The Judicial Committee of the Privy Council has handed down its advice in Jean-Charles v The Attorney General of The Bahamas and ors [2022] UKPC 51. The decision establishes that a constitutional challenge may be made in an action for habeas corpus and that separate legal proceedings are not required.

Mr Jean Charles was arrested and detained by officers of the Bahamas Immigration Department and then expelled to Haiti without being charged with any offence or taken before any court, and without any detention or deportation order having been made in respect of him under the provisions of the Bahamas Immigration Act.

An application for a writ of habeas corpus was made on his behalf. An application for constitutional relief was then made in the alternative. The judge dismissed the writ of habeas corpus because Mr Jean Charles had already been expelled to Haiti but granted constitutional relief, requiring the state parties to facilitate his return to The Bahamas.

The judge’s decision was set aside on appeal. The Court of Appeal held that an application for a writ of habeas corpus should always remain a discrete action and that the judge ought to have required the applicant to institute new proceedings if he wished to seek constitutional relief. It also held that there was uncertainty over whether Mr Jean Charles was in fact the person expelled to Haiti and that the judge ought to have adjourned to permit the state parties to adduce evidence on various issues of fact.

The Board held that it was erroneous to require an applicant in an action for habeas corpus to bring a separate action to seek constitutional relief, or to hold that evidence produced in the habeas corpus proceedings was not available for the purposes of the constitutional motion. It reiterated that the rights enshrined in the Constitution of The Bahamas should be given a liberal interpretation in order to give individuals the full measure of the rights and freedoms which it confers, and that a person who alleges that his or her fundamental rights are threatened or have been contravened should have unhindered access to the court.

The Board remitted the matter for retrial following further evidence whilst questioning whether there would turn out to be much substance in several of the alleged factual disputes, including in particular the identity of the appellant and whether it was he whom the authorities removed to Haiti.

Mr Jean Charles was represented by Adrian de Froment, led by Edward Fitzgerald KC (Doughty Street) and Frederick Smith KC and R. Dawson Malone of Callenders & Co and Simons Muirhead Burton LLP.

To view the judgment of the JCPC please click here.