Nyron Erickson v The Superintendent of Prisons

• Jurisdiction: British Virgin Islands
• Judge: Astaphan J
• Judgment Date: 23 December 2022
• Judgment citation (vLex): [2022] ECSC J1223-1
• Docket Number: BVIHCV2022/0268
• Court: High Court (British Virgin Islands)

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CRIMINAL DIVISION)

BVIHCV2022/0268

Between:

Nyron Erickson

Applicant

and

The Superintendent of Prisons

Respondent

Appearances:

Mrs. Valerie Gordon with her Mr. Hugh Wildman, Counsel for the Applicant

Mr. John Black K.C. with him Mrs. Fiona Forbes-Vanterpool, Counsel for the Respondent

DECISION ON BAIL APPLICATION

Astaphan J

1 “Life is as tedious as a twice told tale, Vexing the dull ear of a drowsy man” William Shakespeare's King John.

This is the fifth application for admission to bail made by the Applicant, Nyron Erickson, as is his Right to make; and this is the Court's Decision on that fifth Application by the Applicant to be admitted to bail. The Virgin Islands has no Bail Act. The Common Law governs Bail in these islands which comprise the Virgin Islands.

2 The Applicant has made four prior applications to be admitted to bail before the Magistrate's Court and the High Court. They were refused. This application before the Court is not an appeal of any of those unsuccessful applications, as indeed it cannot be, for reasons which will appear in this decision. This application is not a “review” of any of the former refusals, as indeed it cannot be. It is not a “renewed application” for bail, as indeed it cannot be. It is a new, distinct, separate and freestanding application by the Applicant for admission to bail.

3 The Virgin Islands has a written Constitution 1 (“the Constitution”). The Constitution is the fundamental underpinning of any application for admission to bail by an applicant, whether under a Bail Act, where there is one, or like here, under the Common Law. Chapter 2, the Fundamental Rights and Freedoms of the Individual, Section 9, provides the overarching mandatory declaration of the fundamental rights and freedoms of the individual in these Virgin Islands. Section 15 guarantees the protection of the right to personal liberty, and Section 16, by its provisions secures to the individual the protection of law.

4 It is not in issue in this case that Section 15 is engaged by the circumstances of the Applicant.

5 The engagement of Section 16 of the Constitution was not canvassed by either Party's Counsel. While it does not impact the ultimate decision of this Court on the Application before it, it is necessary to state that Section 16 is engaged by virtue of the fact that the Applicant is being detained upon a Warrant issued pursuant to a request made by the Government of the United States for his extradition to that country, which request was premised upon an Indictment preferred against him by a Grand Jury for the United States District of the Virgin Islands, on charges on three Counts: one of International Money Laundering Conspiracy, and two of Bulk Cash Smuggling. The fact is that he is “charged with a criminal offence” which is [not “withdrawn”], and these facts trigger his Section 16 protections. This is so despite the fact that he is not charged with any offence in, and by these Virgin Islands

(“British”), as Section 16 does not restrict the words “charged with a criminal offence” to charges of criminal offences in, and by the Authorities of these Virgin Islands. I hasten to add, that the three preconditions set out in Clifford and O'Sullivan (1921) 2 A.C. 370 and Amand v Secretary of State for Home Affairs (1943) A.C. 147 which were adopted and applied by Chief Justice, The Rt. Hon. Sir Vincent Flossiac, Q.C., in the case of Michael Glasford & Ors v The Commissioner of Police, Civil Appeal No. 8 of 1994, in the Eastern Caribbean Court of Appeal, to determine whether an “…order by way of refusal of the appellants' application for bail was an order made in a criminal cause or matter” are present, and are equally applicable in assisting in the determination as to whether Section 16 is engaged

6 These preconditions are—

• (i) “ … that at the time of the filing or hearing of the application on which the order was made, a charge of crime punishable by a fine, imprisonment or otherwise had been or was about to be preferred against the applicant or some other person.” The evidence of the Respondent in this application is that the Applicant had been Indicted by a Grand Jury for the District of the United States Virgin Islands upon charges of criminal offences, all of which are “ … punishable by a fine, imprisonment or otherwise.”. Indeed, it was that very Indictment which premised the arrest of the Applicant.

• (ii) “The second precondition is that the application involved consideration of that charge of crime.” The arrest of the Applicant was on a Warrant issued by a Magistrate which issue must have “ … involved consideration of that charge of crime…”, and certainly the subsequent proceedings all must have “ …involved consideration of that charge of crime.” It need not be said that these present proceedings have involved such a consideration.

• (iii) “ The third precondition is that the direct outcome or result of the application was or might have been the applicant's or other person's trial and possible conviction and punishment by a court or judicial tribunal having or claiming jurisdiction to try, convict and punish for that crime.” This is the stated purpose of the Applicant's detention by these Virgin Islands authorities, namely, to extradite him to the United States to face trial upon the said Indictment for which he may be convicted and punished by a United States Court which claims it has jurisdiction to do so. That this application, being an application for bail after that arrest, is part and parcel of the process which may lead to a conviction, engages that precondition.

• (iv) So that, applying these three preconditions, mutatis mutandis, to this Application vis-s-vis Section 16 of the Constitution, it is clear that the Applicant is a “…person charged with a criminal offence…” and is therefore entitled to the enumerated Section 16 protections. This, however, does not come to the aid of the Applicant on this Application, as there is no allegation of any Section 16 infringement, and the Applicant's current — and former – bail applications all honoured those Rights.

The Applicant's Submissions

7 The Applicant, through his Counsel Mr. Hugh Wildman, in his written and oral representations, and in his various affidavits in support of this Application, submits that there have been changes in his circumstances since his last application which warrant his release on bail. They are all set out in the affidavits which the Court has read and considered, and need not elongate this Decision by repeating them in full detail.

8 To paraphrase these submissions, he says that: (i) there is a lack of evidence to support his extradition and, Respondent's Counsel has conceded that there is no evidence against the Applicant; (ii) that his co-accused have had their cases dismissed With Prejudice (apparently for abuse of process by the Prosecutors), and this somehow undermines the Indictment upon which his extradition is sought; (iii) he has been incarcerated for a lengthy period of time already, and he will remain so incarcerated until the Privy Council has heard his appeal against the Judgement in his extradition hearing; (iv) that his health is deteriorating; (v) that his continued incarceration causes hardship for his family, particularly his young son who suffers with a complex medical condition which requires the son to be treated by a Hospital in Florida, U.S.A.; and (vi) that he is not a flight risk.

The Respondent's Submissions

9 The Respondent, The Superintendent of Prisons, through his Counsel Mr. John Black, K.C., and through various affidavits and submissions, written and oral, forcefully submits that (i) this Court is devoid of jurisdiction to hear this application unless there has been a [material] change in circumstances since the last application for bail by the Applicant, which was refused; (ii) that this Court is bound by the findings of fact of the previous Courts which heard the earlier applications of the Applicant for admission to bail, and it is only a material change in circumstances that would permit this Court to entertain this Application, much less grant bail to the Applicant; and (iii) that in any event, the Applicant has not reached the threshold, on examination of the “changes in circumstances”, which would admit him to bail.

10 Let me hasten to say that no disrespect is intended to either Counsel, or to their very exhaustive and erudite Submissions, and copious authorities cited therein, when I distill and extract what I take to be the essential issues before me, both from the Submissions, written and oral, and the cited cases.

Is this Court bound by the findings of fact by the previous Court which refused an earlier Bail Application and, must there be a Change in Circumstances before this Court can entertain a further Application for Bail?

11 The short answer to this quite novel submission, in the context of the Constitution and the Law as to bail in these Virgin Islands, is ‘No’.

• [11.1] Mr. Black, K.C., has cited in support of this overarching submission a lavish menu of cases, — perhaps because it is the festive Christmas Season — amongst which were the following:

  Nottingham JJ, ex parte Davies [1981] Q.B. 38, Divisional Court, U.K., interpreting a Bail Act;

  The Matter of an Application for Bail by Raffique Chewitt, Dwayne Sandy and Noval Sayers SVGHCRB 2014/0027, etc. High Court, St. Vincent & The Grenadines

  Steve Ferguson et al v Attorney General of Trinidad and Tobago, High Court, December 22, 2010, and in which HKSAR v Siu Yat Leung [2002] is cited as an authoritative discussion of the principles at Common Law relevant to successive bail applications.

  The Queen v David Brandt MNIHCR 2019/2008, High Court, Montserrat

  D.H v The Director of Public Prosecutions, BVIHCR 2020/0037, These Virgin Islands

  R. (on the application of...