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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kingdom Of Belgium, R (on the application of) v Secretary Of State For Home Department [2000] EWHC Admin 293 (15 February 2000)
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Cite as: [2000] EWHC Admin 293
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R v. SECRETARY OF STATE FOR HOME DEPARTMENT ex parte KINGDOM OF BELGIUM v. R v. SECRETARY OF STATE FOR HOME DEPARTMENT ex parte AMNESTY INTERNATIONAL LIMITED and Five other applicants [2000] EWHC Admin 293 (15th February, 2000)
Case Nos: CO/236/2000
CO/238/2000
IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 15 February 2000
LORD JUSTICE SIMON BROWN
MR JUSTICE LATHAM
and
MR JUSTICE DYSON
R
v SECRETARY OF STATE FOR HOME DEPARTMENT |
| |
- and - |
||
R
v SECRETARY OF STATE FOR HOME DEPARTMENT |
Respondent |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J. Sumption QC & Mr P. Sales (instructed by Treasury Solicitor of London SW1) for the Respondent
Mr R. Drabble QC & Miss Frances Webber (instructed by Messrs. Bindman & Partners, Solicitors of London W1X 8QF) for Amnesty International and 5 other applicants
Mr N. Pleming QC, Mr P. Sands, Mr R. Singh & Miss H. Mountfield (instructed by Messrs Leigh Day & Co, Solicitors of London EC1M 4LB) for The Kingdom of Belgium
Mr C. Nicholls QC & Mr J.B. Knowles (instructed by Messrs Kingsley Napley, Solicitors of London EC1M 4AJ) for Augusto Pinochet Ugarte, an interested party
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE SIMON BROWN:
Introduction
It is sixteen months since Senator Pinochet was arrested. What should happen to him now? Should he be extradited to Spain to stand trial for the grave crimes of which he is accused? Or should he be allowed to return home to Chile? Many passionately hold one view, many the other. All, however, would surely agree upon one thing. It is high time the decision was taken: Senator Pinochet has spent quite long enough in this country. But the decision must, of course, be taken lawfully, and that is the issue now before us.
This challenge, the latest in a whole succession of legal proceedings, is to the Secretary of State's proposed decision not to extradite Senator Pinochet to Spain on the ground that he is unfit to stand trial. More particularly at issue is the Secretary of State's entitlement to take such a decision (as he is "minded" to do) without first giving Spain and other requesting states sight of the medical report which is critical to it. Shorn of the applicants' more exorbitant demands - that they be allowed to examine Senator Pinochet themselves, that they have an opportunity to question the four specialists who prepared the Secretary of State's report, that the report be disseminated more widely than to the four requesting states - this is the essence of their complaint. What they ask is that the report now be disclosed to the requesting states so that at least they may comment upon its conclusions.
There are two applicants before us, one the Kingdom of Belgium (Belgium), a requesting state, the other a group of six human rights organisations headed by Amnesty International (Amnesty). Their joint application for permission to move for judicial review came initially before Maurice Kay J who dismissed it on 31 January 2000: in the case of both applicants on the merits and in Amnesty's case on the additional ground that they lack "sufficient interest" i.e. standing. His judgment, right or wrong, is a model of clarity and thoroughness extending to forty-five pages of transcript. On the core issue he concluded:
"... that it is simply not arguable that the non-disclosure of the medical report [to the requesting states] is unlawful, unfair or irrational."
The application was renewed before us. During the course of the hearing we decided that it certainly merited permission and thereafter we proceeded to deal with it as a substantive motion.
With that brief introduction let me now outline the facts as shortly as may be
The Facts
We shall assume our readers' familiarity with the earlier stages of this case: Senator Pinochet's arrest in London on 16 October 1998 pursuant to a Spanish warrant and the extensive subsequent litigation as to whether he enjoys state immunity. I can pick up the story with the final House of Lords decision on 24 March 1999 essentially to the effect that the offences alleged in Spain's request were "extradition crimes" only if committed after September 1988, and that Senator Pinochet had no immunity in respect of such crimes committed after December 1988. Following that decision, the Secretary of State on 14 April 1999 issued a fresh Authority to Proceed which Senator Pinochet thereafter unsuccessfully sought to challenge.
The committal hearing before the Bow Street magistrate took place between 27 and 30 September 1999. On 8 October 1999 Senator Pinochet was committed on all charges to await the decision of the Secretary of State as to whether he should be extradited to Spain. A habeas corpus application was made on Senator Pinochet's behalf on 22 October 1999 which presently stands fixed for hearing on 20 March 2000. Under the Extradition Act 1989 the Secretary of State cannot order extradition whilst that application remains outstanding. He can, however, decide that he would not order Senator Pinochet's extradition in any event and that is what he is presently minded to do.
Three other states, Belgium, France and Switzerland, have made requests for Senator Pinochet's extradition. Pending the outcome of proceedings on the Spanish request, no Authority to Proceed has been issued in respect of any of these.
Recent events relate to Senator Pinochet's health. He is 84 years old. The first sign that there might be a serious problem about his health came on 6 October 1999 when, two days before the judgment in the committal proceedings, the Bow Street magistrate made the unusual decision to excuse him from attending the judgment in person. That decision was based on evidence about his state of health given to the court by the general practitioner attending Senator Pinochet. On 14 October 1999, shortly after the magistrate's decision to commit Senator Pinochet, the Secretary of State received representations from the Chilean Embassy supported by medical reports which suggested that there had been a recent and significant deterioration in Senator Pinochet's health. After taking advice on the medical implications of this material from the Chief Medical Officer (CMO), Professor Liam Donaldson, the Secretary of State took the view that, whilst it was not conclusive, it did suggest that Senator Pinochet might be unfit to stand trial. Although these representations did not come from Senator Pinochet himself, the Secretary of State was mindful of his duty to consider the discretion conferred upon him by the Extradition Act in the light of relevant circumstances. He therefore decided to invite Senator Pinochet to submit to a medical examination by a team of clinicians appointed by the Secretary of State. The object was to obtain an independent, comprehensive and authoritative report on the relevant facts which would equip him to perform his statutory function. Correspondence ensued between the Home Office and the solicitors representing Senator Pinochet. In a letter dated 5 November 1999 the Home Office invited Senator Pinochet to make himself available for medical examination. The letter went on to state:
"It should go without saying that every effort would be made by the doctors and their team, and the Home Office, to keep the report's contents entirely confidential."
On 11 November 1999 Senator Pinochet's solicitors replied, stating:
"Senator Pinochet is prepared to undergo the examination on the understanding that none of its contents are disclosed to anybody other than the Home Office and ourselves."
Such a condition was considered to be too narrow by the Home Office officials: it would have prevented the disclosure of the report to the Director of Public Prosecutions or the Solicitor General in the event of a decision being made not to extradite Senator Pinochet. Under Article 7 of the Convention Against Torture the United Kingdom is required, if it does not extradite a person accused of torture, "to submit the case to its competent authorities for the purpose of prosecution." The functions of the Secretary of State in relation to extradition include referring a case to the Director of Public Prosecutions and the Solicitor General in this event. Such a reference would include material relevant to any issue of Senator Pinochet's fitness for trial. On 29 November 1999 Senator Pinochet agreed to this provided that:
"... any medical report would not be considered for any other purpose and would not be disclosed to any member of the Crown Prosecution Service in any other capacity."
Thereafter the Secretary of State selected a team of clinicians who were considered to have the required range of specialisations and who had no inappropriate personal interest in the case. The selection was pursuant to advice given by the CMO in the light of what was already known about Senator Pinochet's condition. The team comprised Sir John Grimley Evans FRCP, Professor of Clinical Geratology at the University of Oxford, a former Vice-President of the Royal College of Physicians, who serves on the World Health Organisation expert panel on the care of the elderly and who is considered by the CMO to be "probably the most respected individual in British geriatric medicine"; Dr Michael Denham, MD, FRCP, FRSA, Consultant Physician in Geriatric Medicine at Northwick Park Hospital, London, a former president of the British Geriatrics Society and the author of numerous papers on the care of the elderly; and Professor Andrew Lees, MD, FRCP, Professor of Neurology at the National Hospital for Neurology and Neurosurgery, London, a specialist in movement disorders and dementia and medical adviser to and co-director of the Parkinson's Disease Society. The CMO advised that all three are independent practitioners of outstanding national and international reputation in their fields. On the advice of the three clinicians and with the agreement of the CMO, Maria Wyke MA, PhD, consultant neuro-psychologist, was added to the team. Professor Lees and Dr Wyke are fluent Spanish speakers.
The medical examination was conducted in Spanish at the Northwick Park Hospital over a period of some six hours on 5 January 2000. The Home Office received the report of the examination the following day. The Secretary of State's evidence describes it as follows:
"It summarises recent medical records concerning Senator Pinochet, and deals in detail with his recent personal medical history and with the examination which he underwent. The unequivocal and unanimous conclusion of all four practitioners was that following the recent deterioration in the state of Senator Pinochet's health which seems to have occurred mainly during September and October 1999, he is not at present capable of meaningful participation in a trial and that no change to that position can be expected. It is right to emphasise that this statement is not simply the Secretary of State's inference from the material which the report contains. It is the written conclusion of the practitioners themselves."
Having received the report, the Secretary of State sought the advice of the CMO. He advised that he had found the assessment made by the four practitioners to be extremely thorough and their report to be clear and comprehensive. He concluded that the report was authoritative and that it left no reason to doubt the specialists' judgment that Senator Pinochet is not fit to stand trial and that his present condition is not one which would be expected to improve. The CMO also pointed out that the report made clear that Senator Pinochet's condition could not be feigned and that this had been backed up by some of the specialist tests which had been carried out.
On 11 January 2000 the Home Office wrote to the various interested parties (including the applicants) to inform them of the Secretary of State's view. All the letters referred to the finding of unfitness to stand trial and that no change was expected. They also contained this passage:
"In the circumstances, you should note that the Secretary of State is minded to conclude that there is no purpose to be served by continuing the present proceedings, instituted as a result of the Spanish request of 16 October 1998 for his extradition. He is therefore minded to take a decision that he will not extradite Senator Pinochet to Spain. The effect of such a decision would be that the current basis for his continuing detention would lapse."
Amnesty and Spain were invited to submit any further representations (further, that is, to those previously submitted at the Authority to Proceed stage) by 18 January. The other addressees were informed that that was the date by which other parties were being invited to make representations.
In the letter to Senator Pinochet's solicitors the Home Office wrote this:
"In the light of the nature of the report, the Secretary of State is of the view that it would be of assistance in enabling matters to progess as smoothly as possible if it were disclosed in full, under conditions of strict confidence, to Spain, France, Belgium and Switzerland. He is not, however, asking for agreement to disclose the report any more widely, for example to interested pressure groups."
Consent was refused.
Amnesty's letter in response raised a number of concerns as to whether other particular experts should also have been involved and included this paragraph:
"Quite apart from the public interest in securing compliance with international obligations, there is the vital public interest in maintaining the integrity of the criminal justice system. This integrity is severely damaged by the public perception that defendants with influence or wealth, like Ernest Saunders, are able to mock the system by feigning dementia for long enough to escape justice. This is another factor making it imperative that a decision that Senator Pinochet is unfit to stand trial is completely safe and is seen to be so."
Besides making other more extensive requests, Amnesty sought disclosure of the report. The Home Office replied on 18 January and this letter I should quote at length as did the judge below:
"In referring to Senator Pinochet's fitness to stand trial, the Secretary of State is referring to his capacity to participate meaningfully in a trial. The Home Secretary has proceeded on the footing that the decisive criteria are the quality of his memory, his ability to process verbal information and to follow the proceedings, his ability to understand the content and implications of questions put to him, his ability to express himself coherently and comprehensibly, and his ability to instruct his legal representatives. The Home Secretary was not using the expression in the sense of ´general physical debility'.
There has never been any obscurity about this. Immediately after making his statement in the House of Commons on 12 January, the Secretary of State was asked a question very similar to your own by Mr Simon Hughes. He replied in substantially the same terms:
´Among the criteria that I took into account were whether the Senator would be in a position to follow the proceedings, to give intelligible instructions to those representing him and to give a coherent statement of his case, and of recollection' [Hansard 12 January 2000 col 281]
The report of the medical examination of Senator Pinochet on 5 January directly addressed all of the above matters. This was in accordance with their instructions which stated the criteria as follows:
´Without in any way intending to limit the comprehensive scope of the commission, the Home Secretary would be grateful in particular to be advised whether, in your view, there are any aspects of Senator Pinochet's state of health which, separately or together, would suggest that he is not at present fit, or is likely to become unfit, to stand trial in Spain. In this context he is particularly interested in Senator Pinochet's ability to follow a line of questioning, to recall events, some of which took place as long ago as the 1970s, and to give coherent evidence. Any trial might be expected to take place within the next 18 months to three years.'
I now turn to your request for a copy of the report. The report contains detailed personal information about Senator Pinochet's medical history and the examination which he underwent, which is confidential to him. The Secretary of State is not at liberty to disclose it, because Senator Pinochet consented to the medical examination on the express basis that the report was to be used only for the purpose of enabling the Secretary of State to perform his functions under the Extradition Act and of enabling the Director of Public Prosecutions and the Solicitor General to perform their functions in relation to any possible domestic prosecution, and that disclosure would accordingly be confined to those three office-holders. Subject to any overriding public interest, the Secretary of State is bound to respect those stipulations. It appears to him that the relevant public interest is in the proper performance of the functions of the three office-holders, and that the disclosure to which Senator Pinochet has already consented is sufficient for that purpose. The Secretary of State has already made it clear that he would have preferred to disclose the report, as a matter of courtesy and on suitable terms as to its further dissemination, to the relevant authorities of the Kingdom of Spain and the three other states which have made extradition requests. Senator Pinochet was asked to consent to this, but refused."
The letter then dealt with Amnesty's request to be allowed to have Senator Pinochet further medically examined but no point now arises in that regard and I need say no more about it.
Belgium's response to the letter of 11 January was essentially by way of two letters rogatory issued pursuant to the European Convention on Mutual Assistance in Criminal Matters. The first, dated 19 January, requested assistance for the purpose of "appointing a panel of experts, medical doctors, with the task ... of examining [Senator Pinochet] in depth and on an equal footing ..." The second, dated 24 January, sought assistance in the form of (i) disclosure of the medical report, and (ii) the hearing as witnesses of the authors of the report.
Spain's response, it is convenient to note at this stage, was communicated by letter from the Spanish ambassador dated 17 January:
"I have received instructions to convey to you the full Spanish respect for the decision that the Home Secretary may take, in the understanding that the decision that he has indicated that he is minded to take is within his exclusive discretionary powers according to applicable British laws. With regard to that, I confirm to you that the Kingdom of Spain has no intention to appeal against the decision taken in due time by the Home Secretary."
The letter indicated the Spanish government's awareness that the decision would be based upon "all the data available" and the representations previously made. It also enclosed a detailed letter from the Spanish judge complaining inter alia of "the lack of knowledge about the medical report upon which an opinion is asked for, which renders a bit absurd situation (sic) ... [and] makes impossible any kind of concrete pronouncement, rendering illusory the guarantees that should be present - as essential elements - in every criminal proceedings, i.e. the principle of equal opportunities for all parties."
France and Switzerland, we are told, have made representations, to what effect we know not.
The Application below
As already indicated, the applicants below were seeking substantially more in the way of relief than they do now. Now they ask only that the Secretary of State should do that which he has stated that he would like to do: disclose the report under conditions of strict confidentiality to the four requesting states.
There is another respect too in which the argument below went to issues that fell away before us. Given the narrower basis of challenge now advanced, Mr Sumption QC for the Secretary of State accepted that Amnesty as well as Belgium have sufficient interest to give them standing. Nor has it been necessary to explore the somewhat technical arguments that arose below with regard to Belgium's letters rogatory.
On the core issue, however, the arguments before us plainly ranged further and wider than in the court below. By no means all of them, I should warn, will find mention in this judgment.
The Context of the Secretary of State's Decision
Before I turn to the arguments, it is necessary to set out the context in which the decision was taken. The applicants' central contention is that the requesting states, all of whom were given the opportunity (although only Spain was expressly invited) to make representations in respect of the Secretary of State's "minded to" decision, are entitled as a matter of fairness to be shown the report. Fairness, therefore, is at the heart of this challenge and, as Lord Mustill said in R v Home Secretary ex parte Doody [1994] 1 AC 531 at 560:
"What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. ... An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken."
The decision which the Secretary of State is presently considering falls to be taken under s.12 of the Extradition Act 1989:
"(1) Where a person is committed under s.9 above and is not discharged by order of the High Court [as stated, Senator Pinochet's application for habeas corpus remains outstanding], the Secretary of State may by warrant order him to be returned unless his return is prohibited, or prohibited for the time being, by this Act or the Secretary of State decides under this section to make no such order in his case.
(2) Without prejudice to his general discretion as to the making of an order for the return of a person to a foreign state ...
a. the Secretary of State shall not make an order in the case of any person if it appears to the Secretary of State in relation to the ... offences in respect of which his return is sought that ... (ii) by reason of the passage of time since he is alleged to have committed it ... it would, having regard to all the circumstances, be unjust or oppressive to return him ..."
Were the Secretary of State to take the view that Senator Pinochet's medical condition brought him within s.12(2)(a)(ii) and that in those circumstances it would be "unjust or oppressive to return him", then he would have no discretion in the matter: Senator Pinochet would have to be discharged. If, however, s.12(2)(a) does not apply - and the case law suggests a narrow application of these provisions - the Secretary of State would nevertheless have a general discretion in the matter and would then need to have regard to a whole range of other considerations - including his policy in extradition cases, various political considerations (one notes amongst the consultees the Government of Chile, the Foreign and Commonwealth Office and the Ministry of Defence), and where best the decision on fitness for trial should be taken - the relevance and weight of which would be entirely for him.
If at any point the Secretary of State were contemplating making an order for Senator Pinochet's return, it should be noted, Senator Pinochet would have the right to make representations under s.13(2) of the Act, and if, despite those representations, a warrant for his return were issued, a right under s.13(6) to apply for leave to seek judicial review of the Secretary of State's decision to make the order. The respondents point out that there is no equivalent provision in the Act for the requesting state to be given advance notice of an adverse decision and an opportunity to make representations about it. They point too to dicta of the highest authority indicating that the Secretary of State's discretion is unfettered and that it exists mainly for the benefit of the accused, not the requesting state. As Lord Reid said in Atkinson v Government of the United States of America [1971] AC 197 at 232:
"The Secretary of State always has power to refuse to surrender a man committed to prison by the magistrate. It appears to me that Parliament must have intended the Secretary of State to use that power whenever in his view it would be wrong, unjust or oppressive to surrender the man."
This approach, the Secretary of State and Senator Pinochet submit, is consistent too with the provisions of the European Convention on Extradition under which the rights of requesting states are limited. Their express rights are solely (i) to make an extradition request (Article 12), (ii) to be given an opportunity to supply any supplementary information necessary to enable the requested state to make a decision (Article 13) and (iii) to be given reasons by the requested state for any complete or partial rejection of their request (Article 18(2)). By Article 22 it is provided that: "Except where this Convention otherwise provides, the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested Party."
Essentially, therefore, submit the respondents, the Secretary of State's discretion exists principally for the protection of the accused and neither the Statute nor the Convention accord to the requesting state any right to participate in its exercise. Rather the decision falls to be taken by the executive authority acting inquisitorially and, as Staughton LJ said in R v Secretary of State ex parte McGuire [unreported, 25 November 1995]:
"What fairness requires in this situation is a proper balance between the basic requirements of justice on the one hand and the manifest intent of the statute on the other that there should not be a lengthy and elaborate trial before the fugitive can be surrendered for trial somewhere else."
A fortiori, submit the respondents, there should not be a lengthy and elaborate trial before an accused can be discharged.
The Secretary of State's Argument
That statutory context notwithstanding, the Secretary of State accepts that the interests of the requesting states (and most particularly Spain) are directly affected by his decision and that he is under a duty to act fairly towards them. He submits, however, that fairness here does not require the disclosure of the report to those states. True, he acknowledges, where a public authority is under an obligation to consult others about a prospective decision or chooses to do so, the consultation must be effective. As Webster J said in R v Secretary of State for Social Services ex parte Association of Metropolitan Authorities [1986] 1 WLR 1, 4:
"... sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice. ... By helpful advice in this context, I mean sufficiently informed and considered information or advice about aspects of the form or substance of the proposals, ... being aspects material to the implementation of the proposals as to which the Secretary of State might not be fully informed or advised and as to which the party consulted might have relevant information or advice to offer."
Here, submits Mr Sumption, the requesting states were not being consulted upon Senator Pinochet's clinical condition but rather upon the implications of that condition for the Secretary of State's final decision, for example upon whether it would be more consonant with justice to leave to Spain the question of fitness for trial. And certainly, he submits, the consultees could have nothing useful to say about Senator Pinochet's fitness to stand trial: the primary facts about his condition are a matter of direct clinical observation and cannot be challenged by those who have not observed him; the rest is a matter of professional opinion based on those facts. Unless, therefore, the report on its face contains some patent logical or clinical error which vitiates its conclusions, no effective representations could be made upon it. In the light of the CMO's assessment of the report as comprehensive and authoritative, the Secretary of State is satisfied that no such vitiating error exists. In short, submits Mr Sumption, even if the requesting states are to be regarded as having been consulted generally upon the question of Senator Pinochet's future, his fitness to stand trial was not an "aspect" of the decision upon which they "might have relevant information or advice to offer."
Mr Sumption further relies in this part of his argument upon the authority of R v Joint Higher Committee on Surgical Training ex parte Milner (1995) 7 Admin LR 454 in which Ognall J rejected the applicant's complaint about the non-disclosure of his tutors' reports upon his surgical abilities on the footing that he "has not demonstrated that the evidence on which the [advisory committee] relied is amenable to any significant challenge or any challenge which would have made any difference to the outcome." So too here, submits the Secretary of State. The possibility of the requesting states being able to affect his thinking on the issue of fitness for trial is remote and highly speculative. The court is not concerned with theoretical possibilities but with substantial injustice - see R v The Chief Constable of the Thames Valley Police ex parte Cotton [1990] IRLR 344.
Not merely is the Secretary of State therefore not bound to disclose the report, but, submits Mr Sumption, he is not even entitled to do so and this, moreover, considerations of confidentiality apart. In support of this limb of his argument Mr Sumption relies on R v Chief Constable of North Wales Police ex parte Thorpe [1999] QB 396, a case where convicted paedophiles unsuccessfully sought to challenge the right of the police to disclose information about them in the locality to which they had moved upon release from prison. Lord Bingham CJ in the Divisional Court (at pp.409 - 410) said this:
"When, in the course of performing its public duties, a public body ... comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to that member of the public if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for performance of its public duty or enabling some other public body to perform its public duty ... The principle ... rests on a fundamental rule of good public administration which the law must recognise and if necessary enforce."
In the Court of Appeal Lord Woolf MR put the principle thus:
"... the information having come into the police's possession to enable them to perform their functions, as a public body they were only entitled to use that information when this was reasonably required to enable them to properly carry out their functions."
It is Mr Sumption's contention that it is unnecessary for the Secretary of State to disclose the report to the requesting states for the proper performance of his public duty. This is to reach a decision under s.12 and, if he refuses extradition, to refer the case to the Solicitor General and DPP pursuant to Article 7 of the Torture Convention. If, as he is satisfied, consultation with the requesting states on the contents of the report would serve no useful purpose, then it cannot be necessary for the performance of his public duty that he should disclose it to them. Only if there was a realistic possibility of their being able to make effective representations on the issue of Senator Pinochet's fitness to stand trial would the Secretary of State be entitled to disclose the report to them. Perhaps then in any event Spain at least would be entitled to see the report pursuant to their right under Article 13 of the European Convention on Extradition to be given the opportunity to supply "supplementary information necessary to enable the requested state to make a decision".
Mr Sumption turns next to an important further feature of this report, namely its confidential character. That medical information is intrinsically confidential (and attracts the right of privacy under ECHR) is indisputable. And this report, of course, was subject also to an express assurance of confidentiality. Senator Pinochet cannot be deprived of these rights without proper legal reason and here, submit the respondents, there is none. There is no point in consulting on the contents of the report since its conclusions cannot usefully be challenged. Disclosure to the requesting states, therefore, is not necessary for the proper performance of the Secretary of State's executive function so that there exists no countervailing public interest capable of overriding Senator Pinochet's rights. Disclosure here, Mr Sumption argues, would not be "in accordance with the law and ... necessary in a democratic society ... for the prevention of disorder or crime" (Article 8.2 of ECHR) as those terms are explained in the Strasbourg jurisprudence.
In the result, submits Mr Sumption, although the Secretary of State would prefer as a matter of courtesy to disclose the report to the four requesting states, he is not in law entitled to do so, a submission in which he is strongly supported by Mr Nicholls QC for Senator Pinochet.
These are powerful arguments. But there are powerful arguments on the other side too. Before I turn to these, however, it is convenient first to say something about the Secretary of State's initial assurance to Senator Pinochet that the report's contents would be kept "entirely confidential" (letter of 5 November 1999) and "would not be disclosed" save to the Secretary of State, DPP, and Solicitor General (letter of 29 November 1999).
The Secretary of State's assurance of confidentiality
Although at first blush that express assurance might be thought of some importance, Mr Sumption tells us that in fact it plays little if any part in the Secretary of State's decision not to disclose the report. And that, indeed, is the logic of his argument: given that the contents of the report are in any event confidential, then no assurance was required; equally, if the public interest in disclosure is such as to outweigh the confidentiality, disclosure would have to be made whether or not an assurance had been given. In short, Mr Sumption tells us, the assurance was given because it was thought that in those circumstances Senator Pinochet would be more likely to agree to independent medical examination (his health having been put in issue by Chile rather than himself) but the Secretary of State regarded it in any event as subject to an implied term that it would give way to any overriding public interest. Mr Sumption, indeed, further suggests that disclosure has already been made in two respects beyond that to which Senator Pinochet consented. In the first place, the report was disclosed to the CMO, an officer of the Department of Health, not the Home Office. Secondly, the report's conclusions were announced by press notice, to the effect that Senator Pinochet is and is likely to remain permanently unfit to stand trial, and moreover the Secretary of State has published his instructions to the clinicians and the criteria by which they reached their conclusion, namely Senator Pinochet's ability to follow the proceedings, give intelligible instructions to his lawyers, recall events, and give coherent evidence.
There is this further important consideration. As Mr Stadlen, the senior Home Office official concerned with extradition, states in his witness statement of 7 February 2000 (provided at our request during the hearing):
"In almost all cases where the accused's health is raised as a serious issue, I would normally expect it to be necessary to seek further information from the requesting state. There are two reasons for this. The first is that the accused's condition is almost invariably amenable, at least to some extent, to treatment or alleviation. Its significance may therefore depend on the facilities available in the requesting state for treating him or otherwise dealing with his condition ... This is so, whether it is being contended that the accused is unfit to stand trial or simply that it would be unduly harsh to extradite him. The Home Office's ordinary practice in such cases is to seek information on this point from the requesting state, so that it can be put before the Secretary of State when he makes his decision. For this purpose it is usually necessary to supply the requesting state with a copy of the medical report so that it may properly consider the facilities for dealing with the problems described in it. The second reason why the accused's health may make it necessary to seek further information from the requesting state applies only to cases where it is being said that he is unfit to stand trial. In this case the Home Office may ask the requesting state what are its criteria and procedures for determing the accused's fitness to plead."
Mr Stadlen then describes Senator Pinochet's case as unique in a number of respects including this:
"... his condition is of such a nature that no significant improvement can be expected. This meant that there was no question of enquiring of the requesting states what facilities they had for treatment or alleviation. So far as I am able to discover, there has been no previous case of an accused who on the best available medical evidence, was permanently unfit to be tried."
It follows from all this that had the report not, uniquely amongst such reports, concluded that no significant improvement can be expected in Senator Pinochet's condition, it would in any event have been disclosed to the requesting states. It is hardly surprising that in these circumstances the Secretary of State's case for non-disclosure is not founded upon the assurance. The assurance accordingly has now lost the significance which appears earlier to have been attached to it - not least, for example, in the Home Office's letter to Amnesty of 18 January 2000 - and it is therefore unnecessary to explore, as at one stage had seemed essential, both the wisdom and the effect of the Secretary of State having given the assurance in the first place.
On analysis there arises but a single question in this case: does the public interest in making the limited further disclosure now sought outweigh the remaining confidentiality in the report? That in turn seems to me to depend upon whether disclosure to the requesting states is required in the interests of fairness. If fairness demands disclosure, then to my mind disclosure clearly becomes the overriding public interest.
The Applicants' Argument
Although both Mr Pleming QC for Belgium and Mr Drabble QC for Amnesty made their own very full written and oral submissions to the court, I think it convenient, now that standing is no longer in issue because the applicants jointly seek the same relief, to treat their cases for the most part indistinguishably. Three central themes dominate their arguments. First that, contrary to Mr Sumption's core submission, the requesting states might well be able to make useful representations on the content of the report. Second, that an executive decision maker, acting quasi-judicially as the Secretary of State on 13 January 2000 told Parliament he is, cannot properly withhold from directly interested parties the very material which is likely to form the foundation of his decision simply on the basis of his ipse dixit that its conclusions are incontrovertible. Third, it is submitted that the appearance of fairness is of very particular importance in the circumstances of this unique case. Let me consider these briefly in turn.
The applicants contend that, if the report were disclosed to them, the requesting states would be able to express views (a) upon the value of the particular tests used to establish whether Senator Pinochet could meaningfully participate in a trial, (b) whether or not his condition (i) could be feigned, and (ii) is permanent, and (c) whether the analysis of the tests and the conclusions drawn from them were valid. The mere fact that the clinicians selected for the examination were of great eminence and that the CMO was later involved does not mean that the conclusions drawn from the report are necessarily unassailable. It is salutary to recall Megarry J's celebrated dictum in John v Rees [1970] Ch. 345, 402:
"It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ´When something is obvious,' they may say, ´why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.' Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."
Milner, submit the applicants, was a very different case. At the heart of the judge's conclusion there was that the undisclosed reports contained essentially expressions of opinion rather than disputed matters of fact; the applicant "might have vigorously dissented from them, but could not in any sensible way have corrected them." Here, by contrast, the medical opinions relied upon by the Secretary of State depend crucially on the undisclosed primary facts and, it is said, the requesting states (or rather the medical experts advising them) may well have informed comment to make upon them.
The applicants' second main argument is that where, as here, the undisclosed report founds the very basis of the proposed decision, a fairness challenge cannot be resisted simply by asserting that its effect is overwhelming. That is decision-making by ministerial fiat based on unexamined material. It is hidden justice, the very antithesis of a just procedure. Once, as here, an obligation to act fairly to the requesting states as directly interested parties is recognised, then the material upon which it is proposed to take the decision should be made available to them unless there are compelling reasons to the contrary. Here there are not. Given (a) the extent to which the conclusions of the report have already been made public, and (b) the limited and closely controlled further disclosure now sought, comparatively little further impairment of privacy would be involved.
Thirdly, this is on any view a highly exceptional case and yet, paradoxically, it appears to be the only extradition case in which, according to Mr Stadlen, the Secretary of State has not consulted with the requesting state on the medical issues raised in respect of the accused. One exceptional feature of this case is that it involves allegations of international crimes, crimes against not only the laws of particular states but the laws of all nations. Lord Browne-Wilkinson in R v Bow Street Magistrate ex parte Pinochet (No. 3) [1999] 2 WLR 827, 841, noting that the international law prohibiting torture has the character of jus cogens or a peremptory norm, said this:
"The jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed. International law provides that offences jus cogens may be punished by any state because the offenders are ´common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution': Demjanjuk v Petrovsky (1985) 603 F.Supp. 1468."
The applicants contend that it cannot be right for the executive of a single state to make so fundamental a decision in relation to the unfitness for trial of an alleged "enemy of all mankind" without subjecting the underlying medical report to some form of consideration by requesting states who "have an equal interest in [Senator Pinochet's] apprehension and prosecution."
Conclusions
I have not found this an easy case. There are, as I have said, powerful arguments on both sides. Ultimately, as I have sought to explain, there is but a single question for our determination: does fairness require disclosure of this report to the requesting states? This is not a question which we can shirk on the footing that the procedure to be followed by the Secretary of State is substantially a matter for him. It is not. As De Smith, Woolf and Jowell, 5th edition, states at pages 406- 407:
"Whether fairness is required and what is involved in order to achieve fairness is for the decision of the courts as a matter of law. The issue is not one for the discretion of the decision-maker. The test is not whether no reasonable body would have thought it proper to dispense with a fair hearing. The Wednesbury reserve has no place in relation to procedural propriety."
The footnoted case of R v Panel on Takeovers and Mergers ex parte Guinness [1990] QB 146 is clear authority for that proposition.
I readily see the force of much of Mr Sumption's argument. In common with the Secretary of State, I too doubt whether on sight of the report the requesting states would in reality be able to make representations seriously challenging the cogency of its conclusions. I recognise too that some additional loss of confidentiality and privacy would be involved in any further disclosure of the report and that Senator Pinochet remains an unconvicted accused who himself has rights which must be protected. It is also true that under the scheme of extradition contemplated by the European Convention and the 1989 Act there is no right in the requesting state, let alone anyone else, to participate fully in decisions taken by the executive of the requested state in the exercise of its wide discretion. As Mr Stadlen observes:
"In no previous case of which I am aware has the Secretary of State announced a provisional decision publicly and invited representations from the parties. Representations were invited on this occasion from those who had participated in the hearings in the House of Lords and made representations on the two occasions when the Secretary of State was considering the issue of Authorities to Proceed. This reflected the exceptional public controversy surrounding the Pinochet case, and a genuine belief that human rights organisations with special expertise of international human rights law and practice might have something to say in those areas which would be of value in the decision-making process."
The Secretary of State plainly cannot be faulted in the care he took to commission as expert and authoritative a medical report as possible, nor in the range of those whom he later chose to consult. He is, indeed, much to be commended in these regards. Mr Sumption makes the further telling point that never previously has a requesting state (or anyone else) sought to challenge a decision of the Secretary of State favourable to the accused. Rather such decisions have hitherto been accepted with good grace. It is, he submits, of some significance that Spain is not amongst those challenging the present decision. These are, I repeat, powerful arguments.
Yet despite them all I find myself driven to conclude that this report really ought to be disclosed to the requesting states. The decision which the Secretary of State is "minded to" take is, it need hardly be emphasised, one of very great moment. Its consequence would be that Senator Pinochet, accused though he is of the most terrible crimes, would be effectively untriable anywhere in the world. He would not be extradited to Spain. No more would he be extradited to any of the other three requesting states. Although theoretically the Solicitor General and DPP would need to reach an independent decision on whether to prosecute him here under Article 7 of the Torture Convention, the inescapable logic of the Secretary of State's position is that they too would inevitably find Senator Pinochet unfit for trial. Whilst, of course, the Chilean authorities would not themselves be bound by the Secretary of State's conclusion, Senator Pinochet would presumably pray it in aid with compelling effect in any proceedings brought against him there. If ever there were a case in which the integrity of the international criminal justice system needed to be demonstrated, a case calling for the highest standards of fairness and transparency, this is it. It is simply not satisfactory that this all-important medical report should be seen only by four office-holders within a single state.
Much would be gained by the limited further disclosure now sought; comparatively little lost. The gains would be first and foremost that the requesting states would have the opportunity to comment - and just might have something constructive to say - about the report's conclusions. Second, justice would be seen to be done. Third, minds would be set at rest. If, as the Secretary of State clearly supposes, those who see the report are almost certain to endorse his conclusion upon it, that very endorsement might be expected to reassure the wider world. More than mere courtesy (or "good public relations" as Mr Sumption came to call it) would be achieved: a uniquely controversial case would have been decided according to the fairest possible procedures. And what would be lost? Little in the way of delay, even at this late stage. As we indicated during the hearing, the Secretary of State would need to allow the requesting states no more than perhaps seven days following sight of the report to make their final comments upon it. It would then be for him alone (aided by such further advice as he chose to take) to evaluate these responses and reach his final decision. There is no question of embarking on "a lengthy and elaborate trial" of the kind rightly held inappropriate in ex parte McGuire. Nor will the order proposed here represent a charter for disappointed prosecutors or victims in future; it is difficult to imagine another case combining so many extraordinary features as this one.
As for the additional loss of confidence involved in further disclosure of the report, this seems to me in the particular context both limited and predictable. Its limited nature is surely obvious. The report's conclusions have already been publicly announced. What remains to be disclosed are the factual findings underlying them and these will be seen only by the requesting states and under conditions of strict confidence. Why I describe this additional loss of confidence as predictable is because the issue to which the report goes - the accused's fitness for trial - is ordinarily one for resolution within the judicial process. Under domestic law the question of fitness to plead is one for a jury, that of general fitness to stand trial (at any rate once proceedings have started) one for the judge. And, as I understand it, in all the other states party to the European Convention on Extradition the present issue would fall to be resolved by the courts rather than the executive. Indeed, were Senator Pinochet to rely on his medical condition in the course of his pending habeas corpus application under s.11 of the 1989 Act (the terms of which precisely mirror those of s.12), the report then would clearly have to be disclosed at least to Spain.
I recognise, of course, that initially it was Chile who put Senator Pinochet's medical condition in issue and that it was at least partly for this reason that the express assurance of confidentiality was given. Once, however, Senator Pinochet lent himself to what is essentially an application for discharge on the ground of unfitness to stand trial - as to my mind he did by submitting to medical examination - and once one discounts the express assurance of confidentiality - as for the reasons already given one must - these factors cannot in my judgment outweigh the demands of fairness and transparency in the decision-making process.
What, then, of the respondents' reliance on Article 8 of ECHR to protect Senator Pinochet's privacy? In my judgment it is misplaced. Accepting entirely, as I do, "that the protection of ... medical data is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life" (see MS v Sweden (1999) 28 EHRR 313, 338), I nevertheless conclude that the limited further disclosure proposed here would be both "in accordance with the law" and "necessary in a democratic society ... for the prevention of discorder or crime". I have already described the proposed disclosure as predictable and to my mind Senator Pinochet could properly have foreseen that it would be required by the common law in the interests of a fair and just procedure. "The prevention of disorder or crime" extends to the prosecution or extradition of alleged offenders and again it seems to me that the limited further interference with Senator Pinochet's rights proposed here is proportionate to the pressing social need for such a process to apply fairly to all concerned and not merely the accused himself. Even, therefore, were the Human Rights Act 1998 already in full force, I would not regard the proposed order as involving any violation of Senator Pinochet's Article 8 rights.
It follows from all this that on the central issue arising on this challenge I would hold that fairness demands that the report now be disclosed to the four requesting states and that they be given a brief opportunity to comment upon it. I reject the Secretary of State's argument that this can be dispensed with as "pointless," and I reject too his and Senator Pinochet's contention that the loss of confidentiality and privacy involved is disproportionate to the advantages this will bring. In the result, the Secretary of State is not merely entitled to make disclosure; he is obliged to do so. The governing interest is the public interest in operating a procedure which would be perceived and accepted by the great majority to be fair. That is the imperative and in my judgment it outweighs any contrary private interest. That, therefore, is the order I would make.
I should perhaps add this. I regard the challenge advanced by these particular applicants as neither weaker nor stronger than any challenge which Spain itself might have brought. Not weaker because, once their standing is accepted, the court must rule on the issue raised - the fairness and thus the legality of the procedure impugned - no less than were Spain the applicant. Not stronger because I find no substance in any of the party-specific arguments raised by each applicant. I reject Mr Pleming's contention that Belgium must be regarded as "some other public body" (within Lord Bingham's formulation in ex parte Thorpe) which now needs to see the report "to perform its public duty", namely to decide whether or not to pursue its own extradition request. That seems to me entirely artifical and contrived. But, of course, the submission is an unnecessary one given that ex parte Thorpe cannot in any event avail the Secretary of State once the court holds, as I would, the further disclosure to be "necessary for [the] performance of [his] public duty." Nor do I find Mr Drabble's reliance on Article 6 of ECHR any more convincing than did Maurice Kay J on the initial application. The argument in essence is that a number of torture victims represented by Justicia propose to bring civil claims in Spain which would be dependent upon the successful prosecution there of Senator Pinochet, and that this prospect ought not to be curtailed by the Secretary of State's proposed decision without the process being attended by greater procedural safeguards than have thus far been afforded. Of course one sympathises deeply with the victims of torture: their concerns that justice in the extradition process be done and be seen to be done is readily understandable. Their civil claims, however, to my mind add nothing to their urgent plea that, if at all possible, Senator Pinochet should stand trial.
Finally this. Much was made by Mr Pleming in argument of the importance in this case of international law obligations and the comity of nations, and true it is that our law is replete with dicta explaining how extradition is founded in concepts of comity and reciprocity. But it is important to recognise the nature of the rules of comity in public international law. They are, said Lord Diplock in Buck v The Attorney General [1965] 1 Ch. 745 at 770, "the accepted rules of mutual conduct as between state and state which each state adopts in relation to other states and expects other states to adopt in relation to each other". Or, as Donaldson LJ put it in Buttes Gas and Oil Company v Hammer [1981] QB 223 at 256: "do as you would be done by".
I do not believe that comity in the present context requires more of the Secretary of State than that he acts with the conspicuous fairness to the requesting states which disclosure of the report to them would represent. And this too should be added. Comity, like fairness, is a two-way street. Both Belgium and Amnesty have clearly stated that they would support the Secretary of State's decision if only they could be satisfied that Senator Pinochet is indeed shown by the report to be permanently unfit to stand trial. The requesting states, one must hope and expect, will not lightly dissent from the Secretary of State's conclusion. They will wish to be scrupulous to ensure that any critique they make of the report is itself fair. They too must do as they would be done by.
That, however, is but a footnote. For the reasons given earlier, this application succeeds.
MR JUSTICE LATHAM:
This application raises novel and difficult issues as to the functions and duties of the Secretary of State in a case which has already resulted in substantial legal and political controversy. I agree with Simon Brown LJ that the issue before us can be reduced to the single question: did fairness, in the context of these extradition proceedings, require the Secretary of State to disclose the contents of the medical reports to the requesting states? The Secretary of State has consistently argued that the obligation upon him, when considering whether or not to exercise the discretionary power under Section 12 of the Extradition Act 1989 not to order Senator Pinochet's return to Spain, required him to do no more than fully inform himself of all relevant material, and come to a rational decision in the light of that material. He accepts a limited duty to consult those from whom he invited representations as to what consequences should follow from his conclusion that Senator Pinochet is unfit to stand trial. He also accepts that he would be bound to take into account any relevant representations made by any person, organisation, or country, and in particular the requesting states, who, although not expressed to be consultees, nonetheless clearly had the opportunity to make representations. He asserts that no useful purpose would be served by consulting in relation to the medical reports, as to which he has already reached a clear and unequivocal conclusion, supported by the Chief Medical Officer. Further medical opinions he says would either be of no value, as any doctor seeking to give such an opinion could not examine Senator Pinochet himself, or be of little value. It follows that there is no significant prospect of consultation in relation to the medical reports producing any material of value in the decision that he has to make. It follows, he says, that there is no public interest which could justify the clear breach of confidence which would be entailed in disclosing the medical reports.
The Human Rights organisations, and Belgium, have all now narrowed their argument to the proposition that the requesting states have an interest in the decision which is sufficient to entitle them to be consulted as a matter of fairness, and that proper consultation necessarily involves disclosure of the medical reports. They say that the Secretary of State has misdirected himself if he considers that no useful purpose could be served by such disclosure. It is said that useful comment could be made, inter alia, about whether or not the clinical examination and tests were appropriate and did support the medical opinions expressed, and whether or not the medical opinions supported the Secretary of State's conclusion. It is pointed out that the Secretary of State himself considered that it was appropriate, strictly in breach of the assurance of confidentiality, to obtain the opinion of the Chief Medical Officer. The consultation offered is so restricted as to be meaningless. The result would be that the Secretary of State could come to a conclusion which would have the consequences described by Simon Brown LJ on the ipse dixit of the Secretary of State without any opportunity for anyone, including the Court, to comment on the extent to which the conclusion the Secretary of State has reached as to Senator Pinochet's condition is indeed justified by the medical reports.
Those are the battle lines drawn by the protagonists on what I conceive to be the central issue. I agree with Simon Brown LJ that the discrete point taken by the Human Rights organisations based upon Article 6 of the European Convention of Human Rights has no merit. Whilst the interests of victims are capable of being a consideration relevant to the exercise of the Secretary of State's discretion, a refusal to order Senator Pinochet's return in no way interferes with the rights of those victims in the United Kingdom nor does it preclude them from bringing civil proceedings wherever they wish to do so. Equally, for the reasons that he has given, it seems to me that the arguments which have been addressed to us arising out of the assurances given to Senator Pinochet are of subsidiary relevance. The assurance was inevitably subject to any overriding considerations of public interest. Clearly Article 8 is relevant in this context; but, as Simon Brown LJ has explained, does not at the end of the day add anything in this context to domestic law.
Having formulated the essential question in the way I have, I do not intend to dissent in any way from the proposition of the Secretary of State that the exercise that he is engaged in is the exercise of a discretionary power, in which his fundamental obligation is to take reasonable steps to inform himself of all relevant material and come to a rational conclusion on that material. Fairness will necessarily be part of the process wherever the exercise of the discretion is capable of affecting the interests of a person or body to the detriment of that person or body. But that general statement of principle is in one sense no help. The Secretary of State has, by implication even if not expressly, accepted a duty to act fairly in the sense that he considers that it is appropriate for him to obtain representations in relation to the course of action that he should adopt in the light of his conclusions. The concept of fairness underpins the duty to consult. It is the rationale of any express duty to consult, and the justification for any implied duty, whether expressed as arising from a legitimate expectation, or otherwise. The difficulty is in deciding how the concept of fairness can be met in any given case.
In R v Home Secretary ex p Doody [1994] 1AC 531 at page 560 Lord Mustill set out a number of factors which have to be borne in mind. In particular he said:
"(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.
(4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within in which the decision is taken.
(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.
(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests of fairness will very often require that he is informed of the gist of the case which he has to answer.......
...... the respondents acknowledge that it is not enough for them to persuade the Court that some procedure other than the one adopted by the decision maker would be far better or more fair. Rather they must show that the procedure is actually unfair. The Court must constantly bear in mind that it is to the decision maker, not the Court, that parliament has entrusted not only the making of the decision but also the choice as to how the decision is made."
In the present case, the context includes not only domestic legislation, but international treaties, as explained by Simon Brown LJ. There is much to be said for the view which underpins the argument of the Secretary of State, that the requesting state has only a limited role once the requested state has accepted that extradition procedures are appropriate in relation to the accused in question. Clearly, at the time that it is making the request, it has the task of setting out sufficient material to persuade the Secretary of State to give his authority to proceed. But thereafter, apart from the opportunity to respond to a request for further information, neither the European Convention on Extradition Order 1990 nor the Extradition Act 1989 envisage a separate role for the requesting state beyond that required for the judicial process of determining whether the requirements of the Act have been satisfied so as to justify the return of the accused.
In support of their argument that the requesting state does have a role in any discretionary decisions which may fall to be made, the Human Rights organisations and Belgium rely on the international obligation of comity which, it is said, requires a requested state to consult a requesting state if a discretionary decision to refuse to order return is contemplated. I have considerable difficulty with this argument. If a settled practice could be identified by which nations did consult in such circumstances, then that might have provided some basis for the argument that comity, as a distinct principle, had some application to this type of situation. In the absence of any evidence of such practice, I cannot see how the concept of comity advances the case any more than the general principle of fairness does. Either a requesting state has, in the context of the treaties and legislation a sufficient interest in a particular decision to justify the conclusion that a failure to consult will amount to unfairness, or it does not.
For my part, I have little difficulty in accepting the proposition that the requesting state does have a sufficient interest in a decision as to whether or not, in the exercise of discretion, the Secretary of State should decline to order return to justify imposing upon him the obligation to act fairly towards the requesting state. In truth, I do not believe that the Secretary of State would seek to argue the contrary. The real question is whether or not in choosing to invite representations on the limited basis that he did, he in fact acted fairly. The Secretary of State submits that he did; he did not consider that any purpose would be served by offering consultation in relation to the medical reports, as the results of that consultation could not realistically be expected to have provided any useful material for the purposes of the exercise of his statutory functions. The cases of R v Joint Higher Committee on Surgical Training ex parte Milner [1994] 7 Admin CR 56 and R v The Chief Constable of the Thames Valley Police ex parte Cotton [1990] I RLR 344 are authority for the proposition, it is said, that where no purpose could be served by giving an opportunity to comment on or make representations about matters to be taken into account by the Secretary of State, no unfairness results if such representations were bound to be of no effect. Assuming for the moment that those cases are authority for that proposition, this argument, in my judgment, brings into useful focus the fact that the approach of both the Secretary of State, and the Human Rights organisations and Belgium essentially point in the same direction. As I see it, the Secretary of State accepts that were consultation appropriate, it must be the sort of consultation described by Webster J in R v Secretary of State for Social Services ex parte Association of Metropolitan Authorities [1986] 1WLR 1. And, as I understand it, he accepts that if representations resulting from such consultation are capable of producing material which might have a significant effect on the exercise of his statutory function, then, in relation to a person who in fairness he should consult, he is under an obligation to do so effectively. It follows that if, on the one hand, fairness to the interests of the requesting states points to the need for consultation, and, on the other, consultation in relation to the content of the medical report could produce material capable of affecting the Secretary of State's decision, then disclosure of the reports would be necessary in order to meet the obligation of fairness.
In my judgment the argument that no useful representations could be made about the content of the medical reports is untenable. The Secretary of State himself considered that the views of the Chief Medical Officer were at the very least relevant. Other informed representations may produce useful information, opinion or argument to help the Secretary of State to decide whether the medical examinations were sufficient and appropriate, and whether the conclusions are justified, and are a secure basis upon which to determine that Senator Pinochet is unfit to stand trial. Confirmation of his present view could be as helpful as criticism. To deny the requesting states the opportunity to make such representations is in my judgment unfair in the sense that effective consultation has been denied to them.
There is therefore a sufficiently clear public interest in their disclosure, but only to requesting states, to justify overriding Senator Pinochet's right to confidentiality. That confidence has, in any event, been compromised by disclosure to the Chief Medical Officer, and by the very nature of the Secretary of State's public statement as to his present intentions. Limited disclosure to one or more of the requesting states on appropriate terms would not, in my judgment, breach the domestic law of confidence, nor Article 8 of the European Convention on Human Rights which recognises the public interest, in particular in relation to the prevention of crime, which is a wide enough interest to encompass decisions such as this taken in the course of criminal proceedings.
MR JUSTICE DYSON:
These applications are but the latest in a long series of legal proceedings that have been generated by the detention of Senator Pinochet in this country, and the subsequent attempts to have him extradited. Two features of this case are particularly relevant to the applications. First, and overwhelmingly, the charges are of the utmost gravity. They have attracted strong and emotional responses worldwide. We were told that the Secretary of State has received 47,000 representations as to how he should exercise his powers under section 12 of the Extradition Act 1989. The alleged crimes offend against the laws of all nations. Torture is a "peremptory norm" of international law, which may be punished by any state, because "the offenders are "common enemies" of mankind, and all nations have an equal interest in their apprehension and prosecution": per Lord Browne-Wilkinson in R v Secretary of State for Home Affairs ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827, 841B. No doubt, that is why the Secretary of State took the course, never previously taken, of inviting a number of human rights organisations to make representations to him. As Mr Stadlen puts it, this reflected the exceptional public controversy surrounding the Pinochet case. There has been no previous case in which a requesting state (or anyone else) has sought to challenge a decision by the Secretary of State that is favourable to the accused. That is as good an indicator as any of the uniqueness of this case.
Secondly, the Secretary of State has been advised that Senator Pinochet is at present unfit for trial, and that no improvement in his condition can be expected. If the Secretary of State had been of the opinion that Senator Pinochet's condition was treatable, he would almost certainly have disclosed the medical report to the Spanish authorities. This is because he would have wanted to know whether the facilities for treating Senator Pinochet's condition were available in Spain before deciding whether to extradite him.
The short question raised by these applications is whether the Secretary of State has acted unlawfully in refusing to disclose the medical report without the consent of Senator Pinochet. The applicants contend that fairness requires disclosure; the Secretary of State and Senator Pinochet say that it does not. That is the stark issue that falls to be determined.
In my view, the starting point is that the Secretary of State did decide to invite representations before making his decision. That may have been an unusual course to adopt, but that is what he did. Spain and the human rights organisations were expressly invited to make representations. By writing in the terms that he did to the other requesting states, it seems to me that he impliedly invited representations from them too. It is submitted on behalf of the Secretary of State that the invitation did not extend to making comment on the medical opinion that had been reached. It is said that all that was being offered was the opportunity to provide information that the Secretary of State might take into account in exercising his discretion under section 12 of the 1989 Act. Mr Stadlen says that he did not "envisage" that representations would include criticisms of the medical examination. But it seems to me that the Secretary of State was asking for representations quite generally.There was nothing in the letters of 11 January to indicate that the representations could not include expressions of opinion, or that they could not express an opinion on the medical issue. In fact, the principal purpose of the letters was not to elicit factual information, but to seek the views of those consulted, so that they could be taken into account by the Secretary of State when he made his decision whether or not to extradite.
Since the human rights organisations no longer seek disclosure of the medical report to themselves, and are content with disclosure to the requesting states, I shall give no further separate consideration to their position. It is said that there is nothing in the terms of the European Convention on Extradition or the 1989 Act itself to indicate that the requesting state is intended to have any role in the decision making process. That is unquestionably correct. But the requesting state is not an intermeddling busybody: it has a vital interest in the outcome of the extradition proceedings which it has initiated. It is not necessary in this case to consider in what circumstances (apart from seeking information to enable him to perform his section 12 function properly) it is necessary for the Secretary of State to consult a requesting state. The fact is that they were consulted.
Mr Sumption QC seeks to justify the refusal by the Secretary of State to disclose the medical report by submitting that the main primary facts about Senator Pinochet's condition are a matter of direct clinical observation, and cannot be challenged by those who have not observed him. The rest is a matter of professional opinion based on those facts. The number and eminence of the clinicians, and the fact that their report has been reviewed by the Chief Medical Officer must make the possibility that the report contains some patent vitiating error "speculative and remote". The Secretary of State has made no secret of the fact that he would have preferred to disclose the report, but he has felt constrained to withold disclosure out of respect for the confidentiality of its contents. In his view, the interest in preserving that confidentiality outweighs any public interest in disclosure, principally because he considers that it is extremely unlikely that those whose representations he has sought would be able to make any meaningful criticisms of the report. It follows that, if the Secretary of State had considered that there was any reasonable prospect that those who have been consulted could make any material comments about the report, he would have disclosed it.
It is common ground that the Secretary of State was required as a matter of law to carry out the consultation exercise fairly. As Lord Mustill said in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 1 531, 560E:
"(3) The principles of fairness are not to be applied by rote identically in
every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion...(5) Fairness
will very often require that a person who is adversely affected by the decision
will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken with a view to procuring its modification."
The issue is not whether there was a duty to act fairly, but as to the
content of that duty: did it require the disclosure of the report? It will
therefore be seen that the issue is very narrow.
Nor is it in dispute that what fairness requires is a question of law for the
court to determine. The issue is not one for the discretion of the Secretary of
State: see R v Panel on Takeovers and Mergers, ex parte
Guiness Plc [1990] 1QB 146. It was made clear by the Court of Appeal in
that case that, in judging fairness, the court should accept the decision
maker's view of the facts, unless (per Lord Donaldson at page 178H) that view
is unreasonable in the Wednesbury sense. Moreover, it seems (at any rate
where the decision is that of a judicial or quasi-judicial body), the court
will give great weight to the decision maker's view of what is fair, especially
where (as in that case) the decision was that of a distinguished and
experienced tribunal (per Lloyd LJ at page 184D). But as Lloyd LJ said,
however, "in the last resort the court is the arbiter of what is fair"
(184E).
In the present case, the decision not to disclose the report did not depend on
a controversial view of the facts. It is obvious that, even with sight of the
report, the requesting states would be unlikely to be able to make meaningful
and telling criticisms of its contents. The points made by the Secretary of
State are powerful. The clinicians are renowned. Their report has been
considered by the Chief Medical Officer. The requesting states will not be able
to conduct their own examinations. None of this is in doubt. The issue is
whether, on those facts, it is nevertheless unfair to withold the report. The
resolution of that issue does not depend on a rejection of the Secretary of
State's view of the facts.
Nor do I consider that any particular weight should be given to the Secretary
of State's view of what fairness requires in the particular circumstances of
this case. This is not analogous to a case (such as Guinness), where the
fairness of the tribunal's procedures for holding an inquiry is in issue. As
Lloyd LJ pointed out (185E), the tribunal had great experience of City affairs,
and was well equipped to decide what was fair by City standards. The present
case is concerned with an exercise of executive discretion in circumstances
quite unlike any which have previously occurred. The Secretary of State had no
relevant previous experience on which to draw. He was in a very difficult
position, and no better able than the court to decide whether fairness demanded
that he disclose the report.
In my view, therefore, it is for this court, untrammelled by the views of the
Secretary of State, to decide whether in the interests of fairness he should
have disclosed the report. Mr Sumption (as did Maurice Kay J) places
considerable reliance on the decision in R v Joint Higher
Committee on Surgical Training ex parte Milner [1994] 7 Admin LR 56 for
the proposition that effective and fair consultation does not require the
disclosure of information of a kind that is not "amenable to any significant
challenge or any challenge that would have made any difference to the outcome"
(page 469D). That was a case which concerned the witholding of confidential
references by the applicant's tutors as to his suitability to become an
accredited specialist surgeon. The references were placed before Ognall J. He
held that they were essentially expressions of opinion by the applicant's
trainers as to his "overall aptitude" for plastic surgery. The judge said that
the decisions did not depend on any disputed questions of fact or questions of
fact which might have been amenable to serious dispute.
Another authority cited to us was R v The Chief Constable of the Thames
Valley Police, ex parte Cotton [1990] IRLR 344. In that case, the
applicant's employment was terminated for obesity. In deciding to terminate the
applicant's employment, the Chief Constable took into account a report by the
chief medical adviser. The applicant challenged the decision on the grounds of
a breach of natural justice, since the report had not been disclosed to him. It
was held by the Court of Appeal that the failure to disclose the report was not
unfair. The applicant knew from the outset that his weight was regarded by his
employers as a crucial issue. He made all the representations on that topic
that he could have made, and the disclosure of the report would have made no
difference to what he would or could have said.
In my view, the present case can be distinguished from both of these
authorities. A conclusion by doctors that a person is unable to follow legal
proceedings and to give a coherent statement of his case comprises both fact
and opinion. The doctors must decide what tests and what form of examination to
conduct. This involves an exercise of judgment (opinion) as to what is
appropriate in the circumstances. They must make their observations. This
involves making findings of fact, but ones where there may well be a
significant component of judgment. Finally, on those findings they must reach
their conclusions as to the nature and extent of the medical problem, and its
likely duration. This is essentially a question of opinion.
The medical examination of Senator Pinochet took place over a period of 6
hours. It is clear that the assessment of his medical condition was a complex
matter. It was described by the Chief Medical Officer as "extremely thorough",
and their report was said by him to be "comprehensive". Such a report is not
analogous to the report by the applicant's tutors in Milner that he did
not have the aptitude of a plastic surgeon. Ognall J treated that conclusion as
an expression of pure opinion, and not one based on disputed fact which was not
amenable to challenge. In the present case, it is impossible to know whether
the conclusions expressed in the medical report are based on undisputed fact.
More importantly, it is impossible to know whether the opinion component of the
exercise can reasonably be challenged without sight of the report. Without
knowing what tests were carried out, and what observations were made, how can
one say whether the overall conclusion is amenable to challenge?
Ex parte Cotton was quite different because there the court was
satisfied that, even if the report had been disclosed to the applicant, it
would have made no difference. At paragraph 60, Bingham LJ gave a number of
reasons why what Sir William Wade called "the dubious doctrine that a hearing
would make no difference" would apply only rarely. These included the fact
that, as was memorably put by Megarry J in John v Rees [1970] Ch
345, 402, experience shows that that which is confidently expected is by no
means always that which happens.
In the present case, it is impossible to say that the production of the report
would make no difference to the representations that the requesting states
could and would make. That is conceded by Mr Sumption. His point is that the
possibility that disclosure of the report would make a difference is so remote
that it can safely be ignored. But by denying them sight of the report, the
Secretary of State has denied the requesting states the opportunity of
expressing a view, for example, as to (a) the adequacy of the tests conducted
and observations made by the doctors, and (b) the validity of the analysis of
the results of those tests. In my view, it is a fair point to make that the
Secretary of State saw fit (in breach of his undertaking to Senator Pinochet)
to reveal the report to the Chief Medical Officer. It is said on behalf of the
Secretary of State that there is no realistic possibility that the requesting
states will be able to challenge, or raise any material doubts about, the
report without conducting a medical examination of Senator Pinochet. If that is
so, it does prompt the question: why was the Chief Medical Officer asked for
his opinion? Either a consideration of the report without a medical examination
is a meaningful exercise or it is not. Presumably, it was thought to be
worthwhile to ask the Chief Medical Officer to review the report. It is
difficult to see why it has now become a pointless exercise.
When deciding what fairness demands, it is necessary to have regard to the
whole context in which the decision under section 12 is to be taken. In my
view, fairness requires disclosure in this case for the following reasons.
First, the enormity of the alleged crimes. Were it not for that feature, it is
clear that the Secretary of State would not have consulted the requesting
states or the human rights organisations. Secondly, if the Secretary of State
does not extradite Senator Pinochet to one of the requesting states, he will be
returned to Chile, and it is likely that he will never be tried for these
alleged crimes anywhere. In view of the gravity of the charges, that is a
startling result of the exercise of ministerial discretion. It simply serves to
underline the monumental importance of the decision that the Secretary of State
is poised to make. No doubt that is why he would prefer to disclose the report.
Thirdly, the scope of the disclosure now sought is very limited indeed. It is
that there should be disclosure to the four requesting states alone, but only
on terms that they agree to receive them on terms of confidentiality. The
details of these terms would have to be worked out, since the requesting states
would clearly need to be at liberty to disclose the report to independent
doctors of the relevant disciplines. Fourthly, when one assesses the impact of
the proposed limited disclosure, it should also be borne in mind that there has
already been the widest possible dissemination of the basic conclusions of the
medical report. The whole world already knows that the gist of the report is
that Senator Pinochet is unfit to stand trial, because he would not be able to
follow the proceedings, give intelligible instructions to those representing
him at trial, or give a coherent statement of his case. All of that emerges
clearly enough from the answers given by the Secretary of State to questions in
Parliament on 12 January 2000. The additional disclosure to a very limited
class of persons needs, therefore, to be put into its true perspective.
Finally, in my view, it is simply not possible to assess how likely it is that,
following disclosure of the report, the requesting states would be able to make
representations on the medical issue that they would not otherwise be able to
make, representations which might influence the decision that the Secretary of
State has to make.
In my judgment, the cumulative effect of these considerations is that fairness
requires disclosure of the report to the limited extent that I have indicated.
In reaching this conclusion, I have not overlooked the fact that, as a matter
of common law, there was a public interest in maintaining the duty of
confidence owed to Senator Pinochet in respect of the contents of the report.
But there was a competing public interest in disclosure to the extent that this
was necessary to enable the Secretary of State to carry out the consultation
exercise fairly, and thereby to discharge his functions under section 12 of the
1989 Act properly. It is for the court to decide how this balance should be
struck. I have no doubt that, for the reasons already given, the balance comes
down in favour of the limited disclosure that is requested by the applicants in
this case.
Mr Sumption and Mr Clive Nicholls QC both submitted that disclosure would
infringe Senator Pinochet's right to respect for his private life under Article
8(1) of the European Convention on Human Rights. But it seems to me that the
limited disclosure proposed would, in the exceptional circumstances of this
case, satisfy the requirements of Article 8(2), ie interference "in accordance
with the law and necessary in a democratic society.....for the prevention of
crime and disorder". The balancing exercise to which I have referred has to be
conducted as a matter of the English common law, and that is sufficient to
satisfy the requirement of "in accordance with the law". I accept the
submission of Mr Pleming QC that the proposed limited publication to the
prosecuting authorities of the requesting states is not different in kind from
the publication that will be made to the Solicitor General and the DPP, if the
Secretary of State decides to make no order under section 12. The "prevention
of crime" includes the prosecution of crime. Mr Sumption concedes this, but
submits that it applies to disclosure to prosecuting authorities in requesting
states only after extradition has taken place. I do not see why such a narrow
approach should be adopted. It seems to me that it is sufficient that
proceedings should have begun in the requesting state, and that a request for
extradition should have been made. In my view, the limited proposed disclosure
is a proportionate interference with Senator Pinochet's Article 8(1) rights.
For all these reasons, I would allow these applications for disclosure of the
report to the requesting states. The precise terms will have to be the subject
of agreement or further argument.
-
MR SUMPTION: My Lords, the Secretary of State requires copies of the
medical report and certain other associated material to the four requesting
states in the course of this afternoon. I will deal with the question of terms
in a moment if I may. He will not make a decision until he has received and
studied any observations which the four requesting states choose to make or the
time deadline has expired. It is proposed that the requesting states will have
seven days in which to make their observations. That time will expire at 5 pm
on 22nd February, next Tuesday. It is expected that a decision one way or the
other will probably be made shortly after that time.
My Lords, as far as terms are concerned, we do not see that much
discussion on terms is required. The course that we propose to adopt, subject
obviously to contrary directions from your Lordships, is simply to inform the
requesting states in accordance with your Lordships' decision that this
material is being supplied to them on terms of strict confidence, to make it
clear that that is not intended to prevent them from taking appropriate expert
medical advice on its implications, but otherwise we would take it for granted
that having made that position clear to the requesting states that they would
adhere to that without any need for them to come back to us and say so in
terms.
My Lord, that deals with the question what, as we see it, will happen
next. So far as the form of order is concerned, subject again to your
Lordships views on this, my learned friend Mr Pleming and I are, I think,
agreed that it is appropriate that your Lordships should make a declaration,
and the declaration that I proposed, and that I think Mr Pleming accepts, is
that the Secretary of State is bound, before making any decision under section
12 of the Act, on the basis of the medical report of 6th January to disclose a
copy of that report in confidence to Spain, Belgium, France and Switzerland.
Now, my Lords, that leaves, as far as relief is concerned, the specific
claim for relief which is made by Belgium in their Form 86A, which is of
course, as your Lordships pointed out, more extensive than what your Lordships
have ordered. What I would invite your Lordships to do is having made the
declaration that I have indicated, to refuse the relief claimed so far as it
extends beyond requiring delivery of a copy of the medical report.
LORD JUSTICE SIMON BROWN: Why cannot we simply grant the application to the
extent that he made a declaration in the terms you have indicated?
MR SUMPTION: My Lord, that would effectively amount to the same thing, and
might be a more elegant way of doing it.
My Lords, unless there is any other matter your Lordships wish me to deal
with, those are the only ones that I have to make.
MR PLEMING: My Lord, on behalf of the Kingdom of Belgium the declaration as
suggested would be satisfactory to my client. Again, so there be no doubt, and
I have discussed this with Mr Sumption, the disclosure to Belgium will also
include some disclosure to the investigating judge, Mr Van der Mish(?), and
that is understood between us.
My Lord, there is only one other --
LORD JUSTICE SIMON BROWN: Mr Sumption, is there any problem on that?
MR SUMPTION: None at all. The covering letter which we propose to send will
refer to the authorities of the requesting state. We take it for granted that
that means the administrative authorities concerned with extradition and the
magistrates responsible for the case. So, for instance, it will also include
Judge Garzon(?) in Spain.
LORD JUSTICE SIMON BROWN: Thank you very much.
MR PLEMING: My Lord, would you then allow the application for judicial review
with costs? That would then only leave various small suggested typographical
corrections to your Lordships' judgment. If you wish to receive those in open
court we can give you a list of them. Otherwise we will --
LORD JUSTICE SIMON BROWN: This are purely typographical. Perhaps the
shorthand writer may take them off you.
MR DRABBLE: My Lord, on the same basis I ask for the declaration to be made on
my application for judicial review, and I also ask for costs, including the
costs of the proceedings in front of Maurice Kay J.
LORD JUSTICE SIMON BROWN: What, as a matter of interest, was the order for
costs before --
MR DRABBLE: There was no order for costs.
LORD JUSTICE SIMON BROWN: Mr Nicholls, have you any submission on any aspect
of all this, not least the relief? Are you happy with the form of
declaration?
MR NICHOLLS: My Lord, I am, yes.
LORD JUSTICE SIMON BROWN: Thank you very much.
MR NICHOLLS: My Lord, obviously we are concerned about the confidentiality,
but, my Lord, in the terms in which it has been expressed, we accept that it is
as such.
LORD JUSTICE SIMON BROWN: Thank you very much.
Mr Sumption, costs.
MR SUMPTION: My Lord, my instructions are not to resist an order for costs
from either Belgium or Amnesty, so I do not do so.
LORD JUSTICE SIMON BROWN: You are ready to pay both sets of costs?
MR SUMPTION: Yes, my Lord, those are my instructions.
LORD JUSTICE SIMON BROWN: Thank you very much.
Any there other applications at the Bar in relation to this matter? We
have the habeas listed for further directions.
Very well. Then we grant the application to the extent of making the declaration in the terms agreed, and we order Secretary of State to pay the costs of both applicants Belgium and Amnesty.
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