England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		23rd November 2001

1. LORD JUSTICE ROSE: There are before the Court applications for habeas corpus and judicial review in relation to a decision of District Judge Workman affecting Kashamu. His extradition is sought by the United States Government for offences of conspiracy to import and supply heroin. There is a separate, but similar, application for judicial review in relation to a later decision of the same district judge affecting Maklulif and Labsi. Maklulif's extradition is sought by the United States Government for an offence of conspiracy to use a weapon of mass destruction. Labsi's extradition is sought by the French Government for an offence of conspiracy to prepare a terrorist action and forging documents to prepare a terrorist attack. All three are accusation cases.
2. For present purposes, save to say that all the offences are extremely serious, the facts alleged against each applicant are immaterial. The question for determination is whether the district judge's ruling, which he gave on 13th March 2001 in relation to Kashamu and followed on 26th October 2001 in relation to Maklulif and Labsi, was correct. He said, by reference to Article 5 of the European Convention on Human Rights:

"...I entirely accept that the provisions of Article 5 require review by a court. I am, however, not convinced that issues over the lawfulness of a defendant's detention under a properly executed warrant of this court are matters for this court. The protection provided by Article 5, sub article 4, is undoubtedly provided by the High Court through an application for a Writ of Habeas Corpus. The issue is whether this court, being seized of the matter in general, has a concurrent jurisdiction. In resolving this issue, I have concluded that sub article 4 requires a procedure to be provided to review the lawfulness of detention. That procedure is provided by the ancient writ of Habeas Corpus and it seems to me to be more appropriate that the High Court alone should exercise this jurisdiction.

If, however, I am wrong in this approach and I should be entertaining this application, I would have felt it right to decline to rule on whether these proceedings amounted to abuse by oppression until such time as I had considered all the relevant evidence. The issue having been raised, it would have been necessary to keep the issue under review throughout the hearing, but I think it is unlikely that I would have been able to come to a final view on the abuse argument until such time as the evidence had been considered."

3. It is common ground that each applicant is detained in custody in response to a requisition by the appropriate government pursuant to the authority of the Secretary of State and has been brought before a magistrate in accordance with the relevant statutory procedures.
4. The procedures in Schedule 1 of the Extradition Act 1989 which relate to extradition requests from, among other countries, the United States apply to Kashamu and Maklulif. The procedures in Part III of the Act which relate to requests from, among other countries, France apply to Labsi. The relevant parts of Schedule 1 of the Extradition Act 1989, as amended by the Criminal Justice and Public Order Act 1994, because of the anticipated abolition of committal proceedings, read as follows:

"6(1) When a fugitive criminal is brought before the metropolitan magistrate, the metropolitan magistrate shall [have the same powers, as near as may be, including power to adjourn the case and meanwhile to remand the prisoner either in custody or in jail, as if the proceedings were the summary trial of an information against him for an offence committed in England and Wales.]"

5. 7(1) provides:

"In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Schedule) would, according to the law of England and Wales, [make a case requiring an answer by the prisoner if the proceedings were for the trial in England and Wales of an information for the crime], the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged."

6. Section 11(3), which is precisely reflected in section 12(2) in relation to the Secretary of State's power to order return, provides:

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

(a) by reason of the trivial nature of the offence; or

(b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or

(c) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him."

7. There is no similar provision in Schedule 1, but Schedule 1 paragraph 8 confers a discretion as to surrender on the Secretary of State which reflects Article V(2) of the treaty between the United Kingdom and the United States, whereby extradition may be refused on any ground specified by law.
8. It is common ground that, whichever is the requesting state, the Secretary of State is empowered not to order surrender of the fugitive if it would be unjust or oppressive to do so. It is also common ground that, prior to the coming into force of the Human Rights Act 1998 in October 2000, the House of Lords, in Atkinson v United States of America Government [1971] AC 197, R v Governor of Pentonville Prison, ex parte Sinclair [1991] 2 AC 64, and In re Schmidt [1995] 1 AC 339, clearly established that the courts have no discretion to refuse extradition on the ground that the proceedings are an abuse of the court's process (see per Lord Reid in Atkinson at 232D-E, per Lord Ackner in ex parte Sinclair at 81B, and per Lord Jauncey in Re Schmidt at 377H-378B).
9. The question which presently arises is whether, since the coming into force of the Human Rights Act, Article 5 of the European Convention of Human Rights requires a different view to be taken. The relevant provisions of Article 5 are as follows:

"(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law:

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

10. Article 5(4) provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

11. For Kashamu, Mr Fitzgerald QC submits that the matter should be remitted to the district judge for him to decide whether there has been an abuse of process. On 6th October 2000 the Administrative Court ordered Kashamu's release because the then proceedings against him were conceded to be unfair because of non-disclosure. It is said that for the United States Government to cause a second warrant to be issued and executed against him is oppressive and an abuse of process. In the previous proceedings, the Administrative Court held, following the analysis of Lord Hope in R v Governor of Brockhill Prison ex parte Evans [2001] 2 AC 19, 38B-E, to which I shall come, that, by virtue of Article 5, fairness is relevant to the function of the committing court in an extradition case (see para 39 of the Administrative Court's judgment).
12. It was crucial to the decision of the House of Lords in all the authorities prior to the Human Rights Act, submits Mr Fitzgerald, that the Secretary of State has the power not to return a fugitive to the requesting state if it would be unjust or oppressive to do so (see Atkinson per Lord Reid at 232G, Lord Morris at 239A and Lord Guest at 247B; ex parte Sinclair per Lord Ackner at 81A; and Re Schmidt per Lord Jauncey at 378A). Mr Fitzgerald submits that, in the light of the Human Rights Act, it must be the courts, rather than the Secretary of State, who determine the lawfulness of detention under Article 5(1)(f). Abuse of the process of the English courts can only properly be a matter for the courts, not the Secretary of State. He relies on the speech of Lord Hope in R v Governor of Brockhill Prison, ex parte Evans, at 38B-E:

"The jurisprudence of the European Court of Human Rights indicates that there are various aspects to art 5(1) which must be satisfied in order to show that the detention is lawful for the purposes of that article. The first question is whether the detention is lawful under domestic law. Any detention which is unlawful in domestic law will automatically be unlawful under art 5(1). It will thus give rise to an enforceable right to compensation under art 5(5), the provisions of which are not discretionary but mandatory. The second question is whether, assuming that the detention is lawful under domestic law, it nevertheless complies with the general requirements of the convention. These are based upon the principle that any restriction on human rights and fundamental freedoms must be prescribed by law (see arts 8 to 11 of the convention). They include the requirements that the domestic law must be sufficiently accessible to the individual and that it must be sufficiently precise to enable the individual to foresee the consequences of the restriction (see Sunday Times v UK [1979] 2 EHRR 245; Zamir v United Kingdom [1983] 40 DR 42 at 55 (paras 90-91)). The third question is whether, again assuming that the detention is lawful under domestic law, it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate (see Engel v Netherlands (No 1) [1976] 1 EHRR 647 (para 58); Tsirlis and Kouloumpas v Greece [1927] EHRR 198 (para 56))."

13. Mr Fitzgerald submits, by reference to Lord Hope's first and third questions, that detention cannot be lawful under English domestic law and is arbitrary if it results from an abuse of the English court's process. Detention procured by abuse of power or bad faith is arbitrary (see Bozano v France 9 EHRR 297 (para 60) and R v Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42). Any review of the legality of detention under Article 5(4) must be wide enough to cover this aspect of lawfulness.
14. In Re Darren Hayes (unreported Divisional Court transcript, 9th October 2000), the Divisional Court held that, although abuse of process was not a ground for discharging a fugitive sought under the Backing of Warrants (Republic of Ireland) Act 1965, it was appropriate to conduct a limited review under Article 5 of the lawfulness of detention brought about by the execution of an Irish warrant, notwithstanding the absence of any general jurisdiction to review the conduct of the Irish authorities in relation to what is intended to be a simple and expeditious procedure (see R v Governor of Belmarsh Prison, ex parte Gilligan [2001] 1 AC 84). Mr Fitzgerald relies on Chahal v United Kingdom 23 EHRR 413 (para 127), where it is said that a judicial review under Article 5(4) should "be wide enough to bear on those conditions which are essential for the lawful detention of a person according to article 5(1)." Mr Fitzgerald submits that a magistrate committing a fugitive in proceedings which amount to abuse of process would himself be in breach of Article 5(4). Section 11(3) of the Extradition Act can, he says, be read compatibly with the Human Rights Act as not excluding the courts' inherent jurisdiction to control abuse of their process (see Re Osman [1992] Crim LR 741, where Woolf LJ held that the opening words of the subsection permit judicial review or habeas corpus on grounds other than those specified in (a), (b) and (c)).
15. Accordingly, Mr Fitzgerald submits, paragraph 6 of Schedule 1 should be interpreted as conferring on a magistrate an abuse of process jurisdiction in relation to extradition, such as he undoubtedly has in relation to summary trial. The magistrates' court, rather than the High Court, is the appropriate place for abuse to be determined in relation to extradition because, quite apart from the terms of paragraph 6(1), it is preferable for evidence to be heard there with the long stop of a review by the High Court. The Secretary of State is not equipped to hear evidence, and it is insufficient to leave questions of abuse to the United States court if it is the English court's procedure which is being abused.
16. As to Maklulif and Labsi, their committal proceedings have been adjourned pending the outcome of these applications, because they wish to argue that the proceedings against them should be stayed as an abuse of process. On their behalf, Miss Montgomery QC adopts Mr Fitzgerald's submissions on the scope of Article 5(4), and further submits that ex parte Sinclair (No. 2) [1992] ALR 613 shows the importance of a judicial decision in relation to abuse when the Secretary of State had concluded there was none.
17. She stresses the Article 5(4) requirement for speedy resolution which was emphasised by the October 1983 European Commission's report in Zamir v United Kingdom, Application Number 9174/80 (para 105 and following). This, she submits, points to the need for a magistrate, rather than the Secretary of State, to decide triviality, delay and bad faith identified in section 11(3)(a), (b) and (c); these are not, she submits, gateways which permit an overall assessment of fairness, but they point to a narrow fairness review. Despite the statutory differences in relation to Part III and Schedule 1 cases, in practice, the Secretary of State, in relation to both classes of case, asks the same questions and has the same unfettered discretion, identified by Lord Reid in Atkinson at 232G, to refuse to surrender if it would be unjust or oppressive to do so.
18. Miss Montgomery referred to Weeks v United Kingdom 10 EHRR 293 (para 61), and the need for the court specified in Article 5(4) to be independent and impartial. The Secretary of State, she says, is neither, as he advises the foreign government with which he has a close and continuing working relationship throughout extradition proceedings. The ability of the Administrative Court to review the Secretary of State's decision is, she submits, properly to be taken into account, but, in the present circumstances, this provides insufficient judicial control. The Secretary of State is deciding not only law, which can be controlled by judicial review, but also facts in relation to abuse about which not only can he not be regarded as independent, but he does not hold an inquiry involving, for example, cross-examination of witnesses. She relies on the analysis by Richards J in Kathro v Rhonnda County Borough Council (unreported transcript 6th July 2001 (paras 15 to 21)) of R (Alconbury) v Secretary of State [2001] 2 All ER 929. The independence of a planning inspector, in the Secretary of State's decision-making process about planning, was of considerable importance to the members of the House of Lords in Alconbury.
19. Procedurally, Miss Montgomery says, fairness requires an oral hearing (compare Weeks (para 67)). The Secretary of State's decision as to abuse of process lacks both procedural rigour and statutory guidance. In consequence, judicial control by judicial review is inadequate for Article 5(4). The magistrates' court has the jurisdiction and can hold a hearing with witnesses with comparative speed and in the presence of the fugitive.
20. For the requesting governments, Mr Coleman submits that there are sound policy reasons for the absence, before the Human Rights Act, of abuse jurisdiction from the magistrates' and High Court. In ex parte Gilligan, at 97D, Lord Steyn said:

"An abuse of process jurisdiction would undermine the legislative purpose of simple and expeditious proceedings. It would open the door in England to an examination of the facts relating to crimes allegedly committed in Ireland and to the circumstances of investigations by the police in Ireland. It would necessarily permit wide ranging evidence, letters of request and discovery. It would create great scope for the delay of criminal proceedings."

21. Those observations, Mr Coleman submits, are equally apposite in extradition cases, albeit ex parte Gilligan was concerned with Irish warrants rather than extradition. He also refers to ex parte McGuire (unreported Divisional Court transcript of 15th November 1995), in which, at 12F, Staughton LJ said:

"The question is whether the fugitive should be sent for trial somewhere else. There should not be a trial here in the process of answering that question. Fairness does not require that."

22. Mr Coleman submits that the English courts are not a convenient forum for considering abuse of process in its wider sense. Delay may result if busy district judges have to adjourn to available dates weeks ahead. He stresses the clear distinction drawn by Lord Jauncey in Re Schmidt (at 377H) between domestic proceedings in relation to which the High Court is the only bulwark against abuse and extradition proceedings in which both the Secretary of State's power to refuse surrender and the courts of the requesting state afford safeguards. He relies on Chahal (para 127), where the scope of the obligations under Article 5(4) is said not to be identical for every kind of deprivation of liberty, but the review must be wide enough to bear on the conditions essential for lawful detention.
23. In Zamir the Commission (paras 100-104) held, in an Article 5(1)(f) case involving an immigrant, that Article 5(4) was satisfied if the courts were empowered to examine the lawfulness of the detention under domestic law. But, he submits, there is no requirement for a complete review, on all questions of fact, of the exercise of the power to detain. It is sufficient for the courts to re-examine the statutory basis of detention and whether there are reasonable grounds for the Secretary of State's decision.
24. Mr Coleman also draws attention to the omission of the words "jurisdiction and" which appeared before the word "power" in para 6(1) of Schedule 1 of the 1989 Act before it was amended. This, he submits, suggests that, although the primary purpose of the amendment was to deal with the abolition of committal proceedings, Parliament may also have intended to remove jurisdiction from magistrates. (That seems to me unlikely, as the power remains, and it is to be noted that in ex parte Bennett (at 64D-G), Lord Griffiths seems to have used the words "power" and "jurisdiction" interchangeably).
25. Mr Coleman further submits that the reference in Lord Hope's analysis to detention which is arbitrary because it was in bad faith or not proportionate is not sufficient to import a full abuse jurisdiction into the magistrates' court or High Court. A review of lawfulness, such as Lord Hope contemplates, and which would cover ex parte Bennett type cases, is very different from a full consideration of abuse of process against which there are powerful policy arguments. He relies on Re Darren Hayes (9th October 2000, Divisional Court (paras 45 and 67)) as limiting the review process. The detention in each of the present three cases is, he submits, proportionate, having regard to the gravity of the offences, and cannot be arbitrary in that it is made pursuant to a statutory scheme complying with treaty or convention obligations. Finally, he submits, the section 11(3) discretion is limited to the three matters specifically identified in (a), (b) and (c).
26. In his reply, Mr Fitzgerald accepted that ex parte Bennett, rule of law, cases are in a special category, but there cannot, he submits, be any distinction in principle between different categories of case when considering Article 5(4). In her reply, Miss Montgomery accepted that, as Article 5(4) is designed for non-trial situations, it confers more limited rights than the full panoply of rights provided by Article 6. However, she submits, the limit or breadth of Article 5(4) rights is not for present determination. It will be for the magistrate to decide, if the cases are remitted, whether the facts in each or any case give rise to arbitrariness. Further, she points out that, in Re Sinclair (No. 2), although the abuse was not of the ex parte Bennett type, it was nonetheless held not to justify detention.
27. I turn from these wide-ranging submissions to my conclusions. It is, in my judgment, plain that Article 5 expressly requires the lawfulness of the detention of a person detained with a view to extradition under (1)(f) to be decided speedily by a court. It is equally plain to my mind that, in the extradition context, the Secretary of State lacks the qualities of independence and impartiality required of the court-like body by the Strasbourg jurisprudence, in particular Weeks v United Kingdom.
28. It is also plain, in view of the Commission's conclusion in Zamir that seven weeks was not sufficiently speedy, that the Secretary of State is highly unlikely to reach a decision on the lawfulness of detention as expeditiously as Article 5(4) demands. Indeed, it was in response to the ruling in Zamir that the Rules of the Supreme Court in relation to habeas corpus were amended to facilitate an early hearing for habeas corpus. That procedure was found by the Commission to be compliant with Article 5(4) in an immigration case. It is to be noted, however, that abuse of process was not considered in Zamir. This, to my mind, is important because abuse of process not infrequently requires the resolution of factual issues to which task the High Court, on habeas corpus or judicial review, is not well suited. I shall return to this shortly.
29. Having regard, as this Court must, to the Strasbourg jurisprudence, it seems to me to be clear that a court and not the Secretary of State is the appropriate forum for a decision as to the lawfulness of a fugitive's detention and, provided the Extradition Act can be so read, the magistrates' court is to be preferred to the High Court. As I have said, the House of Lords in Atkinson, ex parte Sinclair and Re Schmidt held that a magistrate has no power to refuse to commit in extradition proceedings because of an abuse of process. The rationale of each of those authorities, however, is that it is open to the Secretary of State to respond to abuse by refusing to return the fugitive.
30. In my judgment, although that is so, it does not now, in the light of the provisions of Article 5(4), provide a rationale for excluding the courts from exercising abuse jurisdiction in relation to the lawfulness of detention; and whether section 11(3) is properly construed, as it was in Re Schmidt, as limiting the High Court's jurisdiction to the three matters identified in (a), (b) and (c), or as preserving by its initial words, as Woolf LJ held in Osman, the High Court's common law general reviewing power, neither interpretation provides a sufficient basis on which to oust the jurisdiction of magistrates which, at first blush, is conferred by the wide language of paragraph 6(1), to consider the lawfulness of a fugitive's detention. Put another way, both section 11(3) and paragraph 6(1) of Schedule 1 can, and in my judgment should, be so read as to enable both the High Court and a committing magistrate to consider the lawfulness of detention under Article 5(4).
31. In this respect, therefore, I would follow the Administrative Court's decision in Kashamu on 6th October 2000 (paragraph 39). I am not dissuaded from this conclusion by the policy considerations identified by Lord Steyn in ex parte Gilligan in the particular context of Irish-backed warrants. As Re Darren Hayes shows, even in such a case, some limited review may be called for to reflect Article 5 rights. As to which court should consider the matter, it is true that in ex parte Bennett Lord Griffiths (at 64D) suggested that the Divisional Court, rather than the magistrates' court, was the preferable forum "if a serious question arises as to the deliberate abuse of extradition procedures." But that was said in the context of a case of kidnapping in defiance of extradition procedures.
32. What is in issue in the present case is whether, when lawful extradition procedures are being used, a resultant detention may be unlawful by virtue of abuse of the court's process. The magistrates' court, rather than the High Court, is, in my judgment, the appropriate tribunal for hearing evidence and submissions, finding facts relevant to abuse and doing so speedily. Furthermore, as it seems to me, the district judge's obligation under section 6(1) of the Human Rights Act to act compatibly with Convention rights requires him to make a determination under Article 5(4). It seems to me that that determination should be in accordance with Lord Hope's analysis in ex parte Evans, that is he must consider whether the detention is lawful by English domestic law, complies with the general requirements of the Convention and is not open to criticism for arbitrariness.
33. It does not, however, follow that the district judge can be addressed on all the issues which may arise in the course of a summary trial. Extradition proceedings do not, nor does fairness require that they should, involve resolution of trial issues. Self-evidently, extradition contemplates trial in another jurisdiction according to the law there. It is there that questions of admissibility, adequacy of evidence and fairness of the trial itself will be addressed; and if the Secretary of State has concerns in relation to these or other matters, it is open to him to refuse to order a fugitive's return.
34. What is pertinent here in the present cases is solely whether the detention is unlawful by English domestic law and/or arbitrary, because of bad faith or deliberate abuse of the English courts' procedure. The scope of the inquiry is, therefore, narrow. In that connection, it by no means follows, merely because second proceedings have been instituted against Kashamu, following failure of the first proceedings in the circumstances earlier set out, that there has been an abuse. I add that it will only be in a very rare extradition case, provided the statutory procedures have been followed, that it will be possible to argue that abuse of process has rendered the detention unlawful under Article 5(4).
35. For my part, I would quash that part of the district judge's decision in Kashamu requiring this Court to investigate the possibility of abuse and remit that case for consideration of that matter by him. Likewise, if my Lord agrees, the other two cases require reconsideration by the district judge in the light of the conclusion that his ruling in Kashamu was wrong. His decision in those cases should also, therefore, in my view be quashed and those cases remitted to him for decision.
36. MR JUSTICE PITCHFORD: I agree. The purpose of the fugitive's appearance before the district judge is for examination of the question whether there are grounds to commit him in custody to await extradition. Since it is a Convention requirement for lawfulness that the detention should not be arbitrary, I cannot envisage that the district judge could now, consistent with his obligations under section 6 Human Rights Act 1998, decline to consider the question of arbitrariness.
37. Those views do not, however, involve a finding that the district judge can be addressed upon all those issues of abuse which are capable of arising in the course of the trial of an information. In domestic law the issues, of which there are many, which may go to the question of abuse generally fall into two categories: those which render it unfair to try the defendant and those which render a fair trial impossible. It is not, in my view, necessary, in order for the detention to be lawful in Convention terms, to establish that the ultimate trial in another country will be fair, nor that the motives of the requesting party in bringing the prosecution abroad are beyond reproach.
38. The Convention is aimed at the obligations of the requested party which is given the explicit power to detain for the purposes of extradition to stand trial in the country of a requesting party. The Convention requires that the fugitive shall not in the requested country be considered or detained arbitrarily or contrary to the requirements of domestic (in the case of England and Wales) statutory laws. I do not, for these reasons, accept Mr Fitzgerald's central proposition that there is a duty upon the district judge to consider at the committal stage all and any questions of abuse because a finding of abuse concerning a trial in England would render the detention unlawful.
39. In Mr Kashamu's case, the first committal proceedings were quashed upon a concession made by the Government that the validity of the committal should be tested on the assumption that material afterwards disclosed should have been before the committing district judge. Pill LJ and Bell J expressly did not make a finding of bad faith against the Government, but found that the committal had been invalidated by procedural unfairness. The claimant had been deprived of the opportunity of addressing the district judge upon all the material which should have been before him.
40. It does not, I agree, follow that further committal proceedings based upon a case properly formulated are arbitrarily brought.
41. MISS MONTGOMERY QC: My Lord, this being a criminal cause or matter, I dare say my learned friend who is here today for Mr Kashamu, like me, would seek an order for costs out of central funds in respect of this application and the single hearing in front of the district judge dealing with this issue.
42. LORD JUSTICE ROSE: I do not think that can be contentious. So be it. Anything else?
43. MR COLEMAN: No, my Lord.