Cartwright & Anor v. Superintendent of HM Prison & Anor (The Bahamas) [2004] UKPC 10 (10 February 2004)
Privy Council Appeal No. 40 of 2003
(1) Frank Cartwright and
(2) Samuel Knowles Appellants
v.
(1) The Superintendent of Her Majesty's Prison and
(2) The Government of the United States of America Respondents
FROM
THE COURT OF APPEAL OF THE BAHAMAS
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 10th February 2004
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Present at the hearing:-
Lord Steyn
Lord Hoffmann
Lord Rodger of Earlsferry
Sir John Roch
Sir Swinton Thomas
[Majority judgment delivered by Lord Steyn]
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- This is an appeal by Frank Cartwright and Samuel Knowles from the decision of the Court of Appeal of The Bahamas (Sawyer P, Churaman and Ibrahim JJA) dated 22 January 2003 which ordered their extradition to the United States to stand trial in Florida on charges of having committed drugs offences. Lemuel Gibson was also a party to the Court of Appeal proceedings and affected by the decision. However, he is at large and he is not an appellant before the Board.
The forensic history
- On 8 December 2000 the appellants Cartwright and Knowles (along with others) were indicted by a United States Federal Grand Jury on (so far as relevant) the following counts:
(a) at a time unknown between 11 November 1997 and 8 December 2000, conspiracy to possess cocaine and marijuana with intent to distribute it; and
(b) during the same period, conspiracy to import the same drugs into the United States of America.
- It is common ground that these would also be offences under the law of The Bahamas. On 22 January 2001 the Government of the United States requested the extradition of Cartwright and Knowles from The Bahamas on the alleged drugs offences. On 29 March and 2 April 2001 the Attorney General of The Bahamas issued his authority under the Extradition Act 1994 to proceed in respect of each appellant. In the meantime provisional warrants for the arrest of the two appellants had been issued and enforced. Knowles was already in prison, having been convicted in October 2000 on an unrelated charge of possession of dangerous drugs with intent to supply.
- On 13 and 14 June 2001 a committal hearing took place before the stipendiary and circuit magistrate (Mrs Carolita Bethel). The requesting state relied mainly on the evidence of an alleged accomplice of the two appellants, one Herbert Hanna. His account was detailed and, subject to one point, appeared on its face to point convincingly to the guilt of the appellants on serious drugs charges. Prima facie it was a cogent case for extradition. The qualification was that it was argued that this evidence was not direct testimony because the relevant passages of the authenticated statement were preceded by the words "I provided the following information ... to [Special Agents in Miami]". In her written decision the 5 October 2001 the magistrate rejected this argument and acting pursuant to section 10(5) of the Extradition Act 1994 committed the appellants to await extradition to the United States.
- The appellants applied to the Supreme Court for writs of habeas corpus ad subjiciendum. The matter came before Isaacs J for hearing. During argument the question arose, perhaps as a result of questions put by the judge, whether in respect of a challenge to the sufficiency of evidence, the appropriate remedy is certiorari. In any event, the judge gave leave to add an application for judicial review and the necessary papers were lodged pursuant to his leave. The judge then proceeded to hear the habeas corpus and judicial review applications together. In his judgment given on 5 February 2002 Isaacs J concluded that the magistrate had erred in treating Hanna's evidence as admissible. He said:
"... to my mind section 14(1)(a) [of the Extradition Act 1994] speaks to direct evidence when it mentions 'testimony given on oath'. And in that regard, a mere summary of information the affiant may have previously provided to someone, does not fall to be regarded as direct evidence of the matters stated therein. Hanna does no more than say 'I swear this is what I told Agent Weis and others on 9th August, 2000'. Hanna ought to have sworn to the truth of the contents of his affidavit in the form 'do make oath and swear as follows' or some similar formulae."
In any event, Isaacs J summarised his conclusion as to Cartwright and Knowles in this way:
"I find that the magistrate erred in law when she held that the evidence of Hanna was direct evidence and, hence, admissible as evidence of the applicants' participation in a conspiracy with him.
...
Inasmuch as the magistrate relied on Hanna's evidence in her 'weighing up' of the Requesting State's case against the applicants, … I find that the orders of committal are void. In the premises the writs must issue and the applicants released. And I so order.
I do not here make any determination in respect of the certiorari applications upon the view I have taken on the habeas corpus applications."
(References to case against Gibson deleted)
No formal order was drawn up. It is clear, of course, that the judge did not subjectively intend to make any decision on certiorari. That is, however, not the right question to address in reconstructing what the judge in fact decided. The correct approach is to ask, against the relevant context, what the legal effect of the pronounced decision is. None of this is controversial: what is controversial is the legal effect of what the judge decided.
- The Government of the United States of America (together with The Superintendent of Her Majesty's Prison) lodged an appeal against the decision of Isaacs J. There were two discrete matters before the Court of Appeal. The first issue was whether the Court of Appeal had jurisdiction to entertain the appeal of the requesting state. If the Court of Appeal had jurisdiction, the question arose whether the decision of Isaacs J on the merits was correct.
- In a detailed judgment Sawyer P, with the agreement of Churaman and Ibrahim JJA, held that the Court of Appeal had jurisdiction to entertain the appeal and that Isaacs J had erred in setting aside the magistrate's order. The Court of Appeal allowed the appeal of the requesting state and restored the order of the magistrate. It will be necessary to set out the reasoning of the Court of Appeal on the jurisdictional issue. Before that can be done it is necessary to explain the legal context.
The Legislative Provisions
- Orders 53 and 54 of the Rules of the Supreme Court 1978 respectively provide for judicial review and applications for habeas corpus.
- The legal position in respect of rights of appeal from decisions in habeas corpus and judicial review proceedings is uncontroversial and can be summarised briefly. The legislature made no provision for an appeal from the grant of habeas corpus by the Supreme Court. On the other hand, section 10(7) of the Extradition Act 1994 provides:
"If the court of committal refuses to make an order under subsection (5) in relation to a person in respect of the offence or, as the case may be, any of the offences to which the authority to proceed relates, the approved State seeking the surrender of that person to it may question the proceeding on the ground that it is wrong in law by applying to the court to state a case for the opinion of the Supreme Court on the question of law involved."
In other words, a magistrate's grant of freedom to a prisoner could be appealed by the requesting state; if upheld by the Supreme Court, that decision could be further appealed by the requesting state.
- Section 11 read as follows:
"(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.
(2) A person committed to custody under section 10(5) shall not be extradited under this Act –
(a) in any case, until the expiration of the period of fifteen days commencing on the day on which the order for his committal is made; and
(b) if an application for habeas corpus is made in his case, so long as proceedings on the application are pending.
(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.
(4) On any such application the Supreme Court may receive additional evidence relevant to the exercise of its jurisdiction under section 7 or under subsection (3) of this section.
(5) An appeal shall lie to the Court of Appeal against the refusal of an application made under subsection (1) for an order of habeas corpus and for that purpose the Court of Appeal may exercise, as to the Court seems fit, any of the powers conferred upon it by subsection (4) of section 17 of the Court of Appeal Act."
By section 11(5) the legislature therefore made express provision for an appeal against a judge's refusal to grant freedom to the fugitive on a habeas corpus application. But, as already pointed out, the legislature did not provide for an appeal against the grant of habeas corpus by the Supreme Court.
- Section 17 of the Court of Appeal Act as amended contains inter alia the following provisions:
"17(1) Any person aggrieved by any judgment order or sentence given or made by the Supreme Court in its appellate or revisional jurisdiction, whether such judgment, order or sentence has been given or made upon appeal or revision from a magistrate or any other court, board, committee or authority exercising judicial powers, and whether or not the proceedings are civil or criminal in nature may, subject to the provisions of the Constitution and of this Act, appeal to the court on any ground of appeal which involves a point of law alone but not upon any question of fact, nor of mixed fact and law nor against severity of sentence:
Provided that no such appeal shall be heard by the court unless a Justice of the Supreme Court or of the court shall certify that the point of law is one of general public importance.
...
(3) Any person aggrieved after the coming into operation of this subsection –
(a) by any declaratory order, order of mandamus, order of prohibition or order of certiorari made by the Supreme Court in any proceedings, whether or not the proceedings are civil or criminal in nature; or
(b) by the refusal of the Supreme Court to make any such order,
may appeal to the court against any such order, or the refusal of any such order, on any ground of appeal which involves a point of law or of mixed fact and law, without prejudice to any other law or provisions of this Act which provide for such an appeal."
It is not necessary to refer to the other provisions of section 17.
The analysis of the Court of Appeal on jurisdiction.
- It is now possible to return to the judgment of the Court of Appeal on the question whether there was in this case a right of appeal by the requesting state. The reasoning of the Court of Appeal was as follows. If the judge's decision was based on the application for judicial review, there was undoubtedly a right of appeal under section 17(3). The issue was whether the judge's decision, objectively considered, was so based. The Court of Appeal found that the judge in fact applied judicial review principles and in fact exercised a judicial review function. Sawyer P cited extensively from observations of Lord Reid in Armah v Government of Ghana [1968] AC 192, and emphasized Lord Reid's reference to a recognition "that there ought to have been a certiorari to bring up the depositions but it was agreed to receive the depositions as if there had been a certiorari. Later cases seem to have proceeded on this basis - no objection being taken to the lack of an application for certiorari. If the depositions are part of the record, as they appear to be, then that would be an error in law on the face of the record if the depositions were insufficient in law to support the committal" 234G-235B. She continued (para 47):
"In this case, not only were the depositions before the learned judge as part of the record of the proceedings in the magistrate's court, but there were, in fact, applications for judicial review before the learned judge and the latter were heard simultaneously with the applications for habeas corpus. Further, in the course of that hearing, the proceedings before the magistrate were reviewed in detail and it was only after doing so that the learned judge decided that certain portions of the evidence adduced before the magistrate were inadmissible and therefore that there was insufficient evidence on which to commit the respondents for extradition."
Construing what the judge had in fact done, she concluded that he had exercised a judicial review function. This is, therefore, the explanation of the judge's holding "that the orders of committal are void". The ratio of the decision of the Court of Appeal is, therefore, that on the facts section 17(3) is applicable. Somewhat tentatively she went on say, in reliance on observations in the Privy Council in The Government of the United States of America v Bowe [1990] 1 AC 500, at 535C-E, that there may also be a right of appeal under section 17(1). The Board does not endorse this particular part of the judgment of the Court of Appeal. For reasons which will emerge later in this judgement it is unnecessary to discuss this point.
The approach to be adopted.
- There was some debate about the correct approach to be adopted. Extradition is based on bilateral treaties. Domestic legislation implements the relevant treaty obligations. Courts of law must observe extradition legislation. In the area of extradition legislation, like all legislation, the task of courts is to apply and not to question legislation. That is how the Court of Appeal approached the matter, as is evident from the careful judgment of Sawyer P, and that is how the Board will approach the matter. The paramount principle is that the rule of law must be observed. These are banal observations: the Board make them only in response to arguments canvassed.
- In extradition law the court must adopt a balanced approach. Throughout extradition law there are two principal threads. First, in exercising powers of extradition courts of law must, as Isaacs J observed, be vigilant to protect individuals from the overreaching of their rights by the government. Justice to the individual is always of supreme importance. Secondly, the Board considers that it is imperative of legal policy that extradition law must, wherever possible, be made to work effectively. There was some controversy about this point. It is, therefore, necessary to explain the position.
- Crime and criminals have always traversed national boundaries. But in the modern world advances in technology and means of communication have enormously increased this phenomenon, notably in the fields of financial crimes, drugs offences and terrorism. It is, therefore, of great importance that extradition law should function properly. For the appellants Mr Fitzgerald Q.C. accepted on the authority of Government of Belgium v Postlethwaite and Others [1988] AC 924, at 946H-947B, that extradition treaties, being contracts between sovereign states, should be purposively and liberally construed. But he argued that a different approach is necessary in regard to domestic extradition legislation. He made a comparison with criminal statutes and submitted that an approach of strict construction is necessary. The Board would reject this submission. Even in regard to criminal statutes the presumption in favour of strict construction is nowadays rarely applied. There has been a shift to purposive construction of penal statutes: see Cross, Statutory Interpretation, 3rd ed., 1995, 172-175. In any event, it is a well settled principle "that a domestic statute designed to give effect to an international convention should, in general, be given a broad and liberal construction": Samick Lines Co Ltd v Owners of The Antonis P. Lemos [1985] AC 711, at 731. The same must be true of a statute passed pursuant to a bilateral treaty. Moreover, in In re Ismail [1999] 1 AC 320 the House of Lords in a unanimous judgment commented on the need to bring suspected criminals, who have fled abroad, to justice through the extradition process. In that case I observed (at 327A):
"There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permit it in order to facilitate extradition."
As the final court of The Bahamas the Board is in no doubt that it must adopt, where the Extradition Act 1994 permits it, a purposive or dynamic interpretation to make extradition work effectively.
The divide between habeas corpus and judicial review.
- The subject-matter of the present case requires some consideration of the link between habeas corpus and judicial review. In R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74, Lord Scarman observed (111B-C):
"There are, of course, procedural differences between habeas corpus and the modern statutory judicial review ... in the instant cases the effective relief sought is certiorari to quash the immigration officer's decision. But the nature of the remedy sought cannot affect the principle of the law. In both cases liberty is in issue. 'Judicial review' under R.S.C., Ord 53 and the Supreme Court Act 1981 is available only by leave of the court. The writ of habeas corpus issues as of right. But the difference arises not in the law's substance but from the nature of the remedy appropriate to the case."
In the same case Lord Wilberforce stated that, although historically distinct and governed by different statutory rules, habeas corpus and judicial review are based on a common principle: 99E-F. In 1994 the Law Commission stated that "Although the case law is riddled with contradictions, the modern tendency is to view the writ [of habeas corpus] as a specific application of principles of common law judicial review to cases affecting the liberty of the subject": Administrative Law: Judicial Review and Statutory Appeals, Law Com. No. 226, H.C. 669, para 11.2. While judicial review and habeas corpus are not assimilated the Law Commission concluded that they are "subject to a common principle and that the scope of the review of these remedies is and should be essentially the same": para 11.10. Drawing a rigid procedural dichotomy between different prerogative orders is no longer justifiable: see Clive Lewis, Judicial Remedies in Public Law, 2000, para 12-012. The two remedies do, of course, overlap in the sense that often the same decision may be made under either or under both. Mr Fitzgerald did not like the term "overlapping remedies", which is the term used in Halsbury's Laws of England, 4th ed, Reissue 2000, Vol. 17(2) para 1255, but the Board regards it as entirely apt. Pertinent to the present dispute Halsbury states (ibid):
"The greatest scope for overlap is where it is alleged that the decision is unlawful because it was based on no evidence or was an unreasonable decision on the available evidence.
If an application is made for habeas corpus and the court determines that judicial review should have been sought, the application will not simply be rejected. The court will recognise the true nature of the application and deal with it accordingly."
Pre-eminently this is an area where substance rather than form governs. Semantics must yield to common sense.
- The Board does not assume that the practice in regard to judicial review and habeas corpus in The Bahamas is in all respects the same as in England. But the terms of the judgment of Sawyer P. indicates to the Board's satisfaction that such differences as exist do not impact on the analysis in this judgment.
Conclusions on jurisdiction.
- The starting point is, of course, that the Board accepts that in The Bahamas, as in England, the distinction between habeas corpus and judicial review remains important in regard to rights of appeal.
- For the appellants Mr Fitzgerald acknowledges that the judge could have decided the case on the judicial review application, or on both the habeas corpus and judicial review application, in which event there would undoubtedly have been a right of appeal. But he insists that the judge made clear that he was deciding the case solely on habeas corpus grounds. This is not an issue of high legal principle but simply a question of assessing in the absence of a formal order what in context the judge in fact did. The Board is persuaded by the reasoning of Sawyer P. This view is reinforced by the judge's conclusion that "I find that the orders of committal are void". The judge was in effect making a declaration that the orders of committal were void. From that decision it followed that the state was no longer entitled to detain the appellants. The judge had based his decision on judicial review. Accordingly there was a right of appeal against the critical order.
- Mr Fitzgerald suggested at one stage that the decision of the Court of Appeal could undermine the ancient remedy of habeas corpus in some way. Clearly, it will do nothing of the kind. The preference for substance over form is perfectly consistent with the common principle underlying both forms of procedure.
- Mr Fitzgerald also argued that the decision of the Court of Appeal, which the Board has preferred, is contrary to the expressed will of Parliament. This is wholly implausible. After all, Parliament has given a right to a requesting state to appeal to the Supreme Court against a decision in habeas corpus proceedings to set a fugitive free, and upon dismissal of such an appeal a further right of appeal to the Court of Appeal. In any event, one can be confident that in deciding what, in the absence of a formal order, the judge in fact did, Parliament would expect the courts to be guided by considerations of substance rather than form.
- For these reasons the Board concludes that there was a right of appeal.
The decision on the merits.
- The Board observes at once that the judge came to an astonishing conclusion. He interpreted the affidavit as open to the construction that the deponent was simply giving an account of false information which he had supplied. Plainly the deponent was doing no such thing. He was simply putting his account forward as a factual one. The judge erred. Subject to one point, it is conceded that on this basis the appeal must fail.
- The qualification is that Mr Fitzgerald submitted that the requesting state was in breach of an obligation to the appellants to disclose details of any prior statements of Hanna. This submission was also made to the Court of Appeal. Sawyer P. observed:
"(84) Mr Fitzgerald also submitted that the decision of the learned judge, in so far as it was based on the non-disclosure of other statements by Herbert Hanna, should be set aside and habeas corpus or certiorari granted because there was a failure of natural justice on the part of the U.S.A. to give the respondent Knowles copies of other statements made by Herbert Hanna. The fact that Mr Fitzgerald asked this court to set aside the judge's decision and grant habeas corpus or certiorari, indicates quite clearly that the learned judge had dealt with the respondent's application for judicial review.
(85) Mr Cumberbatch accepted that if such other statements existed and which may have assisted the respondents, they should have been disclosed to the respondents. He said, however, that, as far as he is aware, there are no such statements.
(86) Mr Fitzgerald was unable to point to any evidence before us that such statements exists.
(87) In those circumstances, I find that the respondent Knowles cannot succeed on this ground and his appeal, in so far as it depends on that ground, fails."
Two comments are necessary. First, Cartwright had not appeared before the Court of Appeal. Secondly, counsel for the requesting state (Mr Cumberbatch) explained the position in accordance with his instructions. Mr Fitzgerald has not persuaded the Board that the Court of Appeal was wrong. This ground of appeal also fails.
Disposal.
- The Board will humbly advise Her Majesty that the appeals should be dismissed.
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Dissenting judgment delivered by
Lord Hoffmann and Lord Rodger of Earlsferry
- The respondents were committed to custody by the magistrate, pursuant to section 10(5) of the Extradition Act 1994, to await extradition to the United States. In accordance with section 11(1), the magistrate informed them of their right to make an application to the Supreme Court for habeas corpus. This celebrated common law remedy, more fully called the writ of habeas corpus ad subjiciendum, is nowadays a rarity outside certain specialised fields. For the most part, it has been supplanted by statutory rights of appeal. But, as section 11(1) shows, it remains the primary remedy for challenging a committal into custody for the purposes of extradition.
- At common law, the writ of habeas corpus enables the court to determine the legality of the applicant's detention and, if it is found to be unlawful, to order his release. But section 11(3) extends the grounds upon which release may be ordered. It provides that upon an application for habeas corpus -
"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 was accused or 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 the circumstances, be unjust or oppressive to extradite him."
- The procedure for making an application for habeas corpus is set out in Order 54 of the Rules of the Supreme Court. The old practice was that if the applicant made out a prima facie case, the judge would order the writ to issue. It would then be served upon the detainer, ordering him to make a return stating all the causes of the applicant's detention. The judge would then consider whether these were sufficient in law to justify the detention and, if he decided that they were not, he would order the applicant's release. The usual modern practice is for the judge to direct argument inter partes on whether the writ should issue in the first place. At that stage the detainer puts forward his grounds for detention and the judge determines their legality. If he decides that they are insufficient, he orders the writ to issue. The return is then a formality: the question of the legality of the detention is not reargued and an order for release follows.
- In accordance with this procedure, the respondents applied to Isaacs J for writs of habeas corpus to issue. The main ground for the application was that the evidence before the magistrate would have been insufficient to justify a committal for an equivalent domestic offence. The judge raised the question of whether he was entitled to consider the sufficiency of the evidence on an application for habeas corpus or whether it was necessary to issue separate proceedings for an order of certiorari to bring the record of the proceedings before the magistrate into the Supreme Court. This is a question of some technicality on which different opinions have been expressed in the courts of the Bahamas but into which it is unnecessary for us to enter. To guard against the possibility that certiorari might be needed, the judge gave leave to apply for such an order and heard the application together with the application for the writ of habeas corpus.
- In the event, the judge, after examining the authorities, held that he had sufficient power to consider the adequacy of the evidence on the habeas corpus application. He decided that it was inadequate and ordered that writs of habeas corpus should issue and the respondents be released. He made no order upon the application for certiorari.
- In our opinion, the judge was clearly wrong in deciding that the evidence was inadequate. The government of the United States had made out a strong case for extradition. But the question is whether there was any way in which the judge's error could be corrected.
- Section 11(5) of the 1994 Act deals with an appeal from habeas corpus proceedings under the Act:
"An appeal shall lie to the Court of Appeal against the refusal of an application made under subsection (1) for an order of habeas corpus …"
- Thus the statute gives a right of appeal to an applicant who has been refused an order but no right of appeal against the grant of an order. There is nothing unusual about there being no right of appeal against the grant of an order. Such a right was introduced in England only by section 15 of the Administration of Justice Act 1960:
"… an appeal shall lie, in any proceedings upon application for habeas corpus, whether civil or criminal, against an order for the release of the person restrained as well as against the refusal of such an order."
- Provisions in substantially identical terms were adopted in Barbados in 1985 (section 58 of the Supreme Court of Judicature Act Cap. 117A, in Jamaica in 1993 (section 21A of the Judicature (Appellate Jurisdiction) Act and in Trinidad and Tobago in 1996 (section 7 of the Habeas Corpus Act c. 8:01). But the Bahamas has no such legislation giving a right of appeal in habeas corpus applications generally. Instead, there is only section 11(5) of the 1994 Act, giving a right of appeal only against the refusal of an order in extradition proceedings.
- The Court of Appeal and the majority of the Board think that the legislature of the Bahamas made a mistake. It should have given a right of appeal against the grant of an order for the writ to issue. Then it would be possible to correct the error which has occurred in this case and extradite the applicants to the United States. In order to achieve this result, they resort to the more general jurisdictional provisions in the Court of Appeal Act. The only ones relied upon are subsections (1) and (3) of section 17. Neither the Court of Appeal nor any member of the Board have found any merit in the argument for a right of appeal under section 17(1) and we say no more about it. But they have found jurisdiction in section 17(3):
"Any person aggrieved …
(a) by any declaratory order, order of mandamus, order of prohibition or order of certiorari made by the Supreme Court in any proceedings, whether or not the proceedings are civil or criminal in nature; or
(b) by the refusal of the Supreme Court to make any such order,
may appeal to the court against any such order, on any ground of appeal which involves a point of law or of mixed fact and law …"
- This is unpromising material out of which to construct a right of appeal against an order for the issue of a writ of habeas corpus. The judge did not make a declaratory order, order of mandamus, order of prohibition or order of certiorari. These are well known forms of relief. Declaratory orders are made under RSC Ord 15, r. 16. Orders of mandamus, prohibition and certiorari are the successors to the old writs of the same names and are made under Ord 53. But the judge made none of these. He made an order for the issue of a writ of habeas corpus under Ord 54.
- In the Court of Appeal, Sawyer P got around this difficulty by saying that, in considering the sufficiency of the evidence, the judge was "applying the principles of judicial review", "judicially reviewing the proceedings" and in substance behaving as if he was deciding whether to make an order of certiorari. But the right of appeal conferred by section 17(3) is defined by reference to the nature of the order made, not by reference to the principles which the judge applied in deciding whether to make it. That is what one would expect. As Lord Wilberforce once observed: "typically, English law fastens, not upon principles but upon remedies" (Davy v Spelthorne Borough Council [1984] AC 262, 276.) Let it be assumed that the release of the respondents could equally well have been secured by an order of certiorari. Let it be assumed that the judge was wrong in thinking that an order of certiorari was unnecessary to enable him to proceed to order the issue of the writ of habeas corpus. Let it therefore be supposed that the judge was wrong to order the issue of the writ without making an order of certiorari. Nonetheless, he did so, and section 17(3) confers no right of appeal against such an order.
- Even if the judge (contrary to his express statement) is to be treated as having made an order of certiorari, we do not see how that helps the appellants. That only means that he made two orders: a deemed order of certiorari and an actual order that habeas corpus should issue. The appellants may have been entitled to appeal against the first. But that does not enable them to set aside the order for release unless they can also appeal against the second.
- An alternative favoured by the majority of the Board is to treat the judge as having made a "declaratory order". This is a point which was not argued in the Court of Appeal, did not appear in the appellants' printed case and was not argued before the Board. It is based upon the fact that the judge said:
"I find that the orders for committal are void. In the premises the writs must issue and the applicants [be] released. And I so order."
- It plainly never occurred to the judge that he was making a declaratory order. His language distinguished between what he found (as a question of mixed law and fact) and what on that basis he ordered. It is implausible to say that a judge who says he finds that the defendant was negligent and on that basis orders payment of damages is making a declaratory order that the defendant was negligent. In any case, the argument suffers from the same defect as that based upon a deemed order of certiorari. Let it be assumed that the judge's deemed declaration can be overturned on appeal. That would show (if further demonstration were needed) that he was wrong to make an order for the writ of habeas corpus. But it would not confer the right of appeal against that order.
- The interpretation given by the majority to the judgment of Isaacs J means that not only did he (presumably on the authority of Molière) make a declaratory order and order of certiorari without realising that he was doing so, but that he did nothing else. The notional orders are conjured up in order to be set aside on appeal and, this being accomplished, the actual order against which there was no appeal vanishes in a puff of smoke.
- We repeat that in our opinion the requesting State made out a strong case for extradition and it is therefore with genuine regret that we find ourselves unable to agree with the majority in thinking that the judge's error can be corrected. The "war on drugs" is important, although not everyone would agree with the means employed to wage it or even with the military metaphor. But equally, if not more important, is the rule of law. People facing extradition, however unmeritorious they may be, are entitled to the law. If Parliament has made no provision for appeal against an erroneous order for their release, they are entitled to the benefit of that order. It is not the function of judges to become legislators and remedy what they perceive as a defect in the law by giving a far-fetched construction to what we are bound to say are the extremely plain and simple words of section 17(3).
