(1) Superintendent of Foxhill Prison (2) Government of The United States of America v Viktor Kozeny

Facts

The appellants (S and the US) appealed against a decision of the Court of Appeal of the Bahamas upholding a writ of habeas corpus and subjiciendum in respect of the respondent (K).

K was a Czech national who had been living in the Bahamas. The US sought his extradition to stand trial on an indictment alleging conspiracy to violate the Foreign Corrupt Practices Act 1977 (United States) together with substantive offences of corruption, bribery and money laundering. K was arrested in the Bahamas. At a committal hearing, the magistrate held that the charges of bribery and money laundering did not give rise to extradition offences, but found the corruption charges to be made out. K successfully applied to the Supreme Court for a writ of habeas corpus on the grounds that the offences for which his surrender was sought were not extradition offences and that the US had failed to make full and frank disclosure such as to constitute an abuse of process. He was unconditionally discharged. The Court of Appeal dismissed an appeal by S and the US against the grant of habeas corpus. The appellants then obtained special leave to appeal to the Judicial Committee of the Privy Council. The issue was whether the Judicial Committee had jurisdiction to hear an appeal against an order for the release of a detainee made by the Court of Appeal of the Bahamas in habeas corpus proceedings.

Held

(1) Up until the coming into force of the Administration of Justice Act 1960 s.15, the position at common law was that a detainer had no right to challenge a writ of habeas corpus in the Court of Appeal or the House of Lords, Cox v Hakes (1890) L.R. 15 App. Cas. 506 and Secretary of State for Home Affairs v O'Brien [1923] A.C. 603 followed.

S and the US relied on a number of cases including Attorney General of St Christopher and Nevis v Rodionov [2004] UKPC 38, [2004] 1 W.L.R. 2796and Attorney General of Hong Kong v Kwok-A-Sing (1873-74) L.R. 5 P.C. 179 as distinguishing the position in the Judicial Committee from that at common law. However, none of the cases relied upon was a clear decision to the effect that the Judicial Committee had jurisdiction and, critically, none of them considered the question of whether to permit such an appeal would be contrary to "the ancient and universally recognised constitutional right" to immediate release following the grant of habeas corpus.

There was no reason why any different conclusion should be arrived at in the exercise of the royal prerogative from that resulting from the application of the common law. The constitutional rights of the citizen should, in principle, be the same in both cases, Rodionov and Kwok-A-Sing distinguished. The Judicial Committee's jurisdiction depended on the Judicial Committee Act 1833 s.3 and the Judicial Committee Act 1844 s.1. While both sections were in broad terms, they were no broader than the Supreme Court of Judicature Act 1873 s.19 or the Appellate Jurisdiction Act 1876 s.3, the provisions considered in Cox and O'Brien. In both those cases the breadth of the language was held not to be sufficient to defeat the constitutional principle that a detainer was not entitled to appeal against an order granting habeas corpus, save where the detainee's rights had been removed by express statutory provision. There was no reason why the same constitutional principle should not apply in the instant case.

Thus, the Judicial Committee had no jurisdiction to entertain an appeal by a detainer against a grant of habeas corpus in the Bahamas unless jurisdiction was conferred by a provision of the Constitution of the Bahamas or of a Bahamian statute. There was no such provision in either. Moreover, the terms of the Extradition Act 1994 (Bahamas) were wholly inconsistent with the possibility of a further appeal by the detainer to the Judicial Committee. The result of s.11 of that Act was that if the detainer's appeal to the Court of Appeal failed, the detainee was unconditionally entitled to remain free. Had Parliament intended that there should be a further avenue of appeal to the Judicial Committee, it would have said so expressly (see paras 27, 30, 34-37, 39, 41-47 of judgment).

Comment

The Judicial Committee of the Privy Council had no jurisdiction to hear an appeal against an order for the release of a detainee made by the Court of Appeal of the Bahamas in habeas corpus proceedings.

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