Earl 'Bob' Hodge

Photo Credit: BVI Platinum News

Earl 'Bob' Hodge

Photo Credit: BVI Platinum News

The Government through the Attorney General's (AG) Chambers has filed an appeal to High Court Judge, Justice Albert Redhead's September 17 ruling against the extradition of Earl Delville Hodge known as 'Bob Hodge' to North Carolina to face drug charges.

BVI Platinum News understands that the appeal was filed by the AG, Dr. Christopher Malcolm on Wednesday, October 17.

On September 17, two months after hearing arguments, Justice Redhead ruled against extraditing the five men wanted by the United States for a Florida request and Hodge alone for a North Carolina request in relation to an alleged drug ring. The other men are Customs Officer Roberto Harrigan known as 'Tico'; Chad Skelton; Carlston Beazer; and Juan Valdez.

In the appeal, it was clearly stated that it relates only to the judgment of Justice Redhead in relation to the request of the Government of the United States relating to the crimes alleged in North Carolina.

According to the appeal for convenience and by consent, the case was heard together with proceedings pursuant to a request by the Government of the United States of America in relation to an indictment in Florida; however, the judgment so far as it relates to the Florida proceedings is not the subject of the appeal.

The appeal against Justice Redhead's decision is based on three grounds where they are essentially seeking that the Court of Appeal set aside the judgment of Justice Redhead; that the order of the Senior Magistrate Valerie Stephens committing Hodge to custody be restored; and that the order for costs in favour of the Respondent/Applicant Earl Hodge be set aside.

According to the grounds of the appeal, the decision of the Judge that Hodge's committal was a nullity was wrong as a matter of law because among other things, the Judge held that the Authority/Order to Proceed issued by His Excellency the Governor on October 27, 2011 was a nullity as it referred to an incorrect section of the statute, whereas the Appellants [Prosecution/AG] contended that on the true construction of the law, the Authority/Order to Proceed was valid.

The appeal further stated that the Appellants now maintain that His Excellency properly exercised the authority he indisputably had; and no miscarriage of justice was occasioned by the purported defect. The appeal stated that the defect, if any, was immaterial and of no effect.

According to the appeal, the Appellants also now maintain that the Magistrate's function and decision would have been no different had Section 9(8)(a) of the Extradition Act 1989 not been identified. Further, in any event, this erroneous reference section could have been severed without affecting the validity of the Magistrate's decision.

The appeal further stated that the decision of the Judge that the proceedings were an abuse of process, in that the appropriate forum to try Hodge was the Territory of the Virgin Islands and not the requesting state, was wrong in law and unreasonable in the Wednesbury sense given that the Judge failed to take into account or to sufficiently take into account that the court's power to stay proceedings in this regard ought only to be exercised in exceptional cases.

Furthermore, the AG is contending that the Judge did not or did not sufficiently consider the legitimate aims of extradition or the proportionality of the request and did not balance or properly balance the competing considerations in this case. "And the Appellants now contend that the Learned Judge was required, if he were to have properly embarked on this exercise, to consider these factors and consider also that no reasonable tribunal could have properly conclude that, on the evidence before him, the proceedings should have been stayed."

Furthermore, the AG is contending that the Judge failed to take into account that in the North Carolina request, no evidence was tendered or submissions made that the proceedings ought to be stayed on the basis of forum until skeleton arguments were served on the Appellants shortly before the hearing of the application for habeas corpus.

According to the appeal, the Judge concluded or appeared to have concluded that Hodge was entitled to trial by jury in the British Virgin Islands, whereas the appellants contend that this was not a relevant consideration in the proceedings and in any event, this determination impinged upon a prosecutorial decision that would properly be within the purview of the Director of Public Prosecutions.

Alternatively, the Appellants contend that the Learned Judge ought not to have made such a declaration except on the basis of an evidential foundation and after having accorded the requesting state the opportunity to call evidence as to the appropriate forum for trying the case.

The AG through the appeal stated that the trial Judge erred in his implicit finding in relation to the North Carolina request, that there was insufficient evidence before the Magistrate to support her finding that there was a case to answer.

"The Magistrate had been entitled to and did properly find that that there was sufficient evidence to show that the offences specified in the Order to Proceed had been committed in, and in relation to, North Carolina, and she was obliged by the provisions of the Extradition Act 1989 to commit the Respondent/ Applicant Earl Hodge to custody on these charges..."

Meanwhile, the local charges against the five men were discontinued and a fresh extradition request was issued by the US Government in relation to the Florida request last week and a hearing for the extradition request will take place on November 2 when they reappear in court.