Re Bar-Am, Eisenberg et Al

• Jurisdiction: Bermuda
• Judgment Date: 16 May 1986
• Date: 16 May 1986
• Docket Number: Civil Jurisdiction 1986: No. 191
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Astwood, CJ

Civil Jurisdiction 1986: No. 191

Re Bar-Am, Eisenberg and others

Mr Brian Smedley, Q.C. for the Applicants

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

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

Applications for Writs of Habeas Corpus and an 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

JUDGMENT

The Applicants in these proceedings are seeking to be released from H.M. Prison Casemates where they are being detained under Deportation Orders made by the Deputy Governor of Bermuda, made and issued by him on the 1st May, 1986, and they seek an Order of Certiorari to remove the said Orders of Deportation into this Court for the purpose of being quashed.

2. The Applicants arrived in Bermuda on British Airways Flight No.267 from London on the 21st April, 1986, which arrived here at 5 p.m. By the time they arrived here their names had been placed on the ‘Stop List’ by the Minister of Labour and Home Affairs, who had taken that action earlier on the 21st April, 1986, but at some time when B.A. Flight No.267 was en route to Bermuda with the Applicants on board. On their arrival the Applicants were refused entry into Bermuda by an Immigration Officer and were subsequently charged with a summary criminal offence of refusing to re-board the aircraft on which they arrived in Bermuda and to depart from these Islands. These charges were, on the 1st May, 1986, terminated by the Attorney General entering a nolle prosequi in each case but the Deputy Governor, on the same date, issued Deportation Orders against each Applicant.

3. The Deputy Governor, under delegated authority of the Governor, made his Orders for Deportation pursuant to the provisions of section 106(1)(d) of the Bermuda Immigration and Protection Act, 1956, which enacts:

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

………………………………………………

• (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.’.

4. The Deportation Orders read in all cases as follows:

‘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 is 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.’.

5. The Immigration Officer had to refuse entry into Bermuda to the Applicants once their names were on the ‘Stop List’, unless he had the general or specific direction of the Minister to allow them to land which, apparently, he did not have. Therefore, their presence in Bermuda became unlawful once they refused to re-board the aircraft which brought them here.

6. This Court does not know all of the facts relied on by the Minister for placing the names of the Applicants on the ‘Stop List’, nor for recommending their deportation, but from the admitted facts the Attorney General of Bermuda was contacted in Bermuda on the 14th April, 1986, by a Senior United States Customs Agent and another Agent, who were seeking information from him as to what legal avenues were available should a certain series of events occur. The Attorney General was apprised of a certain undercover operation involving a number of people who were fraudulently conspiring to divert United States armaments to a foreign country, namely Iran, which according to the facts presented to the Court harbours and encourages terrorists.

7. In the discussions which followed between the Attorney General and the U.S. Customs Agents concerning procedures available to the Bermuda Government for expelling from Bermuda persons whose names appear on the ‘Stop List’, the Attorney General stated to the U.S. Agents the recourses open to the Bermuda Government if these persons refused to re-board their aircraft.

8. On the 17th April, 1986, the Attorney General was contacted again by one of the U.S. Agents while he was in Washington, U.S.A., where he happened to be on business unrelated to the criminal conspiracy which had been earlier related to him. On this occasion the U.S. Agent gave him further details of the conspiracy and gave him information to the effect that two American citizens and three Israelis were involved and that these persons were intending to come to Bermuda with a view of consummating the armaments transaction. If this is a true fact, then they were planning to further their criminal activities in Bermuda and would be doing things in Bermuda which would not be in the best interests of Bermuda. Up to this time the Attorney General had no statement of fact or information in writing from the U.S. Agents which he could properly present to the Minister or to the Government of Bermuda, nor does it appear in the facts before me whether the allegation of the U.S. Agents was...