United States v Bodden

• Jurisdiction: Cayman Islands
• Judge: (Orr, Ag. Magistrate)
• Judgment Date: 22 November 1989
• Court: Summary Court (Cayman Islands)
• Date: 22 November 1989

Summary Court

(Orr, Ag. Magistrate)

UNITED STATES

and

BODDEN

A.S. Smellie, Principal Crown Counsel, for the Crown;

R.D. Alberga, Q.C. and C. Quin for the defendant.

Cases cited:

(1) Bottomley, Ex p., [1909] 2 K.B. 14; [1908–10] All E.R. Rep. 958, considered.

(2) German Fed. Rep. (Govt.) v. Sotiriadis, [1975] A.C. 1; [1974] 1 All E.R. 692; (1974), 118 Sol. Jo. 148, dictum of Lord Diplock applied.

(3) R. v. EbanksUNK(1944), 4 J.L.R. 158, distinguished.

(4) R. v. Norfolk JJ., ex p. D.P.P.ELR, [1950] 2 K.B. 558; sub nom. R. v. South Greenhoe JJ., [1950] 2 All E.R. 42; (1950), 34 Cr. App. R. 120, considered.

(5) R. v. Olivo, [1942] 2 All E.R. 494; (1942), 28 Cr. App. R. 173, considered.

(6) R. v. WhiteUNK(1976), 14 J.L.R. 106; 24 W.I.R. 454, considered.

Legislation construed:

Extradition Act 1870 (33 & 34 Vict., c.52), s.9: The relevant terms of this section are set out at page 496, lines 12–16.

Summary Jurisdiction Law (Law 10 of 1975), s.13(3): The relevant terms of this sub-section are set out at page 496, lines 18–20.

s.18: The relevant terms of this section are set out at page 496, lines 24–26.

Extradition-committal proceedings-death of magistrate-procedure governed by Summary Jurisdiction Law, s.18 and proceedings to be heard de novo before new magistrate-no new order by Governor or warrant necessary

The defendant sought the dismissal of proceedings initiated by the United States for his extradition to that country.

The defendant was arrested on the authority of an order made by the Governor and a warrant for his committal for extradition to the United States.

At the hearing for committal, an order was made but was subsequently quashed by the Grand Court in proceedings reported at 1988–89 CILR 135. On the same day, a new Governor”s order and a second warrant were issued and a second set of extradition proceedings were started. Those proceedings are reported at 1988–89 CILR 259. During the course of these, the presiding magistrate died and the defendant was remanded pending the recommencement of the proceedings before a new magistrate.

The present proceedings were those recommenced proceedings. The defendant took a preliminary objection to the jurisdiction of the court to hear the matter. He submitted that (a) the proceedings initiated by the second order and second warrant had terminated on the death of the magistrate; and (b) a third order and third warrant should have been issued as a necessary prerequisite for the new magistrate to be seised of jurisdiction to hear the proceedings.

The plaintiff submitted that (a) the judisdiction of the court did not terminate with the death of the magistrate nor was it derived from the warrant; and (b) the summary jurisdiction in such proceedings was the same as in ordinary committal proceedings and was specifically derived from the Summary Jurisdiction Law, s.9 and it was therefore not necessary for a new order and new warrant to be issued for the court to continue the proceedings.

Held, overruling the preliminary objection and assuming jurisdiction: The magistrate”s jurisdiction to hear an application for extraditionwas derived from the Extradition Act 1870, s.9 and the Summary Jurisdiction Law, s.13(3) and was the same as his jurisdiction in ordinary committal proceedings. His powers were therefore unrelated to the issue of any Governor”s orders or arrest warrants for the defendant”s committal for extradition. Accordingly, since the defendant had been properly before the court, the magistrate”s death during the proceedings would not have the effect of terminating them but would bring the

matter within the scope of s.18 of the Summary Jurisdiction Law and the proceedings should be reheard de novo before a new magistrate. No new order or warrant would be necessary. The court was therefore properly seised of the jurisdiction...