ANDREW AVELLINE BENNETT v GOVERNMENT OF THE UNITED STATES OF AMERICA ATTORNEY GENERAL OF BELIZE

Summary. This appeal from Belize concerns the constitutionality of the use of WhatsApp messages as evidence in extradition proceedings against the Appellant. In 2017, the United States of America made a request for the extradition of Mr Bennett, an attorney at law, pursuant to the Extradition Treaty between the Government of the United States of America and the Government of Belize. The evidence on which the request was predicated included WhatsApp messages between the Appellant and a Special Agent from the United States Drug Enforcement Administration, in which the Appellant allegedly incriminated himself. This evidence was challenged by the Appellant who contended that its use without prior judicial authorisation was illegal and a criminal offence under the Interception of Communications Act, CAP 229:01 and violated his rights under the Belize Constitution. That argument was upheld both by the High Court and Court of Appeal. However, the courts decided there was other untainted evidence which supported the extradition request by the United States of America. On appealing this decision, the Appellant argued that the unlawfully obtained evidence vitiated the entire proceeding and to proceed with the extradition request with the remaining evidence would amount to an abuse of process. At this Court, it was discovered at the stage of written submissions that the Interception of Communications Act only came into force in November 2023, after the dates of both the High Court and Court of Appeal cases. The CCJ accordingly declared that the reliance on that statute by the lower courts was an error in law or per incuriam, as historically described in a Latin expression. The Appellant sought, notwithstanding this discovery, to have the CCJ decide the appeal on the basis that the use of the WhatsApp messages was unconstitutional on broader, generally recognised principles. The bench rejected that approach and determined that the asserted but not fully argued issue of unconstitutionality on a broader non-statutory basis could only be fairly resolved by remitting the matter to the High Court, giving the parties the fullest opportunity to pursue these arguments if they chose to do so. Justice Eboe-Osuji added a concurring opinion, clarifying that, in his view, the appeal was being remitted to the High Court because of the importance of the questions posed by the CCJ Justices during the appeal hearing. He also discussed the importance of questions from the bench beyond the submissions of counsel, as well as the related doctrine of jura novit curia. Having regard to the opinions expressed the Court ordered that the matter be remitted to the High Court. Cases referred to: A v France (1993) 17 EHRR 462; Apsara Restaurants (Barbados) Ltd v Guardian General Insurance Ltd [2024] CCJ 3 (AJ) BB; August v R [2018] CCJ 7 (AJ) BZ, [2018] 3 LRC 552; Bagosora v Prosecutor (Judgment) ICTR-98-41-A (14 December 2011); Bank of India v Trans Continental Commodity Merchants Ltd [1982] 1 Lloyd’s Rep 427; Bayarri v Argentina (Preliminary Objection, Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 187 (30 October 2008); Bennett v Government of the United States of America (BZ CA, 18 August 2023); Bennett v Government of the United States of America (BZ SC, 25 July 2021); Carpenter v United States 585 US 296 (2018); Case Concerning the Payment in Gold of Brazilian Federal Loans Contracted in France (France v Brazil) (Judgment) [1929] PCIJ Series A No 21; Case of the Free Zones of Upper Savoy and the District of Gex (France v Switzerland) (Judgment) [1932] PCIJ Series A/B No 46; Case of the SS “Lotus” (Judgment) [1927] PCIJ Series A No 10; Corp of Hamilton v A-G of Bermuda [2026] 1 LRC 272 (BM PC); Fisheries Jurisdiction (Federal Republic of Germany v Iceland) (Merits) (Judgment) [1974] ICJ Rep 175; Fisheries Jurisdiction (United Kingdom v Iceland) (Merits) (Judgment) [1974] ICJ Rep 3; Gaertner v Minister of Finance 2014 (1) SA 442 (CC); Garc