REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No.: CV2008-03639 IN THE MATTER OF THE JUDICIAL REVIEW ACT NO. 60 OF 2000 And IN THE MATTER OF AN APPLICATION BY STEVE FERGUSON AND ISHWAR GALBARANSINGH FOR LEAVE TO APPLY FOR JUDICIAL REVIEW OF THE DECISION OF HIS WORSHIP CHIEF MAGISTRATE SHERMAN MC NICOLLS MADE ON THE 14 TH OF JULY 2008 COMMITTING THEM TO CUSTODY TO AWAIT THEIR EXTRADITION TO THE UNITED STATES Between STEVE FERGUSON And ISHWAR GALBARANSINGH Applicants/Intended Claimants And HIS WORSHIP MR. SHERMAN MC NICOLLS, CHIEF MAGISTRATE Intended Respondent/Defendant BEFORE THE HONOURABLE MR. JUSTICE GREGORY DELZIN APPEARANCES: Mr. Steve Ferguson in person Ms. Hemlaxmi Singh for the 2 nd Applicants/Intended Claimants Mr. David West and Mr. Quincy Marshall for the Intended Respondent/Defendant Page 1 of 16
JUDGMENT This is an application for leave for Judicial Review filed on the 19 th September, 2008 where the parties seek to impunge the Order for extradition under the Extradition (Commonwealth and Foreign Territories) Act, Chapter 12:04. Inter alia, the parties seek an Order of certiorari quashing the Warrant of Committal issued by the Chief Magistrate on the 14 th July, 2008. The Claimants further submit that the refusal of the Magistrate to grant a stay of proceedings was unreasonable, illegal, irrational and disproportionate. By the Application, the Claimants also seek for an Order that bail granted by Mr. Justice Brook be continued until the hearing and determination of this matter. By Affidavits filed herein, the Claimants depose to the fact that on the 23 rd July, 2008, the Claimant challenged the validity of the Warrant of Committal by way of an application for the issue of a Writ of Habeas Corpus and Subjudciendum. On the 30 th July, 2008, the Claimants depose to appearances before Madame Justice Pemberton and that hearing of the habeas corpus application was set down for the 10 th July, 2008 at 10:30 a.m. Accordingly, there are now pending before the High Court two (2) separate Claims filed and being conducted before different judges seeking to impunge the Warrant of Committal. Page 2 of 16
The Application for Leave on the Judicial Review application came on before me on the 2 nd October, 2008 and was adjourned to Monday 6 th October, 2008 to allow for service of the documents on the Intended Respondent, in accordance with the Order of Mr. Justice Jamadar who had previous conduct of these proceedings. Importantly, the Claimants have deposed to the fact that the cause for separate Judicial Review proceedings having been filed was an expression of concern of Pemberton J. over the choice of challenge at the initial hearing of the habeas corpus application - (See paragraph 12 of the Claimants Affidavit). THE LAW S.9 of the Judicial Review Act, Ch. 7:08 states as follows: The Court shall not grant leave to an application for Judicial Review of a decision where any other written law provides an alternative procedure to question, review or appeal that decision, save in exceptional circumstances. In R v Secretary of State for the Home Department, Ex parte Swati [1986]. WLR 477 at 485 C, Sir John Donaldson MR stated: By definition, exceptional circumstances defy definition, but where Parliament provides an appeal procedure, Judicial Review will have no place, unless the Applicant can distinguish his Page 3 of 16
case from the type of case for which the appeal procedure was provided. In Ex parte Waldron [1985] WLR 1090, 1108, exceptional circumstances were defined by Glidewell CJ, in the following terms: whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker or slower, than procedure by way of Judicial Review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellate body; these are amongst the matters which a Court should take into account when deciding whether to grant relief by Judicial Review when an alternative remedy is available. CHAPTER 12:04. EXTRADITION (COMMONWEALTH AND FOREIGN TERRITORIES) ACT PART III. EXTRADITION FROM TRINIDAD AND TOBAGO S. 13. Application for habeas corpus (1) The Magistrate shall, on committing any person to custody under section 12, inform that Page 4 of 16
person in ordinary language of his right to make an application to the High Court for habeas corpus and shall forthwith give notice of the committal to the Attorney General. (2) A person committed to custody under section 12 shall not be returned under this Act-- (a) until the expiration of the period of fifteen days beginning with the day on which the order for his committal is made, unless he waives, in writing, the entire period or any part thereof; (b) if an application for habeas corpus is made in his case, so long as proceedings on that application are pending. (3) On any such application made under this section the High Court may, without prejudice to any other jurisdiction of the High Court, order the person committed to be discharged from custody if it appears to the High Court that by reason of-- (a) in the case of a declared Commonwealth territory, the trivial nature of the extraditable offence of which he is accused or was convicted; and (b) in the case of a declared Commonwealth or foreign territory-- (i) the passage of time since he is alleged to have committed the extraditable offence or to have become unlawfully at large, as the case may be; Page 5 of 16
(ii) the accusation against him not having been made in good faith in the interests of justice; or (iii) any other sufficient cause, it would, having regard to all the circumstances, be unjust or oppressive to return the person. (4) On any such application the High Court may receive additional evidence relevant to the exercise of its jurisdiction under section 8 or under subsection (3). (5) For the purposes of this section, proceedings on an application for habeas corpus shall be treated as pending until any appeal in those proceedings is disposed of; and an appeal shall be treated as disposed of at the expiration of the time within which the appeal may be brought or, where leave to appeal is required, within which the application for leave may be made, if the appeal is not brought or the application made within that time. S.13 of the Extradition (Commonwealth and Foreign Territories) Act Ch 12:04 thus provides a procedure by way of review/appeal against a committal order and specifically requires the Magistrate to inform the accused of his right to make an application for habeas corpus. Page 6 of 16
S.13 (3) b (iii) the High Court in considering such an application in relation to a foreign territory, is required to consider.... any other sufficient cause.... that would, having regard to all of the circumstances, render it unjust or oppressive to return to prison. Further by S.13 (4) the High Court is empowered to receive additional evidence relevant to the exercise of its jurisdiction under Section 8 or under Subsection (3). At the hearing of the Application for leave I submitted to the Claimants and Mr. West who represented the Intended Respondent, copies of two (2) authorities: Gibson v Government of the United States [2007] 1 WLR 2367 Nikonovs v Governor of Brixton Prisons and others [2006] 1 WLR 1518 and sought their views in relation thereto. In the Nikonovs decision, the Court held that habeas corpus was an available remedy where the judge s decision on extradition was unreasonable or irrational. At page 1522 para 19 the Court commented as follows: In Lunett v Coles [1987] QB 555, 561, Lewton J said that a Writ of Habeas Corpus was probably the most cherished sacred cow in the British Constitution, but the law had never allowed it to graze in all legal pastures. However the one Page 7 of 16
legal pasture in which it has grazed freely for many years is extradition. In the Gibson decision, habeas corpus proceedings were brought to challenge a Magistrate s Order. The judge at the hearing raised an issue as to whether certiorari was a more appropriate remedy and granted leave to add Judicial Review. The judge granted a Writ of Habeas Corpus without determining the certiorari issue. Bahamian Law did not allow an appeal on a habeas corpus application. The Privy Council held that on an application for habeas corpus in extradition proceedings a Court was not confined to a review of the formal validity of the Committal Order so that an application for certiorari was not necessary for an inquiry into the substantial merits of the order. At pages 2372-2374 of the judgment the issue is discussed in detail. However, I think it only necessary as this point to refer to paragraph 20 of the judgment which alludes to the wide scope of a habeas corpus application in extradition proceeding as expressed in Ex parte Armah [1968] AC 192. The Privy Council also accepted a passage from Wade and Forsyth, Administrative Law, 9 th Edition (2004) at p 597, footnote 52. At one time the prisoner would have had to obtain certiorari to quash the detention order at the same time as habeas corpus to secure his release in order to succeed on this ground [any ground other than the ground of detention stated in the return to the Writ]. But to insist upon a separate certiorari was pointless formalism, since habeas corpus brought the whole question of the validity of the detention before the Court..... If error of law then appeared, habeas Page 8 of 16
corpus would be granted, thus in effect quashing the order. Accordingly, there is no bar, in my respectful view, to the Claimants seeking leave to read and use the affidavits filed in support of this application for leave, in the habeas corpus application set for the 10 th October 2008. The State cannot oppose the application, in the light of their undertaking, (detailed below at pages 12-13). The affidavit will therefore allow the full ventilation of all the issues, thereby avoiding the pointless formalism invoked by separate applications. In the context of the above statements and cases, I must also consider the overriding objective of the Civil Procedure Rule (CPR) 1998 at Rule 1 including dealing with the case before me in a manner that achieves expedition and which allots an appropriate share of the Court s resources while taking into account the need to allot resources to other cases. I am further required by Rule 1.2 to exercise any discretion given to the Court under the rules to give effect to the overriding objective. CONCLUSION I can therefore draw the following conclusions on the law: 1. S.13 (3) of the Extradition (Commonwealth and Foreign Territories) Act Ch 12:04 is part of a statutory scheme that creates a procedure that allows the Claimants to question, review or appeal the issuance of a Warrant of Committal under the said Act. Page 9 of 16
2. The Claimants exercised their right under the said Act and appealed to the High Court thereby invoking the jurisdiction of the High Court to consider the discharge of the Claimants from custody. 3. The specific wording of S.13 (3) (b) allows the Court to consider in addition to the passage of time [ (3(b)(i) ]; and lack of good faith on the part of the accusers [ (3(b)(ii) ]; any other sufficient cause [ (3(b)(iii) ] [emphasis mine], in determining whether it would be unjust or oppressive to return the person to custody. Accordingly, it is clear that the Court in determining an application for the issuance of a Writ of Habeas Corpus under the Act, is only restricted in its consideration of unjust or oppressive conduct by the foregoing elements of (3(b)(i), (ii) and (iii) in relation to a foreign territory. 4. Questions of fundamental unfairness, irrationality, unreasonableness and illegality all involve a challenge to the legal validity of a decision (See Reid v Secretary of State for Scotland [1999] 2 AC 512, 541 F - 542A). Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect Page 10 of 16
of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision-maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence. These principles are quite clear. But having been invited to examine some of the evidence by the petitioner it seems to me that the judges in the Second Division went further than was appropriate in the analysis and assessment of it. The sheriff heard the oral evidence of seven psychiatrists as well as the petitioner. He also had written reports from the psychiatrists and these were put before the Second Division. But in the summary procedure which was used there was no record made of the oral evidence beyond the brief account which the sheriff gives of the material before him. Where one only has an incomplete record of the evidence and the evidence is that of highly qualified experts dealing with the delicate matter of mental disorder, great caution ought to be taken in revisiting the substance of the decision which the sheriff reached. In the circumstances of the present case it seems to me to be particularly difficult to conclude that there was truly no evidence to support the conclusion which was reached or that the conclusion was perverse. 5. The quotation from Reid above highlights two important points in relation to this application. It emphasizes the limited nature of the judicial review jurisdiction and by comparison to S.13,the breadth of considerations that fall under the S. 13 application in Extradition proceedings. In other words an application under S. 13 of the said Act does not confine the Claimants to judicial review considerations or remedies. It is thus clear that the legal validity of a decision would only be one of the issues that fall under the rubric of any other sufficient cause in the Act. The language of section 13 Page 11 of 16
contemplates not only judicial review challenges inter alia but also constitutional arguments. The process admits to speed, efficiency and due process. 6. The case law to which I have referred, all accept that a habeas corpus application is not confined to a review of the formal validity of the detention order. Further the Nikonovs and the Gibson decisions both confirm that questions of certiorari, irrationality and unreasonableness are matter to be considered in a habeas corpus application. 7. It is therefore clear, that s.13 of the Extradition (Commonwealth and Foreign Territories) Act Ch 12:04 creates not only an appellate or review procedure to a Warrant of Committal under the Act but also, in the light of the breadth of the language in s.13, an alternative remedy contemplated by s.9 of the Judicial Review Act Ch 7:08. 8. Based on the criteria set out in Waldron (supra), I find that the procedures established under S.13 of the said Act will resolve the questions raised by the application for Judicial Review. 9. I also find that the Claimants suffer no prejudice by the pursuit of the habeas corpus application. Indeed the nature of habeas corpus proceedings provide a quicker avenue for the resolution of the issues raised in the Judicial Review application. The habeas corpus application having been filed first in time and since the 23 rd July, 2008, is set down for hearing on 10 th October, 2008. A grant of leave in Judicial Page 12 of 16
Review sets the time table for a final decision on the issues in reverse and will result in unnecessary and unproductive delay. At the hearing of the leave application on 6 th October, 2008 the Court was informed that the State was consenting to the Claimants withdrawing their application for habeas corpus on 10 th October, 2008 and proceeding with the application for leave before me on an adjourned date with a conjoint application to vary a previous order for bail made in the habeas corpus application. This position conflicts with the intention of the Claimants represented in paragraph 15 of the Affidavit filed on 19 th September, 2008 where the view is expressed that both the habeas corpus and the Judicial Review proceeding ought to be harmonized. Before me, the Claimants expressed an intention to proceed with the Judicial Review to the exclusion of the previously filed habeas corpus application. The Claimants have explained the basis for the decision for the filing of separate Judicial Review proceedings as being an expression of concern by Pemberton J. in the habeas corpus proceeding over the choice of challenge. It is however difficult for me to accept that a judge s expression of concern of choice of challenge (if true), can be translated by the Claimants as a direction that separate Judicial Review proceedings are necessary to ventilate the issues raised by the Claimants. In my respectful view, the duty of the Court and indeed the jurisdiction of the Court is limited to the application before it. Further the question before me, raised by the application of the Claimants is solely an application for leave for Judicial Review and the considerations raised by the law in relation thereto. The question of leave to withdraw the Page 13 of 16
application for habeas corpus is for the judge dealing with that application and in my respectful view, I cannot and ought not to fetter the exercise of the Court s discretion by approving a consent order in a matter that is not before me. The same reasoning applies to the question of bail. Further, in the light of my findings that a party may argue Judicial Review issues in an application for habeas corpus, it may well be an abuse of process for parties to engage in what will amount to nothing more than a choice of forum to argue the same substantive issues. There is of course an additional consideration. The overriding objective of the CPR 1998 and the ethos of the CPR mandate a new approach of Court- controlled Case Management with a view to achieving the overriding objective expressed in the Rule 1 of the CPR 1998. Accordingly, the management and decision- making process in the management of cases before the Court is now vested by the CPR in the Court and is therefore not within the premise of Counsel or Claimants to enter into arrangements or consent between themselves as to arrangements that affect the conduct and management of cases under the Case Management function of the Court. That is the duty of the Court and the Court is held accountable for the efficient management of the cases filed before it. In these circumstances, the State s consent to the proposed conduct of the proceedings by the Claimants is irrelevant to the proceedings before me. Mr. West, who represented the Intended Respondent, further gave an undertaking to the Court that the State would not oppose the Claimants attempts to argue the issues raised in the application before Page 14 of 16
me in the pending habeas corpus application. Therefore, any refusal to grant leave in the current application before me will not prejudice the Claimants in the habeas corpus application in so far as it relates to any opposition from the State on any application to raise the judicial review issues at the habeas corpus application. Mr. Ferguson who represented himself, argued that under Section 7 of the Extradition (Commonwealth and Foreign Territories) Act Ch 12:04, it was open to the State to institute fresh proceedings if the current Committal Order was discharged. He suggested that one of the objectives of the Judicial Review application was to obtain a declaration preventing the State from issuing further proceedings on the basis of abuse of process. Mr. Ferguson suggested that this particular remedy was not available on the habeas corpus application and therefore could not be classified as an alternative remedy or even if alternative fell under the heading of exceptional circumstances. It is however to be noted that the Claimants application filed on 19 th September, 2008 does not seek such a declaration. In any event, the question under Section 7 of the Extradition (Commonwealth and Foreign Territories) Act Ch 12:04 only arises if two (2) elements exist (i) the grant of habeas corpus, and; (ii) the institution of further proceedings. Judicial Review is concerned with administrative decisions, the only basis for review would have to be the existence of a grant of habeas corpus and the institution of further proceedings. In the absence of both decisions there is no basis for review. The relief suggested would therefore amount to a contingent declaration which is not known to the law of Judicial Review. Page 15 of 16
In the light of the above: (1) No sufficient reasons have been submitted to the Court which require an adjournment of these proceedings; (2) Having reviewed the Affidavits of the Claimants and having heard Counsel for Mr. Galbaransingh and Mr. Ferguson appearing in person, and having heard Counsel representing the Intended Respondent, I refuse the Claimants leave to apply for Judicial Review on the basis that the Extradition (Commonwealth and Foreign Territories) Act Ch 12:04 provides an alternative procedure to question, review and appeal the decision of the Chief Magistrate to issue Warrant of Committal. I further find that there are no exceptional circumstances in existence. (3) No order as to costs. 07 October 2008 Gregory Delzin Judge Page 16 of 16