By LAMECH JOHNSON
Tribune Staff Reporter
ljohnson@tribunemedia.net
THE EXTRADITION-case of accused drug lord Melvin Maycock Sr and others should go back to the Magistrate’s Court, the London-based Privy Council ruled yesterday.
The 28-page ruling was delivered by Lord Mance concerning the legality of the Listening Devices Act, as the evidence in this case was obtained through such means.
In May 2013, then Deputy Chief Magistrate Carolita Bethell ruled that there was sufficient evidence for the men to answer with respect to allegations of their involvement in a multi-national drug smuggling organisation, as alleged by the US government in 2004 when the request was made.
However, Maycock Sr, his son, Melvin Jr, Trevor Roberts, Gordon Newbold, Sheldon Moore, Devroy Moss, Shanto Curry, Lynden and Brenden Deal, Torry and Larran Lockhart, Wilfred Ferguson, Derek Rigby and Carl Culmer have since appealed the magistrate’s ruling with a habeas corpus application to the Supreme Court.
The appeal to the Privy Council on the legality of the Listening Devices Act, was lodged by Newbold, Curry, Moore, Roberts, Moss and Maycock Sr and was heard on February 12 and 13 of this year.
Yesterday, Lords Mance, Sumption and Hughes noted the six questions referred by the magistrate at the time concerning the issue raised in the appeal.
“(1) Whether to pass the test of constitutionality, a document purporting to be an authorisation given by the Commissioner of Police to the police office to use a listening device in accordance with section 5 (2) of the Listening Devices Act must, in order to authenticate itself in law, in manner and in form, provide or specify the following particulars; (a) the identity of the person authorised to use a listening device to conduct an investigation into an offence being committed, (b) the date as from when such authorised use of a listening device was given, (c) the offence that has been committed or that is about to be, or is reasonably likely to be committed, it being the very reason for the authorised use of a listening device in the police officer’s conduct of the investigation.”
“(2) If the answer to question (1) is in the affirmative, whether the authorisations comply in such a manner and form as required by law.”
“(3) If the answer to question (2) is in the affirmative, whether the use now known to have been made of the authorisations as given is lawful.”
“(4) Whether to pass the test of constitutionality, the power to authorise the use of a listening device to ‘hear, listen and record’ a private conversation in accordance with section 5(2) of the Listening Devices Act, may lawfully avail any authority or person for its or his/her use or purpose at their absolute discretion or for any use or purpose without prior judicial supervision.”
“(5) Whether the law as represented and regulated by the provision of the Listening Devices Act, particularly by section 5(2) therefore, satisfies a quantitative test in that it provides essential safeguards and protections consistent with the rule of law in a democratic society.”
“(6) Whether or not the powers and discretion availing the Commissioner of Police under section 5(2) of the Listening Devices Act violate Article 23 of the Constitution.”
Article 23 of the Bahamas constitution refers to the “protection of freedom of expression” and notes that “except with his consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this Article the said freedom includes freedom to hold opinions, to receive and impart ideas and information without interference, and freedom from interference with his correspondence”.
If further states that “nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question makes provision - (a) which is reasonably required- (i) in the interests of defence, public safety, public order, public morality or public health; or (ii) for the purposes of protecting the rights, reputations and freedoms of other persons, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating telephony, telegraphy, posts, wireless broadcasting, television, public exhibitions or public entertainment; or (b) which imposes restrictions upon persons holding office under the Crown or upon members of a disciplined force, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”
The Judicial Committee of the Privy Council (JCPV) noted that the first three questions raised by the magistrate speaks to the requirements laid out by the Listening Devices Act, while the remaining ones fundamentally questions the constitutionality of the LDA itself.
The JCPC, in its judgement, answered yes, yes and no respectively to questions 4, 5 and 6.
And while the judges were of the view that questions no 1 and 2 were also answered in the affirmative, it noted that regarding question 3, “assuming that the magistrate has not already made findings about this, it is no doubt open to the appellants to seek to investigate further during the extradition proceedings, whether the limits of the authorisations were observed.”
“The consequences, if it proves that they were not, are not dealt with by the LDA” the ruling noted, adding that they were a matter of general law.
The JCPC concluded that it “will humbly advise Her Majesty that the case should be remitted to the magistrate for the continuation of the extradition proceedings on the basis of this judgment.”
The full ruling can be seen online at the JCPC’s website http://jcpc.uk/index.html.
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