England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		13th December 2007

1. MR JUSTICE MITTING: The claimant applies for a writ of habeas corpus in circumstances that are thankfully unusual, although not wholly unprecedented. He is to be prosecuted for offences of fraud said to have been committed in England involving a house in London. He is a resident of France. He has English solicitors representing him for the purpose of the criminal investigation and any subsequent proceedings.
2. While the claimant was in France his solicitors on his behalf had discussions with the police officer in charge of the investigation, as a result of which they were led to understand by him that if he returned voluntarily to the United Kingdom he would be interviewed and, if charged, bailed.
3. On 13th September 2007, by an email timed at 3.15pm, the claimant's solicitors wrote to the investigating officer in these terms:

"Further to our telephone call of this afternoon just to confirm that I will contact Mr Labunski and arrange an appointment for his voluntary attendance at Holborn [Police Station]. I shall let him know that you will need him for half a day to discuss his role as a director of Spazi and potential money laundering issues arising.

I shall also contact Mr Hauschildt and organise for his voluntary attendance in between Romana's scheduled chemotherapy. [That is a reference to Mr Hauschildt's partner.] I shall explain that questioning may take 2 days, but that he has your assurance that he will be able to return thereafter to care for his partner. I will explain that although you are aware that he will essentially be bailed to an address outside the jurisdiction you would not oppose his release as his voluntary return would be indicative of a willingness to assist."

It is accepted that that email was received by the officer.

4. In due course Mr Hauschildt flew to England and was interviewed in connection with the case. At the conclusion of the interview he was charged with various offences of fraud. The custody sergeant invited representations as to whether or not he should be granted bail. The investigating officer represented that he should not be granted bail and he was not.
5. The matter came before the District Judge on 12th December. In the course of the hearing the officer gave evidence. In Mr Hauschildt's solicitor's note of the evidence, the following questions and answers appear:

"THE DISTRICT JUDGE: I was told this morning that you had said that you would not oppose bail.

DC LOFTUS: Yes I had an email from Mr Hauschildt's solicitor asking me not to oppose bail but I thought it was nonsensical. She is supposed to be an experienced solicitor who knows that this would mean nothing. I had a firmly held belief that if I did not give that assurance to her I would never see him again."

6. In response to Mr Hauschildt's counsel, Mr Winter QC:

"MR WINTER: Do you agree that you indicated that you would not oppose bail if Mr Hauschildt came back?

DC LOFTUS: Yes but I am saying it was nonsensical and she should have known it. It was nonsensical and a stupid question which she shouldn't have asked.

MR WINTER: Are you saying that you deceived his solicitor?

DC LOFTUS: My response was equally nonsensical.

MR WINTER: Are you saying that you gave her a false assurance? That you lied to her?

DC LOFTUS: It wasn't true. I gave her a false assurance yes, as I believed I wouldn't see Mr Hauschildt otherwise. I think he came here thinking he would avoid capture."

7. Mr Winter submits that that material, which is substantially unchallenged, although there are questions of detail arising out of it, demonstrates the clearest possible abuse of the criminal process of the English courts. He relies on R v Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42, (1994) 98 Cr App R 114. These facts are not on all fours with those in Bennett, but they do contain an essential kernel of similarity; that is to say that lawful procedures for the extradition of a suspect were evaded. The proper method of procuring the return of Mr Hauschildt to England was either to persuade him to come back, and if promises were made during the course of efforts to persuade him to ensure that they were fulfilled, or to make an application for a European arrest warrant and after which extradition proceedings would follow.
8. To make a promise and then break it, as blatantly as was done in this case, in my judgment is a clear abuse of process. There are two methods by which the abuse of process can be cured. One is the issue of a writ of habeas corpus and the second is for me to reconstitute myself as a District Judge exercising the powers of a District Judge, by virtue of section 66 of the Courts Act 2003, and to hear and determine a bail application on the footing that there has been a change in circumstances since yesterday. The change in circumstances is the acknowledgement by the Crown that there was here an abuse of process, an acknowledgement which Miss Pinto has properly made.
9. Miss Pinto submits to me that the abuse does not require the grant of a writ of habeas corpus and can be dealt with by bail on the following terms. First, residence at an address in France, Villa les Anges, 06320 Latilbe(?), Aix-en-Provence, France. Secondly, that Mr Hauschildt reports to Holborn Police Station on 22nd January 2008 between noon and 4.00pm in anticipation of committal proceedings which are to take place on the following day. Thirdly, that when in England he will reside at 1 Hillside, Crouch End Hill, London N8 8DN. Mr Winter does not formally consent to those terms but makes a submission that the abuse would be cured by them.
10. Subject to one further matter that I must raise with him at the conclusion of this brief judgment, I am prepared to accede to the suggestion made by both counsel, simply because it puts Mr Hauschildt in precisely the position in which he should have been had the promise made by the officer been fulfilled. In that way the abuse is cured.
11. Mr Winter, the reservation is this. If I am to dismiss the application for habeas corpus, then I would have to adjourn it to a Divisional Court. It is RSC 54.2.
12. MR WINTER: Yes.
13. MR JUSTICE MITTING: What should I do: stay it; adjourn it; some other procedure which does not involve dismissal?
14. MR WINTER: It is slightly hand in hand with the question of costs as well, which is a difficulty that I have raised with my learned friend, because this precise result was suggested to the CPS yesterday morning.
15. MR JUSTICE MITTING: Leave that aside for the moment. The question I am asking now is the highly-technical purely procedural one of what should I do with the application for the writ of habeas corpus.
16. MR WINTER: I do understand that. Obviously I do not mind, but what I do not want is something happening to it which would prevent me from making an application for costs.
17. MR JUSTICE MITTING: No. I have expressed my view on the underlying merits, and costs follow the underlying merits rather than the form of any order that results from them.
18. MR WINTER: Indeed, in which case I have no difficulty with it either being stayed or dismissed.
19. MR JUSTICE MITTING: Yes, I think strictly I should stay it.
20. MR WINTER: Yes.
21. MR JUSTICE MITTING: Miss Pinto?
22. MISS PINTO: I agree.
23. MR JUSTICE MITTING: I will stay the application for a writ of habeas corpus.
24. You apply for costs?
25. MR WINTER: I do, my Lord, yes.
26. MR JUSTICE MITTING: Miss Pinto?
27. MISS PINTO: My Lord, I resist them. Can I deal with it in this way. Although it is right to say that the officer gave a promise or an undertaking that he then went back on, the position in relation to the Magistrates' Court yesterday was one which was fully aired, as the note makes clear, and ultimately it was a matter for the Magistrates' Court. The Magistrates' Court chose, hearing all the facts and, if I may say so without wishing to be sycophantic, the very successful cross-examination of the officer by Mr Winter, she heard in effect what your Lordship has now decided upon. In those circumstances, it is our submission that what we are doing now is really trying to do the best that we can in the circumstances as events have now unfolded. What we would submit is that costs should be held in abeyance until the end of proceedings and they can be dealt with at that stage.
28. MR JUSTICE MITTING: I do not agree with that. I think in what is a very clear case Mr Hauschildt should have his costs from somebody. The CPS seems to me to have behaved with perfect propriety. The Magistrates' Court are obviously not to criticism for making a judicial decision and cannot be the subject of an order for costs. But I do not see why Mr Hauschildt should be put to the expense, as he has been, of countering unlawful action by the British State.
29. MISS PINTO: My Lord, if that is the finding of the court, all that I would ask is that the costs are taxed in the normal way and they are only for the hearing today, because --
30. MR JUSTICE MITTING: I am only concerned with this claim.
31. MISS PINTO: Yes, absolutely.
32. MR JUSTICE MITTING: I heard the sotto voce remark. I do not think there is any provision for central funds. I think it is only the CPS or the police who can be ordered to pay them; the police are not parties.
33. MISS PINTO: Would your Lordship allow me to take instructions for one moment? (Pause)
34. My Lord, I have no submissions in relation to that. (Laughter) There are arguments, but it seems to us on balance it is something that we ought to be dealing with ourselves, via correspondence.
35. MR JUSTICE MITTING: The CPS, yes.
36. I order that the CPS pay Mr Hauschildt's costs, to be the subject of a detailed assessment if not agreed. The assessment will be on the standard basis.
37. MR WINTER: I am grateful, my Lord.
38. MR JUSTICE MITTING: Thank you both for your short, helpful and realistic submissions.
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