Earl Hodge Applicant v The Governor of the Territory of the Virgin Islands Respondent

• Jurisdiction: British Virgin Islands
• Judge: Ellis J.
• Judgment Date: 05 July 2013
• Judgment citation (vLex): [2013] ECSC J0705-2
• Court: High Court (British Virgin Islands)
• Docket Number: CLAIM NO. BVIHCV297 of 2012 CLAIM NO. BVIHCV303 of 2012 CLAIM NO. BVIHCV327 of 2012
• Date: 05 July 2013

[2013] ECSC J0705-2

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO. BVIHCV297 of 2012

CLAIM NO. BVIHCV298 of 2012

CLAIM NO. BVIHCV303 of 2012

CLAIM NO. BVIHCV327 of 2012

Between:

Earl Hodge

Applicant

and

The Governor of the Territory of the Virgin Islands

Respondent

Between:

Chad Skelton

Applicant

and

The Governor of the Territory of the Virgin Islands

Respondent

Between:

Roberto Harrigan

Applicant

and

The Governor of the Territory of the Virgin Islands the Director of Public Prosecutions

Respondent

Between:

Carlston Beazer

Applicant

and

The Governor of the Territory of the Virgin Islands

Respondent

Appearances:

Mr. Julian Knowles QC, Richard Rowe and Jennifer Jarvis for Earl Hodge

Lord McDonald QC and Menelick Miller for Chad Skelton

Patrick Thompson and Sonjah Smith for Roberto Harrigan

Richard Rowe and Jennifer Jarvis for Carlston Beazer

Honourable Attorney General Dr. Christopher Malcolm and Natalie Sandiford for the Respondents

1 Ellis J. On 29 ^th August 2011, Earl Hodge was arrested by the Royal Virgin Islands Police (RVIP) and was charged with the offences of conspiracy to import cocaine; possession of a prohibited firearm; acquisition of possession or use of proceeds of criminal conduct; possession of cocaine with intent to supply; unlawful importation of cocaine.

2 On 29 ^th September 2010, Chad Skelton was arrested by the RVIP and charged with the offences of importation of a controlled drug into the Territory; conspiracy, money laundering and offences under the Drugs (Prevention of Misuse) Act.

3 Roberto Harrigan was arrested by the RVIP on 24 ^th August 2011 and charged with the offences of money laundering; conspiracy to import a controlled drug (cocaine) into the Territory; importation of cocaine and possession with intent to supply; acquisition possession or use of the proceeds of criminal conduct; abuse of authority and bribery of a public official.

4 Carlston Beazer was arrested on the RVIP on 29 ^th September 2010 and charged several offences. He was bailed and later rearrested on 24 ^th September 2011 and charged with the conspiracy to import cocaine; acquisition, possession or use of proceeds of criminal conduct; possession of cocaine with intent to supply and unlawful importation of a controlled drug.

5 Following the arrest of Earl Hodge, Chad Skelton, Roberto Harrigan and Carlston Beazer (the Applicants) the Government of the United States also requested the extradition of the Applicants in relation to criminal proceedings which had been commenced in the state of Florida and in the case of Earl Hodge, also in the state of North Carolina. These criminal proceedings allege inter alia that the Applicants knowingly and intentionally conspired with other persons to (a) distribute cocaine intending that such cocaine be unlawfully imported into the United States or into waters within 12 nautical miles of the coast of the United States and (b) possess with intent to distribute cocaine while on board an aircraft registered in the United States and with a United States citizen on board.

6 Consequent upon the Extradition Request from the United States Government, the Governor of the Virgin Islands issued to the Senior Magistrate an Authority to Proceed dated 26 ^th October 2011. Committal proceedings commenced before the Magistrate's Court and on March 13 ^th, 2012 the Magistrate found that a prima facie case had been made out for the Applicant's extradition and committed the Applicants to Her Majesty's Prison at Balsam Ghut, Tortola to await the Governor's decision as to whether they should be extradited to the United States of America.

7 The learned Magistrate rendered an oral decision on 13 ^th February 2012 by which she purported to make an order of committal under section 9 (8) (a) of the Extradition Act 1. She later issued a written Ruling on 13 ^th March 2012 in which she committed the Applicants under and by virtue section 7 (1) of the Extradition Act. In her written ruling, she found that the acts alleged by the United States Government were sufficient to establish territorial jurisdiction and that the evidence against the Applicants was sufficient to warrant a trial in this jurisdiction had the VBVI been in the same position as the United States. She concluded that she was satisfied that a prima facie case had been made out against the Applicants.

8 The Applicants applied to a judge of this Honorable Court for a writ of habeas corpus to be directed to the Superintendent of Prisons to show cause as to whether their continued detention at Her Majesty's Prison at Balsam Ghut, Tortola was lawful. The Applicants primary contentions in support of the application for the grant of a writ of habeas corpus included the following:

• i. That the Governor wrongly purported to exercise a power which he did not have, namely an Authority to Proceed and consequently the learned Magistrate committed the Applicants under and pursuant to the wrong legislative provisions.

• ii. That the learned Magistrate erred in finding that the Applicant was a party to a conspiracy to import cocaine into the United States in the absence of any evidence as to the destination of the alleged cocaine, the subject of the conspiracy.

• iii. That the learned Magistrate either erred or failed to properly carry out the transposition exercise which required her to suppose that (i) the criminal conduct alleged against the Applicants in the Requesting State happened in the BVI with all other conduct remaining where it happened and (ii) suppose that any conduct alleged to have happened in the Territory, happened abroad.

• iv. That the learned Magistrate erred in finding that the Requesting State could exercise jurisdiction over the Applicants on the basis of alleged overt acts which took place in the United States and the purchase and registration of an aircraft and the transporting of drugs on a US registered aircraft.

• v. That the learned Magistrate erred in finding that the acts alleged by the Requesting State suffice to establish territorial jurisdiction by the Requesting State.

• vi. That the learned Magistrate erred in law in finding that there was a prima facie case for the Applicants' extradition to the United States of America.

• vii. That the learned Magistrate erred in failing to address or otherwise deal with the issue of whether the Applicants' extradition was disproportionate and likely to infringe their rights and freedoms as protected by the British Virgin Islands Constitution.

9 On 17 ^th September 2012, the Honorable Mr Justice Redhead delivered a written judgment granting the writ of habeas corpus. He ordered that the decision of the learned Magistrate be quashed on the basis that it was null and void as it was based on an invalid authority. He also declared that the appropriate forum for the trial of the Applicants alleged criminality is the British Virgin Islands.

10 Following the discharge by the learned Judge, a new Request for Extradition was received on 11 ^th October 2012 in respect of the same Florida proceedings. The second request was supported by an affidavit of Denise Del Carmen Sosa Ventura dated 8 ^th October 2012 which the Respondent contends demonstrates that the Applicants were engaged in a conspiracy to import cocaine into the United States. The Governor issued an Order to Proceed to the Magistrate on 11 ^th October 2012, (the same day that the Request was received) ordering her to proceed in accordance with the provisions of Schedule 1 of the Extradition Act.

11 On 12 ^th October 2012, the Director of Public Prosecutions discontinued the local criminal proceedings against the Applicants and entered a nolle prosequi in respect of each charge. Upon being advised that the Governor had issued a new order to Proceed based on a fresh request for the Applicants extradition, the Magistrate ordered that the Applicants be remanded into custody.

12 On 17 ^th October 2012 the Superintendent of Prisons and the Attorney General filed an appeal against the decision of Redhead J regarding the North Carolina extradition request. No fresh extradition request was made in relation to those North Carolina proceedings.

13 On or around 1 ^st November 2012, the Applicants filed applications for leave to apply for judicial review in which they collectively seek to have the Court review—

• i. the decision of the Governor to issue the Order to Proceed dated 11 ^th October 2012, conferring upon the Magistrate, authority to commence extradition hearing in the wake of a second request by the Government of the United States, for their extradition to that country; and

• ii. the decision of the Magistrate to detain them in custody on account of the second request for their extradition; and

• iii. the decision to commence, or otherwise embark upon any extradition hearing pursuant to the Order to Proceed of 11 ^th October 2012.

14 In the case of the Applicant, Roberto Harrigan, he also seeks to have the Court review the decision of the Director of Public Prosecutions (DPP) to enter a nolle prosequi on 12 ^th October 2012 which discontinued the domestic charges laid against him.

15 At the start of the hearing, Counsel for the Applicants indicated for the record that they intended to proceed only with the application for leave to review the decision of the Governor to issue the Order to Proceed dated 11 ^th October 2012, conferring upon the Magistrate, authority to commence extradition proceedings in the wake of a second request by the Government of the United States. Counsel for Earl Hodge indicated that this position was premised on the basis that a Magistrate could only act pursuant to a lawful and valid Order to Proceed. So that if the Order to Proceed is quashed, then the actions or decision of the Magistrate would consequently fall away.

16 In addition, Roberto Harrigan also...