Deuss v Attorney General et Al

• Jurisdiction: Bermuda
• Judgment Date: 25 April 2008
• Neutral Citation: BM 2008 CA 15
• Date: 25 April 2008
• Docket Number: Civil Jurisdiction 2006 No. 294,Civil Appeal 2006 No. 20 & 2007 No. 15
• Court: Court of Appeal (Bermuda)

In The Supreme Court of Bermuda

Wade-Miller, J

Civil Jurisdiction 2006 No. 294

BETWEEN:

Johannes Christiaan Martinus Maria Deuss

Applicant

and

The Attorney General for Bermuda

1st Respondent

The Commissioner of Police for Bermuda

2nd Respondent

The Director of Public Prosecutions

3rd Respondent

Mr M Pettingill, Mr J Pachai and Ms C Montgomery for the Applicant

Mr K Ratneser for the 1st and 2nd Respondents

Ms P Tyndale for the 3rd Respondent

extradition to the Netherlands — judicial review — jurisdiction — leave to apply — whether extradition treaty applies

JUDGMENT of Wade-Miller, J

1. On a date not disclosed to the Court, the Authorities of the Kingdom of the Netherlands (the Netherlands) set in motion procedures necessary to obtain the extradition of the Applicant, Johannes Christiaan Martinus Augustinus Maria Duess (Mr. Deuss).

2. On the 29^th day of September 2006 the Learned Magistrate, Mr. Khamisi Tokunbo, issued a ‘provisional warrant’ for the arrest of the Applicant. At the time of this hearing this warrant had not been executed. On the 16^th day of October 2006 the Court advised that the application for judicial review was refused and that full reasons for the decision would be given later. For completeness after the Court gave its decision the Court was advised that the provisional warrant was now executed and that Mr. Deuss was presently in custody. The Courts' reason for its decision now follows.

3. On the 4^th day of October 2006 an Application seeking leave to file for judicial review of the Learned Magistrate's decision to issue a provisional warrant was made before Greaves J, pursuant to Order 53 of the Rules of the Supreme Court. Greaves J refused the Application for leave and the hearing before this Court is a renewal of the application for leave to a judge sitting in open Court (Order 53/4).

4. At the commencement of the proceedings, Mr. Ratneser, (Counsel for the First Respondent) submitted that an objection was being taken to the Court hearing the Application for leave to file for judicial review of the Learned Magistrate's decision on the ground that the Court has no jurisdiction to hear this Application. He said that if the Application was refused, Ms. Tyndale, (Counsel for the Second Respondent) would address the issue of whether or not there is a valid Treaty in the Netherlands, which extends to Bermuda. As Ms. Tyndale was involved in a trial by jury and was only available during the morning, Mr. Ratneser requested that the Court allow Ms. Tyndale to lead her argument before he made his submission on the jurisdictional issue. The Court agreed to this course.

5. The Court will first deal with the issue of jurisdiction although it was heard secondarily. Ms. Montgomery, Counsel for the Applicant, began by setting out the background. In her opening, she sought permission to hand to the court a copy of the purported warrant, Mr. Ratneser, Counsel for the First Respondent, objected to the Court having regard to the warrant on the grounds that the warrant had not been executed and if it were going to be used in evidence then it must be evidenced properly as the warrant or as a copy of the warrant.

6. The Court has not looked at the document, which was never authenticated; however, it was referred to on a number of occasions by Ms. Montgomery.

7. Ms. Montgomery submitted that the Court does have jurisdiction to entertain the application for leave, notwithstanding the fact that Justice Greaves had already dealt with a previous application by the Applicant that had been made on similar grounds.

8. It is evident in Order 53/4, that where the application for leave is refused by the Judge, or is granted on terms, the applicant may renew it by applying to a Judge sitting in open court. Accordingly, the Court is satisfied having regard to Order 53/4 that it has jurisdiction to deal with the renewal of the Application (within the meaning of the rule). In consequence, the Court must consider the application on its merits notwithstanding the fact that another judge refused a similar Application.

9. The issue before the Court is whether there are extradition arrangements between Bermuda and the Netherlands which, authorizes the issue and execution of provisional warrants or warrants of arrest in Bermuda for extradition from Bermuda to the Netherlands.

Appellant's submissions

10. Ms. Montgomery on behalf of the Applicant argued that:

a) Extradition procedures have always been applied by making a clear distinction between foreign states, of which the Netherlands is one, on the one hand, and Commonwealth countries and colonies, or dependent territories, on the other.

b) In 1881, the first Fugitive Offender's Act applied to colonies, dependencies and dominions. There was, therefore, no need for a treaty because Her Majesty was sovereign in all those dominions.

c) Extradition, in relation to any Commonwealth country, for example from Bermuda to the United Kingdom or vice versa, was simply an act of imperial parliament by which Bermudian warrants for extradition could be executed through London and vice versa.

d) To date, this distinction has continued and now the provision in relation to Commonwealth countries is provided for in the Extradition Overseas Territories Order 2002 (the 2002 Order). However, the 2002 Order does not apply to the present case. Further the Extradition Act of 1989 (the 1989 Act) deals with extradition between colonies and foreign states. The Orders in Council made under Section 4 of the 1989 Act has extended this Act to colonies including Bermuda. However, the European Convention on Extradition (Dependent Territories) Order extends the 1989 Act to apply to Bermuda in relation to many European Countries it does not extend the 1989 Act to cover an extradition request made by the Netherlands.

11. It is undisputed that in 1989 a Treaty was signed between the United Kingdom and the Netherlands, which set out the extradition arrangements that should obtain between the two jurisdictions and their territories.

12. Ms. Montgomery advanced that if the Extradition Act of 1989 (1989 Act) was to apply an Order in Council under Section 4, and a specific provision extending that Order to Bermuda was required. Whilst Section 4 was applicable to the United Kingdom, it did not automatically extend to Bermuda.

13. The general scheme can be simply stated. There is the power to make a treaty that can be applied to the particular state through an Order in Council. Such an Order in respect of Bermuda was never made. No part of the main body of the 1989 Act applies to Bermuda in relation to the Netherlands, although it does to a number of other foreign countries.

14. Ms. Montgomery stressed the only other way the 1989 Act can be of any significance is that it abolished the 1870 Act in every respect (Section 1 (3) except that Section 37 saved the Orders in Council made under the 1870 Act. They applied a special scheme to it.

15. Although the earlier 1970 Act had been repealed, the Schedule to the 1989 Act effectively reproduced a scheme that had applied in 1970, which permitted Orders in Council as set out in the 1870 Act to continue. But in doing so, it also explicitly provided, in Section 37 (3) that there would be power to revoke or alter the 1870 Orders.

16. In relation to the Netherlands there is a Treaty with the United Kingdom in 1898, an Order in Council in 1899, which was made under the 1870 Act, and then the 1989 Act. The effect of Section 1.3 of the 1989 Act is to provide that Schedule 1 applies in relation to the specified State, subject to the limitations in the Orders. Section 37.3 of the Act reads ‘the repeal by this Act of the 1870 Act does not effect an Order in Council made under Section 2 of that Act or the power to revoke or order such an Order.

17. Ms. Montgomery stressed that, if Ms. Tyndale is right, the only way of getting extradition between the Netherlands and Bermuda is under Schedule 1 of the 1898 Treaty. Secondly, that a significant feature of the purposes of determining whether or not there is any liability to surrender to the Netherlands under the Act is the power to issue a provisional warrant of the sort which the Applicant suggests has been issued.

18. This is to be found in paragraph 5 of the Schedule. She added that a person is only liable to be arrested under paragraph 5 of the Schedule if he is accused of an extradition crime. The definition of an extradition crime in relation to any foreign state is to be construed by reference to the Order in Council under Section 2 of the 1870 Act applying to that state as it had effect immediately before the coming into force of this Act, and by extension to any amendment made to that Order. The Court is required to look at how the 1870 Act operated immediately before it was repealed and to determine whether or not under that scheme a piece of conduct is an extradition crime.

19. In practical terms, a crime will not be an extradition crime unless

(i.) it is a crime listed in the 1870 Act, and

(ii.) it is a crime listed in the Treaty. The 1989 Act defines ‘extradition crime’ as being any bad thing that is punishable in the two countries by a certain level of imprisonment. Additionally in this Schedule to the Act, which has the old 1870 scheme in it, still contains the requirement to look at the list.

20. Ms. Montgomery submitted that the view that the 1989 Treaty survives is incorrect for the following reasons. It is true that on the coming into force of the 1989 Act, insofar as the Netherlands is concerned, that throughout the United Kingdom, its dominions, its dependencies and its colonies the old 1898 Act and the 1898 Treaty applied. However, very shortly after the 1989 Act came into force, the United Kingdom signed the European Convention on Extradition. When it signed the Convention, it did so exercising the powers under Section 4 of the 1989 Act, which allowed it to...