By NICO SCAVELLA
Tribune Staff Reporter
THE Court of Appeal has ordered extradition proceedings to continue against a man wanted in the United States on a drug charge after dismissing his appeal of a Supreme Court judge’s decision not to transfer the matter to another magistrate on the grounds of alleged bias.
Appellate judges Jon Isaacs, Stella Crane-Scott and Roy Jones, in a written ruling, ordered Roscoe Thompson’s extradition proceedings be remitted to the Magistrate’s Court for continuation of the committal hearing, and that the stay of those proceedings pending the Court of Appeal’s ruling on the matter be lifted.
Noting Thompson “may not be entirely comfortable” with their decision, the appellate judges said they found “no error of principle” in Supreme Court Justice Bernard Turner’s decision to refuse Thompson’s application to remove his case from before the magistrate on the ground of apparent bias.
The judges further charged that Thompson established nothing before them to find Justice Turner fell into error when he did not accede to Thompson’s recusal application.
The US government wants Thompson for an alleged conspiracy to distribute dangerous drugs – some five kilos of cocaine – within its borders, which it says are extradition offences.
The charge was filed against the Wemyss Bight, Eleuthera, native in September 2007 and the extradition request filed in January 2012.
According to the ruling, the extradition proceedings began on February 11, 2014, before then acting Chief Magistrate Andrew Forbes, now an acting Supreme Court judge.
At the close of the Crown’s case against Thompson, his attorney made a no-case to answer submission, to which the Crown responded. The matter was adjourned for roughly a month for the magistrate to consider the submissions.
On May 13, 2016, the magistrate ruled there was a case for Thompson to answer, and he consequently committed Thompson to prison to await his surrender to the US without enquiring if he wished to lead a defence.
Within 20 minutes of the error being brought to the magistrate’s attention by Elliot Lockhart, QC, who was holding brief for Thompson’s attorney Murrio Ducille, the magistrate revoked his ruling, cancelled his order to commit and advised Thompson that his bail continued. The magistrate then set July 6, 2016, as a court date.
On the adjourned date, the matter did not continue due to the indisposition of Thompson’s counsel. However, on May 18, 2016, Thompson applied to the Supreme Court for an order pursuant to Section 51(1)(a) of the Criminal Procedure Code to move his case before another magistrate.
Justice Turner heard the matter and refused the relief sought by Thompson after finding the magistrate showed no bias nor deprived the applicant of a fair hearing.
Thompson then appealed Justice Turner’s decision on one ground, namely that Justice Turner “erred in law” via his ruling despite the magistrate’s “obvious pre-determined position” towards the matter, demonstrated by him committing Thompson “without having heard his defence”.
Mr Ducille contended the magistrate, via his actions, demonstrated that he “formulated views, premature or otherwise, about the evidence or about the case for the appellant.”
Crown prosecutor Anthony Delaney submitted in turn that the fact the magistrate acted immediately to rectify his error “would not lead a fair minded and informed observer to conclude there was a real possibility or real danger that the magistrate was biased”.
The appellate judges said however that while extradition proceedings are not entirely similar to a preliminary inquiry of a trial, “sight should never be lost” that extradition proceedings “do not play by the exact same rules as a trial or a preliminary inquiry”.
The ruling further noted that the role of a magistrate in such proceedings is “merely to determine whether the evidence adduced in support of the charge discloses an extradition offence and would be sufficient to warrant the trial of the fugitive for that offence”.
“At first blush, it would appear that the magistrate failed to consider the appellant’s case at the close of the respondent’s case but that is to ignore the fact that counsel for the appellant made a no case to answer submission on behalf of the appellant,” Justice Isaacs said in the ruling. “By doing so, he was given the opportunity to make representations to the magistrate as to why he should not be surrendered.
“I readily accept that the magistrate should have gone further following the decision on the no case submission to enquire of the appellant if he wished to lead a defense; and if the response was in the affirmative, to take any evidence the appellant may have wished to place on the record for use at his trial in the requesting state.
“Nevertheless, the magistrate adjourned the proceedings for the purpose of the appellant putting his case before the court; hence, he has not lost that opportunity to do so.”
The appellate judges also noted that while everyone is entitled to a fair hearing by an impartial tribunal in accordance with Article 20(1) of the Constitution, allegations of bias are raised “too often by persons dissatisfied with decisions of a court”.
Ultimately, the appellate judges found that nothing had been established by Thompson to cause them to find that Justice Turner fell into error when he did not accede to Thompson’s application to remove his case from the Magistrate’s Court.