Scantlebury, Gaskin and Hawkesworth v The Attorney-General and Nicholls
| Jurisdiction | Barbados |
| Judge | Simmons, C.J. |
| Judgment Date | 08 June 2009 |
| Neutral Citation | BB 2009 CA 12 |
| Docket Number | Civil Appeal No. 18 of 2007; Civil Appeal No. 20 of 2007 and Civil Appeal No. 21 of 2007 |
| Court | Court of Appeal (Barbados) |
| Date | 08 June 2009 |
Court of Appeal
Simmons, C.J.; Williams, J.A.; Kentish, J.A. (Ag.)
Civil Appeal No. 18 of 2007; Civil Appeal No. 20 of 2007 and Civil Appeal No. 21 of 2007
Mr. Hal Gollop and Mr. Steve Gollop for appellant, Scantlebury Mr. Ralph Thorne Q.C. for appellants, Hawkesworth and Gaskin.
Mr. Leslie Haynes Q.C. and Mr. Philip McWatt for the Attorney-General.
Mr. Roger Barker for the respondent, Clyde Nicholls.
Extradition - Chief Magistrate deciding to continue extradition proceedings — Whether decision was ultra vires — Chief Magistrate refusing to allow cross-examination of witnesses — Whether right to a fair hearing was breached — Whether Chief Magistrate wrongly admitted affidavits.
Judicial review - Decision by Chief Magistrate to continue extradition proceedings — Whether application for judicial review was premature — Alternative remedy available — Whether there were exceptional circumstances which merited the application.
These appeals are against a judgment of Reifer, J. in judicial review proceedings commenced under the provisions of the Administrative Justice Act, Cap. 109B. In those proceedings, the appellants sought judicial review of decisions of the Chief Magistrate, Mr. Clyde Nicholls, made in relation to a request by the Government of the United States of America (the USG) for the extradition of the appellants. These appeals raise issues specific to the law of extradition and highlight the special character of extradition proceedings. Although such proceedings are grounded in the criminal law, they are very much sui generis.
On 16 June 2004, warrants for the arrest of the appellants were signed in Washington, D.C. Next day, a Federal Grand Jury in the District of Columbia returned an indictment against the appellants charging them with drug offences contrary to the laws of the U.S.A. All three appellants were charged with conspiracy to distribute five kilograms or more of cocaine intending and knowing that it would be unlawfully imported into the U.S.A. In addition, the appellant Hawkesworth was charged with distributing 500 grams or more of cocaine intending and knowing that it would be unlawfully imported into the U.S.A. It was for these offences that the USG sought the extradition of the appellants from Barbados.
On 26 May 2004 Assistant Superintendent Grafton Phillips of the Royal Barbados Police Force, on behalf of the Commissioner of Police, sought the issuance of a warrant under s.10(1) of the Extradition Act, Cap.189 (the Act), “for the apprehension” of the appellants. Chief Magistrate Nicholls issued provisional warrants for their arrest. They were arrested on 27 May 2004, brought before Mr. Nicholls and remanded in custody. They were subsequently released on bail.
On 19 July 2004, Stephen May, a senior trial attorney in the narcotics and dangerous drugs section of the U.S. Department of Justice, swore an affidavit before Deborah Robinson, a U.S. Magistrate Judge for the District of Columbia. This affidavit and authenticated documentation had been prepared in support of a request for the appellants' extradition by the USG. May's affidavit was certified on the same day by Lystra Blake, Associate Director of the office of International Affairs, Criminal Division, of the U.S. Department of Justice.
The then U.S. Secretary of State, Colin Powell, affixed the Seal of his Office to a bundle of documents certified by Ms. Blake on 20 July 2004. Among the bundle of documents and attached to May's affidavit was a document purporting to be an affidavit. It purported to be sworn before Ms. Robinson on 16 July 2004. However, the name of the deponent was not disclosed on the affidavit nor was a signature of the deponent subscribed in the jurat.
These omissions bore the word “redacted” to indicate that the identity of the deponent was being withheld. In short, this affidavit purported to have been made by an anonymous deponent. Mr. May referred to this deponent as “a Confidential Source” (C/S). So too, did Gordon Patten Jr. whose affidavit was attached to May's. Patten was a special agent of the U.S. Drug Enforcement Administration (DEA) then assigned to Barbados.
Patten said in his affidavit that the C/S had assisted the DEA in its investigations into the matters involving the appellants. Patten's affidavit provided detailed evidence of the appellants' acts over a period of approximately 4 years. We do not think it appropriate to set out in extenso those acts and we are content to use the summary provided in paras.17 to 19 of the affidavit to encapsulate the nature of the case against the appellants.
“17. Hawkesworth was the head of this drug distribution organisation. He oversaw the entire operation of the organisation in Barbados, directing the transportation and distribution of cocaine, and arranging for the drugs to be shipped out of Barbados or Guyana to the United States and other countries. He was involved in several attempts to deliver “test loads” of 1–3 kilograms of cocaine to the Confidential Source through JFK Airport in New York. He admitted to confidential sources that he wanted to ship 50 kilogram loads of cocaine to the United States once the test loads successfully cleared the airport in New York. He sold one kilogram of cocaine to the confidential source on 30 March 2004 and fronted him an additional kilogram. After that, he negotiated to sell an additional 5 kilograms of cocaine.
18. Scantlebury was the main associate or “lieutenant” for Hawkesworth during the time that he worked with him. Scantlebury would seek buyers of cocaine and introduce them to Hawkesworth. He would meet with the buyers on behalf of Hawkesworth to negotiate the delivery of cocaine. Scantlebury was supposed to travel to the United States after the “test loads” of cocaine had been successfully delivered to New York. He was then going to be in charge of overseeing the receipt of the shipments of cocaine from Hawkesworth and Douglas.
19. Gaskin primarily assisted Scantlebury in meeting with prospective purchasers of cocaine from Hawkesworth. He was also supposed to travel to New York and help oversee the shipments of cocaine sent from Hawkesworth and Douglas to the United States.”
The affidavit of the C/S contained considerable evidence detailing his contact with the appellants and the arrangements or agreements made between himself and the appellants for the supply, purchase and distribution of cocaine in the U.S.A. The C/S was clearly an undercover operative working in tandem with the DEA.
On 4 August 2004 the extradition proceedings for committal of the appellants began before Mr. Nicholls. The evidence led in support of the request of the USG consisted of the oral evidence of four witnesses brought to prove the authenticity and chain of custody of the bundle of documents submitted by the USG together with the affidavits and various exhibits.
More particularly, the bundle of documents contained: Colin Powell's Seal of Office; Lystra Blake's certificate; a certificate of Robert Fretz authenticating the Seal of the U.S. Department of State; a certificate of Donna Forde, a Barbadian foreign service officer based in Washington, D.C.; a certificate of the then U.S. Attorney-General, John Ashcroft; the affidavits of Stephen May, Gordon Patten and the C/S; the U.S. warrants of arrest; and photographs of the appellants.
Before the conclusion of the committal proceedings before the Chief Magistrate, counsel for the appellants made a number of submissions causing the proceedings to be halted. For example, counsel made specific requests to cross-examine those witnesses whose affidavit evidence formed the basis of the extradition request; in particular, Stephen May, Gordon Patten and the C/S. Counsel sought the presence in Barbados of these deponents for cross-examination. They argued that a denial of the right to cross-examine the deponents rendered the procedure unfair and was a violation of s. 18 of the Constitution of Barbados. They challenged the validity of the affidavit of the C/S and argued that it did not qualify as an affidavit in a number of ways. They also challenged the validity of a provisional warrant of arrest and its constitutionality under s. 13(2) of the Constitution. They contended that the bundle of documents did “not measure up to the requirements of U.S. law”.
Other submissions urged upon the Chief Magistrate questioned the parties to the extradition proceedings and the legal appearances. For example, it was submitted that neither the USG nor the Attorney-General of Barbados had “locus standi to prosecute” the extradition proceedings. Mr. Nicholls overruled all of the submissions except that he ruled that the Director of Public Prosecutions should not continue to appear and he allowed conduct of the proceedings in the name of the Attorney-General. The Chief Magistrate gave a written decision in response to the submissions and concluded that prima facie cases had been made out against the appellants.
The appellants Hawkesworth and Gaskin filed applications for judicial review of the decisions of the Chief Magistrate on 7 October 2005. On 10 October 2005, Scantlebury also filed an application for judicial review of the decisions of the Chief Magistrate. Broadly, the applications sought a declaration that the Chief Magistrate's decision to continue the extradition proceedings was contrary to law and/or ultra vires. Consequently, they sought an order of certiorari to quash the decision; an order of prohibition or an injunction to restrain further proceedings. And Hawkesworth and Gaskin also claimed damages. The applications were heard by...
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