B e f o r e :
(The Lord Woolf of Barnes)
MR JUSTICE MITTING
|IN THE MATTER OF AN APPLICATION FOR A WRIT|
|OF HABEAS CORPUS AD SUBJICIENDUM|
|IN THE MATTER OF THE EXTRADITION ACT 1989|
|- v -|
|THE GOVERNOR OF HER MAJESTY'S PRISON BELMARSH|
|THE GOVERNMENT OF THE UNITED STATES OF AMERICA|
Smith Bernal, 190 Fleet Street, London EC4
Telephone No: 020-7421 4040
(Official Shorthand Writers to the Court)
Chapman, London SW15 6AB appeared on behalf of THE APPLICANT
MISS ADINA EZEKIEL (instructed by Crown Prosecution Service, Central
Casework, London EC4M 7EX) appeared on behalf of THE RESPONDENT
Crown Copyright ©
Monday 23 June 2003
THE LORD CHIEF JUSTICE: I will ask Mr Justice Mitting to give the first judgment.
MR JUSTICE MITTING:
"With regard to disclosure of information in connection with a prosecution, the defence's assertion that it is entitled to discovery when the defendant has voluntarily absented himself from this jurisdiction is absurd. If he is present here and going to trial, then he is entitled to certain documents. However, he cannot have his cake and eat it too by being absent and then seeking to use to his benefit the law that he is avoiding. As a fugitive, he is disentitled from doing so."
(1) There are two procedures for extradition between the United Kingdom and foreign states. First, where there is an Order in Council made under section 2 of the Extradition Act 1870, the procedure is laid down in Schedule 1 of the Extradition Act 1989.
(2) Where the Order in Council has been made under section 4 of the Extradition Act 1989, the procedure is laid down in Part III. The newer procedure permits extradition without consideration of evidence showing that the person accused of the crime has committed it -- for example, under the European Convention on Extradition Order 1990, Article 3. This case is concerned with the older procedure.
Schedule 1, as far as is relevant, provides in paragraph 5 for the arrest or provisional arrest of a person in respect of whom extradition proceedings are to be undertaken. Paragraph 6(1) provides:
"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 on bail, as if the proceedings were the summary trial of an information against him for an offence committed in England and Wales."
Paragraph 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 .... 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."
Paragraph 8 makes provision for an application for habeas corpus and the detention of the fugitive.
(3) Paragraphs 6(1) and 7(1) were amended by section 158(1) and (8) of the Criminal Justice and Public Order Act 1994, with effect from 1 April 1997. Prior to the amendment, paragraph 6(1) provided that the metropolitan magistrate should have the same jurisdiction and powers "as if the prisoner were brought before him charged with an indictable offence". Paragraph 7(1) provided that the metropolitan magistrate shall commit if "such evidence is produced as .... would .... justify the committal for trial of the prisoner".
The purpose of the amendments was to cater for the prospective abolition of committal proceedings enacted in the 1994 Act but not brought into force: see R v Governor Brixton Prison, Ex parte Gross  QB 538 at 545B-G and 545A-C.
In relation to paragraph 7(1) it was expressly provided that the evidential test under the old and the new provision was the same: see section 35(3) of the 1989 Act (as amended) which provides:
"For the purposes of the application of this Act by virtue of any Order in Council in force under it or section 2 of the Extradition Act 1870, any reference in this Act to evidence making a case requiring an answer by an accused person shall be taken to indicate a determination of the same question as is indicated by a reference (however expressed) in any such Order (or arrangements embodied or recited in it) to evidence warranting or justifying the committal for trial of an accused person."
The Divisional Court in Ex parte Gross held that no change was thereby effected in the right of a prisoner to adduce evidence in extradition proceedings on his own behalf.
I am likewise satisfied that Parliament intended no other substantive change in the magistrate's powers by the change in the wording of paragraphs 6(1) and 7(1).
(4) Extradition proceedings are criminal proceedings: see R v Governor of Brixton Prison, ex parte Levin  AC 714, per Lord Hoffmann at 746F.
(5) Prior to the enactment of the Human Rights Act 1998 it was settled law that:
(i)A magistrates' court had no power to stay extradition proceedings as an abuse of process.
(ii)The High Court's power to issue a writ of habeas corpus on the ground of, or similar to, abuse of process was limited to those circumstances specified in sections 6 and 11(3) of the 1989 Act: see In re Schmidt  1 AC 339.
(iii)"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": see R v Governor of Pentonville Prison, Ex parte Lee [1993 1 WLR 1294, per Ognall J at 1298F-G.
(6) The first and second of those propositions have not withstood the impact of the Human Rights Act 1998, section 6(1) and Articles 5(1)(f) and (4) of the Convention, at least at the level of the Administrative Court.
In R(Kashamu) v Governor of Brixton Prison (No 2)  QB 887 (see paragraphs 27-31), when the question arises, both the magistrates' court and the High Court have the power and duty to enquire into an abuse of their processes in extradition proceedings. The scope of the enquiry is, however, narrow. At page 900D-G Rose LJ said:
"32. .... 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 accordance with Lords Hope's analysis in R v Governor of Brockhill Prison, Ex parte 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 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."
Pitchford J, in a concurring judgment at page 901 said:
"36. .... I cannot envisage that the district judge could now, consistent with his obligations under section 6 of the 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....
38. .... 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."
(7) The third proposition requires to be considered in the light of section 6(1) of the Human Rights Act 1998 and Articles 5(1)(f) and (4) of the Convention which state:
"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 a procedure prescribed by law.
(f)the lawful arrest or detention of a person .... against whom action is being taken with a view to deportation or extradition.
4. 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."
The European Human Rights Commission ruled inadmissible the invocation of Article 6 in extradition cases. In Kirkwood v United Kingdom 6 EHRR 373, 386 it is said:
"The Commission recalls its decision on the admissibility of App No 10227/82 v SPAIN, where it considered whether extradition proceedings involved the 'determination' of a criminal charge. It recognised that the word 'determination' involve the full process of the examination of an individual's guilt or innocence of an offence. Since the proceedings in Spain did not involve an examination of the question of the applicant's guilt, but merely whether formal extradition requirements had been fulfilled, that application was declared inadmissible. The present case also concerns extradition, but the Commission notes that the task of the Magistrates' Court included the assessment of whether or not there was, on the basis of the evidence, the outline of a case to answer against the applicant. This necessarily involved a certain, limited, examination of the issues which would be decisive in the applicant's ultimate trial. Nevertheless, the Commission concludes that these proceedings did not in themselves form part of the determination of the applicant's guilt or innocence, which will be the subject of separate proceedings in the United States which may be expected to conform to standards of fairness equivalent to the requirements of Article 6, including the presumption of innocence, notwithstanding the committal proceedings. In these circumstances the Commission concludes that the committal proceedings did not form part of or constitute the determination of a criminal charge within the meaning of Article 6 of the Convention."
Applying that reasoning, the Administrative Court has held on two occasions that the principles set out by Ognall J in Ex parte Lee remained good law: see R(Lodhi) v Governor of HMP Brixton  EWHC Admin 178 (13 March 2001), paragraphs 114 and 115; and R(Serbeh) v Governor of HMP Brixton  EWHC Admin 2396 (31 October 2002), in which it was contended that a duty of disclosure existed in extradition proceedings and that to withhold disclosure amounted to an abuse of process. Kennedy LJ stated:
"39. .... I can find nothing in the authorities to support Mr Summers' proposition that even where, as here, there is not even a suspicion of bad faith the requesting country must now, as a result of the implementation of the Human Rights Act, make full disclosure of its prosecution case, and of any relevant unused material or be at risk of having the proceedings struck out as an abuse of process.
40. In my judgment, as was made clear by Ognall J in Lee and by the European Commission in Kirkwood, extradition proceedings are not to be equated with criminal proceedings before domestic courts. In extradition proceedings it is still for the requesting state to decide what material it chooses to place before the court in support of its application. There is still a fundamental assumption that the requesting faith is acting in good faith. If there is reason in the particular case to call that assumption into question, then the reason can be examined, and if appropriate acted upon, but there was and is no such reason in this case, and accordingly, in my judgment the complaints of non-disclosure and abuse of process are misconceived."
"In Ex parte Francis, as I have said, McCowan LJ said that section 78 of the Act of 1984 had no application to extradition proceedings. I think that this goes too far. If, as I think, extradition proceedings are criminal proceedings, then section 78 as originally enacted applied to them. In Reg v King's Lynn Justices, Ex parte Holland  1 WLR 324, the Divisional Court said that section 78 applied to committal proceedings and I think it must follow that it also applied to extradition proceedings. (I note parenthetically that, since the committal in this case, committal proceedings have been excluded from the application of section 78 by paragraph 26 of Schedule 1 to the Criminal Procedure and Investigations Act 1996 and it seems likely that the effect of section 9(2) and paragraph 6(1) of Schedule 1 to the Act of 1989 is to exclude extradition proceedings as well.) On the other hand, it must be borne in mind that when the section is being applied to committal or extradition proceedings, the question is whether the admission of the evidence would have such an adverse effect on the fairness of those proceedings that the court ought not to admit it. This is not at all the same thing as the question of whether the admission of the evidence at the trial would have an adverse effect on the fairness of the trial. On the contrary, the magistrates should ordinarily assume that the powers available to the judge at the trial will ensure that the proceedings are fair. The question is, therefore, whether the admission of the evidence would have an adverse effect on the fairness of the decision to commit or extradite the accused for trial, even if the trial is a fair one. I think that the circumstances would have to be very unusual before magistrates could properly come to such a decision ...."
After a citation from Ex parte Holland Lord Hoffmann continued:
"In extradition proceedings there is even less scope for the exercise of the discretion because, as McCowan LJ pointed out in Ex parte Francis .... extradition procedure is founded on concepts of comity and reciprocity. It would undermine the effectiveness of international treaty obligations if the courts were to superimpose discretions based on local notions of fairness upon the ordinary rules of admissibility. I do not wish to exclude the possibility that the discretion may be used in extradition proceedings founded upon evidence which, though technically admissible, has been obtained in a way which outrages civilised values. But such cases are also likely to be very rare."
Lord Hoffmann's interpolation was a reference to section 78(3) of the Police and Criminal Evidence Act 1984 which, since 1 April 1997, has provided:
"This section shall not apply in the case of proceedings before a magistrates' court inquiring into an offence as examining justices."
It is not clear from the passage which I have cited whether Lord Hoffmann had in mind the amendments to paragraphs 6(1) and 7(1) introduced on the same date, or only the old wording.
(1) Section 78(3) applies to determination by the magistrates' court of the sufficiency of evidence for the purpose of committal for trial. Fairness of its use at trial is a matter for the trial court.
(2) The determination of the question whether evidence is sufficient to warrant or justify committal for trial is the task which the committing magistrate (now district judge) has in extradition proceedings: see section 35(3) of the 1989 Act.
(3) The fairness of the use of evidence at trial is a question for the trial court, not for the committing magistrate: see Kashamu (No 2) page 900D-G.
(4) Therefore, in my view, section 78(3) excludes the application of section 78(1) in extradition proceedings.
(5) Further, the requesting state is not necessarily "the prosecution" in the sense in which those words are used in section 78(1): "The court may refuse to allow evidence on which the prosecution proposes to rely".
(6) In this case the Federal Government of the United States is not the prosecution. The crimes in respect of which extradition is sought are state not federal crimes and the prosecuting authority is the Prosecuting Attorney of Jackson County, Missouri.
(7) Even if section 78 does apply, its effect is limited to the circumstances identified by Lord Hoffmann in Ex parte Levin. There is, and can be, no suggestion that the evidence of Miss Daniels has been obtained in a way which outrages civilised values.
For any or all of those reasons, in my view, section 78 either does not apply or does not assist the applicant.
"The jurisprudence of the European Court of Human Rights indicates that there are various aspects to article 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 article 5(1). It will thus give rise to an enforceable right to compensation under article 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 articles 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: Sunday Times v United Kingdom (1979) 2 EHRR 245 and Zamir v United Kingdom (1983) 40 D&R 42, paras 90-91. The third questions 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: Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 58 and Tsirlis and Kouloumpas v Greece (1997) 25 EHRR 198, para 56."
"In the Court's opinion, Article 5(4) required in the present case that Mr Sanchez-Reisse be provided, in some way or another, with the benefit of an adversarial procedure.
Giving him the possibility of submitting written comments on the Office's opinion would have constituted and appropriate means ...."
"The Court considers that the documents available to the applicant .... did not provide an adequate basis on which to address the arguments relied on both by the prosecution and by the courts in support of the decisions to prolong his detention, and secure thereby any effective defence in the detention proceedings, in particular in the light of the progress of the investigations, in which new evidence was gradually coming to light.
87. Accordingly, there has been a violation of Article 5(4)...."
"[Counsel for the United States Government] accepted and asserted that the effect of the failure to supply the information to the magistrate had been to vitiate the committal and to render the committal order void."
The court quashed the committal. Pill LJ observed that Ognall J's observations in Ex parte Lee that
"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. His observation on Article 6 must, as has been observed in other divisions of this court, be viewed with caution in the light of Kirkwood v United Kingdom 6 EHRR 373 and, I would add, the observations of Lord Hutton in R(Al-Fawwaz) v Governor of Brixton Prison  1 AC 556, 590, paragraph 88.
".... 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."
Kashamu (No 1) is not, therefore, in my view authority for any wider proposition than that on the facts and on the concession made, and in that case, fairness required that the committal be quashed.
"If the requested Party requires additional evidence or information to enable a decision to be taken on the request for extradition, such evidence or information shall be submitted within such time as that Party shall require."
In the event that there was evidence that the process of the court was being abused, the court would have been entitled, in my view, to ask the United Kingdom authorities to request the United States Government that it provide further evidence relevant to that question under that Article of the Order in Council.
(1) It is for the requesting state alone to determine the evidence upon which it relies to seek a committal.
(2) The requesting state is not under any general duty of disclosure similar to that imposed on the prosecution at any stage in domestic criminal proceedings.
(3) The magistrates' court has the right to protect its process from abuse and the requesting state has a duty not to abuse that process. That is no different from saying that the requesting state must fulfil the duty which it has always had of candour in making applications for extradition.
(4) In fulfilment of that duty, the requesting state must disclose any evidence which would render worthless the evidence on which it relies to seek committal.
(5) It is for the person subject to the extradition process to establish that the requesting state is abusing the process of the court.
(6) The requested state may be given power to request further evidence under the relevant Order in Council but, in the absence of evidence of abuse, the court is entitled to, and should generally, refuse to request the UK authorities to exercise that power or to adjourn to permit it to be exercised.