Rhett Allen Fuller v The Attorney General of Belize (Belize)

In a constitutional state on the Westminster model, the executive cannot have exclusive authority to determine whether extradition proceedings or detention pending extradition are lawful. Issues of abuse of process are for the courts. Under the Extradition Act 1870, the executive may retain a discretion over surrender that is otherwise lawful, but that discretion does not displace judicial control of legality. The Supreme Court may grant habeas corpus where extradition proceedings involve abuse of the court’s process. Inordinate delay in pursuing extradition can amount to abuse, but discharge depends on its effect, principally whether a fair trial has become impossible; there is no fixed cut-off. On the assumed facts, the appellant had no viable abuse case. The appeal was dismissed.

The appellant was arrested in Belize following a request by the United States for his extradition to face a murder charge. The Chief Magistrate ordered extradition. The Supreme Court refused habeas corpus, holding that it had no jurisdiction to consider whether the extradition proceedings were an abuse of process. The Court of Appeal of Belize dismissed the appeal, holding that the issue belonged to the Minister of Foreign Affairs, subject to judicial review.

The Privy Council considered whether the Belize Constitution and the Extradition Act 1870 permitted the Supreme Court to determine an abuse-of-process challenge, whether the Chief Magistrate had equivalent jurisdiction, and whether the alleged delay and other matters justified remission.

The Board, in the single judgment delivered by Lord Phillips, unanimously dismissed the appeal.

1. Constitutional jurisdiction. The lawfulness of extradition and of detention pending possible extradition is for the courts, not exclusively for the executive. The reasoning in Atkinson v United States of America Government [1971] AC 197, R v Governor of Pentonville Prison, Ex p Sinclair [1991] 2 AC 64 and In re Schmidt [1995] 1 AC 339 could not be applied in Belize so as to confer that judicial function on the Minister. The Board approved the reasoning in R (Kashamu) v Governor of Brixton Prison [2001] EWHC Admin 980 and relied on Westminster-model constitutional authorities including Ahnee v Director of Public Prosecutions [1999] 2 AC 294, Director of Public Prosecutions of Jamaica v Mollison [2003] UKPC 6 and State of Mauritius v Khoyratty [2006] UKPC 13.
2. Abuse of process. Abuse of process is a paradigm matter for the court. In its narrow sense it includes improper use of court process, use in circumstances affronting the rule of law, and use for an improper motive. The Supreme Court therefore had jurisdiction on habeas corpus to consider the appellant’s challenge. The Board did not attempt to define the wider circumstances in which extradition under the 1870 Act might be so unjust or oppressive as to be unlawful.
3. Detention and bail. The lawfulness of detention is distinct from, but connected with, the lawfulness of extradition. A person may be detained pending determination of extradition, but not once extradition has been found unlawful. A person on bail is treated as in custody for habeas corpus purposes, so bail did not prevent the challenge.
4. Delay. The relevant question was whether delay had made a fair trial impossible, taking account of the safeguards available in the requesting state and the circumstances of the particular case. No fixed time limit applied. Inordinate delay in pursuing extradition proceedings could constitute abuse, but the appellant’s failure to progress his own appeal meant that the six-year period of appellate inertia did not make abandonment arguable. The alleged assurances and inaccurate affidavit also provided no viable abuse case.
5. The Board left unresolved whether the Chief Magistrate had the same jurisdiction, although the availability of a constitutional reference to the Supreme Court meant that the magistrates’ court could not be described as the obvious forum. The challenge to the sufficiency of the evidence disclosed no valid basis for disturbing the courts below. The Board advised that the appeal should be dismissed.

• Privy Council: On [2011] UKPC 23, the appeal was dismissed. The Board held that the Supreme Court had jurisdiction to consider abuse of process but found no viable case requiring remission.
• Court of Appeal of Belize: The appellant’s appeal was dismissed on 27 March 2009. Leave to appeal to the Privy Council was granted on 2 March 2010.
• Supreme Court of Belize: The Chief Justice refused the habeas corpus application on 29 April 2002, holding that the court lacked jurisdiction to consider abuse of process.
• Chief Magistrate: Extradition was ordered on 26 February 1999.