England and Wales High Court (Administrative Court) Decisions

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

		Case Numbers: CO/528/2014 CO/585/2014 CO/511/2014 CO/694/2014 Royal Courts of Justice Strand, London, WC2A 2LL
		27/03/2014

MR JUSTICE MITTING :

1. By a Memorandum of Understanding signed on 8 March 2013 in respect of each claimant, the United Kingdom agreed to surrender him to Rwanda to stand trial for offences punishable under the laws of both countries by a minimum sentence of at least 12 months imprisonment. By paragraph 5 of the Memorandum a request for extradition was to be made in writing to the Secretary of State for the Home Department. By an 86 page document, with further extensive annexes, dated 2 April 2013, the Government of Rwanda requested the extradition of each claimant to stand trial for offences of genocide and related inchoate crimes, crimes against humanity and public order and murder. The claimants were arrested on 29 May 2013 and brought before Westminster Magistrates' Court.
2. The Secretary of State has certified that arrangements have been made between the United Kingdom and Rwanda for the extradition of the claimants and that Rwanda is not a category 1 or 2 territory within the Extradition Act 2003. Accordingly, Part 2 of the Act applies to Rwanda's request with the modifications set out in Section 194(4)(a) and in the Memorandum. The principal modification is to Section 84: in the case of these requests, the Government of Rwanda, unlike a designated category 2 country, must establish that there is evidence sufficient to make a case requiring an answer by each claimant as if the proceedings were the summary trial of an information against him: Section 84(1).
3. Section 87 applies unamended: a judge "must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998". If not, the judge must order the person's discharge.
4. The claimants seek to establish before Deputy Senior District Judge Arbuthnot that there are substantial grounds for believing that, if extradited, there is a real risk that they will be subjected to a flagrantly unfair trial. If they succeed, it is now settled law in Strasbourg that the United Kingdom would be in breach of its obligations under Article 6 if they were to be extradited: Othman v United Kingdom [2012] 55 EHRR 1 paragraphs 258 – 262.
5. The claimants wish to adduce evidence from witnesses who are said not to be willing to give evidence if their evidence, and in particular anything in it from which their identity might be discerned, is revealed to the Government of Rwanda. In the case of a small number of witnesses it is said that they will only allow their evidence to be seen by the judge; and undertakings not to disclose their evidence to anyone other than the judge are said to have been given by lawyers acting for the relevant claimants. We have not seen any of this material. We have been asked to decide the difficult questions which arise in this claim as a matter of principle. The judge however, has seen and read some of the witness statements on which some of the claimants rely, for the purpose of determining applications to her about the manner in which the evidence can be deployed. They have not been disclosed to counsel for the Government of Rwanda or the CPS who act on their behalf. She stated that "for the purpose of this argument only I am prepared to accept that they contain important and material evidence which is relevant to the issues I have to consider". I, too, make that assumption for the purpose of the issues which we have to determine.
6. The claimants submitted to the judge that she should devise a common law procedure to permit her to take the evidence on which they wish to rely into account without it being disclosed to the Government of Rwanda. They proposed that the interests of the Government of Rwanda could be at least partially protected by the adoption of what they described as a "reverse closed material procedure". Two possibilities were canvassed: the appointment of a special advocate, drawn from the Attorney General's panel of vetted special advocates, who would perform a function for the Government of Rwanda similar to that performed on behalf of an appellant under Section 6 Special Immigration Appeals Commission Act 1997 or on behalf of a respondent to asset freezing proceedings under the Counter-Terrorism Act 2008 or proceedings under the Terrorism Prevention and Investigation Measure Act 2011 (CPR 79.18 and 80.19); or the making of an order similar to that devised by the Supreme Court in W(Algeria) v. SSHD [2012] 2AC 115. In fact, the claimants invited the judge to make a significantly different order. A W(Algeria) order is not a reverse closed material procedure order: the Secretary of State and her lawyers and identified advisers saw the material in respect of which the order was made. What it did was to prohibit her from disclosing the material to others, in particular the Government of Algeria, to obtain information about it. What the claimants seek here is an order which prohibits disclosure to the Government of Rwanda, whilst permitting the lawyers who represent it to see it – a sort of imposed confidentiality ring.
7. Mr. Lewis QC for the Government of Rwanda submitted that the judge had no power to make such an order, relying on Al-Rawi v. Security Service [2012] 1 AC 531 and the decision of the Divisional Court in British Sky Broadcasting Ltd v. Central Criminal Court [2012] QB 785. The judge accepted that submission, concluding that for the court to sit in private excluding one party would be unlawful. She refused the application "with some reluctance".
8. The claimants seek permission to challenge her decision by this claim. Ouseley J ordered that there be a rolled-up hearing of this application. I would grant permission and deal with the claim substantively.
9. A Magistrates' Court conducting an extradition hearing under Part 2 of the 2003 Act is not a court of unlimited jurisdiction. Its powers and the manner in which it must proceed are set out in detail in Part 2. Section 77 defines the powers of the judge:

"(1) In England and Wales, at the extradition hearing the appropriate judge has the same powers (as nearly as may be) as a Magistrates' Court would have if the proceedings were the summary trial of an information against the person whose extradition is requested".

She is then required to answer a series of questions: whether certain formalities have been complied with and that the person brought before her is the person whose extradition is requested (Section 78); whether extradition is barred for the reasons set out in Section 79 or because, in the case of conduct of which a significant part has taken place in the United Kingdom, it would not be in the interests of justice for the requested person to be tried in the requesting territory (Section 83A). In a case in which the requested person has not been convicted, the judge must decide whether there is a prima facie case against the requested person: Section 84(1). The evidential rules which would apply in a summary trial of an information are modified. Section 84(2) permits a judge to treat a statement made by a person in document as admissible evidence of a fact if made to a police officer or other person charged with the duty of investigating offences or charging offenders, provided that direct oral evidence by that person would be admissible. Section 84(3) sets out the factors to which the judge must have regard, such as likely authenticity and relevance and the risk that the admission or exclusion of the statement will result in unfairness to the person whose extradition is sought. Provision is made for the use of live links in Section 206A – C.

10. Consideration of the power of the judge to admit evidence probative of the case of one party to extradition proceedings which is not disclosed to the other must begin with the statutory scheme, in particular Section 77. In the absence of statutory provision, it is, in my judgment, inconceivable that a Magistrates' Court trying an information could admit evidence probatively at the request of either the prosecution or defence which was not fully disclosed to the other. To do so would cross the line identified by Lord Hope in Al Rawi at paragraph 72.
11. Mr. Jones QC, supported by counsel for the other three claimants and the 3^rd interested party, submits that the words "as nearly as may be" and specific authority in the extradition context permit that to happen. His fundamental submission is that the interests of justice demand it. Mr. Fitzgerald QC gave an example from a decided case to demonstrate why. Because the requested person has been granted asylum, I will neither identify him nor the requesting territory. The requested person was accused of committing atrocities in the requesting territory on the basis of a witness statement obtained from a person then in that territory. That person was exfiltrated from the requesting territory and gave evidence at the extradition hearing to the effect that the statement which he had made was false and had been procured by torture inflicted upon him by the authorities of the requesting territory. Discharge was ordered. Counsel for the claimants submit that some of the evidence on which they seek to rely is, in principle similar to this example, but can only be given by witnesses who remain at risk to their personal safety, in Rwanda.
12. Mr. Jones submits that the observations of Lord Philips CJ in Government of the United States of America v. Bow Streets Magistrates' Court [2007] 1WLR 1157 ("Tollman (No. 1)") at paragraph 92 established that in proceedings brought under the 2003 Act, the judge can consider evidence provided by one party which it is not willing to disclose to the other. He envisaged the possibility that a judicial authority or requesting territory might disclose details of ongoing investigations into suspected co-defendants which it was not, for good reason, willing to disclose to the requested person. It would be for the judge to determine if fairness required that the material be disclosed. If he concluded that it did but the requesting territory was not willing to disclose it, he could decide that extradition would involve an abuse of process and so discharge the requested person. These observations were made in a context very different from this case: the issue was whether or not a judge who had reason to believe that an abuse of process may have occurred could consider material supplied by a requesting judicial authority or territory, to determine whether or not an abuse had occurred: paragraph 89. They do not address the issue which we have to decide: whether or not one party to extradition proceedings can rely substantively on evidence not disclosed to the other. Further the observations were obiter and were, in any event, made before consideration by the Supreme Court of the availability of closed material procedures in contested proceedings in Al Rawi and British Sky Broadcasting Ltd v. The Commissioner of Police of the Metropolis [2014] UKSC 70. For reasons which I will explain, if they do have the effect to which Mr. Jones contends, I do not consider that they can survive those decisions. Even if they could, they would not avail the claimants. Lord Philips cannot be taken to have observed, still less decided, that the extradition of a requested person could be ordered on the basis of evidence not disclosed to him. Yet that is, in reverse, what the claimants seek here: that their discharge should be ordered under Section 87 on the basis of material which will not be disclosed to the Government of Rwanda.
13. The majority in Al Rawi decided that, either as a matter of jurisdiction or of principles so settled and fundamental that they should not be departed from – it does not, in my view matter which – Parliamentary sanction was required for the use of closed material procedures in contested civil litigation. In paragraphs 18 – 22 Lord Dyson analysed the limits on the power of a court of unlimited jurisdiction to regulate its own procedure: it could not contravene a statutory provision when Parliament had intervened and it must exercise the power to regulate its procedure in a way which respects two important principles integral to the common law right to a fair trial: it could not conduct a trial inquisitorially rather than by means of an adversarial process or hold a hearing from which one of the parties was excluded; or deny parties their fundamental common law right to participate in the proceedings in accordance with the common law principles of natural and open justice. Further, as to the extension of closed material procedures, he stated that it was not for the courts to extend them beyond the boundaries which Parliament has chosen to draw: paragraph 47. Lord Hope agreed: paragraph 72 – 74. So, too, did Lord Brown, reiterating the view which he had expressed in R v. Davis [2008] AC 1128 at paragraph 66: paragraph 85. Lord Kerr agreed with Lord Dyson: paragraph 88. Lord Philips stated that the fundamental change sought by the Security Service in Al Rawi required legislation: paragraph 192.
14. British Sky Broadcasting now establishes that the reasoning of the majority in Al Rawi applies to any "inter partes" hearing, specifically an application for an order that a journalist produces material for the purpose of a police investigation:

"Equal treatment of the parties requires that each know what material the other is asking the court to take into account in making its decision and should have a fair opportunity to respond to it. That is inherent in the concept of an "inter partes" hearing."

per Lord Toulson, giving the judgment of the court at paragraph 30. Even if the observations of Lord Philips in Tollman (No. 1) had the effect for which Mr. Jones contended, they cannot survive the decision of the Supreme Court in British Sky Broadcasting, which dealt with a not dissimilar set of circumstances – an invitation by a State authority to a court to take into account, potentially determinatively, material which was not disclosed to the party affected by the application.

15. Mr. Fitzgerald submits that the purpose of Section 87 is protective: to ensure that the human rights of the requested person are not infringed. Accordingly, to achieve its purpose, Section 6 Human Rights Act requires the judge, as a public official, to depart from the settled principles of the common law to which I have referred. I do not accept that submission. At an extradition hearing, the judge is required to address a number of competing interests of which the most prominent in an accusation case will usually be the public interest in the prosecution of serious crimes, wherever committed, and the human rights of the requested person. The common law requires that these competing interests are determined at a hearing at which both sides will be able to address the issues and evidence advanced by the other. An extradition hearing is a classic "inter partes" hearing. The reasoning in Al Rawi and British Sky Broadcasting applies to it. I agree that the judge must strive to give effect to the human rights of the requested person but she must do so within the procedural constraints imposed by the law.
16. The principles which I derive from the legal material set out above are:

i) a Magistrates' Court conducting the summary trial of an information cannot admit evidence, whether tendered by the prosecution or the defence, which is not disclosed to the other.

ii) for a judge conducting an extradition hearing to do so would not be in the exercise of powers "as nearly as may be" as those which a Magistrates' Court would have on the summary trial of an information. It would be a radical departure from the manner in which those powers may lawfully be exercised.

iii) Only Parliament can sanction such a radical change.

iv) Because Parliament has not sanctioned such a change in the extradition context, a judge conducting an extradition hearing does not have the power to consider evidence tendered by one side which is not disclosed to the other.

v) If, contrary to my view, the judge did have that power, I can conceive of no circumstances in which it can properly be exercised.

17. As it happens, Parliament has intervened. (I agree with Moses LJ that the intervention is adventitious). Section 86(1) Coroners and Justice Act 2009 permits a court in criminal proceedings to take specified measures to ensure that the identity of a witness is not disclosed. A court includes a Magistrates' Court and "criminal proceedings" means, "criminal proceedings consisting of a trial or other hearing at which evidence falls to be given": Section 97(1). Applications for such an order in criminal proceedings can be made by either the prosecutor or the defendant: Section 87(1). These provisions entitle a Magistrates' Court conducting a trial of an information to admit anonymous evidence. Section 77(1) of the 2003 Act confers the same power on a district judge conducting an extradition hearing. The claimants can, therefore, apply for an order under Section 86(1). The order can include any measure which the court "considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings". It may include the measures specified in Section 86(2), but is not limited to them: Section 86(3). The only measures which cannot be taken are screening the witness to such an extent that he cannot be seen by the judge and modulating his voice to such an extent that the witnesses's natural voice cannot be heard by the judge: Section 86(4).
18. The judge expressly considered the possibility of an order under Section 86, but rejected it because, in her view, Section 87(3) required the claimants to inform "the prosecutor" of the identity of the witness. For that reason, she noted that the claimants had not asked for witness anonymity orders. In my view, they and she were in error in so concluding. "The defendant" and "prosecutor" are defined in Section 97 of the 2009 Act,

""The defendant", in relation to any criminal proceedings, means any person charged with an offence to which the proceedings relate (whether or not convicted);

"Prosecutor" means any person acting as prosecutor whether an individual or body""

19. The claimants are "defendants" as so defined: they have been charged, in Rwanda, with an offence; the proceedings relate to that offence – by them, the Government of Rwanda seeks the extradition of the claimants to stand trial for the offences to which the extradition proceedings relate; and the proceedings are "criminal proceedings", both because they are "criminal proceedings" as defined in Section 97(1) and because it is settled law that extradition proceedings are criminal proceedings: R v. Governor of Brixton Prison Ex parte Levin [1997] AC 741 at 746 F-G per Lord Hoffmann.
20. Neither the CPS nor the Government of Rwanda are, however, a "prosecutor". The only prosecution, if it occurs, will take place in Rwanda. The prosecutor in Rwanda is, we are told by Mr. Lewis, the Prosecutor General, a judicial officer. The Memorandum of Understanding under which the United Kingdom has agreed to surrender the claimants to Rwanda is made between the Government of United Kingdom and Government of the Republic of Rwanda. Although the 86 page document filed in support of the request for the extradition of the claimants is signed by the Prosecutor General, it is not he who seeks their extradition: it is the Government of Rwanda. Neither he nor the Government of Rwanda are acting as "prosecutor" in these proceedings: all that they are doing is seeking the extradition of the claimants so that they can be prosecuted in Rwanda. Nor is the CPS, which conducts these proceedings on behalf of the Government of Rwanda, a "prosecutor". It is settled law that, in extradition proceedings, the CPS is a lawyer acting on behalf of a foreign client: R v DPP Ex parte Thom The Times 21 December 1994 per Glidewell LJ. Whether as solicitors owing a duty to the court or as public officials, the CPS, if put in a position in which its instructions may conflict with its duty to the court must put that duty first: Raissi v SSHD [2008] QB 836 at paragraph 138; but the existence of that duty does not make it a prosecutor in extradition proceedings. Mr. Lewis suggested that the amendment to Section 3(2) of the Prosecution of Offences Act 1985 introduced by Section 190(2) of the Extradition Act 2003 has altered the position. I do not agree. All that Section 3(2)(ea) provides is that it shall be the duty of the Director " to have the conduct of any extradition proceedings". He is not, however, required to have the conduct of extradition proceedings in a case under Part 2 of the 2003 Act if he has received a request not to do so on behalf of the requesting territory: Section 3(2A). Extradition proceedings can still be conducted by private solicitors instructed by the requesting territory. The highest that the point can be put is that the CPS is discharging a public duty imposed by statute on the Director. That is precisely what the Court of Appeal envisaged in Raissi. The subsequent imposition of a statutory duty on the Director has not altered that nature of the role which the CPS is performing. Even if it has, it has not converted it into a "prosecutor" in extradition proceedings, any more than it would make a private solicitor a prosecutor.
21. On the basis of the very limited information given to us about the evidence on which the claimants wish to rely, I anticipate that they would have no difficulty in fulfilling the conditions for the making of an order under Section 86 set out in Section 88. Provided that those conditions are fulfilled, the evidence can be adduced anonymously, subject to whatever restrictions the judge considers appropriate to ensure that the identity of the witness is not disclosed, without disclosing the identity of the witnesses to the CPS or the Government of Rwanda. These provisions may permit at least some of the evidence on which the claimants wish to rely to be adduced.
22. A possible difficulty may arise if the witnesses are not able to give live evidence. If made in a statement, it will be hearsay. If the extradition proceedings were a criminal trial, anonymous hearsay could not be read to a jury, because there is no statutory authority for it: R v. Mayers [2008] EWCA Crim 2989 paragraph 113. In my judgment extradition proceedings are different. There is express statutory authority for treating a statement made by a person in a document as admissible evidence of a fact: Section 84(3). I can see no reason of principle why, if anonymous evidence can be adduced it cannot be adduced in the form permitted by Section 84(3) – provided, of course, that the conditions set out in Section 88 of the 2009 Act are satisfied. Further, it has long been the practice in extradition proceedings when Articles 2, 3 and 6 ECHR are in issue for anonymous hearsay to be adduced. The reports of international non-governmental organisations and the US State Department and of experts about conditions in the requesting territory are routinely adduced. Very much more often than not they contain hearsay at many removes, much of it unsourced or, if sourced, sourced anonymously. This practice is justified by the nature of the court's task, which is to consider whether or not there are "substantial grounds for believing" that there is a real risk of a breach of any of the three Articles.
23. For the avoidance of doubt, because the issue was raised by Mr. Lewis, I am of the opinion that anonymous evidence can be adduced by the claimants on all issues which arise in the extradition proceedings, not just those which arise under Section 87. That is because the statutory provisions permit it to be done.
24. For the reasons which I have given I would dismiss the claim for judicial review, which is only brought in respect of the Judge's decision not to order a closed material procedure; but for the reasons indicated, I am satisfied that, if an application were to be made to her, she could receive evidence given anonymously.

Lord Justice Moses :

25. The issue in this appeal is whether the Deputy Senior District Judge had power to admit and to consider evidence advanced by the claimants without disclosing that evidence to the requesting state, the Government of Rwanda. The claimants sought to adduce the evidence in order to show that there is a real risk that they would be subjected to a flagrantly unfair trial and to challenge the evidence which Rwanda asserts to amount to a prima facie case. They say that the witnesses are not prepared to permit the Government of Rwanda to see the statements if there is any risk they might be identified. Identification would lead to serious, even fatal consequences to those witnesses. At least one of them asserts that the substance of the evidence would itself reveal his identity; anonymity would not be a sufficient safeguard.
26. As Mitting J has explained, we have not seen those statements and are in no position to rule whether the fears are well-founded but it is worth observing that there is, to put it at its lowest, material to suggest that those who oppose the regime in Rwanda have, by their opposition, been exposed to danger or worse and the judge, having read the statements, felt able to comment :

"I have concerns that there may be a risk of serious prejudice to the defence in making that decision but in all the circumstances I do not consider I have any choice." [23]

27. I agree with her and with Mitting J that she had no choice. It is not lawful for a judge hearing a request for extradition to receive and consider evidence which the requesting state has no fair opportunity to challenge. It is fundamental to what Lord Dyson called the open justice principle that a party has the right to know the evidence upon which the case against it is based and has the opportunity to respond to it Al-Rawi [12].
28. The claimants sought to persuade the court that it could create a category of case which departed from the open justice principle on the basis that under section 87 of the Extradition Act 2003 the judge is required to decide whether extradition would be compatible with the requested person's rights enshrined in the Convention. Leaving aside the other challenges under Part 2, that is, they contend, the object of the hearing. If it is established that the witnesses do have a genuine fear as to their own safety if the evidence is seen by the requesting state, and if that fear is accepted by the court to be reasonable, then, it is argued, it would defeat the object of this aspect of the hearing to refuse to consider the evidence unless the requesting state has an opportunity to respond.
29. This attempt to create a new category of case to which the basic principles of natural justice do not apply is founded on the Supreme Court's acceptance that there are two classes of case where a departure from the normal rule has been justified for special reasons in the interests of justice (Al-Rawi [63] and [64]). But if, to the two categories of children and protection of commercial interests, there is to be added a third, without Parliamentary intervention, then it is for the Supreme Court to make that addition, not for this court. We are bound by the principles expressed in Al-Rawi and BSkyB.
30. I agree that the observations of Lord Phillips CJ in Tollman No 1 [92] afford the claimants no assistance. The Lord Chief Justice was considering the steps which a judge might have to take, were a requesting state to insist upon its right to refuse to disclose material which might assist the requested person. In order to evaluate the position, in the same way as a judge might consider a PII application ex parte, a judge could see evidence not disclosed to the requested person. But that would only be for the limited purpose of considering whether the state's refusal to disclose was abusive. To look at evidence for that purpose does not deprive the requested person of an opportunity to meet the case against him or of relying upon any bar to his extradition. The circumstances posited by Lord Phillips have nothing to do with the situation faced by the Deputy Senior District Judge in this case.
31. I venture to doubt whether section 77 assists on this issue. The argument advanced by the claimants is that the common law permits, in extradition proceedings, the recognition of a special category of case in which, to achieve the objectives of section 87, the requesting state should be deprived of the opportunity to see evidence deployed to resist its request. If the common law does recognise such a category then it arises out of the particular nature of extradition proceedings in which the court is obliged to consider whether the extradition in issue is compatible with Convention rights, a consideration which is unlikely to be relevant to the summary trial of an information.
32. I agree with Mitting J that it is open to these claimants to make an application for anonymity for their witnesses under section 86(1) of the Coroners and Justice Act 2009. The claimants are defendants, the Government of Rwanda is not acting as prosecutor. I find it difficult to accept that when Section 86 was introduced anybody had extradition proceedings in mind. That Section 86 embraces extradition proceedings seems to me to be adventitious.
33. But, apart from those tentative qualifications, I agree with the reasoning of Mitting J, whose experience of closed proceedings and of the law in this field is unparalleled, and that, although permission should be given, these applications should be refused.