England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		6th October 2000

1. LORD JUSTICE PILL: This is an application for a writ of habeas corpus made on the ground that Buruji Kashamu is unlawfully detained because the order of Mr Timothy Henry Workman, Metropolitan Magistrate, on 29 May 1999, committing him to prison to await extradition to the United States of America, was unlawfully made. An application for permission to apply for judicial review, dated 16 June 2000, to quash the committal order, is also before the court.
2. The committal charges provide first that on a day between 31 December 1992 and 1 August 1995, the applicant conspired with others fraudulently to evade the prohibition on the importation of heroin and, second, that between the same dates he unlawfully conspired with others to supply heroin. The offences are alleged to have been committed in the United States. The scale of the alleged conspiracy is substantial.
3. When the matter came before the Metropolitan Magistrate, the only issue to be considered was whether there was a case for the applicant to answer.
4. Paragraph 7(1) of Schedule 1 to the Extradition Act, 1989 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 (subject to the provisions of this Schedule) 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."

5. The test laid down in the relevant extradition order is, it is agreed, to the same effect. The magistrate concluded that there was a case to answer and stated that, all other formalities having been complied with, he proposed to commit the applicant to await the Secretary of State's decision.
6. The application for a writ of habeas corpus is made on the ground that there was insufficient evidence to satisfy the relevant test. Further, in what counsel agreed was a dramatic development, further relevant evidence became available on the day before the hearing in this court, that is the day before yesterday. It had a bearing upon the evidence relied upon by the magistrate when he concluded that there was a case requiring an answer by the applicant. The magistrate stated that there was evidence that a co-conspirator, Fillmore, identified a photograph, the surveillance photograph, as a photograph of a man known to him as "Alaji", with whom he had conspired.
7. The magistrate, relying on the case of Taylor v Chief Constable of Cheshire [1987] 1 AER 225, and the principle in R v Dodson and Williams [1984] 79 CAR 220, compared that photograph with the applicant in the dock. He stated that a jury, properly directed, would be entitled to make such a comparison, and that it was open to him to do so when considering whether there was a case to answer. Having made the comparison himself, he concluded that a jury could reach the conclusion that the applicant and the man known as Alaji were one and the same person.
8. But for the recent development, and given the task of this court, as explained by Lloyd LJ in R v Governor of Pentonville Prison, Ex parte Osman [1990] 1 WLR 277, at 300 to 302, I would have upheld the committal order and dismissed the application. The decision was, in my view, one which the magistrate was entitled to reach on the evidence before him.
9. Subsequent events provide no basis for any criticism of the Metropolitan Magistrate in this case. What has now emerged, with a letter dated 4 October 2000 from the United State's Attorney for the Northern District of Illinois, is a report of an investigation into the case against the applicant conducted on 9 February 1999.
10. The report stated, insofar as is material, that on 8 February 1999, Fillmore viewed a photo lineup for the purpose of identifying Kashamu. The meeting was held in the US Attorney's office. An officer of the attorney had received a copy of an arrest photograph of Kashamu from another officer. The report continues that the officer:

"...took the copy of the arrest photograph of Kashamu and placed in a DEA form 470, photo identification folder, with seven photographs of black males. These black males had similar facial hair and were the approximate age of Kashamu. This photo lineup was shown to Fillmore. Fillmore provided the following statements: 'It is not jumping out at me, I know what the man looks like.' Fillmore further stated that photograph # 03 looked like a bad photograph of him. Photos # 02, # 04, # 06, # 07 and # 08 did not look like him at all. Fillmore stated that # 05 looked a lot like him but did not look like him. Fillmore ruled out photograph # 01. Fillmore stated that # 05 looked the closest to Alaji."

11. That is the name by which Fillmore knew his co-conspirator.

"The arrest photograph of Kashamu was placed in position # 07 of the photo lineup."

12. I add by way of comment that that was one of the photographs which Fillmore said did not look like the co-conspirator at all. A photograph of the applicant, the arrest photograph, taken upon the applicant's arrest about three years after the events relevant to the alleged conspiracy, had been shown to Fillmore on 8 February, with that result.
13. No reference was made to the 9 February report in the statement prepared by the United States Government for the application for extradition. It was mentioned neither in the United States Attorney's statement nor in the statement signed by Fillmore. The arrest photograph was disclosed, but no reference was made to its potentially exculpatory effect.
14. Stress has continued to be laid by the Government upon Fillmore's identification based on the surveillance photograph. In a letter of 4 October 2000 to the United States Department of Justice Office of International Affairs, the Assistant United States Attorney concerned stated that she had advised the Department that on the occasion in February 1999, Fillmore had not identified Alaji, the name by which he knew Kashamu. The letter continues:

"I asked you in February 1999 whether we needed to disclose this information about the viewing of Fillmore...of the recent (December 1998) photograph of Kashamu in their affidavits attached to our extradition submission. You advised against it because, as you explained, the extradition treaty between the United Kingdom and the United States did not require that such disclosures be made. At some point after the extradition materials were submitted in the London proceeding, I raised this issue again and you again advised against disclosing the information."

15. The attorney also stated that she still believed that the correct person was in custody in London.
16. Neither side has requested an adjournment of the present application on the ground of the very recent disclosure. Mr Fitzgerald, QC, for the applicant, submitted that the new information should have been before the magistrate when application was made to him. Had it been placed before the court, no reasonable magistrate could have committed the applicant. The additional evidence totally undermines the evidence of Fillmore, it is submitted, which was essential to the magistrate's finding.
17. Mr Fitzgerald accepted that the power of the Divisional Court is generally limited to a consideration of the decision of the magistrate on the material which was before him. In Schtraks v Government of Israel [1964] AC 556, the House of Lords considered the power of the court to take cognisance of additional evidence. Lord Reid stated at page 579:

"The court, and on appeal this House, can and must consider whether on the material before the magistrate a reasonable magistrate would have been entitled to commit the accused, but neither a court nor this House can retry the case so as to substitute its discretion for that of the magistrate."

18. Lord Evershed stated at page 596:

"It may sometimes be a nice question whether the fresh evidence goes in truth to the magistrate's jurisdiction but your Lordships have been referred to no reported case in which fresh evidence has been received for the purpose merely of impeaching the magistrate's decision on the facts which were before him. It would therefore in my judgment be contrary to well-established principle for your Lordships to allow the receipt of such evidence in such a case as the present on the ground suggested by Mr Foster. I add that in a case such as the present it is not to be forgotten that the man charged has the additional protection of the discretion of the Secretary of State under section 11 of the Extradition Act, 1870. (That is the predecessor of the 1989 Act.) Although, as I think, your Lordships have no competence to receive fresh evidence with a view to showing that the magistrate's decision might or should have been other than it was, it is no less clear that such fresh evidence may and should be weighed by the Secretary of State in whose power it is, if he thinks proper in the exercise of his discretion, to decline to order the extradition of the person charged."

19. The point was, however, further considered in subsequent proceedings in Schtraks in the Divisional Court, Ex parte Schtraks [1964] 1 QB 191. Lord Parker, CJ, stated at page 196:

"Mr Du Cann, however, raises a second, more interesting, point. He says that, even granted that that is true, this evidence is directed not merely to discredit the evidence of witnesses whose evidence was before the magistrate, but to show - and he says it boldly - that the magistrate was deceived, and was imposed upon by the fraudulent conduct of the Government of Israel. He goes on to say that, if he could show that, that would be a ground for this court interfering, as undoubtedly this court can in cases of certiorari. Without deciding the matter, it seems to me that if he could show that, he might well bring himself within the principle that evidence can be given to show that there was no evidence upon which the magistrate could act. If he could show that this warrant had been secured by fraud, as the concealing of evidence or collusion with a witness, then it may well be that this court could interfere. At any rate, for the purposes of this application I will assume that that is so."

20. Salmon J stated at page 199:

"So far as Mr Du Cann's second point is concerned, if it could be shown that a decision had been obtained from the magistrate by fraud or collusion on the part of the requesting power, it would be very difficult to persuade me that habeas corpus could not go."

21. The court went on to hold that there was no conduct which justified the court in interfering.
22. Mr Fitzgerald submitted that the failure to disclose the relevant evidence, following a conscious decision not to do so, rendered the committal unlawful. He submitted, first, that the additional evidence should be taken into account, and that the court should rule that the committal was unlawful on the ground that no magistrate could now reasonably commit on the basis of Fillmore's evidence. Mr Fitzgerald's second initial submission was that, if he failed on the submission of no case, it was appropriate to remit the case to the magistrate for a reconsideration, based upon the evidence including the 9 February report and any further evidence the applicant chose to call. There is other material, not called before the magistrate by way of rebuttal, which may be relevant. The case of Graham Tomlins (unreported transcript 18 November 1994) was cited as authority for that submission.
23. When Mr Coleman, for the Government, then addressed the court, he submitted that it was plainly right that the magistrate should have been supplied with the additional material. Mr Coleman accepted that in this case, the validity of the committal should be tested on the basis that the additional information had been before the magistrate, and I would not seek to reject or set aside that concession. The failure to supply the material, Mr Coleman submits, had been a misjudgment of the extent of the legal requirement of disclosure in an extradition context. Mr Coleman accepted that the decision of the magistrate had been taken in ignorance of crucial information, and that the failure to supply that information to the magistrate might have resulted in injustice to the applicant.
24. Mr Coleman 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. He rejected the possibility of a remission, which would in effect have been an adjournment of the habeas corpus application while the matter was reconsidered by the magistrate. While there were limited circumstances in which he accepted a remission could be made, this defect was not merely technical, but went to the substance and merits of the case, and remission was inappropriate. The court was required to make a decision upon the lawfulness of the detention.
25. Mr Coleman plainly had in mind the comparison of judicial review and habeas corpus made by Simon Brown LJ in R v Oldham Justices, Ex parte Cawley, [1997] QB 1 at page 19. Simon Brown LJ stated:

"Importantly, moreover, in judicial review the court has wider powers of disposal: whereas in habeas corpus the detention is either held unlawful or not, and the applicant accordingly freed or not, on judicial review the matter can be remitted to the justices with whatever directions may be appropriate."

26. I do not need and would not wish to categorise the conduct of the Government as anything other than the error of judgment it is conceded to be. It should not have occurred, as the Government accept. It had a fundamental effect on the proceedings before the magistrate. By reason of the disclosure of a part only of Fillmore's crucial evidence, the proceedings before the magistrate were unfair. The Government were, in my view, correct to concede that in the circumstances the court should intervene.
27. Mr Coleman made the further submission, however, that the appropriate course was to deal with the matter by way of judicial review. He first suggested that the court should permit the Government to initiate such proceedings at this hearing, but later submitted that the court should, of its own motion, order a judicial review. The habeas corpus application could then be dismissed on the understanding that the case would be referred back to the magistrate for consideration of the evidence as a whole. I am far from persuaded that the court should follow that course.
28. I deal first with Mr Fitzgerald's first submission; that is, that upon Fillmore's evidence as it is now known to be, no magistrate could reasonably commit, and the committal order should be quashed on that ground. I reject that submission. There could, upon a full consideration of all the evidence, including an assessment of the comparative value of the two photographs, and, for example, the lapse of time between the relevant events and the arrest photograph, have remained a possibility that a magistrate would have been entitled to commit. Given the task of this court, it should not interfere with the decision on that ground.
29. However, having heard the submissions of Mr Coleman, Mr Fitzgerald, understandably in my view, withdrew the submission that there should, in that event, be a remission to the magistrate. Once the Government accept that their failure to disclose the relevant evidence was so unfair as to vitiate the committal, he submits that a writ of habeas corpus should be granted. If there is no valid committal order, the detention is unlawful. If they seek to proceed, the Government need to seek a fresh warrant.
30. I have to say that for a time I saw attractions in the notion of a remission to the magistrate. In Ex parte Muboyayi [1992] QB 244, Taylor LJ stated at page 259:

"The great writ of habeas corpus has over the centuries been a flexible remedy adaptable to changing circumstances."

31. The question arises whether its adaptability is such that now judicial review has been developed, the wider powers available on judicial review should also be available in this context. There are cases where remission has been the course adopted. It was done in this court in R v Governor of Brixton Prison, Ex parte Shuter [1960] 2 QB 89, where no evidence had been called as to the local law.
32. In Tomlins (unreported transcript 18 November 1994) Glidewell LJ stated:

"I therefore conclude that either the learned magistrate did err in law because he got muddled (I regret to have to use that word) as to precisely the nature of Mrs Tomlins' evidence, or that from the way in which he phrased himself it is so unclear as to what he did mean that one cannot be certain that he did not make an error of law. Clearly, if it was an error, it was an error on a material issue. If the matter stopped there that would not, in my judgment, be sufficient to entitle us to say that habeas corpus should issue. What it should lead to is a remission to the Magistrates' Court for a rehearing."

33. Glidewell LJ, with whom Curtis J agreed, went on to hold that remission was not appropriate on the facts of that case because no reasonable court could, on any view, convict upon the evidence.
34. Remission has also recently been ordered in this court in Government of Germany v Surinder Kumar, unreported transcript 15 December 1999, where remission was permitted to allow the dates in the relevant charges to be amended and the case reconsidered on the basis of the amended dates.
35. In R v Governor of Brixton, Ex parte Sadri [1962] 1 WLR 1304, the court considered an application from the requesting government to remit the case so that further evidence could be called before the magistrate. Lord Parker CJ stated at page 1309:

"In my judgment, in those circumstances, there was no evidence which could satisfy the magistrate, as he had to be satisfied, as to a strong or probable presumption of guilt under section 5 of the Act (that is the Fugitive Offenders Act of 1881). This court, however, has been invited to send the case back to the magistrate to look at the documents which have now arrived in this country or, alternatively, this court is invited to look itself at the documents. For my part, I see very great difficulty in taking any such course. These proceedings are not by way of appeal; they are a matter of habeas corpus, and although in Rex v Governor of Brixton, Ex parte Percival and R v Governor of Brixton Prison, Ex parte Shuter the cases were remitted on the question of the jurisdiction of the magistrate based on the nature of the offences, there is no precedent whatever for sending a case back to the magistrate to hear evidence of guilt when no evidence of guilt has yet been tendered.

In R v Governor of Brixton Prison, Ex parte Schtraks it was the applicant who sought to adduce evidence which had not been adduced before the magistrate which pointed to his innocence, and their Lordships firmly refused the application. Lord Hodson said: 'The appellant also relies on certain cases wherein the Crown has been allowed to cure a technicality or fill a lacuna which, while it remained uncorrected or unfilled, would prima facie give the prisoner a right to the writ, although it would avail him little since he could be rearrested and the technicality corrected or the gap in the prosecution's case filled without difficulty. Examples of such cases are,' and he refers to Rex v Governor of Brixton Prison, Ex parte Percival and R v Governor of Brixton Prison, Ex part Shuter. It is said that those words are quite general and that there is power to remit whenever the matter is a matter of curing a technicality. For my part, I do not think that it is a matter of pure technicality. In one sense it is, because it only means the production of authenticated copies of documents. Looked at in another way, it is far from technical because the strict view is that there was no evidence of guilt before the magistrate, and one cannot help seeing that Lord Hodson a few lines further down said: 'I am of the opinion that fresh evidence as to the guilt of the accused cannot properly be received.'

I would not be a party to sending this case back. I do not think we have any power to do so, but in any event I would not do so. I think that requisitioning countries putting the machinery of the Fugitive Offenders Act, 1881, into force should come to this country properly armed with the necessary material. This court certainly does not wish to make difficulties, and I would like to make it plain that I should not have thought that it was necessary for every exhibit to depositions taken in the foreign country or authenticated copies of every exhibit to be brought over to this country, nor indeed all the exhibits in the case of a series of counts of a similar nature; but it does seem to me that when the exhibit in question is the very document, as here, which it is alleged was falsified, that at least the requisitioning country should either send over the document or provide an authenticated copy of it or of the relevant extracts."

36. While I would wish to reserve for another occasion the circumstances in which remission may be ordered where there has been a flaw in the procedure followed in the Magistrates' Court, remission in my view would not be a proper course to follow in this case. I have in mind of course, amongst other things, the concessions made by the Government.
37. Mr Fitzgerald also submitted that the lack of fairness in the proceedings before the magistrate constituted a breach of Article 5 of the European Convention of Human Rights, and thus of the Human Rights Act, 1998. In R v Governor of Brockhill Prison, Ex parte Evans (No 2) [2000] 4 AER 15, the effect of Article 5 of the Convention was considered. The point at issue was the entitlement to compensation of a person unlawfully detained. Lord Hope set out Article 5 of the Convention in his judgment and clearly contemplated at page 30E that a detention which might otherwise be lawful under domestic law could be "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 (see Engel v Netherlands (No 1) (1976) 1 EHRR 647 (para 58); Tsirlis and Kouloumpas v Greece (1997) 25 EHRR 198 (para 56)".
38. The Government have fulsomely acknowledged the obligation which was upon them in this case by way of disclosure and the default which occurred. 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.
39. It does, however, appear to me that the statement of Ognall J in R v Governor of Pentonville Prison, Ex parte Lee, [1993] 1 WLR 1294, at 1300C, that under the Extradition Act, 1989, "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. I do not doubt the correctness of the actual decision in Lee.
40. The committal order must, in the circumstances, be quashed by reason of the unfairness of the proceedings resulting from the non-disclosure of crucial evidence, as accepted by the Government. The writ of habeas corpus will, accordingly, issue. In those circumstances, Mr Fitzgerald does not seek an order upon the judicial review application. He seeks that it should be adjourned in case the decision which this court has taken, if Bell J agrees, were to be upset in another place.
41. MR JUSTICE BELL: I agree.
42. LORD JUSTICE PILL: Are there any applications?
43. MR FITZGERALD: My Lord, in relation to the judicial review application, of course we do not know what the United States Government will do, whether they will seek to take the matter to the law, but were they to do so, it might be appropriate to grant permission and then adjourn. That is what my application would be, if they are going to appeal, so that it would at least -- my one concern would be the suggestion that nothing had been done about it by us.
44. LORD JUSTICE PILL: Did you have any submissions, Mr Coleman?
45. MR COLEMAN: No, my Lord.
46. LORD JUSTICE PILL: You have made your application for permission to apply.
47. MR FITZGERALD: Yes.
48. LORD JUSTICE PILL: We do not rule upon that.
49. MR FITZGERALD: Yes.
50. LORD JUSTICE PILL: But we do indicate the fact that in our view, the fact that we have not ruled on your application to apply should not be taken against you if it ever becomes a live application. There may be other things taken against you, but that particular point should not be.
51. MR FITZGERALD: That is to say delay in seeking leave?
52. LORD JUSTICE PILL: Delay up to date may be an issue, but the fact that we have adjourned rather than considered it should not be taken against you.
53. MR FITZGERALD: My Lord, yes. In that case, I will not pursue that further.
54. My Lord, the only other matter is as to costs. The applicant is not legally aided and has obviously incurred costs both here and below. My Lord, as to the costs of this application, I would imagine that my learned friend would accept that he should have the costs of this application, but the only other question is that he should also have them for the court below, because obviously they were vitiated by the non-disclosure by the United States, and we would ask that there therefore be costs for the applicant both here and in the court below.
55. LORD JUSTICE PILL: Yes. Mr Coleman.
56. MR COLEMAN: My Lord, the effect of that would be that the Crown Prosecution Service would have to pay for an error of the American Government. In my submission, it would be more appropriate to make an order from central funds.
57. MR FITZGERALD: My Lord, my understanding is that, in fact, they are acting as agents of the US Government.
58. LORD JUSTICE PILL: The US Government is the party, is it not? Do not the costs go against the party?
59. MR FITZGERALD: Well, I think there may be some arrangement between the US and -- but, in effect, the order would be against the US Government, the question of who.
60. MR COLEMAN: My Lord, that might be a better argument if the Crown Prosecution Service had an indemnity or were able to claim their costs back from the American Government, but because it is a treaty obligation to assist foreign states in extradition, it is very clear that the costs fall directly upon the Crown Prosecution Service and cannot be transmitted.
61. LORD JUSTICE PILL: Treaty arrangements are not for the court. The court is giving costs against a party to the proceedings, which is the United States Government. I do not follow how you can tell us, "oh, well, we have made no arrangement that we pay them." I am not following how that helps you.
62. MR COLEMAN: My Lord, of course it is not; the treaty obligations are not a matter for the court. But they are a matter that the court can bear in mind when deciding whether the fair order is to order costs out of central funds or --
63. LORD JUSTICE PILL: Yes. Well, what do you say the practice is? Can you help as to whether to order the amount out of central funds? You appear to accept that if there is power that the applicant should have his costs of the appeal --
64. MR COLEMAN: Yes. My Lord, this is an unusual case, because, as my learned friend has indicated, the fault for the problem with the proceedings lies with the American Government. Normally when habeas is granted, the difficulty lies in some ruling of the court or something that went wrong in the proceedings below, and costs are awarded from central funds, not against the party.
65. MR JUSTICE BELL: Does the same sort of practice prevail in the United States, that is each or some of the states of America, in that prosecution agencies there act on behalf of the United Kingdom Government?
66. MR COLEMAN: I imagine so.
67. MR JUSTICE BELL: If it does, is this court entitled to say swings and roundabouts, this is no doubt one of hundreds of cases on each side of the Atlantic, and somewhere a balance is probably drawn between costs which American agencies incur and do not recover and costs which the CPS incur and do not recover?
68. MR COLEMAN: My Lord, I am confident that the same practice applies, that American states act on behalf of the United Kingdom Government in extradition matters. I know nothing of the cost provisions, however, and whether there is provision in the United States or in any of the individual states for payments to be made from central funds or only against the parties, or how those matters are resolved. I am afraid that is completely outside my knowledge.
69. LORD JUSTICE PILL: Yes, thank you.
70. Mr Fitzgerald, there is power to order out of central funds?
71. MR FITZGERALD: Yes, my Lord. I was just looking at it. There is power under section 16(5)(a), where:

"In any proceedings in a criminal cause or matter to be determined before a Divisional Court of the Queens's Bench Division, the court may make a defendant's cost order in favour of the accused."

72. My Lord, my one concern is whether that extends -- well, I think it can extend to both here and below. That is to say that there is that alternative available. That is Archbold at page 747.
73. But, my Lord, in principle, in our respectful submission, the United States is the party. This is a case where it can strikingly be said that there has been a finding of fault on the part of a party to these proceedings. Therefore, they should be ordered to pay the costs. As my Lord Mr Justice Bell observed, it may well indeed be the Federal Government would be the agent for the English Government.
74. LORD JUSTICE PILL: Well, we are told, not as a matter of law, because Mr Coleman accepts that the Government is the party, but if the practice is that the CPS is going to have to meet it out of their budget, it is public money one way or the other. If Mr Coleman is right about that, that it will either be met by the CPS or central funds, and there may be reciprocal arrangements, it ought to come out of central funds.
75. MR FITZGERALD: Well, my Lord, clearly I am afraid I am not privy to the arrangements as between the US Government and the CPS. I know that the CPS acts as their agents.
76. LORD JUSTICE PILL: Yes.
77. MR FITZGERALD: But, my Lord, in principle, it would be our submission that it should be simply a costs order against the unsuccessful party. If your Lordships are not with us on that, then it would be -- then provided the order is both for here and below, we would submit.
78. Section 16(5)(a) says:

"any proceedings in a criminal cause or matter are determined before a Divisional Court of The Queen's Bench Division, the court may make a defendant's order in favour of the accused."

79. At (6), "it is properly incurred by him in the proceedings."
80. I think it is made clear that those proceedings include the --
81. LORD JUSTICE PILL: Well, do you have a difficulty, though, with section 16(1), because that seems to specify the magistrate's proceedings, on which such an order can apply.
82. MR FITZGERALD: My Lord, I think the question of whether it covers both here and below is dealt with in 6(12):

"...proceedings includes - (a) proceedings in any court below..."

83. It is the same page, 748.
84. So your Lordships can -- although it is not my primary submission, there is power under section 16(5)(a) to make a defendant's costs order both in these proceedings and the proceedings of the court below in favour of the defendant.
85. LORD JUSTICE PILL: Yes.
86. MR FITZGERALD: My Lord, could I just have a moment, because there may be some hidden problem if the costs are ordered out of central funds.
87. Well, my Lord, I understand that certainly it might be to the prejudice of the defendant in terms of the scale if the costs order was not made against the US Government's party.
88. LORD JUSTICE PILL: What particulars can you give of that?
89. MR FITZGERALD: Well, I understand if the central --
90. LORD JUSTICE PILL: I have never heard that suggested before.
91. MR FITZGERALD: My Lord, I think under central funds, there is some sort of scale that applies, whereas if it is just an order, obviously it is subject to taxation, but it would be the costs incurred by the defence.
92. LORD JUSTICE PILL: Yes.
93. MR FITZGERALD: As I understand, there may be some disadvantage to the defendant in not getting his costs against the party, but getting them out of central funds.
94. LORD JUSTICE PILL: We need something a bit more specific than that, Mr Fitzgerald.
95. MR FITZGERALD: Well, my Lord, I understand we could assist your Lordship on that. There is some scale that applies out of central funds, whereas that would not be the case if we would simply be entitled to our costs.
96. LORD JUSTICE PILL: Well, can you help us with the practice? There are many applications of this kind, some of which succeed, what is the practice of the court?
97. MR FITZGERALD: Well, my Lord, I think the only successful applications of habeas corpus in extradition are not -- in Tomlins, I think it was. I am trying to remember whether there was -- well, perhaps one can see actually at the end of the transcript what the order was in Tomlins.
98. LORD JUSTICE PILL: Yes, it is page 28, the very last sheet.
99. MR FITZGERALD: Yes, my Lord. Yes, I think the application actually was made out of central funds, so the issue did not arise, because I was certainly making the application there under the Prosecution of Offences Act, and the order was made out of central funds.
100. Yes, there is the remark of Glidewell LJ:

"As a matter of policy they come out of central funds."

101. That seems right, yes. So, my Lord, in the only case with which I have experience, it is right that the application was made under the Prosecution of Offences Act, and I believe that -- I am not sure what happened in the House of Lords, because they petitioned, but the House of Lords refused the US petition, whether they ordered it against the US Government or not.
102. That is the only way in which I can assist your Lordship.
103. LORD JUSTICE PILL: Yes. Anything further?
104. MR FITZGERALD: Well, my Lord, other than that the position of principle that it should be against the US Government because they are the party, rather than out of central funds, my Lord, that is my submission.
105. LORD JUSTICE PILL: Yes. You will have your costs out of central funds here and below.