B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE AULD
THE HONOURABLE MR JUSTICE PITCHERS
|| 1) CHARLES FERNANDES
2) ROY FERNANDES
3) ANTHONY TRAVASSO
||- and -
||1) THE GOVERNOR OF H.M. PRISON BRIXTON
2) THE COMMONWEALTH OF THE BAHAMAS
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Mr John Hardy (Instructed by Christmas & Sheehan) for the First Applicant
Mr James Hines (instructed by Hallinan Blackburn Gittings & Nott ) for the Second Applicant
Mr Julian Knowles (instructed by TNT Solicitors) for the Third Applicant
Miss Helen Malcolm (instructed by CPS) for the Respondents
HTML VERSION OF JUDGMENT
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Lord Justice Auld :
- Charles Fernandes, Roy Fernandes and Anthony Travasso apply for writs of habeas corpus in respect of their detention pursuant to an order of District Judge Nicholas Evans at the Bow Street Magistrates' Court on 13th October 2003, committing them on bail to await the decision of the Secretary of State for the Home Department in respect of requests by the Government of the Bahamas for their extradition for offences of unlawful sexual intercourse with a girl under the age of 16.
- At the material time the three men were employed as waiters on the "Sundream", a cruise ship registered in the Bahama Islands, while it was cruising in the Baltic, off the coast of Russia. The only evidence on which the Government of the Bahamas relied in support of its request was that of the complainant, a 14 year old girl, who was travelling on the ship with her mother, and of Mr Bernard Swift, the ship's director of security, who questioned each of the three men shortly after the alleged incidents. The Bahamian Government seemingly did not have, and/or did not seek to rely on, any scientific evidence.
- The complainant alleged that, shortly after midnight on 26th August 2002, each of the three men had had sexual intercourse with her in a crew cabin on the ship. When she came to make a witness statement she gave vague descriptions of each of them, but did not identify any of them. Her account was as follows. She was a passenger, travelling on the ship with her mother. She asked Charles Fernandes for some beer. In breach of the rules of his employment, he invited her into his cabin, where also were his brother, Roy Fernandes, and Anthony Travasso. Once inside Charles Fernandes locked the door and gave her a can of beer. She then asked to leave. One or other of the three men told her that she would have to wait because there was someone in the corridor outside, it being a disciplinary and probably "sackable" offence for a passenger to be in their crew quarters. Charles Fernandes began to kiss her, and she again asked to leave. He persisted and, despite her struggles, he had sexual intercourse with her, also trying without success to persuade her to perform oral sex on him. After he had finished she tried to leave the cabin. But then Roy Fernandes pulled her back, and he too had sexual intercourse with her, notwithstanding her struggles. Then Anthony Travasso in his turn did the same thing. During his act of intercourse with her, she was crying practically screaming "No". They then allowed her to leave the cabin, one of them giving her two cigarettes as she did so.
- The complainant went immediately to some friends on board and told them what had happened. She also reported the incident to an assistant purser, with the result that, at about 2.15 a.m. the same night a nurse saw her and a doctor examined her.
- Meanwhile, in the early hours of the same morning, Mr Swift interviewed the applicants separately, in each case without caution or in the presence of a friend or adviser and without taking any contemporaneous note. His evidence was as follows. Charles Fernandes admitted having had sexual intercourse with the complainant in his cabin, stating that he had thought she was about 17 and that the intercourse was consensual. The other two admitted that they had been present in the cabin during that act of sexual intercourse, but denied having had intercourse with her themselves. Mr Swift gave oral evidence to this effect in his deposition at the committal hearing (and in accordance with summaries he had written after the interviews, which the applicants had signed), and was cross-examined by counsel on behalf of each applicant. It emerged in cross-examination that he had said to them "You're in big trouble, you could lose your jobs, you had better tell me about it". He also stated in evidence that, as crew members, they had been under a duty to co-operate with his investigation and that dire consequences could have followed if they had remained silent, which they should have, but may not have, known at the time. The effect of this evidence coupled with the lack of a caution or anyone present to support or advise them, it is said on their behalf, was to bring improper pressure on them to answer his questions and to have breached Code C of the Police and Criminal Evidence Act 1984 ("PACE") in a number of serious respects, such as to render it inadmissible under section 76 or to require its exclusion under 78 of the Act.
- The three men were detained in this country on 31st August 2002 when the ship returned to port here at the end of its cruise. They were initially detained in relation to immigration matters, and then arrested and detained on 3rd September 2002 on a provisional warrant issued by the Bow Street Magistrates' Court pursuant to section 8(1)(b) of the Extradition Act 1989 ("the 1989 Act").
- The committal proceedings, which were originally based on charges of rape, began at Bow Street Magistrates' Court on 3rd February 2003. Following adjournment of that hearing and of a number of further hearings, the Court, on 13th October 2003, committed each of the three men on bail on a charge of unlawful sexual intercourse with a girl under the age of 16, the Government of the Bahamas having abandoned the original charges of rape. In the course of the extradition proceedings the three men raised two main issues: first as to the credibility of the complainant; and second as to the admissibility of Mr Swift's evidence of his interviews of them.
- The case for the Government of the Bahamas was that Charles Fernandes' admission of presence and of having had sexual intercourse with the complainant is true and that the other two's admissions of presence are also true, but that their denials of sexual intercourse are untrue. The Government conceded that, without Mr Swift's evidence of those admissions in his interviews of the three men, there would have been insufficient evidence to support the request for extradition of any of them. No identification procedures had been followed and there was no independent or scientific evidence to support the complainant's account.
- The case of Roy Fernandes and Anthony Travasso was, in part, that the District Judge unfairly refused to permit cross-examination of the complainant (who, unusually for such proceedings had been required to attend the proceedings to verify a video-tape of her interview standing as her evidence in chief). And the case of all three complainants was and is that the admissions were confessions within the meaning of section 82(1) of PACE and were inadmissible under section 76 of that Act as a result of oppression (not argued on behalf of Charles Fernandes) and/or because the circumstances in which they were allegedly made rendered them unreliable.
- There were thus two principal issues: first, the credibility of the complainant; and second, the admissibility of the admissions, in the case of Charles Fernandes, of having had sexual intercourse with the complainant, and in the case of the other two, as to their presence in the cabin at the time.
- As to the credibility of the complainant, the District Judge heard and saw her evidence in chief, given by way of a video-taped recording in September 2003, a procedure now apt in this country for taking the evidence of vulnerable witnesses. Counsel on behalf of Roy Fernandes and Anthony Travasso applied for permission to cross-examine her. First, they wanted to cross-examine her about the allegations themselves, principally to explore inconsistencies in accounts she had given to various people shortly after the incident and to contrast them with her video-taped evidence. Second, they wanted to cross-examine her as to her credibility, on the strength of information disclosed to the District Judge and to them by another shipping company, P & O, of a "log" of complaints made against her and her mother when passengers on one of its cruise ships. They suggested that this record, if put before the court through the medium of cross-examination of the complainant, would show that she had a predisposition to initiating sexual encounters with crew members on cruises and then making false allegations against them.
- As I have indicated, the District Judge, unusually for such proceedings, permitted the Government of the Bahamas to call the complainant to give oral evidence. He did so, as he explained in his ruling, because it had omitted to obtain from her, as part of her sworn statement verifying her account in the video-taped interview, an assertion that it was true. Thus, her presence at the committal proceedings and oral evidence via video-link were necessary to make good a technical, but critical, deficiency in its case. However, the District Judge refused to allow cross-examination of her for two main reasons. First, she was, by reason of her age and the nature of her complaint, a vulnerable witness whom, if the proceedings had been domestic, he would have had no power to allow to give oral evidence. (see paragraph 33 below for the relevant statutory provisions). But that, even if he had such power, and whether or not it was accompanied by the discretionary power to follow the regime for cross-examination as to credit of a complainant of a sexual offence provided by section 41 of the Youth Justice and Criminal Evidence Act 1999 ("the 1999 Act"), he had a general common law power whether or not to permit cross-examination for whatever purpose. In the exercise of that power and discretion, he ruled against cross-examination in order to protect her, as a vulnerable witness. It is clear from his remarks in doing so that he was confident that cross-examination of her could not have persuaded him that this was not a case, in the words of section 9(8) of the 1989 Act "sufficient to make a case requiring an answer
if the proceedings were the summary trial of the" alleged charge. He expressed the view that the inconsistencies in her accounts on which counsel for the applicants had relied, were "peripheral" and that the weight of them was a matter for the court of trial. And, as to the material in the P & O file going to the complainant's conduct on another cruise, he held that it was not admissible as evidence, and that, to the extent that it could be relied on for use in cross-examination of the complainant, its value was speculative and not to be determined at the stage of committal.
- As to the admissibility of Mr Swift's evidence of the interviews, counsel for the applicants submitted that the District Judge should rule it inadmissible under section 76 or exclude it under section 78 of PACE, because of the coercive nature of the interviews and breaches of the basic protections given by Code C issued pursuant to section 66 of that Act. Those submissions, if successful, would necessarily have resulted in the District Judge having to rule that none of the applicants had a case to answer, because, without it, there was no evidence of identification.
- The District Judge rejected those submissions, holding that Code C did not apply since the ship was registered in the Bahamas and thus these were not domestic proceedings, and that, though section 76 could be engaged in extradition proceedings, it was only in rare cases of which this was not one. He also ruled, in the alternative, that if section 76 had applied, he would have held that the Bahamian Government had satisfied him that the admissions were not obtained by oppression nor in circumstances that rendered them unreliable. As to section 78, he acknowledged that it applied to the circumstances, but with a higher threshold for intervention indicated by Lord Hoffmann in R v Governor of Brixton Prison, ex p Levin,  AC 741 (see below, paragraphs 55-57) so as to require exclusion only where to admit the evidence would "outrage civilised values", a threshold, which he held, was not surmounted on the facts of this case.
- The District Judge also rejected the application on behalf of Anthony Travasso for an adjournment to enable his legal representatives to investigate and, if so advised, to call scientific evidence as to the absence of DNA evidence in the cabin incriminatory of him.
The legal framework for extradition
- Liability to extradition to the Bahamas arises under sections 1(2) and 5(1) and Part III of the 1989 Act, the country having been designated as a Commonwealth country for the purpose of those provisions by the Extradition (Designated Commonwealth Countries) Order 1991 (S.I. 1991 No 1700).
- Section 7 of the 1989 Act is the foundation for a District Judge's jurisdiction to conduct an extradition committal proceeding; see Re Nielsen  1 AC 606, at 619 (with reference to the comparable provisions section 7 of, and Sch 2 to, the Extradition Act 1870) and Rees v SSHD  1 AC 937, at 960F-961D (with reference to s 7 of the 1870 Act). It makes distinct provision for such jurisdiction according to whether request is in respect of a person who is accused of an extradition offence or of one who has been convicted of such an offence. It provides, so far as material:
a person shall not be dealt with under this Part of this Act except in pursuance of an order of the Secretary of State
. (in this Act referred to as an 'authority to proceed')
issued in pursuance of a request (in this Act referred to as an 'extradition request') for the surrender of a person under this Act
(2) There shall be furnished with any such request
(a) particulars of the person whose return is requested;
(b) particulars of the offence of which he is accused or was convicted
(c) in the case of a person accused of an offence, a warrant or duly authenticated copy of a warrant for his arrest issued in the foreign state, Commonwealth country or colony
(d) in the case of a person unlawfully at large after conviction of an offence, a certificate or a duly authenticated copy of a certificate of the conviction and sentence,
(4) On receipt of any such request the Secretary of State
may issue an authority to proceed
(5) An authority to proceed shall specify the offence or the offences under the law of the United Kingdom which it appears to the Secretary of State
would be constituted by equivalent conduct in the United Kingdom.
- Following the issue by the Secretary of State of an authority to proceed pursuant to an extradition accusation request the committal proceedings are heard by a designated District Judge, normally sitting at Bow Street Magistrates' Court.
- The offences that the Secretary of State may specify under section 7(5) must be "extradition crimes". These are defined, so far as material, in section 2 of the 1989 Act in the following way:
"(1) In this Act, except in Schedule 1, 'extradition crime' means
(a) conduct in the territory of a foreign state, a designated Commonwealth country, a colony
which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of 12 months, or any greater punishment, and which, however described in the law of the
, is so punishable under that law;
(b) an extra-territorial offence against the law of a foreign state, designated Commonwealth country or colony
which is punishable under that law with imprisonment for a term of 12 months, or any greater punishment, and which satisfies-
(i) the condition specified in sub-section (2) below;
(2) The condition mentioned in subsection (1)(b)(i) above is that in corresponding circumstances equivalent conduct would constitute an extra-territorial offence against the law of the United Kingdom punishable with imprisonment for a term of 12 months, or any greater punishment.
(4) For the purposes of this Act, except Schedule 1 -
(b) conduct in a colony or dependency of a foreign state or of a designated Commonwealth country, or a vessel, aircraft or hovercraft of a foreign state or of such a country, shall be treated as if it were conduct in the territory of that state or country."
- As will shortly appear, the distinction between an "intra-territorial" offence specified under section 2(1)(a) and an "extra-territorial" offence specified under section 2(1)(b) has some importance in the first issue in this case, which goes to the validity of the authorit[ies][y] to proceed issued by the Secretary of State.
- The test for committal in an accusation extradition request from a designated Commonwealth country is now set out in section 9(8)(a) and 9(2) of the 1989 Act, as amended by section 158(5)(d) of the Criminal Justice and Public Order Act 1994. Prior to that amendment, section 9(8) required the District Judge to be satisfied "that the evidence would be sufficient to warrant his trial if the extradition crime had taken place within the jurisdiction of the court". Section 9(2) conferred on the District Judge the like jurisdiction and powers, as nearly as may be "as a magistrates' court acting as examining magistrates". Now, section 9(8)(a) requires a District Judge to be satisfied that "the evidence would be sufficient to make a case requiring an answer by that person if the proceedings were the summary trial of an information against him". And section 9(2) confers on him "the like powers, as nearly as may be
as if the proceedings were the summary trial of any information against him".
- As Section 9(8) bears on all three issues raised by these claims and section 9(2) is central to the second and third issues, namely the District Judge's refusal to permit cross-examination of the complainant and to exclude the evidence of Mr Swift, I had better set out both provisions so far as material. Section 9(8) provides:
"Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any representations in support of the extradition request or on behalf of that person, that the offence to which the authority to proceed relates is an extradition crime, and is further satisfied"-
(a) where that person is accused of the offence
that the evidence would be sufficient to make a case requiring an answer if the proceedings were the summary trial of an information against him;
(b) where that person is alleged to be unlawfully at large after conviction of the offence, that he has been so convicted and appears to be so at large,
the court, unless his committal is prohibited by any other provision of this Act, shall commit him to custody or on bail
(i) to await the Secretary of State's
decision as to his return; and
(ii) if the Secretary of State decides
that he shall be returned, to await his return."
And section 9(2) provides:
"For the purposes of proceedings under this section a court of committal in England and Wales
shall have the like powers, as nearly as may be
as if the proceedings were the summary trial of an information against [the person arrested under the warrant issued under section 8 of the Act]."
The authorit[ies][y] to proceed
- In respect of each applicant the Secretary of State issued two authorities to proceed, neither of which he has withdrawn. The first, asserted that the applicant(s) were "accused of conduct in the jurisdiction of the Bahamas, which appears to the Secretary of State to be conduct which, had it occurred in the United Kingdom, would have constituted offences of rape, sexual intercourse with a girl under 16 and indecent assault". The second asserted that the applicant(s) were "accused of conduct in the jurisdiction of the Bahamas, which appears to the Secretary of State that in corresponding circumstances the equivalent conduct would constitute extra-territorial offences against the law of the United Kingdom, namely rape, sexual intercourse with a girl under 16 and indecent assault". The applicant[s], through their legal representatives, invited the Government of the Bahamas to "elect" which of the authorities it relied upon to found the District Judge's jurisdiction, but the Government declined to do so, indicating its view that the second was merely a clarification of the first. The District Judge did not indicate in any of his rulings whether he distinguished between the two so as to indicate whether he proceeded on one rather than the other, save in relation to the application of Code C and section 76 of PACE in connection with the issue of admissibility of Mr Swift's evidence in respect of which he applied only the former (see paragraph 63 below).
- Mr Hardy, on behalf of Charles Fernandes, whose submissions were supported by Mr James Hines on behalf of Roy Fernandes and Mr Julian Knowles on behalf of Anthony Travasso, submitted that the Secretary of State was not entitled to proceed on two or any one of the two authorities issued on different jurisdictional bases. He relied on an agreed order in R v SSHD, ex p Lezziero in 2000 (CO/3983/2000 unreported) in which the Secretary of State conceded that he could not proceed on the basis of two mutually exclusive requests in relation to the same offence, the first based on an accusation and the second a conviction. He also relied on a ruling of the House of Lords in R (Guisto) v. Governor of Brixton Prison & Anor.  1 AC 101 in which, although the single authority was in respect of an accusation, the Court held that the District Judge wrongly decided to deal with it as if it had been based on a conviction in contumacy.
- Mr Hardy sought to derive from those two cases the proposition that the Secretary of State was not entitled under section 2 of the 1989 Act to issue one authority to proceed asserting that the applicant[s] was accused intra-territorially of an offence, and another asserting that he was accused of committing the same offence extra-territorially, certainly where, as here, it was not suggested that there was any overlap in the way in which the offence had been committed. He added, in reliance on a decision of this Court in R v DPP, ex p Thom, 23rd November 1994 (CO/2894/94), that the Secretary of State has no power to withdraw an order or authority to proceed, so that, while he can issue a second one specifying further offences, he cannot do so to "change the jurisdictional goal posts" for the first.
- Mr Hardy emphasised that this is not a complaint about an academic or technical trifle. He said that the jurisdiction of the District Judge is founded on the authority to proceed; he is not at liberty to elect between two mutually exclusive authorities, the second of which the Secretary of State had no jurisdiction to issue while the first was still current. He maintained that, in the circumstances, the second authority could not be passed off as merely "clarificatory" and that, had the matter proceeded as it should have done under the first authority, the District Judge would have been bound to conclude that it did not relate to an extradition crime as defined by the 1989 Act because it alleged intra-territorial offences, whereas in fact and in law the offences, if committed, were committed extra-territorially. In short, he submitted that section 9(8) of the 1989 Act provides for two separate jurisdictions identified respectively in section 2(1)(a) and 2(1)(b) and (2) of the Act, which cannot be construed conjunctively or applied disjunctively, while both remain in force.
- Miss Helen Malcolm, on behalf of the Secretary of State, submitted that he often has occasion to issue two authorities to proceed, for example, where it is unclear at the start whether the fugitive is an accused or is the subject of a conviction. Or there may be uncertainty as to whether the conduct in question occurred extra-territorially or within a domestic jurisdiction, or both, for example, in the case of a conspiracy, or in the case of an offence on board ship, as to whether it began in international waters and concluded in port. In this case, she submitted, by virtue of section 2(4)(b) of the 1989 Act (see paragraph 19 above), the alleged offence could be said to have taken place "in the territory of" the Bahamas under section 2(1)(a) of the Act, or to be punishable extra-territorially under section 2(1)(b)(i) and 2(2) of the Act. Miss Malcolm also pointed out that there has been no application for judicial review of the Secretary of State's decision to issue the second authority to proceed, which was dated 1st February 2003, shortly after the start of the committal proceedings. However, her main submission was that the District Judge plainly had jurisdiction so long as there was a valid order to proceed covering the conduct in question.
- In my view, the only possible basis on which the applicants could seek to unseat these extradition proceedings on the basis of the co-existence of two authorities to proceed would be if they were mutually inconsistent and the Secretary of State had not indicated by election before the time of disposal of the matter by the District Judge upon which authority he relied. The concession made by the Secretary of State in Lezziero is no authority in law or or in logic to the contrary. As Miss Malcolm argued, there must be many cases in which the information initially provided to the Secretary of State in the form of a request, and on the strength of which he issues an authority to proceed, is later found to be incorrect or to have changed with the passage of time, necessitating a further request, prompting a further authority to proceed on a different or alternative basis. It cannot sensibly be the case nor is it required by the 1989 Act that the second authority is invalid because of the existence of the first which, for one reason or other was issued on the wrong, or possibly insufficient, basis, or on facts that have ceased to exist. Nor is Guisto any authority to the contrary; it concerned a quite different issue of a District Judge disregarding the basis of the single authority to proceed and disposing of the matter on a different basis.
- It follows, in my view, that it is immaterial whether the Secretary of State has power to "withdraw" one of two inconsistent authorities so as to remove the apparent inconsistency provided that he has made plain on which one he wishes the court to proceed. In addition, I do not read Thom as an authority for the supplemental proposition of Mr Hardy that the Secretary of State has no such power. That was a case in which the Secretary of State, having issued two authorities to proceed in respect of different offences alleged against an ailing 85 year old man, took the view that he had no authority to halt extradition proceedings that had been issued in reliance on them. Glidewell LJ, with whom Curtis J agreed, said at page 12B-F of the transcripts:
Although the Secretary of State has power to issue a second Order, it does not follow that he necessarily, or, indeed, at all, has power to reconsider an Order he has already made under paragraph 4(2) [cf Sch 1 to the 1989 Act, the corresponding provision of Part III of which is 7(4) of the Act]. I can find in the legislation, and the scheme of the legislation, no warrant for the proposition that he does have such a power. It may or may not be that he has a general discretion to decline to make an Order under paragraph 4(2). The expressed provision in paragraph 4(3), that he may refuse to do [so] if he is of the opinion that the offence is of a political character, is a pointer towards him not otherwise having the discretion under paragraph 4(2). But it is not necessary to decide that for the purposes of this case."
The reason why determination of the issue was not necessary was because, as Glidewell LJ went on to say, adopting the reasoning of Roch LJ in In re Scmidt  3 WLR 228, at 236, that judicial review was premature because the Secretary of State ultimately had a discretion whether to decline to order the return of the fugitive criminal under paragraph 8(2) of Schedule 1 to, or section 13 of the 1989 Act (cf s 12(1) and (2) in Part III), which would then be susceptible to challenge by way of judicial review. Moreover, as Miss Malcolm pointed out, if the inclination of Glidewell LJ in Thom were correct, the result would be that anyone arrested pursuant to the first of two authorities would have to seek judicial review of the Secretary of State's decision to return the fugitive. If such claim succeeded, the requisitioning state could then "start again" in reliance on the second authority.
- All that the District Judge is concerned with is whether the case based on the request and authority is made out. It should be noted that, in the present case, none of the applicants has sought to challenge, by way of judicial review, either of the extant authorities to proceed.
- However, and more to the point, this is not a case of mutually inconsistent or exclusive authorities to proceed requiring an election from the Secretary of State to enable the District Judge to determine the jurisdictional basis on which he had to proceed. It is simply one of the Secretary of State specifying under section 7(5) of the 1989 Act (see paragraph 17 above) an offence that, in the circumstances, satisfies both or one or other of both definitions of an "extradition crime" contained in section 2 of the Act, the first in the intra-territorial form specified section 2(1)(a) of the 1989 Act, and the second in the extra-territorial specified in section 2(1)(b) and (2) of the Act. As Miss Malcolm pointed out, the alleged offence of unlawful intercourse with a girl under the age of 16 is the same as or similar to an offence specified in section 11(1) of the Bahamian Penal Code. And, by section 2(4)(b) of the 1989 Act (see paragraph 19 above) conduct alleged to constitute an offence for this purpose committed on a vessel of the Bahamas is to be treated as if it were conduct in the territory of the Bahamas. In addition or alternatively, by virtue of the same provision in the Bahamian Penal Code, it is also clearly an extra-territorial extradition crime as defined in section 2(2)(b) and (2) of the Act in that equivalent conduct in this country would be similarly punishable here.
- Just as there may be two authorities to proceed where the first may not specify the whole of the alleged criminality in respect of which the extradition request is made, so also may there be more than one if, for any reason, the Secretary of State wishes to make sure that, if the relevant statutory provision of the requesting state and this country are not sufficiently of a piece to be identical for the purpose of meeting the intra-territorial definition of extradition crime in section 2(1)(a), they would certainly meet the requirements of equivalence for the purpose of meeting extra-territorial definition under section 2(1)(b) and (2). Either way, the District Judge has jurisdiction to proceed under section 7 of the Act and commit if the evidence satisfies, in relation to the alleged offence, the test in section 9(8) of requiring an answer from the person accused if the proceedings were the summary trial of the charge alleged.
Cross-examination of the complainant
- It was common ground that, under the transfer proceedings introduced by section 53 of the Criminal Justice Act 1991 ("the 1991 Act) for sexual offences and offences involving violence or cruelty against children, and under sections 5A-F of the Magistrates Courts Act 1980 (inserted by the Criminal Procedure and Investigation Act 1996 ("the 1996 Act"), s 47 and Sch 1) confining evidence in domestic committal proceedings to written form, the opportunity for examination in chief, never mind cross-examination, of a complainant such as this would not arise before trial. In addition, in any domestic criminal proceedings for such offences, by virtue of section 41 of the 1999 Act, no question may be asked in cross-examination of a complainant of such an offence about his or her sexual behaviour without the leave of the court. This provision widened an earlier provision in the Sexual Offences (Amendment) Act 1976, which was confined to complaints of rape, and which had, of course, applied in the days before the 1991 Act when prosecutions for sexual offences ordinarily reached the Crown Court by way of committal proceedings. Despite the fact that that is no longer the case, section 42(3) of the 1999 Act, includes, in the various proceedings to which section 41 applies in addition to a trial, committal proceedings before examining justices.
- The reason for the complainant being present at all to give oral evidence by live video link was, as I have said, solely to correct a technical error by the Government of the Bahamas in failing to invite her to verify by way of a sworn statement that her video-taped interview, standing as her evidence in chief, was true.
- The District Judge, in the course of his ruling refusing permission to cross-examine the complainant, said, as to the alleged inconsistencies in her various account:
"I have seen these accounts and they are consistent in the sense that she has said that three people had sexual intercourse with her, but these are undoubtedly peripheral differences. The weight of those discrepancies, when highlighted, is in reality, a matter for the court of trial."
And as to that request and the further one to cross-examine her on the disclosures of her conduct on the P & O cruise, he said:
"There is no doubt that had these been wholly domestic proceedings, there would have been no power at all that would have allowed the defence to have cross-examined the girl in the Magistrates' Court. There is a recognition that vulnerable witnesses need assistance in giving evidence.
(1) this witness is undoubtedly vulnerable by reason of her age, and
(2) by reason of the fact that she is said to have been the victim of sexual assault.
Measures have been incorporated into domestic law to assist vulnerable witnesses and to prevent them from being subjected to court procedures that aren't essential. In essence they should give evidence on one occasion and not have to endure a trial run and be subjected to cross-examination on two occasions.
Given the particular circumstances of this case and the circumstances which give rise to her coming to court today to give evidence, I have to decide whether I should allow cross-examination by the defence on either topic, that is either on the charges that they face, or on the P & O file. I have concluded that as a vulnerable witness, this court should protect her from cross-examination and so I propose not to allow any cross-examination by the defence on any topic.
If the defence choose at some point in these proceedings, as they are entitled to, give, or to call evidence, this court would have to consider such evidence in the light of the unchallenged evidence of the girl and conclude whether or not her evidence was completely undermined. If I concluded that it was completely undermined, the court would so indicate. But I am not prepared to permit what would inevitably be lengthy cross-examination as the issues relating to the particular offence with a view to establishing that the girl cannot be believed when she said that she had intercourse with three men in the cabin. For the purposes of these proceedings, I regard the events in the P & O files as being irrelevant.
There have been technical arguments as to whether or not Section 41 of the Youth Justice and Criminal Evidence Act 1999 has any application to these proceedings. It has been argued by the defence that it does not as this is not a trial but an extradition committal hearing. Whether it does or not, I have a common law power. For the reasons that I have given, I have concluded that I shall not permit any cross-examination."
- Mr Hines and Mr Knowles, supported by Mr Hardy, submitted that the District Judge erred in law in refusing to permit cross-examination of the complainant. They maintained that: 1) fairness demanded that where, as here, the requesting state called her to give oral evidence, the applicants should have been given an opportunity, through their counsel, to cross-examine her; 2) the analogous domestic provisions do not apply in the context of an extradition committal, and that the District Judge's comparison with domestic committal proceedings is, in any event, no longer apt since the amendment of section 9(8)(a) of the 1989 Act following the effective abolition by the 1991 Act of committal proceedings for most such offences; 3) the proper comparison is with a summary trial in which cross-examination would have to be permitted; 4) while the District Judge was entitled to restrict cross-examination to matters relevant to his consideration, he was not entitled to prohibit cross-examination altogether; and 5) if and to the extent that the District Judge had a discretion to exclude cross-examination, his exercise of it was perverse in the circumstances of the case, namely the already strong indications on the material before him of the complainant's unreliability. In summary, they submitted that where, as here, the requisitioning government calls oral evidence in an extradition committal, the defence is entitled, as of right, to cross-examine on the main issue and as to credibility.
- Mr Knowles also complained in this context of the District Judge's refusal to permit an adjournment for a DNA examination of certain articles in the ship's cabin in which the offences are alleged to have taken place for traces. He maintained that the effect of both refusals was to deny Anthony Travasso advancing any meaningful defence to the extradition proceedings.
- Miss Malcolm, in response to those submissions, pointed out what was common ground, namely that in the ordinary course of extradition proceedings, there would be no possibility of cross-examination of a witness upon whose evidence the requesting government relies. She added that there was no reason of law or of policy why cross-examination should be permitted in such proceedings, particularly involving a vulnerable witness as the complainant, even in the unusual circumstances of this case.
- As to the District Judge's refusal to allow an adjournment for Anthony Travasso's representatives to conduct DNA tests, Miss Malcolm pointed out that the request was made very late in the course of already long delayed proceedings and that any report, even if it were wholly favourable to the defence in the sense of establishing a negative, would not significantly advance his claim of innocence. In the circumstances, she maintained, the District Judge's exercise of discretion not to permit a further adjournment for that purpose, cannot be faulted.
- In my view, the criticisms of the District Judge for refusing to allow cross-examination of the complainant either as to the facts of the matter or as to her credibility based on the P & O disclosures have no basis in law or in fact.
- On the general point of fairness, this is a case in which the Bahamian Government would not have required the complainant to attend to give live evidence but for its omission to secure formal verification in a sworn written statement of the complainant's video-taped interview standing as her evidence in chief. If the matter had been dealt with by a sworn statement to like effect, her attendance would have been unnecessary and the question of cross-examination of her would not have arisen. The only live evidence in chief that she gave was to remedy that technical omission; she was not asked to, and did not, elaborate on her video-taped account of the alleged offences. I can see no unfairness on that account in denying the applicants' counsel the opportunity to cross-examine her in law on the substance of her video-taped evidence or as to her sexual past.
- It is true that the test for the District Judge is now whether the requesting government's case would call for an answer if the proceedings were a summary, trial and not, as formerly, whether the evidence would warrant trial. But the difference, if any, in practice between the two tests is minimal; in both the exercise is one of determining whether there is a prima facie case. And the legal position and the reality are that extradition proceedings are not a trial, as necessarily follows from the deeming re-formulation of section 9(8)(a). They are a contingent preparation for a trial before another tribunal, albeit in another jurisdiction. In my view, it follows that District Judges should be wary before embarking on the trappings of a trial, in particular the testing of credibility of complainants by reference to alleged inconsistencies in their accounts and to their previous conduct, lest they offend the principles of comity and reciprocity that give rise to this jurisdiction and pre-empt the function of the court of the state seeking extradition. That is especially so where, as in this case, the District Judge is concerned with a vulnerable witness, and one who would have the additional protection, if the matter of guilt as distinct from extradition were triable here, of not being cross-examined about her sexual past without the permission of the Judge. Those protections are not particularly remarkable against the burgeoning concern in common law jurisdictions all over the world of regard for alleged victims and for witnesses, as well as the accused, in the trial process. It is at the very least a matter within the discretion of the District Judge, and I can see no reason why he should not, as an aid to the exercise of that discretion, have regard to what, in the rare, if any, cases in which it would now arise, the way in which he would have felt compelled to deal with the matter in domestic committal proceedings.
- Finally, notwithstanding the scope on the material before the District Judge, for challenging and otherwise investigating the complainant's credibility if it were a trial of the matter, I do not consider that it could be said that his decision not to permit cross-examination was perverse. He was, in my view, entitled at common law and within the proper bounds of his discretion to conclude that the complainant deserved protection at that stage from lengthy and probing cross-examination of her account and as to her past, and that the inconsistencies of detail in the former were peripheral.
- As to the District Judge's refusal to allow an adjournment for Anthony Travasso' representatives to carry out DNA tests, I agree with Miss Malcolm that the value to his case of the establishment of a negative in that respect was minimal, certainly on the issue of whether he had a case to answer. On that account, and given the lateness of the application in these prolonged proceedings, it was a decision which, in my view, was well within his discretion.
Admissibility of Mr Swift's evidence
- I have set out at paragraph 22 above, the provisions of section 9(8)(a) and 9(2) of the 1989 Act containing the test for an accusation request from a designated Commonwealth country, such as the Bahamas.
- It is common ground that, if Mr Swift's evidence of the admissions that he alleged each of the applicants had made to him had been excluded, there would have been no prima facie case against any of them.
- Ordinary domestic rules of evidence apply to evidence adduced by way of authenticated documents in extradition proceedings relating to a person whose return has been requested by a designated Commonwealth country, which are implicit in the statutory test for extradition in an accusation request in section 9(8)(a) of the 1989 Act. Thus, the relevant authentication provision section 27 of the 1989 Act makes documents "admissible" or "receivable", but does not of itself make their contents admissible in evidence, for example hearsay, unless it qualifies as an exception to the hearsay rule; see e.g. R v. Governor of Pentonville Prison, ex p Kirby  1 WLR 541, in relation to comparable provisions in the Fugitive Offenders Act 1967. The critical question, on the issue of admissibility of Mr Swift's evidence of the applicants' admissions, is, it seems to me, as to the applicability of Code C of PACE. There is clear authority, to which I refer below, that section 78, which requires a judgment - or as it is sometimes put - the exercise of a discretion, as to fairness, applies to extradition proceedings, albeit in a modified form and notwithstanding that, since April 1999 it has not applied to domestic committal proceedings. In my view, it follows, a fortiori, that section 76, which notionally (see paragraph 57 below) does not provide a discretion but rather requires the court to exclude a "confession" that it is not satisfied was voluntary, that is, not obtained by oppression or in other circumstances likely to render it unreliable. The difficult question is the extent to which, if at all, a District Judge in extradition proceedings should inform his decision under either of those provisions by reference to Code C and its jurisprudential overlay.
- Although the provisions of sections 76 and 78 of PACE are well known. I should, as a matter of convenience set out them out here, as well as those of section 82(1), defining a section 76 confession for this purpose. Section 76, so far as material, provides:
"(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained
(a) by oppression of the person who made it;
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."
"Oppression" for this purpose means "the exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors etc, or the imposition of unreasonable or unjust burdens; see R v Fulling  QB 426, CA per Lord Lane CJ at 432.
- Section 82(1) provides that a
'confession' includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and made in words or otherwise"
- I should note here that it is common ground that the admissions of all three applicants to Mr Swift amounted to confessions for the purpose of section 76. Charles Fernandes' acknowledgement of sexual intercourse with the complainant, despite his explanation that he thought she was 17, was a statement at least "partly adverse" to himself as provided by section 82(1) of PACE, in particular because it identified him as one of the men who committed an essential constituent of the offence charged. Similarly, Roy Fernandez's and Anthony Travasso's acknowledgments that they were in the room at the time, puts them close enough to satisfy the section 82 definition; cf R v Doolan  Crim LR 747.
- Section 78 provides so far as material:
"(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(3) This section shall not apply in the case of proceedings before a magistrates' court inquiring into an offence as examining justices. "
- I should also refer to the provisions of PACE giving effect to Code C and, briefly, to some of its requirements relevant to this case. The Code is issued by the Secretary of State pursuant to sections 66 and 67 by order made by statutory instrument. And, by section 67(9), it governs, not only police officers in their investigation of offences, but also other persons "charged with the duty of investigating offences or charging offenders". However, the Code itself is not itself subordinate legislation, and evidence obtained in breach of any provision or provisions in it does not necessarily give rise to its exclusion. By section 67(11) a court or tribunal "[i]n all criminal and civil proceedings" is required to take the Code into account if it considers that it is relevant to any question arising in the proceedings. It is thus a matter for the court's discretion in considering whether to exclude the evidence under sections 76 or 78 or at common law. To justify exclusion, "the breach must be "significant and substantial", and the more so, the more likely the judge is to exclude the evidence" (see Archbold, current edition, paragraph 15-15) and the authorities there cited). Examples of breaches of Code C which are likely to lead to the exclusion of a confession as likely to render it unreliable under section 76 or as unfair under section 78 are a failure to caution, improper denial of access to a legal representative or failure to record an interview. Before looking at the jurisprudence on the extent of the application of these provisions to extradition proceedings, I should summarise the basis of the applicants' case on this issue.
- As I have indicated, the applicants made admissions to Mr Swift in interview as to their presence at the scene sufficient to identify themselves as the complainant's alleged attackers and, in the case of Charles Fernandes, of his having had sexual intercourse with her. As I have also indicated, they put in issue the admissibility of those admissions before the District Judge, and do so again in these proceedings. Their principal case is that the interviews were governed by section 76 and that their admissions should have been excluded as "confessions", as defined in section 82 of the 1989 Act, namely as made "wholly or partly adverse" to themselves, because they had been obtained, in the cases of Roy Fernandes and Anthony Travasso, by oppression, and in the cases of all three of them, in circumstances likely to render them unreliable. They relied in the alternative on section 78. And, under both provisions, they relied on Mr Swift's non-compliance in his interviews of them with the requirements of Code C, inter alia, his failure to caution them coupled with a contra-indication that they were obliged to answer his questions, his failure to ensure that they had the support of, at least, a third party, and his failure to record the interviews contemporaneously. And, independently of Code C, they all relied on well known authorities going to the fundamental importance of the right against self-incrimination, now finding expression, as Lord Griffiths said in Lam Chi-ming v R, in section 76 of PACE, see e.g: John Murray v United Kingdom (1996) 22 EHRR 29; and Saunders v United Kingdom (1997) 23 EHRR 313.
- Counsel for all three applicants drew attention, in particular, to Mr Swift's failure to warn them that they had the right to remain silent, that is, not to incriminate themselves and the compulsion exercised by him, which they suggested resulted from the differences between his position of authority and theirs as lowly crew members to answer his questions. Picking up Lord Hoffmann's words in ex p Levin, (see paragraph 57 below), Mr Hines submitted that not to exclude these interviews would "outrage civilised values". He said that Roy Fernandes and his fellow applicants were poorly paid Indian crew members, on board a foreign ship in international waters, for whom the threat of loss of his livelihood and potential expulsion from the ship could have destroyed the very essence of the privilege against self-incrimination.
- Before I turn to the District Judge's rulings on those submissions, I should set the jurisprudential scene as it was before him, and as it is still before this Court. First the House of Lords had held in ex p Levin that section 78 applies to extradition as well as domestic proceedings. The case concerned the admissibility of computer print-outs in extradition proceedings against the appellant. It had been submitted that they were inadmissible as hearsay and could not be rendered admissible under the then applicable provisions of section 69 of PACE (which stipulated certain conditions of "admissibility" additional to those at common law), because that section applied only to criminal proceedings, and extradition proceedings were not such. The House of Lords rejected the challenge, holding that the print-outs were not hearsay, that if they were, section 69 would apply to the proceedings because extradition proceedings are criminal proceedings for the purposes of PACE, but that, even so, section 69 would not have made the print-outs admissible. It is plain that the House was not specifically concerned with the applicability of section 76 to extradition proceedings. However, Lord Hoffmann, who gave the leading speech (with which the other Law Lords agreed), touched on the broader implications of the House's ruling, including the applicability of section 78 when considering whether the proceedings were criminal. He said, at 747:
the Extradition Act 1989, Section 9(2) and paragraph 6(10 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.
In Ex parte Francis  1 WLR 1121]
.McCowan LJ said that section 78 of the 1989 Act of 1984 had no application to extradition proceedings. I think this goes too far. If, as I think, extradition proceedings are criminal proceedings, then section 78 as originally enacted applied to them. In Reg. v. King's Lynn Justices, Ex parte Holland  1 WLR 324, the Divisional Court said that section 78 applied to committal proceedings and I think it must follow that it also applied to extradition proceedings.
- Lord Hoffmann then went on to suggest that, though section 78 applied to committal proceedings, committing magistrates should be slow to apply it, but leave the question of the fairness of the evidence for consideration under that provision to the trial court. He added that in the case of extradition proceedings considerations of comity and reciprocity were an additional constraint on the exercise of section 78 discretion at the committal stage. For an instance where this Court accepted the appropriateness of consideration by a metropolitan stipendiary magistrate of section 78 in extradition committal proceedings, but held that his decision to admit the evidence in question was within the margin of opinion open to him, see R (Saifi) v Governor of Brixton Prison & Anor  1 WLR 1134.
- Now, while section 76 technically does not involve an exercise of discretion and obliges a court to exclude a confession which it is not satisfied was not obtained by oppression or in circumstances likely to render it unreliable, it is still a matter for judgment by the court concerned whether the issues raised by the defence engage its provisions and, if so, whether the prosecution have disproved them. As in this case, it is often not just a simple matter of establishing what did or did not happen, but of forming a value judgement on largely admitted facts. With those observations in mind, the following observations of Lord Hoffmann in ex p Levin, at 748, on the section 78 exercise are, it seems to me, just as apt for the section 76 decision:
It must be borne in mind that when the section is being applied to committal or extradition proceedings, the question is whether the admission of the evidence would have such an adverse effect on the fairness of those proceedings that the court ought not to admit it. This is not at all the same thing as the question of whether the admission of the evidence at the trial would have an adverse effect on the fairness of the trial. On the contrary, the magistrates should ordinarily assume that the powers available to the judge at the trial will ensure that the proceedings are fair. The question is, therefore, whether the admission of the evidence would have an adverse effect on the fairness of the decision to commit or extradite the accused for trial, even if the trial is a fair one. I think that the circumstances would have to be very unusual before magistrates could properly come to such a decision and I am sure that Beldam LJ was right when he said in Ex parte Holland, at p 328:
'Examining justices could exclude the evidence from their consideration only if satisfied that its admission at the trial would be so obviously unfair to the proceedings that no judge properly directing himself could admit it. I have no doubt that even in such a case it would generally be far better to leave the decision to the trial judge who will, as I have said, be in a better position to assess the effect on the fairness of the proceedings and have had a greater experience of deciding such questions."
In extradition proceedings there is even less scope for the exercise of the discretion because, as McCowan LJ pointed out in Ex Parte Francis (quoting the Supreme Court of Canada in Kindler v Canada (Minister of Justice) (1991) 84 DLR (4th) 438, 488), extradition procedure is founded on concepts of comity and reciprocity. It would undermine the effectiveness of international treaty obligations if the courts were to superimpose discretions based on local notions of fairness upon the ordinary rules of admissibility. I do not wish to exclude the possibility that the discretion may be used in extradition proceedings founded upon evidence which, though technically admissible, has been obtained in a way which outrages civilised values. But such cases are likely to be very rare." [my emphasis]
- In Proulx  1 All ER 57, DC, this Court, consisting of Mance LJ and Newman J, considered the applicability of both section 76 and section 78 to extradition proceedings and how magistrates conducting the extradition hearing should approach them in the light of the 1994 amendments to section 9(8) and (2) of the 1989 Act equating extradition proceedings for this purpose with summary trial rather than committal for trial as was formerly the case. The magistrate in that case had seemingly, in the light of the 1994 amendments, accepted the applicability of both provisions to the extradition proceedings and had rejected the defence application to exclude the evidence under both. The Divisional Court, while accepting the potential applicability of both section 76 and section 78 and also, seemingly the Codes of Practice, to extradition proceedings 1) suggested that, save in extreme cases, such issues would be better left to the court of trial; and 2) upheld the District Judge's admission of the evidence under both provisions on Wednesbury principles, having regard also, in the light of Lord Hoffmann's words in ex p Levin, to the extradition context in which the issues arose.
- Thus, Mance LJ, with whom Newman J agreed, was of the view that both sections had "potential relevance in extradition proceedings". He said, at paragraph 30 of his judgment:
"It had already been established prior to 1994 that, when magistrates conducting a summary trial were faced with objection to the admissibility of evidence under ss 76 and/or 78 of PACE, they were obliged to determine the objections forthwith by holding a trial within a trial (see R v Liverpool Juvenile Court, ex p R  2 All ER 668,  QB 1. It was common ground before us that that this was therefore the procedure that the magistrate was bound to follow, as he did. In
.ex p Levin
the House was concerned with section 9 of the 1989 Act as it stood before prior to amendment by the 1994 Act.
having regard to the amendment by the 1994 Act and of the language of s 9(2) and s 9(8) of the 1989 Act, it was common ground that s 78 of PACE continues, like s 76, to have potential relevance in extradition proceedings."
As to the task of the Divisional Court in extradition proceedings, he said, at paragraphs 38-39, that it was much the same for section 76 as for section 78, referring specifically to the Osman test in the case of section 76 and Lord Hoffman's similar formulation in ex p Levin. This is how, in paragraphs 38 and 39, he put the Court's task in the section 76 context:
"38. All the points which
fell for determination by the magistrate under section 76 of PACE involved matters of fact or
judgment for the magistrate. In R v L  Crim LR 839 the Court of Appeal acknowledged in a domestic context that it becomes 'a matter of degree' as to whether the threshold is passed beyond which the behaviour of officers has made a so-called confession unreliable in all the circumstances.
39. In the present case, the Divisional Court when undertaking any review of the stipendiary magistrate's decision should bear firmly in mind at all stages both the extradition context and the consideration that by statute that all decisions of fact and judgment on the points arising were for the magistrate. Any challenge can thus only be based on Wednesbury principles. I recognise that, whatever test may be adopted, the constitutional nature of the interests protected by s 76 of PACE is likely, in a purely domestic context, to encourage a closer and more protective scrutiny of events. But, in the present context of extradition, when any issue of admissibility will revisited at any trial, the more limited review for which Ex p Osmans stands is appropriate."
- It is apparent also from Mance LJ's judgment that he considered that in certain cases there could also be occasion for consideration of some of the provisions of Code C in extradition proceedings. However, he said that there were difficulties in applying it to the circumstances of that case which involved statements by the fugitive, when resident in England, to Canadian and local police officers acting undercover seeking evidence against him here. He said, at paragraphs 49 and 78 of his judgment:
Whilst there are situations in which the effect of breach of Code C must, almost automatically, throw doubt on the reliability of evidence obtained as a result of or following such a breach, the undercover operation created a situation in which the applicant believed and acted and spoke on the basis that he was among friends and discussing with them his future participation in joint criminal activity. He had no thought that he was speaking either to police officers or to persons charged with the duty of investigating any offence or charging offenders (see s 67(9) and (10) of PACE). There are, as will appear below difficulties about regarding Code C as having any direct application to such a situation. But, even if it can have, its special nature means that the risk of unreliability cannot simply be derived from the fact of breach of that code. Whether there was such risk can only be assessed by a careful consideration of the actual course of the undercover operation." [my emphasis]
"78. The codes of practice under s 67 of PACE apply both to police officers and to 'persons other than police officers who are charged with the duty of investigating offences or charging offenders' (see s 67(9) and (10) of PACE)." I agree with Mr Hardy that this makes it difficult to apply their provision to situations where there is under English law no offence which can be the subject of either arrest or investigation. Again that cannot mean that an undercover operation is necessarily permissible. But it links with the more fundamental difficulty faced by the applicant in arguing that the magistrate should have refused to admit the evidence about
[it] on the ground that it circumvented Code C. Code C, even if it were capable in the eyes of English law of having any relevance to the present operation, is on my view a domestic code, in the sense that it has no application in Canada, where trial is sought. It is for that very reason that any argument that the magistrate erred in refusing to exclude the evidence of confessions under s 78 of PACE must be viewed on a different, international, basis. The issue is whether (once again bearing in mind the margin allowed to the magistrate under the Wednesbury approach) he ought to have excluded the evidence in the extradition context as 'outraging civilised values'".
- Finally, as part of this jurisprudential scene-setting, I should mention the House of Lords' decision in R (Rottman) v Commissioner of the Metropolitan Police  2 AC 692, where one of the issues was whether the statutory powers of entry, search and seizure without a warrant in Part II of PACE extended to extradition cases. The House held unanimously that such statutory powers were confined to domestic offences, that an extradition crime alleged to have been committed in another country is not a domestic offence and that, accordingly, there were no such statutory powers in extradition proceedings since they were not in respect of a domestic offence; see, in particular, per Lord Hutton at paragraphs 66 and 67.
- The District Judge, with those authorities in mind, rejected the submissions on behalf of the applicants, holding that: 1) in reliance on Rottman, the Codes of Practice do not apply to extradition proceedings because they do not concern domestic offences, and distinguishing Proulx as a special case decided on its own facts, namely that the confession was obtained in England by Canadian police officers working "under the auspices" of English police officers; 2) by reference to Proulx and ex p Levin, section 76 may be engaged in extradition committal proceedings, but only in rare cases of which this was not one; 3) if section 76 was engaged in the circumstances of this case, the Bahamian Government had proved beyond a reasonable doubt that the confessions were not obtained by oppression or in circumstances likely to render them unreliable; and 4) although section 78 applies to extradition proceedings, the circumstances were not such as to require him to exercise his judgment against admission of the evidence since, taking into account Lord Hoffmann's test in ex p Levin for such proceedings, such admission would not "outrage civilised values".
- The critical paragraphs in the District Judge's ruling as to the applicability or otherwise of Code C and sections 76 are 8, 9, and 10:
Even though a UK company was operating the Sundream and senior crew may well have been UK citizens and the ship was starting and finishing its cruise in England I fail to see how it can be held that the codes apply. Firstly, the offences are deemed to have been committed on Bahamian territory and secondly, it follows they are non-domestic offences. PACE is piece of domestic legislation and the codes apply to police officers and 'to persons other than police officers who are charged with the duty of investigating or charging offenders'.
They are designed to provide a framework and regulate how investigations are conducted within England and Wales and to ensure procedural fairness. They do not have and were never designed to have any wider geographical application. For example, PACE has no application to Scotland. Had this been a purely domestic case Mr Swift is likely to be a person 'charged with a duty to investigate offences' and so the code would apply to him if he embarked on questioning a suspect, particularly so, if he was gathering evidence for later use in a prosecution. The codes apply to the investigation of offences, and in the context of the domestic statute PACE 'offences' mean 'domestic offences. This issue has been decided in R (Rottman) v Metropolitan Police Comr
In the absence of an express provision to the contrary the word 'offence' in a statute means a domestic offence. I rule that the codes have no application in this case.
9. Although it was not argued before me, if it is contended that in extradition proceedings, in a situation such as this, the court's approach should be to apply the codes as if they did strictly apply then I reject such a contention. There is no reason for this court imposing the methods employed by investigators within England and Wales on extra-territorial investigations. At a trial in the Bahamas the Bahamian court will consider Mr Swift's conduct and if, there is an equivalent Bahamian Code C, decide if it has been breached and if it has the impact of such a breach.
10. I am not convinced that this section [section 76] has to be applied to all extradition cases where there is 'confession' evidence the admissibility of which is challenged by the defence. This is not the Government's representation, but one that I canvassed during submissions. Within my experience it is a fairly rare factual situation that the 'prima facie' case is established on the basis of a confession. Apart from Proulx
I have not been referred to any other case. The magistrates' court's jurisdiction, in domestic committals to the Crown Court, does not permit any consideration of section 76 and 78 arguments which are now exclusively reserved for the court of trial. Extradition proceedings are criminal proceedings Levin .. and undoubtedly this court can, and if representations are made must, consider s. 78 in all cases, but the scope of that section is more limited in extradition proceedings than in relation to a trial. Must the court entertain s. 76 representations in all extradition cases? I suggest that it should not be necessary for this court to do so for a number of practical reasons. Firstly, as is recognised for domestic cases, the better tribunal for determining such matters is the court of trial. Secondly, if evidence were given by a defendant challenging the confession it would likely result in an adjournment to allow the government to call rebutting evidence. Apart from the delay and cost involved it would tie up the committal court in the trial of an issue which is often very difficult to resolve unless the court can hear live evidence. The court might hear such live evidence from or in support of the fugitive, but might only have affidavit evidence from the foreign state. This would put pressure on the foreign state to send over witnesses to give evidence at Bow Street. Thirdly, those from the foreign state, who put the requisition papers together are addressing their minds (as in this case) to ensuring that the papers provide evidence of a prima facie case. They cannot be expected to anticipate a s.76 challenge. After all s.76 has no application unless and until the relevant representation under s.76(2) is made. Once such a representation is made it puts an additional burden on the government (over and above that required in presenting the extradition request) to prove 'to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained' as set out in s. 76(2)(a) or (b).
Submissions and conclusions
- In their submissions to this court, counsel for all three applicants submitted that Code C and sections 76 and 78 impose a universal standard. As to Code C, they acknowledged that not every breach should necessarily result in exclusion under either provision, but, whether by reference to Code C or otherwise, failure to satisfy section 76 or 78 in domestic or extradition proceedings should do so, regardless of whether the matter could be re-visited by the court of trial. However, they acknowledged that there is a higher threshold for the defence to overcome in section 78 cases, as expressed by Lord Hoffmann in ex p Levin. On that basis, they maintained that: 1) the District Judge should have taken into account the provisions of Code C when considering whether each applicant's admission had been voluntary; 2) he should have applied section 76 in the circumstances of this case; 3) his alternative ruling, in the event of Code C and/or section 76 being applicable, that the admissions did not in the circumstances require exclusion under section 76(2), was perverse; and 4) he should, in any event, have excluded the evidence of admissions as unfair under section 78.
- As to the District Judge's ruling on the applicability of Code C and its bearing on any decision to be made under section 76, there are two strands to the submission. The first was that, on the authorities, Code C, or at least some of its more important provisions, and sections 76 and/or 78 governed Mr Swift's interviews of the applicants. They relied on: ex p Levin  AC 741, a decision on section 78 in relation to section 9(8) of the 1989 Act before its amendment in 1994); Saifi, a decision on section 78 after the amendment of that provision; and Re Proulx, a decision on sections 76 and 78.
- The second strand, which Mr Knowles also developed, was that the District Judge erred in paragraph 8 of his ruling in his reasoning in excluding Code C and section 76 from his consideration on the ground that the offences were deemed to have been committed on Bahamian territory and, for that reason, were not domestic offences. Mr Knowles suggested that this reasoning was non-sequitur because, although section 2(4)(b) of the 1989 Act provides that conduct on board a Commonwealth ship "shall be treated as if it were conduct in the territory of that
country", the opening words of section 2(4) make clear that it is a deeming provision only for the purpose of the 1989 Act, not for the purpose of determining jurisdiction to try the offence. For example, he said, if the ship had been in British rather than the territorial waters of a Baltic state at the time, the offence would also have been triable here pursuant to section 2 of the Territorial Waters Jurisdiction Act 1878, though also subject, on a duly made request, to extradition to the Commonwealth of the Bahamas, under the 1989 Act. Similarly, Mr Knowles submitted, if the applicants had been British citizens or residents, the alleged offences would have been triable in this country by virtue of section 7 of the Sex Offenders Act 1997, whilst at the same time remaining extradition offences in relation to the Bahamas by virtue of section 2(4) of the 1989 Act. In short, he submitted that the applicability of Code C and section 76 depends upon the status and functions of the investigator, not on where he is doing the investigating or, necessarily, where the offence is ultimately to be tried.
- Miss Malcolm submitted that Code C, as such and as distinct from the fundamental principle at which it is directed, namely that a confession to be admissible must be voluntary, relates only to domestic offences. It follows, she said, that it is the geographical location of the alleged offence and where it is sought to be tried that matter, not the location of its investigation, relying on Rottman and the cases there cited. She added that this case is distinguishable from Proulx, because, here, the evidence was obtained outside the jurisdiction and the Codes, as such, cannot apply to evidence gathered abroad for the purpose of extradition proceedings. She said, by way of example, that if this alleged offence had occurred in the Bahamas, it could not be argued that a police officer or someone in like position investigating the matter there would be subject to PACE.
- I should note immediately, if only to reject it, Miss Malcom's suggestion that she can derive additional support for her submission under this head from the ruling of the House of Lords in R v Beese  1 WLR 1426, at 1430, that the old Judges Rules were inapplicable in extradition proceedings relating to evidence obtained by foreign detectives in this country. Those Rules were not issued under any statutory authority, and were, as their name indicates, issued by the Judges for the guidance of English police officers when taking and recording statements from persons suspected of having committed criminal offences in this country. In addition, they contained no guidance that could be said to be a precursor of section 67(9) of the 1989 Act, extending their ambit to "other persons charged with the duty of investigating offences or charging offenders".
- In my view, the duty imposed by section 67 of PACE on police officers, as provided by section 67(9) on "other persons charged with the duty of investigating offences" to have regard to any relevant provisions of the Codes is confined to domestic criminal offences. I do not read any of the authorities to which I have referred, notably, Levin, Saifi or Proulx, on which counsel relied in support of a proposition to the contrary as doing so. In Rottman Lord Hutton, with whom the other Law Lords agreed, held, at paragraphs 67 and 68 of his speech, that the meaning of the word "offence" in certain provisions in Parts II and III of PACE meant a domestic offence. The rationale for that conclusion was not confined to the context of those Parts, and is, it seems to me of general application throughout the Act. He said, in paragraph 67 that "in the absence of an express provision to the contrary the word 'offence' in a statute meant a domestic offence", basing that general proposition on a number of authorities drawn from different statutory contexts, including: Cox v Army Council  AC 48; Air-India v Wiggins  1 WLR 815; and Macleod v Attorney General for New South Wales  AC 455, at 458.
- Accordingly, in my view, the District Judge's ruling that the Code did not apply to extradition proceedings was in accord with the 1989 Act and PACE and with the authorities to which I have referred, in particular Rottman. However, some of the more fundamental principles of the criminal justice process of which it is an expression, going particularly to the question whether a confession was made voluntarily, may have a bearing on a decision in extradition proceedings, in an extreme case of the sort mentioned by Lord Hoffmann, whether to exclude evidence under section 76 or 78. Accordingly, Mr Knowles's criticism as a non-sequitur of the District Judge's reliance, in paragraph 8 of his ruling, on the fact that the alleged offences were committed in the Bahamas is misconceived. While, as Mr Knowles submitted, an offence may, in certain circumstances, be prosecutable as a domestic offence and also meet one or other of the definitions in section 2 of the 1989 Act of an "extradition crime", that combination was not present here, and, in any event and more importantly, the two forms of proceeding are distinct. The applicants did not fall to be prosecuted, and were not prosecuted, domestically, and the extradition proceedings were based on their meeting the definition of an extradition crime as defined in section 2.
- The issue is not one of jurisdiction, nor even one of concurrent jurisdiction. It is whether the offence under consideration is an "extradition crime" in extradition proceedings. If it is, it is not an offence to which, under section 67 of PACE, the Codes, as such, apply. It is the location of the alleged offence, prompting the request for extradition that matters, not the status or function of the investigator. I would accordingly, and with respect, not leave open the possibility, as Mance LJ seemingly did in paragraphs 49 and 78 of his judgment in Proulx (see paragraph 60 above), that the Codes could apply in an extradition case, even where, as in that case, the investigation giving rise to the evidence in question took place in England. However, I would, again with respect, heartily endorse his sentiments in paragraph 78 (which also went to the propriety of the exercise of the magistrate's discretion in that case) against the logic and good sense of applying such a domestic Code, in all its detail, to investigations in or on behalf of requisitioning states.
- I turn now to the District Judge's second ruling, by reference to ex p Levin and Proulx, that section 76 may be engaged in extradition proceedings, but only in rare cases of which this was not one.
- Counsel for the applicants all argued that the District Judge wrongly declined to determine whether section 76 was engaged in this case. However, Mr Knowles dealt with it in the briefest terms in his skeleton argument, and did not develop it in his oral submissions. And Mr Hines concentrated his argument on the next issue, going to the rationality of the Judge's findings that, if section 76 was engaged, it had not been breached. Mr Hardy did not deal with the point separately or indeed any of the arguments on the question of admissibility of Mr Swift's evidence. In truth, as Mr Knowles, in part acknowledged by way of criticism of the District Judge's reasoning on this issue, it overlaps with the rationality complaint. He suggested, somewhat elliptically, that the District Judge's ruling on this issue was vitiated by his dual approach of holding that section 76 did not apply, not as a matter of discretion, but seemingly as an exercise of judging the means by which the admissions were obtained against some objective criteria, and then revisiting some such criteria on the alternative basis that it did apply.
- Miss Malcolm properly conceded the possible application of both sections 76 and 78 to such proceedings, but sought to uphold the District Judge's reasons for ruling that neither was engaged in this case. As to the latter, she submitted that, although it follows from ex p Levin and Proulx that these provisions survive in extradition committals, they do so only on the limited basis indicated by Lord Hoffmann, in ex p Levin, at page 748, and by Mance LJ in Proulx, at paragraph 30. She also drew attention to the absence of any possibility of relying on either provision if the proceedings has been domestic, as a result of the effective abolition by the 1991 Act of domestic committal proceedings for such an alleged offence and, by the 1996 Act, of oral evidence on behalf of the prosecution in all committal proceedings, with the result that in domestic cases section 76 and 78 issues have to be left for trial (that has, in any event, been the case in relation to section 78 since 1996 by virtue of section 78(3), inserted by the 1996 Act). In essence, her submission was that, if that is how the matter stands in relation to domestic committal proceedings, it should, a fortiori, be a rarity for the reasons given by Lord Hoffmann and Mance LJ in extradition proceedings, where considerations of comity and reciprocity come into play, and requisitioning countries cannot be expected to equip themselves from afar at the committal stage to prove the negative required by section 76 if if the point is raised on behalf of the fugitive at the committal.
- In my view, there can be no complaint of the District Judge holding back from ruling on the "engagement" of section 76 in this case and focusing on the issue whether there was a breach if it was engaged. Lord Hoffmann's statement on page 748 of his speech in ex p Levin that discretion to exclude under section 78 should only apply in extradition cases where the evidence has been obtained in a way which "outrages civilised values" places a very high threshold for the exercise of discretion under that provision. For reasons I have given in paragraph 57 above, where, in cases like this, there is little dispute as to the facts, it must logically have similar application to the exercise of judgment required in determining whether, on the evidence, there is an obligation to exclude under section 76. All that involves for the District Judge is an overall look at the circumstances and the evidence to see how bad the complaints are about the prosecution evidence, the way in which it was obtained and whether they are sufficient to overcome the reasons and practical considerations of comity and reciprocity giving rise to Lord Hoffmann's high threshold. In this respect, I found the examples of practical difficulty of the application of the provision to extradition cases given by the District Judge in the second half of paragraph 10 of his ruling to have great force (see paragraph 63 above). I can see no basis for criticising his approach to this issue and for moving on to consider, on the hypothetical basis that he was wrong about it, the issue of failure to prove non-breach.
- On the issue of proof of non-breach of sections 76, if it was applicable to these proceedings, Mr Knowles and Mr Hines invited the Court to strike down the District Judge's decision as irrational both under the heading of oppression and that of circumstances likely to render the admissions unreliable. They invited the Court to consider the usual procedural safeguards established by the common law and, directly or by way of analogy, Code C, to secure that interview evidence is fair and reliable. They suggested that the Court should strike down the District Judge's decision of proof of no breach under one or other or both heads. As to oppression, they relied, in addition to a number of breaches of the Code, on their compulsory nature, the fact that the applicants were told that their jobs were at stake, and the "inequality of arms" between a person in the position of Mr Swift and them, lowly members of the ship's crew. As to the Code, they pointed to a number of, including the following, breaches, which, they reminded the Court applies in domestic cases, not only to police officers, but also to other persons like Mr Swift charged with the duty of investigating offences: 1) no caution C 10.1; 2) no indication that the applicants had a right to consult a legal representative C 6.1; 3) in the case of Roy Fernandes, whose English, it is claimed, was not good, no interpreter C 13.2(b); 4) interviews not adequately recorded, only a summary C11.5 and 11.8; 5) no recorded reason for absence of contemporaneous note of interview C11.9; and 6) failure to request the applicants, when signing the summary notes, to endorse them as a true and accurate record C11D. Mr Hines submitted that each of these breaches is fundamental or, in terms used by the Court of Appeal in R v. Keenan  2 QB 54, so "significant and substantial" as to warrant exclusion under section 76, but that taken together the case for it was overwhelming.
- Miss Malcolm submitted that Mr Swift's evidence does not support the contention that the interviews were involuntary or that any admissions made by the applicants resulted from oppression or inducement. As to oppression, she reminded the Court that it requires something more serious than the description that an interviewing officer "could have done it better"; section 76(8) inclusively describes it as "torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)". As to inducement, Miss Malcolm submitted that knowledge by applicants that they had a duty to co-operate with Mr Swift put them in no different position from any defendant in a police station, who is now warned, in layman's language, that if he refuses to co-operate or make a statement, it may go badly for him.
- The District Judge set out in considerable detail, in paragraph 11 of his ruling, the material circumstances and content of Mr Swift's interviews of the applicants and his comments on the individual complaints and the overall effect on each of the applicants. He concluded in that paragraph and in paragraph 12 of his ruling, that he could see no basis on the material before him for excluding the evidence under either limb of section 76(2). In my view, the conduct of which the applicants, through their counsel, complain, the facts of which are, in the main, not in dispute, does not, for the reasons given by the District Judge in paragraph 12 of his ruling and by Miss Malcolm in her submissions, approach a case of oppression that would justify exclusion on a trial of this matter, still less in committal proceedings to determine whether there should be extradition to enable a trial to take place in the country of the requisitioning government. Equally, having regard to the District Judge's summary and analysis of the nature of the interviews and the complaints about them, I see no basis upon which it could be said that he was irrational in concluding, as he did in paragraph 11 that he could not "identify anything 'said or done' (nor anything not said or done') in the circumstances existing at the time 'likely to render unreliable any confession
'". If regard is also to be had to Lord Hoffmann's additional threshold, it does not approach, even in section 76 terms, "outraging civilised values." Certainly, there is no basis upon which this Court could intervene by way of judicial review or on application for habeas corpus.
- That leaves the fourth and final issue under this head, whether the District Judge's exercise of his judgment under section 78 of PACE not to exclude the evidence was irrational.
- Section 78 gives a court a power sometimes, as I have said, described as a discretionary power - to exclude any proposed evidence that would in the circumstances, including those in which the evidence was obtained, have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. As I have shown, by reference to Lord Hoffmann' speech, in ex p Levin, and to Mance LJ's judgment, in Proulx, section 78 may apply to extradition proceedings, but an application limited to "proceedings founded upon evidence which, though technically admissible, has been obtained in a way which outrages civilised values". Mance LJ, in the following passage at paragraph 42 of his judgment, went on to state that the relevance of section 78 to such proceedings remains as described by Lord Hoffmann notwithstanding their deemed change from a committal hearing to summary trial, a proposition that, with respect, I wholly endorse :
The same considerations based on comity and reciprocity continue to apply following the change of the statutory wording. A magistrate considering the fairness of admitting evidence remains entitled and bound to have regard to the context of extradition proceedings in which the issue before him arises. His decision whether or not to admit evidence, in the exercise of the powers preserved by s 9(2) of the 1989 Act as amended, is solely in and for the purpose of his determination on the issue of extradition. The trial judge in the proposed country of trial remains the person who should and will determine the critical issue of the admission of such evidence at trial. Thus the question which the magistrate had here to ask himself therefore was not whether the confession would fall to be excluded in a purely English context. It was whether, bearing in mind that the ultimate issue was whether the applicant should be extradited to strand trial in Canada, he should under s. 78 of PACE exclude the confessions from consideration as part of the evidence by reference to which he determined whether or not there was a case requiring an answer if the proceedings were a summary trial of an information before him. As Lord Hoffmann indicated, it is to be expected that it would only be in very unusual circumstances that a magistrate could properly conclude that he should in this context exclude evidence under s 78 of PACE: 'it would undermine the effectiveness of international treaty obligations if the courts were to superimpose discretions based upon local notions of fairness upon the ordinary rules of admissibility.'".
- For the reasons I have given in paragraph 57 of this judgment, even allowing for the burden on the prosecution in section 76 of negative proof, absent in section 78, the exercise of judgment, especially in a case like this where the facts are not substantially in dispute, is not so very different. I need not recite the largely overlapping arguments as between sections 76 and 78 advanced by Mr Knowles and Mr Hines for the applicants and the counter arguments of Miss Malcolm in her response. It is enough to note that the District Judge, in paragraph 13 of his ruling, expressed himself as satisfied that Mr Swift had acted throughout in good faith and that, as Code C did not apply to these proceedings there was no discrete legal obligation on him under English law to caution any of the applicants or to comply with any of the other provisions of the Code on breach of which the applicants relied. Such matters, including the world-wide principle of privilege against self-incrimination, would, he said, be considered more appropriately by a Bahamian court of trial when looking at the particular circumstances of the case. All that is classic ex p Levin and Proulx reasoning, and I can find no fault with it as applied to the circumstances of the case. Certainly, I can see no basis upon which this Court could interfere with his judgment on this issue, with or without Lord Hoffman's constraint for him of the higher threshold for excluding evidence under section 78 in extradition committals.
- Accordingly I would dismiss all three applications.
Mr Justice Pitchers:
- I also agree.
LORD JUSTICE AULD: For the reasons given in the draft judgments, copies of which have been provided to the parties, all three applications are dismissed.
MR HARDY: May it please your Lordship, this morning I appear for Charles Fernandez and Anthony Travasso, my learned friend Mr Hines appears for Roy Fernandez and my learned friend Mr Watson appears this morning for the respondents.
LORD JUSTICE AULD: Thank you.
MR HARDY: My Lords. The position viz-a-viz application for leave to appeal is this. As your Lordships know it is not necessary for your Lordships to certify a point of law of general public importance as arising from this application because it is an application for habeas corpus. There are 14 days in which we would be entitled to submit an application. My Lord, this is not a case in which we feel it appropriate to make an application orally before the Court now. Instead what we propose is to take instructions from our lay clients who have a number of factors to consider in the course they next pursue, and, if those instructions are to seek leave to appeal, to submit written notices and skeleton arguments and invite your Lordships to deal with the issue on the papers. We are conscious that otherwise your Lordships would have to reassemble, so to speak, the Court and hear oral argument.
LORD JUSTICE AULD: That is certainly convenient to us, if it is agreeable to those instructing you, Mr Hardy.
MR HARDY: I am grateful, my Lord. I make it plain that the issue of whether or not an application is to be made is very much in the balance and it is by no means certain that any such application will be pursued.
LORD JUSTICE AULD: These are difficult matters.
MR HINES: I am very grateful. The only other application I have is for assessment in the cases of Charles Fernandez and Anthony Travasso.
LORD JUSTICE AULD: That would follow normally. Any other consequential applications?
MR HINES: I have a similar application for Roy Fernandez in respect of assessment.
LORD JUSTICE AULD: Yes. Very well. Mr Watson?
MR WATSON: Nothing, my Lord, no.
LORD JUSTICE AULD: Thank you all for your assistance and for your attendance this morning.