England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBCOF 97/0506/D

COURT OF APPEAL (CIVIL DIVISION )

(MR JUSTICE CARNWATH )

Royal Courts of Justice

The Strand

London

Wednesday 15 July 1997

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill )

LORD JUSTICE KENNEDY

and

LORD JUSTICE SAVILLE

B E T W E E N:

SERGIO CUOGHI Applicant

and

(1) THE GOVERNOR OF HER MAJESTY'S PRISON BRIXTON

(2) THE GOVERNMENT OF SWITZERLAND Respondents

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(Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4A 2HD

Telephone 0171 831 3183

Official Shorthand Writers to the Court)

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MR CLIVE NICHOLLS QC and MR JAMES LEWIS (instructed by Messrs Judge

Sykes, Frixton) appeared on behalf of THE APPLICANT

MR PAUL GARLICK QC (instructed by the Crown Prosecution Service,

London) appeared on behalf of THE RESPONDENTS

MR JAMES TURNER (instructed by the Treasury Solicitor) appeared on

behalf of an interested party (the Secretary of State)

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J U D G M E N T

(As Approved by the Court )

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THE LORD CHIEF JUSTICE: Before us for decision is a preliminary issue: whether the appeal which the appellant seeks to pursue is one that the Civil Division of the Court of Appeal has jurisdiction to entertain. The answer turns on section 18(1)(a) of the Supreme Court Act 1981 which provides (subject to an irrelevant exception) that no appeal shall lie to the Court of Appeal from any judgment of the High Court in any criminal cause or matter. 'Cause' and 'matter' are both defined in section 151(1) of the Act, but without throwing any light on their meaning relevantly for present purposes.

The factual background to the issue can be very shortly summarised. The Government of Switzerland has requested the return of the appellant on serious charges of fraud against Credit Suisse Fides Trust SA. He has been resident in this country. The Secretary of State gave authority to proceed under section 7 of the Extradition Act 1989. Under section 9(8) of that Act the appellant was committed by the Bow Street Magistrate after a contested committal hearing to await the Secretary of State's decision as to his surrender. The appellant on 16 June 1995 applied for habeas corpus. One of his grounds related to the lawfulness of the magistrate's decision to commit him. Another relied on section 11(3) of the Extradition Act 1989. The relevant provisions of that subsection are:

"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that --

....

(c) because the accusation against him is not made in good faith in the interests of justice,

it would, having regard to all the circumstances, be unjust or oppressive to return him."

To obtain evidence in support of his case under section 11(3)(c) the appellant applied ex parte for the issue of letters of request under section 3 of the Criminal Justice (International Co-operation) Act 1990. That application was granted by Forbes J on 26 September 1995. The respondents then applied to set aside the order of Forbes J on the ground that there was no jurisdiction for the court to issue the letters of request as the word 'offence' in section 3 of the 1990 Act was limited on a true construction to domestic offences. Accordingly it was argued that, since the appellant's offence was alleged to have occurred in Switzerland, it was outside the scope of section 3. Carnwath J accepted the respondents' construction in a judgment given on 22 May 1996, and accordingly set aside the order of Forbes J. The appellant raised a new issue before Carnwath J, namely that the judge should issue a letter of request under Order 39, rule 1 of the Rules of the Supreme Court, but the judge declined to do so. Carnwath J refused leave to appeal against his decision, but leave was granted by the Court of Appeal on 26 March of this year. Since it was known to be in issue whether the Court of Appeal could properly entertain this appeal, it has sensibly been ordered that that question should be determined at a preliminary issue.

As it seems to me, the answer to this issue depends on the answer to three major questions. The first is: do extradition proceedings fall within the statutory expression "criminal cause or matter" in section 18(1)(a) of the Supreme Court Act 1981? To that question the answer is unquestionably "Yes". If there were any doubt about the correctness of that answer, such doubt is resolved by the recent decision of the House of Lords in In re Levin [1997] 3 WLR 117. Mr Clive Nicholls QC who represents the appellant accepts that extradition proceedings do fall within the statutory expression. It is therefore unnecessary to recite the terms of the decision in In re Levin in extenso.

I go on therefore to the second question which is: does an application for habeas corpus made in extradition proceedings fall within the statutory expression? To that question also I would give the answer "Yes". In doing so I rely particularly on the earliest in a long line of authorities, a decision of an unusually eminent Court of Appeal in Ex parte Alice Woodhall (1888) 20 QBD 832. In that case the applicant had been brought before the Chief Metropolitan Magistrate charged under the provisions of the Extradition Act as a fugitive criminal accused of having committed forgery in New York. The magistrate committed the applicant to a prison in Middlesex, and application was thereupon made on her behalf to a Divisional Court for an order of habeas corpus. In argument in the Court of Appeal the jurisdiction issue was addressed. It then turned on the language of section 47 of the Judicature Act 1873 which was in the same terms as the present provision. It was argued on behalf of the applicant that an application for a writ of habeas corpus was not a criminal cause or matter within the meaning of section 47. It was said to be a collateral matter not necessarily having reference to any criminal proceeding and it was urged that the primary object of such an application was to secure that the person who had detained the applicant should produce him. On those grounds it was argued that an appeal lay from the order of the High Court whether granting or refusing the writ. That argument did not prevail. Lord Esher MR at page 835 said:

"The result of all the decided cases is to shew that the words 'criminal cause or matter' in s. 47 should receive the widest possible interpretation. The intention was that no appeal should lie in any 'criminal matter' in the widest sense of the term, this Court being constituted for the hearing of appeals in civil causes and matters."

After reference to earlier authority the Master of the Rolls continued at page 836:

"I think that the clause of s. 47 in question applies to a decision by way of judicial determination of any question raised in or with regard to proceedings, the subject-matter of which is criminal, at whatever stage of the proceedings the question arises. Applying that proposition here, Was the decision of the Queen's Bench Division, refusing the application for a writ of habeas corpus, a decision by way of judicial determination of a question raised in or with regard to the proceedings before Sir James Ingham? I am clearly of opinion that it was, and I think it is impossible to say that what took place before him was not a proceeding the subject-matter of which was criminal. If the proceeding before the magistrate was a proceeding the subject-matter of which was criminal, then the application in the Queen's Bench Division for the issue of a writ of habeas corpus, which if issued would enable the applicant to escape from the consequences of the proceeding before the magistrate, was a proceeding the subject-matter of which was criminal. It follows, therefore, that this Court has no jurisdiction to hear the appeal."

Lindley LJ gave judgment to similar effect. At page 837 he said:

"Can we say that the application in the present case is not an application in a criminal cause or matter? I think that in substance it certainly is. Its whole object is to enable the person in custody to escape being sent for trial in America upon a charge of forgery."

Bowen LJ at page 838 said:

"It must therefore be the case of a person who has fled from foreign justice; and the crime of which he is accused must be one of those specified in the schedule which would be a crime according to the law of this country. The magistrate is charged with the duty of considering, upon the evidence before him, whether that evidence is sufficient according to English law to justify the committal for trial of the accused person. How can the matter be other than criminal from first to last? It is a matter to be dealt with from first to last by persons conversant with criminal law, and competent to decide what is sufficient evidence to justify a committal. The questions upon which the application for a writ of habeas corpus depend, are whether or not there was evidence before the magistrate of a crime, which would be a crime according to English law, having been committed in a foreign country, and whether or not that evidence was sufficient to justify him in committing the accused for trial if the crime had been committed in England."

That case was followed in R v Governor of Brixton Prison, ex parte Savarkar [1910] 2 KB 1056. I need only make reference to the judgment of Vaughan Williams LJ when he said at page 1063:

".... yet the appeal which it is sought to bring before us is nothing else than an appeal in respect of the refusal by the Court of the King's Bench Division to make absolute a rule nisi for a writ of habeas corpus issued in respect of the body of the appellant, who under a warrant of the magistrate at Bow Street Police Court is detained in Brixton prison charged with certain criminal offences, and the preliminary objection is that no appeal can be had in such a case having regard to the words of s. 47 of the Judicature Act, 1873, which enacts, inter alia, that 'no appeal shall lie from any judgment of the High Court in any criminal cause or matter save for some error of law apparent upon the record'.

There can be no manner of doubt, having regard to the decision of this Court in the case of Ex parte Alice Woodhall , that the decision of the King's Bench Division refusing to make absolute the order nisi for issue of a writ of habeas corpus in this case is a decision in a criminal cause or matter within the meaning of s. 47 of the Judicature Act, 1873; and it follows that, as this appeal relates to the said decision and nothing else, this preliminary objection is a good objection and must prevail."

Fletcher-Moulton LJ at pages 1064-5 and Buckley LJ at page 1066 reached a similar conclusion.

The decision in Ex parte Woodhall was followed in R v Garrett, ex parte Sharf [1917] 2 KB 99, and was expressly approved by the House of Lords in Provincial Cinematograph Theatres Ltd v Newcastle-upon-Tyne Profiteering Committee (1921) 27 Cox CC 63. It was also expressly approved in Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147. It is relevant to draw attention in that case to the speech of Viscount Simon LC at page 156 where he said:

"As regards the right to appeal, it has been consistently held that there is no right of appeal from the refusal of the writ in extradition proceedings ( Ex parte Woodhall ) or in proceedings under the Fugitive Offenders Act, 1881 ( Rex v Brixton Prison (Governor of), Ex parte Savarkar ). It will be observed that these decisions, which I accept as correct, involve the view that the matter in respect of which the accused is in custody may be 'criminal' although he is not charged with a breach of our own criminal law, and (in the case of the Fugitive Offenders Act), although the offence would not necessarily be a crime at all if committed here. It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal."

Lord Wright at page 162 said:

"The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a 'criminal cause or matter.' The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter, as is shown by Ex parte Woodhall and Rex v Brixton Prison (Governor of), Ex parte Savarkar ."

The decision in Ex parte Alice Woodhall was also approved by the House of Lords in its recent decision in In re Levin .

Mr Clive Nicholls for the appellant accepts, in the light of this long line of authority, that a habeas corpus application directed to challenge the lawfulness of a magistrate's decision to commit now under section 9 of the 1989 Act falls within the statutory expression. But he submits in a clear and helpful argument that an application under section 11(3) of the 1989 Act, whether advanced as an application for habeas corpus or not, falls into a different category. It is, he submits, a special free-standing procedure provided by statute, separate and distinct from the Swiss criminal proceedings which founded the application to extradite. He draws our attention to the language of section 10 of the Fugitive Offenders Act 1881, which is in terms very similar to section 11(3) of the 1989 Act, and makes the point that in ex parte Savarkar the Court of Appeal, while holding that it had no jurisdiction to entertain an appeal against the refusal of habeas corpus, did grant relief under section 10. But that was, as the judgments make plain, in the exercise of an original jurisdiction. It is not suggested that the Court of Appeal now has this original jurisdiction, and in any event we are not being asked to exercise it and it forms no part of this preliminary issue. Mr Nicholls has referred us to a number of authorities in which the test of 'criminal cause or matter' has been put in terms helpful to his argument. Perhaps the most helpful is R v Southampton Justices, ex parte Green [1976] QB 11. In that case Lord Denning MR said at page 15:

"The words 'criminal cause or matter' were considered by the House of Lords in Amand v Home Secretary [943] AC 147, 156 where Viscount Simon LC said:

'If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal.'

Apply that test to an application to estreat a recognizance. The outcome is not a 'trial' of the surety. There is no 'possible punishment' of the surety for an 'offence'. A recognizance is in the nature of a bond. A failure to fulfil it gives rise to a civil debt. It is different from the ordinary kind of civil debt, because the enforcement is different. It is enforceable like a fine. It may be enforced by a warrant of distress, or by committing the defaulter to prison: see sections 64 and 96 of the Magistrates' Courts Act 1952. But that method of enforcement does not alter the nature of the debt. It is simply a civil debt upon a bond and as such it is not a criminal cause or matter. The preliminary point is not well founded. I think we ought to go on and hear the appeal."

Whether on the facts that decision was right or wrong, its value as authority is somewhat undermined by the omission of the sentence immediately preceding the sentence in Viscount Simon's speech which the Master of the Rolls quoted, which is an important sentence and colours the sentence which follows.

Reliance was also placed on the decision of the House of Lord in In re Smalley [1985] AC 622. In that case, at page 643E, Lord Bridge formulated the test whether an order was one affecting the conduct of a criminal trial. He made it plain at page 643G that he was not seeking to offer a definition, but at page 645A Lord Brightman, agreeing with Lord Bridge's conclusion, gratefully adopted his criterion "any decision affecting the conduct of a trial on indictment" as a helpful pointer to the interpretation of the exclusionary clause in section 29(3) of the 1981 Act.

Mr Nicholls has also drawn our attention to expressions in Bonalumi v Secretary of State for the Home Department [1985] QB 675, R v Lambeth Metropolitan Stipendiary Magistrate, ex parte McComb [1983] QB 551, and In re O ( Restraint Order: Disclosure of Assets ) [1991] 2 QB 520. He refers to those authorities to support his central contention that an application under section 11(3) of the 1989 Act is a free-standing application. He points out that the outcome of such an application will not involve a determination of guilt or innocence, will give rise to a discrete issue with the burden on the applicant or appellant to establish his case on the balance of probabilities and is an application governed by the civil rules of procedure. It is, he says, a discrete issue to be determined without reference to the criminal proceedings and thus separate and distinct from the extradition proceedings.

For my part I cannot accept that submission. Mr Garlick QC for the Government of Switzerland has helpfully referred us to section 1(1) of the Extradition Act 1989 which applies the procedure in Part III of the Act to extradition between Convention countries. Part III, comprising sections 7 to 17, sets out a comprehensive code to govern extradition in such circumstances. Thus, one finds sections dealing with the request for extradition and authority to proceed, the arrest of the proposed defendant, the committal of the proposed defendant, the provision in section 11 for applications for relief, the return of the defendant, the making of special provisions to short-circuit the extradition procedure, the discharge of the proposed defendant, and the holding of the proposed defendant in custody. Mr Garlick submits, in my judgment correctly, that section 11(3) forms part of a comprehensive provision for what is accepted as being a criminal proceeding. It is artificial to fillet out section 11(3) from this coherent series of provisions and attribute to it a nature and character different from the process of which it forms part.

The third question for decision is: does an order relating to obtaining evidence for purposes of a habeas corpus application in extradition proceedings fall within the statutory expression? To that question also I would answer "Yes", and would advance the following reasons. First, it is a clear principle to be derived from the authorities I have already mentioned that if the main substantive proceedings in question are criminal, proceedings ancillary or incidental thereto are similarly to be treated as criminal: hence the clear rule that habeas corpus applications incidental or ancillary to extradition proceedings are regarded as criminal because extradition proceedings are so regarded. To avoid any possibility of confusion I should emphasise that, in using the words "incidental or ancillary" I am not intending to propound any new and different test, but to express the gist of what I understand the authoritative test or tests to be.

Secondly, there is authority that orders relating to the production of evidence for foreign criminal proceedings are themselves to be treated as criminal. That authority is Bonalumi v Secretary of State for the Home Department [1985] QB 675. The factual situation in that case was not strictly analogous. If Bonalumi was rightly decided, however, it would in my view be anomalous if an order relating to the production of evidence for the purposes of English proceedings regarded as criminal were not itself to be regarded as criminal.

Thirdly, I regard an affirmative answer to this question as fortified by consideration of the European Convention on Mutual Assistance in Criminal Matters (1959), which the United Kingdom enacted the Criminal Justice (International Co-operation) Act 1990 in order to enable itself to ratify. Our attention has been drawn in particular to Articles 1-1, 3-1 and 14 of that Convention. It is unnecessary to refer to those provisions in detail. It is, however, plain that it is this procedure which the appellant through the medium of the 1990 Act is seeking to invoke. He may or (as Carnwath J held) may not be entitled to invoke that procedure. But it is plain that the procedure exists to provide for international co-operation between states party to the Convention in the prosecution of crime. It has no civil purpose. Thus the context of these proceedings is criminal, and the context lends its colour to the application under section 11(3) as to other parts of the proceedings.

Fourthly, I would refer to the terms of section 3 of the 1990 Act, this being the section upon which the appellant seeks to rely. Section 3(1) provides:

"Where on an application made in accordance with subsection (2) below it appears to a justice of the peace or a judge or, in Scotland to a sheriff or a judge --

(a) that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed; and

(b) that proceedings in respect of the offence have been instituted or that the offence is being investigated,

he may issue a letter ('a letter of request') requesting assistance in obtaining outside the United Kingdom such evidence as is specified in the letter for use in the proceedings or investigation."

Thus, to rely on this section the appellant is compelled to assert that the conditions in (a) and (b) of subsection (1) are fulfilled. This in my judgment demonstrates the closeness of the connection between the application under section 3 and the criminal proceedings which the Government of Switzerland are seeking to extradite the appellant to face.

In my judgment the questions posed as appropriate questions by counsel for the Secretary of State are pertinent questions to consider. What is the purpose of the application? Is it a step in the process of bringing a defendant to trial? Can it affect the conduct of the trial?

In considering the present application in the light of those questions and the authorities I have already mentioned, I am in no doubt that an affirmative answer should be given to the third question also. It follows that in my judgment the Civil Division of the Court of Appeal has no jurisdiction to entertain this appeal, it being an appeal from a judgment of the High Court in a criminal cause or matter.

LORD JUSTICE KENNEDY: I agree.

LORD JUSTICE SAVILLE: I also agree.

ORDER: Application dismissed with costs, the Court of Appeal having no jurisdiction to entertain it; leave to appeal refused.

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