Re Bar-Am, Eisenberg et Al

• Jurisdiction: Bermuda
• Judgment Date: 07 August 1986
• Date: 07 August 1986
• Docket Number: Civil Appeal No. 8 of 1986
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

In the Court of Appeal for Bermuda

In the Court of Appeal for Bermuda

Sir Alastair Blair-Kerr P.

Harvey L. da Costa, J.A.

Duffus, J.A.

Civil Appeal No. 8 of 1986

Civil Appeal No. 8 of 1986

Civil Appeal No. 8 of 1986

Re Bar-Am, Eisenberg et al

(The Appellants)

Re Bar-Am, Eisenberg et al

Appellants

Re Bar-Am, Eisenberg et al

(The Appellants)

Mr. Brian Smedley, Q.C. for the Appellants

Mr. Saul Froomkin Q.C. (Attorney General) for the Respondents

R v Home Secretary ex parte Duc de Chateau Thierry (1916-17) AER Rep 523

R v Superintendent of Chiswick Police Station ex parte SackstederELR [1918] 1 KB 578

R v Governor of Brixton Prison ex parte SoblenUNK [1962] 3 All ER 641

Bermuda Immigration and Protection Act 1956, s. 114(c)

Writ of Habeas Corpus — Order of Certiorari — Deportation Order — Extradition — Whether Deportation Order a sham and/or made with an ulterior objective — Arms dealers — Prosecution in United States of America — Whether Deportation Orders were invalid on the ground that they were made for the sole purpose of effecting extradition of the Applicants to the United States to be tried for non-extraditable offences — Minimal persuasive effect of English authorities

REASONS FOR JUDGMENT

Before summarising the salient facts relative to this appeal, it may be convenient to refer to a number of provisions in The Bermuda Immigration and Protection Act 1956 (‘the Act’). So far as relevant, they read as follows:

• ‘31(5) It shall be lawful for the Governor to take into consideration the case of any person who, not being a person who possesses Bermudian status, is for the time being outside these Islands; and in any case where it appears to the Governor—

  • (a) ………….

  • (b) that any such person whose landing in these Islands appears undesirable in view of information or advice received from any official or other trusted source,

• then ……. the Gorernor may cause that person's name to be entered on a list (in this Act referred to as “the stop list”) to be maintained by the Governor.’

• ‘31(7) For the purposes of this section, a person arriving in these Islands shall be deemed to be an exceptionable person if he does not possess Bermudian status and if ………………..

  (g) .. he is a person whose name is for the time being entered in the stop list ………….;’

• ‘31(1) ……… where it appears to an immigration officer that a person arriving in these Islands is an exceptionable person within the meaning of this section the immigration officer shall so inform that person, and shall not allow him to land in these islands …………….

• (6) An exceptionable person whose name is for the time being entered in the stop list shall not be permitted to land in these Islands unless such landing is authorised by the Governor.’

• ‘25. …………. it is hereby declared that it is unlawful for any person other than a person ….

  • (a) who possesses Bermudian status; or

  • (b) who is for the time being a special category person; or

  • (c) who is, bona fide, a visitor to these Islands

  to land in, or having landed, to remain or reside in these Islands without in each case specific permission ……. being given by or on behalf of the Minister …..’

• ‘50(1) Any person—

  • (a) who lands or attempts to land in these Islands; or

  • (b) who does any act preparatory to landing in these Islands

  where such landing is, or would be, in contravention of any provision of this Part, shall be guilty of an offence against this Act.’

• ‘44 ………………

  • (a) in any case where a person disembarks from an aircraft …… if he is not permitted to leave the airport by reason of his not being permitted to land in these Islands …….. it shall be the duty of the commander of the aircraft to receive him on board the same aircraft and take him away from these Islands, or if the aircraft has already left …… then it shall be the duty of the commander of any subsequent aircraft owned or operated by the same person or company as owned or operated the aircraft by which such person arrived in these Islands deporting from these Islands to receive him on board that aircraft and take him away …………’

The four grounds on which a deportation order may be made are set out in section 106(1) of the Act. Two of those grounds are set out in paragraphs (c) and (d) of subsection (1); and the subsection, so far as relevant, reads:

• ‘(1) The Governor may, if he thinks fit, make a deportation order in respect of a person charged—

  • (a) ………..

  • (b) ………..

  • (c) who is a person in respect of whom the Governor considers it conducive to the public good to make a deportation order; or

  • (d) who is a person whose presence in these Islands is unlawful by reason of a contravention of any of the provisions of this Act.’

‘Person charged’ is defined as meaning a person in respect of whom it is alleged that there are grounds for making a deportation order and includes a person in respect of whom a deportation order has been made.

Section 104(1) reads as follows:

• ‘(1) Where—

  • (a) any immigration officer generally or specially authorised in writing by the Minister in that behalf; or

  • (b) any police officer

  believes on reasonable grounds that a person is a person charged he may arrest that person. The person so arrested may be detained in any prison, police station, or immigration office until he can be brought before a magistrate.’

Section 107(2) reads as follows:

• ‘(2) A person in respect of whom a deportation order has been made may be detained in such manner as may be directed by the Governor, and may be placed on board a ship or aircraft about to leave these Islands, and shall be deemed to be in lawful custody whilst so detained and until the ship or aircraft finally leaves these Islands:

  Provided that no person shall be detained under this subsection for a period exceeding twenty eight days ……………..’

Section 109 (2) reads:

• ‘(2) In every case where a deportation order is served in accordance with subsection (1), it shall be the duty of the immigration officer or police officer serving the order to inform in writing the person upon whom the order is served of his right to sue out a writ of habeas corpus.’

Section 111(1) reads:

• ‘(1) The master of a ship or the commander of an aircraft about to call at any place outside these Islands shall, where arrangements have been made for the reception of a person to be deported, if so required by any immigration officer, receive that person …….. on board the ship or aircraft and shall afford him …. a passage to that place and proper accommodation and maintenance during the journey.’

Finally, paragraphs (b) and (c) of section 114, reads:

• ‘(b) any document purporting to be a deportation order shall, until the contrary is proved, be presumed to be such an order; and

• (c) any deportation order shall be presumed, until the contrary is proved, to have been validly made and to have been made on the date on which it purports to have been made.’

On May 1st 1986, the Deputy Governor signed a deportation order in respect of each of the five appellants. The five orders were in the same terms;—

‘Whereas I, John Mark Ambrose Herdman, Deputy Governor of Bermuda, acting upon the advice of the Hon. Sir John Henry Sharpe M.P., a Minister acting under the general authority of the Cabinet, think it fit to make a deportation order in respect of ……… a person whose presence in these Islands ia unlawful.

Now Therefore I do, in exercise of the powers conferred upon the Governor by section 106(1)(d) of the Bermuda Immigration and Protection Act 1956 and delegated to me by an Authorisation made under section 19A(2) of the Constitution, hereby order the said ……… to leave these Islands and thereafter to remain out of these Islands until further notice:

And I Do Further Direct that the said …….. be detained in Her Majesty's Prison until such time as he can be placed on board any ship or aircraft about to leave these Islands but in any event not longer than twenty-eight days after service of this order upon him.’

On 5th May 1986, the Chief Justice granted the appellants leave to apply for an order of certiorari to quash the five deportation orders; and he ordered that a writ of habeas corpus issue directing the Commissioner of Prisons to bring the appellants before the Supreme Court in order that the legality of the appellants' detention be determined.

The application for certiorari and the hearing on the habeas corpus took place on the 6th, 8th, 12th, 13th and 14th May. Judgment was delivered on 16th May. The Chief Justice dismissed the application for certiorari and refused to order that the appellants be released from prison.

Upon counsel for the appellants undertaking to file his notice of appeal forthwith, the Chief Justice ordered that ‘all proceedings on the deportation orders dated 1st May 1986 made by the Deputy Governor be and are hereby stayed until 27th May or further order of the Court of Appeal or the sooner determination of the appeal.’

On 26th May 1986, we dismissed the appeal indicating that we would record reasons for our decision and make them available to the parties. We now proceed to do so.

In the appeal record, there is a statement of ‘admitted facts’. The document reads as follows:

‘On Monday the 14th day of April, 1986 the Attorney General received a telephone call from a senior U.S. Customs Service Agent, to arrange a meeting in Bermuda to discuss a sensitive matter with the Attorney General.

The agent advised that he was not able to discuss the matter over the telephone.

As the Attorney General was leaving the Island the next day, the agent agreed to come to Bermuda that day.

Accordingly, on the evening of Monday the 14th day of April, the Attorney General met with that agent and another, neither of whom were involved in the matter.

At the meeting, the agent stated that they were unable to give any...