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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> VB & Ors v Westminster Magistrates [2014] UKSC 59 (05 November 2014) URL: https://www.bailii.org/uk/cases/UKSC/2014/59.html Cite as: [2014] 3 WLR 1336, [2014] WLR(D) 470, [2014] UKSC 59, [2015] 1 AC 1195, [2015] AC 1195 |
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Michaelmas Term
[2014] UKSC 59
On appeal from: [2014] EWHC 889 (Admin)
Appellant (VB) Alun Jones QC Sam Blom-Cooper (Instructed by Frank Brazell & Partners) |
Respondents James Lewis QC Gemma Lindfield (Instructed by Crown Prosecution Service) |
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Appellant (EN) Diana Ellis QC Joanna Evans (Instructed by Clifford Johnston Solicitors) |
Intervener (CMK) Helen Malcolm QC Mark Weekes (Instructed by Bindmans LLP) |
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Appellant (CM) Tim Moloney QC James O'Keeffe (Instructed by O'Keeffe Solicitors) |
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Appellant (CU) Edward Fitzgerald QC Rachel Kapila (Instructed by Hallinan Blackburn Gittings & Nott) |
LORD MANCE (with whom Lord Neuberger and Lord Reed agree)
Introduction
The extradition proceedings to date
"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. For that reason with some reluctance I refuse the application."
That was a comment which she made without the Government of Rwanda having had the opportunity to make submissions on, or to explore the accuracy of, the material in question. Unless and until the District Judge reached a conclusion on the permissibility of a closed material procedure opposite to that which she in fact reached, the right course would have been not to see or read the files.
The Extradition Act 2003 - analysis
"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".
"A person's extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that -
(a) the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions."
"(1) If the judge is required to proceed under this section he must decide whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him.
(2) In deciding the question in subsection (1) the judge may treat a statement made by a person in a document as admissible evidence of a fact if -
(a) the statement is made by the person to a police officer or another person charged with the duty of investigating offences or charging offenders, and
(b) direct oral evidence by the person of the fact would be admissible
(3) In deciding whether to treat a statement made by a person in a document as admissible evidence of a fact, the judge must in particular have regard -
(a) to the nature and source of the document;
(b) to whether or not, having regard to the nature and source of the document and to any other circumstances that appear to the judge to be relevant, it is likely that the document is authentic;
(c) to the extent to which the statement appears to supply evidence which would not be readily available if the statement were not treated as being admissible evidence of the fact;
(d) to the relevance of the evidence that the statement appears to supply to any issue likely to have to be determined by the judge in deciding the question in subsection (1);
(e) to any risk that the admission or exclusion of the statement will result in unfairness to the person whose extradition is sought, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings
(4) A summary in a document of a statement made by a person must be treated as a statement made by the person in the document for the purposes of subsection (2)."
"decide whether the person's extradition would be compatible with the Convention rights within the meaning of theHuman Rights Act 1998"
If she does so decide, she must send the case to the Secretary of State for her decision whether the person is to be extradited, informing the person of his right to an appeal to the High Court (which will not however be heard until after the Secretary of State has made her decision). The Secretary of State's role in respect of any case so sent her is closely circumscribed by section 97, which limits it to considering whether she is prohibited from ordering the extradition sought by section 94 (death penalty), section 95 (speciality), section 96 (earlier extradition to the UK from other territory or section 96A (earlier transfer to the UK by the International Criminal Court). If none of those sections applies, then (unless the request for extradition has been withdrawn or the person is discharged in the light of competing extradition requests or claims or on national security grounds), the Secretary of State must under section 93(4) order extradition.
"Finally, I think that extradition proceedings are criminal proceedings. They are of course criminal proceedings of a very special kind, but criminal proceedings nonetheless.
Both case law and the terms of the Extradition Act 1989 point to extradition proceedings being categorised as criminal. First, the cases. In Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government [1943] A.C. 147 this House approved the decision of the Court of Appeal in Ex parte Alice Woodhall (1888) 20 QBD 832 that the refusal of an application for habeas corpus by a person committed to prison with a view to extradition was a decision in a 'criminal cause or matter.' It would seem to me to follow a fortiori that the extradition proceedings themselves are criminal proceedings and in Amand's case Viscount Simon L.C. said, at p 156, that the cases demonstrated that 'the matter in respect of which the accused is in custody may be "criminal" although he is not charged with a breach of our own criminal law.'
Secondly, the Extradition Act 1989. Section 9(2) and paragraph 6(1) of Schedule 1 require that extradition proceedings should be conducted "as nearly as may be" as if they were committal proceedings before magistrates. Committal proceedings are of course criminal proceedings and these provisions would make little sense if the metropolitan magistrate could not apply the normal rules of criminal evidence and procedure. The suggestion of counsel in Ex parte Francis that extradition proceedings were 'sui generis' would only make matters worse, because it would throw doubt upon whether the magistrate could apply the rules of civil evidence and procedure either."
"prove to the satisfaction of … the court before whom he is brought on habeas corpus, or to the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character"
The House reasoned that, since the Secretary of State could not have been intended to be bound by the strict rules of evidence, the court could not have been intended to be.
"Equality of arms requires that, in normal circumstances, the party contesting extradition should be aware of, and thus able to comment on, the material upon which the court will be basing its decision".
"36. Regrettably, …. the circumstances of a case sometimes call for unusual and undesirable remedies. Ultimately, the court has to decide what is demanded by the interests of justice. In weighing the prejudice that the Secretary of State may suffer in the appeal process as a result of an irrevocable non-disclosure order, it should not be overlooked that the appeals themselves will be conducted entirely inter partes. In particular, no material that is placed before SIAC by the appellants will be withheld from the Secretary of State. She may be able to demonstrate that the claimed need for confidentiality is without foundation and to persuade SIAC to give the evidence little or no weight for that reason alone. She may also be able to test the evidence of the witness(es) effectively even though she has been unable to discuss it with the AAs. For example, she may be able to show on the basis of objective general material about the conditions in Algeria that the evidence of the witness is unlikely to be true; and even where the evidence is more specific, she may be able to obtain information from the AAs which will enable her to rebut the evidence without divulging the name or identity of the witness or saying anything which might lead to his or her identification. It will, of course, depend on the nature of the evidence to be given by the witness. I do not wish to suggest that the effect of an irrevocable non-disclosure order may not inhibit the ability of the Secretary of State to resist the appeals. In some cases, such an order will undoubtedly have that effect. But it cannot safely be said that it is bound to do so in every case."
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) that he has been guilty of acts contrary to the purposes and principles of the United Nations.2"
"It is common ground between the parties (i) that there can only be one true interpretation of article 1F(a), an autonomous meaning to be found in international rather than domestic law; (ii) that the international instruments referred to in the article are those existing when disqualification is being considered, not merely those extant at the date of the Convention; (iii) that because of the serious consequences of exclusion for the person concerned the article must be interpreted restrictively and used cautiously; and (iv) that more than mere membership of an organisation is necessary to bring an individual within the article's disqualifying provisions."
"The article should be interpreted restrictively and applied with caution. There should be a high threshold 'defined in terms of the gravity of the act in question, the manner in which the act is organised, its international impact and long-term objectives, and the implications for international peace and security'. And there should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character."
Section 87 of Coroners and Justice Act 2009
a. Section 87 only applies where there is a defendant charged with an "offence to which the proceedings relate": section 97(1). That, on a true construction, does not embrace extradition proceedings with a view to a trial abroad.
b. By the same token, a foreign state requesting surrender should not be treated as prosecutor, even though extradition proceedings are criminal proceedings of a special kind.
c. The Extradition Act 2003 itself is careful to refer to the person "whose surrender is requested" as such, rather than to the defendant, and it makes specific provision when the concept of "defendant" is intended to include such person as well as when the concept of "prosecutor" is intended to include a requesting authority: see e g section 205(3). One might have expected similar caution in the 2009 Act, had section 87 been intended to cover extradition proceedings.
Conclusion
LORD HUGHES (with whom Lord Neuberger and Lord Reed agree)
(i) the impact (if any) of our decision upon procedure to be adopted in any subsequent asylum or human rights claims which might be made by any of the appellants, or by people in a similar position; and
(ii) the separate question whether an extradition judge conducting proceedings under the Extradition Act 2003 has the power to receive evidence from a witness who is anonymous, that is to say whose identity is withheld from one or other party to the proceedings. That is of course not the same as a closed material procedure, where evidence is received which is altogether withheld from one or other party. A witness who is anonymous is heard by all parties. All parties have the opportunity to agree or contradict what he says and his evidence can be tested by cross examination, albeit the extent of cross examination may be limited by his anonymity.
(i) Subsequent immigration or human rights claims
"Article 22
Collection of information on individual cases
For the purposes of examining individual cases, Member States
shall not:
(a) directly disclose information regarding individual applications for asylum, or the fact that an application has been made, to the alleged actor(s) of persecution of the applicant for asylum;
(b) obtain any information from the alleged actor(s) of persecution in a manner that would result in such actor(s) being directly informed of the fact that an application has been made by the applicant in question, and would jeopardise the physical integrity of the applicant and his/her dependants, or the liberty and security of his/her family members still living in the country of origin."
(ii) Anonymity of witnesses
(i) the Act applies to "criminal proceedings"; these are defined in section 97(1) as those in a Magistrates' court, Crown court or the Court of Appeal (Criminal Division) in England and Wales which are:
"criminal proceedings consisting of a trial or other hearing at which evidence falls to be given";
(ii) extradition proceedings are a kind of criminal proceeding within that definition, and extradition was described as a form of criminal proceeding by Lord Hoffmann in R v. Governor of Brixton Prison Ex parte Levin [1997] AC 741 at 746 F-G;
(iii) the present appellants, whose surrender was sought by Rwanda, were "defendants" for the purpose of the 2009 Act because they had been charged with offences (in Rwanda);
(iv) although section 87(3) requires a defendant who applies for a witness anonymity order to disclose the identity of the proposed witness to "the prosecutor", as well as to the court, this presented no obstacle because that term is defined in section 97 as "any person acting as prosecutor, whether an individual or a body"; a requesting State making an application for extradition is not acting as a prosecutor; either it, or some other body may in due course, if extradition is granted, take up the role of prosecutor at the subsequent trial, but that stage has not yet been reached;
(v) although the Crown Prosecution Service ("CPS") generally conducts extradition proceedings on behalf of the Requesting State, and does so in this case, it, like the State, is not acting as a prosecutor when it does so.
"(2)(ea) to have the conduct of any extradition proceedings"
That, however, is made subject to the specific exception that the CPS is not to do so when requested not to by the Requesting State. This makes clear the advocacy or agency role of the CPS in extradition proceedings. [It ought to be noted that the CPS may separately fulfil a different function under section 83A and following of the Extradition Act where forum proceedings fall to be determined, but these do not affect the foregoing propositions.]
(i) Lord Hoffmann explicitly described extradition proceedings as "criminal proceedings of a very special kind" (at 746F).
(ii) The application to extradition proceedings of English rules of criminal evidence (including those in the Police and Criminal Evidence Act 1984) was clear in any event, then as now. At that time the relevant provision was paragraph 7(1) of Schedule 1 to the Extradition Act 1989, which provided that the prospective defendant was to be remanded in custody for the decision of the Secretary of State upon surrender if
"such evidence is produced as . . . would, according to the law of England and Wales, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England or Wales…"
Now, the same result follows from section 84(1) of the Extradition Act 2003, read with section 77. Section 84(1) requires the appropriate judge to determine whether:
"there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him" ,
whilst section 77 provides that he shall have the same powers "as nearly as may be" as he would have in summary proceedings for an offence.
(iii) Lord Hoffmann recognised that even if section 78 did apply to extradition proceedings, it would do so only by way of the (then) rule that evidence was to be considered as if at English committal proceedings. He specifically identified the special nature of extradition proceedings and held that section 78 would require to be modified in its application to them so that what fell for consideration was not any unfair effect on any subsequent trial but unfair effect on the extradition hearing itself: see 748A, where he underlined the fact that at the extradition hearing it ought ordinarily to be assumed that if the prospective defendant is surrendered local procedures in the Requesting State will ensure fairness there. That is a clear recognition of the essential difference between extradition proceedings on the one hand and a criminal prosecution and trial on the other.
(iv) Section 87 of the 2009 Act provides for applications for witness anonymity orders to be made either by "the prosecutor" or by "the defendant". Where the application is made on behalf of a defendant, section 87(3) requires the identity of the witness to be revealed not only to the court but to the prosecutor. As the Divisional Court correctly held, there is no prosecutor in an extradition hearing. The notion of criminal proceedings existing without a prosecutor is difficult enough on any view; but even if such a thing can for any purpose be imagined, it is clear that the 2009 Act, and its predecessor the 2008 Act, are confined to prosecutions, with prosecutors.
(v) It is also doubtful that the person whose extradition is sought falls within the definition of "defendant" for the purposes of the 2009 Act. "Defendant" is defined by section 97 in terms which are plainly appropriate to a person facing trial in England and Wales, but may not be to someone whose surrender is sought for potential trial elsewhere:
"the defendant", in relation to any criminal proceedings, means any person charged with an offence to which the proceedings relate (whether or not convicted)"
Extradition proceedings under Part II of the Extradition Act 2003 depend upon a request to the UK by the Requesting State. For the very detailed process of the Act to begin, the Secretary of State must certify under section 70 that she has received a valid request. A valid request is one which states, inter alia, that the person sought:
"is accused in the category 2 territory of the commission of an offence specified in the request".
The use of the word "accused" would appear to be deliberate. The person concerned may or may not have been charged in the Requesting State, according, no doubt, among other things, to that State's practice in relation to absent persons. It is to be observed that the Extradition Act 2003 generally refers to the person who is the object of extradition proceedings as "the person whose extradition is sought", rather than as "the defendant", and that in certain places where it wishes to apply other statutory references to a 'defendant' to this person, it says so expressly. An example is section 205(3) which provides:
"(3) As applied by subsection (1) in relation to proceedings under this Act, section 10 of the Criminal Justice Act 1967 and section 2 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 have effect as if -
(a) references to the defendant were to the person whose extradition is sought (or who has been extradited);
(b) references to the prosecutor were to the category 1 or category 2 territory concerned; …"
(vi) Lastly, it is by no means clear that the place of an extradition hearing is within the definition of "court" for the purposes of the 2009 Act. Section 97 provides that for the purposes of a witness anonymity order:
"court" means -
(a) in relation to England and Wales, a magistrates' court, the Crown Court or the criminal division of the Court of Appeal……"
Those are, of course, the courts in which prosecutions in England and Wales are conducted. Extradition hearings under the Act of 2003 are held before what that Act calls "the appropriate judge" - in relation to Part II see section 70(9) and following. The "appropriate judge" is, by section 139, a District Judge (Magistrates' Courts) specially nominated by the Lord Chief Justice. The fact that the nomination has fallen upon certain District Judges (Magistrates' Courts) who ordinarily sit at Westminster Magistrates' Court does not mean that they are sitting in that capacity when conducting an extradition hearing, nor that such hearing is held in a Magistrates' Court. Consistently with this, section 77 provides that in an 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."
LORD TOULSON
"HAVING DUE REGARD for human rights and the rule of law;
MINDFUL of the guarantees under their respective legal systems which provide an accused person with the right to a fair trial, including the right to an adjudication by an impartial tribunal established pursuant to law;"
"it appears to the Judicial Authority that extradition would be incompatible with [X's] human rights".