[HOUSE OF LORDS]

In re REES

[On appeal from REGINA v. SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte REES]

Extradition - Committal proceedings - Evidence - "Depositions or statements on oath, taken in a foreign state" - Crime committed in Bolivia - Requisition by German Government for extradition of applicant suspected of having committed crime - Statements taken in Bolivia - Whether statements restricted to those taken in state applying for extradition - Secretary of State making second order for magistrate to proceed after receipt of further evidence - Applicant discharged from custody and re-arrested without further requisition by German Government - Whether Secretary of State's second order lawful - Whether abuse of power or process - Extradition Act 1870 (33 & 34 Vict. c.52), ss. 7, 10, 14 ¹ - Federal Republic of Germany (Extradition) Order 1960 (S.I. 1960 No. 1375), Sch. 2, arts. XI, XII ² - Federal Republic of Germany (Extradition) (Amendment) Order 1978 (S.I. 1978 No. 1403), art. 3 ³

On 13 March 1984 a warrant was issued under section 8(2) of the Extradition Act 1870 by a magistrate at Bow Street for the arrest of the applicant "suspected and accused of the commission of the crime of detaining a hostage," a West German national, at La Paz, Bolivia. The applicant was arrested at London-Gatwick airport on the same day. On 13 April 1984 the Secretary of State for the Home Department made an order under section 7 of the Act signifying that a requisition had been made on behalf of the Government of the Federal Republic of Germany for the surrender of the applicant accused of the crime of detaining a hostage and requiring the magistrate to proceed. The applicant was remanded in custody. Statements and depositions, a substantial proportion of which comprised translations of statements made in Bolivia, were served on the applicant's solicitors. The hearing pursuant to section 10 of the Act of 1870 commenced on 6 July 1984, and an issue was argued as a

1 Extradition Act 1870, s. 7: see post, p. 960D-F.

S. 10: "In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged. ..."

S.14: see post, p. 952E-F.

2 Federal Republic of Germany (Extradition) Order 1960, Sch. 2, art. XI: see post, p. 953C-E.

Art. XII: "If sufficient evidence for the extradition be not produced within two months from the date of the apprehension of the fugitive, he shall be set at liberty."

3 Federal Republic of Germany (Extradition) (Amendment) Order 1978, art. 3: see post, p. 955A-B.

preliminary point whether the Bolivian statements were properly to be received in evidence under article XI of the treaty relating to extradition between the German Government and the Government of the United Kingdom scheduled to the Federal Republic of Germany (Extradition) Order 1960. The magistrate ruled that the statements were to be received in evidence. On 6 July 1984 further statements were received at the court from Bolivia, not translated into English but appearing to be properly authenticated. Due to insufficient time, the hearing was adjourned. On 25 July 1984 the Secretary of State issued a further order to proceed under section 7 of the Act of 1870 requiring the magistrate to issue his warrant for the applicant's arrest on a narrative substantially identical to that in the order of 13 April. No further requisition had been made by the German Government. On 26 July 1984 the magistrate terminated the part-heard proceedings and ordered the discharge of the applicant, who on leaving the dock was immediately re-arrested on a warrant issued by the magistrate in compliance with the Secretary of State's second order. The magistrate rejected a submission by the applicant that the renewed proceedings were oppressive, vexatious and an abuse of the process of the court. The applicant applied for judicial review of the Secretary of State's order to proceed of 25 July 1984 and the magistrate's decision of 26 July 1984 to proceed with the hearing, contending that the Bolivian statements were inadmissible in evidence, that the Secretary of State had had no power to issue his second order and that the proposed continuation of the proceedings was oppressive, vexatious and an abuse of process. The Divisional Court of the Queen's Bench Division dismissed the application.

On the applicant's appeal:-

Held, dismissing the appeal, (1) that the application of section 14 of the Extradition Act 1870 to proceedings for extradition under the agreement with the Federal Republic of Germany was not limited either by article XI of the extradition treaty or by article 3 of the Federal Republic of Germany (Extradition) Order 1978; and that since on its true construction there was no reason to construe the phrase in section 14 "in a foreign state" as impliedly restricting the depositions or statements that might be received in evidence to depositions or statements taken in the foreign state applying for the extradition, the Bolivian statements were admissible in evidence (post, pp. 950C-D, 955B-D, 959F-G, 964E-F).

Rex v. Governor of Brixton Prison [1911] 2 K.B. 82, D.C. considered.

(2) That in extradition proceedings pursuant to section 10 of the Act of 1870 the magistrate was not concerned with the question whether the evidence produced by the requesting state would be available at the trial in the requesting state in admissible form according to the law of the requesting state (post, pp. 950C-D, 952C-D, 960A-B, 964E-F).

(3) That section 7 of the Act of 1870 placed no express limitation on the number of orders to proceed that the Secretary of State might make pursuant to a requisition for the surrender of a fugitive and none could be inferred; that the Secretary of State might make a further order or orders whether or not the fugitive was already in custody pursuant to proceedings

consequent on an earlier order and whether or not any further requisition from the requesting state had been received; and that where a fugitive had been discharged from custody following on proceedings under an earlier order article XII of the treaty did not prevent his re-arrest under a further order although the institution of new proceedings might, in certain circumstances, amount to an abuse of process (post, pp. 950C-D, 961A-E, H-962A,963B-C, 964E-F).

Reg. v. Governor of Pentonville Prison, Ex parte Sotiriadis [1975] A.C. 1, H.L.(E.) considered.

(4) That in all the circumstances the abandonment by the German Government of the earlier proceedings in which the new evidence was not available in order to replace them with proceedings in which it would be available, whereby difficult questions as to the form and authentication of the earlier evidence could be avoided, had not been an abuse of power or of the process of the court (post, pp. 950C-D, 963H-964D, E-F).

Per curiam. (i) The weight to be given to such evidence is a matter for the magistrate. The magistrate would not be entitled to refuse to admit evidence obtained in a third state according to considerations such as the character of that state's regime, whether the United Kingdom has an extradition treaty with it and the like (post, pp. 950C-D, 959G-H, 964E-F).

(ii) The purpose of article XII of the treaty is to prevent the government seeking extradition from causing a person to be held in custody for longer than two months while they seek to assemble sufficient evidence to justify his extradition (post, pp. 950C-D, 962D-E, 964E-F).

Decision of the Divisional Court of the Queen's Bench Division affirmed.

The following cases are referred to in the opinion of Lord Mackay of Clashfern:

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.)

Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556; [1962] 3 W.L.R. 1013; [1962] 3 All E.R. 529, H.L.(E.)

Reg. v. Governor of Pentonville Prison, Ex parte Passingham [1983] 2 A.C. 464; [1983] 2 W.L.R. 791; [1983] 2 All E.R. 123, H.L.(E.)

Reg. v. Governor of Pentonville Prison, Ex parte Singh (Harmohan) [1981] 1 W.L.R. 1031; [1981] 3 All E.R. 23, D.C.

Reg. v. Governor of Pentonville Prison, Ex parte Sotiriadis [1975] A.C. 1; [1974] 2 W.L.R. 253; [1974] 1 All E.R. 692, H.L.(E.)

Rex v. Governor of Brixton Prison [1911] 2 K.B. 82, D.C.

The following additional cases were cited in argument:

Ahmed, In re (unreported), 14 July 1983, D.C.

Athanassiadis v. Government of Greece (Note) [1971] A.C. 282; [1969] 3 W.L.R. 544; [1969] 3 All E.R. 293, H.L.(E.)

Attorney-General for the Dominion of Canada v. Fedorenko [1911] A.C. 735, P.C.

Connelly v. Director of Public Prosecutions [1964] A.C. 1254; [1964] 2 W.L.R. 1145; [1964] 2 All E.R. 401, H.L.(E.)

Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374; [1984] 3 W.L.R. 1174; [1984] 3 All E.R. 935. H.L.(E.)

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.)

Mills v. Cooper [1967] 2 Q.B. 459; [1967] 2 W.L.R. 1343; [1967] 2 All E.R. 100, D.C.

Moevao v. Department of Labour [1980] 1 N.Z.L.R. 464

Nielsen, In re (1984) 79 Cr.App.R. 1, D.C.; [1984] A.C. 606; [1984] 2 W.L.R. 737; [1984] 2 All E.R. 81, H.L.(E.)

Reg. v. Bow Street Magistrates' Court, Ex parte Van der Holst (unreported), 7 November 1985, 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, D.C.

Reg. v. Carden (1879) 5 Q.B.D. 1, D.C.

Reg. v. Derby Crown Court, Ex parte Brooks (1984) 80 Cr.App.R. 164, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Sadri [1962] 1 W.L.R. 1304; [1962] 3 All E.R. 747, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Shuter [1960] 2 Q.B. 89; [1959] 3 W.L.R. 603; [1959] 2 All E.R. 782, D.C.

Reg. v. Governor of Pentonville Prison, Ex parte Ecke (Note) (1973) 73 Cr.App.R. 223, 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, 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, H.L.(E.)

Reg. v. Inland Revenue Commissioners, Ex parte Preston [1985] A.C. 835; [1985] 2 W.L.R. 836; [1985] 2 All E.R. 327, H.L.(E.)

Reg. v. Manchester City Stipendiary Magistrate, Ex parte Snelson [1977] 1 W.L.R. 911; [1978] 2 All E.R. 62, D.C.

Reg. v. Newcastle-upon-Tyne Justices, Ex parte Hindle [1984] 1 All E.R. 770, D.C.

Reg. v. Oxford City Justices, Ex parte Smith (1982) 75 Cr.App.R. 200, D.C.

Reg. v. Sang [1980] A.C. 402; [1979] 3 W.L.R. 263; [1979] 2 All E.R. 1222, H.L.(E.)

Reg. v. Weil (1882) 9 Q.B.D. 701, C.A.

Rex v. Governor of Brixton Prison, Ex parte Stallmann [1912] 3 K.B. 424, D.C.

Rodriguez, In re (unreported), 15 November 1984, D.C.

Rourke v. The Queen (1977) 76 D.L.R. (3d) 193

APPEAL from the Divisional Court of the Queen's Bench Division.

By notice of motion dated 10 August 1984 the applicant, Alan Rees, sought judicial review of an order to proceed under section 7 of the Extradition Act 1870 made by the Secretary of State for the Home Department on 25 July 1984 signifying to the Chief Metropolitan Stipendiary Magistrate at Bow Street Magistrates' Court that a requisition had been made by the Federal Republic of Germany for the surrender of the applicant and requiring the magistrate to proceed in conformity with the Extradition Acts 1870 to 1935 and the decision of the metropolitan stipendiary magistrate sitting at Bow Street Magistrates' Court, W. E. C. Robins Esq., on 26 July 1984 to proceed with a hearing under section 9 of the Act of 1870, in the form of an order of certiorari to remove into the court and quash the Secretary of State's order;

alternatively an order of prohibition directed to the magistrate prohibiting him from further hearing and determining the case against the applicant under section 9 of the Act of 1870; in the further alternative a declaration that in any further hearing of the case against the applicant statements or depositions made or taken in Bolivia were inadmissible in evidence. The grounds on which that relief was sought in respect of the applications for orders of certiorari and/or prohibition were (1) that the Secretary of State had exceeded his jurisdiction in issuing the order in substitution for an order to proceed issued on 13 April 1984, the extradition proceedings conducted pursuant thereto having resulted in the discharge of the applicant by reason of the failure of the requesting state to produce sufficient evidence within the two-month time limit specified in article XII of the extradition treaty with the Federal Republic of Germany; (2) that the proposed hearing of the case pursuant to the order of 25 July 1984 was oppressive and vexatious and an abuse of the process of the court. The grounds in respect of the application for a declaration were that on a true construction of the Federal Republic of Germany (Extradition) Order 1960, Schedule 2, article XI, statements or depositions made or taken outside the territory of the requesting state, in particular in Bolivia, were inadmissible in evidence in a hearing conducted under sections 9 and 10 of the Act of 1870.

On 7 March 1985 the Divisional Court (Watkins L.J. and Simon Brown J.) dismissed the application. On 16 May 1985 the court gave the applicant leave to appeal to the House of Lords, certifying in accordance with section 1(2) of the Administration of Justice Act 1960 that the following points of law of general public importance were involved in their decision:

"(1) Whether on a true construction of section 14 of the Extradition Act 1870 and article XI of the Federal Republic of Germany (Extradition) Order 1960 depositions or sworn statements taken in a third state are admissible in extradition proceedings pursuant to section 10 of the said Act and article X of the Order. (2) Whether in extradition proceedings pursuant to section 10 of the said Act the police magistrate is entitled to consider whether the evidence produced by the requesting state for the purposes of the hearing will be available at the trial in the requesting state in admissible form according to the law of the requesting state. (3) Whether or to what extent the Secretary of State can lawfully issue an order under section 7 of the said Act during the currency of an existing order and without any further requisition by the requesting state. (4) Whether the police magistrate has power to review the exercise of the Secretary of State's discretion to make an order under section 7 of the said Act. (5) Whether the High Court has power to reviews the exercise of the Secretary of State's discretion to make an order under section 7 of the said Act. (6) Whether the police magistrate has an inherent jurisdiction in his discretion to prevent an abuse of the process in respect of proceedings under the Extradition Act 1870. (7) Whether the High Court has an inherent jurisdiction in its discretion to prevent an abuse [of the] process in respect of proceedings under sections 9 and 10 of the said Act. (8) If either of

the answers to questions (3) and (4) is in the affirmative was there any abuse of power in particular having regard to the failure by the requesting state to produce sufficient evidence for the extradition within two months of the apprehension of the applicant? (9) If either of the answers to questions (5) and (6) is in the affirmative was there an abuse of process in particular having regard to the matter set out in (7) above?"

The applicant appealed.

The facts are set out in the opinion of Lord Mackay of Clashfern.

Clive Nicholls Q.C. and Edmund Lawson for the applicant. Question 1: whether third state evidence is admissible under the Extradition Act 1870 and the Federal Republic of Germany (Extradition) Order 1960 ("the treaty"). On a true construction of section 14 of the Act and article XI of the treaty, depositions and statements taken in a third state may not be received in evidence. (There is a difference between "received" and admissibility.) As to no. (2) of the certified questions, the magistrate is not so entitled; he has no power at all to do so. The Divisional Court also said that he was not so entitled. The judgment posed a discretion in very wide terms; neither the applicant nor the respondents argue that there is any discretion. The question is simply whether the third state evidence is admissible or not. As to this, the applicant advances the following propositions.

1. The Act of 1870 is an enabling Act, enabling Her Majesty to apply it to any foreign state by order in council. The Act can only apply where an arrangement is made with the foreign state. The importance of the arrangement within the scheme of extradition is emphasised in the penultimate paragraph of section 2. The Act sets out a basic code within which a scheme of extradition may operate. That code contains universal restrictions on surrender and procedural provisions as affect the Secretary of State and the police magistrate. It is plain that section 2 is an enabling and procedure provision.

2. The Act applies "subject to the limitations, restrictions, conditions, exceptions, and qualifications, if any, contained in the Order" (section 5). It is plain from sections 2 and 5 that the Act, once applied, is applied subject to the limitations, etc., contained in the Order. The effect of the provisions of section 3(1) and (2) is that they demonstrate that the application of the Act may be subject to policy and political considerations and will no doubt have regard to an element of reciprocity and mutuality of obligations in the contractual arrangement. The Order itself gives effect to this principle. "Under and in accordance with the agreement" is important: see paragraph 1. It is the treaty within the power conferred by the Act that is paramount in determining the conditions in which fugitives will be surrendered. [Reference was made to Reg. v. Governor of Pentonville Prison, Ex parte Sotiriadis [1975] A.C. 1, 19C-21C-D, 24B-C (Lord Diplock).]

3. As a general rule, the magistrate shall hear the case according to the ordinary English rules of procedure. The only exception arises where an arrangement makes provision within a specific power conferred by

the Act: see sections 9-11. Section 9 sets out the general rule: the ordinary English rules apply.

4. Section 14 is an enabling provision enabling Her Majesty to make provision in any arrangement for evidence to be received in a form in which it would not otherwise be received.

5. On a true construction of section 14 and article XI of the treaty the magistrate shall receive evidence taken in the West German Republic complying with section 15 and article XI. He has no authority to receive evidence taken in any third state.

Sections 14 and 15 cannot really stand on their own without a treaty. Section 9 plainly uses "shall." The reason for "may" in section 14 is that without that provision in section 14 (being an enabling provision) there would be no power for Her Majesty to derogate from the rule in section 9. "A foreign state" in section 14 may mean only the state in question: see per Lord Diplock, at pp. 617G, 624G-H. "Conviction" can only apply to the requesting state. By parity of reasoning, so also with accusation. Compare the treaty with Czechoslovakia (1926), art. XII, which is in very wide terms, the only one of 42 treaties in such wide terms. Compare also the Act of 1967, s. 11. Reg. v. Governor of Pentonville Prison, Ex parte Singh (Harmohan) [1981] 1 W.L.R. 1031 shows that a provision in a treaty is capable of restricting section 14.

The treaty has in fact restricted the operation of section 9: it has imposed a restriction on the admission of such evidence. Article XI is a restriction on the power in article XIV. It is plainly a restriction coming within sections 2 and 5. If it says that certain evidence shall be admitted, that plainly means that no other evidence shall be. "Foreign state" in article XIV means any state, but in article XI it is restricted to the requesting state. The applicant's argument is consistent with similar provisions in the Fugitive Offenders Act 1967.

Question 2: whether the second order of the Secretary of State of 25 July 1984 was lawful (certified questions (3), (4), (5) and (8)). The applicant makes three submissions: 1. The magistrate has no jurisdiction to review the exercise of the Secretary of State's discretion under section 7. 2. The High Court has jurisdiction to review the exercise of the Secretary of State's discretion and may declare an order invalid if it has been made unlawfully or improperly. 3. The Secretary of State's second order was unlawful, further or in the alternative procedurally improper.

The Secretary of State's second order was illegal in the sense in which that word was used by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, 410F. It was unlawful on two grounds. First, on the true construction of the Act of 1870 the Secretary of State had no power to issue a second order during the currency of the first. He could have issued a further order if the. fugitive had been discharged, but not during the course of the judicial proceedings. His powers were suspended until the applicant was either committed or discharged. He had no power to interfere in the proceedings once the executive function had ceased and the judicial function had begun. He had no power to interfere in the extradition proceedings between the apprehension of the applicant under section 8 and his discharge under section 10 or to issue a further order launching

proceedings during the currency of the existing proceedings. The powers of the Secretary of State and the magistrate are distinct: see In re Nielsen [1984] A.C. 606.

The Secretary of State's order ceases to be current at such time as the magistrate has committed or discharged the fugitive. There is no question of autrefois acquit because if the fugitive is discharged he is not acquitted. Certainly in the case of domestic committal proceedings discharge would not amount to autrefois acquit. It is unlikely that the Secretary of State would make a further order unless there were fresh evidence. His decision could be reviewed by judicial review. [Reference was made to Reg. v. Governor of Pentonville Prison, Ex parte Sotiriadis [1975] A.C. 1, 24D, 25C-29 (Lord Diplock).] While the judicial proceedings are going on the Secretary of State has no function whatever.

It is accepted that the applicant's argument concerning legality is a technical one (because the Secretary of State could issue another requisition immediately after the discharge of the fugitive), but the second ground on which the Secretary of State's second order in this case was unlawful is that its issue amounted to a procedural impropriety: it was unjust. The applicant was deprived of an essential safeguard given to him under the Act: see Sotiriadis. "Procedural impropriety" goes to the order; "abuse of process" to the way in which the Secretary of State conducted the matter. [Reference was made to Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, 409H-410 (Lord Diplock).] Admittedly, it may be said that there is no need for, and no sense in, a second requisition certifying the same thing as was certified before.

Article XII is a safeguard to a fugitive. If the evidence be not produced within two months the fugitive should be set at liberty. For the Secretary of State to issue a second order within the currency of the existing order would defeat the efficacy of article XII. Effectively, the second order here gave the German Government another two months. Assuming that the second order was not ultra vires, therefore, there was a procedural impropriety by reason of article XII.

There may be a close link between procedural impropriety and abuse of process, but the applicant's complaint with regard to abuse of process is aimed at the whole conduct of the prosecution.

Question 3: whether there is inherent jurisdiction in the magistrate, further or alternatively in the Divisional Court, to stay proceedings amounting to an abuse of process, and whether there was in this case an abuse of process. By 6 July 1984 (the date of the first hearing after the expiry date) the prosecution were or ought to have been aware that they had not complied with the provisions regarding authentication and affirmation, i.e. article XII had not been complied with. There was thus no sufficient evidence. In the circumstances, it was an abuse of process for them (i) not to have indicated to the magistrate on 16 June or soon thereafter that they had not complied with article XII; (ii) not to have indicated on the weekly remand dates between 16 June and 6 July that they had not complied with article XII; (iii) not to have indicated on 6 July that they had not complied with it. It was the duty of the

prosecution to tell the court that the two months condition had not been complied with. There does not have to be bad faith on the part of the prosecution, and the applicant does not accuse the prosecution of it. There was an error of judgment here leading to an abuse of process, and it was not legitimate to make it. Even if the prosecution were entitled to do this (to put the applicant through this twice), it was oppressive to do so.

The applicant's propositions of law as to abuse of process are as follows. 1. Every court has jurisdiction and a duty to prevent an abuse of process, and this extends to the power to stay proceedings brought against a person on a criminal charge: Connelly v. Director of Public Prosecutions [1964] A.C. 1254, 1296 (Lord Reid), 1361 (Lord Pearce); Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529, 536 (Lord Diplock) and Mills v. Cooper [1967] 2 Q.B. 459, 467 (Lord Parker C.J.). (1) "Those remarks involve an important statement of constitutional principle. They assert the independent strength of the judiciary to protect the law by protecting its own purposes and function": Moevao v. Department of Labour [1980] 1 N.Z.L.R. 464, 476 (Woodhouse J.) see also Connelly, at p. 1354 (Lord Devlin); Reg. v. Humphrys [1977] A.C. 1, 43D-E (Lord Salmon); Moevao, at p. 479, line 3 (Richardson J.). (2) The jurisdiction is derived not from any statute or any rule of law but from the very nature of the court, and for this reason it is called "inherent": Connelly, at p. 1301 (Lord Morris of Borth-y-Gest); I. H. Jacob, "The Inherent Jurisdiction of the Court," Current Legal Problems 1970 (vol. 23) 23, 27 et seq. (3) The jurisdiction serves two public interests (Moevao, at p. 481, line 3 (Richardson J.)): (i) that in the due administration of justice the court's processes are used fairly by state and citizen alike; and (ii) the maintenance of public confidence in the administration of justice: Connelly, at p. 1353 (Lord Devlin).

2(1). The power to stop a prosecution "should only be exercised in the most exceptional circumstances": Reg. v. Humphrys, at p. 26E (Viscount Dilhorne); see also Moevao, at p. 469, line 48 (Richmond P.), 476, 1.46 (Woodhouse J.). (2) Its exercise is a matter of discipline, keyed to particular situations which, as an outgrowth of case-law, commend themselves as of a kind in which the principle may be raised": Rourke v. The Queen (1977) 76 D.L.R. (3d) 193, 205 (Laskin C.J.C.). "Pleas of autrefois convict and acquit, and of res judicata and issue estoppel . . . may be regarded as crystallised means of control, having a particular ambit of operation but not exhaustive of the scope of abuse of process": per Laskin C.J.C., at pp. 200-201; see also Connelly, at pp. 1362, 1364 (Lord Pearce); Moevao, at p. 470, line 40 (Richmond P.). (3) Particular situations in which the principle may be raised have now been categorised in the modern development of the doctrine by the Divisional Court summarised in Reg. v. Derby Crown Court, Ex parte Brooks (1984) 80 Cr.App.R. 164, 168 including where: (i) 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 (ii) 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 that is unjustifiable. (4) A court cannot intervene to stop a prosecution save where its initiation or continuation is an abuse of process. It is only an abuse of process if it is "inconsistent with the recognised purposes of the administration of criminal justice": Moevao, at p. 482, line 27 (Richardson J.); see also Reg. v. Humphrys, at pp. 24B-D, 25H, 26D (Viscount Dilhorne), 46D (Lord Salmon), 52G-55F (Lord Edmund-Davies) and Reg. v. Sang [1980] A.C. 402, 454F-455A (Lord Scarman). (5) The principle of fairness has an important part in determining whether there is an abuse of process, and unfairness may amount to an abuse of process: Reg. v. Inland Revenue Commissioners Ex parte Preston [1985] A.C. 835, 851C-E, G, 852B (Lord Scarman), 864G-H (Lord Templeman) and Moevao, at p. 482, lines 21 et seq. (Richardson J.).

As to jurisdiction: 1. A magistrates' court has an inherent jurisdiction to prevent an abuse of process in respect of summary and committal proceedings: (summary proceedings) Mills v. Cooper, [1967] 2 Q.B. 459, 467E, 470; Reg. v. Brentford Justices, Ex parte Wong [1981] Q.B. 445, 450D-E, G; Reg. v. Oxford City Justices, Ex parte Smith (1982) 75 Cr.App.R 200; (committal proceedings), Reg. v. Horsham Justices, Ex parte Reeves (Note) (1980) 75 Cr.App.R. 236, 241 and Reg. v. Derby Crown Court, Ex parte Brooks, 80 Cr.App.R. 164. 2. Where a magistrates' court has refused to exercise jurisdiction to prevent an abuse of process the Divisional Court may either remit the case to the justices to be determined or may itself prohibit the proceedings: Reg. v. Brentford Justices, Ex parte Wong [1981] Q.B. 445; Reg. v. Grays Justices, Ex parte Graham [1982] Q.B. 1239. 3. Where magistrates have exercised jurisdiction to prevent abuse of process the Divisional Court may remit the case for them to determine according to law or may substitute its own decision: Reg. v. Oxford City Justices, Ex parte Smith; Reg. v. Horsham Justices, Ex parte Reeves (Note); Reg v. Newcastle-upon-Tyne Justices, Ex parte Hindle [1984] 1 All E.R. 770.

Lawson following. As to the conduct of the defence at Bow Street between June and July 1984: (i) if there was fault on the part of the applicant's advisers that would not affect the question whether there was an abuse of the process of the court; (ii) as to what steps the defence took at that stage, it did all that it could: it asked the court to hold a hearing as soon as possible under section 9 and article X to determine the sufficiency of the evidence as at 16 June (see per Lord Diplock in Sotiriadis).

[LORD BRIDGE OF HARWICH. Does "jurisdiction of any foreign state" in the definition of "fugitive criminal" in section 26 of the Act of 1870 mean its territorial jurisdiction or its jurisdiction, if any, over the crime wherever committed?]

Hidden Q. C. referred to the Taking of Hostages Act 1982, ss. 1, 3.]

Nicholls Q. C. continuing. Section 3(4) makes the matter clear. The question is thus at rest so far as these proceedings are concerned. As to the construction of section 15, "jurisdiction" has a narrow construction unless there is a clear indication to the contrary. If it means "territory," that argues for a narrow construction of section 14, which should be limited to depositions from a foreign state. "A" foreign state means

"the" foreign state, in the sense, in the context of this case, of the requesting state. Looking at sections in the Act where " 'a' foreign state" appears, it is used in the sense of the requesting state: see sections 3(2), 19, 26. [Reference was made to the Extradition Act 1866; the Fugitive Offenders Act 1881 and Reg. v. Governor of Pentonville Prison, Ex parte Passingham [1983] 2 A.C. 464, 469-470 (Lord Diplock).]

As to depositions, see the Magistrates' Courts Act 1980, s. 102. There is a safeguard in having the witness attend. It would be strange if evidence could be admitted under the Act of 1870 without that safeguard. [Reference was made to the Criminal Justice Act 1972, s. 46 and In re Ahmed (unreported), 14 July 1983.]

Anthony Hidden Q.C. and R. Alun Jones for the respondents, the Secretary of State for the Home Department and the Director of Public Prosecutions. As to third state evidence, the applicant's error lies in construing sections 14 and 15 of the Act of 1870 in isolation. They have to be read with section 10, with which they form an additional category of evidence admissible in Extradition Act cases. The evidence then becomes available for both section 9 and section 10 of the Act of 1870. Just as it is an error to construe sections 14 and 15 in isolation from section 10, so also is it to construe article XI separately from article X.

"Foreign warrants and . . ." in section 15 cannot only be referring to section 14. Section 15 therefore deals with the manner of authentication of each category of document in this additional class of evidence. Note that it needs three different subsections, which it would not do if the applicant were correct.

It is conceded, and averred, that the provisions of section 15(1) can only be referring to the requesting state. Under section 15(1) and (3) both the warrant under subsection (1) and the conviction under subsection (3) must be those of the requesting state. It is otherwise with regard to evidence. To answer what "a foreign state" means in "depositions or statements on oath, taken in a foreign state," etc., one is taken to section 15. The use of the indefinite article is not an independent choice but is governed by what follows. Different adjectival words are used in subsections (1), (2) and (3). If it had been intended that "a foreign state" should have the same meaning in all three subsections, those adjectival words would be unnecessary. Compare section 17(1) and the Act of 1866. "A foreign state," under any normal canon of construction, would have its literal meaning.

The magistrate would be entitled to decline to look at evidence from, e. g., Afghanistan if he did not think it reliable, even if it were admissible under the Act. Evidence has to come from a country with which we have an extradition treaty; that is some safeguard. [Reference was made to section 7 of the Act of 1870; Atkinson v. United States of America Government [1971] A.C. 197, 232E-233 (Lord Reid) and Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556.] The difficulty regarding unreliable evidence is the same whether the requesting state is a treaty state or a non-treaty state. The Act cannot have contemplated that the requesting state would have to get witnesses from all over the world to give evidence in person. It is relevant that the point was never argued in In re Ahmed (unreported), 14 July 1983; see

also Rex v. Governor of Brixton Prison [1911] 2 K.B. 82. On the literal construction of sections 14 and 15 they have only one meaning, and attempts to confine it are not successful.

The fact that there is reference in section 17 of the Act of 1870 to "every British possession" is not surprising. The distinction is logical and necessary if section 9 is to have any force. Article X deals with the laws of the state applied to, as does article IX. The laws of this country, including the Act of 1870, gives the Secretary of State a discretion: that comes in the use of "may" in section 7. [Reference was made to In re Nielsen (1984) 79 Cr.App.R. 1, 7 and [1984] A.C. 606, 620D (Lord Diplock).] There is strong authority in the House of Lords against the contention that there is no discretion in the Secretary of State save a limited discretion in political matters from Lord Reid in Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556, 579-580; see also p. 585 (Viscount Radcliffe) and Reg. v. Governor of Pentonville Prison, Ex parte Sotiriadis [1975] A.C. 1. There is a very real need in the Act of 1870 to provide for this sort of evidence on behalf of the fugitive.

As to the lawfulness of the Secretary of State's second order, see section 7 and Sotiriadis, at p. 26 (Lord Diplock). It is clear from Lord Diplock's speech that discharge under one order or warrant does not prevent rearrest of the fugitive under another. While the first order is running, the matter is in the custody of the magistrate. The nature of the fugitive's custody can change: extradition custody under the warrant, magisterial custody under the order.

To rearrest the fugitive six times would be an abuse of process, but it is not implicit in section 7 that it is a once-for-all procedure. [Reference was made to Rex v. Governor of Brixton Prison, Ex parte Stallmann [1912] 3 K.B. 424 and Reg. v. Governor of Pentonville Prison, Ex parte Ecke (Note) (1973) 73 Cr.App.R. 223.] The respondents do not concede that there was any abuse of process here, nor that there was anything unlawful or oppressive in the issuing of the second order. The starting point must be that they do not concede that there was ever any unlawful imprisonment.

The question, as regards false imprisonment, is what right the applicant had to be set at liberty. The two-month period is purely procedural. The respondents asked for the applicant to be discharged simply as a precaution because the evidence might not be properly authenticated. It was done so that the magistrate should have unimpeachable evidence.

One cannot apply article 12 to see whether the evidence is sufficient without a hearing, so there has at some stage to be a hearing, ex hypothesi on or after the expiration of two months. The question is whether there was sufficient evidence then. Nobody knew then. The respondents then said: "here is some better evidence; let's abandon the old." That does not involve that the evidence was insufficient.

The concern of the court must be as to what happened on 25 and 26 July. At the moment when the hearing commenced the applicant was in lawful custody. Only the court could decide whether the evidence was sufficient; therefore, the lawful detention of the fugitive may extend

beyond the two months to the time when the matter is heard. The two months period is (see per Lord Kilbrandon in Sotiriadis, at p. 35) a protection against administrative inertia: against the fugitive being kept in custody beyond the two months, not against fresh proceedings thereafter. It is contemplated by the Act that if there is a technical difficulty there may be a prolongation of the proceedings.

One thing that article XII is not is a bar to fresh proceedings. It follows from the respondents' argument that the moment of discharge did not in any way provide the applicant with immunity from extradition. Had the hearing gone on and had the magistrate discharged him on 26 July he would not have been immune: see Atkinson v. United States of America Government [1971] A.C. 197, 235D-E; Rex v. Governor of Brixton Prison, Ex parte Stallmann [1912] 3 K.B. 424, 449 (Phillimore J.) and Sotiriadis, at p. 28. Thus, there can be no question of abuse of process in what took place on 26 July. The applicant was not entitled to be set at liberty until the determination of the court had been arrived at on whether there was a sufficiency of evidence. On 26 July he had that for which the Act and the treaty provide, i.e. a hearing.

[Reference was made to in re Rodriguez (unreported), 15 November 1984, pp. 5, 8; Reg. v. Bow Street Magistrates' Court, Ex parte Van der Holst (unreported), 7 November 1985; Reg. v. Manchester City Stipendiary Magistrate, Ex parte Snelson [1977] 1 W.L.R. 911; Reg. v. Grays Justices, Ex parte Graham [1982] Q.B. 1239; Reg. v. Governor of Brixton Prison, Ex parte Shuter [1960] 2 Q.B. 89; Reg. v. Weil (1882) 9 Q.B.D. 701 and In re Nielsen [1984] A.C. 606.]

Alun Jones following. As to whether the Secretary of State is entitled to receive fresh evidence without a fresh requisition, see Reg. v. Chief Metropolitan Magistrate, Ex parte Government of Denmark (1983) 79 Cr.App.R. 1, 5 (Robert Goff L.J.). He is entitled to make more than one attempt to describe the offence in the order without a further requisition. [Reference was made to Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556, 608 (Lord Hodson); Reg. v. Governor of Pentonville Prison, Ex parte Passingham [1983] 2 A.C. 464; Athanassiadis v. Government of Greece (Note) [1971] A.C. 282, 286 (Viscount Dilhorne) and Reg. v. Weil, 9 Q.B.D. 701.]

Nicholls Q. C. in reply. Section 14 of the Act of 1870 was not intended to enable a fugitive to adduce written evidence from a third state at the hearing under section 10: 1. In 1870 the magistrate in domestic committal proceedings was only concerned to have regard to the prosecution evidence: Indictable Offences Act 1848 (11 & 12 Vict. c. 42), section 25. He was required to commit if of opinion "when all the evidence offered upon the part of the prosecution against the accused party shall have been heard" that "such evidence" was sufficient. In so far as the magistrate was entitled to receive evidence adduced by the accused, such evidence was not material to his committal:Criminal Law Amendment Act 1867 (Russell Gurney's Act), section 3, which enabled impoverished defendants to have their witnesses bound over to attend the trial; see also per Lush J. in Reg. v. Carden (1879) 5 Q.B.D. 1, 10 and Stephen's Commentaries on the Laws of England, 8th ed. (1880), vol. IV, pp. 350-352. Section 3 of the Act of 1867 remained in

force until 1925, when it was repealed by the Criminal Justice Act 1925, section 12(8) of which required magistrates to consider evidence given by or on behalf of the accused before determining whether to commit. 2. The fugitive's right to adduce evidence material to the magistrate's decision was limited to showing that the offence was of a political character or was not an extradition crime: see the Act of 1870, section 9; the Act of 1848, section 25; and per Lord Diplock in In re Nielsen [1984] A.C. 606, 625C. [Reference was made to Reg. v. Governor of Brixton Prison, Ex parte Sadri [1962] 1 W.L.R. 1304, per Lord Parker C.J. The requisition is of the greatest importance: it is from it that all the proceedings emanate and become lawful. As to section 7, see Attorney-General for the Dominion of Canada v. Fedorenko [1911] A.C. 735, 738.

Their Lordships took time for consideration.

15 May. LORD BRIDGE OF HARWICH. My Lords, for the reasons given in the speech of my noble and learned friend, Lord Mackay of Clashfern, with which I agree, I would dismiss the appeal.

LORD BRANDON OF OAKBROOK. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Mackay of Clashfern. I agree with it, and for the reasons which he gives I would deal with the certified questions in the manner proposed by him and dismiss the appeal.

LORD MACKAY OF CLASHFERN. My Lords, this is an appeal from the Divisional Court of the Queen's Bench Division, dated 7 March 1985, by leave of that court under section 1(2) of the Administration of Justice Act 1960. By the order appealed from the Divisional Court dismissed the motion of the appellant for judicial review of an order made by the Secretary of State for the Home Department under section 7 of the Extradition Act 1870 on 25 July 1984 and of the decision of the police magistrate sitting at Bow Street made on 26 July 1984 to proceed with a hearing under section 10 of the Act of 1870 and a motion of the appellant for a declaration as to the admissibility of evidence in the proposed proceedings under the Act of 1870.

On 14 November 1983 a German national who was the manager of the Lufthansa airline in La Paz was kidnapped in Bolivia and held hostage while the kidnappers demanded a ransom of U.S. $1.5 million. The ransom was paid and he was released on 25 November 1983. It is alleged by the Government of the Federal Republic of Germany ("the German Government") that the appellant was one of those involved in the kidnapping. They now desire his extradition from this country so that he may be tried in Germany for the kidnapping offence over which the German courts have jurisdiction.

On 13 March 1984 a warrant was issued under section 8(2) of the Act of 1870 by a magistrate at Bow Street for the arrest of the appellant

"suspected and accused of the commission of the crime of detaining a hostage in that on 14 November 1983 at La Paz, Bolivia, he detained Michael Wurche and in order to compel Lufthansa to pay

U.S. $1.5m. ransom he continued to detain the said Michael Wurche."

The warrant was executed the same day, the appellant having been arrested on his arrival at Gatwick airport. On 13 April 1984 the Secretary of State made an order under section 7 of the Act signifying that a requisition had been made on behalf of the German Government for the surrender of the appellant accused of the crime of detaining a hostage and requiring the magistrate to proceed in conformity with the Extradition Acts 1870 to 1935. On 16 April 1984 the appellant was remanded in custody by the magistrate pursuant to the order of the Secretary of State. On 18 April 1984 the Director of Public Prosecutions, acting on behalf of the German Government, served informally on the appellant's solicitors statements and depositions, a substantial proportion of which comprised translations of statements made in Bolivia. These statements and depositions were formally served on 11 June 1984 together with statements made or taken in the United Kingdom. On 6 July 1984 the hearing pursuant to section 10 of the Act of 1870 commenced at Bow Street. Although there were issues going to the authentication and form of the Bolivian statements, argument relating thereto was deferred, and there was argued, as a preliminary point, an issue whether the Bolivian statements were properly to be received in evidence having regard to article XI of the treaty relating to extradition between the German Government and the Government of the United Kingdom scheduled to the Federal Republic of Germany (Extradition) Order 1960, as amended by the Schedule to the Federal Republic of Germany (Extradition) (Amendment) Order 1978. The magistrate ruled that such statements were to be received in evidence.

On 6 July 1984 further statements were received at court from Bolivia. They were not translated into English but appeared to be duly authenticated. Due to insufficient time the hearing on 6 July was adjourned to the earliest date convenient to both parties which was 26 July 1984. On 25 July 1984 the Secretary of State signed and issued a further order to proceed under section 7 of the Act of 1870 requiring the magistrate to issue his warrant for the apprehension of the appellant upon a narrative substantially identical to that which appeared in the earlier order to which I have referred. No further requisition had meantime been made by the German Government. On 26 July 1984 at Bow Street this further order was produced and at the invitation of counsel for the German Government the magistrate terminated the part-heard proceedings and ordered the discharge of the appellant who was re-arrested immediately on leaving the dock upon a warrant sued by the magistrate in compliance with the second order of the Secretary of State.

The magistrate entertained but rejected a submission made for the appellant that the renewed proceedings were oppressive, vexatious and an abuse of process. The magistrate then adjourned the proceedings to enable the appellant, if so advised, to apply for judicial review, which he did. Leave to apply was granted on 8 August 1984 and the application was heard before the Divisional Court on 28 November and 5 December

1984, judgment then being reserved and being given, as already stated, on 7 March 1985, dismissing the application. On 16 May 1985 the Divisional Court granted leave to appeal to this House and certified that points of law of general public importance are involved, set out in nine questions specified in their order.

As I have already mentioned, the crime alleged against the appellant took place in Bolivia and a substantial part of the evidence produced by the German Government in support of the assertion that he was guilty of it consists of statements and depositions taken in Bolivia. The German Government accepts that it requires to rely on statements or depositions taken in Bolivia in order to succeed in its application for the extradition of the appellant.

The first two questions certified by the Divisional Court relate to this matter. They are:

"(1) Whether on a true construction of section 14 of the Extradition Act 1870 and article XI of the Federal Republic of Germany (Extradition) Order 1960 depositions or sworn statements taken in a third state are admissible in extradition proceedings pursuant to section 10 of the said Act and article X of the order. (2) Whether in extradition proceedings pursuant to section 10 of the said Act the police magistrate is entitled to consider whether the evidence produced by the requesting state for the purposes of the hearing will be available at the trial in the requesting state in admissible form according to the law of the requesting state."

Before considering the arguments adduced on these questions it is necessary to set out the relevant provisions. First, those of the Act of 1870. Section 14 provides:

"Depositions or statements on oath, taken in a foreign state, and copies of such original depositions or statements, and foreign certificates of or judicial documents stating the fact of conviction, may, if duly authenticated, be received in evidence in proceedings under this Act."

Section 15 provides:

"Foreign warrants and depositions or statements on oath, and copies thereof, and certificates of or judicial documents stating the fact of a conviction, shall be deemed duly authenticated for the purposes of this Act if authenticated in manner provided for the time being by law or authenticated as follows: (1) If the warrant purports to be signed by a judge, magistrate, or officer of the foreign state where the same was issued; (2) If the depositions or statements or the copies thereof purport to be certified under the hand of a judge, magistrate, or officer of the foreign state where the same were taken to be the original depositions or statements, or to be true copies thereof, as the case may require; and (3) If the certificate of or judicial document stating the fact of conviction purports to be certified by a judge, magistrate, or officer of the foreign state where the conviction took place; and if in every case the warrants, depositions, statements, copies,

certificates, and judicial documents (as the case may be) are authenticated by the oath of some witness or by being sealed with the official seal of the minister of justice, or some other minister of state: And all courts of justice, justices, and magistrates shall take judicial notice of such official seal, and shall admit the documents so authenticated by it to be received in evidence without further proof."

And then those of the treaty, article X:

"The extradition shall not take place before the expiration of 15 days from the apprehension, and then only if the evidence be found sufficient, according to the laws of the state applied to, either to justify the committal of the prisoner for trial, in case the crime had been committed in the territory of the said state, or to prove that the prisoner is the identical person convicted by the courts of the state which makes the requisition."

And article XI:

"In the examinations which they have to make in accordance with the foregoing stipulations, the authorities of the state applied to shall admit as entirely valid evidence the sworn depositions or statements of witnesses taken in the other state, or copies thereof, and likewise the warrants and sentences issued therein, provided such documents are signed or certified by a judge, magistrate, or officer of such state, and are authenticated by the oath of some witness, or by being sealed with the official seal of the minister of justice or some other minister of state."

Prior to 1870 there had been arrangements for extradition between the United Kingdom and only three other states, namely, France, the United States of America, and Denmark, and legislation had been required to enable the United Kingdom to implement these treaties in each case. The Extradition Act 1845 (8 & 9 Vict. c. 120) was passed for facilitating execution of the treaties with France and the United States of America for the apprehension of certain offenders, and Parliament passed the Extradition Act 1866 (29 & 30 Vict. c. 121) for the amendment of the law relating to treaties of extradition which provided (section 1):

"That warrants of arrest and copies of depositions signed or taken by or before a judge or competent magistrate in any foreign state with which Her Majesty may have entered into, or may hereafter enter into, any treaty for the extradition of fugitive offenders or persons accused of crimes, shall henceforth be received in evidence if authenticated in the manner following, that is to say, if the warrant of arrest purports to be signed by a judge or other competent magistrate of the country in which the same shall have been issued, and if the copies of depositions purport to be certified under the hand of such judge or magistrate to be true copies of the original depositions, and if the signature of the judge or magistrate in each case shall be authenticated in the manner usual in the

respective states or countries by the proper officer of the department of the minister of justice, and sealed with the official seal of such minister; and all courts of justice and magistrates in Her Majesty's dominions shall take judicial notice of such official seal, and shall admit the documents so authenticated by it to be received in evidence without further proof."

The Act of 1866 further provided (section 2) that it should be construed with earlier Acts relating to evidence and that the duration of the Act was to be limited to 1 September 1867. The subject matter with which section 14 of the Act of 1870 deals was dealt with, therefore, in the first Act of Parliament which could be described as an Act dealing with extradition generally rather than arrangements for extradition with particular states. When Parliament turned its attention to the subject in 1870 it provided a general statute under which machinery was provided for implementing any arrangement for extradition that the Government of the United Kingdom might make with a foreign government. By section 2 it provided:

"Where an arrangement has been made with any foreign state with respect to the surrender to such state of any fugitive criminals, Her Majesty may, by order in council, direct that this Act shall apply in the case of such foreign state. Her Majesty may, by the same or any subsequent order, limit the operation of the order, and restrict the same to fugitive criminals who are in or suspected of being in the part of Her Majesty's dominions specified in the order, and render the operation thereof subject to such conditions, exceptions, and qualifications as may be deemed expedient. Every such order shall recite or embody the terms of the arrangement, and shall not remain in force for any longer period than the arrangement. ..."

The appellant's primary argument is that section 14 enables Her Majesty to direct in the case of any such arrangement that depositions or statements on oath taken in a foreign state if duly authenticated may be received in evidence, and that the power conferred in section 14 is one conferred on Her Majesty by order in council to receive the documents to which section 14 relates in evidence in proceedings under this Act. The appellant further submits that the orders giving effect to the arrangement with the Federal Republic of Germany which apply the provisions of the Act of 1870 have the effect of directing that section 14 is not to apply to anything except depositions or statements on oath taken in the Federal Republic, and that accordingly depositions or statements on oath taken in Bolivia are not to be received in evidence in the present proceedings.

In my opinion this argument of the appellant misconstrues section. 14. Section 14 is one of the provisions of the Act which shall apply when Her Majesty, by order in council, directs that the Act of 1870 shall apply in the case of a foreign state. Section 14 is applied by such order subject to such conditions, exceptions and qualifications as may be made on its application in the order. Article XI of the treaty with Germany requires the Government of the United Kingdom to arrange that the court here shall admit as entirely valid evidence the sworn depositions or

statements of witnesses taken in Germany. It does not in any way deal with depositions or statements on oath taken anywhere else. The leading provision now in force with regard to extraditions from Germany is article 3 of the Order of 1978 which provides:

"The Extradition Acts 1870 to 1935, as amended or extended by any subsequent enactment, shall apply in the case of the Federal Republic of Germany and Land Berlin (West Berlin) in accordance with the said treaty, as amended by the said agreement and the said exchange of notes. ..."

the agreement being the agreement scheduled to the Order of 1960 and the exchange of notes being that scheduled to the Order of 1978.

In my opinion the result of these provisions is that section 14 of the Act of 1870 has been applied to proceedings for extradition under the agreement with Germany and that no provision has been made which would except from that operation any part of section 14.

But even if section 14 does apply the question remains whether the phrase "in a foreign state" which occurs therein is to be construed as applying to any foreign state or is to be restricted by implication to the foreign state which is applying for the extradition in question. At first sight it might seem strange that Parliament in 1870 should be making admissible as evidence in this country depositions on oath taken in any part of the world outside the United Kingdom and the remainder of Her Majesty's possessions, irrespective of the compatibility of the judicial system concerned with the requirements of justice understood in this country. Whereas before making an arrangement with a foreign state Her Majesty's Government would be understood to have satisfied itself with the system of justice in that foreign state, no such safeguard is afforded if evidence is admissible taken in any foreign state. In the particular case before your Lordships the evidence in question was taken in Bolivia and Her Majesty's Government do have a treaty of extradition with Bolivia and therefore if the phrase "a foreign state" were to be construed as including any foreign state to which the Act had been applied, Bolivia would be included, and this implication would not assist the appellant. Accordingly, the implication by which it is suggested the phrase "a foreign state" is restricted is an implication that the phrase "a foreign state" means "the foreign state from which the requisition for the surrender proceeded."

When the Act of 1870 was passed it dealt only with crimes committed within the territorial jurisdiction of a state with whom an extradition arrangement had been made: see, for example, Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556, per Lord Reid, at p. 579. Although the Taking of Hostages Act 1982 has now enlarged that jurisdiction, it has done so, in section 3(4), by deeming an offence committed under the Act of 1982, which is also an offence against the law of any state in the case of which the Act of 1870 is applied by an order in council, to be an offence committed within the jurisdiction of that state. In any event when the Act of 1870 was passed it was dealing only with crimes committed within the territorial jurisdiction of the states that are parties to an extradition agreement. The provisions of

section 14, however broadly construed, would not cover the United Kingdom or any other part of Her Majesty's possessions, and it was suggested that it would be anomalous for depositions or statements on oath taken in British territory not to be included while depositions or statements on oath taken anywhere else would be included under the scope of section 14. Reliance was also placed on a passage from the speech of Lord Diplock in Reg. v. Governor of Pentonville Prison, Ex parte Passingham [1983] 2 A.C. 464, 470, where he said of section 14:

"The manifest purpose of the section, as has frequently been stated, is to obviate the necessity of bringing witnesses from one country that is a party to an extradition treaty to give oral evidence in the other."

This speech was concurred in by the other members of the House taking part in that decision. Counsel also pointed out that it was conceded in Reg. v. Governor of Pentonville Prison, Ex parte Singh (Harmohan) [1981] 1 W.L.R. 1031 that evidence taken in a third state should not be admitted.

Reference was also made by counsel for the appellant to the Fugitive Offenders Act 1881, section 29, which provides for a magistrate taking depositions for the purposes of that Act in the absence of a person accused of an offence in like manner as he might take the same if such person were present and accused of the offence before him. It is clear that that section applies only to depositions taken within British possessions exclusive of the United Kingdom, the Channel Islands and the Isle of Man.

It was also pointed out that in section 15 of the Act of 1870 the concluding provisions apply to warrants, depositions or statements on oath, and certificates of or judicial documents stating the fact of conviction. The warrants relevant in any proceedings for extradition will be warrants granted in the state requesting extradition and, for practical purposes, the convictions of importance will have been recorded also in that state. It follows, so ran the argument, that since the seal referred to in the concluding part of section 15 is the official seal of the minister of justice or some other minister of state the concluding part must refer to all three types of document dealt with earlier in the section and, accordingly, the depositions or statement on oath dealt with must be capable of being authenticated by the same seal, namely, that from the state requesting the extradition, as the seal which would authenticate a warrant or a certificate of conviction.

Against these considerations for implying a restriction in the general phrase used in section 14, it was pointed out that where, in the Act of 1870, Parliament intended to refer to the foreign state from which the requisition for the surrender proceeded, it does so in express and plain terms: see, for example, section 11, section 17(1), and a different form of provision in section 19. The only judicial consideration of this matter, prior to the present case, that counsel was able to refer to was Rex v. Governor of Brixton Prison [1911] 2 K.B. 82. In that case a warrant had been issued by a magistrate in France for the arrest of the prisoner on a charge of obtaining money by false pretences contrary to article 405 of

the French penal code. At the time the magistrate issued the warrant no depositions relating to the charge had been taken on oath before him. The offence was alleged to have been committed in a railway train in the course of a journey between Paris and Brussels, and as there was apparently some doubt on which side of the frontier the offence was committed, a deposition alleging the facts of the offence was sworn before a commissary of police in Brussels, and though there was no evidence as to what materials the French magistrate had before him, presumably he had before him the depositions so taken in Brussels. A requisition for the surrender of the prisoner was made by the French Government to the Home Secretary who issued an order to proceed under section 7 of the Act of 1870. A rule nisi was obtained for a writ of habeas corpus on the ground that the prisoner was entitled to be discharged from custody because no requisition had been made by the French Government in the manner directed by the relevant treaty within 14 days of his arrest. Article VII of that treaty required that, together with the warrant, there should be duly authenticated depositions or statements taken on oath before the person issuing the warrant clearly setting forth the acts charged against the accused. The court on an application to have the rule discharged treated the objection as one to the procedure which had preceded the making of the Secretary of State's order, and concluded that such an objection was not enough to take away the magistrate's jurisdiction. Ridley J. concluded his opinion at p. 87:

"In the exercise of his jurisdiction the magistrate has caused the prisoner to be arrested, upon evidence which in his opinion justified the issue of his warrant. And under section 14, which provides that depositions taken in a foreign state may be received in evidence in proceedings under the Act, he was entitled to look at the depositions taken in Belgium nonetheless because the state demanding the prisoner's surrender was not Belgium but France."

Darling J., pointed out, at pp. 87-88, that:

"the complaint is that the depositions which in fact accompanied the requisition were not taken before that magistrate or indeed in France at all."

Neither Darling J. nor Channell J., who were the judges sitting with Ridley J., offered any challenge to the statement with which his opinion concluded. The point I am now considering was not argued before the court but considering that counsel for the Crown was the Attorney-General, Sir Rufus Isaacs, and counsel for the prisoner was Percival Clarke, the editor of the then current edition of Clarke on Extradition,4th ed. (1903), if the point had been a good one, one might have expected it to be raised. In any event, this case shows, I think, that at a point of time much nearer 1870 than we are today, the court, and others intimately concerned with the process of extradition, did not regard it as strange that Parliament in 1870 should have made provision for third state evidence to be admissible at the stage of deciding whether a person should be committed for surrender in extradition proceedings.

It is plain from the terms of section 9 that the police magistrate has an obligation to receive

"any evidence which may be tendered to show that the crime of which the prisoner is accused or alleged to have been convicted is an offence of a political character or is not an extradition crime."

As was pointed out by my noble and learned friend, Lord Oliver of Aylmerton, in the course of the hearing, the persons who might be in a position to give evidence in support of a prisoner on this matter might well not find it wise to go to give evidence in the state requesting the extradition in view of the possible danger to them inherent in such a course, and might not deem it wise to come into a British possession where the possibility of extradition existed until the question raised by the part of section 9 which I have quoted had been finally and authoritatively decided and, therefore, to construe section 14 narrowly would exclude evidence of such persons from consideration by the magistrate at the proceedings before him which are the vital stage for the consideration of this question. Once a person is handed over to the requisitioning state the fact that the offence of which he is accused or of which he has been convicted is a political offence will be of no importance in the judicial proceedings in that country. In my opinion this consideration shows that the width of section 14 is of supreme importance at the stage of committal proceedings and that to construe it narrowly would not by any means always produce a result favourable to the prisoner.

As I have already mentioned, the only Act dealing generally with extradition prior to the Act of 1870 had dealt with the subject matter of section 14 expressly restricting it to

"any foreign state with which her Majesty may have entered into, or may hereafter enter into, any treaty for the extradition of fugitive offenders . . ." (29 & 30 Vict. c. 121, section 1).

In my opinion the fact that on enacting section 14 no such express restriction was included bearing that previous provision in mind is powerful support for the view that no such restriction should be implied. I should add that it is plain that in 1866 Parliament limited the duration of that earlier Act to 1 September 1867 as a pointer to the importance that Parliament attached to such provisions, and I find it hard to conclude that against that background of express restriction Parliament left to implication a restriction in the scope of section 14 if such a restriction had been intended.

In my opinion section 15 in its terms is consistent with section 14 having no implied limitation on its scope. The concluding words, to which I have already referred, are, in my opinion, equally consistent with either interpretation of section 14 but the fact that section 15 has been divided into three separate heads is, in my opinion, more consistent with a parliamentary intention that the second head should not necessarily be restricted to depositions or statements on oath taken in the foreign state requesting the extradition than with the idea that all three heads are so restricted. As I said, head (1) will certainly relate

to warrants in the requesting state, and head (3) will, for most practical purposes, also relate to convictions which have been recorded in that state. If the same had been true of head (2), I should have thought that it would be simpler to have dealt with all three heads together by providing that warrants, depositions or statements on oath, or copies thereof, and certificates of or judicial documents stating the fact of conviction purporting to be signed or certified by a judge, magistrate or officer of the state requesting the extradition should be deemed duly authenticated for the purposes of the Act provided they were authenticated by the oath of some witness or by being sealed with the official seal of the minister of justice or some other minister of state. The necessity for the subdivision into three heads arises, in my opinion, from the possibility that the state concerned in each of the three heads may not be the same.

Finally, when considering the underlying concern which prompts the question whether an implication is to be read into section 14 restricting its scope, I consider that it must be borne in mind that the extradition proceedings to which section 14 applies are the proceedings for committal. The ultimate trial will take place according to the provisions of the judicial system of the state requesting the extradition if the prisoner is handed over. As I said, the fact that an extradition arrangement has been made with such a state may be taken as indicating that Her Majesty's Government is satisfied with the system of justice under which that trial will take place. The question of whether the prisoner is innocent or guilty of the crime charged will be determined at a trial under that system, and even if the depositions or statements on oath admitted under section 14 were taken under a system of justice which might not be regarded as in all respects satisfactory, the protection against any ultimate harm to the prisoner is afforded by the system of justice under which his trial takes place. On the other hand, to deny section 14 the full scope of its plain words might deprive the prisoner of his only opportunity to rely upon evidence supporting the allegation that the crime for which extradition is sought is of a political character or is not an extradition crime.

Although the considerations in favour of limiting the scope of section 14 have been shown to be worthy of serious consideration, I have reached the clear conclusion that the considerations in favour of giving section 14 a meaning according to its plain terms and not restricted by implication are overwhelming and that accordingly the third state evidence is admissible. The first question certified therefore falls, in my opinion, to be answered in the affirmative as it was by the Divisional Court.

On such evidence being admitted the weight to be given to it is a matter for the magistrate. I do not agree with the view expressed in the Divisional Court that the magistrate would be entitled to refuse to admit evidence obtained in a third state according to considerations such as the character of that state's régime, whether we have an extradition treaty with it and the like. The question of the position where the third state is an enemy state does not arise in this appeal and I express no opinion upon it.

I turn now to the second question. The only questions arising for the consideration of the police magistrate under section 10 of the Act of 1870 are whether the foreign warrant authorising the arrest of the prisoner is duly authenitcated and whether such evidence is produced as (subject to the provisions of the Act of 1870) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England. If both of these questions are answered affirmatively, the police magistrate shall commit him to prison but otherwise shall order him to be discharged. These questions are not in any way concerned with the proceedings that may follow in Germany if the prisoner is committed to prison. Accordingly the second question falls to be answered in the negative.

I turn now to matters raised by the appellant questioning the lawfulness of the Secretary of State's order dated 25 July 1984 and the certified question (3) which is

"whether or to what extent the Secretary of State can lawfully issue an order under section 7 of the [Act of 1870] during the currency of an existing order and without any further requisition by the requesting state."

Section 7 is in these terms:

"A requisition for the surrender of a fugitive criminal of any foreign state, who is in or suspected of being in the United Kingdom, shall be made to a Secretary of State by some person recognised by the Secretary of State as a diplomatic representative of that foreign state. A Secretary of State may, by order under his hand and seal, signify to a police magistrate that such requisition has been made, and require him to issue his warrant for the apprehension of the fugitive criminal. If the Secretary of State is of the opinion that the offence is one of a political character, he may, if he think fit, refuse to send any such order, and may also at any time order a fugitive criminal accused or convicted of such offence to be discharged from custody."

It will be seen that the only necessary condition for the issue by a Secretary of State of an order under this section is that a requisition for the surrender of a fugitive criminal in the circumstances described in the first sentence has been made. When such a requisition has been made the Secretary of State has power to make an order under section 7 and there is no limit expressly imposed by section 7 on the number of orders he may make. It will be seen from the form of order in Schedule 2 to the Act of 1870 that in the narrative there is reference to the requisition and provision for stating the crime of which the person whose extradition is sought is accused or has been convicted. The decided case show that in practice a first examination of the requisition and supporting evidence may not result in a full account of the crimes of which the person in question is accused or has been convicted. The requisition and supporting evidence will relate to allegations of crime under the law of the requesting state and for the purposes of the narrative in the Secretary of State's order it is necessary that the equivalent crime under English law

should be specified. A further examination of the requisition and supporting evidence often produces evidence of crimes other than those originally specified and when this happens it is necessary, and in my opinion perfectly lawful, for the Secretary of State to issue a further order. It is the narrative in the Secretary of State's order which informs the magistrate of the crimes of which the person in question is accused or has been convicted. This information is fundamental to the question which the magistrate must consider in the proceedings before him. The certified question asks whether the Secretary of State can lawfully issue an order during the currency of an existing order. Strictly speaking an order having been made the magistrate is informed of it and required to act upon it and the concept of "the currency" of an order is not perhaps particularly appropriate. In argument the appellant submitted that it was not lawful for the Secretary of State to issue a further order while the appellant was in custody during proceedings consequent upon an earlier order. There is nothing in the section expressly supporting this submission, and counsel was not able to point to any provisions in the Act of 1870 or other basis from which such a restriction is to be inferred. It is plain that an order may be made while a person is already in custody and accordingly I can see no reason to accept this submission from the appellant. The appellant further submitted, although with hesitation, that a further requisition is required before the second order can be made, but again, there is nothing in the section which expressly supports this and nothing, in my opinion, from which such a restriction is to be inferred. Once a requisition is made the Secretary of State is entitled to make an order or orders following upon and based on it.

The appellant further submitted in relation to this question that the issue of a second order by the Secretary of State in the circumstances disregarded the provisions of article XII of the treaty and the true intendment of the Act of 1870 as applied by the treaty. In the light of the decision of this House in Reg. v. Governor of Pentonville Prison, Ex parte Sotiriadis [1975] A.C. 1, it is clear that article XII required, unless sufficient evidence to justify his extradition had by then been produced, that the appellant be set at liberty within two months of 16 April 1984, the date when he was remanded in custody pursuant to the order to proceed signed by the Secretary of State of 13 April 1984. On 26 July 1984 the appellant was set at liberty, the reason being that counsel for the German Government had advised his clients, and the advice had been accepted, that since evidence which in his view was in proper form and had been properly authenticated had been received on 6 July it was unnecessary and undesirable to continue with the proceedings in which only the earlier version of the evidence had been produced in respect of which substantial argument could be raised as to whether or not it was in proper form and properly authenticated as required by the statutory provisions.

In my opinion once the appellant had been discharged full effect had been given to the provisions of article XII.

These provisions do not prohibit a further attempt to secure the extradition of the person who has been liberated. They do not prevent his extradition. The decision of the police magistrate setting a person at

liberty in terms of article XII is not a decision that he can never thereafter be extradited in respect of the matter which has been the subject of the requisition. Just as the decision of examining magistrates in committal proceedings in England is not final so the decision of the police magistrate to set at liberty is not a final decision precluding thereafter a decision to commit for extradition on the basis of further evidence: see Atkinson v. United States of America Government [1971] A.C. 197, per Lord Reid, at p. 235D. The arrival at Bow Street of the second order to proceed led the police magistrate to issue a warrant for the arrest of the appellant and, in my opinion, he was, on being arrested under that warrant, apprehended for the purposes of article XII and the German Government had two months from the date of that apprehension within which to produce sufficient evidence for his extradition. If they failed to do so the appellant would be entitled to be set at liberty. It was submitted for the appellant that this result deprives article XII of any significant effect. In my opinion this is not so.

When examining magistrates in committal proceedings reach the conclusion that the evidence before them is insufficient to justify committal for trial of an accused person, the accused person is entitled to be set at liberty. This does not prevent him being re-arrested and being made subject to new committal proceedings, although, as the authorities illustrate, the initiation of new proceedings may, in some circumstances, amount to an abuse of process. The purpose of article XII, in my opinion, is to prevent the government seeking extradition from causing a person to be held in custody for longer than two months while they seek to assemble sufficient evidence to justify his extradition. If within that time they have not assembled sufficient evidence he must be set at liberty. If, in addition, extradition were to be effectively prevented in respect of the matters which had led to his being held in custody, language to that effect would be required: compare, for example, the Criminal Justice (Scotland) Act 1980, section 14.

In Reg. v. Governor of Pentonville Prison, Ex parte Sotiriadis [1975] A.C. 1, Lord Diplock said, at p. 27:

"For my part, I see nothing in the provisions of the Extradition Act 1870 to justify ascribing to article XII of the treaty a meaning other than that which on its natural construction it would appear to bear, or holding that the time limit of two months within which sufficient evidence for the extradition must be produced starts to run before, as a consequence of the requisition, the fugitive criminal is for the first time held in custody for the purpose of the judicial hearing of the charges specified in the requisition."

In that case the question before the House was whether the date of apprehension for the purpose of article XII was the date on which the prisoner was first remanded in custody following upon the issue of the Secretary of State's order to proceed or was the earlier date when he was taken into custody on a warrant granted under section 8(2) of the Act of 1870. Obviously in the course of a judicial hearing there may be a variety of remands in custody and it was natural in the circumstances of that case for the date of apprehension to be referred to as the first

time the prisoner was held in custody for the purpose off the judicial hearing to distinguish it from the date of subsequent remands for the purpose of the same hearing. Accordingly, properly understood, Lord Diplock's observation does not preclude the view that for the purposes of the custody which began on 26 July the relevant apprehension took place on 26 July.

For these reasons, in my opinion, question (3) falls to be answered by saying that the Secretary of State can lawfully issue an order under section 7 of the Act of 1870 once a requisition has been made to him by a person recognised by him as a diplomatic representative of the foreign state and he is not precluded from making an order following on a requisition merely because he has made an earlier order following on the same requisition, and that where a person has been set at liberty following upon proceedings under an earlier order he may be apprehended under a later order and the effect of article XII is to require that if sufficient evidence for the extradition is not produced within two months from the date of that apprehension he shall again be set at liberty.

Questions (4) and (5) deal with power to review the making of an order by the Secretary of State under section 7 and are in these terms:

"(4) Whether the police magistrate has power to review the exercise of the Secretary of State's discretion to make an order under section 7 of the [Act of 1870]. (5) Whether the High Court has power to review the exercise of the Secretary of State's discretion to make an order under section 7 of the said Act."

Both parties were agreed that question (4) should be answered in the negative and question (5) in the affirmative, although the respondents did so with the explanation that a successful challenge to such exercise could only very rarely arise. I agree that question (4) should be answered in the negative and question (5) in the affirmative.

Question (8) asks whether there was an abuse of power in the present case

"having regard to the failure by the requesting state to produce sufficient evidence for the extradition within two months of the apprehension of the applicant."

As I have already said, the second order was granted because the German Government had been advised that difficult questions arose with regard to the form and authentication of the evidence which had been produced prior to 16 June 1984, but that these difficulties were obviated if the evidence produced on 6 July could be put before the court for its consideration. From the documents which were produced to us and which were before the Divisional Court, it is apparent that the difficult questions could have occupied a great deal of time in argument which would be quite unnecessary if the new evidence were being considered. In my opinion it was a perfectly proper step for the German Government to take in these circumstances to abandon the proceedings in which the new evidence was not available in order to replace them by proceedings in which the new evidence was available and these questions could be obviated, particularly where, as the Divisional Court found:

"From mid-April onwards with increasing emphasis and urgency, the Director [of Public Prosecutions]" (who was acting for the German Government) "sought to obtain from the German authorities within the stipulated time properly authenticated statements to satisfy the evidential requirements of the legislation. It is fair to say that the German authorities were equally anxiously urging the Bolivian authorities to co-operate in this endeavour and the failure to achieve it appears to rest in Bolivia, where the delay was apparently, exacerbated by industrial action, rather than with the Germans.

In my opinion, the action taken by the German Government and by the Secretary of State in granting the second order was likely to lead to an earlier resolution of the real questions between the parties than would have been possible if the earlier proceedings had been continued. I see no ground upon which the action of the Secretary of State in granting the second order can be successfully challenged. So far as abuse of process is concerned, the alleged abuse of process rests on the same ground as the allegation that the Secretary of State's second order was improperly granted and, in my opinion, is equally without merit. Accordingly question (9), which asks whether there was an abuse of process in the present case, falls to be answered in the negative. I consider it inappropriate in this appeal to deal with questions (6) and (7) which asked whether the police magistrate or the High Court has jurisdiction to prevent the abuse of process in respect of proceedings under the Act of 1870 since it is not necessary to answer them to dispose of the appeal, and the answer might well depend on the circumstances in which the relevant abuse of process occurred.

For these reasons, in my opinion, the decision of the Divisional Court was right and this appeal should be refused. The House should decline to answer questions (6) and (7) and should answer the other questions in the manner I have set out in this opinion.

LORD OLIVER OF AYLMERTON. My Lords, I have had the advantage of reading in draft the speech which has been delivered by my noble and learned friend, Lord Mackay of Clashfern, and I agree that the appeal should be dismissed for the reasons which he gives.

LORD GOFF OF CHIEVELEY. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Mackay of Clashfern. I agree with it, and for the reasons which he gives I would dismiss the appeal.

Solicitors: Kingsley Napley; Director of Public Prosecutions.

M. G.