QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE PITCHERS
|GOVERNOR OF HMP BRIXTON||(DEFENDANT)|
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MR J HARDY (instructed by Crown Prosecution Service) appeared on behalf of the DEFENDANT
Crown Copyright ©
Thursday, 31st October 2002
"It is important to remember that the conduct of extradition proceedings is entirely the creature of statute. This has a number of consequences. (1) The requesting state must be the sole arbiter of such material as it chooses to place before the court in support of its application and in purported compliance with the relevant domestic extradition legislation. It alone will decide what material in support of its allegations it places before the Secretary of State and the court under sections 7 and 9 of the Act of 1989. If it furnishes inadequate evidence, then it takes the risk that its request will be refused; in which event, it will be up to the requesting state to determine whether it starts fresh proceedings or not. Neither principles of comity nor the express terms of the Act afford the court in this country any right - still less power - to request further material from the requesting state as a condition precedent to committal."
Later Ognall J referred to Thong Chai Sanguan Dikul v Government of the United States, a decision of the Supreme Court of Hong Kong, which on 21st January 1993 was the subject of an unsuccessful petition to appeal to the Privy Council. At page 1300 of the report in Lee Ognall J said:
"Before the Judicial Committee, Lord Griffiths observed to counsel for the applicant, in the course of argument, that although the duty to disclose unused material was a well-settled part of domestic criminal proceedings, extradition was 'very different indeed'. We respectfully agree. It is of course right to observe that the law of extradition proceeds upon the fundamental assumptions that the requesting state is acting in good faith and that the fugitive will receive a fair trial in the courts of the requesting state. If it were otherwise, one may assume that our government would not bind itself by treaty to such process. But that is not to say that it is the duty of our courts to enquire into the adequacy or otherwise of the procedural safeguards afforded to a defendant before those courts. Our courts have consistently resisted attempts to import the requirements of domestic criminal procedure into extradition proceedings. Provided that there has been a compliance with the terms of the Extradition Act 1989, fairness is not a criterion relevant to the function of the committing court."
"38. The Government have fulsomely acknowledged the obligation which was upon them in this case by way of disclosure and the fault which occurred. I do not consider it to be an appropriate case in which to consider generally the duty of disclosure in extradition proceedings, the concessions having been made.
39. It does, however, appear to me that the statement of Ognall J in [ex parte Lee] at 1300C, that under the Extradition Act, 1989, 'fairness is not a criterion relevant to the function of the committing court' cannot stand in the light of the Human Rights Act and Articles 5 and 6 of the Convention. I do not doubt the correctness of the actual decision in Lee."
"What is in issue in the present case is whether, when lawful extradition proceedings 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 1998 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 compliance with Lord Hope's analysis in R v Governor of Brockhill Prison, Ex p Evans (No 2)  2 AC 19, 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 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 case 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 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)."
Pitchford J gave a judgment to the same effect.
"This court is now bound to take these matters into account, whatever may have been the position before the Human Rights Act 1998 came into force."
MR JUSTICE PITCHERS: I agree.
MR SUMMERS: My Lord, may I raise two other matters. The first is this, may I have 14 days to consider whether or not leave to appeal is to be sought?
LORD JUSTICE KENNEDY: Yes.
MR SUMMERS: Secondly, may I request that this court orders an expedited transcript in order that I can give full consideration to that application.
LORD JUSTICE KENNEDY: I am told that it will be available on Monday.
MR SUMMERS: My Lord, I am grateful.