Earl Hodge and Roberto Harrigan v Superintendent of Prisons and The Attorney General
| Jurisdiction | British Virgin Islands |
| Judge | Smith J |
| Judgment Date | 29 June 2018 |
| Neutral Citation | VG 2018 HC 7 |
| Court | High Court (British Virgin Islands) |
| Docket Number | CLAIM NO.: BVIHCV 2017/0217 |
| Date | 29 June 2018 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Smith, J.
CLAIM NO.: BVIHCV 2017/0217
BVIHCV 2017/0218
and
Edward Fitzgerald QC for the Applicant Earl Hodge
Ben Cooper and Patrick Thompson for the Applicant Roberto Harrigan
John Black QC and Penelope Small for the Respondents
Extradition - Habeas Corpus — Whether habeas corpus was bar to fresh extradition — Whether unjust and oppressive to extradite applicants — Whether there was a prima facie case against applicants — BVI Constitution, s. 13 — CPR, P. 32.
The United States of America seeks the extradition of Earl Hodge, a citizen of the British Virgin Islands (“the BVI”) and Roberto Harrigan, a belonger of the BVI. “Belonger” is a status closely akin to that of being a citizen. The US indictment charges them with participation in a Caribbean-based drug trafficking organization that transported cocaine by plane and boat from Venezuela and other points in South America to Caribbean islands and Central America and then on to Puerto Rico, Miami-Dade County, Florida and elsewhere in the United States. They are alleged to have controlled and participated in a narcotics collection and distribution center operating from the BVI and were responsible for the possession and distribution of cocaine.
The evidence suggests that the vast majority of the drugs and proceeds of the drugs were being trafficked out of the jurisdiction of the BVI. There can be no doubt that the harm and the impact of this international drug trafficking were felt across several jurisdictions. It is in fact a huge global issue which attacks the fabric of our societies. It is an especially acute problem for small territories like the BVI that are severely under-resourced to combat this multi-billion dollar behemoth that is the illegal narcotics industry.
Mr. Hodge and Mr. Harrigan, the Applicants, vigorously resist extradition to the United States. They wish to be tried in the BVI for their alleged offences. They therefore seek writs of habeas corpus against the decision of Magistrate Innocent committing them to custody pending the issuing of a warrant by the governor for their surrender to the United States. This is the third attempt to have the Applicants extradited from the BVI to be tried in the United States. It will be necessary to advert to the proceedings related to the two previous attempts later in this judgment.
In these proceedings, the Applicants seek to have their committal quashed and orders for habeas corpus made. They say that, firstly, their previous discharge on writs of habeas corpus from Redhead J. operates as an absolute bar to any further attempt to extradite them. Secondly, they say that the only appropriate forum for their trial for the alleged criminal acts is the BVI and that, for a conglomeration of reasons, it would be unjust, oppressive, abusive and unconstitutional to extradite them now to face trial in the United States. Thirdly, they say that there is no prima facie case against them.
From those grounds, the following issues arise for this court's determination:
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(1) Whether the previous order for habeas corpus made by Redhead J for the release of the Applicants constitutes a bar to this third attempt to extradite them?
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(2) Whether, in all the circumstances of this case, it is unjust, oppressive, abusive and or unconstitutional to now extradite the Applicants?
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(3) Whether there is a prima facie case against the Applicants?
At the start of the hearing, Mr. Fitzgerald QC moved an application under Part 32 of the Civil Procedure Rules to adduce the expert evidence of Ms. Rebecca Schaeffer addressing the likely sentences and penalties which the Applicants would be exposed to if extradited to the United States. Mr. Black QC made perfunctory protestations about the lateness of the application but, ultimately, did not object to it. Instead, he requested time to put in an expert report in rebuttal to that of Ms. Schaeffer as well as post-hearing submissions and authorities in response to submissions made by the Applicants based on Ms. Schaeffer's evidence.
Both counsel agreed that the Respondents' post-hearing materials would be filed by 27 th April 2018 and any response from the Applicants would be filed by 11 th May 2018. The court therefore granted the application for Ms. Schaeffer's affirmation to be tendered into evidence and for Mr. Black to adduce expert evidence in rebuttal. As it turned out, the Respondents' post-hearing evidence, submissions and authorities were not filed until 30 th May 2018 and the Applicants' materials in reply were filed on 14 th May 2018. This judgment considers arguments and evidence made at the hearing as well as the post-hearing material.
I do not think it will serve any useful purpose to undertake a tour d' horizon of the two previous proceedings concerning the earlier attempts to extradite these Applicants. Those proceedings are the subject matter of full judgments delivered by Justice Albert Redhead on 17 th September 2012 and Justice Vicki Ann Ellis on 22 nd December 2014. I will therefore set out only so much of those proceedings necessary to appreciate what impact they might have on the issues raised by this application for the determination of the court.
The Applicants were arrested on 24 th August 2011 by the Royal Virgin Islands Police and charged with the offences of conspiracy to import cocaine, possession of a prohibited firearm, acquisition, possession or use of the proceeds of criminal conduct, possession of cocaine with intent to supply, and unlawful importation of cocaine. On 1 st September 2011, they were served with a provisional warrant pursuant to a United States extradition request based on an indictment dated July 2011 and were committed on this first extradition request. On 17 th September 2012, Justice Redhead granted a writ of habeas corpus. It will be necessary to revisit those findings of Redhead J in a more fulsome manner since they comprise a central pillar of the Applicants' case. I will hereafter refer to this judgment as Hodge and Harrigan No. 1.
The Director of Public Prosecutions discontinued the domestic proceedings against the Applicants on 12 th October 2012 and on that same day Governor McCleary issued an order to proceed with extradition proceedings. The Applicants applied for leave to judicially review the decision of Governor McCleary. On 22 nd December 2014, Justice Ellis quashed the Governor's decision to issue the orders to proceed and remitted it to him for reconsideration in accordance with the judgment of that court. It will also be necessary to return to Ellis J's decision later in this judgment.
The third extradition request was issued in May 2016 which culminated in the committal of the Applicants by Magistrate Innocent. That is the decision under challenge in these proceedings.
Mr. Fitzgerald's argument on this point can succinctly be restated as follows: (1) there is no jurisdiction in the BVI Court to entertain an appeal from an order granting habeas corpus in extradition proceedings; (2) the fact that the Applicants had won a final and un-appealable ruling in their favour in habeas corpus proceedings gave Redhead J's judgment, and their discharge by his order, a special status; (3) Redhead J's decision was based not just on procedural matters but on fundamental, substantive matters such as the Requesting State's failure to present a prima facie case and the appropriate forum being the BVI; (4) consequently, it would undermine the sacrosanct principle of finality of discharge on a criminal habeas corpus application, in all jurisdictions which provide for no prosecution appeal, to permit fresh proceedings to be initiated since this would frustrate the unconditional and final order for discharge made by Redhead J.
Does the previous habeas corpus order for the release of the Applicants made by Redhead J. have the “special status” contended for by Mr. Fitzgerald and do they operate as a bar, in this jurisdiction, to the bringing of new extradition proceedings based on fresh evidence?
In Superintendent of Prison and Attorney General v Hodge, 1 the Court of Appeal of the Eastern Caribbean States, citing Attorney General of Antigua and Barbuda v Lewis, 2 held that the court had no jurisdiction to entertain the appeal because there is no right of appeal to the court of appeal against the grant of a writ of habeas corpus by the high court under the West Indies Associated States
The Judicial Committee of the Privy Council affirmed this position in Attorney General for Saint Christopher and Nevis v Rodionov 3 when it held that since domestic law had precluded an appeal from a high court decision on habeas corpus to the court of appeal, an appeal therefrom to the Privy Council was also precluded; and that, accordingly, the Privy Council had no jurisdiction to grant special leave to appeal or to entertain an appeal from the decision of the high court in habeas corpus proceedings.
Mr. Black conceded that there was no appeal to the court of appeal against a high court decision on habeas corpus, and that the decision of Redhead J. was not appealable in that sense. He however rejected the argument that the...
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