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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Walker v Governor of HM Prison Nottingham & Anor [2002] EWHC 39 (Admin) (25th January, 2002)
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Cite as: [2002] EWHC 39 (Admin)
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Walker v Governor of HM Prison Nottingham & Anor [2002] EWHC 39 (Admin) (25th January, 2002)
DIVISIONAL COURT
| Royal Courts of Justice Strand, London, WC2A 2LL | ||
B e f o r e :
and
MRS JUSTICE HALLETT
____________________
Neil Walker Claimant And
The Governor of HM Prison Nottingham
Defendant And
The Commissioner of Customs and Excise
Interested Party
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)
Clive Nicholls QC & Hugo Keith (instructed by The Solicitor, Customs & Excise for the interested party)
The Defendant did not appear and was not represented
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
- This is an application for Habeas Corpus or for judicial review made by a man who is at presently detained at Nottingham Prison, having been brought to this country from Las Vegas, Nevada, in the United States of America. On his behalf it is said that he was extradited for offences which were not extradition crimes, and cannot be tried for those offences, which are the only offences with which he has so far been charged. For the interested party it is said that he was not extradited, but he chose to return, and that there is therefore no obstacle to prevent him from being tried in respect of any offences. It is therefore necessary to look with some care of the sequence of events which caused him to move from Nevada to the United Kingdom, as it emerges from the papers before us. To a large extent the history is uncontentious.
- The Claimant was born on 24th January 1956, so he is now 45 years of age, and on 5th December 2000 an officer of H.M. Customs and Excise laid an information before a District Judge at Nottingham which alleged that the Claimant was involved in a major Value Added Tax fraud involving mobile telephones, with a loss to the Revenue of about £30m. A warrant was issued which referred to offences contrary to Section 72(8) of the Value Added Tax Act 1994, and contrary to Section 93C(i)(b) of the Criminal Justice Act 1988, commonly known as money laundering. It was believed, rightly, that the Claimant was in Las Vegas and Interpol was asked to assist.
- On 5th September 2001, by a diplomatic note directed to the Department of State of the United States Government, the United Kingdom requested “the provisional arrest” of the Claimant “with a view to extradition” in accordance with Article VIII of the Extradition Treaty between the two countries. The note having referred to the Claimant’s date and place of birth and his present address in Las Vegas set out the offences in respect of which the English warrant had been issued in December 2000, and referred to the existence of that warrant. A copy of that warrant was enclosed with the note, together with a summary of the facts of the case. As is pointed out in the affidavit of Jason Carter, a trial attorney with the United States Department of Justice, the purpose of a provisional arrest is to hold a fugitive in custody depending receipt of a extradition request, and in this case such a request was never made.
- On 11th September 2001 the United States Department of State transmitted the request for provisional arrest to the Department of Justice, leaving that department to decide whether to seek provisional arrest prior to receipt of a request for extradition. The Department of Justice, having obtained from the United Kingdom information as to the penalties which could be imposed in respect of the offences in the English warrant, decided to proceed. No enquiries seem to have been made as to whether those offences were extraditable in English law.
- On 19th September 2001 an assistant United States Attorney Mr Damm filed a complaint in the District Court in Nevada seeking a provisional warrant for the Claimant’s arrest “for extradition”. The warrant was issued, and on 26th September 2001 the Claimant was provisionally arrested at his home at Las Vegas. Under the terms of the treaty between the United States and the United Kingdom the United Kingdom then had until the 25th November 2001 to request extradition. The Claimant says that he was arrested at gun point by a number of armed U.S. Marshals, and that his home was searched, and documents were seized which were later handed to officers of the Customs and Excise.
- On the following day, 27th September 2001, he appeared in court in Las Vegas, represented by a lawyer, John Momot. The Claimant says that in court he asked to be allowed to return to the United Kingdom voluntarily, and offered to pay his own fare, but that request was refused. Under U.S. common law fugitives may waive their right to extradition and agreed to be handed over to the requesting state without a hearing. When that happens neither the U.S. courts nor the U.S. Secretary of State consider the charges or the evidence against the fugitive, but a fugitive who has been provisionally arrested and who decides to waive his rights may well not be released until handed over to the representatives of the requesting state so as to ensure that the decision to waive rights is not used as a device to avoid extradition. At the hearing on 27th September 2001 Mr Momot asked for the question of bail to be considered on a later occasion, and the Judge asked the Claimant if he understood “these are extradition proceedings that are presently before the court”. The Claimant accepted that, saying “I do understand that these are extradition proceedings.”
- At the next hearing on the 3rd October 2001 the Claimant signed an “affidavit of waiver” which started with a declaration that he had been fully informed by Mr Momot of his rights under the extradition treaty enforced between the United States and the United Kingdom, and that pursuant to the applicable sections of Title 18 of the U.S. Code he waived those rights and petitioned the court to expedite his return in custody to the United Kingdom. Title 18 deals with fugitives, and the affidavit goes on to assert that the Claimant is familiar with the treaty, Title 18 and the complaint referred to above. After accepting that he is the individual against whom charges are pending in the United Kingdom the affidavit continues:-
- In the light of the affidavit waiver the court ordered that the U.S. Marshal for the District of Nevada deliver the Claimant to the duly authorised representatives of the U.K. Government for the purpose of transporting him to the United Kingdom to be held for trial or other disposition, and it was further ordered that the transfer “shall be at such time and place as mutually agreed upon by the United States Marshal for the District of Nevada and the duly authorised representative of the United Kingdom of Great Britain and Northern Ireland.” It seems from the transcript of what was said in court on the 3rd October 2001 that at that time Mr Momot believed the offences to be extraditable offences, and he asserted that it was in the best interests of the Claimant to “waive extradition” and return to the United Kingdom to face the charges. Mr Momot repeated the Claimant’s offer to pay his own air fare, and counsel agreed to ask the court for a 30 day status check if the Claimant should not be “extradited back to the United Kingdom” by then. The judge checked to ensure that the Claimant knew the rights “in this extradition proceeding” that he was giving up by executing the affidavit of waiver, and that there had been no threats or inducements.
- A further order was made on the 3rd October 2001 for the Claimant’s detention “pending extradition” on the ground that there was a serious risk that he would not appear.
- H.M. Customs and Excise was advised of the result of the hearing on 3rd October 2001, and on 9th October 2001 officers Stone and Norcliffe travelled to Las Vegas where they met U.S. Special Agents and Marshals.
- On 16th October 2001 the Claimant was taken by U.S. Marshals to the airport at Las Vegas, and put onto a Virgin Atlantic flight to London Gatwick. On that flight he was escorted by officers Norcliffe and Stone. The Claimant’s account of what happened on 16th October 2001 is that he was taken to the airport in handcuffs and leg irons, dressed in prison clothes. He was only allowed to wear his own clothes for the journey because the captain of the aircraft refused to accept him in prison apparel, and he was not allowed to have any item of personal property, not even glasses or court documents, which he was told would be thrown away. On the aircraft he was kept in handcuffs except when he was consuming a meal or when both officers were present. He was also told by the officers that they had a warrant for his arrest for VAT and money laundering offences, and was told what would happen to him on arrival in England.
- Mr Norcliffe states that during the flight the Claimant told him that he had a top American lawyer named John Momot who had advised him to fight the extradition because he had a good case, but he had decided not to take the advice because he wanted to return to the United Kingdom to get things sorted out so he could carry on with the rest of his life, as he was very happy with his new partner and the life they shared in the USA. At one point he speculated as to the “going rate” in terms of sentence for the charges which he faced.
- As envisaged the Claimant was taken from Gatwick to Crawley Police Station where the custody records show what little property he had. It had been received by Officer Norcliffe from a Deputy U.S. Marshal. From Crawley he was taken to Nottingham, where on 18th October 2001 he applied for bail. Mr Rose-Smith who represented him, pointed out the extent to which the Claimant had co-operated. He had not opposed the extradition but, as the District Judge pointed out, he had not come to the United Kingdom entirely voluntarily.
- Relying on that history Mr Alun Jones QC for the Claimant submits that the United States Authorities, the Claimant’s U.S. lawyer and the U.S. Judge were all misled into the belief that the offences in question were within the scope of the relevant extradition treaty when they were not. Nevertheless Mr Jones submits that all that the Claimant waived was his right to raise arguments in the United States, and that waiver did not change the nature of the proceedings. They remained extradition proceedings, and the Claimant landed at Gatwick because he had been extradited. That entitles him to take advantage of the right of a fugitive not to be tried for any offence other than the extradition crimes for which he has been extradited and where, as here, there are no such crimes, the fugitive should be released. Alternatively Mr Jones submits that if the Claimant was not extradited he only returned to England because he was misled as to what would happen if he failed to do so. As a result of the actions of the Customs and Excise he was led to believe that if he did not return voluntarily he would be extradited. That was not the case, and because he was misled we should now use our powers of judicial review to grant him relief, following the reasoning of the House of Lords in R -v- Horseferry Road Magistrates Court ex parte Bennett (1994) 1 AC 42.
- Section 1(3) of the Extradition Act 1989 provides that where an Order in Council under Section 2 of the Extradition Act 1870 is in force in relation to a foreign state schedule 1 to the 1989 Act shall have effect in relation to that state, subject to certain qualifications which for present purposes are not material.
- Schedule 1 applies in relation to the United States, the United States of America (Extradition) Order 1976 S.I. 2144 being the relevant Order in Council. Schedule 1 to that Order in Council contains the Extradition Treaty between the two states.
- Article VII of the Treaty so far as material, provides that:-
- Article VIII of the Treaty provides for provisional arrest, and it states that:-
- As Mr Clive Nicholls QC for the Interested Party points out, the information which has to be provided to support a request under Article VIII is less extensive than that required to accompany a request for extradition under Article VII.
- Articles XIII and XIV are said to be of some relevance having regard to what was done with those items of the Claimant’s property which were handed by the United States Marshals to the officers of H.M. Customs and Excise, and having regard to the fact that the United Kingdom Authorities bore the costs of the Claimant’s transportation. Those two Articles provide:-
- Returning now to Schedule 1 to the Extradition Act 1989, paragraph 17 provides:-
- Paragraph 20 contains the definition of “extradition crime” but I need not recite it because, as I have said, it is common ground in this case that the offences alleged are not extradition crimes.
- Mr Jones recognises that the Claimant was not extradited from the United States in the way envisaged by the Treaty. Indeed, as Mr Nicholls points out, when the Claimant returned to the United Kingdom the United Kingdom Government had yet to request his extradition. Following his provisional arrest such a request could have been made at any time up to 25th November 2001, and the request could have referred to offences other than those specified at the time of the request for the provisional arrest. In particular the request for extradition could have specified one or more extradition crimes. Nevertheless Mr Jones submits that the Claimant is entitled to take advantage of the provisions of paragraph 17 of Schedule 1 to the 1989 Act because he was surrendered pursuant to an arrangement with a foreign state. The arrangement, it is said, need not take the form of a treaty, and in this case the contacts between the U.S. Department of Justice and H.M. Customs and Excise which resulted in the Claimant’s return to the United Kingdom will suffice. As Mr Jones concedes, there is no authority for the proposition that an arrangement of the type contemplated by paragraph 17 can be anything like as informal as he suggests. Looking at the rest of paragraph 17 I find it difficult to see how, when there has been no request for extradition, the Claimant can be a person accused of an extradition crime, and, as to the final words of the paragraph, I fail to see how they can operate when there are no facts on which the surrender is grounded other than the decision of the Claimant in the United States to waive his rights under United States law.
- Mr Jones invited our attention to Barton v. Commonwealth of Australia (1974) 131 PLR 477 which concerned a request for the detention of two Australian citizens who were in Brazil, pending a request for extradition. Although Australia had no extradition treaty with Brazil reliance was placed on the residue of the royal prerogative, and the High Court of Australia therefore looked at the effect of the English Extradition Act 1870. Barwick CJ said at paragraph 13:-
- Mr Jones submits that we should adopt a similarly wide interpretation of the word “arrangement” in paragraph 17 of Schedule 1 to the 1989 Act, but he recognises that in paragraph 32 of his judgment in Barton Mason J adopted a more restricted interpretation, saying that:-
- In my judgment, for the purposes of the present case, it is unnecessary to say more than that both judges in the High Court of Australia were clearly contemplating nothing less than an ad hoc agreement between states, not simply an agreement between relatively junior officials of state bodies, and furthermore the wording of Section 19 of the 1870 Act was not the same as the wording in paragraph 17 with which we are concerned. I accept that an arrangement which is effective for the purposes of paragraph 17 need not be embodied in a formal treaty (see by analogy R v. Secretary of State for the Home Department ex parte Launder (No. 2) (1998) QB 994) but it cannot in my judgment be made in the way contended for by Mr Jones in this case.
- In R v. Secretary of State for the Home Department ex parte Johnson (1999) QB 1174 the applicant was brought from Austria to the United Kingdom by means of a simplified procedure under which he purported to waive his rights under the European Convention on Extradition. He faced charges of fraud on which he was in due course acquitted. Before that happened the Australian authorities requested of the U.K. Government extradition of the applicant from the United Kingdom to Australia to face charges of conspiracy to defraud and fraudulent trading, those charges being based on events prior to the applicant’s arrival in the United Kingdom from Austria. The Austrian authorities, by means of a diplomatic note to the U.K. Government, consented to the re-extradition, and after committal by a Metropolitan Stipendiary Magistrate the Secretary of State ordered that the applicant be returned to Australia. He then sought judicial review of that decision on the basis that he could not by anything which he did in Austria waive his right to the observance of Articles 14 and 15 of the Convention by the Secretary of State once he was here. That was rejected by Bell J at 1186 on the facts. As Mr Jones submitted to us, the Austrian consent was found to be sufficient to prevent the applicant from relying on arguments in relation to specialty, but Mr Jones submits, and I accept, that the decision in Johnson is of no assistance where on the facts the right to specialty survives. Mr Garlick QC for the Government of Australia contended in Johnson that the simplified procedure whereby Johnson was moved from Austria to the United Kingdom did not amount to extradition. This court did not find it necessary to decide that point which, in a different setting, is a critical issue in the present case.
- Mr Jones pointed out that in Sections 70 to 72 of the Canadian Extradition Act 1999 provision is made for a fugitive to consent to committal (Section 70(1)) and to being surrendered (Section 71(1)). He may also at any time after arrest waive extradition (Section 72(1)), but in that event the judge before whom the waiver is given must inform the fugitive of the consequences including waiving the protection of specialty (Section 72(2)(a)). As Mr Jones points out, no such information was given in this case, but I share Mr Nicholls’s doubts as to whether Sections 70 to 72 of the Canadian Statute have any application to someone held as a result of provisional arrest. The sections seemed to be in sequence, and Section 70(1) opens with a reference to “any time after the issuance of an authority to proceed”. If there has been no request for extradition there can be no authority to proceed.
- Mr Jones also invited our attention to the European Convention on simplified extradition procedure between Member States 1995, to which the United Kingdom has not yet acceded. The consent of the person sought is required if the simplified procedure is to operate, and Article 7-1 states:-
- The same point as to timing seems to apply to the forms in Schedule 1 to the Magistrates’ Courts (Extradition) Rules 1989 S.I. 1597 which Mr Jones asked us to consider. They do not seem to be designed to deal with someone who is only provisionally arrested.
- Mr Nicholls submitted that we should follow the approach of the Quebec Court of Sessions in R v. Gagnon (1956) 117 CCC 61 where, as here, a person abroad had waived his right to await extradition and consented to return, but had then sought to invoke the law in relation to specialty. Theberge J said at 67:-
- Similarly, in the context of domestic proceedings, Lord Diplock said in R v. Governor of Pentonville Prison ex parte Sotiriadis (1975) AC 1 at 25H
- In my judgment the approach to which Lord Diplock referred is the right approach in the context of this case. Whatever way one looks at it the reality is that this Claimant was not extradited. Having been provisionally arrested he chose not to await the initiation and determination of the extradition process. Of course his options were restricted as a result of his provisional arrest, but he did have a genuine choice, and so far as the English Authorities were concerned his position when he arrived at Gatwick was exactly the same as if he had flown unescorted on a ticket which he had purchased himself. He could be charged and detained as he has been, and it is not possible for this Court to regard his detention as in any way irregular. I would therefore dismiss the application for Habeas Corpus.
- I turn now to Mr Jones alternative submission, which in my view seeks to extend the decision in Bennett far beyond its proper scope. It is, I agree, unfortunate that when a request was made for the provisional arrest of the Claimant offences were identified and those offences were not extradition crimes, but, as Mr Nicholls points out, there was no obligation at that stage to identify extradition crimes, and there is certainly no evidence to suggest that those who formulated the request for provisional arrest were deliberately attempting to deceive the Claimant and/or the U.S. Authorities into thinking that if he did not agree to waive his rights he would in due course be extradited on those charges. The situation simply does not bear comparison with the device used in R v. Bow Street Magistrates ex parte Mackeson (1981) 75 Crim. App. Rep. 24 to get Mackeson to the United Kingdom, or the deliberate disregard of extradition procedures which constituted the serious abuse of power evident in the case of Bennett.
- The fact is that in the present case the Claimant after his provisional arrest was well aware of his right to await and contest extradition proceedings. It may be that when he decided not to wait the Claimant was unaware of the fact that if the request for extradition referred only to the offences identified in the request for provisional arrest that would give him a basis for contesting the extradition proceedings with reasonable prospects of success, but that lack of perception on his part if it existed (and it is possible to have reservations about that in the light of what he is alleged to have told Mr Norcliffe on the aircraft) cannot possibly justify intervention by this Court. I would therefore dismiss the adjourned application for permission to seek judicial review.
Lord Justice Kennedy :
Chronology
“I fully understand that I cannot be compelled to be returned to the United Kingdom unless this Court certifies its finding of extraditability and the Secretary of State of the United States orders my extradition by issuing a warrant of surrender.
Nevertheless, I waive my rights to a hearing and agree to return to the United Kingdom without any promise or threats being made or any other form of inducement or intimidation being exercised on the part of any representatives, officials, or officers of the United States or of the United Kingdom, or of any person whatsoever; I execute this waiver of rights, therefore, entirely of my own free will and accord.”
Outline of Claimant’s Case
Statutory and Treaty Provisions
In that Treaty Article III(1) provides:-
“Extradition shall be granted for an act or omission the facts of which disclose an offence within any of the descriptions listed in the Schedule annexed to this Treaty, which is an integral part of the Treaty, or any other offence, if:
(a) the offence is punishable under the laws of both Parties by imprisonment or other form of detention for more than one year or by the death penalty;
(b) the offence is extraditable under the relevant law, being the law of the United Kingdom or other territory to which this Treaty applies by virtue of sub-paragraph (1)(a) of Article II; and
(c) the offence constitutes a felony under the law of the United States of America.”
It is common ground that the offences which the Claimant is alleged to have committed satisfy the requirements of paragraph (a) but not those of paragraph (b).
“(1) The request for extradition shall be made through the diplomatic channel, except as otherwise provided in Article XV (which for present purposes is not relevant)
(2) The request shall be accompanied by:
(a) a description of the persons sought, his nationality if known, and any other information which would help to establish his identity;
(b) a statement of the facts of the offence for which extradition is requested;
(c) the text, if any, of the law
(i) defining that offence;
(ii) prescribing the maximum punishment for that offence;
and
(iii) imposing any time limit on the institution of the proceedings for that offence; and
(d)(1) where the requesting party is the United Kingdom, a statement of the legal provisions which establish the extraditable character of the offence for which extradition is requested under the relevant law, being the law of the United Kingdom or other territory to which this treaty applies …”
“(1) In urgent cases the person sought may, in accordance with the law of the requested Party, be provisionally arrested on application through the diplomatic channel by the competent authorities of the requesting Party. The application shall contain an indication of intention to request the extradition of the person sought and a statement of the existence of a warrant of arrest or a conviction against that person, and, if available, a description of the person sought, and such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offence been committed, or the person sought been convicted, in the territory of the requested Party.
(2) A person arrested on such an application shall be set at liberty upon the expiration of 60 days from the date of his arrest if a request for his extradition shall not have been received. This provision shall not prevent the institution of further proceedings for the extradition of the person sought if a request is subsequently received.”
Article XII provides that:-
“(1) A person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offence other than an extraditable offence established by the facts in respect of which his extradition has been granted, or on account of any other matters, nor be extradited by that Party to a third state -
(a) until after he has returned to the territory of the requested Party; or
(b) until the expiration of 30 days after he has been free to return to the territory of the requested Party.
(2) The provisions of paragraph (1) of this Article shall not apply to offences committed, or matters arising, after the extradition.”
“XIII When a request for extradition is granted the requested Party shall, so far as its law allows and subject to such conditions as it may impose having regard to the rights of other claimants, furnish the requesting Party with all sums of money and other articles -
(a) which may serve as proof of the offences to which the request relates; or
(b) which may have been acquired by the person sought as a result of the offence and are in his possession.
XIV (1) The requested Party shall make all necessary arrangements for and meet the cost of the representation of the requesting Party in any proceedings arising out of a request for extradition.
(2) Expenses relating to the transportation of a person sought shall be paid by the requesting Party. No pecuniary claim arising out of the arrest, detention, examination and surrender of a person sought under the provisions of this Treaty shall be made by the requested Party against the requesting Party.”
“Where in pursuance of any arrangement with a foreign state, any person accused or convicted of an extradition crime is surrendered by that foreign state, such persons shall not until he has been restored or had an opportunity of returning to such foreign state, be triable or tried for any offence committed prior to the surrender in any part of Her Majesty’s Dominions other than such of the said crimes as may be proved by the facts on which the surrender is grounded.”
Extradition - Submissions and Authorities
“Clearly, thereafter a person could not be surrendered to a non-treaty state or for a non-extraditable crime, as defined in that Act, or without compliance with the statute in the case of surrender to a treaty state. But the Extradition Act 1870 did not deal with the request for and acceptance of the surrender of a fugitive by another country, though by Section 19 it did provide speciality for the surrendered fugitive. The word “arrangement” in that section was not, in my opinion, limited to the case of a treaty but included an arrangement evidenced by the surrender in response to a request.”
At paragraph 15 he continued
“I think the better opinion is that after 1870 the Crown retained a prerogative to seek and accept from a non-treaty state the surrender of a fugitive, subject only to the limitation of speciality imposed by Section 19 of the Extradition Act 1870.”
“The terms of the Section indicate that the word “arrangement” is used in the sense of a general arrangement such as that made by treaty or convention which makes provision for the mutual surrender or extradition of a class of fugitive criminal or offenders”.
“The consent of the arrested person and, if appropriate, his express renunciation of entitlement to the speciality rule, shall be given before a competent judicial authority of the requested State in accordance with the national law of that State.”
For the reasons already given a person who is only provisionally arrested has no entitlement to the speciality rule. His entitlement, at least in the factual setting with which we are concerned, is to be freed within a relatively short time if no request is made for his extradition, and meanwhile to have the benefit of legal advice, which he can then decide for himself whether or not to follow.
“It is clear and it may be said without fear of contradiction that before extradition can be proceeded with and ordered or refused as the case may be the one country must have received a requisition from the country seeking extradition of the fugitive, in pursuance of the treaty or convention of extradition between the two. That is a condition sine qua non. The requisition is the essential factor, the determining, fundamental factor without which the one country is powerless to act. Lacking such a requisition a foreign country might, of course, deport a fugitive or provide for his departure in some other manner, but such departure could not be in accordance with international law on extradition and pursuant to the convention between the two countries.”
“A person arrested on a provisional warrant is not at this stage subject to extradition at all and may never become so. He becomes subject to extradition only when a requisition for his surrender has been received by the Secretary of State. Although the provisional warrant charges him with an offence committed abroad the charge is as yet inchoate. It is not yet the subject of the judicial hearing for which the Act provides. There may never be a requisition for his surrender or, if there is, it may not be for the same crime as that with which the provisional arrest charges him or it may be for other crimes as well. He ought not to be kept in custodial limbo indefinitely, entitled neither to a hearing of the case against him nor to be set at liberty. So the magistrate is required to fix a date by which either those charges which alone can be the subject matter of the hearing must be formulated or the prisoner released.”
Conclusion Re Habeas Corpus
Judicial Review
Mrs Justice Hallett : I agree
© 2002 Crown Copyright