the United States of America of (sic) Alain Charron presently believed to be in the Commonwealth of the Bahamas, accused of extradition offences against the laws of the United States of America set out in the warrants of arrest attached hereto. NOW I hereby authorize you, by this Order given under my hand and seal, to proceed against Alain Charron in accordance with the Extradition Act 1994 in respect of the said extradition offences. I am satisfied that the offences against the law of the United States with which Alain Charron is accused are offences provided for in the Extradition treaty with the United States and that the acts and omissions constituting the offences would constitute the offences of CONSPIRACY TO POSSESS DANGEROUS DRUGS WITH INTENT TO SUPPLY contrary to Section 22(1), 22(2)(a) and Section 29(1) of the Dangerous Drugs Act, Chapter 213, CONSPIRACY TO EXPORT DANGEROUS DRUGS contrary to Section 14(4) and Section 29(1) of the Dangerous Drugs Act, Chapter 213, against the law of the Bahamas, if they took place in the Bahamas, the offences not being of a political character."[9]The authority to proceed refers to "warrants of arrest attached hereto" but no warrants were attached thereto.[10]A hearing then took place before a magistrate pursuant to the provisions of section 10 of the 1994 Act. Section 10 provides:- "(1) A person arrested in pursuance of a warrant issued under section 9 shall, unless previously discharged under subsection (4) of that section, be brought as soon as practicable before a magistrate (in this Act referred to as ‘the court of committal’) who shall hear the case in the same manner, as nearly as may be, as if he were conducting a preliminary inquiry under the Criminal Procedure Code and as if that person were brought before him charged with an indictable offence committed within his jurisdiction. … (5) Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the extradition of that person or on behalf of that person, that the offence to which the authority relates is an extradition offence and is further satisfied – (a) where the person is accused of the offence that the evidence would be sufficient to warrant his trial for that offence if the offence had been committed in The Bahamas; … the court of committal shall, unless his committal is prohibited by any other provision of this Act, commit him to custody to await his extradition under this Act; but if the court of committal is not so satisfied or if the committal of that person is so prohibited, the court of committal shall discharge him from custody."[11]At the hearing before the magistrate the evidence in support of the application for committal consisted of the affidavit of Johanne La Plante and other affidavits from drug enforcement agents in the United States and Canada, and to the affidavits there were exhibited ( inter alia ) the indictment of the Grand Jury filed against the appellant dated 20th September 1995 and the warrant of the United States District Court for the arrest of the appellant dated 20th September 1995. It is not in dispute that these affidavits and exhibits were also served on the appellant and his legal advisers prior to the hearing.[12]At the conclusion of the hearing the magistrate on 22nd January 1998 committed the appellant into custody to await his extradition and the terms of the warrant of committal were as follows:- "TO ANY LAWFUL CONSTABLE OF THE ISLAND OF NEW PROVIDENCE AND TO THE KEEPER OF THE PRISON BE IT REMEMBERED, that on this 22nd day of January, 1998, ALAIN CHARRON, a citizen of Canada is brought before me, Chief Magistrate for New Providence, to show cause why he should not be surrendered in pursuance of the Extradition Act, 1994 on the grounds of him being accused in the United States of America of the commission of the offences listed in the Authority to Proceed dated 5th December, 1997 namely(1) CONSPIRACY TO POSSESS DANGEROUS DRUGS WITH INTENT TO SUPPLY contrary to Section 22(1), 22(2)(a) and Section 29(1) of the Dangerous Drugs Act, Chapter 213,(2) CONSPIRACY TO EXPORT DANGEROUS DRUGS contrary to Section 14(4) and Section 29(1) of the Dangerous Drugs Act, Chapter 213, of the Statute Laws of the Commonwealth of The Bahamas. THIS IS THERFORE TO COMMAND you the said Constable in Her Majesty’s name forthwith to convey and deliver the said ALAIN CHARRON into the custody of the said keeper of the Prison at Fox Hill, and you the said keeper to receive the said ALAIN CHARRON into your custody at Her Majesty’s Prison and keep him there safely to keep until delivered pursuant to the provisions of the said Extradition Act, 1994, for which this shall be your warrant." The appellant’s submissions[13]The principal submission advanced to the Board on behalf of the appellant by Mr. Alun Jones Q.C. was that there was a default in due process because no charges of specific crimes with proper particulars were laid before the magistrate at the committal hearing but the alleged offences were formulated in general terms in the authority to proceed as being:- "… the offences of CONSPIRACY TO POSSESS DANGEROUS DRUGS WITH INTENT TO SUPPLY contrary to Section 22(1), 22(2)(a) and Section 29(1) of the Dangerous Drugs Act, Chapter 213, CONSPIRACY TO EXPORT DANGEROUS DRUGS contrary to Section 14(4) and Section 29(1) of the Dangerous Drugs Act, Chapter 213, against the law of the Bahamas, if they took place in the Bahamas, …"[14]Mr. Jones further submitted that the magistrate erred in failing to commit the appellant into custody to await his extradition on specific charges. In support of these submissions Mr. Jones contended that, in accordance with the normal and proper practice, the magistrate should have been furnished at the commencement of the hearing with a list of charges based on the alleged conduct and formulated in accordance with the law of The Bahamas. Mr. Jones further relied on the wording of section 10(1) of the 1994 Act which requires the magistrate to "hear the case in the same manner, as nearly as may be, as if he were conducting a preliminary inquiry under the Criminal Procedure Code and as if that person were brought before him charged with an indictable offence committed within his jurisdiction". The Second Schedule to the Criminal Procedure Code contains Rules for Framing Charges and Informations and rule 3(4) provides:- "After the statement of the offence, particulars of such offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary …."[15]Mr. Jones submitted that a person charged with an indictable offence is entitled at a preliminary inquiry to know the particulars of the charge against him and he cited the judgment of Lord Griffiths in Government of Canada v. Aronson [1990] 1 AC 579 , 594C-D:- "It is axiomatic that a person charged with a crime is entitled to know not only the offence with which he is charged, be it a statutory or a common law crime, but also to have particulars of the conduct which it is alleged constituted the offence."[16]Mr. Clive Nicholls Q.C., for the respondents, accepted that it was good practice to furnish the magistrate at the commencement of the committal hearing with a list of charges and he acknowledged that he had not encountered a case where this had not been done, but he submitted that the only requirement in the 1994 Act was that the Minister should issue an authority to proceed and that there was no requirement that the magistrate should be furnished with a list of charges. He further submitted that in this case the affidavits and the exhibits before the magistrate made abundantly clear the nature of the charges against the appellant and that the failure to furnish a list of charges created no risk of injustice to him. This argument on behalf of the respondents was accepted by the Court of Appeal, Carey J.A. stating:- "There has existed in England a practice of supplying the fugitive with a schedule giving particulars of the offences charged formulated according to English Law. That practice has been adopted in this jurisdiction and was recognised as a ‘respectable practice’ in a decision of the President, then Gonsalves-Sabola C.J. sitting in the Supreme Court on 16 May 1991. He expressed himself thus:
‘… Furnishing the magistrate with a schedule of charges is respectable practice and has, in a normal way, been adhered to in this case. It served the purpose of channeling the magistrate’s mind to the particular charges under the Bahamian law appropriate to the evidence adduced to establish the Bahamian offences set out in general terms in the Order to proceed …’
In the instant case, this process was not followed. But the appellant was aware of the charges and he also was served with the depositions on which the charges were based. Instead of stark particulars, the appellant had an embarrassment of riches. In those circumstances, it is to the highest degree really absurd to suggest that the appellant had been denied a proper opportunity to meet the case which was being put forward."[17]Their Lordships consider that the Court of Appeal was right to hold that the appellant had suffered no injustice by reason of the magistrate (and the appellant himself) not having been furnished with a list of charges.[18]It is clear from the authorities that it is good practice to furnish the magistrate with such a list. In Reg. v. Governor of Pentonville Prison, Ex parte Osman [1990] 1 W.L.R. 277, 302 Lloyd L.J. stated:- "Mr. Nicholls started by observing that in accusation cases, such as this was, the issue of the provisional warrant for the arrest of the accused comes at a very early stage of the proceedings. The Secretary of State’s authority to proceed comes next. The evidence usually comes last. There is nothing in the Act of 1967, or in the Extradition Act 1870, which requires the Secretary of State to annexe to the authority to proceed either the foreign warrant itself, or the charges which the accused will face if he is returned to the requesting country. All that the requesting country must do is to furnish particulars of the person whose return is requested, and the facts upon which and the law under which he is accused: see section 5(2) of the Fugitive Offenders Act 1967. The practice in extradition cases has been that the English ‘offences’ are stated in the authority to proceed in very general terms. The magistrate is not, of course, concerned with whether the offence is made out in foreign law. He is concerned solely with whether the evidence would support committal for trial in England, if the conduct complained of had taken place in England: see In re Nielsen [1984] A.C. 606. So the magistrate is furnished at the commencement of the hearing with a schedule of charges based on the alleged conduct and formulated in accordance with English law. The schedule of charges is frequently amended in the course of the hearing."[19]But, whilst this is good practice, what is essential is that the person whose extradition is requested should know the details of the offences in respect of which the extradition is sought. In In re Naghdi [1990] 1 W.L.R. 317, 322-323 Woolf L.J. stated:- "I fully accept that it is essential that the applicant has a proper opportunity to meet the case which is being put forward for his extradition at the hearing and this involves his being informed of the necessary details of the offences in respect of which his requisition is being sought at least by the beginning of the hearing though the charges may be amended thereafter. … While the order to proceed is an important part of the extradition procedure, I do not accept that it is under the Act of 1870 really an appropriate vehicle for performing a task of bringing to the attention of the fugitive the case which he will have to face at the hearing of the committal proceedings. The order to proceed is addressed to the magistrate and not to the person who is to be the subject of the committal proceedings in consequence of the order. It requires the magistrate to issue a warrant for the apprehension of the fugitive criminal if that has not already occurred pursuant to a provisional warrant and otherwise requires the magistrate to proceed in conformity with the provisions of the Act but that is all. While in due course the applicant will need to see a copy of the notice to proceed because it does limit the jurisdiction of the committing magistrate, as a matter of principle as long as proper notice of the charges is given to the fugitive I cannot see any particular advantage in departing from the long established practice of not including details of the offences in the order to proceed."[20]In the present case it is clear that at the commencement of the hearing for committal the appellant and his legal advisers were fully aware from the affidavits and exhibits of the details of the offences in respect of which his extradition was being sought and therefore their Lordships consider that the appellant has suffered no procedural unfairness or injustice. In the light of this conclusion it is unnecessary for their Lordships to express a concluded view on the ambit of the words in section 10(1) of the 1994 Act "hear the case in the same manner, as nearly as may be, as if he were conducting a preliminary inquiry under the Criminal Procedure Code" and their Lordships wish to reserve their opinion on the question whether the words relate only to the actual hearing of the case and do not extend to the framing of the charges.[21]Mr. Jones further submitted that the formulation of charges was necessary for ensuring the effective operation of the specialty provision in the Extradition Treaty between The Bahamas and the United States 1990 and the 1994 Act. Article 14(1) of the Treaty provides:- "A person extradited under this Treaty may only be detained, tried or punished in the Requesting State for the offense of which extradition was granted, …"[22]Section 7(3) of the 1994 Act provides:- "A person shall not be extradited to an approved State or be committed to or kept in custody for the purposes of such extradition, unless provision is made by the law of that State, or by an arrangement made with that State, for securing that he will not – (a) be tried or detained with a view to trial for or in respect of any offence committed before his extradition under this Act other than – (i) the offence in respect of which his extradition is requested; … unless he had first been restored to The Bahamas, or had had an opportunity of leaving the approved State."[23]Mr. Jones submitted that unless the charges had been formulated prior to the commencement of the committal hearing or had been formulated in the warrant issued by the magistrate committing the appellant into custody to await extradition, a United States court would be unable to know the offence or offences in respect of which the appellant had been extradited. Their Lordships do not accept that submission. A United States court would observe the specialty requirements in good faith and from the affidavits put in evidence before the magistrate who conducted the committal hearing in The Bahamas the particular offences in respect of which the appellant had been extradited would be apparent to a United States court.[24]Section 11 of the 1994 Act provides:- "(1) Where a person is committed to custody under section 10(5), the court of committal shall inform him in ordinary language of his right to make an application to the Supreme Court for habeas corpus and shall forthwith give notice of the committal to the Minister. … (3) On any such application the Supreme Court may, without prejudice to any other power of the Court, order the person committed to be discharged from custody if it appears to the Court that –(a) by reason of the trivial nature of the offence of which he is accused or was convicted; or(b) by reason of the passage of time since he is alleged to have committed the offence or to have become unlawfully at large, as the case may be; or(c) because the accusation against him is not made in good faith in the interest of justice, it would, having regard to all circumstances, be unjust or oppressive to extradite him."[25]The argument was advanced on behalf of the appellant, and was rejected by the Supreme Court and the Court of Appeal, that it would unjust to extradite him because the accusation against him was not made in good faith in the interest of justice. Mr. Jones renewed this argument before the Board. He submitted that at all times the whereabouts of the appellant, who was a Canadian citizen resident in Canada, were known to the relevant authorities both in the United States and in Canada but the United States had made no request to Canada for his extradition. The Canadian authorities had indicated their willingness to charge and try the appellant in Canada in respect of the conspiracies alleged by the United States once the evidence was provided for that purpose, and the appellant had expressed his willingness to return to Canada to stand his trial on such charges. The appellant had been charged with other drug offences in Canada and had been granted bail by a Canadian court and he had always honoured his bail. Mr. Jones further submitted that there had been forum shopping on the part of the United States and the fact that a provisional warrant had been issued by a magistrate in The Bahamas the day before the appellant arrived in The Bahamas on holiday showed that there had been collusion between the law enforcement authorities in the United States and in Canada to arrest the appellant in The Bahamas rather than in Canada. Mr. Jones submitted that these matters should have been disclosed by the United States authorities to the Minister in The Bahamas so that he could properly exercise his discretion under section 8(3) of the 1994 Act and that the failure to do so constituted an absence of good faith within the meaning of section 11(3)(c).[26]Their Lordships reject these submissions. It is clear that the United States courts have jurisdiction to try the appellant for the offences charged against him and there is a prima facie case against him in respect of these offences. Accordingly there is a legitimate public interest in prosecuting him in the United States for the alleged offences and the United States was entitled in exercise of its rights under the Treaty with The Bahamas to request his extradition. Therefore their Lordships consider that there was no obligation on the part of the United States to make disclosure of the matters referred to by Mr. Jones and no bad faith in the accusations made against the appellant and it would not be unjust to extradite him. No doubt the reason why the United States did not request the appellant’s extradition from Canada was because he was already facing a trial in Canada on unrelated charges so that extradition from Canada could not have taken place until those charges had been disposed of and (if imposed) any resulting sentence of imprisonment had been served.[27]Accordingly for the reasons which they have given their Lordships will humbly advise Her Majesty that the appeal should be dismissed. [25]