Knowles and others v The Superintendent of Her Majesty’s Fox Hill Prison (The Commissioner, Bahamas Department of Correctional Services) and others (The Bahamas)

In extradition proceedings, statutory authentication is satisfied where documents containing sworn testimony purport to be certified as originals or true copies by qualifying certifiers. Underlying witness affidavits may therefore be duly authenticated even if the affidavit exhibiting them is not. A formal Authority to Proceed made under the Minister’s hand and seal may satisfy the certification requirement in section 5(3) of the Extradition Act 1994 without a prescribed form. Statutory restrictions, including time-bar and fair-trial objections, need not be disproved in advance by the requesting state. Delay does not justify discharge where requested persons failed to pursue proceedings, suffered no relevant prejudice and can still receive a fair trial. Abandonment of extradition proceedings is an exceptional remedy.

Three appellants challenged their extradition from The Bahamas to the United States to face conspiracy charges concerning cocaine trafficking. They had been committed for extradition in 2003 and later applied for habeas corpus and judicial review. The Supreme Court of The Bahamas refused those applications after a substantive hearing in 2016. The Court of Appeal dismissed the appeals on 23 October 2017 and refused leave to appeal.

Before the Privy Council, the central issues were whether the supporting evidence was duly authenticated under section 14(3)(a) of the Extradition Act 1994, and whether delay in determining the habeas corpus applications breached the constitutional reasonable-time guarantee and entitled the appellants to discharge.

1. Appeal dismissed. The Board advised Her Majesty accordingly.
2. Authentication under sections 14(1)(a) and 14(3)(a) of the Extradition Act 1994 is mandatory. The affidavits containing the evidence necessary to establish a prima facie case were each certified by Karen Atkinson as an officer of the Court and as original documents. They were therefore duly authenticated and admissible, notwithstanding the separate question concerning authentication of Atkinson’s own affidavit. The Board did not need to decide whether the Court of Appeal’s reasoning on that question was correct.
3. The Authority to Proceed satisfied section 5(3) of the Act. It was issued by the Minister under his hand and seal, identified the request from an approved State, and stated that he was satisfied that the relevant acts concerned the importation and possession of dangerous drugs. No particular form or style of certification was required.
4. The restrictions in section 7 of the Act, including time-bar and fair-trial objections, were matters for the requested person to raise. The requesting State was not required to disprove their applicability in advance. The document requirements in article 8 of the unincorporated treaty were not requirements of Bahamian law; the applicable requirements were those in the Act.
5. Assuming without deciding that the constitutional reasonable-time guarantee applied to the habeas corpus proceedings, the appellants could not complain of delay where the factual findings showed that they had failed to pursue their applications and were content for them to be delayed. The statutory delay application had been dismissed on the facts, with no appeal against that finding.
6. Even if there had been a constitutional breach, discharge would not have been an appropriate remedy. The approach stated in Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72 and applied in the extradition context in Fuller v Attorney General of Belize [2011] UKPC 23 required consideration of the nature of the breach and all the circumstances. Proceedings should not be stayed or dismissed where a fair hearing remained possible and it would not otherwise be unfair to try the appellants. The Court of Appeal’s findings of no relevant prejudice and the continuing availability of a fair trial therefore disposed of the application for discharge.

• Privy Council — dismissed the appeal and advised Her Majesty accordingly: [2021] UKPC 19.
• Court of Appeal of the Commonwealth of The Bahamas — dismissed the appeals against refusal of the habeas corpus applications on 23 October 2017 and refused leave to appeal on 28 November 2017.
• Supreme Court of The Bahamas — refused the habeas corpus and judicial review applications following the substantive hearing between 29 February and 3 May 2016.