Jersey Unreported Judgments

[2010]JRC052

royal court

(Samedi Division)

11^th March 2010

Before     :

Sir Richard Tucker, Commissioner, sitting alone.

 

IN THE MATTER OF EXTRADITION

Advocate M. St. J. O'Connell for the Applicant.

Advocate M. T. Jowitt for the Respondent.

judgment

the commissioner:

1.        I have before me an application made on behalf of Philip Eric de Figueiredo for leave to serve a Representation on Her Majesty's Attorney General.  The application relates to an order made or as the applicant submits, purportedly made by the Attorney General, on the 23^rd December, 2009, for the extradition of the applicant to Australia. 

2.        It is submitted that the order was flawed and unlawful and there had been no proper compliance with Articles 30 and 32 of the Extradition (Jersey) Law 2004.  The applicant has already filed a notice of appeal seeking to challenge that decision.  He had earlier given notice to appeal a decision by the Assistant Magistrate relating to the same extradition proceedings.  Both those appeals are outstanding and await a hearing before me which is due to commence on the 27^th April, 2010.

3.        The applicant now seeks to challenge the Attorney General's decision by another route.  This is despite a clear provision contained in Article 54 of the Law that "a decision under this Part of the Magistrate or the Attorney General may be questioned in legal proceedings only by means of an appeal under this Part", that is to say part 2 of the Law dealing with extradition from Jersey.  In this connection Article 45 provides for an appeal to the Royal Court against an extradition order by the Attorney General and if the applicant is dissatisfied with the outcome of such an appeal, then Article 52 provides for a further appeal with leave to the Privy Council.  How then can the applicant mount what might be regarded as a collateral challenge to the order when it would appear to be ousted by Article 54 and when a properly recognised challenge is already extant? 

4.        The first ground of challenge in the present application relates to the alleged failure by the Attorney General to comply with the requirements of Article 30 (1)(b) of the Law.  This is expressed in very similar terms in the first ground set out in the notice of appeal.  The second ground of challenge relates to the terms of the Attorney General's certificate, also dated the 23^rd of December, 2009, the same date as his order.  Both those grounds can be raised by way of appeal rather than in the present application thus avoiding a multiplicity of proceedings.

5.        I am grateful for the cogent and admirably succinct submissions which I have received from Advocates on both sides, Advocate O'Connell for the applicant and Crown Advocate Jowitt for the Attorney General. 

6.        Advocate O'Connell has sought to persuade me to conclude that if the Attorney General purports to make an order and it is unlawful, no order had been made and that where it is seen that an order is bad on its face and so defective and in breach of statutory obligation, it is possible to say that no order has in fact been made.  I set out in detail the two grounds of challenge contained in paragraph 14 of Advocate O'Connell's skeleton argument:-

(i) The order of the Attorney General does not state that he is satisfied that he is not prohibited from ordering Mr de Figueiredo's extradition under Article 30(1)(b) of the Law.

Pausing there, I interpose that the Attorney General's certificate does make it plain that he has done so.  I return to the grounds of challenge:-

(ii) The Attorney General is prohibited from ordering Mr de Figueiredo's extradition because the specialty arrangements set out in his certificate do not comply with Article 32 of the Law.

I disagree with this argument; I prefer the submission made on behalf of the Attorney General, that it is a fallacy because as a matter of fact the Attorney General did make a decision and he did make an order within the stipulated time.  I see no way in which the plain provisions of Article 54 can be circumvented.  There is nothing in the opinion of Lord Hope in the case of R (Hilali)-v-Governor of Whitemoor Prison and Another [2008] 1 AC 805) which assists the applicant in the circumstances of this case.  Indeed at paragraph 21 of his speech Lord Hope says this of the comparable section in the English statute:-

"Section 34 must receive effect where the decision was one against which there was a right of appeal under the statute".

I have already said that the grounds of the challenge made in the present application can be raised by way of appeal and in my opinion that is where they should be made if it is desired to pursue them. 

7.        I agree with Advocate Jowitt's submission that it is inappropriate to attempt to litigate by way of proceedings by pleadings in civil proceedings what is in reality a criminal matter.  While I am prepared to accept that the test of the granting of leave in this application is whether the applicant has an arguable case and there is material fit to be investigated, I am of the firm view that that test has not been met.  There is no arguable case here and there is nothing to be investigated which would justify the making of a Representation.

8.        Accordingly I refuse leave. 

9.        I make it clear that the views which I have expressed are for the purpose only of dealing with this application.  I express no view on and must not be interpreted as prejudging the merits of the two outstanding appeals. 

10.      I order that the applicant should pay the costs of this application, though I direct that it shall not be enforced until I have decided the outcome of the appeals.

Authorities

Extradition (Jersey) Law 2004.

R (Hilali)-v-Governor of Whitemoor Prison and Another [2008] 1 AC 805.