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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No: 207 of 2010

HCA No: CV 2010-004144

BETWEEN

STEVE FERGUSON

ISHWAR GALBARANSINGH

APPELLANTS

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

RESPONDENT

PANEL: W. Kangaloo, J.A.

A. Mendonça, J.A.

P, Weekes, J.A.

APPEARANCES: Mr. F. Hosein, S.C. and Mr. R. Dass

appeared on behalf of the Appellant, Steve Ferguson,

Mr. A. Mitchell, Q.C and Mr. R. Persad

appeared on behalf of the Appellant, Ishwar Galbaransingh

Mr. A. Sinanan, S.C.

appeared on behalf of the Attorney General

DATE DELIVERED: December 17th

, 2010

I agree with the judgment of Mendonça, J.A. and have nothing to add

P. Weekes,

Justice of Appeal

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JUDGEMENT

Delivered by A. Mendonça, J.A.

1. This is an appeal from the decision of the trial Judge refusing leave to the Appellants

to apply for judicial review of the decision of the Attorney General (the AG) of October 8,

2010 to return them to the United States of America (the U.S.) under section 16 of the

Extradition (Commonwealth and Foreign Territories) Act (the Act).

2. The Appellants are sought by the U.S. to stand trial there for a number of offences

arising out of the construction of the Piarco International Airport. The offences include

money laundering and wire fraud. An extradition request was made by the U.S. in 2006 for

the extradition of the Appellants to stand trial for the offences pursuant to the provisions of

the Act. On July 20, 2006 the AG issued the authority to proceed. On July 14, 2008 the

Appellants were committed by the Chief Magistrate to await the warrant of the AG for their

return.

3. Since the request for the extradition of the Appellants they have mounted a number of

legal challenges to the extradition process which would serve to explain the apparent delay

from the date of the issue of the authority to proceed to the decision of the AG for their return

to the U.S. under section 16 of the Act. There was first of all an application by way of

judicial review which challenged the legality of the authority to proceed. These proceedings

were dismissed by Bereaux J and the decision was upheld by the Court of Appeal. There

were also habeas corpus proceedings. These were dismissed by Pemberton J. Her decision

was upheld by the Court of Appeal and a subsequent application for leave to appeal to the

Privy Council was refused, apparently on the basis that there was no right of appeal. There

were, in addition, constitutional proceedings by which the Appellants alleged that certain

provisions of the Act infringed their fundamental rights guaranteed by sections 4 and 5 of the

Constitution. These proceedings were dismissed by Kokaram J. The appeal from his decision

has been heard together with this appeal and is the subject of separate judgments of this

Court.

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4. By these proceedings the Appellants sought leave to apply for judicial review in

respect of two decisions of the AG; namely the decision to return them to the U.S. and the

refusal to permit a stay of execution further to the notification of that decision. The latter

decision is however no longer of any relevance and I will make no further mention of it.

5. The application for leave was heard inter partes and was supported by an affidavit

filed on behalf of the Appellants. There was however no evidence filed on behalf of the AG.

I should, however, mention that it has been indicated to this Court that if this appeal should

succeed and the Appellants obtain leave to apply for judicial review, the AG would wish to

put evidence before the Court.

6. The Appellants on the application for leave relied on three grounds, namely:

(i) the decision was arrived at unfairly and in breach of the requirements of

natural justice;

(ii) the decision was vitiated by bias;

(iii) the decision is unreasonable and/or irrational.

7. Before discussing these grounds it is important to emphasize that this is an appeal

from the refusal of leave to apply for judicial review. It is not an appeal from the final

determination of the matter after a full hearing. The hurdle that the Appellants must

overcome is not a very high one. What the Appellants need to show in order to obtain leave

is an arguable ground for judicial review having a realistic prospect of success and there is no

discretionary bar such as delay or an alternative remedy (see Privy Council Appeal No.75 of

2006 Sharma v Antoine). In this appeal no arguments have been advanced that there is any

discretionary bar that is fatal to the grant of leave so that the question is whether the

Appellants have established an arguable ground of appeal for judicial review having a

realistic prospect of success. If so, then leave should have been granted. If not, the judge was

correct to refuse leave.

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8. I turn now to the grounds on which the Appellants relied for leave to apply for

judicial review. With respect to the first ground the relevant facts may be briefly

summarized. Prior to making his decision, the AG on or about July 21, 2010 received

representations from the Appellants inviting him to exercise his discretion under section 16

of the Act to refuse to order their extradition. The Appellants also subsequently submitted

further representations as well several legal opinions.

9. The AG made his decision on October 9, 2010. The following day, a written

summary of the reasons for his decision was made available to the Appellants. In the written

reasons reference was made to representations that the AG received from the Director of

Public Prosecutions (the DPP) and the U.S. At no time were the Appellants ever informed of

the existence of these representations, nor was any opportunity ever afforded to them to make

representations in relation to the matters contained in the representations.

10. It is the contention of the Appellants that they should have been shown the

representations made by the other parties and given an opportunity to be heard on them. The

failure to do so, they contend, constitutes a breach of the principles of natural justice and

accordingly the AG’s decision should be set aside.

11. The trial Judge on this argument concluded that there was no need for the AG to show

to the Appellants the representations he received from the DPP and the U.S. She stated:

“On the issue of whether there was unfairness by the Attorney General not

revealing to the [Appellants] the representations from the DPP and the requesting

authority, I have come to the conclusion that there was no need for him to do so,

unless there was revealed on the evidence before me that there was some material

which would have had the effect of so misdirecting him as to cause him to come to

a decision that was irrational or wrong in law. There is no such material before

me.”

12. The judge unfortunately seemed to be under a misconception. An applicant, who is

alleging that he has been denied his right to be heard, as is the case here, need not establish

that as a consequence the decision maker came to a conclusion that is irrational or wrong in

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law. A claim that the decision maker acted in breach of the rules of natural justice is a free

standing ground for judicial review.

13. The core complaint here is that the Appellants were denied their rights to be heard in

relation to the representations received from the DPP and the requesting state. This relates to

the obligation of the decision maker to hear both sides to the dispute. Perhaps the classic

statement of this is contained in the decision of the Privy Council in Kanda v Malaya [1962]

AC 322, 337 where Lord Denning stated;

“If the right to be heard is to be a real right which is worth anything, it must carry

with it a right in the accused man to know the case that is made against him. He

must know what evidence has been given and what statements have been made

affecting him: and then he must be given a fair opportunity to correct or contradict

them. It follows, of course, that the judge or whoever has to adjudicate must not

hear evidence or receive representations from one side behind the back of the

other. The court will not enquire whether the evidence or representations did work

to his prejudice, sufficient that they might do so. The court will not go into the

likelihood of prejudice. The risk of it is enough. No one who has lost a case will

believe he has been fairly treated if the other side has had access to the judge

without his knowing.”

14. Another case of relevance and one which is closer to the facts of this case is R (on the

application of Ramda) v Secretary of State for the Home Department [2002] EWH 1278

(Admin). In that case the applicant sought permission to apply for judicial review of the

Home Secretary’s decision to order his extradition to France. One of the grounds on which

the applicant relied was that he had been denied an opportunity to deal with potentially

critical new material obtained by the Home Secretary. The court granted leave and in the

judgment on the substantive application stated (at para 25):

“As to the fairness of the process, two principles come into potential conflict.

One is that there has to be finality in decision-making as much as in litigation

the Home Secretary is not required to be drawn into a never-ending dialogue

whenever his decision proves unacceptable to a wanted person. The other is

that he must not rely on potentially influential material which is withheld from

the individual affected. This is a simple corollary of Lord Loreburn’s axiom that

the duty to listen fairly to both sides lies upon everyone who decides anything…

and of Lord Denning’s dictum that if the right to be heard is to be worth

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anything it must carry a right in the accused man to know the case against

him… Any individual facing a sentence of thirty years if he is extradited and

convicted can be entitled to no less consideration.”

15. Similarly in R v Secretary of State for the Home Department, ex p. Hickey No. 2

[1995] 1WLR 734, 744 Simon Brown L.J. stated;

“Inquiries will presumably only be made if the petition itself raises one or more

points of sufficient substance to cast doubt on the safety of the conviction. If the

inquires appear to resolve those points against the petitioner, elementary fairness

surely requires that he should then have the opportunity to address these fresh

obstacles in his path before an adverse decision is taken against him.”

16. These authorities are clear. The decision maker must not rely on potentially

influential material which is withheld from the individual affected. As is stated in Hickey

“elementary fairness” requires that he sees this material and is given an opportunity to

address it. So that in this case where the AG obtained representations from the U.S. and the

DPP upon which, from the written reasons of the AG, reliance was clearly placed, fairness

would require that they be shown to the Appellants and they be given an opportunity to

comment on them.

17. A legitimate objection to this might very well be that the representations of the DPP

and the U.S. addressed nothing more than what was already dealt with by the Appellants in

their representations, and consequently there was no unfairness. This was the approach of the

Court in R v Secretary of State for the Home Department, ex p. Mc Guire CO/385/95.

There the complaint was that the Home Secretary, in coming to his decision to issue a

warrant for the return of the applicant to the U.S., had regard to material which was not

within his knowledge and without affording him an opportunity to make further

representations. Leave was granted to the applicant to apply for judicial review and after

considering the material on which reliance was placed by the Home Secretary, the court

concluded that the applicant had suffered no unfairness. Staughton L.J. stated that (at p. 5):

“The truth of the matter is that the inquires made by the Home Office, yielded

nothing or virtually nothing beyond what was before Mr. Mc Guire in Ms.

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Lindsay’s first affidavit, when he made his representations. There was virtually no

unfairness about that aspect of the procedure.”

18. It is of course not possible to come to such a conclusion here as the representations

received by the AG are yet to be disclosed. It seems to me that the appropriate approach is to

regard the failure of the Attorney General to disclose to the Appellants the representations

received by him from the DPP and the U.S. as a prima facie breach of the rules of natural

justice and to grant leave on that basis for judicial review. This would provide the AG an

opportunity, in discharge of his duty of disclosure, to put before the Court the

representations made so that the extent, if any, of the unfairness may be assessed.

19. Counsel for the AG however, contended that in deciding whether to return the

Appellants to the U.S., the AG is exercising a unique executive power given to him by

section 16 of the Act. The Court should only interfere where the exercise of that power does

not meet a minimum threshold of fairness. The Act does not provide that the AG is under an

obligation in the exercise of that function to receive any representations from the accused.

Therefore, what the AG did, by requesting representations from the Appellants were

imminently fair to them. He ought not to be held under any obligation to receive further

representations and counter representations. It was submitted that it should be left to the AG

to determine whether he required any further representation. However, implicit in his

decision letter is that he did not think that the representations before him raised any matter

which needed to be addressed any further by the Appellants. In those circumstances, it was

contended that the Court should hold that there was no arguable case that the Appellants

were denied any right of natural justice.

20. I do not accept Counsel’s submissions. In Civil Appeal No.60 of 2007 Ferguson and

Galbaransingh v The Attorney General and another, it was recognized by this court that

the AG’s decision under section 16 to return an accused to the requesting state is reviewable.

This was also stated to be so in Civil Appeal Nos. 49, 50, 52 and 53 of 2009 Leon Nurse v

The Commissioner of Prisons. In none of these cases was it contemplated that the review

would proceed on anything other than ordinary principles of judicial review.

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21. It is accepted that the function the AG exercises under section 16 of the Act is an

executive function, and it is said to be a unique executive function. While this may influence

the factors the AG considers in coming to his decision it cannot, in my judgment, influence

the basic requirements of fairness that an accused be permitted to see any new material that

may be raised against him and be allowed to comment on it. This must be so when it is

considered that the power in the AG to decline to order the surrender of an accused under

section 16 is considered to be an important safeguard built into the extradition process for the

benefit of the accused (see Civil appeal 60 of 2007, Ferguson and Galbaransingh v The

Attorney General at para 76). It would lose much of its importance as a safeguard, if the AG

were to exercise this function without affording an opportunity to the accused to be heard on

representations that may be adverse to him.

22. While the court will pay due regard to a statement by the AG that he has considered

all the material before him, it is an entirely different thing whether he has been fair to the

Appellants. Of that the Court, and not the AG, is the final arbiter.

23. Counsel stressed, during the course of his argument that there was no requirement

expressed in the Act for the AG, in the exercise of his section 16 function, to receive

representations from the accused. I however, cannot accept that this is of any advantage to

the AG in this case. I say so for two reasons. First, in my judgment, there must be read into

the Act a right on the part of the accused to make representations why he should not be

returned to the requesting state. Secondly, and in any event, having invited representations

from various parties it would be wrong for the AG not to permit the Appellants to address

any new representations adverse to them. If they are not given such an opportunity, it could

amount to a graver injustice than if representations were requested of no one.

24. None of the cases that were cited by the Counsel for the AG supports the proposition

that the AG is under any lesser obligation of fairness than that discussed above. Counsel

referred to two decisions also involving the Appellants and the AG. The first was the

decision of the Court of Appeal in Civil Appeal No. 60 of 2007, and the other, was the

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decision of the High Court in CV 2008 -00639. There is nothing in the judgments however

to point to the conclusion that Counsel advances.

25. Another case to which reference was made is Ex Parte Launder [1977] 1WLR 839.

That case seems to support a proposition contrary to that advanced by Counsel as the

decision maker “gave ample opportunity to the applicant to submit representations. He took

advice from the government of Hong Kong and he gave the applicant a further opportunity to

comment on that advice”. That is no more than what the Appellants advance should have

been done in this case.

26. Another authority on which reliance is placed was Ex Parte Pierson [1997] 3 WLR

492 where Lord Browne-Wilkinson said “there was no general principle yet established

where the courts have any right to quash administrative decisions on the simple ground that

the decision was unfair”. However that is taken from what was a minority judgment and in

any event the learned Law Lord was not referring to procedural fairness. There are indeed

numerous cases where administrative decisions have been set aside because of a breach of

the rules of natural justice. I see no reason why the rules of natural justice should not also

apply to this decision of the AG.

27. Counsel for the AG also submitted that there was a need for finality in decision

making and there was no need for never-ending dialogue. While I agree that the AG, as is

stated in Ramda, “is not required to be drawn in a never-ending dialogue whenever the

decision proves unacceptable”, this case is far from that. The concern does not arise on the

facts of this case. If it can be supposed that it could arise in this case, the AG is always, once

he thinks the process has ended its usefulness, in a position to end it. Of course that must be

subject to the right of the party to apply by way of judicial review to determine whether by

ending the process the AG acted fairly.

28. In my judgment therefore the judge was wrong to refuse leave to apply for judicial

review on this ground.

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29. I turn now to the second ground which is the bias ground. This relates to the role of

Mr. Lewis QC. It appears that Mr. Lewis is a barrister in private practice who was instructed

by the office of the AG to represent the requesting state before the courts in this jurisdiction

for the purpose of seeking the Appellants’ extradition to the U.S. In the affidavit filed on

behalf the Appellants it is stated that in relation to the extradition request in respect of the

Appellants, Mr. Lewis has:

“(i) Travelled to the requesting state prior to extradition request to liaise with

its officers in the formulation of the extradition request;

(ii) Appeared at the committal proceedings before the Chief Magistrate;

(iii) Appeared in the judicial review proceedings CV 2006-2959 and in the

Court of Appeal Civil Appeal No. 60 of 2007;

(iv) Appeared in habeas corpus proceedings CV 2008-2849 and CV 2008-2848

and the subsequent appeals to the Court of Appeal in Civil Appeal 108 of

2009 and the Board of the Privy Council”.

30. It is also alleged that:

“92. Subsequent to the submission of representations from the [Appellants]

herein in relation to the Respondent’s exercise of discretion under

section 16 of the Act, numerous reports were made in the press

purporting to quote advice provided by Mr. Lewis to the Respondent in

relation to the exercise of his discretion. In addition the Respondent was

reported in the media as having announced publicly that Mr. Lewis was

the chairman of his legal team providing advice to the Respondent.

93. The [Appellants] were understandably made apprehensive by these

reports in the media and promptly wrote to the Respondent on 9th

August 2010 asking him, inter alia:

To confirm the reports in the media that Mr. Lewis was acting for him.

The letter enclosed copies of the relevant media reports;

To clarify Mr. Lewis’s role with respect to the [AG] and in particular if

he had been retained by the AG and if, so upon what matters his advice

had been sought; and

To identify other legal advisors to the Respondent and whether they as

well represented or at any time represented the requesting state.

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94. The [Appellants] by this letter also advised the AG of Mr. Lewis’

previous role in the extradition proceedings and indicated their view

that his participation as an adviser to the [AG] was inappropriate.

95. The AG did not disclose the involvement of Mr. Lewis to the

[Appellants] as sought or at all.

97. Subsequently the AG held a press conference reports of which were

carried in the print media on 12th

October 2010. In these reports the

[AG] was reported as saying that he arrived at the determination of his

section 16 discretion in relation to the [Appellants] after having, inter

alia, received advice from Mr. Lewis with whom he had been in constant

contact…”

31. In those circumstances the Appellants claim that the involvement of Mr. Lewis raises

the irresistible inference that the decision of the AG is vitiated by bias and the appearance of

bias.

32. The Judge on this ground concluded that, on the evidence, she could not say that an

arguable case was made out. She stated that:

“There is no evidence before me to support the [Appellants’] contention that Mr.

Lewis QC acted on behalf of the U.S. Additionally Mr. Sinanan has denied that

this was in fact so.

In the circumstances therefore, the fact that the AG relied upon advice given to

him by Mr. Lewis is not a matter that I can take into account in determining that a

decision was arrived at or was actuated by apparent or real bias.”

33. I do not think that the evidence, on behalf of the Appellants, raises an arguable case

of real or actual bias. The Judge was therefore correct in that conclusion. The case for the

Appellants, however, is, in fact, built on allegations of apparent bias. The crux of the

Appellants’ case is that Mr. Lewis represented the interest of the U.S. in attempting to secure

the extradition of the Appellants. While the AG could turn to him in other matters he should

not have sought his advice on the exercise of the AG’s discretion under section 16 for the

return of the Appellants to the U.S. as this would give rise to an appearance of bias.

34. There is clearly evidence that establishes, at least on a prima facie basis, that Mr.

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Lewis represented the interest of the requesting state, as appears from the paragraphs of the

affidavit filed on behalf of the Appellants, which are quoted above. If more is needed

Counsel for the Appellants made reference to the ruling of the Chief Magistrate in the

extradition proceedings where the argument of Mr. Lewis on behalf of the requesting state

was referred to. There is also evidence, as is apparent from the quoted paragraphs, from

which the conclusion can be drawn, again on a prima facie basis, that Mr. Lewis advised the

AG on the exercise of his discretion under section 16. I therefore do not agree that the case of

the Appellants on this ground could properly have been dismissed at this stage on an

evidential basis and I think the judge was wrong to do so.

35. It was the submission of Counsel for the AG that as this is essentially an executive

decision and not a judicial or quasi-judicial one, the question of bias recedes into the

background. Even if it is correct to say that the AG’s decision was not a quasi-judicial one, I

do not agree that bias is of no significance. It has been held that the question of bias is of

general application in public law and is not limited to judicial or quasi-judicial bodies or

proceedings. (See R v Secretary of State for the Environment, ex parte Kirkstall Valley

[1996] 3ALL ER 304, 325). This is clearly correct. In any event, the decision of the AG

which impacts on the liberty of the Appellants should demand the highest standards of

rectitude and should not be tainted by bias or the appearance of it.

36. It is well established that those who sit in an advisory capacity to an adjudicating

body ought not to serve, or appear to serve, an adverse interest. (See R v Sussex Judices,

exparte McCarthy [1924] 1KB 256. So too is the test for the appearance of bias well

established. In Porter v Magill [2002] AC 357 it was held that the test is whether the fair

minded and informed observer having considered the facts would consider there is a real

possibility that the decision maker was biased (see also Privy Council Appeal 9 of 2003

Meerabux v The Attorney General). To relate this specifically to this case the question is

whether the fair minded and informed observer having considered the facts, would consider

that there was a real possibility that Mr. Lewis had improperly influenced the decision of the

AG. I think on the facts of this case the answer, at least on a prima facie basis, is in the

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affirmative. In my judgment, I think that this ground is clearly arguable and the Judge was

wrong to refuse leave to apply for judicial review on this ground.

37. The third and final ground advanced by the Appellants for leave to apply for judicial

review was that the decision is unreasonable and/or irrational. Before I elaborate on this

some background is appropriate and in this regard I refer to the evidence filed on behalf of

the Appellants.

38. In early 1990’s the Government of Trinidad and Tobago proceeded with construction

of a new airport terminal building at Piarco. This construction project is referred to in the

affidavit filed on behalf of the Appellants as the Piarco Airport Project. Overall responsibility

of the project was given to the National Insurance Property Development company Limited

(NIPDEC) and the Airports Authority of Trinidad and Tobago (AATT). The government,

NIPDEC and AATT enlisted the assistance of the Appellants in the project.

39. Commencing in 2000 there was a criminal investigation by members of the Trinidad

and Tobago police service. That investigation gave rise to two domestic prosecutions

colloquially known as Piarco No. 1 and Piarco No. 2.

40. In relation to Piarco No. 1 the Appellants were charged on or about March 22nd

2002,

with offences of obtaining by deception. The alleged offences arose out of the award of

contracts in relation to the Piarco Airport Project. The prosecution’s allegations specified the

giving and receiving of corrupt payments in exchange for the award of contract packages CP

3, 5, 6, 8 and 9.

41. In all seven other persons were charged along with the Appellants and after some 200

days of hearing and some 5 years had lapsed, the Chief Magistrate on July 9, 2007

discharged all of the original charges. On January 7, 2008 he then committed all the

defendants, including the Appellants, to stand trial in respect of three additional and seven

substituted charges, all of which related to the Piarco Airport Project. To date none of the

persons committed to stand trial has been indicted by the DPP.

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42. In relationship to Piarco No. 2 the most relevant charge was brought on May 7, 2004

by way of information number 6406 of 2004. The allegation was of a conspiracy to defraud

AATT, NIPDEC, the Government and public of this jurisdiction by the fraudulent

manipulation of the bid process in relation to a number of construction packages including

CP 9 and CP 13. The Appellants were charged along with 16 other persons. The committal

proceedings commenced on May 28th

2008 and were, as of the date of the affidavit filed on

behalf of the appellants, still ongoing. There have been approximately 153 days of hearing.

43. A total number of other charges (30 or more) have also initiated in this prosecution.

44. On January 9 2007 the DPP, by notice, discontinued charge number 6406 of 2004

against the Appellants. These charges however remain extant against the other defendants. A

further series of charges which also allege a bid rigging conspiracy is ongoing.

45. On November 29th

2005 the US prosecution authorities entered the stage. The US

prosecutor disclosed a grand jury indictment against the Appellants and others, which arose

out of an investigation by the US immigration and Customs Department into the award of

two contracts by AATT and NIPDEC in relation to the Piarco Airport Project. These are

contracts CP 9 and CP 13. The Appellants say that the US indictment alleges the same basic

misconduct as is subject to the prosecution in Piarco No. 2, that is to say, conspiracy to

defraud by the manipulation of the bid process in relation to CP 9 and CP 13.

46. On July 18 2006 there followed the request by the US for the extradition of the

Appellants. The AG issued the authority to proceed on July 20 2006. As I mentioned, there

were judicial review proceedings which challenged the authority to proceed but they were

dismissed and in 2008 the Appellants were committed to await their return to the US. On

October 8, 2010 the AG made an order for the return of the Appellants. The order for the

return of the appellants, as has been mentioned previously, has been made under section 16

of the Act. Under this section, the AG shall not make an order if it appears to him that on the

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grounds referred to under section 13 (3) it would be unjust or oppressive to return the

accused. So far as 13(3) is relevant to this appeal it provides that the AG may decline to order

the return of the Appellants if for any sufficient cause it would, having regard to all the

circumstances, be unjust or oppressive to return the person.

47. On October 9, 2010 in a letter addressed to Mr. Hosein S.C, the Attorney- at-law for

one of the Appellants, a summary of the reasons for the AG’s decision was set out. In the

letter it was stated that it was not the intention to deal with every issue that had been raised

but to identify the main reasons for the AG’s decision. The letter reserved the right to

supplement the reasons should that become necessary.

48. The letter addressed the issue of the appropriate forum for the trial of the Appellants

and noted that that was a key point in the representations that had been made to the AG. It

stated that the issue of forum only arises when the same conduct is justiciable and capable of

being tried in both Trinidad and Tobago and the U.S. It also noted that the issue of “overlap”

between the domestic charges and the U.S charges had been extensively debated. In relation

to Piarco No.1 the AG however could not see any issue of overlap between the domestic

proceedings and the conduct alleged in the request of the USA.

49. In relation Piarco No. 2 the AG noted that the previous DPP had stated that he was of

the opinion that the correct forum for the trial of the charges relating to construction

packages CP 9 and CP 13 (the conduct for which the US seeks extradition) is in the US and

said he had discontinued all the domestic proceedings relating to these matters. The AG also

noted that the present holder of the office of the DPP had agreed that all the domestic charges

in relation to CP 9 and CP 13 had been discontinued. In those circumstances the AG could

not see any substantial and meaningful overlap remaining.

50. The AG also referred to an undertaking of the DPP to discontinue the domestic

charges against the Appellants in relation to Piarco No. 1 and Piarco No. 2 in the event that

the Appellants were returned to the US in pursuance of the extradition request.

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51. The AG also made reference to the DPP’s view that there was now no possibility of

reinstating the discontinued charges in respect CP 9 and CP 13 in Trinidad and Tobago.

According to the AG this led to consequence that such conduct could only be tried in the US.

In those circumstances the AG stated that it appeared to him that the forum issue had

effectively disappeared

52. The AG however indicated that in the event he was wrong and there was substantial

overlap and, therefore, if he did not order the Appellants’ extradition, the DPP would

continue with the other domestic charges which adequately covered the criminality alleged in

the request, he approached the matter in the alternative assuming there to be substantial

overlap.

53. The letter stated that the AG had directed himself on the issue of forum by the

decision of the La Forest J, in US v Cotroni [1989] 1 S.C.R. 1469 but also took into account

the legal materials provided by the Appellants including the Eurojust Guidelines. He further

stated that he had taken into account the submissions and evidence for the Appellants and the

submissions and evidence for the USA in the extradition proceedings. He considered

representations made by the Appellants, the DPP and the USA. He also stated that he

considered the matter in the round but in the end found the reasons set out in the evidence of

Assistant US Attorney Gregorie filed in the extradition proceedings (as confirmed by the

representations of the USA) more compelling on the issue of forum than the representations

of the Appellants.

54. In the circumstances, the AG concluded that even if there were substantial overlap

between the proceedings in Trinidad and Tobago and those of the USA in respect of the

conduct for which the USA sought the extradition of the Appellants, the appropriate forum

for that conduct to be tried is the USA. He then stated that he did not think that it was wrong,

unjust or oppressive to return the Appellants to the US nor did he think there was any

sufficient reason to prevent their returning. Accordingly the AG decided to issue warrant for

the return of the Appellants to the US.

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55. The Appellants challenged the decision of the AG on the ground of

unreasonableness/irrationality. The Appellants submitted that the AG relied on a

representation of the DPP that was erroneous and that there was no proper explanation for the

decision.

56. The representation of the DPP to which reference is made is that the domestic charges,

which overlapped with the US charges and which have been discontinued by him, cannot be

reinstated. This the Appellants contented were wrong in law. The Appellants cited authorities

which supported the proposition that where the DPP enters a nolle prosequi that the accused

may be re-indicted. It does not operate as a bar to new proceedings on the same facts.

57. Counsel for the Respondent AG accepted the correctness of those authorities but said

that in this case the charges were withdrawn and it was not the case that the DPP entered a

nolle prosequi. He submitted that there was a greater degree of finality with a withdrawal.

But even in the case of a withdrawal, Counsel accepted that the charges could be re-instated.

Counsel however submitted that the DPP’s representation to the AG does not reflect a

proposition of law but rather something more in the nature of policy or a settled intention of

the DPP not to reinstate the charges, and the AG was correct to rely on it, because any

attempt to reinstate domestic charges would amount to an abuse of process which the

Appellants could successfully challenge. The Appellants may also have grounds to claim an

estoppel.

58. I however do not think at this stage it can be determined what the DPP intended when

he represented that there was now no possibility of reinstating the domestic charges. It seems

to be accepted that as a matter of strict law that could not be so. It may be that it is his settled

intention not to reinstate the charges or that the Appellants could claim an estoppel, or abuse

of process, if the charges were reinstated, but it is difficult without more to conclude that the

charges cannot be reinstated. Arguably therefore, by relying on the DPP’s advice or

representation that the domestic charges could not be reinstated the AG proceeded on a

wrong premise. If this is so, then his conclusion that the forum issue had effectively

disappeared is flawed.

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59. However the AG considered the matter not only from the point of view that there was

no overlap but on the basis also that there was substantial overlap. The judge had regard to

this and concluded that on that basis the AG’s decision could not be faulted.

60. The Appellants however contend that such a finding by the Judge was unreasonable

in the absence of any proper reasoning process by the Respondent as to why the issues should

not be tried in this jurisdiction. The absence of any analysis and weighing of the factors

relevant to the Cotroni principles make it arguable that the AG’s decision that it was not

unjust and oppressive to return the Appellants is unreasonable and irrational.

61. I accept as arguable the premise on which the Appellants’ argument is based and that

is, if the reasons of the AG do not adequately explain how his decision on forum is arrived at

so as to enable a proper understanding of it, then his decision on forum is arguably irrational

and unreasonable. As forum is critical to the issue whether it would be unjust and oppressive

to return the Appellants, then it would follow that his decision is unreasonable or irrational.

62. It has been argued that the AG is under no duty to give reasons for his decision.

However in a case such as this where he has chosen to give reasons, the reasons should

provide an adequate explanation. Further as the AG’s decision impacts on the fundamental

rights of the Appellants it is, in my judgment, appropriate to subject the decision to the most

anxious scrutiny to ensure that it is not flawed (see Bugdaycay v Secretary of State for the

Home Department [1987] 2WLR 606).

63. The Cotroni factors to which reference have been made are as follows:

• where was the impact of the offence felt or likely to have been felt,

• which jurisdiction has a greater interest in prosecuting the offence,

• which police force played the major role in the development of the case,

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• which jurisdiction has laid charges,

• which jurisdiction has the most comprehensive case,

• which jurisdiction is ready to proceed to trial,

• where is the evidence located,

• whether the evidence is mobile,

• the number of accused involved and whether they can be gathered together in one

place for trial,

• in what jurisdiction were most of the acts in furtherance of the crime committed,

• the nationality and residence of the accused, and

• the severity of the sentence the accused is likely to receive in each jurisdiction.

It is the Appellants’ argument that everyone of the Cotroni factors point in favour of this

jurisdiction being the appropriate forum.

64. It seems to me that a case can be made that the Cotroni factors favour this

jurisdiction as the appropriate forum. It is therefore arguable on the facts of the case before

this Court that this is the appropriate forum. This, seems to me, to require an explanation

from the AG as to how the Cotroni factors favoured the US. This however is not apparent

from the reasons of the AG. He said, of course, that he considered the various submissions,

representations and evidence but this does not amount to an explanation. What the reasons of

the AG seem to come down to, in the end, for favouring the US as the appropriate forum, is

that he found the reasons on forum set out in the evidence of Assistant United States

Attorney Gregorie filed in the extradition proceedings more compelling than the

representations of the Appellants.

65. Mr. Gregorie in an affidavit filed in the extradition proceedings, argued, on the basis

of the Cotroni factors, that the US is the appropriate forum. In doing so he stated, “which

jurisdiction is more appropriate to try a defendant only arises if the same charges can be tried

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in more than one jurisdiction.” The Appellants argue that the focus of the Gregorie affidavit

on the charges as opposed to the conduct is a narrowing of the Cotroni principles. I think

there is clearly merit in this submission and what is relevant is the conduct of the accused. It

is significant here to note that in the AG’s letter, it was stated that the issue of forum arises

if the same conduct is justiciable and capable of being tried in both this jurisdiction and the

US. That seems to me to be the appropriate approach.

66. If the focus is on the charges as opposed to the conduct of the accused that can impact

on some of the Cotroni factors. For example, in the Gregorie affidavit in relation to the

consideration which jurisdiction has the greater interest in prosecuting the offence, he

answered this with reference to the US charges and came, not unsurprisingly, to the

conclusion that the US is that jurisdiction. A different conclusion may be arrived at if it is

considered that the fraudulent activity itself occurred in this jurisdiction and that the

Appellants allegedly defrauded the Government and people of this country of significant

sums of money. It is therefore arguable that the Gregorie focus on the similarity of the

charges might have resulted in a skewed analysis. A simple acceptance of that analysis by

the AG without his own independent analysis could give rise to an argument that the AG’s

decision is irrational or unreasonable.

67. It is however relevant to note that the Cotroni factors specifically listed above are not

meant to be exhaustive when it comes to determining which is the appropriate jurisdiction for

the issues to be tried. In this regard, therefore, the Appellants draw reference to a number of

other factors that ought to have been considered by the AG on the issue of forum but appear

not to have been so considered. These include that the Appellants have already spent a

considerable amount of time and money defending charges against them in this jurisdiction

in relation to CP 9 and CP 13 before they were discontinued to make way for the US charges.

The criminal conduct alleged in the domestic charges in relation to CP 9 and CP 13 is that of

a bid rigging conspiracy which is also relevant to the US charges. Indeed it is accepted by the

US prosecuting authorities that it is not possible to prosecute the US charges without proving

the bid rigging of contracts CP 9 and CP 13. The Appellants also say that although the

domestic charges against them in relation to CP 9 and CP 13 have been discontinued they are

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still required to defend the domestic charges in their capacity as directors of their companies,

Northern Construction Company Limited and Maritime General Insurance Company

Limited. Further the charges in respect of CP 9 and CP 13 continue against other defendants,

this could result, if the Appellants are tried in the US, with different verdicts in respect of the

same criminal conduct.

68. The Appellants also submit that the AG appeared not to have paid any regard to the

guidance in the Eurojust Guidelines relating to early contact. The Guidelines underline the

importance of consultations at the outset of investigations between the requesting and

requested states. The Guidelines also suggest that a decision should be reached as early as

possible in the investigation and prosecution process and after full consultation with all the

relevant authorities in each jurisdiction. The Appellants contend that this did not appear to

happen in this case, or if it did, it was resolved with the decision for this jurisdiction to

proceed with the prosecution of the Appellants. In any event, the extradition of the

Appellants is inconsistent with the Guidelines, and they submit requires an explanation and

none is contained in the AG’s reasons.

69. I agree that these other matters raised by Appellants point also to this jurisdiction

being the appropriate forum and by failing to explain them away, his decision is arguably

open to challenge.

70. In the circumstances, in my judgment the Appellants have an arguable case on the

ground of irrationality and unreasonableness and the Judge ought not to have refused leave in

that regard also.

71. In my judgment the three grounds advanced in the Court below are arguable grounds

for judicial review that have a realistic prospect of success. The Judge was therefore wrong

to refuse the application for leave to apply for judicial review. Before this Court however the

Appellants argued a further ground that does not appear to have been argued below.

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72. The further contention of the Appellants is that the issue of forum impacts on the

fundamental rights, namely; the right to liberty, security of the person, the right to freedom of

movement and the right to respect for one’s private and family live. The Appellants, in an

appeal heard together with this one, have challenged the constitutionality of certain

provisions of the Act contending that they infringe their fundamental rights. Those

challenges have failed and this Court has decided that the Appellants fundamental rights are

not infringed by the impugned provisions which relate essentially to the admissibility of

evidence under the Act and its impact on the role of the Magistrate in the extradition

proceedings before the Magistrate. The Appellants say, however, that it was necessary for

the Attorney General, in deciding the issue of forum, to consider whether, in the

circumstances of this case, extradition is in accordance with the Appellants’ fundamental

rights. They contend that when a domestic prosecution is possible, consideration must be

given to whether that is a more proportionate interference with an individual’s fundamental

rights.

73. This argument of the Appellants raises the issue of proportionality. In R. v.

Secretary of State for the Home Department, Ex Parte Daly [2001] UKHL 26 Lord Steyn

explained the differences between a review on proportionality grounds and one based on

traditional grounds of review. He stated: (at para. 27)

“The starting point is that there is an overlap between the traditional grounds of

review and the approach of proportionality. Most cases would be decided in the

same way whichever approach is adopted. But the intensity of the review is

somewhat greater under the proportionality approach. Making due allowance for

important structural differences between various convention rights… a few

generalisations are perhaps permissible. I would mention three concrete

differences without suggesting that my statement is exhaustive. First, the doctrine

of proportionality may require the reviewing court to assess the balance which the

decision maker has struck, not merely whether it is within the range of rational or

reasonable decisions. Secondly, the proportionality test may go further than the

traditional grounds of review in as much as it may require attention to be directed

to the relative weight accorded to interests and considerations. Thirdly, even the

heightened scrutiny test developed in R. v Ministry of Defense Ex P. Smith… is not

necessarily appropriate to the protection of human rights.”

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74. The proportionality test as a test for the constitutionality of an act where it is

challenged on the basis that it infringes the rights guaranteed by sections 4 and 5 of the

Constitution was set out in Privy Council Appeal 84 of 2006 Suratt and others v The

Attorney General. In the majority judgment of the Privy Council delivered by Baroness

Hale, it was noted (at para 58) that the fundamental rights may be limited by legislation

provided it pursues a legitimate aim and is proportionate to it. (see also Public Service

Appeal Board v Omar Maraj [2010] UKPC 29). To my mind, this is a complete answer to

the contention of the Appellants that the AG omitted to consider the effect of their extradition

on their fundamental rights and freedoms which they have alleged have been beneficial. The

point is that it has been decided in the constitutional appeal heard together with this appeal,

that the extradition of the Appellants does not infringe their rights to freedom of movement

or any of the so called unqualified rights on which the Appellants place reliance.

75. In Cotroni, supra, it was stated by La Forest J, in giving the majority judgment of the

court, that the authorities must direct their minds to whether prosecution will be equally

effective in the requested state, given the existing domestic laws and international

cooperative arrangements. To my mind it then becomes an issue for the AG to determine

whether the extradition of the Appellants, in the particular circumstances of this case, should

be ordered. The AG is required to rationally consider this as I have previously indicated.

76. In the circumstances, I would allow this appeal and grant leave to the Appellants to

apply for judicial review of the AG’s decision to order their return under section 16 of the

Act. I also grant a stay of the AG’s decision to return the Appellants to the US pending the

hearing and determination of the application for judicial review. I will hear the parties on the

question of costs.

Dated the 17th

day of December, 2010

Allan Mendonça

Justice of Appeal