King v The Director of Prisons et Al

• Jurisdiction: Guyana
• Court: Court of Appeal (Guyana)
• Judge: Bishop, J.A.,George, C.,Kennard, J.A
• Judgment Date: 13 March 1992
• Neutral Citation: GY 1992 CA 5
• Date: 13 March 1992

Court of Appeal

George, C.; Kennard, J.A.; Bishop, J.A.

King

and

The Director of Prisons et al

Appearances:

Mr. P.S. Britton, S.C. with Mr. A. Alexander for appellant

Mr. I. Chang, Deputy Director of Public Prosecutions for first-named respondent

Extradition - Whether Extradition Treaty of 1937 between United Kingdom and British Guiana in force in Guyana — Whether treaty silent on issue of re-extradition of fugitive to third state — Effect of omission from notice in Gazette of Minister responsible for extradition matters — Effect of unilateral letter by Head of State to UN Secretary General — Guyana Independence Order no.575 s.5(1) — Extradition Acts, 1870—1932 — U.S.A. (Extradition) Order in Council, 1935 — Extradition Treaty, 1931 (Guyana/USA) Constitution of Republic of Guyana 1980 — Ashburton Treaty, 1842.

Bishop, J.A.

1 Extradition, for the purposes of the type of case with which we are concerned, here, may briefly be described as the surrender, by one government, of an accused person, upon the request of another government, to its justice. It is part of an interactive process that has developed principles, practices, understandings, and arrangements that are shared and, in large measure, institutionalised with the comity of nations and quite often embodied in bilateral treaties. Yet, there is no duty to extradite. As said in Browlie's Principles of Public International Law, 3 ^rd edition, Rep. (1985), p. 314:

“Apart from trial in absentia, an unsatisfactory procedure, states have to depend on the co-operation of the other states, in order to obtain surrender of suspected criminals or convicted criminals who are, or have fled, abroad. Where this co-operation rests on a procedure of request and consent, regulated by certain general principles, the form of international judicial assistance is called extradition … Much of the material on extradition depends on questions of internal and particularly of constitutional law and the effect of treaties on municipal rules. However, some courts, in giving extradition in the absence of a treaty, have abstracted from existing treaties and municipal provisions certain ‘general principles of international law’. The two leading principles are that of double criminality, that the act charged must be criminal under the laws of both the state of refuge and the requesting state, and that of specialty, according to which the person surrendered shall be tried and punished exclusively for offences for which extradition had been requested and granted.”

2 See Re D'Emilia, Int. L.R. 24 (1957), Re Campara et al, Int L.R. 24 (1957), U.S. v. Rauscher, 119 U.S. 407 (1886), 1 Moore, Extradition, 194 - 259 (1891), Johnson v. Browne, 205 U.S. 309, (1907), Garcia-Guillera v. U.S. 450F (2d) 1189 (1971) cert. denied 405 U.S. 989.

3 In this appeal, the appellant, a Guyanese, is resisting his extradition to the United States of America where, in Michigan, he is accused of having, on October 31st 1990, unlawfully murdered George Bowles and Bertha Aldridge, and of assaulting Harold Epting with intent to murder him. He is also accused of armed robbery at drug store in which he, along with the victims, worked as colleagues. The resistance to the extradition arises from the interpretation to be placed on the Extradition Treaty, 1931, entered into between the Governments of the United Kingdom and the United States, at a time when Guyana was British Guiana, a colony, and whether certain post-Independence enactments of the new state, Guyana, modified, or otherwise affected the earlier extradition arrangements, between the U.K. and the U.S.A., in relation to Guyana. The Honourable Chancellor has reviewed, inter alia, the relevant provisions of the Extradition Acts 1870 - 1935, No. 574, the Guyana Independence Order 1976, No. 575and the Fugitive Offenders Act, 1988 of Guyana. His analysis is impeccable, in terms of the objections raised by senior counsel for the appellant and the responses by the Deputy Director of Public Prosecutions, and I adopt his conclusions and the orders that he proposes.

4 However, certain comments or observations might not be out of context. First, to underscore that proceedings, under the Extradition Acts, the Fugitive Offenders Act, and, for the contravention of our Immigration Laws, are classified criminal: Ex. p. Woodhall (1888) 20 Q.B.D. 832; R v. Brixton Prison (Governor) Ex. p. Savarkar [1910] 2 K.B. 1056; Amand v. Home Secretary [1942] 2 All E.R. 381. Government of U.S. v. Bowe (1989) 27 W.I.R. 9. It is the nature of the proceedings before the magistrate which determines whether or not it is an appeal in a criminal cause or matter. But it is to be noted that the Court of Appeal Act, Chapter 3:01 prescribes no right of appeal by the fugitive to the Court of Appeal, if he is dissatisfied with the order of committal by the magistrate and its affirmation by the High Court of the Supreme Court, that he should stand trial in the jurisdiction of the requesting country. Section 12 of the Act is clear and reads:

“A person convicted on indictment in the High Court on a date after this section comes into operation may appeal under this part to the Court of Appeal –

• (a) against his conviction on any ground of appeal which involves a question of law alone; …

• (c) with the leave of the Court of Appeal upon the certificate of the judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the court or judge to be a sufficient ground of appeal, and

• (d) with the leave of the Court of Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law.”

5 On the basis of section 12, extradition proceedings, although criminal in nature, are not appealable to the Court of Appeal. And so, if the exercise were to terminate at that point, the prisoner would no doubt not only feel aggrieved, but experience profound revulsion for our legal system and institution of law.

6 The answer as to the prisoners right of appeal is to be found in the special legislation called the Fugitive Offenders Act 1988, No. 15 of 1988 which came into operation on January 1 ^st 1989 by Order No. 49 of 1988: From that date, and by virtue of section 40 of the Act, the applied Acts entitled the Extradition Acts 1870-1935, and the Fugitive Offenders Act, 1881 (U.K.) ceased to have effect in Guyana. The Honourable Chancellor has shown that the spirit and intendment of those earlier Acts were sustained unbroken by a network of statutory provisions ending with the Fugitive Offenders Act, 1988. That Act, in section 5, reveals the criminal aspect of extradition proceedings by allusions to the double criminality rule, the actus reus and the mena rea of the fugitive offender, and to matters participes criminis. Then, quite understandably, in this special legislation, set separately and apart from those ordinary rights of appeal, under the Court of Appeal Act, is section 21 which runs as follows:

“

• (1) Any person whose extradition is sought, or the Government of any Commonwealth country or treaty territory which is seeking his extradition, if dissatisfied with the decision of the High Court on an application for habeas corpus under section 17 or on an application for review under section 19, may within fifteen days of the pronouncing of the decision, appeal to the Court of Appeal on any question of law …

• (5) Subject to the provisions of this Act, and on being satisfied that the High Court has erred on a question of law, the Court of Appeal may on an appeal by the person whose extradition is sought discharge him from custody or on an appeal by the Government of a Commonwealth country or treaty territory direct the magistrate to commit the said person to custody to await extradition and shall forthwith inform the Minister of the decision.”

7 Therefore the effect of the provisions, to which I have alluded is the recognition of the right of the fugitive to contest, on legal grounds, the correctness of the committal order made against him. In a word, he may challenge, at the High Court and the Court of Appeal levels of the Supreme Court, the right of the law to keep him confined pending extradition.

8 Secondly, I would propose that there was a short and simple route by which it could have been ascertained whether Guyana, upon attainment of its Independence from Great Britain, adopted the treaty arrangements which touched and concerned the territory, as a colony. If Guyana did not adopt those previous arrangements, then serious disruptions in the international spheres of commerce, industry, communication and diplomatic relations naming only a few might have ensued. By relinquishing the pre-independence arrangements, the new state would have directed attention to what esteemed scholars and legal writers on international law call the “clean-state theory”, and who knows the consequences might have proved embarrassing, if not catastrophic. That did not occur. Guyana took no such step.

9 The question of succession to treaties was researched some twenty six years ago by The International Law Association's Committee on State Succession whose members in a release: the 52nd Report (1966) p. 557 noticed a number of general trends:

“

• (1) [That] the successor State assumes all responsibilities arising from treaties between the predecessor and third parties, as was the method adopted by Nigeria regarding treaty obligations assumed by Great Britain in respect of the former colony.

• (2) The successor undertakes to maintain all treaties during a trial period while they are being studied. At the end of this period, it announces which will be maintained while others lapsed.

• (3) The successor announces its intention to abide by customary law, but seeks to avoid any...