Knowles & Ors v. Superintendent of HM Prison Fox Hill & Ors (Bahamas) [2005] UKPC 17 (23 March 2005)

ADVANCE COPY

	Privy Council Appeal No. 45 of 2004

Austin Knowles and Others	Appellants
	v.
Superintendent Culmer (Superintendent of H.M. Prison 
 Fox Hill) and Others 	Respondents

	FROM

THE COURT OF APPEAL OF THE BAHAMAS
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 23rd March 2005
	------------------

	Present at the hearing:-
			Lord Nicholls of Birkenhead
Lord Slynn of Hadley
Lord Hoffmann
Lord Hope of Craighead
Sir Swinton Thomas
		       [Delivered by Lord Slynn of Hadley]
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1.	Each of the appellants was charged in the United States respectively with various offences relating to the possession, importation and supplying of dangerous drugs “in the Bahamas and abroad” contrary to the Dangerous Drugs Act 2000.  An application was made for their extradition from The Bahamas to the United States.  By an Authority to Proceed dated 13 February 2003 in relation to each of the appellants Dr Marcus Bethel as “Acting Minister of Foreign Affairs” authorised the Stipendiary and Circuit Magistrate, Nassau, to proceed  against the appellants respectively on the various charges in accordance with the Extradition Act 1994, in respect of offences which he stated he was satisfied “are offences provided for in the extradition treaty with the United States and the acts and omissions constituting the offences would constitute the offences” respectively set out in each authorisation to proceed.
2.	Orders were made by the Magistrate, Mrs Carolita Bethel for the appellants to be committed to prison to await extradition pursuant to section 10 (5) of the Extradition Act 1994 Ch 96.  With the leave of Thompson J in the Supreme Court given on 25 November 2003 proceedings were issued seeking orders of habeas corpus for the release from prison of the appellants on the grounds specified in the originating Notices of Motion.  On 25 November 2003 originating summonses were also issued seeking leave to apply for habeas corpus, for judicial review by certiorari of the Magistrate’s decision and asking, in addition to immediate release, for damages.

3.	The applicants also sought by separate applications for judicial review an order quashing the instrument of appointment of Dr Bethel and declaring both that his appointment and the subsequent extradition proceedings were ultra varies and void.  On 22 April 2004 summonses were issued by the appellants asking that they be admitted to bail.  

4.	The appellants contended that Dr Bethel was not properly appointed so that he did not have the power to sign the Authorities to Proceed which were therefore invalid.  They sought discovery of documents which they said were relevant to this issue.  When the matter came before Thompson J she accepted that this question was “definitely a matter in issue between the parties” and that his appointment was “obviously vital to these proceedings”.  She also accepted that the documents of which discovery was sought would be in the possession of the Respondents and had not been disclosed. Accordingly in the exercise of her discretion she ordered pursuant to Order 24 of the Rules of the Supreme Court 1978 that the Respondents produce
“1.	All documents pertaining to the alleged purported exercise of the Governor General’s power of appointment of the Hon Dr Marcus Bethel as Acting Minister of Foreign Affairs in February 2003, including correspondence with the Rt Hon Prime Minister and the documented leave granted to the Hon Frederick Mitchell to permit him to leave the jurisdiction.         

2.		Bills and receipts for hotel accommodations, airfare with relevant warrants or other authorities for payment associated therewith.

3. 		Any formal documents or communiques’ signed by Minister Mitchell on his official trip.

4.		Confirmation in writing as to the date of publication of the Official Gazette relied upon by the Respondents in the purported proceedings before S & C Magistrate Bethel affecting the applicants.”

5.	It was contended by the appellants before the Court of Appeal that that Court did not have jurisdiction to hear the appeal against the Order for Discovery.  That contention was robustly rejected by the Court but it is pursued before the Board on the grounds, first, that the appeals were raising only issues of fact or mixed fact and law, and secondly that  they were interlocutory orders.  Accordingly, the Court of Appeal could not hear them.

6.	By section 10 of the Court of Appeal Act Ch. 52 it is provided that:
“Subject to the provisions of this Part of this Act and to the rules of court, the court shall have jurisdiction to hear and determine appeals from any judgment or order of the Supreme Court given or made in civil proceedings, and for all purposes of and incidental to the hearing and determination of any such appeal and the amendment, execution and enforcement of any judgment or order made thereon, the court shall, subject as aforesaid, have all the powers, authority and jurisdiction of the Supreme Court.” (underlining added)  

The first question is thus whether this order as to discovery is an order made in civil proceedings.

7.	The distinction between civil and criminal proceedings was considered in Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147, where an application for habeas corpus had been refused by the Divisional Court, against which refusal there was no appeal if it was “a judgment in a criminal cause or matter”.  At p162 Lord Wright said:
“The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment such as imprisonment or fine, it is a ‘criminal cause or matter’.  The person charged is thus put in jeopardy.  Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal.

In In Re O (Restraint Order: Disclosure of Assets) [1991] 2 QB 520, 527 Donaldson J drew a distinction between a judgment ‘in a criminal cause or matter’ and a judgment ‘collateral to a criminal cause or matter’.”

8.	The challenge to Dr Bethel’s authority raises clearly a constitutional issue.  The appellants also claim damages including exemplary and aggravated damages.  Neither of these claims is made in a criminal cause or matter in the sense explained by Lord Wright.  They are on any view collateral to the challenge to the order of committal in custody pending extradition.  The Court of Appeal accordingly had jurisdiction under section 10 of the Court of Appeal Act and it is unnecessary to consider whether there was also jurisdiction to hear the appeals under section 21(3) of that Act. The Board has no doubt that in the present case the Court of Appeal was right to hold that it had jurisdiction under section 10 to hear the appeals against the order for discovery.

9.	The Court of Appeal regarded this challenge to Dr Bethel’s appointment and the order for discovery as a method of impleading and impugning the Governor-General and other officers appointed under her authority in a way which was wholly unacceptable.  “First, the Governor-General cannot be impleaded in any proceedings.  Secondly, an order cannot be made against the Governor-General qua Governor-General. There are some institutions in this country – for obvious reasons as we said during the course of discussions – that are inviolable and ought to remain so.  This order not only seeks to denigrate the office of Governor-General, but it also suggests unholiness in the office, lack of perspicacity in the office”.

10.	The Constitution provides as follows:
“2.	This Constitution is the Supreme law of the Commonwealth of The Bahamas and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.

32.	… [The Governor-General] shall be Her Majesty’s representative in The Bahamas

71.(1)	The Executive authority of The Bahamas is vested in Her Majesty.

71.(3)	Nothing in this article shall prevent Parliament from conferring functions on persons or authorities other than the Governor-General

76.(1)  Whenever a Minister other than the Prime Minister is unable, by reason of his illness or absence from The Bahamas or absence from his duties on leave, to perform the functions of his office, the Governor-General may, in writing, authorise another Minister to perform those functions or appoint a person to be a temporary Minister:
...

	(2)	Subject to the provisions of Article 74 of this Constitution, a temporary Minister shall hold office until he is notified by the Governor-General in writing that the Minister on account of whose inability to perform the functions of his office he was appointed is again able to perform those functions or that Minister vacates his office.

(3) the powers conferred on the Governor-General by this Article shall be exercised by him in accordance with the advice of the Prime Minister.

77.	The Governor-General, acting in accordance with the advice of the Prime Minister, may, by directions in writing, charge the Prime Minister or any other Minister with responsibility for any business of the Government of The Bahamas, including the administration of any department of Government:

Provided that a Minister appointed from among members of the House of Assembly shall be charged with responsibility for finance.

79.(4)	Where the Governor-General is directed to exercise any function on the recommendation or advice of, or with the concurrence of, or after consultation with, any person or authority, the question whether he has so exercised that function shall not be enquired into in any court. 

85.  The Governor-General, acting in accordance with the advice of the Prime Minister, may grant leave of absence from his duties to any Minister or Parliamentary Secretary.”

11.	The appellants say that the approach of the Court of Appeal towards the position of the Governor-General was fundamentally wrong.  The Board agrees that it cannot be said that the acts of the Governor-General are wholly immune from judicial review although some exercise of the Governor-General’s functions may not be liable to such investigation and review, quite apart from specific provisions such as Article 79(4) of the Constitution.  That article itself does not, however in the opinion of the Board, on its face exclude all inquiry as to whether the Governor-General has validly or constitutionally exercised a function under it.  What it precludes is any inquiry as to whether the Governor-General “so exercised a function,” that is whether he did so on the recommendation or advice of, or with the concurrence of, or after consultation with, any person or authority.

12.	In the present case the Governor-General wrote to the Government Minister of Foreign Affairs the Hon Frederick Mitchell MP on 12 February 2003:– 
“I have the honour to inform you that on the advice of the Prime Minister and in accordance with Article 85 of the Constitution of the Commonwealth of The Bahamas, approval is hereby granted for you to be absent from your duties as Minister of Foreign Affairs and the Public Service during the period 13th to 20th February, 2003.

2.	  I also inform you that in accordance with Article 76 of the Constitution, I have authorized Senator The Honourable Dr Marcus Bethel, Minister of Health, temporarily to perform the functions of the Minister of Foreign Affairs and the Public Service.”

She also wrote to Dr Marcus Bethel and notified Mr Mitchell to the same effect:-
“I have the honour to inform you that on the advice of the Prime Minister and in accordance with Article 76 of the Constitution of the Commonwealth of The Bahamas, I authorize you temporarily to perform the functions of The Honourable Fredrick Mitchell, Minister of Foreign Affairs and the Public Service during the period 13th to 20th February 2003.”

13.	Whether either of these acts was done on the advice of the Prime Minister cannot be enquired into by a Court.  No discovery as to the advice is appropriate or permissible, but it does not follow that some other aspect of the constitutionality of the appointment cannot be investigated in legal proceedings. 

14.	The appellant challenges the appointment of Dr Bethel on a number of grounds.  In the first place it is said that there was no document before the magistrate which was put to Dr Bethel in evidence validating his appointment.  There was nothing more than an unpublished draft of the Official Gazette purporting to show the appointment, but the magistrate refused to admit this in evidence.  Instead, after the evidence before the magistrate had been given, it is said that what was a copy of the Official Gazette was sent to the magistrate.  It has not been shown that either that copy of the Official Gazette or a Notice of Cabinet Office 2421 referred to in the magistrate’s ruling of November 2003 was ever published in the Official Gazette or as an official Government Notice.

15.	Then it was said that by virtue of Section 8(1) of the Extradition Act the only person who can issue a notice to proceed is “the Minister” which by Section 2 is “the Minister assigned responsibility for extradition”.  That was the Minister of Foreign Affairs.  Another minister could only be authorised to fulfil the Foreign Minister’s functions if the latter “is unable, by reason of his illness or absence from The Bahamas, or absence from his duties on leave, to perform the functions of his office”.

16.	The appellants contend that it is plain that the Minister of Foreign Affairs was able to perform the functions of his office since, although absent from The Bahamas, he was attending a CARICOM meeting in the Caribbean as Foreign Minister.  He was therefore not only able to perform but was performing the functions of his office.  Dr Bethel could therefore not be appointed to fulfil those functions nor could he validly do so.

17.	The facts are, however, that the letters signed by Her Excellency on 12 February 2003 were on the face of them valid permission for Mr Mitchell to be absent from his duties from 13 to 20 February 2003 and a valid authorisation for Dr Bethel temporarily to perform those functions.  Both ministers acted on the Governor-General’s authorisation on the basis that the authorisation was valid and nothing that they did appeared to be outside that authorisation.  Dr Bethel’s acts could therefore be treated as valid unless they can be shown to be invalid in law.  The absence of the notice in the Official Gazette or other documents emanating from the government does not, in the light of the Governor-General’s letters, establish that there was no valid appointment.  Moreover, although section 76 of the Constitution speaks of the authorisation of the performance of “the functions of his office” by another minister, this is not to be read as meaning necessarily that it must be the authorisation of all the functions of his office, nor is such authorisation necessarily to be dependent on the Minister of Foreign Affairs not being able to fulfil any part of the functions of his office.  Even though he could attend the CARICOM meeting as one of his functions, it was possible for a function such as the signing of the authorisation to proceed in an extradition application to be performed by another minister pursuant to the Governor-General’s decision, not least if the function depended on a consideration of detailed matters by another minister present in The Bahamas.  So far as the Extradition Act was concerned the person having authority was not expressed to be the Minister of Foreign Affairs but the Minister “assigned responsibility for extradition”.  At the relevant time it was Dr Bethel who was authorised to exercise the functions of the Minister of Foreign Affairs.

18.	It is thus plain that there could be no valid order for discovery of documents relating to the question whether the Prime Minister had advised the Governor-General to authorise Dr Bethel to perform his functions.  Nor in view of the specific grounds of the criticisms made of the appointment of Dr Bethel and the grant of leave to the Minister of Foreign Affairs is it relevant, or justified as a matter of discretion, to order (a) all the documents “pertaining to the alleged purported exercise of the power of appointment” of Dr Bethel, (b) correspondence with the Prime Minister and (c) “documented leave” to Mr Mitchell to leave the jurisdiction.  These categories all go much wider than is justified in view of the issues raised.  To order production of all formal documents signed by the Minister on his trip again goes too far.  It is accepted that he performed his function as Minister whilst at the CARICOM Meeting.  It is only the fact that he exercised a function which is alleged to invalidate Dr Bethel’s appointment not the detail of what he did.  Moreover there can not be any justification for ordering production of all the bills and receipts for hotel accommodation, airfare, etc specified in Items 2 and 3 of Thompson J’s order.  As to Item 4 if the respondents do not produce the document it is to be assumed that they do not have it and that it never existed.  They obviously cannot rely on it.

19.	In the view of the Board, although for different reasons, the decision of the Court of Appeal setting aside the judge’s order for discovery is upheld and to that extent the appeal dismissed.

20.	Whether Thompson J had jurisdiction to grant bail to the appellants raises a discrete question.  The Court of Appeal and the respondents say that she did not, the appellants say that she did.

21.	The respondents’ argument essentially is that the Extradition Act is a self-contained code.  All the protection necessary for the person seeking to avoid extradition, or to regain his liberty, is already there.  Authorisation to proceed and the arrest of the person sought by the foreign state are spelled out in Sections 8 and 9 and the magistrate as the court of committal is specifically given “power to remand in custody or to release on bail” (section 10(2)).  If the evidence is sufficient to warrant trial the individual is to be committed to custody (section 10(5)) but he must be informed of his right to make an application for habeas corpus.  The Supreme Court may discharge him from custody if eg the offence is trivial or there has been delay which makes it unjust to extradite him or if the accusation is not made in good faith in the interests of justice (section 11(3)).  After two months in custody from the date when he could have been extradited he may be discharged.  It follows, argue the respondents, that bail may only be granted up to the date of committal but not subsequently.

22.	It is clear that the Supreme Court had an inherent jurisdiction to grant bail to a person detained which was additional to the specific power to grant bail given to the magistrates up to the time of committal.  In R v Spilsbury [1898] 2 QB 615 in an appeal by a person arrested under the Fugitive Offenders Act 1881 who applied for habeas corpus Lord Russell of Killowen CJ said at page 620:
“This Court has, independently of statute, by the common law, jurisdiction to admit to bail.  Therefore the case ought to be looked at in this way: does the Act of Parliament, either expressly or by necessary implication, deprive the Court of that power?  The law relating to this subject is well stated in 1 Chitty’s Criminal Law, 2nd ed. P.97, as follows: ‘The Court of King’s Bench, or any judge thereof in vacation, not being restrained or affected by the statute 3 Edw. 1, c. 15(1) in the plenitude of that power which they enjoy at common law, may, in their discretion, admit persons to bail in all cases whatsoever, though committed by justices of the peace or others, for crimes in which inferior jurisdictions would not venture to interfere, and the only exception to their discretionary authority is, where the commitment is for a contempt, or in execution.” 

Having reviewed the provisions of the 1898 Act Lord Russell concluded that there was no express or implied withdrawal of the right to bail.  He said at page 622:
“I have come to the conclusion that the provisions of the statute are consistent with the recognition of the power of this Court to admit to bail in such cases as the present.  This inherent power to admit to bail is historical, and has long been exercised by the Court, and if the Legislature had meant to curtail or circumscribe this well-known power, their intention would have been carried out by express enactment.”

He continued:
“But how ought the power to be exercised?  Considering the class of cases which are likely to arise under the Fugitive Offenders Act, it is obvious that the power ought to be exercised with extreme care and caution.”

23.	In the result bail was refused but not “without some doubt” (Lord Russell, p 623) and “with considerable hesitation [as to whether the power to admit to bail existed]” (Kennedy J, p 625).  See also Nazir v Chinnoy [1991] COD 207.

24.	There are differences between the Fugitive Offenders Act and the Extradition Act of The Bahamas, but in the view of the Board  on the basis of Spilsbury, the Supreme Court had an inherent jurisdiction to grant bail under The Bahamas Extradition Act, the predecessor to which was based on the English Extradition Act 1870.

25.	The respondents contend that if there was jurisdiction for the Supreme Court to grant bail this was not a case in which it should have been granted.  They criticise the grounds relied on by Thompson J.  She accepted that these were serious offences for which severe sentences of imprisonment were likely after conviction and she repeated the words of Lord Hewart CJ R v Phillis [1922] 1 All ER 275 that when dealing with the grant of bail in extradition cases “there are special grounds for care and caution”.  The learned judge, however, referred to the fact that the appellants had strong connections with The Bahamas.  They were resident in The Bahamas and had no ties with any other country.  They had worked there.  Apart from one appellant (N Knowles) they had children there.  One was a member of The Bahamas police (Bethel) and two had interests in family businesses (N Knowles and A Knowles).  She said that although international criminals had been able to flee and live in other countries in the past “after the events of September 11, 2001, security has been beefed up in all countries and this is probably no longer the case.  It is also true that in going to other countries from The Bahamas it is usually necessary to fly through the United States and this is the country to which the several applicants do not wish to flee”.

26.	Affidavits were filed on behalf of the appellants alleging inhuman and degrading treatment in prison and setting out personal details relating to the individuals as to why they should be released on bail.  The judge found, after a personal visit to the prison where the appellants were detained, that the conditions constituted inhumane and cruel treatment.  She criticised the affidavit of the Superintendent of Prisons which dealt with this matter on the basis that the affidavit could not have been made from his personal knowledge and he did not give information concerning the source or sources of his knowledge.  The respondents contend that the judge should have given more consideration to the Superintendent’s evidence rather than relying entirely on her short visit to the cells.  They also say that the connections relied on by the appellants are those which are normally relied on in extradition cases without there being any special reason to grant bail.  Mere residence and having a family in the country do not necessarily lead to the conclusion that there will be no attempt to flee the jurisdiction, particularly in a case where it is possible that substantial sums of money may be available from drug smuggling.  Moreover it is not accepted that the only way out of The Bahamas would be to the United States to which the appellants could not safely go without risk of being arrested there.  

27.	The Board considers that there is much force in these criticisms and the learned judge did not appear to give sufficient weight either to the nature of the crimes alleged or to the risk of, and the advantage of, their fleeing.  It is important that in this particular type of case these considerations should be taken fully into account and it should only be in exceptional cases that bail as a matter of discretion is granted.  That, however, is not the end of the point.  The question is whether the Court of Appeal had any jurisdiction to interfere with the grant of bail.

28.	There is no provision in the Bail Act (a consolidating Act) that the grant of bail by the Supreme Court may be challenged and set aside in the Court of Appeal.  Nor is there in the Constitution, the Court of Appeal Act, the Extradition Act nor any other legislation produced to the Board, any express provision for such an appeal against the grant of bail.  The Board does not consider that such an appeal is an appeal from an order given or made in civil proceedings for the purposes of section 10 of the Court of Appeal Act nor is it an appeal on a point of law alone within the meaning of section 21(1) of the Court of Appeal Act nor an order of the kind specified in section 21(3) of that Act.

29.	This contrasts with the position in the Supreme Court where the grant or the refusal of bail by a Magistrates’ Court is challenged.  There the position is clearly spelled out.  If there was to be such an appeal to the Court of Appeal from a refusal of bail by the Supreme Court one would expect to find it in the Bail Act.  Moreover no judgment has been cited to the Board where in the courts of The Bahamas it has been held or suggested that the Court of Appeal has an inherent jurisdiction to hear appeals from the Supreme Court against the grant of bail by the latter.

30.	This is consistent with the position under English law where there are detailed provisions (a) in the Bail Amendment Act 1993 as to appeal from a Magistrates’ Court to the Crown Court against the grant of bail, and against conditions imposed on the grant of bail; (b) as to the powers of the Crown Court and the High Court to grant bail respectively under section 81 of the Supreme Court Act 1981 and section 37 of the Criminal Justice Act 1948 and (c) as to the powers of the Court of Appeal under the Criminal Appeal Act 1968 for the Court of Appeal to grant bail e.g. pending an appeal to the Court of Appeal or to the House of Lords.  There is however no provision for an appeal to the Court of Appeal from a grant of bail by the High Court or by the Crown Court.  Nor is there any decision recognising or suggesting an inherent jurisdiction in the Court of Appeal to hear an application against a grant of bail by the High Court or the Crown Court.

31.	Accordingly the Board considers that the Court of Appeal did not have jurisdiction to set aside the grant of bail on the grounds relied on  even if, as the Board has held, the Supreme Court had an inherent jurisdiction to grant bail.  Despite the force of the criticisms made of the learned judge’s reasons for granting bail, neither the Board nor the Court of Appeal had jurisdiction to set aside Thompson J’s order granting bail.

32.	The Board will, accordingly, humbly advise Her Majesty that the appeal against the Court of Appeal’s decision setting aside the order for discovery should be dismissed and that the appeal against the Court of Appeal’s decision revoking the grant of bail must be allowed.  It is for the appropriate authorities to consider what if any steps are to be taken subsequent to the Board advice as to bail.

33.	In their written Case the respondents applied for their costs of the appeal, but there was no discussion of costs at the hearing.  As each side won on one issue the Board has made no award of costs at this stage, but if either side wishes to seek an order for costs in its favour it must lodge written submissions within 21 days.  Any reply to the other side’s submissions should be lodged within 14 days thereafter.