PC Appeal No 69/2005

IpsofactoJ.com: International Cases [2007A] Part 9 Case 4 [PC]


(from the Court of Appeal of The Bahamas)


Lemuel Gibson

- vs -

Government of the

United States of America








23 JULY 2007


Lord Brown of Eaton-under-Heywood

(delivered the majority judgment of the Board)

  1. The government of the United States of America ("the USA") seeks the extradition of Lemuel Gibson ("the appellant") from The Bahamas to stand trial on drugs charges in Florida. The circumstances in which he now appeals against his committal to await such extradition are as follows.

  2. On 8 December 2000 the appellant, Samuel Knowles and Frank Cartwright were indicted by a federal grand jury on charges of conspiracy to import and distribute large quantities of cocaine and marijuana into the USA. On 22 January 2001 the USA requested the three men's extradition and, following their arrest, authority to proceed against them was promptly given by the Attorney General of The Bahamas. On 5 October 2001, after a two-day hearing in June, the magistrate (Mrs Carolita Bethel), pursuant to section 10(5) of the Extradition Act 1994 ("the 1994 Act"), committed the three men to custody to await extradition. The evidence upon which the USA (the requesting state) principally relied was an affidavit from an accomplice, Herbert Hanna, who gave a detailed and damning account of the three men's close involvement in the conspiracy. Thousands of lbs of cocaine were found, millions of US dollars in cash.

  3. On committing the men to custody the magistrate told them of their right to apply to the Supreme Court for habeas corpus. This was pursuant to section 11(1) of the 1994 Act:

    Where a person is committed to custody under section 10(5), the court of committal shall inform him in ordinary language of his right to make an application to the Supreme Court for habeas corpus ....

    On 17 October 2001 the three men each applied for habeas corpus and these applications (together with judicial review proceedings issued on 14 December 2001 upon the judge's own suggestion) were heard by Isaacs J in the Supreme Court on 5 February 2002. At the conclusion of the hearing the judge ordered writs of habeas corpus to issue with a return date of 26 February 2002, the men meanwhile to be released on bail subject to sureties. The final order of habeas corpus was duly made on 26 February 2002 when the three men were released unconditionally. On 5 February the judge had ruled:

    I find that the orders of committal are void. In the premises the writs must issue and the applicants [be] released. And I so order. I do not here make any determination in respect of the certiorari applications upon the view I have taken on the habeas corpus applications.

  4. The judge's order was based upon his finding "that the magistrate erred in law when she held that the evidence of Hanna was direct evidence and, hence, admissible as evidence of the applicants' participation in a conspiracy with him." This finding itself was based upon the form of words used by Mr Hanna in his affidavit as a prelude to giving his detailed account of the conspiracy: "I am a source of information for the US Drug Enforcement Administration .... On August 9, 2000, I provided the following information ...."

  5. As the Board was later to observe (when dealing, as will shortly be explained, with an appeal by the appellant's two co-accused), this was "an astonishing conclusion"; indeed, no court has since suggested that it could possibly be supported. Their Lordships readily acknowledge that it produced a serious miscarriage of justice. The critical question arising, however, is whether or not this injustice could be corrected. Did the USA have a right of appeal?

  6. Section 11(5) of the 1994 Act provided that:

  7. An appeal shall lie to the Court of Appeal against the refusal of an application made under subsection (1) for an order of habeas corpus ....

    In short, it provided for an appeal against a judge's refusal to grant habeas corpus but not for an appeal against its grant. This provision notwithstanding, the USA on 12 February 2002 gave notice of appeal to the Court of Appeal against the order of 5 February 2002 for the issue of writs of habeas corpus, invoking for the purpose section 17(3) of the Court of Appeal Act as amended:

    Any person aggrieved .... (a) by any declaratory order, order of mandamus, order of prohibition or order of certiorari made by the Supreme Court in any proceedings .... may appeal to the court against any such order .... on any ground of appeal which involves a point of law or of mixed fact and law ....

  8. The USA argued that, properly analysed, the judge here had in fact been exercising a judicial review function and that accordingly the Court of Appeal had jurisdiction to entertain the appeal. The Court of Appeal (Sawyer P, Churaman and Ibrahim JJA) accepted this argument and on 22 January 2003 allowed the USA's appeal and restored the magistrate's orders for committal (initially against Knowles and Cartwright and then later, following his arrest on 9 February 2005, against the appellant too).

  9. Knowles and Cartwright appealed to the Judicial Committee, the critical issue again being whether or not the Court of Appeal had had jurisdiction to entertain the USA's appeal. By a majority of three to two the Board (Lord Steyn, Sir John Roch and Sir Swinton Thomas, Lord Hoffmann and Lord Rodger of Earlsferry dissenting) – Cartwright v Superintendent of HM Prison, [2004] 1 WLR 902 – dismissed the appeal, concluding on the facts that section 17(3) of the Court of Appeal Act was applicable. In giving the opinion of the Board Lord Steyn said (para 5) that "[t]he correct approach is to ask, against the relevant context, what the legal effect of the pronounced decision is", before concluding (para 19):

    [The Court of Appeal's] view [that in substance the judge had been making an order for certiorari] is reinforced by the judge's conclusion that 'I find that the orders of committal are void'. The judge was in effect making a declaration that the orders of committal were void. From that decision it followed that the state was no longer entitled to detain the applicants. The judge had based his decision on judicial review. Accordingly there was a right of appeal against the critical order.

  10. The dissenting minority (para 38) said this:

  11. Even if the judge (contrary to his express statement) is to be treated as having made an order of certiorari, we do not see how that helps the applicants. That only means that he made two orders: a deemed order of certiorari and an actual order that habeas corpus should issue. The applicants may have been entitled to appeal against the first. But that does not enable them to set aside the order for release unless they can also appeal against the second.

    The minority then applied the same reasoning to the Board's suggestion that the judge should be treated as having made a declaratory order.

  12. As already indicated, the appellant was still at liberty at the time of the Court of Appeal's judgment on 22 January 2003 and it was not applied to his case until after his arrest on 9 February 2005. By then, of course, it had been upheld by the Board as against Knowles and Cartwright. On 3 November 2005 the appellant himself obtained leave to appeal to the Judicial Committee.

  13. Three issues now arise before their Lordships.

    • First, is the appellant's case distinguishable from that brought by Knowles and Cartwright?

    • Second, if not, is the decision of the (majority of the) Board on 10 February 2004 (the decision in Cartwright) correct?

    • Third, even if incorrect, should it nevertheless be followed?

  14. The first issue can be speedily disposed of. Mr Knowles seeks to distinguish the appellant's case from that of his two co-accused by reference to an order for habeas corpus signed by Isaacs J bearing the date 26 February 2002 but in fact prepared by the appellant's attorney, placed by him ex parte before the Court and signed by the judge in February 2005 following the appellant's re-arrest.

  15. The argument is a hopeless one. Not only is there nothing to suggest that the draft order was even shown to (let alone agreed by) the USA's attorney, or that the judge's attention had been drawn to the judgment of the Board in Cartwright, but, conclusively, the USA's appeal against the order had already been allowed so that whatever order had previously been made by the judge was long past any process of perfection or correction.

  16. The second issue requires somewhat fuller discussion although, since each of the seven members of the Board as presently constituted is of the clear view that the minority opinion of the Board in Cartwright was correct and that the Court of Appeal had had no jurisdiction to hear the USA's appeal in these cases, their Lordships need not labour the points unduly.

  17. Mr Knox QC for the respondent government seeks to uphold the Court of Appeal's assumption of jurisdiction on two grounds. First he submits that the opinion of the (majority of the) Board in Cartwright was correct for the reasons given. Mr Knox chose not to elaborate this submission but rather to allow Lord Steyn's opinion to speak for itself. With the utmost respect to that opinion their Lordships cannot see how it meets the decisive objection noted by the minority: the fact that, whether or not the judge also made an order for certiorari or a declaration, he undoubtedly made an order for habeas corpus and against that particular order there was no appeal. Paragraph 41 of the minority's opinion encapsulates the essential difficulty in the majority's view:

  18. The interpretation given by the majority to the judgment of Isaacs J means that not only did he (presumably on the authority of Moli่re) make a declaratory order and order of certiorari without realising that he was doing so, but that he did nothing else. The notional orders are conjured up in order to be set aside on appeal and, this being accomplished, the actual order against which there was no appeal vanishes in a puff of smoke.

  19. Mr Knox's second submission is that the majority's conclusion should be upheld on a different ground. The starting point for this alternative argument is the proposition that, as a matter of law, it was a necessary pre-condition to the habeas corpus order releasing these men that the judge first made an order of certiorari quashing the magistrate's committal. Given that the formal return to the habeas corpus writ here would have been simply that the men were held pursuant to the magistrate's committal order, Mr Knox argues that the judge had no power on the return of the writ to consider whether or not the magistrate had properly exercised her jurisdiction in making the order (whether, in other words, the evidence was sufficient to support the committal order). That question would have had to be decided on a certiorari challenge and only then, having set aside the committal order, would the judge have become entitled to make habeas corpus orders for the men's release.

  20. It follows, submits Mr Knox, that the intention and effect of the judge's order was to quash the committal order by certiorari and that the Court of Appeal accordingly had jurisdiction to entertain the USA's appeal against that part of the judge's order. True, acknowledges Mr Knox, this would leave the appellant free following his release under the unappealable habeas corpus order. But, runs the argument, once the Court of Appeal had allowed the USA's appeal against the quashing of the committal order, it would have been open to the authorities to re-arrest the appellant and return him to custody to await extradition.

  21. Their Lordships would unhesitatingly reject this argument. It is impossible nowadays to argue that on an application for habeas corpus in extradition proceedings the Court is confined to a review of the formal validity of the detention order and cannot, except by certiorari, enquire into its substantial merits. Just such an argument, indeed, was recently rejected by the Board in Samuel Knowles v The Government of The United States of America [2006] UK PC 38 – see para 14 of the Board's opinion given by Lord Bingham of Cornhill. As Lord Bingham pointed out, it is contrary both to sound Bahamian authority – R v Superintendent at Her Majesty's Prison Fox Hill, Ex p Darville (No. 1) [1989-90] 1 LRB 128 and R v Superintendent at Her Majesty's Prison Fox Hill Ex p Bain [1989-90] 1 LRB 156 – and also to English authority of high standing: Armah v Government of Ghana [1968] AC 192.

  22. As Lord Pearce observed in Armah (p254):

  23. It appears .... that for at least 100 years the courts have accepted the depositions and decision in place of a formal return of the writ, in cases where a writ of certiorari would lie, without insisting on an additional writ to bring the depositions before the court.

    In 1864 in In re Tivnan 5 B&S 645, 646, a case of extradition, the depositions were considered as being before the court on an application of habeas corpus: 'As to the remaining question, viz., whether .... there is a case on which the magistrate ought to commit these prisoners, I cannot say that there is not evidence under which he was entitled to do so  –  a prima facie case was made out.' See, too In re Windsor (1865) 6 B&S 522,523, where there was an arrangement between the parties that the depositions and affidavits were taken as in court. It appears that this was the practice at the time when the Extradition Act was passed in 1870 and the Fugitive Offenders Act in 1881. And no doubt it was in the light of that practice that the magistrates' court was enjoined by section 11 in the former Act and section 5 in the latter to point out to the accused his remedy by way of habeas corpus. When the depositions were thus before it the court was entitled and bound to see whether there was evidence which raised, in the case of the Fugitive Offenders Act, a strong or probable presumption, and which thus gave the magistrate jurisdiction to commit. If there were not, the accused was entitled to be discharged.

    See also Lord Reid's speech at pp233-235.

  24. This view as to the wide scope of a habeas corpus application in extradition proceedings has been consistently held ever since Armah. It is clearly expressed in Sharpe, The Law of habeas corpus, 2nd ed, pp82-83. It is to be found too in Wade and Forsyth, Administrative Law, 9th ed, – see, for example, footnote 52 at p597:

  25. At one time the prisoner would have had to obtain certiorari to quash the detention order at the same time as habeas corpus to secure his release, in order to succeed on this ground [any ground other than the ground of detention stated in the return to the writ]. But to insist upon a separate certiorari was pointless formalism, since the habeas corpus brought the whole question of the validity of the detention before the Court. It therefore became the practice to receive the depositions of evidence as if there had been a certiorari and to treat them as part of the record, in the same way as used to be done in reviewing magistrates' decisions before 1848. If error of law then appeared, habeas corpus would be granted, thus in effect quashing the detention order. For this see Bacon's Abridgement (1768), iii, 6, cited in Ex parte Armah [by Lord Reid and Lord Pearce].

  26. It is, indeed, surprising today to find Mr Knox's submission being advanced at all. It becomes unnecessary, therefore, to dwell upon the artificiality of the second stage of his argument, or the oddity of a statutory provision requiring that a person committed to custody to await extradition be told only of his right to apply for habeas corpus if in fact he needs also to apply for certiorari.

  27. The third issue frankly is the difficult one on this appeal and on this issue, clearly, there is room for two views. There are, indeed, powerful arguments available to both sides. Stare decisis is an important principle. The virtues of certainty and finality hardly need emphasis or elaboration. As Lord Wilberforce said in Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345, 1349:

  28. Nothing could be more undesirable .... than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this House in the hope that a differently constituted committee might be persuaded to take the view which its predecessors rejected. True that the earlier decision was by a majority: I say nothing as to its correctness or as to the validity of the reasoning by which it was supported. That there were two eminently possible views is shown by the support for each by at any rate two members of the House. But doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal.

    But the principle is not an absolute one. In the Privy Council it never was. And since the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 the House of Lords too has been free to depart from its own previous decisions. As Lord Bingham of Cornhill recently said in Horton v Sadler [2007] 1 AC 307, 323 (para 29):

    As made clear in the [Practice Statement] former decisions of the House are normally binding. But too rigid adherence to precedent may lead to injustice in a particular case and unduly restrict the development of the law. The House will depart from a previous decision where it appears right to do so.

  29. Generally speaking, as Lord Reid observed in R v National Insurance Commissioner, Ex p Hudson [1972] AC 944, 966, the practice will be used "sparingly": when the previous wrong decision is "thought to be impeding the proper development of the law or to have led to results which were unjust or contrary to public policy", when "courts tend to distinguish it on inadequate grounds" which itself "is bound to lead to uncertainty". Horton v Sadler was just such a case where the House departed from its previous longstanding decision in Walkley v Precision Forgings Ltd [1979] 1 WLR 606, a decision which had prompted a good deal of unsatisfactory jurisprudence in efforts to distinguish it.

  30. That, it must be acknowledged, is not the position here. It cannot be said that the Board's decision in Cartwright is one which has been impeding the proper development of the law or, indeed, prompting unsatisfactory attempts to distinguish it. But nor is it a decision on which people have come to rely. On the contrary, following Cartwright, the Bahamian government in 2004 amended section 11(5) of the 1994 Act so as to confer a specific right of appeal against the grant of habeas corpus as well as against its refusal.

  31. Viscount Dilhorne said in Hudson (at 993D):

  32. [I]f the view be that the decision is clearly wrong, it is, I think, easier to decide that a recent case should not be followed than if it is one that has stood for a long time, for if it is in the latter category many may have acted in reliance on it.

    Here, as in Horton v Sadler, but unlike the position in Hudson itself (where three of the seven members of the Appellate Committee thought the earlier decision of the House rightly decided so that four of the seven in the event declined to depart from it), each member of the Board thinks the earlier decision in Cartwright clearly wrong. The issue here is not, as in Hudson, "simply the proper construction of complicated provisions in a statute" where "it cannot be said positively that one construction is right and the other wrong" (Lord Reid at p966). Nor is this the kind of case which has prompted the United States Supreme Court to issue guidelines designed to ensure that its previous decisions are not overruled merely because a new majority favour a different approach to certain highly contentious constitutional issues.

  33. Rather their Lordships are concerned here with the liberty of a single individual who was set free (however wrongly) in February 2002 and ought not thereafter to have been re-arrested. Halsbury's Laws (4th ed. reissue) vol.37 para 1242 states that:

  34. In its criminal jurisdiction the Court of Appeal applies the same principles [to the rules of precedent] as on the civil side, but recognises that there are exceptions


    where the applicant is in prison and in the full Court's opinion wrongly so;


    where the Court thinks the law was misunderstood or misapplied; ....

    Lord Woolf CJ in R v Simpson [2004] QB 118, 128 (para 27) described that statement as "unexceptional" and "soundly based upon the authorities to which [it referred]".

  35. There can be no getting away from the fact that this appellant is wrongly imprisoned through the misunderstanding or misapplication of the law by the Court of Appeal (and by the Board in Cartwright) with regard to rights of appeal under the Bahamian legislation then in force.

  36. Of course the view could be taken that the appellant had faced overwhelmingly strong evidence justifying (indeed requiring) his extradition to the USA on the gravest possible charges of drug dealing, that his habeas corpus challenge to committal ought certainly to have failed, and that the erroneous decision in Cartwright has fortuitously enabled the Bahamian Court of Appeal to correct a serious miscarriage of justice. Their Lordships, however, reject that view. The Board's task is to ensure justice according to law. According to law the Court of Appeal had no jurisdiction to entertain the USA's appeal, however meritorious that appeal was. So much is plain. The Board should not now shrink from saying so. The appeal must accordingly be allowed.

  37. Lord Hoffmann, Lord Carswell & Lord Mance


  38. On 8 December 2000 Samuel Knowles, Frank Cartwright and Lemuel Gibson were indicted in the Federal District Court of Southern Florida on charges of conspiracy to import large quantities of cocaine and marijuana into the United States of America ("USA"). Warrants for their arrest were issued and on 22 January 2001 the USA, pursuant to a treaty of extradition with the Commonwealth of The Bahamas, made a request to the government of the Bahamas for their extradition. They were arrested on provisional warrants, the Minister issued his authority to proceed and on 5 October 2001 they were brought before the magistrate, Mrs Carolita Bethel, pursuant to section 10 of the Extradition Act 1994.

  39. The duty of the magistrate was to decide whether the evidence tendered by the government of the USA would be "sufficient to warrant his trial for that offence if the offence had been committed in The Bahamas". The evidence consisted largely of an affidavit sworn by one Herbert Hanna, an accomplice, and affidavits by Canadian police officers who had intercepted telephone conversations to which Knowles was a party. As a result of information obtained from these conversations, US police officers followed Knowles in his car from a hotel where he had met the other conspirators, stopped and arrested him and found US$2.5m in the car and subsequently in his house. Hanna said that his role hade been to travel to The Bahamas and load the drugs into high speed boats and then accompany them as "security" to the Florida coastline. There had been more than 20 such trips, on each of which Gibson had captained the boat. On the last occasion, when Hanna had been arrested bringing the drugs ashore, the boat had carried 2,585lb of cocaine and 716lb of marijuana.

  40. This was plainly prima facie evidence of drug smuggling on a very large scale and the magistrate committed all three accused to custody to await extradition. Pursuant to section 11(1) of the Act, she informed the accused of their right to apply to the Supreme Court for habeas corpus. An application by all three was heard by Isaacs J, who gave judgment on 5 February 2002 granting habeas corpus and ordering the accused to be released. The ground for the order was that the evidence of Hanna was inadmissible because the form of words which he used in his affidavit was "I am a source of information for the US Drug Enforcement Administration .... On August 9, 2000, I provided the following information ....", followed by an account of the events which have been described. The judge said that this was evidence of what he had informed the authorities but not evidence of the facts contained in the information.

  41. No one now suggests that this extraordinary pedantry could be justified or that it did not produce a serious miscarriage of justice. But the question then arose as to whether any legal procedure existed by which the error could be corrected. Section 11(5) of the 1994 Act gave a right of appeal to the Court of Appeal against the refusal of an application for habeas corpus but not against the grant of such an order.

  42. The US Government nevertheless appealed to the Court of Appeal, founding jurisdiction upon the more general provisions of section 17(3) of the Bahamas Court of Appeal Act Cap 40, as amended. By this time, Gibson and Cartwright had disappeared and the appeal proceeded only against Knowles. The Court of Appeal accepted the submission that it had jurisdiction and allowed the appeal. Cartwright was later apprehended and the appeal in his case was also allowed.

  43. A further appeal by Knowles and Cartwright to the Judicial Committee was dismissed on 10 February 2004 by a majority of three to two: see Cartwright v Superintendent of HM Prison [2004] 1 WLR 902. Afterwards, Gibson was arrested and the Court of Appeal, following the decision of the Board, allowed the appeal of the US Government. Gibson now appeals to the Privy Council and invites the Board to rule that the Cartwright case was wrongly decided.

  44. In the Cartwright case, the Board was unanimous in considering that the decision of Isaacs J had been egregiously in error, with the result that not only had three men against whom there was evidence of serious offending been set at liberty, but The Bahamas had been put in breach of its treaty obligations to the United States. The majority felt able to interpret the decision reached by Isaacs J as giving rise to a right of appeal under section 17(3) which enabled this error to be corrected. They said that this was "not an issue of high legal principle but simply a question of assessing in the absence of a formal order what in context the judge in fact did" (paragraph 19). The minority regretfully did not consider this to be a permissible interpretation.

  45. Mr Knowles QC, who appeared for Gibson, submitted that the earlier Cartwright decision could be distinguished on the basis that when that case came before the Board, no formal order by Isaacs J. had been drawn up. Since the decision of the Court of Appeal in this case, the judge has, on an ex parte application by the appellant, approved a formal order in terms which Mr Knowles says do not permit the interpretation put upon it by the Privy Council. But we do not think there is anything in this point. By the time the judge had approved the order, the appeal against it had been allowed and he had long been functus officio.

  46. The question therefore is whether the Board should depart from its previous decision. We respectfully consider that, had question been res integra, we would have agreed with the minority opinion, to which one of us was a party. But the matter is not res integra. According to well-established constitutional principles, the decision of the Board lays down the law of The Bahamas, by which the courts in The Bahamas are bound and from which the Board itself will depart only in exceptional circumstances. For this purpose, it does not matter whether the earlier decision was unanimous or by a majority. It is the decision of the Board. As Lord Wilberforce said in Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345, 1349:

  47. Nothing could be more undesirable .... than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this House in the hope that a differently constituted committee might be persuaded to take the view which its predecessors rejected. True that the earlier decision was by a majority: I say nothing as to its correctness or as to the validity of the reasoning by which it was supported. That there were two eminently possible views is shown by the support for each by at any rate two members of the House. But doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal.

  48. Unlike the House of Lords, the Privy Council has never considered itself absolutely bound by its own previous decisions. The House of Lords did not regain the same freedom until the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. But whether the freedom to depart from previous decisions is of long standing or relatively recently acquired, it must be exercised on the same rational principles. It must recognise the importance of adhering to precedent and the exceptional nature of a decision to depart from previous authority. It follows that the observations of Lord Reid in R v National Insurance Commissioner, Ex p Hudson [1972] AC 944, 966 are an important guide to the use of judicial precedent by any final tribunal:

  49. My understanding of the position when this resolution was adopted was and is that there were a comparatively small number of reported decisions of this House which were generally thought to be impeding the proper development of the law or to have led to results which were unjust or contrary to public policy and that such decisions should be reconsidered as opportunities arose. But this practice was not to be used to weaken existing certainty in the law ....

  50. The general applicability of these remarks is shown by the fact that very similar guidelines were laid down by the Supreme Court of the United States in the well-known case of Planned Parenthood of Southeastern Pennyslvania v Casey (1992) 505 US 833, in which it was said (at p. 864) that "a decision to overrule should rest upon some special reason over and above the belief that a prior case was wrongly decided."

  51. What special reason exists in this case? The decision in Cartwright is not impeding the proper development of the law. On the contrary, it has been, so to speak, adopted by the legislature of The Bahamas which has amended the 1994 Act to put the matter beyond doubt by giving a right of appeal against a decision to grant habeas corpus as well as to refuse it. It is speculation as to whether other jurisdictions have the same statutory provisions. If there are, and nothing has been done to alter the law since Cartwright, one could infer that the local legislature is satisfied with the decision. Nor has the case led to results which are unjust or contrary to public policy. On the contrary, the decision allowed the correction of a plain miscarriage of justice and supported public policy in allowing The Bahamas to comply with its international obligations. But the majority proposes to perpetuate injustice and a breach of the extradition treaty simply on the grounds that they think that Cartwright was wrong, or, despite the views of three members of the Board, very wrong. In our opinion this would encourage attempts to revisit cases decided by a narrow majority, which are likely to be the most difficult. We therefore do not think that this is a proper case in which to exercise the power to depart from precedent and would dismiss the appeal.

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