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[HOUSE OF LORDS] |
REGINA v. HORSEFERRY ROAD MAGISTRATES' COURT, |
Ex parte BENNETT |
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Justices - Committal proceedings - Jurisdiction - Defendant removed from South Africa to England - Collusion alleged between police forces - Arrest in London lawful - Whether court having jurisdiction to inquire into circumstances of defendant's presence within jurisdiction - Whether court empowered to refuse trial where abuse of process shown - Whether jurisdiction vested in justices |
The defendant, a citizen of New Zealand who was alleged to have committed criminal offences in England, was traced to South Africa by the English police and forcibly returned to England. There was no extradition treaty between the two countries, and although special arrangements could be made for extradition in a particular case under section 15 of the Extradition Act 1989 no such proceedings were taken. The defendant claimed that he had been kidnapped from the Republic of South Africa as a result of collusion between the South African and British police and returned to England, where he was arrested and brought before a magistrates' court to be committed to the Crown Court for trial. The defendant sought an adjournment to enable him to challenge the court's jurisdiction. The application was refused and he was committed for trial. He sought judicial review of the magistrates' court's decision. The Divisional Court of the Queen's Bench Division, refusing the application, held that the English court had no power to inquire into the circumstances under which a person appearing before it had been brought within the jurisdiction. |
On appeal by the defendant:- |
Held, allowing the appeal (1) (Lord Oliver of Aylmerton dissenting), that where a defendant in a criminal matter had been brought back to the United Kingdom in disregard of available extradition process and in breach of international law and the laws of the state where the defendant had been found, the courts in the United Kingdom should take cognisance of those circumstances and refuse to try the defendant; and that, accordingly, the High Court, in the exercise of its supervisory jurisdiction, had power to inquire into the circumstances by which a person had been brought within the jurisdiction and, if satisfied that there had been a disregard of extradition procedures, it might stay the prosecution as an abuse of process and order the release of the defendant (post, pp. 61H-62B, F-G, 64E-F,67F-68B, C-D, 73F-G, 74F-H, 84B-D). |
Reg. v. Bow Street Magistrates, Ex parte Mackeson (1981) 75 Cr.App.R. 24, D.C. and Reg. v. Plymouth Justices, Ex parte Driver [1986] Q.B. 95, D.C. considered. |
(2) That the jurisdiction exercised by magistrates, whether sitting as committing justices or exercising their summary jurisdiction, to protect the court's process from abuse was |
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confined to matters directly affecting the fairness of the trial of the particular accused with whom they were dealing and did not extend to the wider supervisory jurisdiction for upholding the rule of law; that the wider responsibility was vested in the High Court and where a question arose as to the deliberate abuse of the extradition procedures the magistrates should adjourn the matter so that an application could be made to the Divisional Court, which was the proper forum for deciding the matter; and that, accordingly, the case would be remitted to the Divisional Court for further consideration (post, pp. 64B-D,F, 68C-D, 73E-F, 78C-E, 84B-D). |
Reg. v. Guildford Magistrates' Court, Ex parte Healy [1983] 1 W.L.R. 108, D.C. applied. |
Decision of the Divisional Court of the Queen's Bench Division [1993] 2 All E.R. 474; 97 Cr.App.R. 29 reversed. |
The following cases are referred to in their Lordships' opinions: |
Ashton, In re [1993] A.C. 9; [1993] 2 W.L.R. 846; [1993] 2 All E.R. 663, H.L.(E.) |
Atkinson v. United States of America Government [1971] A.C. 197; [1969] 3 W.L.R. 1074; [1969] 3 All E.R. 1317, H.L.(E.) |
Connelly v. Director of Public Prosecutions [1964] A.C. 1254; [1964] 2 W.L.R. 1145; [1964] 2 All E.R. 401; 48 Cr.App.R. 183, H.L.(E.) |
Lam Chi-ming v. The Queen [1991] 2 A.C. 212; [1991] 2 W.L.R. 1082; [1991] 3 All E.R. 172; 93 Cr.App.R. 358, P.C. |
McC. (A Minor), In re [1985] A.C. 528; [1984] 3 W.L.R. 1227; [1984] 3 All E.R. 908; 81 Cr.App.R. 54, H.L.(N.I.) |
Mills v. Cooper [1967] 2 Q.B. 459; [1967] 2 W.L.R. 1343; [1967] 2 All E.R. 100, D.C. |
Reg. v. Bow Street Magistrates, Ex parte Mackeson (1981) 75 Cr.App.R. 24, D.C. |
Reg. v. Canterbury and St. Augustine Justices, Ex parte Klisiak [1982] Q.B. 398; [1981] 3 W.L.R. 60; [1981] 2 All E.R. 129; 72 Cr.App.R. 250, D.C. |
Reg. v. Croydon Justices, Ex parte Dean [1993] Q.B. 769; [1993] 3 W.L.R. 198; [1993] 3 All E.R. 129, D.C. |
Reg. v. Derby Crown Court, Ex parte Brooks (1984) 80 Cr.App.R. 164, D.C. |
Reg. v. Governor of Pentonville Prison, Ex parte Sinclair [1991] 2 A.C. 64; [1991] 2 W.L.R. 1028; [1991] 2 All E.R. 366; 93 Cr.App.R. 329, H.L.(E.) |
Reg. v. Grays Justices, Ex parte Low [1990] 1 Q.B. 54; [1989] 2 W.L.R. 948; [1988] 3 All E.R. 834; 88 Cr.App.R. 291, D.C. |
Reg. v. Guildford Magistrates' Court, Ex parte Healy [1983] 1 W.L.R. 108, D.C. |
Reg. v. Horsham Justices, Ex parte Reeves (Note) (1980) 75 Cr.App.R. 236, D.C. |
Reg. v. Humphrys [1977] A.C. 1; [1976] 2 W.L.R. 857; [1976] 2 All E.R. 497; 63 Cr.App.R. 95, H.L.(E.) |
Reg. v. Oxford City Justices, Ex parte Smith (1982) 75 Cr.App.R. 200, D.C. |
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Reg. v. Plymouth Justices, Ex parte Driver [1986] Q.B. 95; [1985] 3 W.L.R. 689; [1985] 2 All E.R. 681; 82 Cr.App.R. 85, D.C. |
Reg. v. Sang [1980] A.C. 402; [1979] 2 W.L.R. 439; [1979] 2 All E.R. 46; 68 Cr.App.R. 240, C.A.; [1980] A.C. 402; [1979] 3 W.L.R. 263; [1979] 2 All E.R. 1222; 69 Cr.App.R. 282, H.L.(E.) |
Reg. v. Telford Justices, Ex parte Badhan [1991] 2 Q.B. 78; [1991] 2 W.L.R. 866; [1991] 2 All E.R. 854; 93 Cr.App.R. 171, D.C. |
Reg. v. West London Stipendiary Magistrate, Ex parte Anderson (1984) 80 Cr.App.R. 143, D.C. |
Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 K.B. 338; [1952] 1 All E.R. 122, C.A. |
Rex v. Officer Commanding Depot Battalion, R.A.S.C., Colchester, Ex parte Elliott [1949] 1 All E.R. 373 |
The following additional cases were cited in argument: |
Card v. Salmon [1953] 1 Q.B. 392; [1953] 2 W.L.R. 301; [1953] 1 All E.R. 324, D.C. |
Derbyshire County Council v. Times Newspapers Ltd. [1992] Q.B. 770; [1992] 3 W.L.R. 28; [1992] 3 All E.R. 65, C.A. |
Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529; [1981] 3 W.L.R. 906; [1981] 3 All E.R. 727, H.L.(E.) |
O'Toole v. Scott [1965] A.C. 939; [1965] 2 W.L.R. 1160; [1965] 2 All E.R. 240, P.C. |
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Reg. v. Aubrey-Fletcher, Ex parte Ross-Munro [1968] 1 Q.B. 620; [1968] 2 W.L.R. 23; [1968] 1 All E.R. 99, D.C. |
Reg. v. Birmingham Justices, Ex parte Lamb [1983] 1 W.L.R. 339; [1983] 3 All E.R. 23, D.C. |
Reg. v. Bow Street Stipendiary Magistrate, Ex parte Director of Public Prosecutions (1989) 91 Cr.App.R. 283, D.C. |
Reg. v. Brentford Justices, Ex parte Wong [1981] Q.B. 445; [1981] 2 W.L.R. 203; [1981] 1 All E.R. 884; 73 Cr.App.R. 67, D.C. |
Reg. v. Canale [1990] 2 All E.R. 187; (1989) 91 Cr.App.R. 1, C.A. |
Reg. v. Canterbury and St. Augustine Justices, Ex parte Turner (1983) 147 J.P. 193, D.C. |
Reg. v. Clerk to Medway Justices, Ex parte Department of Health and Social Services [1986] Crim.L.R. 686, D.C. |
Reg. v. Crneck, Bradley and Shelley (1980) 116 D.L.R. (3d) 675 |
Reg. v. Governor of Brixton Prison, Ex parte Soblen [1963] 2 Q.B. 243; [1962] 3 W.L.R. 1154; [1962] 3 All E.R. 641, C.A. |
Reg. v. Governor of Pentonville Prison, Ex parte Alves [1993] A.C. 284; [1992] 3 W.L.R. 844; [1992] 4 All E.R. 787, H.L.(E.) |
Reg. v. Governor of Pentonville Prison, Ex parte Osman (No. 3) [1990] 1 W.L.R. 878; [1990] 1 All E.R. 999; 91 Cr.App.R. 409, D.C. |
Reg. v. Grays Justices, Ex parte Graham [1982] Q.B. 1239; [1982] 3 W.L.R. 596; [1982] 3 All E.R. 653; 75 Cr.App.R. 229, D.C. |
Reg. v. Manchester City Stipendiary Magistrate, Ex parte Snelson [1977] 1 W.L.R. 911; [1978] 2 All E.R. 62; 66 Cr.App.R. 44, D.C. |
Reg. v. Oxford City Justices, Ex parte Berry [1988] Q.B. 507; [1987] 3 W.L.R. 643; [1987] 1 All E.R. 1244; 85 Cr.App.R. 89, D.C. |
Rex v. Governor of Brixton Prison, Ex parte Servini [1914] 1 K.B. 77, D.C. |
Sampson, In re [1987] 1 W.L.R. 194; [1987] 1 All E.R. 609; 84 Cr.App.R. 376, H.L.(E.) |
Simms v. Moore [1970] 2 Q.B. 327; [1970] 2 W.L.R. 1099; [1970] 3 All E.R. 1; 54 Cr.App.R. 347, D.C. |
Smalley, In re [1985] A.C. 622; [1985] 2 W.L.R. 538; [1985] 1 All E.R. 769; 80 Cr.App.R. 205, H.L.(E.) |
Trendtex Trading Corporation v. Central Bank of Nigeria [1977] Q.B. 529; [1977] 2 W.L.R. 356; [1977] 1 All E.R. 881, C.A. |
Appeal from the Divisional Court of the Queen's Bench Division. |
This was an appeal by the defendant, Paul James Bennett, by leave of the Appeal Committee of the House of Lords (Lord Keith of Kinkel, |
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Lord Goff of Chieveley and Lord Mustill) given on 3 December 1992, from an order dated 31 July 1992 of the Divisional Court of the Queen's Bench Division (Woolf L.J. and Pill J.) dismissing his motion for judicial review of decisions of the Horseferry Road Magistrates' Court of 22 May 1991 refusing him an adjournment, to enable him to challenge the jurisdiction of the court to hear committal proceedings, and committing him for trial at Southwark Crown Court. |
The Divisional Court certified, in accordance with section 1(2) of the Administration of Justice Act 1960, that a point of law of general public importance was involved, namely: |
"Whether in the exercise of its supervisory jurisdiction the court has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if so what remedy is available if any to prevent his trial where that person has been lawfully arrested within the jurisdiction for a crime committed within the jurisdiction." |
The facts are stated in the opinion of Lord Griffiths. |
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1991 (2) S.A. 553; United States v. Toscanino (1974) 500 F.2d 267; Reg. v. Humphrys [1977] A.C. 1 and United States v. Alvarez-Machain (1992) 119 L.Ed.2d 441. |
This discretion qualifies the absolute rule that relevant evidence is admissible however obtained: see also section 78 of the Police and Criminal Evidence Act 1984. |
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return was ordered: Rex v. Corrigan [1931] 1 K.B. 527 and Reg. v. Aubrey Fletcher, Ex parte Ross-Munro [1968] 1 Q.B. 620. |
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[LORD GRIFFITHS. Their Lordships invite counsel to address them on the appropriate court to exercise the abuse of process jurisdiction.] |
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Nicholls Q.C. replied. |
Their Lordships took time for consideration. |
24 June. LORD GRIFFITHS. My Lords, the appellant is a New Zealand citizen who is wanted for criminal offences which it is alleged he committed in connection with the purchase of a helicopter in this country in 1989. The essence of the case against him is that he raised the finance to purchase the helicopter by a series of false pretences and has defaulted on the repayments. |
The English police eventually traced the appellant and the helicopter to South Africa. The police, after consulting with the Crown Prosecution Service, decided not to request the return of the appellant through the extradition process. The affidavit of Detective Sergeant Martin Davies of the Metropolitan Police of New Scotland Yard deposes as follows: |
"I originally considered seeking the extradition of the applicant from South Africa. I conferred with the Crown Prosecution Service, and it was decided that this course of action should not be pursued. There are no formal extradition provisions in force between the United Kingdom and the Republic of South Africa and any extradition would have to be by way of special extradition arrangements under section 15 of the Extradition Act 1989. No proceedings for the applicant's extradition were ever initiated." |
It is the appellant's case that, having taken the decision not to employ the extradition process, the English police colluded with the South African police to have the appellant arrested in South Africa and forcibly returned to this country against his will. The appellant deposes that he was arrested by two South African detectives on 28 January 1991 at Lanseria in South Africa, who fixed a civil restraint order on the helicopter on behalf of the United Kingdom finance company and told the appellant that he was wanted by Scotland Yard and he was being taken to England. Thereafter he was held in police custody until he was placed on an aeroplane in Johannesburg ostensibly to be deported to New Zealand via Taipei. At Taipei when he attempted to disembark he was restrained by two men who identified themselves as South African police and said that they had orders to return him to South Africa and then to the United Kingdom and |
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hand him over to Scotland Yard. He was returned to South Africa and held in custody until he was placed, handcuffed to the seat, on a flight from Johannesburg on 21 February arriving at Heathrow on the morning of 22 February when he was immediately arrested by three police officers including Detective Sergeant Davies. He further deposes that he was placed on this flight in defiance of an order of the Supreme Court of South Africa obtained by a lawyer on his behalf on the afternoon of 21 February. |
The English police through Sergeant Davies deny that they were in any way involved with the South African police in returning the appellant to this country. They say that they had been informed that there were a number of warrants for the appellant's arrest in existence in Australia and New Zealand and that they requested the South African police to deport the appellant to either Australia or New Zealand and it was only on 20 February that the English police were informed by the South African police that the appellant was to be repatriated to New Zealand by being placed on a flight to Heathrow from whence he would then fly on to New Zealand. Sergeant Davies does, however, depose in a second affidavit as follows: |
"1. Further to my affidavit sworn in the above-mentioned proceedings on 29 November 1991, my earliest communications with the South African authorities following the applicant's arrest were with the South African police with a view to his repatriation to New Zealand or deportation to Australia and his subsequent extradition from one of those countries to England. I discussed with the South African police the question as to whether the applicant would be returned via the United Kingdom and I was informed by them that he might be returned via London. I sought advice from the Crown Prosecution Service and from the Special Branch of the Metropolitan Police as to what the position would be if he were so returned. I informed the South African police by telephone that if the applicant were returned via London he would be arrested on arrival. Subsequently I was informed by the South African police that the applicant could not be repatriated to New Zealand via Heathrow . . . "4. I now recollect that it was on 20 February and not on 21 February as I stated in my previous affidavit, that the South African police informed me on the telephone that the applicant was to be returned to New Zealand via Heathrow. On the same day I consulted the Crown Prosecution Service and it was decided that the English police would arrest the applicant on his arrival at Heathrow." |
It is not for your Lordships to pass judgment on where truth lies at this stage of the proceedings but for the purpose of testing the submission of the respondent that a court has no jurisdiction to inquire into such matters it must be assumed that the English police took a deliberate decision not to pursue extradition procedures but to persuade the South African police to arrest and forcibly return the appellant to this country, under the pretext of deporting him to New Zealand via Heathrow so that he could be arrested at Heathrow and tried for the offences of dishonesty he is alleged to have committed in 1989. I shall also assume that the |
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Crown Prosecution Service were consulted and approved of the behaviour of the police. |
On 22 May 1991 the appellant was brought before a stipendiary magistrate for the purpose of committal proceedings. Counsel for the appellant requested an adjournment to permit him to challenge the jurisdiction of the magistrates' court. The application was refused and the appellant was committed for trial to the Southwark Crown Court on five offences of dishonesty. The appellant obtained leave to bring proceedings for judicial review to challenge the decision of the magistrate. On 22 July 1992 the Divisional Court ruled that as a preliminary issue the court would consider whether there was jurisdiction vested in the Divisional Court to inquire into the circumstances by which the appellant had come to be within the jurisdiction of the courts of England and Wales. |
On 31 July 1992 the Divisional Court held that even if the evidence showed collusion between the Metropolitan Police and the South African police in kidnapping the appellant and securing his enforced illegal removal from the Republic of South Africa there was no jurisdiction vested in the court to inquire into the circumstances by which the appellant came to be within the jurisdiction and accordingly dismissed the application for judicial review. The Divisional Court has certified the following question of law: |
"Whether in the exercise of its supervisory jurisdiction the court has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if so what remedy is available if any to prevent his trial where that person has been lawfully arrested within the jurisdiction for a crime committed within the jurisdiction." |
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under the Theft Acts. The applicant applied for an order of prohibition to prevent the hearing of committal proceedings against him in the magistrates' court on those charges. |
"Whatever the reason for the applicant being at Gatwick Airport on the tarmac, whether his arrival there had been obtained by fraud or illegal means, he was there. He was subject to arrest by the police force of this country. Consequently the mere fact that his arrival there may have been procured by illegality did not in any way oust the jurisdiction of the court. That aspect of the matter is simple." |
"There are explicit statutory directions that surround the extradition procedure. The procedure is widely known. It is frequently used by the police in the performance of their duty. For the protection of the public the statute rightly demands the sanction of recognised court processes before any person who is thought to be a fugitive offender can properly be surrendered from one country to another. And in our opinion there can be no possible question here of the court turning a blind eye to action of the New Zealand police which has deliberately ignored those imperative requirements of the statute. Some may say that in the present case a New Zealand citizen attempted to avoid a criminal responsibility by leaving the country: that his subsequent conviction has demonstrated the utility of the short cut adopted by the police to have him brought back. But this must never become an area where it will be sufficient to consider that the end has justified the means. The issues raised by this affair are basic to the whole concept of freedom in society. On the basis of reciprocity for similar favours earlier received are police officers here in New Zealand to feel free, or even obliged, at the request of their counterparts overseas to spirit New Zealand or other citizens out of the country on the basis of mere suspicion, conveyed perhaps by telephone, that some crime has been committed elsewhere? In the High Court of Australia Griffith C.J. referred to extradition as a 'great prerogative power, supposed to be an incident of sovereignty' and then rejected any suggestion that 'it could be put in motion by any constable who thought he knew the law of a foreign country, |
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"We have said that if the issue in the present case is to be considered merely in terms of jurisdiction then Bennett, being in New Zealand, could certainly be brought to trial and dealt with by the courts of this country. But we are equally satisfied that the means which were adopted to make that trial possible are so much at variance with the statute, and so much in conflict with one of the most important principles of the rule of law, that if application had been made at the trial on this ground, after the facts had been established by the evidence on the voir dire, the judge would probably have been justified in exercising his discretion under section 347(3) or under the inherent jurisdiction to direct that the accused be discharged." |
Lord Lane C.J. followed that passage and exercised the court's discretion to order prohibition against the magistrates' court and to discharge the applicant. |
Ex parte Mackeson, 75 Cr.App.R. 24 was followed by the Divisional Court in Reg. v. Guildford Magistrates' Court, Ex parte Healy [1983] 1 W.L.R. 108. |
"The question, therefore, is this, whether if a person charged with a crime is found in this country, it is the duty of the court to take care that such a party shall be amenable to justice, or whether we are to consider the circumstances under which she was brought here. I thought, and still continue to think, that we cannot inquire into them." |
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In the course of his judgment the Lord Justice-Clerk said, at pp. 40-42: |
"There are three stages of procedure in this case - first, there are the proceedings abroad where the complainer was arrested; second, there are the proceedings on the journey to this country; and third, the proceedings here. As regards the proceedings abroad and where the complainer was arrested, they may or may not have been regular, formal, and in accordance with the laws of Portugal and Spain, but we know nothing about them. What we do know is that two friendly powers agreed to give assistance to this country so as to bring to justice a person properly charged by the authorities in this country with a crime. If the Government of Portugal or of Spain has done anything illegal or irregular in arresting and delivering over the complainer his remedy is to proceed against these Governments. That is not a matter for our consideration at all, and we cannot be the judges of the regularity of such proceedings. |
"In point of fact the complainer was put on board a British vessel which was at that time in the roads at the mount of the Tagus, and given into the custody of a person who held a warrant to receive him, and who did so receive him. This warrant was perfectly regular, as also his commitment to stand his trial on a charge of embezzlement. If there was any irregularity in the granting or execution of these warrants the person committing such irregularity would be liable in an action of damages if any damage was caused. But that cannot affect the proceedings of a public authority here. The public authority here did nothing wrong. The warrants given to the officer to detain the prisoner were quite formal, and it is not said that he did anything wrong. |
"It is said that the Government of Portugal did something wrong, and that the authorities in this country are not to be entitled to obtain any advantage from this alleged wrongdoing. As I have said, |
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we cannot be the judges of the wrongdoing of the Government of Portugal. What we have here is that a person has been delivered to a properly authorised officer of this country, and is now to be tried on a charge of embezzlement in this country. He is therefore properly before the court of a competent jurisdiction on a proper warrant. I do not think we can go behind this. There has been no improper dealing with the complainer by the authorities in this country, or by their officer, to induce him to put himself in the position of being arrested, as was the case in two of the cases cited. They were civil cases in which the procedure was at the instance of a private party for his own private ends, and the court very properly held that a person could not take advantage of his own wrongdoing. But that is not the case here. . . . |
"No irregularity, then, involving suspension can be said to have taken place on his arrival in London and on his journey here. But even if the proceedings here were irregular I am of opinion that where a court of competent jurisdiction has a prisoner before it upon a competent complaint they must proceed to try him, no matter what happened before, even although he may have been harshly treated by a foreign government, and irregularly dealt with by a subordinate officer." |
Lord M'Laren stated his view in the following terms, at pp. 43-44: |
"With regard to the competency of the proceedings in Portugal, I think this is a matter with which we really have nothing to do. The extradition of a fugitive is an act of sovereignty on the part of the state who surrenders him. Each country has its own ideas and its own rules in such matters. Generally it is done under treaty arrangements, but if a state refuses to bind itself by treaty, and prefers to deal with each case on its merits, we must be content to receive the fugitive on these conditions, and we have neither title nor interest to inquire as to the regularity of proceedings under which he is apprehended and given over to the official sent out to receive him into custody. . . . |
"I am of opinion with your Lordships that, when a fugitive is brought before a magistrate in Scotland on a proper warrant, the magistrate has jurisdiction, and is bound to exercise it without any consideration of the means which have been used to bring him from the foreign country into the jurisdiction. |
"In a case of substantial infringement of right this court will always give redress, but the public interest in the punishment of crime is not to be prejudiced by irregularities on the part of inferior officers of the law in relation to the prisoner's apprehension and detention." |
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no power to arrest him in Belgium and his arrest was contrary to Belgian law. Dealing with this submission Lord Goddard C.J. said, at p. 376: |
"The point with regard to the arrest in Belgium is entirely false. If a person is arrested abroad and he is brought before a court in this country charged with an offence which that court has jurisdiction to hear, it is no answer for him to say, he being then in lawful custody in this country: 'I was arrested contrary to the laws of the state of A or the state of B where I was actually arrested.' He is in custody before the court which has jurisdiction to try him. What is it suggested that the court can do? The court cannot dismiss the charge of one without its being heard. He is charged with an offence against English law, the law applicable to the case. If he has been arrested in a foreign country and detained improperly from the time that he was first arrested until the time he lands in this country, he may have a remedy against the persons who arrested and detained him, but that does not entitle him to be discharged, though it may influence the court if they think there was something irregular or improper in the arrest." |
"That, again, is a perfectly clear and unambiguous statement of the law administered in Scotland. It shows that the law of both countries is exactly the same on this point and that we have no power to go into the question, once a prisoner is in lawful custody in this country, of the circumstances in which he may have been brought here. The circumstances in which the applicant may have been arrested in Belgium are no concern of this court." |
In the present case the Divisional Court approved the decision in Ex parte Driver [1986] Q.B. 95 and in giving the leading judgment of the court Woolf L.J. said: |
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is based upon the inherent power of the court to protect itself against the abuse of its own process. If the matters which are being relied upon have nothing to do with that process but only explain how a person comes to be within the jurisdiction so that that process can commence, it seems to me difficult to see how the process of the court (and I emphasise the word 'court') can be abused by the fact that a person may or may not have been brought to this country improperly." |
However, in a later passage Woolf L.J. drew a distinction between improper behaviour by the police and the prosecution itself, he said: |
"Speaking for myself, I am not satisfied there could not be some form of residual discretion which in limited circumstances would enable a court to intervene, not on the basis of an abuse of process but on some other basis which in the appropriate circumstances could avail a person in a situation where he contends that the prosecution are involved in improper conduct." |
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"The appellant, a member of the military wing of the African National Congress who had fled South Africa while under a restriction order, had been abducted from his home in Mbabane, Swaziland, by persons acting as agents of the South African State, and taken back to South Africa, where he was handed over to the police and detained in terms of security legislation. He was subsequently charged with treason in a Circuit Local Division, which convicted and sentenced him to 20 years' imprisonment. The appellant had prior to pleading launched an application for an order to the effect that the court lacked jurisdiction to try the case inasmuch as his abduction was in breach of international law and thus unlawful. The application was dismissed and the trial continued. |
"The court, on appeal against the dismissal of the above application, held, after a thorough investigation of the relevant South African and common law, that the issue as to the effect of the abduction on the jurisdiction of the trial court was still governed by the Roman and Roman-Dutch common law which regarded the removal of a person from an area of jurisdiction in which he had been illegally arrested to another area as tantamount to abduction and thus constituted a serious injustice. A court before which such a person was brought also lacked jurisdiction to try him, even where such a person had been abducted by agents of the authority governing the area of jurisdiction of the said court. The court further held that the above rules embodied several fundamental legal principles, viz. those that maintained and promoted human rights, good relations between states and the sound administration of justice: the individual had to be protected against unlawful detention and against abduction, the limits of territorial jurisdiction and the sovereignty of states had to be respected, the fairness of the legal process guaranteed and the abuse thereof prevented so as to protect and promote the dignity and integrity of the judicial system. The state was bound by these rules and had to come to court with clean hands, as it were, when it was itself a party to proceedings and this requirement was clearly not satisfied when the state was involved in the abduction of persons across the country's borders. |
"It was accordingly held that the court a quo had lacked jurisdiction to try the appellant and his application should therefore have succeeded. As the appellant should never have been tried by the court a quo, the consequences of the trial had to be undone and the appeal disposed |
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of as one against conviction and sentence. Both the conviction and sentence were accordingly set aside." |
"The power to stop a prosecution arises only when it is an abuse of a process of the court. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable . . . The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness to both the defendant and the prosecution." |
"there is a clear public interest to be observed in holding officials of the state to promises made by them in full understanding of what is entailed by the bargain." |
Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to |
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interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. |
My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law. The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended. So also should it be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it. |
"The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused." |
The courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution. |
In my view your Lordships should now declare that where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party. |
If extradition is not available very different considerations will arise on which I express no opinion. |
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"So far as the ground upon which they did dismiss the information was concerned, every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court." |
The power has recently and most comprehensively been considered and affirmed by the Divisional Court by Reg. v. Telford Justices, Ex parte Badhan [1991] 2 Q.B. 78, 81. |
Provided it is appreciated by magistrates that this is a power to be most sparingly exercised, of which they have received more than sufficient |
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I would answer the certified question as follows. The High Court in the exercise of its supervisory jurisdiction has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if satisfied that it was in disregard of extradition procedures it may stay the prosecution and order the release of the accused. |
Accordingly I would allow this appeal and remit the case to the Divisional Court for further consideration. |
LORD BRIDGE OF HARWICH. My Lords, this appeal raises an important question of principle. When a person is arrested and charged with a criminal offence, is it a valid ground of objection to the exercise of the court's jurisdiction to try him that the prosecuting authority secured the prisoner's presence within the territorial jurisdiction of the court by forcibly abducting him from within the jurisdiction of some other state, in violation of international law, in violation of the laws of the state from which he was abducted, in violation of whatever rights he enjoyed under the laws of that state and in disregard of available procedures to secure his lawful extradition to this country from the state where he was residing? This is to state the issue very starkly, perhaps some may think tendentiously. But because this appeal has to be determined on the basis of assumed facts, your Lordships, as it seems to me, cannot avoid grappling with the issue in this stark form. |
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In this country and in Scotland the mainstream of authority, as the careful review in the speech of my noble and learned friend, Lord Griffiths, shows, appears to give a negative answer to the question posed, holding that the courts have no power to examine the circumstances in which a prisoner was brought within the jurisdiction. I fully recognise the cogency of the arguments which can be adduced in support of this view, sustained as they are by the public interest in the prosecution and punishment of crime. But none of the previous authorities is binding on your Lordships' House and, if there is another important principle of law which ought to influence the answer to the question posed, then your Lordships are at liberty, indeed under a duty, to examine it and, if it transpires that this is an area where two valid principles of law come into conflict, it must, in my opinion, be for your Lordships to decide as a matter of principle which of the two conflicting principles of law ought to prevail. |
"several fundamental legal principles: viz. those that maintained and promoted human rights, good relations between states and the sound administration of justice: the individual had to be protected against unlawful detention and against abduction, the limits of territorial jurisdiction and the sovereignty of states had to be respected, the fairness of the legal process guaranteed and the abuse thereof prevented so as to protect and promote the dignity and integrity of the judicial system. The state was bound by these rules and had to come to court with clean hands, as it were, when it was itself a party to proceedings and this requirement was clearly not satisfied when the state was involved in the abduction of persons across the country's borders." |
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exercise of its jurisdiction to try him, provided he was physically present at the time of trial, he appealed to the United States Court of Appeals Second Circuit. The effect of the court's decision is sufficiently summarised in the headnote. The court held: |
"that federal district court's criminal process would be abused or degraded if it was executed against defendant Italian citizen, who alleged that he was brought into the United States from Uruguay after being kidnapped, and such abuse could not be tolerated without debasing the processes of justice, so that defendant was entitled to a hearing on his allegations. . . . Government should be denied the right to exploit its own illegal conduct, and when an accused is kidnapped and forcibly brought within the jurisdiction, court's acquisition of power over his person represents the fruits of the government's exploitation of its own misconduct." |
"The Court of Appeal of South Africa - indeed, I suspect most courts throughout the civilised world - will be deeply disturbed by the 'monstrous' decision the court announces today. For every nation that has an interest in preserving the rule of law is affected, directly or indirectly, by a decision of this character." |
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Whatever differences there may be between the legal systems of South Africa, the United States, New Zealand and this country, many of the basic principles to which they seek to give effect stem from common roots. There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself. When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of the laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of that circumstance. To hold that the court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view. Having then taken cognisance of the lawlessness it would again appear to me to be a wholly inadequate response for the court to hold that the only remedy lies in civil proceedings at the suit of the defendant or in disciplinary or criminal |
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For these reasons and for the reasons given in the speech of my noble and learned friend, Lord Griffiths, with which I fully agree, I would allow the appeal. |
LORD OLIVER OF AYLMERTON. My Lords, a citizen whose rights have been infringed by unlawful or over-enthusiastic action on the part of an executive functionary has a remedy by way of recourse to the courts in civil proceedings. It may not be an ideal remedy. It may not always be a remedy which is easily available to the person injured. It may not even, certainly in his estimation, be an adequate remedy. But it is the remedy which the law provides to the citizen who chooses to invoke it. The question raised by this appeal is whether, in addition to such remedies as may be available in civil proceedings, the court should assume the duty of overseeing, controlling and punishing an abuse of executive power leading up to properly instituted criminal proceedings not by means of the conventional remedies invoked at the instance of the person claiming to have been injured by such abuse but by restraining the further prosecution of those proceedings. The results of the assumption of such a jurisdiction are threefold; and they are surprising. First, the trial put in train by a charge which has been properly laid will not take place and the person charged (if guilty) will escape a just punishment; secondly, the civil remedies available to that person will remain enforceable; and thirdly, the public interest in the prosecution and punishment of crime will have been defeated not by a necessary process of penalising those responsible for executive abuse but simply for the purpose of manifesting judicial disapproval. |
It is, of course, axiomatic that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all. But it is also axiomatic that there is a strong public interest in the prosecution and punishment of crime. Absent any suggestion of unfairness or oppression in the trial process, an application to the court |
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charged with the trial of a criminal offence (to which it may be convenient to refer by the shorthand expression "a criminal court"), whether that application be made at the trial or at earlier committal proceedings, to order the discontinuance of the prosecution and the discharge of the accused on the ground of some anterior executive activity in which the court is in no way implicated requires to be justified by some very cogent reason. |
Making, as I do, every assumption in favour of the appellant as regards the veracity of the evidence which he has adduced and the implications sought to be drawn from it, I discern no such cogent reason in the instant case. I do not consider that, either as a matter of established law or as a matter of principle, a criminal court should be concerned to entertain questions as to the propriety of anterior executive acts of the law enforcement agencies which have no bearing upon the fairness or propriety of the trial process or the ability of the accused to defend himself against charges properly brought against him. |
The appellant invites this House now to say that the decision in Ex parte Mackeson is to be preferred and that a criminal court's |
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undoubted jurisdiction to prevent abuses of its own process should be extended, if indeed it does not already extend, to embrace a much wider jurisdiction to oversee what is referred to generally as "the administration of justice," in the broadest sense of the term, including the executive acts of law enforcement agencies occurring before the process of the court has been invoked at all and having no bearing whatever upon the fairness of the trial. I have to say that I am firmly of the opinion that, whether such a course be properly described as legislation or merely as pushing forward the frontiers of the common law, the invitation is one which ought to be resisted. For my part, I see neither any inexorable logic calling for such an extension nor any social need for it; and it seems to me to be a course which will be productive of a good deal of inconvenience and uncertainty. |
I can, perhaps, best explain my reluctance to embark upon such a course by postulating and seeking to answer two questions. |
First, does a criminal court have, or should it have, any general duty or any power to investigate and oversee executive abuses on the part of law enforcement officers not affecting either the fairness of the trial process or the bona fides of the charge which it is called upon to try and occurring prior to the institution of the criminal proceedings and to order the discontinuance of such proceedings and the discharge of the accused if it is satisfied that such abuses have taken place? Secondly, if there is no such general jurisdiction and if the executive abuse alleged consists of the repatriation of the accused from a foreign country through acts which are unlawful in the country in which they occurred, is there some special quality in this form of executive abuse which gives rise to or which calls for the creation of such a jurisdiction in this particular case? |
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apprehension and detention. That is not for a moment to suggest that such abuses, if they occur, are unimportant or are to be lightly accepted; but they are acts for which, if they are unlawful, the accused has the same remedies as those available to any other citizen whose legal rights have been infringed. If they are not only unlawful but are criminal as well, they are themselves remediable by criminal prosecution. That a judge may disapprove of or even be rightly outraged by the manner in which an accused has been apprehended or by his treatment whilst in custody cannot, however, provide a ground for declining to perform the public duty of insuring that, once properly charged, he is tried fairly according to law. |
In Reg. v. Sang [1980] A.C. 402, 454, Lord Scarman observed: |
"Judges are not responsible for the bringing or abandonment of prosecutions: nor have they the right to adjudicate in a way which indirectly usurps the functions of the legislature or jury." |
Those words were used in the context of a suggested discretion to prevent a prosecution because of judicial disapproval of the way in which admissible evidence had been obtained, but they are equally applicable to other executive acts which may incur judicial disapprobation. Experience shows that allegations of abusive use of executive power in the apprehension of those accused of criminal offences are far from rare. They may take the form of allegations of illegal entry on private premises, of damage to property, of the use of excessive force or even of ill-treatment or violence whilst in custody. So far as there is substance in such allegations, such abuses are disgraceful and regrettable and they may, no doubt, be said to reflect very ill on the administration of justice in the broadest sense of that term. But they provide no justification nor, so far as I am aware, is there any authority for the proposition that wrongful treatment of an accused, having no bearing upon the fairness of the trial process, entitles him to demand that he be not tried for an offence with which he has been properly charged. Indeed, any such general jurisdiction of a criminal court to investigate and adjudicate upon antecedent executive acts would be productive of hopeless uncertainty. It clearly cannot be the case that every excessive use of executive power entitles the accused to be exonerated. But then at what point and at what degree of outrage is the criminal court to undertake an inquiry and, if satisfied, to take upon itself the responsibility of refusing further to try the case? |
If, then, it be right, as I believe that it is, that there neither is nor should be any general discretion in a criminal court to inquire into the conduct of executive officers before and leading up to the institution of criminal proceedings, the second question which I have ventured to postulate arises. Where, with the connivance or at the instigation of executive officers in this country, an accused person who has taken refuge in a foreign country is brought as a result of activity unlawful in that country within the jurisdiction of an English court and is then lawfully detained and charged, is there some special quality attaching to the unlawful and abusive activity abroad which confers or ought to confer on the criminal court a discretion which it would not otherwise possess? |
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The matter can, perhaps, best be illustrated by a hypothetical example of two terrorists, A and B, who, having detonated a bomb in London, make their way to Dover with a view to escaping abroad. A, as a result of a quarrel with a ticket inspector, is wrongfully detained by the railway police and whilst still in wrongful custody is duly arrested for the terrorist offence and subsequently charged. B, having successfully boarded a Channel ferry, is recognised as he steps ashore in Calais by two off-duty constables returning from holiday who seize him on the quayside and take him back on board keeping him under restraint until the ferry returns to Dover where he is arrested and charged. Now nobody would, I think, suggest for a moment that the trial of A should not proceed, simply because, as a result of a wrongful arrest and detention, he has been prevented from making good his escape, although he has in fact been put in the position of being charged and brought to trial only by reason of an unlawful abuse of executive power. What, then, distinguishes the case of B and confers on the criminal court in his case a discretion to stay his trial and discharge him which the court which does not possess in the case A? I can see only two possible justifications for the suggestion that the court ought, in B's case, to have such a discretion. First, it may be argued that, as a matter of international comity an English court ought to signify its disapproval of the invasion of the protective rights of a foreign state over those who come within its jurisdiction by declining to try a person who has been wrongfully removed from the protection of that state through the instrumentality of persons for whose actions the authorities of this country are responsible. I do not find this argument persuasive. An English criminal court is not concerned nor is it in a position to investigate the legality under foreign law of acts committed on foreign soil and in any event any complaint of an invasion of the sovereignty of a foreign state is, as it seems to me, a matter which can only properly be pursued on a diplomatic level between the government of the United Kingdom and the government of that state. |
Secondly, it may be argued that the unlawful activity of which complaint is made, because it results in the accused being brought within a jurisdiction from which he would otherwise have escaped, is invested with a special character because it infringes some "right" of the accused in English law to be repatriated only through a process of extradition by the state under whose protection he has succeeded in placing himself. Now it is, of course, perfectly true that the Extradition Act 1989 contains, in section 6(4), an inhibition upon extradition from the United Kingdom unless provision is made by the receiving state that the person extradited will not, without the consent of the Secretary of State, be dealt with for (in broad terms) offences other than those in respect of which his extradition has been ordered. That provision is mirrored in section 18 of the Act which provides that the person extradited to the United Kingdom from a foreign state will not be triable for (again in broad terms) offences other than those for which he has been extradited unless he has first had an opportunity of leaving the United Kingdom. Thus a person who is returned only as a result of extradition proceedings enjoys, as a result of this statutory inhibition, an advantage over one who elects |
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to return voluntarily or who is otherwise induced to return within the jurisdiction. But these are provisions inserted in the Act for the purpose of giving effect to reciprocal treaty arrangements for extradition. I cannot, for my part, regard them as conferring upon a person who is fortunate enough successfully to flee the jurisdiction some "right" in English law which is invaded if he is brought or induced to come back within the jurisdiction otherwise than by an extradition process, much less a right the invasion of which a criminal court is entitled or bound to treat as vitiating the process commenced by a charge properly brought. It is not suggested for a moment that if, as a result of perhaps unlawful police action abroad - for instance, in securing the deportation of the accused without proper authority - in which officers of the United Kingdom authorities are in no way involved, an accused person is found here and duly charged, the illegality of what may have occurred abroad entitles the criminal court here to discontinue the prosecution and discharge the accused. Yet in such a case the advantage which the accused might have derived from the extradition process is likewise destroyed. No "right" of his in English law has been infringed, though he may well have some remedy in the foreign court against those responsible for his wrongful deportation. What is said to make the critical difference is the prior involvement of officers of the executive authorities of the United Kingdom. But the arrest and detention of the accused are not part of the trial process upon which the criminal court has the duty to embark. Of course, executive officers are subject to the jurisdiction of the courts. If they act unlawfully, they may and should be civilly liable. If they act criminally, they may and should be prosecuted. But I can see no reason why the antecedent activities, whatever the degree of outrage or affront they may occasion, should be thought to justify the assumption by a criminal court of a jurisdiction to terminate a properly instituted criminal process which it is its duty to try. |
I would only add that if, contrary to my opinion, such an extended jurisdiction over executive abuse does exist, I entirely concur with what has fallen from my noble and learned friend, Lord Griffiths, with regard to the appropriate court to exercise such jurisdiction. I would dismiss the appeal and answer the certified question in the negative. |
LORD LOWRY. My Lords, having had the advantage of reading in draft the speeches of your Lordships, I accept the conclusion of my noble and learned friends, Lord Griffiths and Lord Bridge of Harwich, that the court has a discretion to stay as an abuse of process criminal proceedings brought against an accused person who has been brought before the court by abduction in a foreign country participated in or encouraged by British authorities. Recognising, however, the clear and forceful reasoning of my noble and learned friend, Lord Oliver of Aylmerton to the contrary, I venture to contribute some observations of my own. |
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This last example, though admittedly not based on authority, foreshadows my conclusion that a court would have power to stay the present proceedings against the appellant, assuming the facts alleged to be proved, because I consider that a court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a court to try a person who is charged before it with an offence which the court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct. Accordingly, if the |
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prosecuting authorities have been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the court ought not to stay the proceedings merely "pour encourager les autres." |
"What we were asked to do in the present case, and the most we could have been asked to do, was to admit the prisoner to bail until the court was ready to try him." |
While on the subject of due process, I might take note of a subsidiary argument by the respondent: the use by the prosecution of evidence which has been unlawfully or dishonestly obtained is regarded in the United States as a violation of due process ("the fruit of the poisoned tree"), but the preponderant American view is in favour of trying accused persons even when their presence in court has been unlawfully obtained; therefore a fortiori the view in this jurisdiction ought to favour trying |
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The philosophy which inspires the proposition that a court may stay proceedings brought against a person who has been unlawfully abducted in a foreign country is expressed, so far as existing authority is concerned, in the passages cited by my noble and learned friend, Lord Bridge of Harwich. The view there expressed is that the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court's conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court's process has been abused. Therefore, although the power of the court is rightly confined to its inherent power to protect itself against the abuse of its own process, I respectfully cannot agree that the facts relied on in cases such as the present case (as alleged) "have nothing to do with that process" just because they are not part of the process. They are the indispensable foundation for the holding of the trial. |
The implications for international law, as represented by extradition treaties, are significant. If a suspect is extradited from a foreign country to this country he cannot be tried for an offence which is different from that specified in the warrant and, subject always to the treaty's express provisions, cannot be tried for a political offence. But, if he is kidnapped in the foreign country and brought here, he may be charged with any offence, including a political offence. If British officialdom at any level has participated in or encouraged the kidnapping, it seems to represent a grave contravention of international law, the comity of nations and the rule of law generally if our courts allow themselves to be used by the executive to try an offence which the courts would not be dealing with if the rule of law had prevailed. |
"the trial of a person for a criminal offence is not a contest of private interests in which the rights of parties can be waived at pleasure. The prosecution of criminals and the administration of the criminal law are matters which concern the state." |
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If proceedings are stayed when wrongful conduct is proved, the result will not only be a sign of judicial disapproval but will discourage similar conduct in future and thus will tend to maintain the purity of the stream of justice. No "floodgates" argument applies because the executive can stop the flood at source by refraining from impropriety. |
I regard it as essential to the rule of law that the court should not have to make available its process and thereby endorse (on what I am confident will be a very few occasions) unworthy conduct when it is proved against the executive or its agents, however humble in rank. And, remembering that it is not jurisdiction which is in issue but the exercise of a discretion to stay proceedings, while speaking of "unworthy conduct," I would not expect a court to stay the proceedings of every trial which has been preceded by a venial irregularity. If it be objected that my preferred solution replaces certainty by uncertainty, the latter quality is inseparable from judicial discretion. And, if the principles are clear and, as I trust, the cases few, the prospect is not really daunting. Nor do I consider that your Lordships ought to be deterred from deciding in favour of discretion by the difficulty, which may sometimes arise, of proving the necessary facts. |
I would now pose and try to answer three questions. |
(1) What is the position if without intervention by the British authorities a "wanted man" is wrongfully transported from a foreign country to this jurisdiction? |
The court here is not concerned with irregularities abroad in which our executive (at any level) was not involved and the question of staying criminal proceedings, as proposed in a case like the present, does not arise. It seems to me, however, that in practice the transporting of a wanted man to the United Kingdom from elsewhere (by whatever method) will nearly always take place in consequence of a request by the executive here. |
(2) Why should the court not stay for abuse of process if the accused has been wrongfully arrested in the United Kingdom (which is not alleged to have happened in the instant case)? |
A person wrongfully arrested here can seek release by applying for a writ of habeas corpus but, once released, can be lawfully arrested, charged and brought to trial. His earlier wrongful arrest is not essentially connected with his proposed trial and the proceedings against him will not be stayed as an abuse of process. |
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"The courts cannot contemplate for a moment the transference to the executive of the responsibility for seeing that the process of law is not abused." |
I now turn to the question of procedure. The appellant, having been committed for trial, applied for an order of certiorari to quash the order for committal on the ground that the magistrates refused to adjourn the committal proceedings "to enable the point of abuse of process to be argued," presumably in the Divisional Court of the Queen's Bench Division. Although I feel obliged to consider the procedure which was followed in this case and that which must follow from the conclusion of the majority of your Lordships, I preface my remarks by saying that I agree with the answer to the certified question, and also with the order, which my noble and learned friend, Lord Griffiths, has proposed. |
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is, there should be an objection to the justice hearing the committal and the matter should be pursued before the Divisional Court by way of an application for judicial review seeking an order of prohibition. That is not to say that we have any criticism whatsoever of the way in which the justice approached her task in this case. Both the defence and the prosecution asked her to decide the question; she clearly went into it with the greatest care and we are quite unable to find any fault or criticism with any of the conclusions of fact at which she arrived. In the opinion of this court, having been asked to undertake a task which we do not think was appropriate for a single lay justice, she discharged her duties quite admirably." |
And, at p. 113: |
McCullough J., concurring, said, at pp. 113-114: |
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What I have said is not of course intended to detract from the power of the court of trial itself, as the primary forum, to stay proceedings as an abuse of process, but the convenience of staying the proceedings at an earlier stage is obvious, when that can properly be done. |
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Since the resolution of the point is not essential to your Lordships' decision of the appeal, I shall be brief in my discussion of whether the examining magistrates can stay committal proceedings as an abuse of process. |
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Dawson J. observed that it has been consistently held that committal proceedings do not constitute a judicial inquiry but are conducted in the exercise of a judicial or ministerial function. Citing seven Australian cases, he continued, 168 C.L.R. 1, 11: |
"The explanation is largely to be found in history. A magistrate in conducting committal proceedings is exercising the powers of a justice of the peace. Justices originally acted, in the absence of an organised police force, in the apprehension and arrest of suspected offenders. Following the Statutes of Philip and Mary of 1554 and 1555 (1 & 2 Philip & Mary c. 13; 2 & 3 Philip & Mary c. 10), they were required to act upon information and to examine both the accused and the witnesses against him. The inquiry was conducted in secret and one of its main purposes was to obtain evidence to present to a grand jury. The role of the justices was thus inquisitorial and of a purely administrative nature. It was the grand jury, not the justices, who determined whether the accused should stand trial. With the establishment of an organised police force in England in 1829, the role of the justices underwent change. The most significant factor in this change was in the Indictable Offences Act 1848 (U.K.) (11 & 12 Vict. c. 42), 'Sir John Jervis's Act,' which provided for witnesses appearing before the justices to be examined in the |
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presence of the accused and to be cross-examined by the accused or his counsel." |
After an interesting and valuable historical review the judge said, at pp. 15-16: |
Then, having emphasised the distinction between inherent jurisdiction and jurisdiction by implication, Dawson J. observed, at pp. 17-18: |
"The fact that in the conduct of committal proceedings a magistrate is performing a ministerial or administrative function is, of course, no bar to the existence of implied powers, if such are necessary for the effective exercise of the powers which are expressly conferred upon him. The latter are now to be found in section 41 of the Justices Act. But the scheme of that section, far from requiring the implication of a general power to stay proceedings, is such as to impose an obligation upon the magistrate to dispose of the information which brings the defendant before him by discharging the defendant as to it or by committing him for trial." |
Having referred to section 41 of the Justices Act 1902, the judge then said, at p. 18: |
"There is no room in the face of these statutory obligations, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided. Nor is this surprising. True it is that a person committed for trial is exposed to trial in a way in which he would otherwise not be, but the ultimate determination whether he does in fact stand trial does not rest with the magistrate. The power to order a stay where there is an abuse of the process of the trial court is not to be found in the committing magistrate and the considerations which |
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would guide the exercise of that power have little relevance to the function which the magistrate is required to perform." |
It would, of course, be convenient (as well as correct, in my view) if the examining magistrates could not stay for abuse of process, because judicial review of a decision to stay would be a most inadequate remedy if the real ground of review was simply that the magistrates had erred in their exercise of discretion. Moreover, their decision would not bind the court of trial, if the Attorney-General were to prefer a voluntary bill. |
For the reasons already mentioned and also for the reasons given by my noble and learned friends I would allow the appeal. |
LORD SLYNN OF HADLEY. My Lords, I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Griffiths, Lord Bridge of Harwich and Lord Oliver of Aylmerton. Despite the powerful reasons adverted to by Lord Oliver of Aylmerton I agree with Lord Griffiths that the question should be answered in the way he proposes. It does not seem to me to be right in principle that, when a person is brought within the jurisdiction in the way alleged in this case (which for present purposes must be assumed to be true) and charged, that the court should not be competent to investigate the illegality alleged, and if satisfied as to the illegality to refuse to proceed to trial. I would accordingly allow the appeal. |
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Solicitors: Hallinan Blackburn Gittings and Nott; Crown Prosecution Service. |
A. R. |