Case No: CO/3659/2000
Neutral Citation Number:  EWHC Admin 275
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION (DIVISIONAL COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 9th April 2001
LORD JUSTICE KENNEDY
MR JUSTICE GARLAND
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SENATOR ASIF ALI ZARDARI
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Michael BROMLEY-MARTIN (instructed by Zaiwalla & Co for the Applicant)
Mr James TURNER QC (instructed by Treasury Solicitor for the Respondent)
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As Approved by the Court
Crown Copyright ©
1. This is a renewed application for permission to apply for Judicial Review of a decision by the Secretary of State for the Home Department to transmit evidence received by Bow Street Magistrates' Court to the Attorney-General of Pakistan pursuant to the provisions of Section 4 and paragraph 5 of Schedule 1 of the Criminal Justice (International Co-operation) Act 1990. The decision of the Secretary of State was communicated to the Applicant's Solicitors in England, Zaiwalla & Co, by a 14-page letter dated 21st September 2000. The application for permission was made on 5th October 2000; grounds for contesting the claim were filed by the Secretary of State on 26th October and on 3rd November permission was refused by Sullivan, J.
2. The 1990 Act contains provisions for the reciprocal service of process, obtaining evidence, and the transfer of prisoners to give evidence or assist in investigations. Section 7 applies Part II of the Police and Criminal Evidence Act 1984 to the gathering of evidence relevant to an overseas investigation and Schedule 1 paragraphs 1 - 4 provide for securing the attendance of witnesses and taking evidence. Paragraph 5 deals with the transmission of the evidence taken in England and Wales to the requesting authority. The provisions relevant to this application are Section 4 sub-sections (1), (2), (4), (5) and (6) and paragraph 5 of Schedule 1:-
"4 United Kingdom evidence for use overseas
(1) This section has effect where the Secretary of State receives -
(a) from a court or tribunal exercising criminal jurisdiction in a country or territory outside the United Kingdom or a prosecuting authority in such a country or territory; or
(b) from any other authority in such a country or territory which appears to him to have the function of making requests of the kind to which this section applies,
a request for assistance in obtaining evidence in the United Kingdom in connection with criminal proceedings that have been instituted, or a criminal investigation that is being carried on, in that country or territory.
(2) If the Secretary of State or, if the evidence is to be obtained in Scotland, the Lord Advocate is satisfied -
(a) that an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed; and
(b) that proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there,
he may, if he thinks fit, by a notice in writing nominate a court in England, Wales or Northern Ireland or, as the case may be, Scotland to receive such of the evidence to which the request relates as may appear to the court to be appropriate for the purpose of giving effect to the request."
3. Sub-section (4) relieves the Secretary of State from having to carry out detailed enquiries or investigations by providing:-
"(4) For the purpose of satisfying himself as to the matters mentioned in sub-section (2)(a) and (b) above the Secretary of State or, as the case may be, the Lord Advocate shall regard as conclusive a certificate issued by such authority in the country or territory in question as appears to him to be appropriate."
4. Sub-section (5) provides that "evidence" includes documents and other articles; sub-section (6) that Schedule 1 shall have effect with respect to the proceedings before a nominated court in pursuance of a notice under sub-section (2). Paragraph 5(1) of Schedule 1 provides:-
"5. (1) The evidence received by the court shall be furnished to the Secretary of State or, in Scotland, the Lord Advocate for transmission to the court, tribunal or authority that made the request."
5. The application has to be examined in the context of political events in Pakistan and earlier litigation in this country. The Applicant is the husband of Benazir Bhutto. In November 1996 her Government was dissolved and she was succeeded by Nawaz Sharif. An organisation called the Ehteshab Cell (or Accountability Cell) headed by Senator Saifur Rehman was created to pursue allegations of corruption against members and supporters of the previous government. It was concerned only with alleged corruption. A separate organisation, the Anti-Narcotics Force ("ANF") was concerned with drug trafficking. It was an independent organisation headed by Major General Mushtaq Hussain.
6. One aspect of the Pakistan criminal justice system which is relevant to the Applicant's case is the formal manner in which a criminal investigation is commenced. A Police Officer cannot initiate an investigation; there has first to be created a "First Investigation Report" ("FIR") signed, sealed or marked by the complainant or informant and attested by the officer recording the "first information". This is the first step in any investigation. If a suspect is arrested and in interview implicates someone else, an investigation into that person cannot begin until the suspect signs an FIR as "first informant".
7. The Applicant was arrested on the day that the Bhutto government was dissolved. On 19th December 1996 there was an FIR against him for the murder of Benazir Bhutto's brother; on 16th February 1997 an FIR for corruption in connection with air freight charges; on 18th August 1997 another for corruption in connection with a consultancy contract and in September a further one for murder. The authorities were concerned that substantial assets may have been corruptly transferred to Europe and that the Applicant may have been involved in drug trafficking. This appears from the passage in the affidavit of Simon Watkin sworn on 18th May 1998 and referred to the Secretary of State's first decision letter of 11th October 1999:-
"Prior to 21st October 1997 requests were made by the Pakistan Government to the UK for mutual legal assistance, including restraint of assets and obtaining of evidence relating to alleged corruption and alleged drug-related offences. These requests were either not in a satisfactory form and/or failed to provide sufficient information and/or sought assistance of a type the Secretary of State could not give."
8. At about the same time the Ehteshab Cell ("EC") made requests to the Swiss Government for assistance in relation to corruption allegations. A recurring theme of Mr Bromley-Martin's submissions was that whereas in the UK freezing, restraint and forfeiture orders can be made in proceedings under the 1990 Act for drug trafficking offences, they are not available in relation to corruption offences but in Switzerland they are equally available in relation to both types of offence. In September 1997 a Home Office team including lawyers, went to Pakistan to assist the EC with advice which included an explanation that the availability of freezing, restraint and forfeiture orders in the UK was limited to drug trafficking.
THE LETTER OF REQUEST
9. On 21st October 1997 a Letter of Request was received by the British Government requesting assistance in relation to investigations into drug trafficking by the Applicant. The Letter contained a list of property and accounts of which evidence was sought. With the Request came a copy of an FIR dated 19th October 1997 timed at 18.15 and a Certificate for the purposes of S.4(4) signed by the then Attorney-General, Chaudry Mohammed Farooq. On 15th December, the Secretary of State nominated Bow Street Magistrates' Court to receive evidence. The Magistrate required the Police to obtain statements and documentary evidence from witnesses. The Applicant was not informed of the Letter of Request but his Solicitors in London became aware of it and asked to be allowed to see it or to be provided with details of the contents. The Home Office replied that they were seeking the views of the Pakistan Government. The Applicant applied for leave to move for Judicial Review on the grounds that the maker of the request did not have authority to make it; that there was no genuine investigation or criminal prosecution in respect of any drugs offence; that the evidence requested was of a nature that could have no relevance to any investigation or prosecution for drugs offences and was being sought for some other purpose, namely, corruption; that the matter was politically motivated, any investigation or proceeding being in respect of an offence of a political nature; and lastly, that the Applicant was entitled to disclosure of the Letter of Request or of its contents. Latham, J. (as he then was) granted leave on the last ground only. On 12th February 1998 he stayed the proceedings in the Magistrates' Court pending a hearing of the application on 11th March.
10. In the event the Government of Pakistan consented to the substance of the Letter of Request being revealed. This was done by the Secretary of State on 2nd March so that the entire basis of the application for Judicial Review disappeared. The Applicant's then Solicitors were given the information by letter dated 2nd March 1998. It included the list of property and accounts in the Letter of Request.
"The allegations that have been made against your client in this regard will be apparent from the FIR, but in summary it is said that Mr Zardari has on a number of occasions received, either directly or indirectly, considerable sums of money in consideration of his facilitating the export of narcotics from Pakistan and that he has acquired assets derived from such payments. Charges are said to be anticipated under sections 12(a) and 14 of the Control of Narcotic Substances Act 1997. A copy of that legislation is annexed to the request and I enclose a copy herewith.
It is against this background that the authorities in Pakistan seek to trace the proceeds of the alleged criminal activity carried on by your client and seek evidence in respect of property and bank accounts located in England which they suspect your client may have funded, at least in part, from the proceeds of narcotics related crime. Thus, they seek evidence as to the beneficial ownership and funding of such property and bank accounts.
It is said that certain information which, it is alleged, links your client with property and bank accounts in England came to light in the course of investigations into allegations of corruption against your client. It also appears that your client may have funded the relevant property and accounts, at least in part, from the proceeds of corruption, but no request to assist in the obtaining of evidence in that regard has been received by the Secretary of State. It is the view of the Secretary of State that the potential relevance of the evidence sought to other investigations does not mean that the assistance that is sought can have no relevance to the matter to which the present request does relate; indeed he is satisfied that the assistance sought is relevant to the matter to which the request relates.
The specific property and accounts of which evidence is sought are:
(a) Rockwood Estate, Haslemere Road, Brook, Surrey and the contents of that property;
(b) Flat 6, 11 Queensgate Terrace, London SW7;
(c) 26 Palace Mansions, Hammersmith Road, London W14;
(d) 27 Pont Street, London SW1;
(e) 20 Wilton Crescent, London SW1;
(f) Barclays Bank, Kensington & Chelsea Branch, account number 90991473 believed to be held in the name of Mr Zardari;
(g) National Westminster Bank, Aldwych Branch, account number 96832320 believed to be held in the name of A Ali;
(h) Harrods Bank Limited, account number 11309063 believed to be held in the name of Farida Ataullah, an associate of Mr Zardari;
(i) Midland Bank, Pall Mall Branch, account number unknown but believed to be held in the name of the parents of Mr Zardari;
(j) National Westminster Bank, Barking Branch, account number 28559899, believed to be held in the name of Mr Badr, an associate of Mr Zardari;
(k) National Westminster Bank, High Road Wembley Branch, account number and name in which it is held unknown but believed to have been used to make payments in relation to the refurbishment of Rockwood House on the Rockwood Estate;
(l) National Westminster Bank, Cromwell Road Branch, accounts numbered 3894373 and 38943751 and believed to be held in the name of Mr Zardari, and
(m) Coutts & Co, London, account number unknown but believed to be held in the name of Mr Zardari.
By reason of section 4(2) of the Criminal Justice (International Co-operation) Act 1990 it will be for the nominated court to decide precisely what evidence is appropriate for the purpose of giving effect to the request, but the authorities in Pakistan have provided details of suggested witnesses and questions in that regard and these details have been transmitted to the court at Bow Street. If you are permitted by that court to participate in the process by which the evidence is taken you will now, as a result of the information provided above, be able to make informed submissions as to the relevance of any particular piece of evidence and will be able to question any witnesses with knowledge of the purpose for which the evidence is being taken."
11. There was a hearing to determine who should bear the costs of the application for Judicial Review. In giving judgement, Lord Bingham, C.J. observed:-
"It is, however, quite plain that the process envisaged by S.4 is not a trial: it is a process of gathering evidence. The use to be made of the evidence so gathered is a matter for the requesting state. If the evidence taken in an English court is to be used as primary evidence in the requesting state, then one would ordinarily expect, if the requesting state's legal system is at all analogous to our own, that the requesting state would recognise the need for the suspect to have a full and fair opportunity to contest the evidence either here or in its own court. If the evidence taken in England were not to be used as evidence in the requesting state then the need for a full and fair opportunity to contest that evidence in this country would be much less and might not exist at all. It seems to me entirely appropriate for the UK, requested to act by a foreign state, to pay regard to the wishes of that state when responding to a request by someone in the position of the applicant for details of the case against him."
12. The proceedings for Judicial Review having been exhausted, the Applicant then took the point before the Metropolitan Magistrate that there was an abuse of process; that the Magistrate was not bound by the sub-section (4) Certificate and could hear evidence and entertain argument tending to show that there were no proceedings in Pakistan, that the State was not acting in good faith and was in fact acting with an ulterior political motive. These arguments were, on 22nd April 1998, rejected, and the Magistrate proceeded to receive the evidence. The Applicant then applied for Judicial Review of the Magistrate's decision. On the same day as the Magistrate made his decision, the Secretary of State declined to hear representations from the Applicant on abuse of process; the Applicant applied for Judicial Review of that decision also. On 7th May 1998 Latham, J. granted permission to apply for Judicial Review of the decision of the Secretary of State but on 29th July the application was withdrawn by consent as the process of evidence gathering was complete. The Applicant now applies for permission to challenge the Secretary of State's decision to transmit the evidence received at Bow Street pursuant to paragraph 5 of Schedule 1 of the Act. Unlike the Secretary of State's power to nominate a court under sub-section (2) which confers a wide discretion, "may if he thinks fit"; paragraph 5 only provides that the evidence "shall be furnished to the Secretary of State .... for transmission."
EVENTS IN PAKISTAN
13. Between 29th July 1998 and 5th October 2000 when the present proceedings were commenced, the Applicant and his legal representatives continued to press his case. On 11th October 1999 the Secretary of State sent the first decision letter to the Applicant's London Solicitors informing them that he had decided to transmit to the Attorney-General of Pakistan the evidence furnished to him by Bow Street Magistrates' Court. However, on the following day, the military coup took place in Pakistan, followed by the proclamation of a state of emergency on 14th October. On the same day, the Secretary of State was asked to withdraw the decision pending the restoration of democracy and on 22nd October he informed the Applicant's Solicitors that he would delay implementation of the decision until he had investigated whether the request was still being pursued, and if it was, to consider the implications of recent events. Further representations were invited by 6th December; these were made on 2nd December.
14. In March 1998 the Applicant petitioned the High Court in Pakistan to quash the FIR on a variety of grounds including the fact that it was not signed by the complainant and was accordingly a nullity. The petition was dismissed as being premature but the Court ordered the Investigation Agency to enquire, within one month, into the Applicant's allegations and indicated that he was at liberty to present a further petition if he wished to do so. This he did on 30th April. Apparently this petition has never been listed although in 1999 he presented a further petition challenging the jurisdiction of the Anti-Narcotics Court. This was dismissed; the Applicant appealed, and on 29th October the Supreme Court remitted the petition to the High Court to be tried within 3 months with the second petition. The Applicant is at present being tried on corruption charges and for a drugs offence based on the October 1997 FIR. That trial began in June last year. The other trials have proceeded even more slowly.
15. On 25th January 2000, by virtue of the Oaths of Office (Judges) Order, the Pakistan judiciary were required to be faithful to and abide by the provisions of the Proclamation of Emergency of 14th October 1999 and the Provisional Constitution Order No.1 which, by the terms of the Order, were not open to any form of challenge. The relevant parts of the Order provided:-
(1) Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this Order and any other Orders made by the Chief Executive, be governed, as nearly as may be, in accordance with the Constitution.
(2) Subject as aforesaid, all courts in existence immediately before the Commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction:
Provided that the Supreme Courts or High Courts and any other court shall not have the powers to make any order against the Chief Executive or any person exercising powers or jurisdiction under his authority.
(3) The Fundamental rights conferred by Chapter 1 of Part II of the Constitution, not in conflict with the Proclamation of Emergency or any Order made thereunder from time to time shall continue to be in force.
(1) No Court, tribunal or other authority shall call or permit to be called in question the Proclamation of Emergency of 14th day of October 1999 or any Order made in pursuance thereof.
(2) No judgement, decree, writ, order or process whatsoever shall be made or issued by any court or tribunal against the Chief Executive or any authority designated by the Chief Executive.
5. Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the Chief Executive all laws other than the Constitution, all Ordinances, Orders, Rules, By laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan whether made by the president or the Governor of a Province, shall be inserted and shall be deemed to have always been so inserted, shall continue in force until altered, amended or repealed by the Chief Executive or any authority designate by him."
16. On 29th January 2000, in response to the Secretary of State's enquiry, the new Attorney-General reaffirmed the request for assistance; and assured the Secretary of State that all previous undertakings remained valid. These were:-
(1) That all evidence procured through mutual legal assistance would not be used for any purpose other than that for which it was originally requested without the consent of the Government of the UK.
(2) That the Applicant would not be subject to the death penalty provided for under S.9(c) of the Control of Narcotic Substances Act 1997.
(3) That the change of Government on 12th October 1999 did not result in any interference with the working of the Courts.
(4) that all actions would be strictly in accordance with law.
The Supreme Court, in a lengthy judgement given in May, declared the regime lawful pending a general election within a specified period. It also declared that the Courts would continue to exercise the power to administer justice impartially among persons, and between persons and the State.
17. The Applicant expressed concern about the independence of the judiciary, and on 7th August 2000, in response to a further enquiry, the Secretary of State was informed that the EC was investigating corruption "across the board, across the spectrum and across the country irrespective and without consideration of political affiliations or any other factor". He was also informed that the judicial oath was not an "oath of allegiance" to the new regime and that only 6 out of 105 superior Judges had resigned; in addition, it was asserted that the judiciary "has never been more free and independent over the past 20 years than it is today" and had given judgements and orders against the Government. The Secretary of State made further enquiries of the International Bar Association.
18. On 9th August, the Applicant made further representations to the Secretary of State including:-
i) That the former Interior Minister in the Nawaz Sharif Government had admitted that the narcotics case against the Applicant was bogus;
ii) That Major General Mushtaq Hussain of the Anti-Narcotics Force had refused to register the case and described it as bogus. As a result he had been transferred at the behest of Saifur Rehman.
On 25th August the Secretary of State received unequivocal confirmation of the earlier assurances and undertakings together with a denial that the proceedings against the Applicant were bogus. On 21st September the Secretary of State sent the second Decision Letter which has given rise to this application.
19. Mr Bromley-Martin sought to take a number of points on the Secretary of State's powers and duties during and after the evidence gathering process, and Mr Turner QC accepted, for the purposes of this case, that while the sub-section (4) certificate was conclusive at the nomination stage, at the transmission stage the fact that the certificate may have been fraudulently obtained is part of the relevant circumstances which the Secretary of State could take into account when deciding whether or not he should transmit the evidence to the requesting state. Mr Turner QC accepted that the Secretary of State had a discretion; the evidence might no longer be required for a variety of reasons, or circumstances may have changed fundamentally, but it was a discretion to be challenged only on Wednesbury principles. Mr Bromley-Martin makes that challenge on the basis that the Secretary of State has never addressed the question of whether the transmission would be in good faith and in the interests of justice because, in summary:-
(1) The proceedings were not initiated in good faith - the Letter of Request was based on an assertion of an investigation into drugs-related offences when in truth the evidence was being sought to found proceedings for corruption.
(2) Evidence to support the drugs allegation was improperly obtained.
(3) The sub-section (4) certificate was false.
(4) The prosecution for drugs offences was bogus.
(5) It would be unfair to transmit evidence to the new (and illegal) military government and that the Applicant would not receive a fair trial from an independent judiciary or otherwise be able to contest the admissibility of the evidence.
(6) Had the Secretary of State made the contents of the Letter of Request available to the Applicant earlier, obvious errors and deceptions could have been exposed at the nomination stage.
BASES OF THE REPRESENTATIONS
20. The Applicant's case is that the drugs allegations were fabricated so that the authorities could use drug trafficking powers to obtain restraint or forfeiture orders when in truth they were proceeding against the Applicant for corruption. To that end they arrested and tortured two men involved in smuggling and drug trafficking, Arif Baluch and Shourang Khan. There was evidence of their torture not only in their subsequent petitions to the High Court but also in reports by Court officials. These events, it was said, occurred non-coincidentally shortly after the visit by Home Office officials in September 1997. Both men allegedly made statements implicating the Applicant; these were incorporated in the FIR of 19th October 1997 but were not signed, and the FIR was defective in other respects in that it was signed by a Police Officer not an ANF Officer and sealed, something for which no provision is made in Pakistani law. In addition, the copy attached to the sub-section (4) Certificate and certified to be a true copy had been mistranslated in an attempt to conceal its defective nature. Also on 19th October the EC directed the ANF to register the FIR against the Applicant. Major General Mushtaq Hussain objected and spoke to the Minister of the Interior and Narcotics Control, Chaudry Shuja't Hussain because the statement of Arif Baluch "does not appear to have been made at his free will and [he] may resile at any time"; in any event neither Baluch nor Shourang Khan were credible witnesses. The conversation was recorded in a memorandum in which the Major General observes, "The ANF since its inception has strictly followed law and filed cases without fear or favour displaying impartiality thereby establishing credibility with the locals, foreign community, judiciary and other law enforcement agencies. ANF's effort has been to stay out of any political tug of war which has definitely established a position of neutrality and integrity". According to a newspaper interview given by the then former Minister in July 2000, the Major General's resistance resulted in Nawaz Sharif having him transferred to other duties although he was later reinstated. There is hearsay evidence that the former Minister and the Police Inspector responsible for producing the FIR have said that it was not a genuine document and was produced in order to use a purported drugs investigation to obtain evidence of corruption.
21. Mr Bromley-Martin submitted that the Secretary of State was misled as to whether or not the ANF had exclusive powers of investigation under the Control of Narcotics Act because the Attorney-General had referred to the wrong SRO. Other matters advanced were that all material from Pakistan has come from the EC not the ANF; that "observers" who attended at Bow Street were EC representatives; that the Pakistani Bar Council say that their judiciary is far from independent and that the delay in hearing the petitions challenging the FIRs shows a lack of independence. The Representations of 15th March 1999 included allegations that the Chief Justice of Sindh, who was conducting the trial for the murder of Benazir Bhutto's brother, was related by marriage to the brother's wife; that the Judge who dismissed the first petition as premature was Nawaz Sharif's nominee and a member of the Court which sentenced Benazir Bhutto's father to death; and that other Judges conducting proceedings involving the Applicant were either provisional appointees or, in one case, a Muslim fundamentalist. There was also an assertion of trickery:-
"Following strong objections to the constitution of the Benches in Lahore, the Supreme Court ordered the transfer of the relevant cases to the Rawalpindi Bench. Instead of the intended result ...... the Chief Justice took the expedient step of nominating to the Rawalpindi Bench the same Judges who had been due to hear the cases in Lahore, thereby emasculating the order of the Supreme Court."
22. The Court was invited to look at a witness statement of the Applicant's Pakistani advocate, Farooq Naek made on 8th March of this year and also at the witness statement made on 16th March of Mian Muhammad Jahangir, an advocate, in which they state that the former Attorney-General had told them that he was required by Nawaz Sharif to sign the sub-section (4) Certificate which he had neither drafted nor read and that he had become aware that the narcotics charges were fabricated in order to obtain evidence of corruption. Quite apart from being hearsay, this material was not before the Secretary of State. Mr Turner QC asked rhetorically, was the Secretary of State expected to interview the former Attorney-General?
23. Mr Bromley-Martin's arguments were:-
1. That in deciding whether to transmit, the Secretary of State had to take the same decision as at the nomination stage and ask himself whether or not there was a bona fide trial or investigation;
2. That the Secretary of State had not considered whether the proceedings were fraudulent. If he had, he could only have concluded that they were fraudulent. Fraud vitiates all. He referred to Nadeem Aktar Saifi v. The Governor of Brixton Prison and Union of India - CO/4176/1999 (Rose, L.J. and Newman, J.) as an example of a finding of bad faith where evidence was shown to have been extracted under duress;
3. That once fraud is in issue, the Secretary of State cannot rely on the law and Courts of a foreign state, the more so when there is evidence that those Courts will not list a challenge to their jurisdiction, the validity of the criminal proceedings or were prepared to indulge in tricks such as transferring Judges to defeat a Supreme Court ruling. He referred to First American Corp and Another v. Sheikh Zayed Al-Nahyan and Others; Clifford and Others v. First American Corp and Others  4 AER 440 for the proposition that the Secretary of State should not rely on the workings of foreign courts if considerations of natural justice point the other way;
4. That in the circumstances the Secretary of State should have applied the "extradition test" of good faith and the interests of justice, having regard to the safeguards of fairness available in English law in relation to persons required to supply evidence which may otherwise be subject to confidentiality or claims of privilege. This could have led him to only one conclusion and his failure to do so was Wednesbury unreasonable.
THE RESPONDENT'S CASE
24. Mr Turner QC posed the question: given the many issues between the Applicant and the Government of Pakistan, how, realistically, is the Secretary of State to make a decision other than within a broad band of possible conclusions? Corruption is many-faceted and Baluch in his statement alleges that the Applicant used his official position to facilitate the transmission of narcotics from Baluchistan to destinations in the West. The Government had always shown an interest in evidence relating to narcotics offences and there was no reason why, if they wished to do so, they could not have made a Request in relation to an investigation into alleged corruption. He pointed out that no application for a restraint or forfeiture order had been made in England and Wales. We were informed, after the conclusion of the hearing, that such an application had been made in the Isle of Man in relation to assets held by Isle of Man companies and listed in the letter of 2nd March 1998. Both Counsel have provided us with written submissions in relation to that information, and Mr Bromley-Martin has asked that we should reconvene to hear further argument. We do not consider it necessary to do so. The Isle of Man exercises a jurisdiction independent of that of England and Wales, Scotland and Northern Ireland and the 1990 Act has no application in the Island. In any event, if the evidence was capable of supporting allegations of corruption, the Government was entitled, in accordance with the first assurance, to seek the Secretary of State's consent for its use for that purpose.
25. The Secretary of State was not required to enquire into a dispute about Police powers and whether a particular Police Officer had the necessary authority to sign a FIR. He had made careful enquiries and the Pakistani Government had given the undertakings subsequently reaffirmed by the new regime; he had made further extensive enquiries into the possible consequences of the replacement of the Sharif Government including consideration of the judgement of the Supreme Court as to the legality of the new regime; the Proclamation of Emergency, the Provisional Constitution Order No 1 of 1999, the Oaths of Office (Judges) Order and the Oath itself. He had also canvassed the views of the International Bar Association and had investigated the Applicant's representations of 7th August 2000 obtaining the unequivocal assurance that the new regime would abide by the terms of the undertakings given by the Sharif Government. Neither the Secretary of State nor this Court, Mr Turner submitted, can embark on a detailed enquiry as to whether or not the drug trafficking case now proceeding is well founded, or commenced and pursued in bad faith. The Secretary of State cannot be expected, on the evidence available, realistically to decide whether the proceedings were brought or continued in bad faith.
26. He submitted that the statutory scheme of the 1990 Act is that the Secretary of State nominates a Court; the evidence is collected and can then be tested before the Magistrate (now the District Judge) before transmission. The Applicant was in fact represented at Bow St Magistrates Court. Sub-section (4) of Section 4 excuses the Secretary of State from having to make decisions under sub-sections (2)(a) and (b); at best an attack on the validity of the Certificate may be a relevant circumstance to be taken into account at the transmission stage. The scheme is very far from being analogous to extradition involving liberty of the person where Section 11(3)(c) of the 1989 Act expressly requires consideration of good faith and the interests of justice.
27. In one respect the scheme is similar to extradition in that there is no statutory requirement for consultation. Fairness may require it in the circumstances of a particular case; R. v. SSHD ex parte Doody  AC 531 @ 560, but it is not to be expected that there will be a lengthy course of representations, responses and counter-representations; R. v. SSHD ex parte McGuire  10 Admin LR 534 @ 537H-538A. The Secretary of State had made enquiries and considered the Government's responses to the Applicant's representatives with great care; he was faced with complex and conflicting accounts; he had set these out in the Decision Letter and given the reason for his decision in considerable detail. It would be irrational for him to conclude that the proceedings were being pursued in bad faith or that the relevant issues could not be resolved fairly by a sufficiently independent judiciary.
THE SECRETARY OF STATE'S DECISIONS
28. The Decision Letter sets out the history of the matter up to the sending of the first letter and then summarises the Applicant's representations made on 2nd December 1999 after the military coup and the response of the Attorney-General on 29th January 2000; the further representations on 15th February 2000 and the response of 7th August 2000, and the final representations on 9th August 2000.
29. The actual decision of 21st September 2000 can be summarised as follows:-
i) The representations of the Pakistani Government had not been taken at face value; consideration had been given to the original documents as set out in paragraph 24 above and, in addition, the International Bar Association had been consulted.
ii) Although there was some concern as to the independence of the judiciary, there was nothing to indicate interference with criminal proceedings or with the right of an accused person to be acquitted.
iii) Reliance was placed on information received from the International Bar Association following a visit in July 2000, in particular that Judges had made findings which were a setback for the Government's objectives such as the acquittal of all the co-accused in the trial of Nawaz Sharif in connection with events that led to the military coup. The Accountability Courts had acquitted two prominent defendants of corruption charges. Further, the Government played no part in judicial appointments.
iv) Although there was corruption, and standards were low among the more junior levels of the judiciary, the Applicant's case was unlikely to be tried by a Judge tainted by corruption or imcompetence. The case had been allocated to a Judge who was very experienced and enjoyed an excellent reputation.
v) The present regime had not initiated the proceedings but merely continued them; this appeared to weigh against the assertion that they were politically motivated. The letter continues:-
"In any event the relevant allegations against your client are not allegations of a political offence and the fact that political capital may be made out of a successful prosecution is not in itself a bar to refusing to provide assistance to the prosecuting authority."
vi) There was little likelihood that proceedings would be affected or influenced by executive interference or political considerations.
vii) The assurances about the use of the evidence and the non-use of the death penalty were accepted.
30. In my judgement, Mr Turner QC is correct in his submissions. The Secretary of State was bound, at the nomination stage, by the Certificate. If it can now be shown that the proceedings are not brought in good faith and that the Certificate is, or may be, false, these are matters that the Secretary of State can take into account in deciding whether or not to transmit. His discretion is not defined by statute, nor is he under any statutory obligation to receive representations, although fairness may require that he should; see Doody. There is no proper analogy with extradition proceedings, particularly to those matters to be taken into account on an application for habeas corpus.
31. It is apparent from the Decision Letter and the earlier one of 11th October 1999 that the Secretary of State undertook careful and extensive enquiries which included consideration of the documents referred to; he has considered all the matters advanced by the Applicant in his representations and has arrived at a decision on all the material before him. It is said that he failed to apply a test of "in good faith and in the interests of justice", by analogy to extradition. This, in my judgement, is not warranted either by the scheme or by the words of the 1990 Act. The Secretary of State has not been shown to have failed to take into account any material that he should have considered or that he has relied on matters that he should not have taken into account. He has not misunderstood his powers or duties. His decisions as to good faith, whether or not the proceedings are well-founded, the judiciary sufficiently independent and finally, whether he should transmit the evidence, fall well within the range of decisions at which he could reasonably have arrived after proper consideration of the relevant material.
32. I would dismiss the application.
LORD JUSTICE KENNEDY: I agree.
MR TURNER: My Lord, before your Lordships delivers judgment in this matter, may I raise a matter with the Court?
LORD JUSTICE KENNEDY: Yes.
MR TURNER: The Claimant today is represented by Mr Jones leading Mr Bromley-Martin. Mr Jones comes into to matter for the first time. Your Lordships may have seen a note which has been sent over by Mr Jones and Mr Bromley-Martin.
LORD JUSTICE KENNEDY: We have seen it.
MR JUSTICE TURNER: In paragraph 6(1) of that note, my friends raise a point that I disclosed to them over the telephone this morning. I would like to explain to your Lordships how that has come about and the significance or lack of significance that we contend in respect of that one matter. I do not propose to deal with the rest of my friends' note.
LORD JUSTICE KENNEDY: Insofar as there is any lack of clarity which, for my part, I do not think there is, it may assist if I say now that we, in the judgments which we propose to hand down, refuse a renewed application for permission to seek judicial review. We do not give a substantive judgment.
MR JUSTICE TURNER: My Lord, that is certainly as we had understood it. I am only going to address those matters if, and in so far as your lordships felt the need to, but since it seems that I, looking back at my original skeleton argument misled the Court on that factual matter in 6(1), I ought to explain what the actual situation is as I have done for my friends this morning.
Your Lordships were told at the end of last hearing by Mr Bromley-Martin, that in any event a further judicial review application was to be launched arising out of the two affidavits that we looked at during the course of our hearing. Those affidavits contained hearsay material as to what the Attorney General, under the former regime in Pakistan, is alleged to have admitted to other people as to the signing of a certificate. Looking at that with a view to knowing that my friends today would be seeking interlocutory relief in relation to that, concentrated my mind on the exact form of the certificate. What I should say is that contrary to impressions that may have been given, the certificate is not a freestanding document, it is part and parcel of the Letter of Request, but, he said, I hereby certify that.
Historically, in the first judicial review proceedings, the issue that was being addressed (and I have gone back and looked at the papers in relation to that) was whether there were proceedings in being. In that regard, the Secretary of State disclosed that there had been a certificate. I know your Lordships have seen attached to my previous note the gist letter, as I will call it, which disclosed the existence of the certificate in relation to the question of whether there were proceedings in being.
The question of section 4(2)(a), that matter was not raised in those original proceedings and not addressed.
It is also apparent from that gist letter that there was clearly information before the Secretary of State which at that time would have been more than sufficient to satisfy him in relation to section 4(2)(a) because there was a certified translation of the ballot (?) FIR. That is no doubt the reason why no issue was raised or persuade in relation to section 4(2)(a).
Following that first set of judicial review proceedings, various pieces of information were provided, representations made one way or the other, as your Lordships know, as to whether the proceedings were brought in good faith and generally well-founded. Then the decision letter of 11th October where specific reference is made to -- in paragraph 10 specific reference is made to the certification in relation to the section 4(2)(b) matter and then there is the subsequent decision letter of 21st September 2000 in which no reference is made to certification at all.
Indeed, in the present proceedings, I argued the case from the outset before your Lordships, on the basis that the Secretary of State was not bound at the transmission stage by whatever certificates there may have been, so in a sense----
LORD JUSTICE KENNEDY: We have never been dealing with the transmission stage.
MR TURNER: For the purposes of my argument, the question of, what if any certificates were in existence was irrelevant, because I accepted that one had to look at it at the transmission stage without being bound by any certification. Because I have argued the case on that basis, the Secretary of State is not bound by any certificate at this stage, the failure to make clear, indeed to mislead, I think I have to accept in paragraph 23 of my original skeleton argument, which seems to me on reflection to suggest that there was a certification under section 4(2)(a), and I am afraid my error in that regard was through not actually having the decision letter in front of me at the time in thinking that it involved an historic amendment (?) of the matter rather than investigating but, unfortunately, I did not remember it as accurately as I thought I had and I can only apologise for that. As I say, once it became apparent to me, I notified my friends this morning of the situation. What I had said in paragraph 23 was:
"As to whether the Secretary of State was entitled to be satisfied within the meaning of section 4(2)(b) [that should be 4(2)(a) in any event] of the 1990 Act was an act that had been committed, although reasonable grounds for suspecting that such an offence had been committed and whether he should have regarded the certificate given in that regard to be vitiated by fraud."
There was no certificate given in that regard. There was the FIR and the information contained in that and the overt certificate in relation to the 4(2)(b) matter, but I go on to say that it can only be judged by reference to the state of affairs known to the Secretary of State at the time when he made his nomination under section 4(2) which I stand by, because there was nothing before the Secretary of State at that stage of the subsequent material that was supplied by the claimant. I then go on to argue the point that it is all irrelevant in any event.
My Lord, that remains my contention, that on the basis of the argument that I have put before the Court, the question of whether or not there was a certificate under section 4(2)(a) is no more relevant than whether there was a certificate under section 4(2)(b). Whatever basis the Secretary of State's original decision was taken on is water under the bridge. He has new discretion to exercise now and the question is whether, at the transmission stage, in the light of conflicting information as to whether proceedings that undoubtedly exist are pursued in good faith, or well-founded, is he entitled to leave that matter in the circumstances to the courts in Pakistan. That is the why in which I put the case and the way in which I will continue to put it despite that omission and indeed that misleading comment in paragraph 23 of my skeleton for which I apologise again.
MR JONES: My Lord, I wonder if I might set out at certainly no greater length why it is that we are concerned about developments since the last hearing before your Lordships and we do so in support of different applications as your Lordships knows from our skeleton argument.
My Lord, it appears from what my learned friend has indicated to us this morning and to your Lordships now, that there are three new pieces of important and it might even be thought critical evidential material which has come to light since the last hearing.
My Lord, the first of those matters is, that whereas at the last occasion, as I have been told, great weight was attached to the fact that the Pakistani authorities had not sought to make any freezing order of a kind permitted to them under the legislation relating to drug trafficking offences. It was suggested in argument to my learned friend Mr Bromley-Martin last time, that there had been no search order, therefore it might be posed rhetorically what was all the fuss about? It now does appear----
LORD JUSTICE KENNEDY: We have read all of this.
MR JONES: Yes, that there had been this application made to the Isle of Man. My Lord, the second matter is -- and that matter made to the Isle of Man which one would have expected and certainly knowable to the Secretary of State, though obviously he did not know about it.
My Lord, the second important matter is that whereas your Lordships were given to understand on the last occasion that no application had been had made for a freezing order, it now turns out from my learned friend's note, further to the hearing which was put in on 2nd April, it now turns out in fact that the Letter of Request, to which reference has been made but which has never been supplied to the Applicant - only a copy of the gist - it now does turn out that that letter of request, contained a request that steps be taken to restrain dealings in respect of those accounts, which were the subject matter of the request for assistance.
My Lord, your Lordships I am sure would appreciate how from the Applicant's point of view----
LORD JUSTICE KENNEDY: We have read this too.
MR JONES: --- he is entitled to regard it as disturbing, but that matter was disclosed in the Letter of Request, but yet your Lordships were told the contrary on the last occasion.
LORD JUSTICE KENNEDY: What is the next point.
MR JONES: My Lord, the final matter is the matter which was put forward this morning about the misunderstanding about the certificate. My Lord, there are therefore those three important matters going to the discretion of the Secretary of State, going to the matters that we say he ought to have taken into consideration which were not made known to the Court on that occasion. My Lord, the way we put it in our skeleton argument is this: if the matter was still open and your Lordships had not finally decided this, my Lord, we would have submitted that your Lordships might perhaps have granted permission, but refused for the reasons given which would at least allow the questions which may not be disputed by the Secretary of State to raise matters of general public importance that could perhaps be certified so the House of Lords does have an opportunity of looking, not only at these matters of general principle, but a much more complete body of facts than were before the court. My Lord, alternatively, we submit, that if that course did not appeal to your Lordship, we do submit that these new matters, none of which has incidentally been formally proved in evidence, do make it very important, we say, to conduct a further evidential examination at the very least, to have produced in evidence the Letter of Request which contains these facts which only now have been made known to us.
My Lord, that is the way we put it. We do say they are important. There are three of them. We would respectfully request that permission be granted so that you could at least certify this question or, alternatively, that judgment be not delivered so that the evidential matters can properly be explored in evidence in the light of what we say are disturbing and worrying sights.
LORD JUSTICE KENNEDY: Thank you very much.
MR TURNER: Do your Lordships wish me to respond?
LORD JUSTICE KENNEDY: Not at the moment (pause).
We have listened to the submissions made, but we are not satisfied that there is any appropriate course at this stage other than the course which we propose to take, which is to say that for the reasons set out in the judgment which has been handed down, this renewed application to apply for judicial review of the decision by the Secretary of State is dismissed.
We were conscious, of course, of the material that was set out in the documentary papers put before us after we had heard the oral submissions and we have taken them into account. As regards the validity of the certificate under section 4, that was simply not an issue.
Before us during the course of either of the documentation or, for that matter, the oral submissions that were made to us, if it is to be made an issue in the course of some separate proceedings, that is a matter for those who are advising this Applicant, but it is not a matter which we can possibly take cognisance of at this stage.
What the Secretary of State may do in relation to further submissions or in relation for that matter to any further applications that may be made, it is a matter for the Secretary of State and we do not propose to seek or press for any undertaking in the context of these proceedings.
It is a matter for another day.
MR JONES: My Lord, I wonder if I might just invite my learned friend to say what his position is because there is an application for permission pending. My Lord, these new matters which have come to light obviously justify, we submit, fresh submissions including, I think as your Lordship has just said, on what we have been told this morning. My Lord, our position is that the Secretary of State is declining to give an undertaking even that he will defer transmission of the material until the question of permission for that new application is granted.
My Lord, in my respectful submission, bearing in mind that two matters have now come to light and have been put forward by my learned friend correctly as matters which have not been brought to his attention before. In my respectful submission, it would be quite wrong in principle for my learned friend to say, in the light of those new disclosures, that were going to transmit material, though we know a fresh application for judicial review is pending. I would respectfully invite him, my Lord, and would respectfully submit that your Lordship might express a view about this, that it would not be right to do this before permission can be considered on this third application which could be done in a very short time. I say that particularly in the light of the fact that these are matters arising from the letter of request which we have never seen and there are now two matters put forward by my learned friend which he regrets he did not put forward before and these new facts made known about the Isle of Man. I would invite him to make that undertaking.
MR TURNER: My Lord, let me deal with that. The new judicial review application has indeed been served, following the last hearing. At present, the application is really a repetition of the last application including, one might add, at least one paragraph which is factually incorrect as it transpired, but I make no point about that. The addition is the fact of the two new affidavits that were looked at during our judicial review application.
The Secretary of State has been asked if he will continue the undertaking that has been extant for some years now, not to transmit the material pending a determination of the fresh judicial review application. The stance that has been taken is that unless the court indicated that it felt that interlocutory relief was appropriate, the Secretary of State is not minded to proffer such an undertaking. The reasons for it are these, and I take account also of the two new matters that have been disclosed since the hearing, perhaps I can deal with those first. The first of those matters, the question of whether an application had been made in this jurisdiction for freezing orders. I do not think anything I said----
LORD JUSTICE KENNEDY: Mr Turner, personally I am not disposed, and I do not speak for my Lord, to get involved in extracting undertakings, making recommendations in other proceedings of which, although we know something of one, but which we do not know very much and of which we are not seized. If it is thought appropriate to seek an order either from this Court or from someone else in relation to such proceedings, the relevant papers need to be put before the court and the relevant order sought.
MR TURNER: I think my Lord the point Mr Jones would make is that this Court is much more aware of the background that any other court is going to be at this stage, and that if the Secretary of State is not proffering an undertaking then the matter is one of some urgency from his perspective.
LORD JUSTICE KENNEDY: I understand the problem to this extent, that if the new proceeding are to encompass, I know not whether they will, the information that you revealed to Mr Jones and as you revealed to us when you put it before us this afternoon, that which is another dimension and I doubt whether that is going to be part of the new proceedings or not?
MR TURNER: We take account of that and our stance is in relation to that, but although we have mentioned it and disclosed it to correct the record, as it were, we certainly do not accept that it has any significance to the outcome of the present or indeed any fresh judicial review application, because the question is what is the Secretary of State entitled to do or what must he do at the transmission stage in relation to proceedings that have been pursued by a new regime.
My Lord, it is really a question of practicalities and I quite understand from my friend's side----
LORD JUSTICE KENNEDY: I understand that too.
MR TURNER: He needs to get the question of an injunction resolved or any indication that it will be resolved if the Secretary of State is not to prepared to proffer an undertaking.
LORD JUSTICE KENNEDY: I can understand that in reality it might be sensible if the Secretary of State was prepared to give some sort of insurance, but it is not a matter for the Court.
MR TURNER: No. The problem is that these proceedings have been hanging about for quite a length of time and the Secretary of State is anxious that they should be resolved swiftly, that all outstanding matters be resolved swiftly once and for all, unless the court indicates that they think there is potentially something in the matter that it is now wished to pursue, the Secretary of State does not want to hold the matter up any further.
LORD JUSTICE KENNEDY: In the light of the last 24 hours developments, it might be reasonable, and I only to put it forward on this basis, if the Secretary of State were to indicate that he would take no action to transmit the evidence until say the end of the week commencing 23rd April, which would take us over the Easter holiday.
MR TURNER: My Lord, we will clearly give consideration to that.
LORD JUSTICE KENNEDY: You can do no more than give an undertaking as to what seems to me, would give everyone a chance to take stock of their position.
MR TURNER: What we are anxious I emphasise to do, is, of course, not to bulldoze things through, but to ensure that things are dealt with expeditiously and that matters are not raised as red herrings.
MR JONES: My Lord, I am prepared to indicate that we would complete those amended grounds by tomorrow morning at
10 o'clock and if no undertaking is given----
LORD JUSTICE KENNEDY: Mr Jones, I understand your position. The difficulty there is, that if everyone does things in enormous great haste then they may or may not be as well done as they ought to be.
MR JONES: My Lord, precisely, but the alternative to the giving of an undertaking is, my now going back to chambers and knocking on the Crown Office's door at 7 o'clock tonight, that is the reality which can be avoided obviously.
MR TURNER: My Lord, I am going to have to take instructions on the matter. As I say it is a question of getting the thing before a court expeditiously to resolve----
LORD JUSTICE KENNEDY: We are sitting for a time this afternoon. How long would it take you to take instructions, would it take longer than that?
MR TURNER: No, it will not take me longer than that to get instructions.
LORD JUSTICE KENNEDY: It would be sensible to deal with it while everyone is around.
MR TURNER: If the Secretary of State was prepared to give a short term undertaking, it is a question of whether we would be able to get the matter before a court and seized of the issues expeditiously thereafter.
LORD JUSTICE KENNEDY: That is why I made the suggestion I did. Effectively, we are sitting for another two days this week, and then there will be courts available from 24th, 25th April onwards.
MR TURNER: Clearly, the advantage of your Lordships, or one or both of your Lordships is that you have a background knowledge of it and one is not going to have to spend a day going through the history, because there is a mass of material for any judge coming afresh to it to take in.
LORD JUSTICE KENNEDY: How long do you need?
MR TURNER: My Lord, if I could have half an hour to take instructions I would be most grateful.
LORD JUSTICE KENNEDY: If you would like to come back to us when a convenient opportunity arises. I am sorry if this inconveniences you Mr Jones, but some time in about half an hour's time, thank you.
LORD JUSTICE KENNEDY: Mr Jones, is there anything you want to say?
MR JONES: My Lord, we are grateful to you for giving us that opportunity. My learned friend is proposing my Lord to undertake not to transmit the material until Thursday evening of this week. My Lord, I was therefore proposing to draft additional grounds by 11 o'clock tomorrow morning and I hope we can prevail upon the Crown Office to list the matter for a short, I imagine no more than 20 or 25 minutes application for a stay before a convenient court by, I think close of term is Wednesday, is it not?
LORD JUSTICE KENNEDY: Very well, thank you very much.
MR TURNER: My Lord, that is right. It is really a question of what convenient court is going to mean.
LORD JUSTICE KENNEDY: Probably my Lord and I will do it. I am not going to direct the Listing Officer who may have other views.
MR TURNER: It would certainly avoid the setting out in detail of the background history of the matter, but we are instructed to give that undertaking until the close of business on Thursday or any earlier determination of the application.
LORD JUSTICE KENNEDY: Thank you both very much.
MR TURNER: My Lord, I do not know if your Lordships have actually formally handed down the judgment?
LORD JUSTICE KENNEDY: We did, as it were, during the course of what I said earlier, but if anything more is required, you have now said it, thank you.
MR TURNER: My Lord, the only other matter that arises is that of costs for that application and those proceedings. I seek costs on behalf of the Secretary of State.
LORD JUSTICE KENNEDY: It would be very difficult for you to resist.
MR JONES: Yes, my Lord.
LORD JUSTICE KENNEDY: Very well, there will be an order accordingly.