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. WC2A 2LL
		13 March 2007

Mr Justice Lloyd Jones:

1. This is an application for habeas corpus by Vincent Brown (formerly Vincent Bajinya), Emmanuel Nteziryayo, Celestin Ugirashebuja and Charles Munaneza.
2. The Republic of Rwanda ("Rwanda") seeks the extradition of the Applicants in connection with their alleged involvement in genocide and murder in that State. There is no extradition treaty between the United Kingdom and Rwanda. However, for the purposes of the proposed extradition of these Applicants the United Kingdom and Rwanda have entered into a series of memoranda of understanding, each relating to a separate Applicant. Each memorandum sets out the arrangements which apply to the proposed extradition of the individual to whom it relates. Each memorandum has been amended by a further memorandum of understanding.
3. In domestic law, effect is given to such special extradition arrangements by section 194, Extradition Act 2003 ("the 2003 Act") which provides:

194 Special extradition arrangements

(1) This section applies if the Secretary of State believes that—

(a) arrangements have been made between the United Kingdom and another territory for the extradition of a person to the territory, and

(b) the territory is not a Category 1 territory or a Category 2 territory.

(2) The Secretary of State may certify that the conditions in paragraphs (a) and (b) of subsection (1) are satisfied in relation to the extradition of the person.

(3) If the Secretary of State issues a certificate under subsection (2) this Act applies in respect of the person's extradition to the territory as if the territory were a Category 2 territory.

(4) As applied by subsection (3), this Act has effect—

(a) as if sections 71(4), 73(5), 74(1 l)(b), 84(7) and 86(7) were omitted;

(b) with any other modifications specified in the certificate.

(5) A certificate under subsection (2) in relation to a person is conclusive evidence that the conditions in paragraphs (a) and (b) of subsection (1) are satisfied in relation to the person's extradition.

4. The Secretary of State has certified pursuant to section 194(2) that special arrangements have been made in respect of each of the Applicants as set out in the relevant memorandum of understanding and that Rwanda is not a Category 1 territory or a Category 2 territory. In addition, by a further certificate the Secretary of State has certified that the 2003 Act will apply to the extradition with the modification that in section 74(1 l)(a) the required period of 45 days is replaced by one of 95 days.
5. The Applicants were arrested pursuant to provisional warrants on 28^th December 2006. On the 29^th December 2006 the Applicants were remanded in custody following a hearing at the City of Westminster Magistrates' Court.
6. Section 74 of the 2003 Act provides in relevant part:

74 Person arrested under provisional warrant

(1) This section applies if a person is arrested under a provisional warrant.

(2) A copy of the warrant must be given to the person as soon as practicable after his arrest.

(3) The person must be brought as soon as practicable before the appropriate judge.

(4) But subsection (3) does not apply if—

(a) the person is granted bail by a constable following his arrest, or

(b) in a case where the Secretary of State has received a valid request for the person's extradition, the Secretary of State decides under section 126 that the request is not to be proceeded with.

(5) If subsection (2) is not complied with and the person applies to the judge to be discharged, the judge may order his discharge.

(6) If subsection (3) is not complied with and the person applies to the judge to be discharged, the judge must order his discharge.

(7) When the person first appears or is brought before the appropriate judge, the judge must—

(a) inform him that he is accused of the commission of an offence in a Category 2 territory or that he is alleged to be unlawfully at large after conviction of an offence by a court in a Category 2 territory;

(b) give him the required information about consent;

(c) remand him in custody or on bail.

(8) The required information about consent is—

(a) that the person may consent to his extradition to the Category 2 territory in which he is accused of the commission of an offence or is alleged to have been convicted of an offence;

(b) an explanation of the effect of consent and the procedure that will apply if he gives consent;

(c) that consent must be given in writing and is irrevocable.

(9) [If the person is remanded in custody, the appropriate judge may] later grant bail.

(10) The judge must order the person's discharge if the documents referred to in section 70(9) are not received by the judge within the required period.

(11) The required period is—

(a) 45 days starting with the day on which the person was arrested, or

(b) if the Category 2 territory is designated by order made by the Secretary of State for the purposes of this section, any longer period permitted by the order.

(12) Subsection (4)(a) applies to Scotland with the omission of the words "by a constable".

The documents referred to in section 70(9) are, for present purposes, the request for extradition and the certificate under section 70(1). The Applicants maintain that the modification of section 74(10) is ultra vires and that, accordingly, since the required period of 45 days expired on the 11^th February 2007 a judge is required to order their discharge. Upon this basis it is submitted that there is no lawful basis for their continuing detention.

7. At a further hearing at the City of Westminster Magistrates' Court on the 14^th February 2007 the Applicants applied for their discharge. District Judge Evans, having heard argument on behalf of the Crown Prosecution Service and on behalf of Rwanda, refused to determine the applications and gave directions for the further conduct of the case.
8. The Applicants now apply to this court for habeas corpus. On behalf of the First Applicant Mr. Alun Jones QC submits that the power conferred on the Secretary of State by section 194(4)(b) does not include a power to extend the required period of 45 days in section 74(1 l)(a). He submits that the power contained in section 74(1 l)(b) is deliberately abrogated and that had it been the intention of Parliament to confer on the Secretary of State a power to lengthen the period it would have provided so expressly. More generally, he submits that what is permitted by section 194(4)(b) is modification of any other provisions of the 2003 Act and that Parliament cannot have intended by such language to deprive an accused person of the protections provided by that statute. He submits that it cannot plausibly be argued that Parliament by virtue of section 194(4)(a) has taken away the power of the Secretary of State to remove the requirement on a State to provide an evidential basis for extradition but has by section 194(4)(b) nonetheless permitted him to abolish the bars to surrender. In his submission the word "modification" denotes a more modest legislative purpose limited to making more exacting demands of a territory seeking the extradition of an individual. He submits that this reflects the status of territories not falling within Category 1 or Category 2.
9. These submissions have been adopted by counsel on behalf of the other Applicants.
10. The Applicants do not seek to challenge the decision to substitute a required period of 95 days on grounds specific to the facts of these individual cases such as irrationality or improper purpose. The challenge is limited to the question of the scope of the power conferred by section 194(4)(b).
11. On behalf of the Secretary of State Mr. Jonathan Swift submits that section 194(4)(b) empowers the Secretary of State to extend the required period and that this has been validly done in respect of each of the Applicants with the result that the required period has not yet expired. Mr. Dixon makes the same submission on behalf of Rwanda.
12. The provisions specified in section 194(4)(a) are not the only powers to vary the applicable provisions in the case of Category 2 territories. Section 223(9) confers on the Secretary of State a more general power to provide by order that the 2003 Act shall have effect in relation to a designated territory with specified modifications. The effect of section 223(5) is that, in their application to a Category 2 territory, all of these provisions are subject to a requirement that the amending orders be laid before Parliament and approved by a resolution of each House, the affirmative resolution procedure. By contrast, the procedure pursuant to section 194(4)(b) by which the 2003 Act may be modified in its application to special extradition arrangements is one of certification by the Secretary of State and is not subject to the affirmative resolution procedure. The power conferred by section 194(4)(b) must be considered against this background.
13. The effect of section 194(3) is that if the Secretary of State issues a certificate under section 194(2) the provisions of the 2003 Act apply to the case in question as if the territory were a Category 2 territory. However, the applicable provisions of the statute are, in such a case, modified by section 194(4)(a). The five statutory provisions there identified are rendered inapplicable. Sections 71(4) and 73(5) allow the Secretary of State by order to change the requirement of "evidence" to one of "information". Section 74(1 l)(b) allows the Secretary of State by order to extend the required period. Sections 84(7) and 86(7) allow the Secretary of State by order to abrogate the prima facie evidence requirement.
14. On a literal reading of section 194(4)(b) the words are wide enough in their natural meaning to permit a modification of the regime applicable to special extradition arrangements by extending the required period under section 74(1 l)(a). Paragraph (a) of subsection 4 does not limit paragraph (b). The effect of paragraph (a) is to remove certain specific powers of modification by the order procedure. The effect of paragraph (b) is to confer a more general power of modification by the certification procedure. As a matter of language and the internal scheme of section 194, I am unable to read section 194(4)(a) as limiting the scope of the power conferred by paragraph (b) or as constraining its exercise. In particular, I do not read the words "any other modifications" in paragraph (b) as limited to modification of provisions other than those concerned with matters addressed in the statutory provisions identified in paragraph (a). The removal of section 74(1l)(b) effected by section 194(4)(a) has no bearing on the scope of the power conferred by section 194(4)(b). Clearly the power under section 194(4)(b) cannot be used to modify the parts of the 2003 Act identified in section 194(4)(a), because the Act is to be applied as if these sections were omitted. However, it does not follow that the power under section 194(4)(b) cannot be used to modify the provisions of section 74(1l)(a). To my mind paragraph (b) confers a general power of modification and the significance of the word "other" in paragraph (b) is simply that any such modifications would be in addition to the omissions effected by paragraph (a). It is, of course, a striking feature of paragraph (b) that it confers a general power of modification which is not subject to the safeguards of the affirmative resolution procedure in accordance with section 233(5). However, to my mind that is the clear effect of the words used in section 194.
15. Before leaving the question of the literal meaning of the provision, I should add that I am unable to accept Mr. Jones's submission that the word "modifications" has a narrower meaning than "amendments". To my mind "modifications" is apt to describe changes of the kind made in the present case.
16. Mr. Jones submits that Parliament cannot have intended by such language to deprive an accused person of the protections afforded by the 2003 Act. He submits that if the Secretary of State is permitted by section 194(4)(b) to impose more onerous conditions the Secretary of State would be free, for example, to remove the bars to surrender and other protections set out in section 79 to 83 and the express human rights provisions in section 87 or to modify those provisions so as to assert that they would not apply in the case of international crimes such as genocide. Accordingly, he invites this court to interpret section 194(4)(b) as conferring a power of modification limited to the protection of the interests of the accused and to making more exacting demands of the territory seeking extradition. In this regard he points to the fact that we are here concerned with applications for extradition by territories not designated for the purpose of Category 1 or Category 2. He submits that such territories are, therefore, undeveloped, hostile or untrustworthy. Accordingly, he contends that it would be open to the Secretary of State pursuant to his power of modification, for example, to prevent the abuse of the provisional warrant procedure in section 73, to insert further bars to surrender such as a bar where the offences were of a political character or a "bad faith" bar, or to make the speciality restrictions of section 95 more demanding. However, this is not what the provision says. There is no support for such a limited reading in the language of the provision. Furthermore, I am not aware of any principle of interpretation which could lead to the conclusion contended for by Mr. Jones. Moreover, as Mr. Swift points out, it would often be difficult to say in any given case where the particular modification was or was not protective of the interests of the accused or, indeed, whether it was neutral.
17. Mr. Jones draws attention to Orders in Council issued pursuant to the Extradition Act 1870, a scheme which survived until 2003 by virtue of Schedule 1 to the Extradition Act 1989 in the case of foreign States not party to "general extradition arrangements" such as the European Convention on Extradition 1957. He submits that this supports his reading of "modifications" as limited to the making of more exacting demands of a requesting territory. However, I am unable to derive any assistance from the analogy Mr. Jones seeks to draw. The language of these earlier measures is very different. The statutory scheme applied "subject to the limitations, constrictions, conditions, exceptions and qualifications, if any, contained in the Order". By contrast, the language of section 194(4)(b) on the 2003 Act is general and unqualified.
18. Both Mr. Jones and Mr. Swift have invited us to consider passages in the Explanatory Notes to the Extradition Act 2003. In accordance with the principles stated by Lord Steyn in R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38; [2002] 1 WLR 2956, at paragraphs 2-6,1 consider that we are entitled to have regard to this material for the purposes indicated by Lord Steyn. However, to my mind the passages relied on by counsel do not cast any further light on the issue before the court.
19. Mr. Jones also invited the court to have regard to certain passages in Hansard relating to the Parliamentary process of the Extradition Bill. However, I am satisfied that on this occasion Hansard is not admissible as an aid to the interpretation of the statute. For the reasons which I have given, I consider that the provision is not ambiguous or obscure. I do not consider that its plain meaning leads to absurdity. Accordingly the requirements of Pepper v Hart [1993] AC 593 are not satisfied. Furthermore, the issue in the present case turns on the scope of a statutory power. As Lord Bingham observed in R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd. [2001] 2 AC 349 at p. 392 B-E it is most unlikely that the sponsoring minister would seek to define the legal effect of the .draftsman's language, to predict all of the circumstances in which the power might be used or to bind any successor administration. It is not suggested by anyone that that is the case here. In these circumstances I consider that resort to Hansard would be impermissible.
20. We are here concerned with the delegation by Parliament to the executive of a power to amend primary legislation. It is well established that, in such circumstances, if there is any doubt about the scope of the power conferred upon the executive it should be resolved by the application of a restrictive approach to interpretation. {McKiernan v Secretary of State for Social Security, Court of Appeal Civil Division, Transcript No. 1017 of 1989 per Lord Donaldson MR.) However, as Lord Bingham observed in R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd. [2001] 2 AC 349 at pp. 382H-383A, such an approach is only appropriate when there is a genuine doubt about the effect of the statutory provision in question. In this case the language of section 194(4)(b) does not give rise to any such doubt.
21. I would readily accept that the result brought about by section 194(4)(b), if my reading is correct, is remarkable. A general power has been conferred on the Secretary of State to modify primary legislation without the safeguards of the affirmative resolution procedure which is applicable elsewhere under the 2003 Act. Nevertheless, I have come to the clear conclusion that that is the intention of Parliament and the effect of this provision.
22. Mr. Jones has conjured up the spectre of the wholesale abrogation of statutory safeguards at some future date by the use of this power. Such matters would, of course, have to be considered by the courts should they arise. However, it should not be assumed that the courts would be powerless in such circumstances. In this regard I have in mind, in particular, the Padfleld principle (Padfield v Ministry of Agriculture Fisheries and Food [1968] AC 997) and the Human Rights Act 1998. Moreover, in other circumstances there may well be grounds to challenge an exercise of the power arising from the individual circumstances of the case. However it is not contended by anyone that any such considerations are in play here. In particular, in the present case it is not contended that the power has been used for any impermissible purpose or that the substitution of a required period of 95 days is open to challenge on any other public law grounds.
23. This case is concerned only with the limited question whether the power conferred by section 194(4)(b) permits the Secretary of State to extend the required period under section 74(1 l)(a) to 95 days. For the reasons I have given I consider that it does confer such power and that it has been lawfully exercised. Accordingly I would dismiss these applications for habeas corpus.

Lord Justice Latham: I agree.