| The Bahamas — Extradition — Committal proceedings — Whether Court of Appeal having jurisdiction to entertain appeal against grant of habeas corpus — Whether Privy Council required to follow own previous decision even if incorrect
Gibson v Government of the United States of America
PC: Lord Hoffmann, Lord Woolf, Lord Scott of Foscote, Lord Carswell, Lord Brown of Eaton-under-Heywood, Lord Mance and Sir Christopher Rose: 23 July 2007
{The principle of stare decisis was not absolute and the Privy Council should exercise its power to depart from precedent if it concluded that one of its own previous decisions was incorrect, even if that incorrect decision could no longer be regarded as impeding the proper development of the law.
The Privy Council so held by a majority (Lord Hoffmann, Lord Carswell and Lord Mance dissenting) allowing an appeal by the applicant, Lemuel Gibson, from a decision on 22 January 2003 of the Court of Appeal of the Bahamas (Sawyer P, Churaman and Ibrahim JJA) that it had jurisdiction to entertain an appeal by the respondents, the Superintendent of HM Prison and the Government of the United States of America, from a decision of Isaacs J on 5 February 2002 granting the applicant a writ of habeas corpus.
LORD BROWN OF EATON-UNDER HEYWOOD delivering the majority decision of the Board, said that the magistrate committed the applicant and two other applicants, Cartwright and Knowles, to custody to await extradition to the USA, All three successfully applied for habeas corpus. The Government of the USA appealed under section 11(5) of the Extradition Act 1994 although section 11(5) provided for an appeal against a refusal of habeas corpus but not for an appeal against its grant. The Court of Appeal ruled that it had jurisdiction to hear the matter. Cartwright and Knowles appealed to the Privy Council who by a majority of three to two dismissed the appeal and held that in substance the judge had been making an order for certiorari and that the judge had based his decision on judicial review so that there was a right of appeal against his order: Cartwright v Superintendent of HM Prison [2004] 1 WLR 902. The issues in the present appeal were, first whether the applicant’s case was distinguishable from those of Cartwright and Knowles; second, if it was not, whether the decision of the Privy Council in that case was correct; and third, whether even if incorrect, it should nevertheless be followed. As to the first issue, the applicant’s case was indistinguishable from those of the other two. As to the second issue, each of the seven members of the Board as presently constituted were of the clear view that the minority opinion in the Cartwright case was correct and that the Court of Appeal had no jurisdiction to hear the appeal of the US Government in these cases. It was impossible nowadays to argue that on an application for habeas corpus in extradition proceedings the court was confined to a review of the formal validity of the detention order and could not, except by certiorari, inquire into its substantial merits. The third issue was the difficult one. Stare decisis was an important principle for certainty and finality. But the principle was not absolute. In the Privy Council it never was. And since the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 the House of Lords too had been free to depart from its own previous decisions. Their Lordships rejected the view that the habeas corpus application ought certainly to have failed and the erroneous decision in the Cartwright case had fortuitously enabled the Bahamian Court of Appeal to correct a serious miscarriage of justice. Their Lordships’ task was to ensure justice according to law. According to law the Court of Appeal had no jurisdiction to entertain the USA’s appeal however meritorious that appeal was. The Board should not now shrink from saying so.
Lord Hoffmann, Lord Carswell and Lord Mance, dissenting, said that the decision in Cartwright was not impeding the proper development of the law since it had been adopted by the legislature of the Bahamas which had amended the 1994 Act to give a right of appeal against a decision to grant habeas corpus as well as to refuse it. The decision of the majority would encourage attempts to revisit cases decided by a narrow majority. It was not a proper case in which to exercise the power to depart from precedent.
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