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Cite as: [2005] CSOH 125, [2005] ScotCS CSOH_125

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Calder, Re Application for Judicial Review [2005] ScotCS CSOH_125 (20 September 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 125

P614/05

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD McEWAN

in the petition of

DAVID JOHN CALDER

Petitioner;

for

JUDICIAL REVIEW OF THE EXTRADITION ACT 2003 (DESIGNATION OF PART 2 TERRITORIES) ORDER 2003 (S.I. 3334)

 

 

________________

 

Petitioner: Bovey, Q.C., Mrs Hughes; Drummond Miller, W.S.

Respondent: Moynihan, Q.C., Ms Crawford; Office of the Solicitor to the Advocate General

20 Sepember 2005

[1]      Mr Calder lives in Aberdeen. He has the misfortune to be a man wanted by the authorities in the United States. They have applied to the relevant Scottish Court for his extradition to face criminal charges in California. The offences relate, I was told, to sending certain chemicals to the United States from which the "date rape" drug can be made. At present the matter is before a Sheriff in Edinburgh and is adjourned to await a decision in this case.

[2]     
The judicial review before me concerns a Treaty and proceedings in Parliament. I am asked to declare that certain proceedings in Parliament are ultra vires. The matter arises in this way according to the Petition. Following a review of Extradition in general, which is governed in this country by various Treaties, Statutes and other arrangements, a four-tiered extradition framework was proposed ranging from simple fast track procedure to more complex arrangements. Countries were to be designated into different categories by Order in Council. Safeguards would be provided and Human Rights respected. Following from this a new bilateral treaty was concluded between the United Kingdom and the United States of America with whom we process most of our extradition cases. The Treaty was signed at Washington on 31 March 2003 and had to be ratified (Article 23). It would then supersede earlier treaties.

[3]      However, in order to give effect to all the new extradition arrangements Parliament passed the Extradition Act 2003 which came into force on 1 January 2004. The Act does not refer to the Treaty, or indeed any Treaty, and is not in any way dependent on it or them. It introduces the concept of "designation", that being done by Order in Council. Such Orders are governed by section 233 and require "(5) ... a draft (to be) laid before Parliament and approved by a resolution of each House ..." (the affirmative resolution procedure).

[4]     
Against this background the Petitioner's complaint, in short, is this. Under the former procedure in the earlier 1972 Treaty he could not be extradited unless inter alia evidence was put before the Sheriff sufficient under our law to justify his committal for trial. Now under the new Act all the Sheriff has to look at is "information" presented to him. This is valid both for the arrest and the hearing. The detail of this is narrated and does not matter for present purposes. It is the loss of the "sufficient evidence" test to justify the warrant or, later, to make a case to answer which is the complaint. What the Petitioner further alleges is that in moving the Order in Council the Minister misdirected himself and led the House to believe that the new Treaty would shortly be ratified by the U.S. Senate. The pleas-in-law say that this was an irrational act and the Order ultra vires. A restricted remedy was sought as will be seen in counsel's argument and now only relates to the step in procedure where there is a hearing before the Sheriff.

[5]     
In opening Mr Bovey said that he was going to challenge the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (S.I. 3334) applying sections of the Act to the United States. However, at the outset he intended to restrict his challenge in Paragraph 3 of the Petition to declarator and reduction only to the extent of section 84(7).

[6]     
Here the requesting note was dated 25 August 2004 some eight months after the Act and Order came into force on 1 January. Counsel then compared and contrasted the differing provisions of the 1972 Treaty with that of the 2003 Treaty, pointing out that the sufficiency test under the former summary proceedings was an important safeguard; and how before the extradition could take effect there were a number of hurdles to overcome. He then posed the question of whether the new Act and its Order had any life independent of the Treaty?

[7]     
The essence of extradition, he said, was mutuality. That consideration was not before the Home Secretary when he made the Order and as a result the United States got everything it wanted without having to ratify. They did not have to show any "sufficiency" of evidence. The United Kingdom in a reverse question with them, would have to. That showed the Treaty was lopsided. Obligations did not have to be identical provided they were mutual.

[8]     
He then looked at the history of Extradition beginning with the 1870 Act. He referred to section 2, and how "arrangements" had to exist. Then came the Extradition Act, 1989 where once again the idea of arrangements both general and special were found. He referred me to sections 3, 4, 15 and 31. The new Act in 2003 was not couched by any reference to Treaties. Category 2 territories were governed by Part 2 of the Act. There had to be a request under section 70(3). A valid request results in a certificate and both are issued to the appropriate judge. Before a warrant to arrest can be given the judge must have "evidence" (section 71(2) and (3)) to justify. However, a designated category 2 territory (here the United States) only has to provide "information". In Scotland the appropriate judges are certain designated Sheriffs of the Lothian and Borders (section 139). There has to be a summary hearing (section 76 and 77) and the offence has to be an extradition offence. Such conduct both within and outwith the category territory is described in section 137. Broadly speaking it has to be conduct punishable in both the U.K. and the category territory. Counsel argued that this has always been a principle of law.

[9]     
Sections 79 to 83 give certain bars to Extradition. Then comes section 84 which in subsections (1) and (7) shows that the Sheriff does not consider evidence but does have to consider Human Rights (section 87). If the request passes all these tests it goes to the Minister to decide. Even at this stage there are certain bars (section 93) e.g. the death penalty and speciality. There is also an appeal provision.

[10]     
Mr Bovey went on to stress and complain that there were no arrangements for speciality here. That, he said, was the cornerstone of mutuality. You could not be prosecuted except for the offence certified. I was also referred to a Review of Extradition Law and the motives for change in 2003.

[11]      Counsel then referred me to a number of authorities, beginning with R. v Governor of Brixton Prison ex parte Soblen [1963] 2 Q.B. 243 at 299 to 302. He maintained in that case that deportation had been used to avoid the problems of extradition. In the same way, he said this order went further than the earlier Treaty and was beyond the powers of the Act. Next was R. (Javed) v Secretary of State for the Home Department [2002] Q.B. 129. After quoting most of the case counsel said it was authority for the proposition that the Courts could review the legality of subordinate legislation, and although political decisions could not be challenged, where Parliament had been deceived and there was a demonstrable error review was possible. He stressed the Human Rights aspect of his client's position and maintained that he could face 20 years in prison. Where a Minister had in a statement fettered his discretion the Courts could also interfere. The authority for that was R. v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 A.C. 513. He quoted pages 546-553 and 571-575. Finally he referred me to East Kilbride Development Corporation v Secretary of State for Scotland 1995 S.L.T. 1238 at 1244 and 1247; and to West v Secretary of State for Scotland 1992 SC 385 at 413 C.

[12]      Mr Bovey concluded his arguments by referring to some of the Parliamentary materials produced to me as excerpts from Hansard. From these debates it is clear that a number of politicians did not like the Treaty and regarded it as unequal. The tension between reciprocity and the Treaty benefits are seen for example in the Commons Standing Committee on Delegated Legislation 15 December 2003 col. 27. The explanation for the Order is seen in the Lords Debate of 16 December 2003 col. 1062 onwards especially 1070 and 1071; and on 12 January, col. 252. Counsel said that the mutuality in the 1972 Treaty was lost when the Order was made. The basis on which it had been lost was the erroneous one that the Government thought the United States would ratify the Treaty. To grant the remedy sought would still allow extradition to the United States but with a sufficiency test. The United States would simply be in a category with other countries where evidence was needed e.g. India and Hong Kong (section 84(1).

[13]     
Counsel for the respondents moved me to dismiss the Petition under reference to his first and second pleas-in-law. The question he said was a simple one viz. should the Sheriff assess sufficiency as well the other safeguards. There were 48 countries with the "no evidence" privilege, some in Part 1 and others in Part 2; and it was a Government decision approved by both houses that the United States be one of them. That decision was made and approved in December 2003 knowing that the Act would commence on 1 January 2004; knowing also that the Treaty had not been ratified and for a period the Act would be in force here without the Treaty being in force. If the Government and Parliament knew these matters and went ahead that could not be questioned. One had to ask whether the United States could be a "no evidence" country without the Treaty being in force. The answer was in the affirmative and the whole matter was a political question, not one for the Courts. There was no suggestion that Parliament had been misled, and the decision on the day had to be viewed in the light of the knowledge at the time. It may be that the expectations of the U.S. ratification were over-optimistic but that did not render them invalid. There need have been no concern about when the Treaty came into force because only the Statute created the "no evidence" rule. The debate on the Order was all about the United States. Affirmative procedure was needed; hence the vote.

[14]     
Counsel then demonstrated by reference to section 1, 69, 73, 74 and 223 how designation and selection were achieved and (in certain causes) the number of days within which the evidence had to be produced. Category one countries (23 of them) operated the European Arrest Warrant. Category two countries numbered 92, but, of these, 25 had the "no evidence" privilege and the remainder required evidence. For some further different countries other arrangements were made under section 193 or ad hoc.

[15]     
Counsel also noticed the "speciality" rule, a term of art introduced in the 1972 Treaty. Reverting to the main argument he continued by saying the Order designated the various countries and introduced a differential standard. It was not possible, as the Petitioner wanted, to seek partial reduction of what Parliament had done. The Court could not question the Minister or Parliament's view on the quality of justice in the United States. In any event there was no evidence with the Petition to raise the question let alone answer it; and in any case the Court should be reluctant to question the judgement of Parliament. An examination of the debate showed that the Minister had asked herself the correct question. The date of the Treaty being in force was a subsidiary question. Everyone knew the Act would be in force before the Treaty, and the crucial question was confidence in the United States. The stark question before the House was to approve or not. It could not amend. That put the Court in the curious position of being asked to partially exclude the United States, a thing which even Parliament could not do.

[16]      Mr Moynihan looked at some of the authorities. He relied on Javed especially at pages 148-9 where it was clear that the debate did not exhaust the issue, and the Minister had no rational reason to be satisfied about persecution. Soblen he said was not in point. In the Fire Brigade case the Minister had defied Parliament and fettered his discretion. Here there were no fetters except in relation to Capital Punishment. The East Kilbride case was quite different and was in any event pre Javed.

[17]     
Counsel then looked at the wider implications of the Treaty. It could not influence Statute directly unless it was incorporated as some Treaties were (e.g. the Human Rights Convention). There were no conditions upon the Minister making the Order and it was not said in the Petition that she had taken leave of her senses or tried to deceive the House. There was no such material here to address this question. While the subject of Extradition over the years had taken different forms from earliest days the latest Act did things differently. The procedures and the protections were all in primary legislation. Because there were now so may countries there was a need for standardisation, designation and Parliamentary approval.

[18]     
The argument about mutuality and reciprocity revealed a fundamental misunderstanding. Even if the Treaty had been in force there was a mismatch. While the United Kingdom dispensed with the need for evidence for the United States they could not reciprocate since their Constitution needed "probable cause". There was nothing inherently wrong with our Parliament deciding that for people in the United Kingdom the safeguards described were enough without asking the United States to demonstrate a "prima facie" case. It was known the arrangements would not be reciprocal.

[19]     
Accordingly on 16 December 2003 there had been no misrepresentation and the designation of the United States was a political issue whose reasonableness was scrutinised by Parliament itself. The Court could not and should not give a reverse answer to what Parliament had done. The very exacting standards set forth in Javed had not even been asked.

[20]     
I now turn to look at the cases beginning with the Court of Appeal decision in Soblen. The facts were these. Soblen had been convicted by a Court in the United States of spying for the Soviet Union. He was allowed bail and his various appeals against conviction and sentence of life imprisonment failed. He then flew to Tel Aviv using a false passport and on arrival the Israeli authorities flew him to Athens where he was put on an El Al flight via London to the United States. On the flight he inflicted knife wounds on himself and at London Airport was taken from the plane to hospital. A deportation order was served on him and subsequently (pp. 249-50) various other notices requiring his removal. At the court hearing Soblen sought to recover documents containing representations made by the United States for his return. The Minister refused to disclose these. The Deportation Order was made under the Aliens Order 1953. It authorised any carrier to remove him to the U.S.A. By his writ of habeas corpus the applicant challenged the deportation order on various grounds. It was said inter alia that the Crown were seeking to use deportation as a means to extradite him for a non-extraditable offence. The applicant had done nothing here to merit deportation. It was said the Home Secretary was not acting in good faith.

[21]     
The decision in the case was quite clear. An argument that the 1953 Order was ultra vires was dismissed as unstateable (Lord Denning 297). The matter of deportation to his country of origin was for the Home Secretary and his decision could not be questioned in the Courts unless it was taken in bad faith. On the evidence no such case had been made out.

[22]     
In my view the case is of no assistance in the present dispute. It does not concern the will of Parliament. It did concern the discretion of a Minister on an individual case which, on its facts, had no merit. As page 310 Donovan L.J. said this:

"... what evidence is there for the allegation that the Home Secretary never genuinely came to the conclusion that it was conducive to the public good to deport the applicant? Here the applicant relies again on the facts I have already narrated. But the evidence the other way is indeed formidable. In the first place he gained admittance by a stratagem which relied for its success on the humanity of our immigration officials. That reliance was justified in the event, and the success of the stratagem has produced for the home authorities an extremely troublesome problem, and, as it now transpires, substantial expense for the taxpayer. I venture to think it would be the duty of the Home Secretary in the interests of the public to do whatever he could to prevent such a stratagem from achieving its ultimate end, lest its success should set a precedent for others to copy ...".

Then referring to the fact that the United States was an ally he added that:

"... each (country) may well think it conducive to the public good of their own citizens that they should co-operate to see that a national of one of them, who gives defence information to a common potential enemy, should not escape the consequences inflicted upon him by due process of law ...".

[23]     
Lord Denning 303-4 is to the same effect as is Pearson L.J. at 312-4. The other matters decided in Soblen are not material for present purposes. The distinction between the Minister acting lawfully or unlawfully is well explained by Lord Denning at 302. However, as I have said, it is a world apart from the facts of the present case.

[24]     
I now move to the Fire Brigades Union case. In some ways this is an unsatisfactory case since, although the actual decision is clear the ratio is not easy to discover. The House was narrowly divided: the Court of Appeal completely divided and there was even a difference between the single judge and the Divisional Court. I took the trouble to read the Court of Appeal and agree with what Lord Mustill said of the opinion at 559. No less than four remedies were sought combined in declarations, mandamus and injunction (558). Even the winning parties could not persuade the Court to compel the Minister to bring into force that part of the Statute they considered to be to their advantage.

[25]     
The whole matter arose thus. A number of Trades Unions representing inter alia firemen, teachers, nurses, prison officers, railwaymen and others were of the justified opinion that their members might from time to time be the victims of violent crime. Since 1964 there had been under prerogative powers the Criminal Injuries Compensation Scheme. It was a "case by case" scheme with awards calculated on common law damages principles. Following the 1978 Pearson Report the scheme was to be put on a statutory basis but awards calculated as before. The new Code was enacted in sections 108-117 of the Criminal Justice Act 1988. However, the provisions were expressed to come into force "... on such day as the Secretary of State may ... appoint ...". The scheme was never brought into force and due to increasing costs in 1993 a White Paper was published announcing material changes. Payments would now be made on a tariff basis according to the category of injury. The Paper stated that the provisions in the 1988 Act would not now be implemented and would be repealed. Monies for the new tariff scheme were estimated and voted in the Appropriation Act 1994. However sections 108-117 were not repealed. The Unions felt that their members would be significantly disadvantaged under the tariff scheme in comparison with the former scheme. Accordingly they claimed the Respondent was in breach of duty by not bringing into force the 1988 scheme and that it was unlawful to implement the tariff scheme.

[26]     
The majority decision was that the Secretary of State had a clear duty to keep under consideration the question of whether or not to bring the 1988 provisions into force. He could not frustrate the purpose of the statutory power by his own act in choosing to introduce a different scheme. However, his discretion whether to introduce the 1988 provisions was unrestricted and the Court could not compel (by a grant of mandamus) him to bring them into force. Circumstances could change, and Parliament enjoyed exclusive jurisdiction in making legislation. There was no clear duty to bring the legislation into force on any particular date. On this latter point the House was unanimous, Lord Mustill attaching particular importance to the use of the word "may" (563). At 567 Lord Mustill attached great importance to the doctrine of the separation of the powers.

[27]     
In the end of the day what was attacked was the executive act of a Minister and the Court was even divided on how to interpret the facts of what he had done and announced. No questions were raised of bad faith or irrationality. Also the state of facts had been created partly by circumstances (costs) and the act of the Minister (the White Paper). The case before me demonstrates significant differences.

[28]     
The final English case is the Court of Appeal decision in Javed. Before me both parties relied on this decision. The facts may be put thus. Certain Pakistani citizens had applied for asylum upon entry to the United Kingdom. At the material time Pakistan had been put on a designated list of safe countries by an Order in Council. That list was known as the "white list". The effect of the Order was that the Secretary of State, upon evidence, had concluded that there was in general no serious risk of persecution in Pakistan. The Order had been debated by both Houses of Parliament and approved by affirmative resolution. The Minister considered and refused their application. In his refusal he certified their cases as unfounded and so to be subject to the "accelerated procedure". That meant they only had only one appeal to an adjudicator but no further. They appealed to special adjudicators. Their appeals were also refused and because of Pakistan being on the designated list the applicants had no further right of appeal. Inter alia by judicial review they challenged the inclusion of Pakistan as a designated country. The narrow issue was whether any reasonable Secretary of State, directing himself properly to the issues, could have come to the conclusion that there was in general no serious risk of persecution bearing in mind what was known about the position of women and the Ahmadi community.

[29]      The decision of the Court was, firstly, that it had power to review the subordinate legislation when its passing depended upon material facts available to the Minister. He must be enabled rationally to conclude that in general there was no serious risk of persecution. The Court itself was able to undertake that task and reach its own opinion. The Court then undertook the task of looking at what the evidence was on the state of affairs in Pakistan (paragraph 56). In paragraph 60-76 and paragraph 17 they examined the evidence and concluded that the designation of Pakistan on the "white list" was irrational.

[30]      The materials available to the Home Office are to be seen in paragraphs 15 and 16; and the debate in the two Houses is briefly described in paragraphs 22-25. It does not appear that the position of women was closely scrutinised.

[31]     
While on first reading it might appear that his decision is very far-reaching in my view what was actually decided was much narrower. It was accepted that there was no allegation of bad faith or suggestion that the Minister had taken leave of his senses. It all depended upon assessment of fact in the context of the enabling legislation. The important words were "... it appears to him that ..." (see paragraph 2). The view of the Court was that on the evidence it could not rationally have appeared to him that Pakistan could be designated. Thus the Designation Order was not one complying with the Act. Parliament could not amend the order as it was a matter for the Minister. The test was whether there was a serious risk of persecution and the Minister had given no reason how he could have concluded on the facts that that test was met.

[32]     
I conclude therefore that the decision in this case is narrow and is confined very much as a matter on its own facts. The importance of the case however lies in certain further analysis of when it is appropriate for the courts to intervene. Between paragraphs 40-51, and under reference to a number of earlier authorities, the limits of the right to intervene were examined. Public finance and taxation are probably not for the courts provided Statute confers a power which is exercised in an act of political judgement. However, even in this field if there was bad faith, improper motive or manifest absurdity judicial review could not be excluded. Where, in general, subordinate legislation is in issue the grant of judicial review will be rare and the Court would have to be especially cautious particularly where Parliament had an additional supervisory role. What is said in these passages leads me to the view that you can never say never to judicial review as the law now stands.

[33]      That leads me neatly to the remaining two cases which are Scottish. The East Kilbride case was looked at but not in any great detail. What was challenged was subordinate legislation in relation to reorganisation of local government boundaries. The Order had implemented the proposals of the Boundary Commission, following a properly convened inquiry under the relevant legislation. The Minister had brought in the change in advance of an impending general review. Neither of the competing local authorities had co-operated in selecting a date which best suited them. There were no averments of bad faith, improper motive or manifest absurdity. The Lord Ordinary refused to reduce the transfer order.

[34]      The importance of this case lies in the careful review of the authorities in England and Scotland on the scope of judicial review where Statute and Statutory Instruments are concerned. The Lord Ordinary points up the distinctions in the cases to show how a much wider jurisdiction is claimed in England. This is very helpful but in the present case I was not asked to make such a choice. Neither Mr Bovey nor Mr Moynihan asked me to restrict the scope of the Scottish remedy and it is not a task I would undertake myself without full argument.

[35]      That only leaves West. The facts of the case are wholly different from what is in issue here. It purely concerned a private dispute about employment. Thus judicial review was not competent. However, the case does have an importance for what was said at page 413. There appear there various passages showing the width and extent of judicial review where there is an excess, abuse or failure of jurisdiction or powers. Also there is no substantial difference between English and Scots law.

[36]      What then is the effect of the authorities and what is to be done in the present case.

[37]     
I am clearly of the opinion that the Petitioner cannot succeed for a number of reasons. While the whole argument touched on the doctrine of the separation of the powers, I am satisfied I can decide the case on narrower grounds. Assuming that the categories of judicial review are always open (West), I think that in a case which involves subordinate legislation properly presented under the parent act (as here) and debated by both Houses a very compelling case would have to be made out before I could interfere. Again, assuming that treaties, extradition and foreign policy are proper subjects for review, an even more compelling case requires to be made especially where the issues of human rights, speciality and the death penalty are all concerned. I have no knowledge of the policy behind the various designations permitted by the relevant Act. I am not in any position to form an opinion on the quality of justice in the United States or any other country. That is entirely a political matter and not one suitable for the Courts, at least on the averments before me. If I were to interfere here, as asked, there could be major unforeseen International repercussions with a friendly country.

[38]      I also attach importance to the fact that the Treaty with the United States is not part of the new Act which is in no way dependent on it. As far as this country is concerned it is the Act which rules whether that produces inequality or not. Such is the will of Parliament and there may be good reason for it. As I have said, the relevant Order is properly made under the Act. There is thus no question of ultra vires. Nor is there any statutory provision requiring anyone to be satisfied about an existing state of facts (as in Javed). It is true that the U.S. Senate has not yet ratified the Treaty but that is nothing to the point in a competition with the Act. It is of some significance to note that the "no evidence" rule applies to other countries as well.

[39]     
Next, I am satisfied that the Petition fails on its facts. It is not said that there has been bad faith or any improper motive here. It is expressly not claimed in argument that Parliament was deliberately misled about ratification. Nor could it ever be claimed that the Minister had taken leave of his senses to designate the United States. Thus the wider tests mentioned by Lord Penrose in East Kilbride are simply not put in issue here. I do not think that this kind of argument could ever be made in a case like this. The Parliamentary and other papers put before me show conclusively that the whole scheme of the new Act was "worked up" (to use the modern phrase) carefully and in detail following a number of international agreements however described. There are simply no averments in the Petition or arguments in court to raise any of these wider issues.

[40]     
I was also addressed on the precise remedy sought which is now restricted. I find this idea of partial reduction to be unattractive. In the first place it would involve two different tests for different stages of extradition involving the United States. There is no logical reason for that and to do so would interfere with the whole general scheme.

[41]     
None of the cases cited compel me to take any other view. They are all different on their facts. In Soblen there was no merit in the applicant. The Fire Brigade case turned on issues of fact and statutory interpretation and even in Javed which was much canvassed, it was easy for the Court to see how the Minister had misdirected himself on the facts by failing to take account of relevant matters. To say as much shows the difference in the present case. No issues of disputed fact are put before me to examine. It would be wholly wrong for me to interfere in foreign policy and upset a complex set of international arrangements more especially as the new Treaty with the United States has been renegotiated. To seek to challenge Parliament itself about this is a very serious matter and in my view cannot be entertained.

I wish to add one postscript. The arguments before me raised sharply the doctrine of the separation of the powers. That had its eighteenth century beginnings in England where the delicate balance in the scales between Parliament and the Judges was the envy of the civilised world; it was slowly eroded in the nineteenth and twentieth centuries due to history, war and events. Dicey and many others eloquently wrote of it. The balance swung against the Courts but in recent years with judicial review and now Human Rights the Courts especially in England have tried slowly to redress the balance. How this doctrine will fare in the "new" Scotland with its own Executive remains to be seen. The case in front of me really affects the United Kingdom. In view of what I have said in this case in the preceding pages I can add not a scruple to the Judges' side of the scales.

In the result I shall repel the petitioner's plea-in-law; sustain both the respondent's pleas-in-law; refuse the orders sought and dismiss the petition.


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