The Superintendent of Her Majesty’s Foxhill Prison and another v Viktor Kozeny (Bahamas)

A detainer has no common-law right to appeal against an order releasing a detainee on habeas corpus. That constitutional finality applies to the Judicial Committee: the broad statutory language founding its special-leave jurisdiction does not override the principle. A right of appeal must be conferred by express statutory provision or by necessary intendment.

Article 105(2) of the Constitution of the Bahamas preserves the power to grant special leave but does not confer it. The detailed appeal scheme in the Extradition Act 1994, as amended, permits an appeal to the Court of Appeal and regulates detention pending that appeal. It is inconsistent with a further appeal by the detainer to the Judicial Committee. The appeal was therefore dismissed for want of jurisdiction.

The United States sought the extradition from The Bahamas of Viktor Kozeny, who was accused of bribing public officials in Azerbaijan and of money laundering. The Magistrate committed him on corruption charges but dismissed other charges. The Supreme Court granted habeas corpus and set aside the committal order.

The Court of Appeal dismissed the appellants’ appeal and unconditionally discharged Mr Kozeny. The appellants obtained special leave to appeal to the Privy Council. The central issue was whether the Judicial Committee had jurisdiction to entertain an appeal by a detainer against an order granting habeas corpus and releasing the detainee.

Appeal dismissed for want of jurisdiction. Lord Clarke and Lord Dyson delivered the joint judgment. The Board had heard argument on the merits de bene esse, but its views on those issues had, at most, persuasive value.

1. Before the Administration of Justice Act 1960, habeas corpus was a summary and final process. The common-law constitutional principle was that a detainer could not appeal against the discharge of a detainee, or against the grant of habeas corpus before discharge, unless an express statute altered that position. The Board followed the reasoning in Cox v Hakes (1890) 15 App Cas 506 and Secretary of State for Home Affairs v O’Brien [1923] AC 603.
2. The Judicial Committee’s jurisdiction to grant special leave derived from section 3 of the 1833 Act and section 1 of the 1844 Act, rather than from the royal prerogative. Their broad language did not override the constitutional finality of habeas corpus. The power could be removed by legislation expressly or by necessary intendment.
3. Article 105(2) of the Constitution of the Bahamas was expressed negatively. It preserved, but did not positively confer, jurisdiction to grant special leave. No other constitutional provision supplied the required jurisdiction.
4. The amended Extradition Act 1994 created a detailed appeal route to the Court of Appeal. Sections 11(6) and 11(7) regulated the detainee’s release, detention or bail pending that appeal. If the appeal failed, the detainee was unconditionally entitled to remain free or be discharged. Section 12 could not revive extradition after discharge. The statutory scheme was therefore inconsistent with a further detainer appeal to the Judicial Committee, and a direct appeal from the Supreme Court was equally unavailable.
5. Advisory views on the merits were expressed. Counts 1 and 11 did not satisfy the Bahamian double-criminality requirement because the Penal Code’s references to public officers concerned Bahamian offices. The appellants could not raise the dismissed money-laundering charges in habeas proceedings because they had not used the case-stated procedure under section 10(7). An authority to proceed had to identify the offence relied upon, preventing reliance on convention-based offences not specified in it. The Board also considered that the Inter-American Convention against Corruption could not apply retroactively and that the alleged conduct fell outside its territorial scope.

The Board advised that the appeal be dismissed. Written submissions on costs were to be lodged within 28 days.

• Privy Council: Held that it had no jurisdiction to entertain the detainer’s appeal and advised that it be dismissed for want of jurisdiction.
• Court of Appeal of the Commonwealth of the Bahamas: Dismissed the appellants’ appeal on 26 January 2010 and unconditionally discharged the respondent.
• Supreme Court of the Bahamas: Isaacs J granted habeas corpus on 24 October 2007 and set aside the committal order.