Kruger v Governor

• Jurisdiction: Cayman Islands
• Judge: (Smellie, J.)
• Judgment Date: 18 March 1997
• Court: Grand Court (Cayman Islands)
• Date: 18 March 1997

Grand Court

(Smellie, J.)

KRUGER

and

GOVERNOR

A. Jones, Q.C. and J.R. McDonough for the applicant;

I.F. Archie, Solicitor General for the respondent;

C.V. Nicholas, Q.C., J.T. Lewis and Ms. C. Richards for the Swiss Government.

Cases cited:

(1) Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223; [1947] 2 All E.R. 680.

(2) Atkinson v. US Govt., [1971] A.C. 197; [1969] 3 All E.R. 1317, observations of Lord Reid applied.

(3) Bodden, In re, 1988-89 CILR 259, applied.

(4) Canton of Berne”s Request, In re, 1996 CILR 179.

(5) Chief Constable (N. Wales) v. Evans, [1982] 1 W.L.R. 1155; [1982] 3 All E.R. 141, dicta of Lord Hailsham of St Marylebone, L.C. applied.

(6) Council of Civil Service Unions v. Minister for Civil ServiceELRUNK, [1985] A.C. 374; [1984] 3 All E.R.935, dicta ofLord Diplock applied.Lord Diplock applied.

(7) Evans, In re, [1994] 1 W.L.R. 1006; [1994] 3 All E.R. 449.

(8) Fedele, In re, 1988-89 CILR 155, not followed.

(9) Kruger v. Northward Prison (Director), 1996 CILR 157.1996 CILR 157.

(10) R. v. Sang, [1980] A.C. 402; [1979] 2 All E.R. 1222, applied.

(11) Rees, In reELR, [1986] A.C. 937; sub nom.Rees v. Home Secy., [1986] 2 All E.R. 321, dicta of Lord Mackay of Clashfern, L.C. applied.

(12) Smith v. Commr. of Police, 1980-83 CILR 126, not followed.

(13) US Govt. v. Bowe, [1990] 1 A.C. 500; [1989] 3 All E.R. 315.

Legislation construed:

Grand Court Rules, 1995, O.53, r.3:

‘(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

(2) An application for leave must be made ex parte to a Judge….’

European Convention on Extradition Order 1990 (S.I. 1990/1507), Schedule 1, art. 16.1:

‘In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.’

Extradition Act 1989 (c.33), s.7(4): The relevant terms of this sub-section are set out at page 85, lines 6–9.

s.9(4): ‘Where-

(a) the extradition request is made by a foreign state; and

(b) an Order in Council such as is mentioned in subsection (8) below is in force in relation to that state,

there is no need to furnish the court of committal with evidence sufficient to warrant the trial of the arrested person if the extradition crime had taken place within the jurisdiction of the court.’

s.11(3): ‘Without prejudice to the jurisdiction of the [Grand] Court apart from this section, the court shall order the applicant”s discharge if it appears to the court in relation to the offence…in respect of which the applicant”s return is sought, that-

….

(c) because the accusation against him is not made in good faith in the interests of justice,

it would, having regard to all the circumstances, be unjust or oppressive to return him.’

s.12(2): ‘Without prejudice to his general discretion as to the making of an order for the return of a person to a foreign state, Commonwealth country or colony-

(a) the [Governor] shall not make an order in the case of any person if it appears to the [Governor] in relation to the offence in respect of which his return is sought, that-

…

(iii) because the accusation against him is not made in good faith in the interests of justice,

it would, having regard to all the circumstances, be unjust or oppressive to return him….’

Administrative Law-judicial review-amenability to review-prerogative order lies against Governor when exercising statutory power to issue authority to proceed with extradition proceedings

Extradition and Fugitive Offenders-request for extradition-Governor”s order to proceed-Governor may issue second authority to proceed under Extradition Act 1989, s.7(4) although proceedings following first order terminated due to procedural irregularity-failure of earlier request a factor only in exercise of Governor”s discretion under s.7(4)

Extradition and Fugitive Offenders-request for extradition-Governor”s order to proceed-under Extradition Act 1989, s.9(4) and European Convention on Extradition (Dependent Territories) Order 1996, art. 2, Governor not required to assess prima facie case against offender before issuing authority to proceed under s.7(4)

Extradition and Fugitive Offenders-request for extradition-Governor”s order to proceed-under Extradition Act 1989, s.9(4) and European Convention on Extradition (Dependent Territories) Order 1996, art. 2, admissibility of evidence supporting request for extradition to be determined by requesting state at trial-Governor need not consider whether evidence properly obtained

Extradition and Fugitive Offenders-request for extradition-Governor”s order to proceed-Governor to consider as early as possible whether offender”s return may ultimately be refused under Extradition Act, s.12(2)(a)(iii) as unjust or oppressive-offender may make submissions before and at committal, or on application for discharge, under s.11(3)

Extradition and Fugitive Offenders-request for extradition-Governor”s order to proceed-under Extradition Act 1989, s.7(4), decision to issue authority to proceed not unreasonable by reason only of failure to take independent legal advice

The applicant sought leave to apply for judicial review of the Governor”s decision to issue authority to proceed with extradition proceedings against him.

The applicant was charged in Switzerland with bankruptcy-related offences in connection with his business dealings in that country and

elsewhere. He and his wife had been committed to be extradited following an earlier request from the Swiss Government, but were later released pursuant to writs of habeas corpus on the ground that the documentary evidence adduced in support of the charges was not properly authenticated for the purposes of complying with extradition legislation. Those proceedings are reported at 1996 CILR 157.

The Swiss Government then made a second request in respect of the applicant only, on substantially the same grounds, but supported by additional evidence which had been seized from the applicant”s home by the Cayman police in response to an application for assistance from a Swiss court. The applicant was rearrested upon a provisional warrant issued by the magistrate and, having received submissions from the applicant”s attorneys as to why the applicant should not be committed again, the Governor issued his authority to proceed with the extradition.

On his application for leave to obtain judicial review of the Governor”s actions, the applicant submitted that the decision to issue the authority to proceed was irrational and should be set aside since (a) the Swiss Government was not entitled to attempt to secure the applicant”s extradition a second time, having made an earlier request which had failed for reasons entirely within its own control; (b) the Governor had not taken into account the improper conduct of the Swiss Government in the course of the proceedings, in delaying its application to take advantage of a change in the applicable law under which it would not be required to show a prima facie case and supplementing its second request with material which the Grand Court had ruled was illegally obtained; (c) the Governor”s duty under s.7(4) of the Extradition Act 1989 to consider whether the applicant would lawfully be extradited if committed by the magistrate had not been properly exercised in the light of his discretion under s.12(2)(a)(iii), since the applicant”s return would be ‘unjust or oppressive’; (d) the Governor had not taken legal advice from any person other than the Attorney-General, who was advising and representing the Swiss Government and therefore could not give impartial advice; and (e) the Governor should have given the applicant more time to present reasons why the authority to proceed should not be issued, in particular relating to the illegality of the issue of a provisional warrant of arrest under art. 16 of the European Convention on Extradition except in cases of urgency.

The Governor submitted in reply that the applicant had failed to show that his decision to issue authority to proceed was one which no reasonable person could have made since (a) the fact that the Swiss Government had made an earlier request for extradition which had failed on procedural grounds did not prevent its now making a further request; (b) there was no evidence that the Swiss Government had acted dishonestly in seeking the applicant”s extradition, since its first attempt to do so had not failed by reason of any lack of a prima facie case against him and neither its motives for delaying its second application nor the admissibility of the supplementary evidence were matters which

concerned the Governor; (c) whilst it was proper for the Governor, in deciding whether to issue an authority to proceed under s.7(4) of the Extradition Act 1989, to consider matters which might arise after committal going to the lawfulness of extraditing the applicant, there was no evidence that the applicant”s return to Switzerland would be “unjust or oppressive’ on the proper construction of s.12(2)(a); (d) although the Governor had in fact taken independent legal advice before issuing the authority to proceed, it was not essential that he should do so to support the reasonableness of his decision; and (e) the Governor had considered written submissions from the applicant and had invited further submissions, which counsel for the applicant produced within seven days; any further representations which the applicant wished to make could be raised at the next stage of the extradition proceedings.

Held, dismissing the application:

(1) Although judicial review would not lie against a decision of the Governor when he was exercising the prerogative powers of the Sovereign (because a prerogative writ could not be directed to the Crown), the...