[HOUSE OF LORDS]

In re SCHMIDT

Extradition - Habeas corpus - Abuse of process - Applicant's presence within jurisdiction secured by means of deception - Applicant arrested - Foreign state requesting extradition - Secretary of State issuing authority to proceed - Whether High Court having residual jurisdiction to order release on ground of abuse of process - Extradition Act 1989 (c. 33), s. 11(3)

The applicant, a German national, was accused by prosecuting authorities in Germany of drug offences committed between 1987 and 1991. On 13 August 1991, an international arrest warrant was issued by a German court. The applicant was then living in the Republic of Ireland. In 1992, an officer of the extradition squad of the International and Organised Crime Branch of the Metropolitan Police telephoned to the applicant and his solicitor in Ireland and said that he was investigating a cheque fraud and was anxious to exclude the applicant from his inquiries. He invited the applicant to come to England to be interviewed and

told the applicant's solicitor that if the applicant did not come his name would probably be circulated as that of a suspect and he would be liable to be arrested when he next came to the United Kingdom. There was no truth in the allegation of cheque fraud, which was simply a device to persuade the applicant to enter the United Kingdom. On 17 November 1992, the applicant and his solicitor met the police officer in London. The applicant accompanied the officer to a police station where he was arrested on a provisional warrant under section 8(1)(b) of the Extradition Act 1989¹ issued that morning. On 18 November, he was remanded in custody, and on 18 February 1993, following an extradition request made by the German Government and an authority to proceed issued by the Secretary of State under section 7 of the Act of 1989, he was committed to custody to await the decision of the Secretary of State as to his return to Germany. He applied for a writ of habeas corpus on the basis that the ruse adopted by the police officer to persuade him to come to the United Kingdom had been an abuse of power by the executive and was an abuse of process of the courts of England and Wales that vitiated the whole extradition proceedings. He also applied for judicial review by way of certiorari to quash the decision to issue the authority to proceed. The Divisional Court of the Queen's Bench Division refused the applications.

On appeal by the applicant against the refusal of the application for habeas corpus:-

Held, dismissing the appeal, that in proceedings under the Extradition Act 1989 the magistrate hearing an application for committal had no power to refuse to commit the fugitive on the ground that the procceedings might be an abuse of process but must commit him if the requirements of section 9(8) of the Act of 1989 were satisfied; and that the High Court had no jurisdiction to intervene in the proceedings but only such discretion as was conferred on it by section 11(3) of the Act of 1989, the safeguard for the fugitive in the case of an alleged abuse of power being the general discretion of the Secretary of State under section 12(1) as to the making of an order for his return (post, pp. 368C, 374D, 378H-379A, 380C, D-E).

Atkinson v. United States of America Government [1971] A.C. 197, H.L.(E.) and Reg. v. Governor of Pentonville Prison, Ex parte Sinclair [1991] 2 A.C. 64, H.L.(E.) followed.

Dictum of Viscount Dilhorne in Government of Australia v. Harrod [1975] 1 W.L.R. 745, 757, H.L.(E.) not applied.

Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42, H.L.(E.) distinguished.

Per curiam. The police officer's conduct was not in any event so grave or serious as would have warranted the intervention of the High Court had it possessed such a power (post, pp. 368C, 380C, D-E).

Decision of the Divisional Court of the Queen's Bench Division, post, pp. 342G et seq., affirmed.

The following cases are referred to in the opinion of Lord Jauncey of Tullichettle:

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.)

1 Extradition act 1989, s. 11(3): see post, p. 371G-H

Government of Australia v. Harrod [1975] 1 W.L.R. 745; [1975] 2 All E.R. 1, H.L.(E.)

Liangsiriprasert (Somchai) v. Government of the United States of America [1991] 1 A.C. 225; [1990] 3 W.L.R. 606; [1990] 2 All E.R. 866, P.C.

Osman, In re (unreported), 28 February 1992 but see [1992] Crim.L.R. 741, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh [1962] 1 Q.B. 211; [1961] 2 W.L.R. 980; [1961] 2 All E.R. 565, D.C.

Reg. v. Governor of Pentonville Prison, Ex parte Narang [1978] A.C. 247; [1977] 2 W.L.R. 862; [1977] 2 All E.R. 348, H.L.(E.)

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, H.L.(E.)

Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42; [1993] 3 W.L.R 90; [1993] 3 All E.R. 138, H.L.(E.)

Wiseman v. Borneman [1971] A.C. 297; [1969] 3 W.L.R. 706; [1969] 3 All E.R. 275, H.L.(E.)

The following additional cases were cited in argument in the House of Lords:

Bozano (Case 5/1985/91/138) (unreported), 2 December 1986, E.C.H.R.

Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation Ltd. [1981] A.C. 909; [1981] 2 W.L.R. 141; [1981] 1 All E.R. 289, 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, H.L.(E.)

M. v. Home Office [1994] 1 A.C. 377; [1993] 3 W.L.R. 433; [1993] 3 All E.R. 537, H.L.(E.)

Republic of Argentina v. Mellino (1987) 40 D.L.R. (4th) 74

Reg. v. Christou [1992] Q.B. 979; [1992] 3 W.L.R. 228; [1992] 4 All E.R. 559, C.A.

Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1993] 2 All E.R. 474, D.C.

Reg. v. Latif, The Times, 17 March 1994, C.A.

State (Trimbole), The v. Governor of Mountjoy Prison [1985] I.R. 550

The following cases are referred to in the judgments in the Divisional Court:

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.)

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.)

Liangsiriprasert (Somchai) v. Government of the United States of America [1991] 1 A.C. 225; [1990] 3 W.L.R. 606; [1990] 2 All E.R. 866, P.C.

M. v. Home Office [1994] 1 A.C. 377; [1993] 3 W.L.R. 433; [1993] 3 All E.R. 537, H.L.(E.)

Osman, In re (unreported) 28 February 1992 but see [1992] Crim.L.R. 741, 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, H.L.(E.)

Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42; [1993] 3 W.L.R. 90; [1993] 3 All E.R. 138, H.L.(E.)

State (Quinn), The v. Ryan [1965] I.R. 70

State (Trimbole), The v. Governor of Mountjoy Prison [1985] I.R. 550

The following additional cases were cited in argument in the Divisional Court:

Denton Road, Twickenham, In re No. 56 [1953] Ch. 51; [1952] 2 All E.R. 799

Government of Australia v. Harrod [1975] 1 W.L.R. 745; [1975] 2 All E.R. 1, H.L.(E.)

Reg. v. Governor of Brixton Prison, Ex parte Osman, The Times, 17 December 1990, D.C.

Reg. v. Governor of Pentonville Prison, Ex parte Narang [1978] A.C. 247; [1977] 2 W.L.R. 862; [1977] 2 All E.R. 348, H.L.(E.)

APPLICATIONS for writ of habeas corpus and for leave to apply for judicial review.

By a notice of motion the applicant, Norbert Schmidt, applied for a writ of habeas corpus ad subjiciendum to issue directed to the Governor of Brixton Prison where he was detained pending removal to Germany consequent to orders made by the Bow Street Metropolitan Stipendiary Magistrate on 18 February 1993.

By a notice of application dated 4 March 1993 the applicant sought leave to apply for judicial review by way of certiorari to quash the decision of the Secretary of State for the Home Department, by the minister of state, to issue authority to proceed, dated 7 January 1993, to the Bow Street Metropolitan Stipendiary Magistrate. The proposed ground of the application was that when the minister of state issued the authority to proceed, either (1) he did not know the full details of the method by which the applicant had been tricked into coming into the United Kingdom, in which case since, if the true facts leading to the arrest had been disclosed to the minister, he would not have issued the authority to proceed, the minister's decision was affected by procedural irregularity and impropriety; or (2) he did know the full details of the method by which the applicant had been tricked into entering the United Kingdom, in which case no reasonable minister of state, aware of the circumstances of the deceit, could have issued an authority to proceed.

The facts are stated in the judgment of Roch L.J.

Clive Nicholls Q.C. and James Lewis for the applicant.

Jonathan McManus for the Secretary of State.

Alun Jones Q.C. and Clare Montgomery for the Governor of Brixton Prison.

26 November 1993. The following judgments were read.

ROCH L.J. On 17 November 1992, the applicant, Norbert Schmidt, was arrested by Detective Sergeant David Jones at the Charing Cross Police Station. The applicant was arrested on a provisional warrant which had been issued that morning by the Bow Street Metropolitan Stipendiary Magistrate under section 8(1)(b) of the Extradition Act 1989. The applicant appeared at the Bow Street Magistrates' Court on the following day and was remanded in custody. On 21 December 1992 the Extradition Unit at the Home Office received from the German Government via

diplomatic channels the documents which are required under section 7 of the Act. Those documents satisfied the officials at the Extradition Unit that the German Government had requested the extradition of the applicant as a person accused of serious drug offences; that a court at Mannheim in the Federal Republic of Germany had issued a warrant for the applicant's arrest; that the applicant had been arrested in the United Kingdom on 17 November 1992 on a provisional warrant of that date and had appeared at the Bow Street Magistrates' Court on 18 November 1992 where he was remanded in custody; that the German Government had provided the necessary supporting documentation as required by section 7 of the Act of 1989 and article 12 of the European Convention on Extradition Order 1990 (S.I. 1990 No. 1507); and that on the evidence of the supporting documentation supplied by the German Government, the German offences were extraditable under section 2 of the Act of 1989. Consequently on 7 January 1993 the minister of state issued an authority to proceed on behalf of the Home Secretary under section 7(4) of the Act.

At that time the Home Office were unaware of the events which had led to the applicant being in the United Kingdom and in the Charing Cross Police Station on 17 November 1992.

The applicant seeks two remedies. First, a writ of habeas corpus ordering his release, and second, leave to move for judicial review and, if leave is granted, judicial review of the minister of state's decision of 7 January 1993 to issue an authority to proceed to the metropolitan stipendiary magistrate.

Shortly put, the applicant's case is that the events which led up to his being in this country and to his arrest on 17 November 1992 amount to an abuse of power and an abuse of the process of the courts of England and Wales. Further the decision of the minister to issue the authority to proceed was taken in ignorance of the events which preceded the applicant's arrest and was therefore taken without regard to material matters which should have led the minister to decide not to issue such authority. Consequently an order of certiorari should issue to quash the minister's decision and a writ of habeas corpus should issue to effect the release of the applicant.

What is said on the applicant's behalf is that he was tricked and deceived into coming to this country by D.S. Jones; that but for such conduct the applicant would not have been in this country on 17 November; that the conduct of that officer was a breach of the law of another country, namely the Republic of Eire, a deliberate evasion of the extradition procedures of the Republic of Eire and a breach of international law; and, therefore, there has been such a serious abuse of power by the police that this court must take cognisance of such conduct and should order the release of the applicant.

Between 1987 and 1991, so the German authorities allege, the applicant, who is a German national, committed drug offences in Holland and Germany involving the importation of cannabis into Germany from Holland. It is common ground that the conduct alleged by the German authorities if proved against the applicant, would amount to extradition crimes for which the applicant might be arrested in this country and returned to Germany under section 1 of the Extradition Act 1989.

The applicant left Germany in 1989 and moved to the Republic of Eire. There he set up a business in kite and model airplanes based in Waterford. His business flourished to such an extent that he retained an Irish solicitor, Mr. Dermot Coyne of 46, North Circular Road, Dublin to advise him.

On 12 August 1991 the applicant was arrested in Dublin by the Drug Squad of the Irish police for being in possession of controlled drugs. On the following day, 13 August 1991, an international arrest warrant was issued by the Mannheim local court in respect of the applicant for violation of the German Narcotics Act. On the following day, the German authorities asked the Irish authorities to procure a provisional warrant for the arrest of the applicant. The applicant pleaded guilty to being in possession of controlled drugs before the Dublin court and was released from custody in Eire in October 1991. On 29 October, the German authorities were told by the Irish authorities that the documents in support of the provisional arrest warrant were not in order. No further step was taken by the German authorities in Eire to extradite the applicant. Mr. Jones who appeared for the German Government told the court that he had no instructions as to the reason why the German authorities took no further step to extradite the applicant from Eire.

Two months later, in December 1991, a despatch letter was received at New Scotland Yard from Interpol at Wiesbaden arising out of the international arrest warrant which had been issued on 13 August 1991 by the Mannheim local court. That letter requested that the applicant be searched for and arrested. It stated that in the case of arrest the Public Prosecutor's Office at Mannheim would request the applicant's extradition through diplomatic channels. The letter also contained specific information that the applicant had stayed in the United Kingdom. It was that part of that letter which led to the Extradition Squad of the International and Organised Crime Branch of the Metropolitan Police being contacted and being given the investigation. The particular officer in that squad charged with the investigation was D.S. David Jones. He contacted D.I. Mulligan of the Irish Drug Squad and discovered the events of August and October 1991 in Ireland but was told that D.I. Mulligan could not assist with regard to the applicant's then whereabouts. Further investigation by D.S. Jones failed to disclose any trace of the applicant and consequently he returned the file to Interpol in London on 3 February 1992, the inquiry at that stage being closed.

On 14 April 1992 information was received from the German authorities that they had traced the applicant to Waterford and that they intended to apply for his extradition from Eire. During the subsequent six months the Extradition Squad in London were told by intelligence sources that the applicant was entering and leaving the United Kingdom, and had entered this country on numerous occasions using false British and E.E.C. passports to conceal his true identity. The information also suggested that the applicant had travelled to Italy and Belgium in 1992 using false travel documents. Such behaviour was characteristic of a fugitive seeking to avoid detection. Further, D.S. Jones deposes that that information caused him to be concerned that the applicant might be involved in terrorist activities and might be committing offences in this

country as a result of his use of forged documents, particularly passports. It has to be observed that counsel for the respondents conceded that there is no evidence that the applicant has been involved in terrorist activities.

On 10 September 1992 D.S. Jones received information that the applicant was believed to be attending a kite festival in Bristol. Inquiries by the Bristol police led them to the Bristol Kite Store and inquiries at those premises showed that the owner of those premises knew of the applicant and had seen him practising with a kite on Durdham Downs, Bristol, during the festival weekend. Some six weeks later the officer who made those inquiries, D.C. Gregory, received a telephone call at the Redland Police Station in Bristol from a man purporting to be the applicant. That officer gave the caller the name of D.S. Jones and his number and asked the caller to telephone D.S. Jones saying he was the officer who wished to trace the applicant. The caller gave D.C. Gregory a telephone number in Eire where he could be contacted.

D.S. Jones in his affidavit says that on 10 September 1992 he had decided to investigate whether the applicant had committed offences in connection with forged passports. D.S. Jones believed that it would be very difficult to trace the applicant whilst he was in England and Wales, and consequently he approached his superior, D.C.I. Alan Wright, who is the officer in charge of the Extradition Squad, for permission to adopt the ruse of passing himself off as an officer investigating cheque fraud offences in the hope of persuading the applicant to meet him on one of the applicant's visits to the United Kingdom. D.S. Jones deposes that both he and the detective chief inspector had experience of how difficult it is to arrest those concerned in the international trade in prohibited drugs and that they therefore believed that if D.S. Jones could tempt the applicant into meeting him in England or Wales the applicant could be arrested on a provisional warrant and, if the German Government were to make a request for his extradition, he could be extradited to Germany. D.S. Jones adds that he did not believe that the ruse he was suggesting would circumvent any extradition arrangements between the Republic of Eire, Germany and the United Kingdom as he was not intending to tempt the applicant to enter the United Kingdom in circumstances where he would never otherwise have come here. He was simply trying to persuade the applicant to get in touch with him when he came to the United Kingdom for his own purposes. The German authorities were not told of D.S. Jones's intentions or any of the steps that D.S. Jones was taking. Nor were the German authorities told that D.S. Jones was taking steps until after the applicant had been arrested. D.C.I. Wright gave D.S. Jones permission to adopt the stratagem.

On 20 October 1992 D.S. Jones telephoned the number the applicant had given to D.C. Gregory. The applicant was not available but the detective sergeant left the number of his message pager and a request that the applicant contact him on that number. The detective sergeant used the paging answering system in order that the applicant would not realise that he was a member of the Extradition Squad. The detective sergeant says he was careful not to mention that he was attached to any particular squad because it would have been easy for someone to check whether that was or was not correct. The following day the detective sergeant was

paged by the applicant. He phoned the applicant back at the Irish number. There is some disagreement between the affidavits of the applicant and his solicitor, Mr. Coyne, on the one hand and that of D.S. Jones on the other hand about the number of calls and precisely what was said during the calls. In my view those differences are not material to the issues this court has to decide. What emerges from the affidavits is that D.S. Jones told the applicant and his solicitor that he was investigating a cheque fraud which had allegedly been committed by a Mr. N. Schmidt and that the detective sergeant had in his possession documents, some with handwriting by the perpetrator of the offence upon them, and photographic evidence of the perpetrator of the offence committing cheque frauds; and that D.S. Jones was anxious to exclude the applicant from his inquiries. D.S. Jones asked the applicant both directly and through his solicitor whether the applicant could come to this country to be interviewed so that the matter could be resolved. D.S. Jones told the applicant's solicitor that he, D.S. Jones, was not able to go to Eire to interview the applicant about these matters. D.S. Jones offered to interview the applicant at the ferry port at Holyhead or Fishguard if that would prove more convenient to the applicant. At some stage the applicant's solicitor asked D.S. Jones specifically what would happen if the applicant did not attend for interview and was told by D.S. Jones that it would be the normal practice to circulate the applicant on the Police National Computer as being suspected of these offences and he would then be arrested when he first came to the notice of the authorities in the United Kingdom. Ultimately it was agreed that the applicant and his solicitor would come to London on 17 November 1992. The applicant's solicitor was to fly to Heathrow and was to meet D.S. Jones at Green Park tube station in Piccadilly. The time was to be arranged when the applicant's solicitor arrived at Heathrow Airport and telephoned the police officer.

D.S. Jones deposes to the fact that his contact with the applicant was mainly through the applicant's solicitor because he, D.S. Jones, took the view that it was better to deal through the solicitor so as not to deter the applicant from coming to this country.

The evidence makes it clear that the applicant and his solicitor travelled separately to London, the solicitor coming by air to Heathrow, and the applicant by car ferry through Fishguard. The applicant's solicitor was met by two police officers, D.S. Jones and D.C. James, and that there then followed a series of telephone calls and moves from one location to another, manoeuvres probably designed to give the applicant a chance to observe the police officers who wished to speak to him. In the event the applicant met D.S. Jones, got voluntarily into a police car and was taken to the Charing Cross Police Station where the provisional warrant obtained by D.S. Jones earlier that morning was executed.

The applicant deposes that he was enticed into the United Kingdom by means of the deceit and manipulation practised by D.S. Jones. His main reason for coming to this country was to be interviewed by D.S. Jones in respect to alleged cheque frauds, and but for the prospect of that interview he would not have come to this country on that particular occasion. The applicant had on him a return ticket which showed that he intended to remain in this country for two days and £1,000

in currency. The applicant admits in his affidavit that he would have taken advantage of his journey to London to see other people in connection with his business.

The remaining history can be briefly told. On 17 November the Extradition Unit at the Home Office was informed of the issuing of the provisional warrant for the arrest of the applicant. On 18 November the applicant appeared before the Bow Street Magistrates' Court and was remanded in custody. The court informed the Extradition Unit of the applicant's arrest, appearance and remand. On 17 December 1992 the applicant appeared again before the Bow Street Magistrates' Court, D.S. Jones gave evidence and was cross-examined by the applicant's solicitor and admitted the stratagem by which the applicant's presence in this country had been obtained. An application for bail on behalf of the applicant was unsuccessful.

On 21 December the Extradition Unit received the documents required under section 7 of the Act of 1989 from the German Authorities via diplomatic channels. Following consideration of those documents the Minister of State issued an authority to proceed on behalf of the Secretary of State on 7 January 1993. None of the documents which the Home Office then had contained any details of the events leading up to the applicant being arrested under the provisional warrant, nor at any time prior to the issue of the authority to proceed were the allegations made by the applicant of deceit and malpractice on the part of the police raised with the Extradition Unit at the Home Office. On 18 February 1993 the metropolitan stipendiary magistrate sitting at Bow Street made a committal order pursuant to section 9(8) of the Extradition Act 1989. On 4 March 1993 an application for habeas corpus was made on behalf of the applicant and on the same day an application for leave to apply for judicial review of the Secretary of State's decision to issue an authority to proceed on 7 January 1993 was made.

The court has before it two affidavits by Michael Forde, a practising barrister in Ireland who is an expert in the extradition law and constitutional law of the Republic of Eire. In those affidavits Mr. Forde deposes that under the relevant legislation in Ireland, namely, the Extradition Act 1965, the applicant could be extradited from Eire to Germany in respect of one or more of the offences set out in the documentation provided by the German authorities, because the offences set out in those documents fall within the definition of "extraditable offence" in section 10 of the Extradition Act 1965, and they do not appear to fall within any of the exceptions contained in sections 11 to 21 of that Act. The applicant had certain rights and liberties guaranteed him by the Constitution of the Republic including a right to liberty and a right to access to the courts of the republic. Mr. Forde says: "I have no doubt that the English police authorities have contravened Mr. Schmidt's constitutional rights to personal liberty and to access to the courts in Ireland." Mr. Forde further deposes that a trick of the type practised upon the applicant in this case by D.S. Jones constitutes a deceit in the law of tort in the republic and is unlawful. If done by the police authorities of a foreign state it is also unconstitutional, at least if done to

achieve an objective which apparently could be achieved through existing legal machinery.

There are four questions which counsel for the parties have raised on the facts of this case. First, does the High Court have the supervisory jurisdiction which the House of Lords held existed in Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42 that is to say where a person is brought to England and Wales to stand trial, jurisdiction to examine the means by which that person was brought here and to prevent the trial proceeding on the ground that to proceed would be an abuse of the process of our courts, in the case of extradition proceedings in England and Wales for a person to be surrendered to another foreign sovereign state? Second, if such an inherent supervisory jurisdiction does exist, then do the facts of this case bring it within the statement of principle in Bennett's case? Has there been such an abuse of power to amount to an abuse of process so that this court should intervene to prevent the process of extradition advancing any further and to order the release of the applicant? Third, should the court grant leave to the applicant to move for judicial review of the Secretary of State's decision and act of 7 January 1993 of issuing an authority to proceed? Fourth, if the court should grant leave, should an order of certiorari issue to quash the Secretary of State's decision and act of 7 January 1993 of issuing an authority to proceed to the magistrate? The fourth question will arise if leave is granted because all parties through their counsel agreed that if the court decided to grant leave, the hearing should be considered as the hearing of the application for judicial review.

It is convenient to start by considering the third question. The conclusion that I have reached is that leave, which is a matter of discretion, should not be granted in this instance. There is no dispute in this case that the Extradition Unit at the Home Office were unaware of the events leading up to the applicant's arrest under the provisional warrant on 17 November 1992. It was not submitted on behalf of the applicant that the Extradition Squad at New Scotland Yard were the agents of the Secretary of State or that knowledge of the members of that squad could be attributed to the Secretary of State. Consequently at the time the Secretary of State issued an authority to proceed, the Secretary of State has to be treated as having no reason to think that an order for committal of the applicant could not lawfully be made or that such an order would not, in fact, be made in accordance with the provisions of the Act. The Secretary of State therefore had power under section 7(4) of the Extradition Act 1989, if not a duty, to issue an authority to proceed. I say "if not a duty" because under the European Convention on Extradition which applies to the applicant's case by virtue of the European Convention on Extradition Order 1990, the contracting parties are under an obligation to extradite, by virtue of article 1 of the Convention which provides:

"The contracting parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting party are proceeding for an offence . . ."

Further, before the Secretary of State makes an order for the return of the applicant to Germany, under section 13 of the Act of 1989 the Secretary of State has to give the applicant notice in writing that he is contemplating making such an order, and the applicant will have the right to make representations and a period of 15 days in which to do so commencing with the date of the notice given to him by the Secretary of State. It is the duty of the Secretary of State under section 13(4) to consider such representations. Further, if after considering such representations the Secretary of State makes an order for the return of the applicant, the applicant under section 13(6) can apply to this court for judicial review of the Secretary of State's decision.

Thus in my view, on the particular facts of this case the application for judicial review is premature and all the steps available to the applicant other than judicial review have not yet been exhausted. Further, on the particular facts of this case an application to quash the Secretary of State's decision to issue an authority to proceed has no prospect of success.

I turn now to the question of the application by the applicant for his discharge under a writ of habeas corpus. Two propositions were accepted by the parties to these proceedings. First, that the court of committal has no jurisdiction under section 11(3) to entertain an application for habeas corpus. This would seem to follow from the terms of section 9(8) of the Act of 1989 which obliges the court of committal to commit the person arrested if it is satisfied as to certain matters, and the wording of section 11(1) which contemplates the court of committal informing the person arrested in ordinary language of his right to make an application for habeas corpus. That suggests that the matter will go to another court. Second, that the jurisdiction of the High Court under section 11(3) would not enable this court to discharge the applicant on the facts relied on by him because those facts do not come within section 11(3)(a)(b) or (c).

The dispute here has been whether the High Court has any residual supervisory jurisdiction of the type which was held to exist in Bennett's case where a person has been brought within the jurisdiction for the purposes of being tried here.

Mr. Nicholls has submitted that such a jurisdiction exists. First, extradition involves a process of the court which abuse of power by the executive abuses. Second, there is persuasive judicial authority that such a jurisdiction exists, namely the observations of Woolf L.J. in In re Osman (unreported) 28 February 1992 but noted [1992] Crim.L.R. 741, where Woolf L.J., having set out the terms of section 11(3) of the Act of 1989, said:

"Quite clearly in view of the opening words of subsection (3), the fact there is a statutory right to apply for habeas corpus on limited and specified grounds does not have the effect of restricting the applicant's right to apply for judicial review or habeas corpus on other grounds."

Mr. Nicholls relies upon the opening words of section 11(3): "Without prejudice to any jurisdiction of the High Court apart from this section . . ." to show that there must be some further jurisdiction in the High Court. Finally Mr. Nicholls submits that the authorities on which the respondents

rely are distinguishable and in any event predate Bennett's case [1994] 1 A.C. 42.

Mr. Jones, for the governor and the metropolitan stipendiary magistrate, and Mr. McManus, for the Secretary of State, submit that the High Court does not have any residual supervisory jurisdiction for these reasons: first, extradition is a different procedure from trial. It is an executive act, in which the executive is discharging an obligation it has assumed in relation to other states and parties to the convention. The role of the courts is limited, and Parliament intended that the role of the courts should be limited to those matters set out in the Act. By way of illustration (and the example is mine and not counsel's) Mr. Forde, the expert in Irish constitutional law, says, in paragraph 12 of his second affidavit:

"Accordingly, in my view, what may be described as the extradition by trick which caused Mr. Schmidt to come to London will not help the cause of extradition in Ireland because it will suggest that the English police cannot be fully trusted; that they are prone to deception."

Such a factor, it is submitted, is a matter for the Secretary of State and not for the courts. It is a question of policy and not of law. Second, two decisions of their Lordships' House are to the effect that no such residual, supervisory jurisdiction exists and in Bennett's case their Lordships did not cast doubt on, far less overturn, these decisions. They are Atkinson v. United States of America Government [1971] A.C. 197 and Reg. v. Governor of Pentonville Prison, Ex parte Sinclair [1991] 2 A.C. 64.

These are necessarily brief summaries of the cogent and well-researched submissions made by counsel which do not do justice to counsel's labours.

Atkinson v. United States of America Government [1971] A.C. 197 concerned the Extradition Act 1870 (33 & 34 Vict. c. 52). Section 10 of that Act provided:

"In the case of a fugitive criminal accused of an extraditional crime, if . . . such evidence is produced as . . . 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."

The appellant had escaped from prison in Louisiana having been sentenced to 18 years' imprisonment on charges of attempted armed robbery. He had entered pleas of guilty as a result, so he alleged, of a plea bargain with the prosecutor that if he pleaded guilty to attempted armed robbery no further action would be taken on charges of attempted murder. Attempted armed robbery and escape from prison were not extraditable crimes. The authorities in Louisiana revived the charges of attempted murder and, in addition, a charge of aggravated burglary which were extraditable crimes. The Chief Metropolitan Magistrate committed the appellant on the charges of attempted murder but refused to commit on the charge of aggravated burglary.

One of the issues which came before the House of Lords was stated by Lord Reid in his speech in this way, at p. 231:

"The question is whether, if there is evidence sufficient to justify committal, the magistrate can refuse to commit on any other ground such as that committal would be oppressive or contrary to natural justice. The appellant argues that every court in England has power to refuse to allow a criminal case to proceed if it appears that justice so requires."

Lord Reid came to the conclusion, at pp. 232-233, that although it was by then well recognised that the court has power to expand procedure laid down by statute if that is necessary to prevent infringement of natural justice and is not plainly contrary to the intention of Parliament, the Act of 1870 did provide a safeguard:

"The Secretary of State always has power to refuse to surrender a man committed to prison by the magistrate. It appears to me that Parliament must have intended the Secretary of State to use that power whenever in his view it would be wrong, unjust or oppressive to surrender the man. Section 10 of the Act of 1870 provides that when a magistrate commits a man to prison 'he shall forthwith send to a Secretary of State a certificate of the committal, and such report upon the case as he may think fit.' So the magistrate will report to the Secretary of State anything which has come to light in the course of the proceedings before him showing or alleged to show that it would be in any way improper to surrender the man. Then the Secretary of State is answerable to Parliament, but not to the courts, for any decision he may make. If I had thought that Parliament did not intend this safeguard to be used in this way, then I would think it necessary to infer that the magistrate has power to refuse to commit if he finds it would be contrary to natural justice to surrender the man. But in my judgment Parliament by providing this safeguard has excluded the jurisdiction of the courts."

It is to be noticed that section 13 of the Act of 1989 expressly requires the Secretary of State to give notice in writing that he is contemplating making an order for the return of that person to the foreign state; and to afford that person 15 days within which to make representations. The Secretary of State is under a duty to consider any representation made, before he decides whether or not to make an order for the person's return. That decision is subject to judicial review. Further by section 11(3) Parliament has expressly conferred on the High Court a supervisory jurisdiction in three particular cases where it would be unjust or oppressive to return the individual to the requesting state. In Atkinson's case all their Lordships reached the same conclusion on this issue.

In Reg. v. Governor of Pentonville Prison, Ex parte Sinclair [1991] 2 A.C. 64 the court was again concerned with the terms of the Extradition Act 1870. Their Lordships applied the decision in Atkinson's case [1971] A.C. 197 and held that the question whether the extradition proceedings might be an abuse of the process of the court was not one for the

magistrate. Lord Ackner in his speech having set out the terms of section 11(1) and (3) of the Extradition Act 1989 said, at pp. 80-81:

"By this section a radical alteration has been made by giving to the High Court, in part at least, the same kind of discretion, as to whether or not to discharge an applicant, as the Secretary of State has in deciding whether or not to order a fugitive criminal to be returned to a requesting state. It is the clearest possible recognition by the legislature that hitherto no such discretion existed in the courts and in particular in the magistrate's court."

The other members of the House of Lords all agreed with the speech of Lord Ackner.

These decisions are referred to in Bennett's case by Lord Griffiths in his speech, at pp. 62G-63B, and by Lord Lowry, at p. 82D. I do not understand either of those passages to cast doubt upon the decisions in Atkinson's case [1971] A.C. 197 and Sinclair's case [1991] 2 A.C. 64, that prior to the Act of 1989 the High Court had no power to order the discharge of a detainee if it would be unjust or oppressive to surrender him to the requesting state. If that is so, then the power of the High Court at the present time must be limited to the power conferred by section 11(3) of the Act of 1989. There is a sharp distinction between cases where the individual is being extradited from this country to a foreign state where the extradition legislation of this country will apply, and the case where the individual has been either extradited or brought from a foreign state to this country for the purposes of being tried here, where the extradition legislation of this country will have no application at all. Thus Parliament's intention as manifested in the extradition legislation and in particular Parliament's intention as to the jurisdiction and powers the High Court should have, will not be relevant in the latter case but will be highly relevant in the former case.

After some hesitation I have reached the conclusion that the submissions made by the respondents on this issue are correct and that the jurisdiction of the High Court is that conferred by section 11(3) of the Act of 1989 and no more. This court is bound to follow the decisions in Atkinson's case [1971] A.C. 197 and Sinclair's case [1991] 2 A.C. 64. The opening words to the subsection must be read, in my judgment, as Mr. Alun Jones submitted, as referring to other parts of the Act, for example section 13(6) which confer jurisdiction on the High Court.

In view of my conclusion on this issue the fourth question does not arise. Nevertheless if the conclusion I have reached on the third question is wrong and the case goes further it may be of some value to express my view on the fourth question.

The first matter is to determine the scope of the general principle expressed by their Lordships in Bennett's case [1994] 1 A.C. 42. Lord Lowry said, at p. 77:

"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."

Lord Lowry went on to say that he would not expect a court to stay proceedings of every trial which had been preceded by "a venial irregularity." That is a very broad expression of the principle and is perhaps at variance with the passage earlier in Lord Lowry's speech, at p. 76, which speaks of: "kidnapping . . . [and] a grave contravention of international law, the comity of nations and the rule of law generally . . ." and, at p. 74:

"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."

Lord Bridge of Harwich said, at p. 68: "Since the prosecution could never have been brought if the defendant had not been illegally abducted, the whole proceeding is tainted." And a little later

"By parity of reasoning, if the authorities, instead of proceeding by way of extradition, have resorted to abduction, that is the effective commencement of the prosecution process and is the illegal foundation on which it rests. It is apt, in my view, to describe these circumstances . . . as a 'degradation' of the court's criminal process. To hold that in these circumstances the court may decline to exercise its jurisdiction on the ground that its process has been abused may be an extension of the doctrine of abuse of process but is, in my view, a wholly proper and necessary one."

Lord Griffiths said, at p. 62:

"In my view your Lordships should now declare that where the 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."

At p. 62B, Lord Griffiths had spoken of: "a serious abuse of power" and, at p. 62A, of the court refusing to countenance "behaviour that threatens either basic human rights or the rule of law."

In my opinion what has to exist before the court will intervene on the grounds of abuse of process is a serious or grave abuse of power by the executive as typified by kidnapping or forcible abduction in the territory of the foreign state as a means of circumventing extradition procedures which the executive could and should have used. The principle will not be confined to cases where there has been an application of physical force to the person of the detainee in the foreign country, but will embrace cases where there have been threats or inducements of a serious and grave nature.

Turning to the facts of this case, the trick employed by D.S. Jones was a breach of the protection conferred on the applicant by the Irish Constitution whilst he was in the Republic of Eire on the evidence of

Mr. Forde and also a civil wrong, namely the tort of deceit. The device was not, however, a breach of Irish criminal law.

No legal process existed by which the applicant could have been brought from Eire within the jurisdiction of this court for the purpose of being extradited to Germany. In my view it can hardly be said that the telephone conversations between D.S. Jones and the applicant and between the officer and the applicant's solicitor were the effective commencement of the process of extraditing the applicant from this country to Germany. On the other hand, extradition processes exist between Germany and the Republic of Eire and this court does not know why the German authorities did not pursue extradition in Eire.

The applicant was in the habit of coming to this country from time to time for his own purposes, both recreational and business. Initially D.S. Jones's purpose was to arrest him on one of those visits and the reason for the subterfuge was to find out when and where the applicant would next be within the jurisdiction. There was no question of forcible abduction in this case nor was there any physical act committed within the Republic of Eire.

If there has to be a balancing between the gravity of the alleged offences for which the applicant is wanted by the German authorities and the improper conduct of the police, then the smuggling of substantial quantities of drugs across borders is a serious matter indeed. As Lord Griffiths observed in Somchai Liangsiriprasert v. Government of the United States of America [1991] 1 A.C. 225, 242-243, a decision of the Privy Council:

"As to the suggestion that it was oppressive or an abuse of process" - there the applicants had been lured to Hong Kong for the purposes of being extradited to the United States by the authorities in Hong Kong acting in concert with the American Drug Enforcement Agency, members of which had penetrated the applicants' drug ring, on the basis that the applicants would be paid in Hong Kong for quantities of drugs illegally exported from Thailand - "the short answer is that international crime has to be fought by international co-operation between law enforcement agencies. It is notoriously difficult to apprehend those at the centre of the drug trade; it is only their couriers who are usually caught. If the courts were to regard the penetration of a drug dealing organisation by the agents of a law enforcement agency and a plan to tempt the criminals into a jurisdiction from which they could be extradited as an abuse of process it would indeed be a red letter day for the drug barons."

My conclusion on the fourth question would be that the conduct of the police, against the background that no legal process existed whereby the presence of the applicant could have been secured from Eire within this jurisdiction, was not so grave or serious that this court should intervene in the extradition process. This is not to say that the conduct of the police in this case may not be a good ground for the Secretary of State to refuse to make an order for the return of the applicant to Germany. The Secretary of State will be able to take into consideration such matters as relations between the authorities in this country and those

in the Republic of Eire and the effect on those relations of the applicant being returned to Germany as opposed to being released and allowed to return to Eire. The Secretary of State is in the position of being able to know the attitude of the Irish authorities to this case, a matter of which this court can have no knowledge.

For these reasons I would not grant either relief sought by the applicant.

SEDLEY J. I have reached the same conclusions as Roch L.J., but because I have done so by different routes, and because in the field of public law we labour under the Chinese curse of living in interesting times, I will set out my reasons.

Judicial review

I agree that the application for leave to seek judicial review of the Secretary of State's decision of 7 January 1993 is inappropriate and should be refused in the exercise of the court's discretion. It comes both too late and too early: too late to prevent the authority to proceed from being acted on, and too early for it to be known whether the facts relied on by the applicant will yet persuade the Secretary of State not to return him to Germany.

I too would wish to reserve to a case where the point is taken the question whether the Home Secretary can plead ignorance of what the Metropolitan Police have done. Although the minister and the police officer represent distinct functions of the Crown, both are today executive limbs of the state, and it is arguable that in a real as well as a constitutional sense the state cannot be heard to say that its left hand does not know what its right hand is doing. To allow such a plea is to shift on to the individual the burden of risk of failures of coordination or communication in public administration and law enforcement. Even if such a broad proposition is incorrect, there remains the fact that the Home Secretary is the police authority for the metropolitan district and that the Metropolitan Police act in aid of his department in response to diplomatic requests for extradition, so that special considerations may arise in the present situation.

Habeas corpus

In order to decide whether the Bennett principle can come to the applicant's aid it is necessary to decide first what the principle is and secondly whether it applies to the facts of the applicant's situation. Only if these two questions are answered in the applicant's favour can the final question of the applicability of the principle to extradition proceedings become material. I will state briefly, since I agree with Roch L.J. about the last question and hence about the outcome, why I consider that the applicant's situation comes both potentially and factually within the Bennett principle.

(1) What is the Bennett principle?

The House of Lords in Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42 were considering as an assumed fact the

removal of the appellant to the United Kingdom against his will from a place outside the jurisdiction of the United Kingdom's courts. In at least one place the statement of principle is framed accordingly - see per Lord Griffiths, at p. 62:

"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."

Lord Griffiths' views have the express concurrence of Lord Bridge of Harwich, Lord Lowry and Lord Slynn of Hadley. But it is to be observed that the certified question (see p. 46) is not confined to the use of physical coercion: it asks in general terms whether the court has power to inquire into the circumstances by which a person has been brought within the jurisdiction. Their Lordships' reasoning is correspondingly large, and it may be noted in particular that Lord Bridge, although postulating the question, at p. 64, in terms of forcible abduction, answers it in terms which make not physical force but executive lawlessness the critical factor, at pp. 67-68:

"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. . . . Since the prosecution could never have been brought if the defendant had not been illegally abducted, the whole proceeding is tainted."

This, it seems to me, is also the key to Lord Griffiths' reasoning where he crystallises it in a notable passage, at pp. 61-62, before focusing it on the use of force in the passage I quoted earlier:

"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 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."

This passage provides, too, the foundation for Lord Griffiths' concluding answer to the certified question, at p. 64, which is in the same broad terms as the question itself.

What then is the possible ambit of such executive lawlessness? I accept the submission of Mr. Alun Jones that Lord Lowry's phrase, at p. 77, "unworthy conduct" is not, and is not intended to be, the threshold. But I do not accept his argument that only the use of physical force passes the threshold. Lawlessness can take many forms. In my judgment what the doctrine of Bennett's case strikes at is an act on the part of the executive government of the United Kingdom: (a) which violates the laws of the foreign state, international law or the legal rights of the individual within that state, and thus offends against the principle of comity; (b) which circumvents extradition arrangements made with that state; (c) which instead brings the suspect by coercion into the jurisdiction of the United Kingdom's courts; and (d) but for which the domestic proceedings could not have been initiated. The last of these requirements, a "but for" test of causation, emerges clearly from the language used by Lord Bridge, at p. 68, and Lord Lowry, at p. 76, and is implicit in the reasoning of Lord Griffiths.

In total, the decision of the House of Lords enlarges the concept of abuse of process to embrace serious abuses of power where it is only by the abuse of power that legal process has become possible. It articulates the supervisory obligation of the High Court to maintain the rule of law as something different from and greater than the maintenance of individual rules of law. In constitutional terms the decision, it seems to me, is of the highest importance, establishing a principle which will take time to be worked out in our jurisprudence.

(2) Force or fraud?

In the present case, the uncontroverted expert evidence, that of Mr. Michael Forde, a well known academic commentator in the field of Irish constitutional and extradition law and a member of the bars both of Ireland and of England and Wales, is to the following effect.

(a) Ireland, Germany and the United Kingdom are all parties to the same extradition treaty, the European Convention on Extradition, so that in law the same extradition procedures (subject to any differential reservations) are available to the German government in Ireland as are available to it in the United Kingdom.

(b) To deny by a trick the protection of Irish law to which a person resident in Ireland is constitutionally entitled is itself an unconstitutional act whether the trick is that of officials of the Irish state or of a foreign state. In The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550 the

subterfuge of an arrest on bogus grounds was held to vitiate subsequent extradition proceedings, however well-founded these might substantively be. (The reasoning of the Irish High Court and Supreme Court bears striking resemblances in places to that of the House of Lords in Bennett).

(c) Among the rights enjoyed by the applicant under Irish law are rights to personal liberty within the law and of access to the courts: see articles 34.1, 40.3 and 40.4.1 of the Constitution. In The State (Quinn) v. Ryan [1965] I.R. 70, the continued use under nineteenth-century legislation of removal to England without a hearing in Ireland was struck down as unconstitutional because it deprived the individual of his right of access to the courts to question the legality of his removal. (The reasoning of the Irish court in this case marches in places with that of their Lordships' House in M. v. Home Office [1994] 1 A.C. 377.)

(d) The tricking of the applicant by the British police amounts to the tort of deceit in Irish law.

(e) The law of Ireland, at least in actions for trespass, rejects consent obtained by fraud or unlawful means.

In my view the way in which the applicant was induced to come to England, for the detail of which I gratefully rely on Roch L.J.'s judgment, is within the mischief to which the principle in Bennett's case is directed. But for the deception practised on him, the applicant would not have come to England and so made his arrest and extradition possible. This deception amounted to more than temptation (to use D.S. Jones' word) or inducement: it amounted to coercion, because it deliberately led the applicant to believe that D.S. Jones had sufficient evidence to justify his arrest for cheque frauds if and when he next entered the United Kingdom, but that by coming here voluntarily and surrendering himself to D.S. Jones he could clear himself. Since Jones knew that the whole cheque fraud story was bogus, he knew too that this was an offer that the applicant could not refuse: either he could come and establish what both he and Jones knew was his innocence of cheque frauds, or he could (so Jones led him to believe) face the prospect of arrest and possible trial for the frauds whenever he next chose to come to the United Kingdom, as he periodically did.

To offer an ostensible choice between a serious limitation on movement (whether by having to stay away from the United Kingdom or by facing arrest for cheque frauds on entry) and a simple and certain way of removing that bogus limitation was in my judgment coercive both in intention and in effect. It was a baited trap, but it was a trap into which the applicant was driven by a mendacious threat of adverse consequences if he did not take the bait. To change the metaphor, without the use of the stick the carrot would have been of no help. The subterfuge was intended precisely to ensure that the applicant believed he had no worthwhile choice but to come to the United Kingdom and deliver himself to D.S. Jones, and that is what he did.

There is no need in my judgment to cast around in the law of England and Wales for an exact precedent equating fraud with force in such a situation, and no attempt has been made to do so in argument. There are, as it happens, however, good analogies in common law and equity: with apologies to counsel for citing sources of law not canvassed in

argument, I refer to Halsbury's Laws of England, 4th ed., vol. 18 (1977), pp. 149-150, para. 332 (undue influence); vol. 9 (1974), pp. 172-174, para. 297 (duress in contract); and vol. 16 (1992), p. 627, para. 679, especially note 4 (duress in equity). According to Clerk & Lindsell on Torts, 16th ed. (1989), pp. 1012-1013, para. 18-02: "Public policy usually demands that nobody be permitted to found an action on an illegal act." What is objectionable about fraud, actual or constructive, is that it robs the victim of the power of autonomous decision and action as surely as does physical coercion. In my judgment a fraud practised in and contrary to the law of a sovereign state, as this fraud was, and but for which the applicant would not and could not have been arrested on a provisional warrant as and when he was, would entitle this court to intervene to stay consequent criminal proceedings by parity of reasoning with Bennett's case.

Comparably, if the applicant were to have been present in the United Kingdom for another reason (including an invitation, true or false, from D.S. Jones to meet him in order, say, to discuss kites) the objection would fall away because the element of coercion would be absent. Whatever the moral objections to the use of pure subterfuge, they have to be matched against the reality of police work in a dangerous and complex world, as the Privy Council has memorably recognised Somchai Liangsiriprasert v. Government of the United States of America [1991] 1 A.C. 225, 242-243. But the limit placed upon this by the House of Lords in Bennett's case [1994] 1 A.C. 42, on grounds of constitutional principle, is that the use of subterfuge must not be such as to violate the rule of law by substituting coercion for established extradition procedures.

(3) Are extradition proceedings included?

Does a principle which would in my judgment have entitled this court to stay a prosecution of the applicant in the United Kingdom for dealing in cannabis extend to staying proceedings designed to extradite him to another state for trial on similar charges? If it were not for the decisions of the House of Lords in Atkinson v. United States of America Government [1971] A.C. 197 and in Ex parte Sinclair [1991] 2 A.C. 64, I would have little hesitation in acceding to the submission of Mr. Clive Nicholls that the Bennett principle must apply to extradition as to domestic criminal process.

I would in any event unhesitatingly reject the contention of Mr. Alun Jones that extradition is essentially an executive act. Even under the truncated procedures introduced by the Act of 1989 the courts and the executive have discrete, though in places overlapping, roles: see for example section 6(1), (2) and (3) and the definition of "appropriate authority" in section 6(9). In my view a court of law entrusted with the conduct of a distinct stage of the extradition process retains the obligation of all courts to prevent abuse of their process (see Hunter v. Chief Constable of West Midlands Police [1982] A.C. 529, 536D) unless the power and hence the obligation is plainly excluded. I am not persuaded by Mr. Jones that section 11(3) can have had this dramatic effect by means of an inferred limitation of the saving of "any jurisdiction of the High Court apart from this section" to other powers of the High Court

set out elsewhere in the Act itself. Section 11(3), it will be recalled, begins: "Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if . . ." and the subsection then goes on to list three situations in which discharge comes as of right if in the court's judgment it would in all the circumstances be unjust or oppressive to return the person claimed. I much prefer the view expressed by Woolf L.J. in In re Osman (unreported) 28 February 1992 but noted [1992] Crim.L.R. 741:

"Quite clearly in view of the opening words of subsection (3) the fact that there is a statutory right to apply for habeas corpus on limited and specified grounds does not have the effect of restricting the applicant's right to apply for judicial review or habeas corpus on other grounds. . . . it is possible to imagine circumstances where there could be grave unfairness which would certainly justify the interference of the court by way of judicial review not covered by section 11. It is no doubt for this reason that the legislation itself expressly makes clear that the statutory application for habeas corpus is not the only remedy available to a person who is the subject of a committal order."

But it remains the case, at least for the present, that this court is bound by the holding of the House of Lords in Atkinson's case [1971] A.C. 197 that any residual unfairness in returning a person claimed to the requesting country is a matter for the Secretary of State. Although section 8(3) of the Fugitive Offenders Act 1967 did not include the important words of reservation with which section 11(3) of the Act of 1989 begins, to treat those words as opening extradition proceedings to the wider supervisory jurisdiction of the High Court may be to negate Lord Reid's words about the provision in both Acts of an executive discretion to refuse removal, at p. 233: "Parliament by providing this safeguard has excluded the jurisdiction of the courts." Public law has today moved so far and so fast, largely under the impetus given to it by Lord Reid, that it is doubtful whether the exclusion of judicial by executive power which he was prepared to deduce from the legislation in 1969 (the year when Atkinson's case was actually decided) is a result which would at all readily be arrived at today if the matter were free of authority, especially in an Act passed as recently as 1989. I would in particular respectfully doubt whether section 13(6), to which Roch L.J. has briefly referred in this context, confers rather than simply acknowledges a jurisdiction of this court. But Mr. Jones is entitled to and does rely on the much more recent decision of their Lordships' House in Ex parte Sinclair [1991] 2 A.C. 64. There, Lord Ackner, with whom the other members of the House concurred in full, said, at pp. 80-81:

"Since the decision in Atkinson's case [1971] A.C. 197 the Extradition Act 1989 has been enacted. . . . By [section 11] a radical alteration has been made by giving to the High Court, in part at least, the same kind of discretion, as to whether or not to discharge an applicant, as the Secretary of State has in deciding whether or not to order a fugitive criminal to be returned to a requesting state. It is the clearest possible recognition by the legislature that hitherto no such

discretion existed in the courts and in particular in the magistrate's court."

By "discretion" I take Lord Ackner to mean the power to judge whether it would be unjust or oppressive on any of the three grounds set out in section 11(3) to return the fugitive. His Lordship cannot, I would respectfully think, have meant that the words of reservation with which section 11(3) opens, themselves give any new discretion to the High Court. Moreover, on one possible reading of Lord Ackner's words, their Lordships were deciding in Ex parte Sinclair that although the magistrate lacked, and had always lacked, the power to decide whether extradition proceedings were an abuse of process, the Act of 1989 had put that issue within the jurisdiction of the High Court.

This, however, does not appear to have been the reading of it made by their Lordships in Bennett's case [1994] 1 A.C. 42. Lord Griffiths referred to the prosecutor's submission, based on the decisions in Ex parte Sinclair [1991] 2 A.C. 64 and Atkinson's case [1971] A.C. 197, that examining magistrates have no power to stay proceedings on the ground of abuse of process. These two authorities, Lord Griffiths pointed out [1994] 1 A.C. 42, 63:

"established that in extradition proceedings a magistrate has no power to refuse to commit an accused on the grounds of abuse of process. But the reason underlying those decisions is that the Secretary of State has the power to refuse to surrender the accused if it would be unjust or oppressive to do so; and now under the Extradition Act 1989 an express power to this effect has been conferred upon the High Court."

Lord Lowry, at p. 82, pointed out, as Lord Ackner had done, that Lord Reid's view of the magistrate's inability to adjudicate on an abuse of process in an extradition proceedings was obiter. He added:

"Nonetheless a view expressed by such a high authority commands respect, and Lord Reid was making his point as an integral link in his argument, to show that in extradition proceedings a magistrate has no such power."

The problem, which I accept may be more technical than substantive, is that the "express power" to which Lord Griffiths refers must be the power to discharge the applicant on one of the three grounds set out in section 11(3), although this was not in fact a new provision in the Act of 1989. The opening saving clause in section 11(3), which was new, confers no express power but preserves unspecified extant powers which (and this is the stumbling block) have still to be treated as limited by Lord Reid's allocation of jurisdiction to the Home Secretary.

This is a profoundly unsatisfactory basis on which to decide an issue as important as the present. It may well be that Lord Ackner in Ex parte Sinclair [1991] 2 A.C. 64 and Lord Griffiths in Bennett's case [1994] 1 A.C. 42 were intending to recognise exactly that supervisory jurisdiction to which Woolf L.J. referred in In re Osman [1992] Crim.L.R. 741 as a statutory inroad into Lord Reid's proposition, opening not only the Secretary of State's own decision on removal but the initiation of process

itself to the supervisory jurisdiction of the court. It is therefore with reluctance that I agree with Roch L.J. that it is not open to this court, recent decisions notwithstanding, to hold that by reason of the wording of section 11(3) of the Extradition Act 1989 alone the logic of Atkinson's case [1971] A.C. 197 has fallen to the logic of Bennett's case [1994] 1 A.C. 42. Any such decision must be for their Lordships' House.

Solicitors: Reynolds Dawson; Treasury Solicitor; Crown Prosecution Service, Headquarters.

[Reported by Edward Allbless Esq., Barrister]

The applicant appealed by leave of the House of Lords (Lord Templeman, Lord Browne-Wilkinson and Lord Woolf) given on 14 February 1994 from that part of the decision of the Divisional Court of the Queen's Bench Division whereby the court dismissed the applicant's motion for a writ of habeas corpus. The applicant did not appeal against the dismissal by the Divisional Court of his application for leave to apply for judicial review by way of an order of certorari to quash the decision of the Secretary of State for the Home Department, by the minister of state, to issue authority to proceed.

The facts are stated in the opinion of Lord Jauncey of Tullichettle.

Alan Newman Q.C. and James Lewis for the applicant. The High Court has power to order the discharge of a fugitive subject to extradition proceedings where he is brought within the jurisdiction in breach of extradition procedures. This power (i) is part of the "wider supervisory jurisdiction" labelled by Lord Griffiths in Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42, 61H-63B, 106C-E; it was recognised by Woolf L.J. in the Divisional Court [1993] 2 All E.R. 474, 479J-480A as a power apart from and wider than the power to stay proceedings as an abuse of process; (ii) is expressly reserved by section 11(3) of the Extradition Act 1989 (In re Osman (unreported), 28 February 1992, transcript, p. 16E-F; [1992] Crim.L.R. 741, 742); (iii) exists where extradition procedures are available to the state seeking extradition in the state in which the fugitive resides and are not followed (Somchai Liangsiriprasert v. Government of the United States of America) [1991] 1 A.C. 225, 242D-243E); Bennett, at p. 62F-G; (iv) applies equally to improper conduct by the police as it does to such conduct by prosecuting or other executive authorities (Bennett, pp. 62F-G, 77A-B).

The respondents' proposition that under the Act of 1989 discretionary power to control any abuse of process or procedure in extradition cases is exclusively vested in the Secretary of State is a chilling one not to be contemplated unless Parliament has in the clearest terms compelled the courts to hold that their ultimate responsibility, the maintenance of

the rule of law, has been completely ousted in this field and handed to the executive. The proposition means that the Secretary of State is judge in his own cause. He alone judges whether executive abuse has been sufficiently grave such that in the exercise of his discretion no extradition order should issue. That is a violation of the doctrine of separation of powers: see M. v. Home Office [1994] 1 A.C. 377, 395B-G and Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42, 63B-C, 64B-D, 67F-67C.

The opening words of section 11(3) of the Act of 1989 cannot be held to refer back simply to section 6. They must be interpreted as referring to a wider jurisdiction in the court. They incorporate the jurisdiction of the High Court to control abuses. The High Court is a court of unlimited, inherent, jurisdiction: see Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42, 62G-64B, 81D-83. Nothing in the Extradition Act 1870 (33 & 34 Vict. c. 52) cuts down the inherent jurisdiction of the High Court to prevent abuse of process. The opening words of section 11(3) are wide enough to include it.

The power of the High Court is not displaced by the decisions in Atkinson v. United States of America Government [1971] A.C. 197 or Reg. v. Governor of Pentonville Prison, Ex parte Sinclair [1991] 2 A.C. 64, which are distinguishable in the following respects. (i) The jurisdiction allocated by Lord Reid, in Atkinson, to the Secretary of State was confined to matters affecting the fairness of the fugitive's trial in the requesting state and his treatment there. This is consistent with the submission that the Secretary of State is rightly concerned with those functions that relate to comity, but not exclusively with those functions that relate to the control of the domestic executive. To hold otherwise obviates the doctrine of separation of powers. (ii) In Atkinson the House of Lords was not concerned with, nor did it exclude, the application by the courts of the wider principle that their process is not available where the presence of the accused within the jurisdiction has been secured by domestic executive lawlessness that threatens either basic human rights or the rule of law: Connelly v. Director of Public Prosecutions [1964] A.C. 1254, 1354. (iii) In Sinclair Lord Ackner, at pp. 80H-81A, referred to "such" jurisdiction not existing in the High Court before the passing of the Act of 1989. The discretion referred to was the limited discretion in section 11(3)(a) to (c) of the Act which is consistent with the opening words of section 11(3) that give an additional jurisdiction to the High Court. (iv) The House of Lords was concerned in Atkinson and in Sinclair with a different scheme of extradition from that in Part III of the Act of 1989. Atkinson concerned the Extradition Act 1870, and Sinclair concerned Schedule 1 to the Extradition Act 1989, the provisions of which are derived from the Act of 1870. The scheme of the Act of 1989 is that the High Court and the Secretary of State have co-extensive powers. (v) The words "Without prejudice to any other jurisdiction" in section 11(3) of the Act of 1989 ought to be construed as declaratory of a residual jurisdiction in the High Court which, in addition to its statutory jurisdiction under section 11(3)(a) to (c), at least includes the jurisdiction declared by the House of Lords in Bennett. The judgment of Woolf L.J. in In re Osman, 28 February 1992

supports this proposition. Further, the House of Lords recognised exactly that supervisory jurisdiction in Sinclair [1991] 2 A.C. 64, 80-81.

If Atkinson is not distinguishable, it is right for the House of Lords to depart from that decision for the following reasons. (i) Atkinson was decided in 1969 when public law was not as fully developed as today. (ii) The obligation on the Secretary of State to extradite a fugitive imposed by treaty requirements is incompatible with the wider supervisory jurisdiction as set out in Bennett. (iii) Part of the reasoning for the decision was that the magistrate had no power to stay domestic committal proceedings as an abuse of process, a jurisdiction now widely recognised and acknowledged by the House of Lords in Bennett. (iv) The dictum of Sedley J., ante, p. 360E-F, is correct. Atkinson is no longer a useful authority. It rests on two foundations neither of which now apply, namely, that magistrates in committal proceedings have no abuse of power jurisdiction, and that Parliament has legislated to vest exclusive power in the Secretary of State: see per Lord Reid [1971] A.C. 197, 231, 232-233. The decision creates an anomaly between a person who is kidnapped and brought into the country to be tried here and a person who is brought here not to be tried here. Perversely, the person who has not committed a crime in this jurisdiction has less rights.

Reg. v. Governor of Pentonville Prison, Ex parte Narang [1978] A.C. 247 is of no assistance: the opening words of section 11(3) were not addressed at all. [Reference was also made to Sinclair, pp. 80H-81B and In re Osman, 28 February 1992.]

To permit the extradition would be contrary to the proper administration of justice according to the rule of law, invade the rights of other countries and of persons under their protection and detract from international comity and be a degradation of the court's criminal process: see Bennett [1994] 1 A.C. 42, 78A-C, 67F-68C; The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550 and Bozano (Case 5/1985/138) (unreported), 2 December 1986. Any international obligation must be based on the assumption that governments will behave according to law and on the basis that the provisions of the European Convention on Extradition (1991) (Cm. 1762) will only apply if the executive of the country where the extradition proceedings are taking place acts lawfully. [Reference was also made to Connelly v. Director of Public Prosecutions [1964] A.C. 1254.]

Alun Jones Q.C. and Clare Montgomery for the respondents, the Governor of Brixton Prison and the Federal Government of Germany. Under the Act of 1989, discretionary power to control any abuse of process or procedure in extradition cases (including any executive abuse of power) is exclusively vested in the Secretary of State. This is clear from the legislative history and the language of the Act as well as from its general purpose.

In section 11(3) of the Act Parliament chose substantially to re-enact the provisions of section 8(3) of the Fugitive Offenders Act 1967. By adopting the language of the Act of 1967 Parliament must be taken to have known and approved of the decision of the House of Lords in Reg. v. Governor of Pentonville Prison, Ex parte Narang [1978] A.C. 247. In Narang, the House of Lords, at pp. 271B-272, 282G-283A, 293C-F,

emphasised that section 8(3) of the Act of 1967 had replaced section 10 of the Fugitive Offenders Act 1881 (44 & 45 Vict. c. 69). The words "or otherwise" in the Act of 1881 had been given a wide construction that enabled the courts to order a fugitive's discharge from custody if for any reason it had been made to appear that it would be unjust or oppressive to return him: contrast Reg. v. Governor of Brixton Prison, Ex parte Naranjan Sing [1962] 1 Q.B. 211. Viscount Dilhorne pointed out in Narang that the consequence of the omission of the words "or otherwise" in the Act of 1967 was that the powers of the courts were more restricted: they were exercisable only if it appeared that, by reason of the trivial nature of the offence, or of the passage of time, or where there was mala fides, it would be unjust or oppressive to return a person. That was to be contrasted with the unfettered discretion given to the Secretary of State under section 9 of the Act of 1967: see p. 272B. In the circumstances, it would be surprising if Parliament had, by adopting the language of the Act of 1967, nevertheless contemplated that the High Court had an additional discretionary power to control any abuse of process or executive abuse of power in the course of extradition proceedings. "Shall" in section 11(3) of the Act of 1989 has replaced "may" in section 8(3) of the Act of 1967 following Narang. The words in section 8(3) "without prejudice to any other jurisdiction of the court" did not appear in 1881 since there was then no other jurisdiction of the court except under section 10. There was no such exception with regard to political offences in 1881 as there was in section 4 of the Act of 1967.

This analysis of the legislative history of section 11 of the Act of 1989 is also consistent with the history of the abuse of process jurisdiction in proceedings brought under the Act of 1870, now substantially re-enacted in Schedule 1 to the Act of 1989. In Atkinson v. United States of America Government [1971] A.C. 197 and Reg. v. Governor of Pentonville Prison, Ex parte Sinclair [1991] 2 A.C. 64, the House of Lords confirmed that magistrates' courts had no power to refuse to commit a fugitive on the ground that it would be oppressive, contrary to natural justice, or otherwise an abuse of process. The reasoning in those cases must apply with equal force to the High Court since, in both cases, the House of Lords placed emphasis on the fact that power to prevent infringement of natural justice was vested in the Secretary of State and not in the courts. The High Court has never held that there is this power in the background to discharge the prisoner on grounds of natural justice. It approached section 8(3) of the Act of 1967 as a matter of statutory construction. "Or otherwise" was omitted. Adding (or substituting) "Without prejudice . . ." in 1989 would be a strange way of restoring the wide pre-1967 jurisdiction. There is no trace of inherent jurisdiction in Narang or Atkinson: contrast Government of Australia v. Harrod [1975] 1 W.L.R. 745, 757, perViscount Dilhorne. For the applicant to succeed, he has to persuade the House of Lords to depart from Atkinson, Narang and Sinclair. Parliament has maintained the same scheme as in section 8(3), approved in Narang: it has not changed the law. [Reference was also made to Atkinson, pp. 203, 204, 204-205, 218, 219.]

As to the language of the Act of 1989, the provisions of section 11, dealing with the powers of the High Court, are to be compared and

contrasted with the provisions of section 12, dealing with the Secretary of State's power to make an order for return. Both sections refer back to the general restrictions on return contained in section 6. Section 11(3) refers to this jurisdiction (and to that in sections 13(6) and 16(1)) by the use of the words: "Without prejudice to any jurisdiction of the High Court apart from this section . . ." whereas section 12(1) prohibits the Secretary of State from ordering the return of any person where "his return is prohibited, or prohibited for the time being, by this Act . . ." However, the sections then diverge in that the High Court's jurisdiction is clearly restricted to the cirumstances specified in section 11(3), whereas the Secretary of State's powers under section 12(2) are expressed to be: "Without prejudice to his general discretion as to the making of an order for the return of a person to a foreign state, Commonwealth country or colony . . ." Further, if it is suggested that the language of section 11 (and presumably section 8 of the Act of 1967) clearly confers or confirms the court's jurisdiction to inquire into abuses of process, it is surprising that the jurisdiction has not been detected earlier: see Sinclair, pp. 80F-81B. The use of the word "section" in section 11(3) rather than "Act" is also important. If the applicant were right, and Parliament, in setting out all the various protections and restrictions in Part II of the Act, were specifically dealing with the machinery for judicial review, one would expect section 11 to say "Act." Had Parliament contemplated that there was a general and wider discretion in the High Court it would have added to the opening words of section 11(3) "or to the High Court's general discretion in respect of . . ."

As to the general purpose of the Act of 1989, extradition is essentially an executive act in which the Secretary of State is responsible for initiating proceedings and for ordering extradition when those proceedings are complete. The purpose of the process is to allow the issues between the parties to be determined outside the jurisdiction in the foreign state, Commonwealth country or colony. It would frustrate that purpose if the courts in this country were required to consider and pass judgment on abuse of process issues. There is, accordingly, nothing anomalous in the submission that Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42 does not apply to extradition proceedings, where, unlike domestic criminal proceedings, the courts are not called on to make any final determination of guilt or innocence.

As to whether the principle in Bennett displaces that in Atkinson and Sinclair, the courts have power to control executive lawlessness. In a case not of coercion but of straightforward kidnapping, it would be irrational for the Secretary of State to issue an authority to proceed, and the normal principles of review of executive action on the ground of irrationality would apply. Bennett was an unusual case, where the House of Lords went outside the traditional review categories. What had happened abroad could not be the subject of judicial review, where in this case there is a self-contained statutory scheme. Bennett is to be distinguished because here the Secretary of State has a wide discretion (see per Lord Reid in Atkinson, at pp. 232G-233A) and therefore there is no need to assert a residual jurisdiction in the court. The courts would rather deal with judicial review than with an uncertain inherent jurisdiction. There is no

reference to inherent jurisdiction in the European Convention on Extradition.

It is an attractive argument that the Secretary of State, with his power under the Act of 1989, has a conflict of interest, but the law is clear. As to the exercise of his discretion, see Republic of Argentina v. Mellino (1987) 40 D.L.R. (4th) 74.

If the Bennett principle does apply to extraditions from the United Kingdom, so that the Divisional Court has power to hold that a request for extradition involves executive lawlessness or breach of human rights, the conduct of the police in this case was not of such a character as to require the termination of the proceedings. It bears comparison with the conduct of the law enforcement agencies in Somchai Liangsiriprasert v. Government of the United States of America [1991] 1 A.C. 225: see p. 242H. There, unlike the present case, the law enforcement agents clearly solicited the entire crime: the two cases have in common the use of deceit as a means to effect an arrest and to trigger the judicial process. Police tricks of the Liangsiriprasert kind, leading to the arrest of a suspect, will not be treated as an abuse of process in this country either: see Reg. v. Christou [1992] Q.B. 979. The courts in England nowadays do tolerate subterfuge and deceit on the part of police officers or other law enforcement agents in the detection of serious crime, especially when drug-related. What they do not tolerate is manipulation of the procedures after arrest: see Liangsiriprasert, pp. 242-243; Reg. v. Christou [1992] Q.B. 979 and Reg. v. Latif, The Times, 17 March 1994.

If the House of Lords shares the assessment of the police conduct made by Sedley J. on the evidence as to Irish law, the case may not be capable of resolution without further evidence. The nature and quality of the police conduct may depend on the court's findings of fact as to the lawfulness of that conduct as a matter of Irish law. If that is the case, the case ought to be remitted to the Divisional Court for rehearing.

Newman Q.C. in reply. As to Atkinson v. United States of America Government [1971] A.C. 197, the wording in section 10 of the Act of 1870 should be compared with that of section 9(9) of the Act of 1989. The legislation has changed. The whole basis on which Lord Reid said what he did falls to the ground because of the new provision. The safeguard is greater in the Act of 1989 because of section 11(3). Lord Reid's "safeguard" was the report that might be sent by the magistrate; one cannot envisage any other document that would provide it.

To the extent that the change in wording was not brought to the attention of the House of Lords in Reg. v. Governor of Pentonville Prison, Ex parte Sinclair [1991] 2 A.C. 64, one might have to modify what Lord Ackner said, at pp. 80H-81A.

As to Somchai Liangsiriprasert v. Government of the United States of America [1991] 1 A.C. 225, there is no clash with Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42: what Lord Griffiths was saying in each was that, if extradition procedures were available, one could not just flout them. Liangsiriprasert is thus distinguishable on two grounds: (i) there were no extradition procedures, so there was no question of flouting the law; and (ii) there was a finding of fact that there was no element of coercion.

The court must reserve its own character as a court of justice. The applicant must come to it with clean hands: see Bennett, p. 76. The court must maintain the integrity of the process before it.

As to inherent jurisdiction, see Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation Ltd. [1981] A.C. 909, 977D-F and The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550.

As to Reg. v. Governor of Pentonville Prison, Ex parte Narang [1978] A.C. 247, the words "without prejudice" in section 8(3) of the Act of 1967 were simply not considered.

Their Lordships took time for consideration.

30 June. LORD TEMPLEMAN. My Lords, for the reasons to be given by my noble and learned friend, Lord Jauncey of Tullichettle, I would dismiss this appeal.

LORD ACKNER. My Lords, for the reasons given in the speech prepared by my noble and learned friend, Lord Jauncey of Tullichettle, I, too, would dismiss this appeal.

LORD JAUNCEY OF TULLICHETTLE. My Lords, the primary issue in this appeal concerns the extent of the powers of the High Court to intervene in procedure under Part III of the Extradition Act 1989.

Factual background

The appellant applicant, who is a German national, is accused by the prosecuting authorities in Mannheim of having on some 58 occasions in Germany supplied and possessed cannabis which he had imported from Holland to a total of more than 386 kilograms between 1987 and 1991. Having moved his place of abode from Germany to Ireland he was arrested in the latter country on 12 August 1991 and charged with being in possession of drugs. On 13 August 1991 an international warrant of arrest was issued by the court in Mannheim and the German authorities proceeded to set in motion procedure in Ireland for extradition. On 24 September 1991 the applicant was convicted of the drugs charge and later released. On 29 October 1991 the Irish authorities informed the German authorities that the extradition warrant was not in order. No further steps towards extradition were thereafter taken by the German authorities. During 1992 New Scotland Yard received information that the applicant was living in Waterford and was making frequent visits to the United Kingdom using false British and E.E.C. passports to conceal his true identity. There was also information that he had visited Italy and Belgium using such passports. In September 1992 Detective Sergeant Jones, an officer of the extradition squad of the International and Organised Crime Branch of the Metropolitan Police, decided to investigate whether the applicant might be involved in terrorist activities and had committed offences in connection with forged passports. It is accepted that there was no evidence to connect the applicant with terrorist activities. D.S. Jones also obtained the authority of a senior officer to pass himself

off as an officer investigating cheque fraud in the hope that he could thereby persuade the applicant to meet him in England, where the applicant could be arrested on a provisional warrant if the German Government were to request his extradition. Thereafter D.S. Jones telephoned the applicant and his solicitor in Ireland and explained that he was investigating a cheque fraud allegedly committed by a Mr. N. Schmidt and that he was anxious to exclude the applicant from his inquiries. He invited the applicant to come to England to be interviewed and on being asked by his solicitor what would happen if the applicant did not attend the interview he said that it would be the normal practice to circulate his name as that of a suspect and that he would be arrested when his presence in the United Kingdom next came to the notice of the authorities. The respondents accept that there was no truth in the cheque fraud suggestion and that this was simply a device to persuade the applicant to enter the United Kingdom.

On 17 November 1992 D.S. Jones met the applicant's solicitor by arrangement in Green Park and shortly thereafter he met the applicant who accompanied him to Charing Cross Police Station where he was arrested on a provisional warrant issued that morning. On 18 November the applicant was remanded in custody and after sundry procedure he was, on 18 February 1993, committed to custody to await the decision of the Secretary of State as to his return. The applicant thereupon applied to the High Court for a writ of habeas corpus and leave to apply for judicial review of the Secretary of State's decision to issue an authority to proceed to the metropolitan magistrate. The basis of the applicant's application was that the ruse adopted by D.S. Jones to persuade him to come to the United Kingdom was an abuse of power by the executive and an abuse of process of the courts of England and Wales which vitiated the whole extradition proceedings. The Divisional Court refused the application and the applicant now comes to this House seeking reversal of the Divisional Court's judgment but only in so far as it relates to the habeas corpus application.

Relevant legislation

Before considering the relevant provisions of the Act of 1989 it is useful to look briefly at the legislative history. The Extradition Act 1870 (33 & 34 Vict. c. 52), which applied only to the surrender of fugitive criminals to foreign states, provided in section 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. . . . If he commits such criminal to prison, he shall commit him to the Middlesex House of Detention, or to some other prison in Middlesex, there to await the warrant of a Secretary of State for his surrender, and shall forthwith send to a Secretary of

State a certificate of the committal, and such report upon the case as he may think fit."

The omitted paragraph made provisions for convicted fugitive criminals similar to those for fugitive accused. Section 11 provided that after the committal of a fugitive criminal to prison it should, subject to habeas corpus provisions, be lawful for the Secretary of State to order the surrender of the fugitive to an authorised representative of the foreign state. In Atkinson v. United States of America Government [1971] A.C. 197, to which I shall refer in more detail later, it was held by this House that once a magistrate had decided that there was sufficient evidence to justify committal he had no power to refuse to commit on the ground that it would be unjust or oppressive to require the accused to be tried.

The Fugitive Offenders Acts 1881 (44 & 45 Vict. c. 69) and 1967 applied to the return of fugitives from one part of the Crown's dominions to another part thereof. The Act of 1881 contained provisions broadly similar to those contained in sections 10 and 11 of the Act of 1870 but also conferred power on a superior court to discharge a fugitive in certain circumstances. Section 10, which conferred this power, was in the following terms:

"Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities for communication, and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period, such court may discharge the fugitive, either absolutely or on bail, or order that he shall not be returned until after the expiration of the period named in the order, or may make such other order in the premises as to the court seems just."

The words "or otherwise" in this section were construed in Reg. v. Governor of Brixton Prison, Ex parte Naranjan Singh [1962] 1 Q.B. 211 as conferring upon the court a wide discretion to do what in all the circumstances of the case was just (Lord Parker C.J., at pp. 218-220). The Act of 1967 which repealed the Act of 1881 conferred upon the High Court by section 8(3) the following powers in relation to a person who, having been committed to custody under the prescribed procedure, made an application for habeas corpus:

"On any such application the High Court or High Court of Justiciary may, without prejudice to any other jurisdiction of the court, order the person committed to be discharged from custody if it appears to the court that - (a) by reason of the trivial nature of the offence of which he is accused or was convicted; or (b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or (c) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him."

The omission in section 8(3) of the words "or otherwise" which had occurred in section 10 of the Act of 1881 was referred to in Reg. v. Governor of Pentonville Prison, Ex parte Narang [1978] A.C. 247 by three of their Lordships who expressed the firm opinion that the powers of the court to discharge a person had by the omission been restricted to situations falling within the three categories set out in the subsection (Viscount Dilhorne, at p. 271G-H, Lord Edmund-Davies, at pp. 282G-283A, Lord Keith of Kinkel, at p. 293C-E).

On 13 December 1957 the European Convention on Extradition (1991) (Cm. 1762) was opened for signature by Members of the Council of Europe. Article 1 thereof is in the following terms:

"Obligation to extradite. The contracting parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order."

The United Kingdom signed the Convention in 1991 and almost all of the Act of 1989, which repealed both the Acts of 1870 and 1967, came into force on 27 September 1989, with the result that extradition from the United Kingdom to both Commonwealth and foreign countries is now governed by the former Act.

Part III of the Act of 1989, with which this appeal is primarily concerned, is headed "Procedure." However, before examining the relevant provisions thereof I must mention section 6 in Part II which provides that a person shall not be returned under Part III in a number of specified events, for example, that the offence for which extradition is sought is of a political character. Sections 7 and 8 in Part III prescribe the procedure to be adopted for bringing a person before a metropolitan magistrate for committal. Section 9, when read together with article 3 of and Schedule 2 to the European Convention on Extradition Order 1990 (S.I. 1990 No. 1507) provides that the court of committal shall commit to await the Secretary of State's decision as to his return a person whose surrender is sought by the German authorities, unless such committal is prohibited by any other provision of the Act. Section 11 provides, inter alia:

"(1) Where a person is committed under section 9 above, the court shall inform him in ordinary language of his right to make an application for habeas corpus, and shall forthwith give notice of the committal to the Secretary of State. . . . (3) Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that - (a) by reason of the trivial nature of the offence; or (b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or (c) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him."

Subsection (3) is in terms very similar to section 8(3) of the Act of 1967 and is the critical provision for the purposes of this appeal.

Section 12 provides, inter alia:

"(1) Where a person is committed under section 9 above and is not discharged by order of the High Court or the High Court of Justiciary, the Secretary of State may by warrant order him to be returned unless his return is prohibited, or prohibited for the time being, by this Act, or the Secretary of State decides under this section to make no such order in his case. (2) Without prejudice to his general discretion as to the making of an order for the return of a person to a foreign state, Commonwealth country or colony - (a) the Secretary of State shall not make an order in the case of any person if it appears to the Secretary of State in relation to the offence, or each of the offences, in respect of which his return is sought, that (i) by reason of its trivial nature; or (ii) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or (iii) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him; and (b) the Secretary of State may decide to make no order for the return of a person accused or convicted of an offence not punishable with death in Great Britain if that person could be or has been sentenced to death for that offence in the country by which the request for his return is made."

Section 13 requires the Secretary of State to give notice to a person of his intention to make an order under section 12(1) and requires him to consider any representations made by that person. Subsection (6) allows the person to apply within a specified time for leave to seek judicial review of the Secretary of State's decision to make the order for his return.

Issues

Against the foregoing factual and legislative background I turn to consider the issues involved in this appeal. Mr. Newman for the applicant contended that he had been brought before the court of committal by an abuse of process, namely the ruse adopted by D.S. Jones, and that the Divisional Court possessed an inherent and unlimited supervisory jurisdiction to correct such an abuse. Section 11(3) of the Act of 1989 preserved rather than created the jurisdiction of the High Court. Mr. Alun Jones on the other hand submitted that the High Court had no power to intervene in extradition proceedings except to the extent that such power was specifically conferred by statute and that the safeguard against abuse of power lay in the Secretary of State's general discretion as to the making of an order for return. He further submitted that, even if the Divisional Court had the power which Mr. Newman contended for, the circumstances of the applicant's presence in England were not such as to warrant intervention.

In Atkinson v. United States of America Government [1971] A.C. 197 the appellant, whose extradition to the United States on charges of attempted murder was sought by the government of that country, made

application for habeas corpus on the grounds that it would be oppressive in the circumstances to return him. It is unnecessary to condescend upon what the somewhat complex circumstances were. The appellant did not dispute that there was evidence before the magistrate to justify committal on the charges but argued that the English courts had power to refuse to commit him to prison if natural justice so required. In rejecting this submission Lord Reid said, at pp. 232-233:

"In my view once a magistrate decides that there is sufficient evidence to justify committal he must commit the accused for trial. And there is no provision in the 1870 Act giving a magistrate any wider power in extradition proceedings than he has when he is committing for trial in England.

"But that is not the end of the matter. It is now well recognised that the court has power to expand procedure laid down by statute if that is necessary to prevent infringement of natural justice and is not plainly contrary to the intention of Parliament. There can be cases where it would clearly be contrary to natural justice to surrender a man although there is sufficient evidence to justify committal. Extradition may be either because the man is accused of an extradition crime or because he has been convicted in the foreign country of an extradition crime. It is not unknown for convictions to be obtained in a few foreign countries by improper means, and it would be intolerable if a man so convicted had to be surrendered. Parliament can never have so intended when the 1870 Act was passed.

"But the Act does provide a safeguard. The Secretary of State always has power to refuse to surrender a man committed to prison by the magistrate. It appears to me that Parliament must have intended the Secretary of State to use that power whenever in his view it would be wrong, unjust or oppressive to surrender the man. Section 10 of the 1870 Act provides that when a magistrate commits a man to prison 'he shall forthwith send to a Secretary of State a certificate of the committal, and such report upon the case as he may think fit.' So the magistrate will report to the Secretary of State anything which has come to light in the course of proceedings before him showing or alleged to show that it would be in any way improper to surrender the man. Then the Secretary of State is answerable to Parliament, but not to the courts, for any decision he may make.

"If I had thought that Parliament did not intend this safeguard to be used in this way, then I would think it necessary to infer that the magistrate has power to refuse to commit if he finds that it would be contrary to natural justice to surrender the man. But in my judgment Parliament by providing this safeguard has excluded the jurisdiction of the courts. Some reference was made to the Fugitive Offenders Act 1881, where the provisions are very different from those of the Extradition Act 1870. But it would not be right to use the later Act as an aid to the construction of the earlier Act. I would therefore dismiss the appeal as regards habeas corpus."

In the two penultimate sentences Lord Reid was to some extent foreshadowing the issue to which three of their Lordships addressed

themselves in Reg. v. Governor of Pentonville Prison, Ex parte Narang [1978] A.C. 247.

Atkinson v. United States of America Government [1971] A.C. 197 was followed in Reg. v. Governor of Pentonville Prison, Ex parte Sinclair [1991] 2 A.C. 64, in which Lord Ackner after referring to the fact that the Act of 1989 had been passed since Atkinson v. United States of America Government had been decided and quoting the terms of section 11(3) thereof continued, at pp. 80-81:

"By this section a radical alteration has been made by giving to the High Court, in part at least, the same kind of discretion, as to whether or not to discharge an applicant, as the Secretary of State has in deciding whether or not to order a fugitive criminal to be returned to a requesting state. It is the clearest possible recognition by the legislature that hitherto no such discretion existed in the courts and in particular in the magistrate's court. I therefore conclude that in extradition proceedings the magistrate has no jurisdiction to consider whether such proceedings may be an abuse of the process of the court."

In the light of these two decisions of this House it might be thought that it was beyond argument that (1) a court of committal for extradition purposes had no power to refuse to commit a fugitive if the requirements of section 9(8) of the Act of 1989 were satisfied, and (2) that the High Court had only such discretion in relation to extradition proceedings as was conferred upon it by section 11(3). Mr. Newman, however, took the bull by the horns and submitted that Atkinson v. United States of America Government was out of date and should not be followed and that there was in any event an inherent jurisdiction in the High Court to intervene in such proceedings which jurisdiction is recognised by the opening words of section 11(3). In support of this submission he relied upon certain dicta in Government of Australia v. Harrod [1975] 1 W.L.R. 745 and In re Osman (unreported), 28 February 1992 and in particular on the decision of this House in Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42.

In Government of Australia v. Harrod, Viscount Dilhorne, after positing a hypothetical situation in which he would not have expected a Commonwealth government to continue with its application for extradition, continued, at p. 757:

"But, should it do so, then I do not see that the Act [of 1967] contains any provision enabling the magistrate to discharge the fugitive on that account. It may be that under its inherent jurisdiction, which is preserved by section 8(3), the High Court could do so, but section 5 says that if the magistrate considers there is sufficient evidence to warrant trial, he shall commit."

This dictum, with which Lord Simon of Glaisdale appears to have agreed, was obiter and was in contradistinction to the considered and detailed views which he expressed two years later in Reg. v. Governor of Pentonville Prison, Ex parte Narang. In In re Osman, Woolf L.J., after

referring to the general guidance given by Lord Reid in Wiseman v. Borneman [1971] A.C. 297, 308, continued:

"Applying that guidance to the present situation, it is possible to imagine circumstances where there could be grave unfairness which would certainly justify the interference of the court by way of judicial review not covered by section 11. It is no doubt for this reason that the legislation itself expressly makes clear that the statutory application for habeas corpus is not to be the only remedy available to a person who is the subject of a committal order."

The section 11 referred to was that of the Act of 1989. This dictum was also obiter.

My Lords, I do not consider that the foregoing speculations by Viscount Dilhorne and Woolf L.J. justify reconsideration of the passages in Atkinson v. United States of America Government [1971] A.C. 197 and Reg. v. Governor of Pentonville Prison, Ex parte Sinclair [1991] 2 A.C. 64 to which I have referred.

The appellant in Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42 was forcibly returned from South Africa to England to face charges of obtaining money by false pretences. There was in force no extradition treaty between the two countries but special arrangements could have been made for his extradition under section 15 of the Act of 1989. Instead the South African and English police colluded to effect the appellant's forcible return. In these circumstances he sought judicial review of the magistrate's decision to commit him for trial. The Divisional Court refused the application on the ground that it had no power to inquire into the circumstances whereby the applicant had been brought within the jurisdiction but this House held that the High Court had power to consider deliberate abuse of extradition procedure and that the matter should be remitted to the Divisional Court for further consideration. Lord Griffiths, who delivered the leading speech, said, at p. 62:

"Let us consider the position in the context of extradition. Extradition procedures are designed not only to ensure that criminals are returned from one country to another but also to protect the rights of those who are accused of crimes by the requesting country. Thus sufficient evidence has to be produced to show a prima facie case against the accused and the rule of speciality protects the accused from being tried for any crime other than that for which he was extradited. If a practice developed in which the police or prosecuting authorities of this country ignored extradition procedures and secured the return of an accused by a mere request to police colleagues in another country they would be flouting the extradition procedures and depriving the accused of the safeguards built into the extradition process for his benefit. It is to my mind unthinkable that in such circumstances the court should declare itself to be powerless and stand idly by; I echo the words of Lord Devlin in Connelly v. Director of Public Prosecutions [1964] A.C. 1254, 1354: '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."

Pausing here it is right to point out that although there may be a need to show a prima facie case against an accused where special arrangements are made under section 15 there is no longer such a requirement where, as in this case, Germany, the requesting state, is a party to the European Convention on Extradition (section 9(4) of the Act of 1989, article 3 of and Schedule 2 to the Order of 1990). Lord Griffiths said, at p. 64:

"I would accordingly affirm the power of the magistrates, whether sitting as committing justices or exercising their summary jurisdiction, to exercise control over their proceedings through an abuse of process jurisdiction. However, in the case of magistrates this power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures."

He concluded his speech as follows:

"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."

Lord Bridge of Harwich said, at p. 67:

"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."

Lord Lowry said, at p. 74:

". . . 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."

Lord Lowry, after rejecting the argument that the facts relied on had nothing to do with the process of the courts because they were not part of it, said, at p. 76: "They are the indispensable foundation for the holding of the trial."

Mr. Newman referred to the second affidavit of Mr. Michael Forde, an Irish barrister well versed in Irish constitutional law, who opined that the actings of D.S. Jones contravened the applicant's constitutional rights to personal liberty and to access to the courts in Ireland. He argued that since the applicant's appearance before the English court resulted from a breach of the laws of Ireland the High Court had power to intervene in what was necessarily a tainted process. Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42 applied in all proceedings including extraditions where an individual was brought before English courts in circumstances involving a breach of the rule of law resulting from violation of international, foreign or domestic law and Atkinson v. United States of America Government [1971] A.C. 197 and Reg. v. Governor of Pentonville Prison, Ex parte Sinclair should no longer be followed.

My Lords, I am satisfied that Bennett has no such general application as the applicant contends. The issue in that case was whether the English courts should decline to try the accused by staying the prosecution. That the power to intervene, which was held to exist in the High Court, was related only to a trial is abundantly clear from the passages in the speeches to which I have referred. Indeed, there was no reason in that case to consider the power in any other context. However, the matter went further because Lord Griffiths said, at pp. 62-63:

"The question then arises as to the appropriate court to exercise this aspect of the abuse of process of jurisdiction. It was submitted on behalf of the respondent that the examining magistrates have no power to stay proceedings on the ground of abuse of process and reliance was placed on the decisions of this House in Reg. v. Governor of Pentonville Prison, Ex parte Sinclair [1991] 2 A.C. 64 and Atkinson v. United States of America Government [1971] A.C. 197, which established that in extradition proceedings a magistrate has no power to refuse to commit an accused on the grounds of abuse of process. But the reason underlying those decisions is that the Secretary of State has the power to refuse to surrender the accused if it would be unjust or oppressive to do so; and now under the Extradition Act 1989 an express power to this effect has been conferred upon the High Court."

In this passage Lord Griffiths far from doubting or detracting from those decisions is recognising their application to the different procedures which apply in extradition from England. In my view the position in relation to a pending trial in England is wholly different to that in relation to pending proceedings for extradition from England. In the former case the High Court in its supervisory jurisdiction is the only bulwark against

any abuse of process resulting in injustice or oppression which may have resulted in the accused being brought to trial in England. In the latter case, not only has the Secretary of State power to refuse to surrender the accused in such circumstances but the courts of the requesting authority are likely to have powers similar to those held to exist in Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett. An accused fugitive is thus likely to have not one but two safeguards against injustice and oppression before being brought to trial in the requesting state.

It must also be remembered that the extradition procedures to which this appeal relates flow from the European Convention on Extradition and are designed to facilitate the return of accused or convicted persons from one contracting state to another. The removal of the requirement that the requesting state should provide prima facie evidence of the alleged crime demonstrates that extradition proceedings between contracting states were intended to be simple and speedy, each state accepting that it could rely upon the genuineness and bona fides of a request made by another one. The advantages of bringing an accused to trial while evidence on both sides is fresh are obvious. To confer on the High Court a power such as the applicant contends for would be to inhibit the carrying out of this intention.

Mr. Newman also argued that the opening words of section 11(3) "Without prejudice to any jurisdiction of the High Court apart from this section" amounted to implicit recognition of an existing jurisdiction to intervene in cases such as the present. I do not consider that this argument is sound. There is ample content for these words in: (1) section 6

which imposes restrictions on the committal and return of a person in circumstances such as that the alleged offence was of a political character or that conviction was obtained in the accused's absence; (2) section 13(6) which entitles a person to whom an order for return relates to apply for judicial review within a specified time of the Secretary of State's decision to make the order; and (3) section 16(1) which entitles a person committed under section 9 to apply to the High Court for discharge when he is still in the United Kingdom after a specified period.

My Lords, I summarise my conclusions on this branch of the case thus. Atkinson v. United States of America Government [1971] A.C. 197 decided that Parliament had excluded the jurisdiction of the courts to refuse to surrender a person under the Act of 1870 when to do so would be unjust or oppressive. Reg. v. Governor of Pentonville Prison, Ex parte Narang [1978] A.C. 247 emphasised that the statutory powers conferred upon the courts by the Act of 1881 in relation to the Empire had been considerably restricted by section 8(3) of the Act of 1967. Reg. v. Governor of Pentonville Prison, Ex parte Sinclair [1991] 2 A.C. 64 pointed out that the re-enactment of section 8(3) in section 11(3) of the Act of 1989 demonstrated that in relation to foreign countries no discretion to refuse the return of a foreign fugitive had previously existed. The dicta in Government of Australia v. Harrod [1975] 1 W.L.R. 745 and In re Osman, 28 February 1992 were obiter. Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42 related to the very different situation of the power to stay an English prosecution. Accordingly, the position now is that in extradition proceedings under the Act of 1989 the

High Court has power to intervene only in the circumstances predicated by the Act and has no inherent common law supervisory power as contended for by the applicant. The principal safeguard for the subject of extradition proceedings therefore remains in the general discretion conferred upon the Secretary of State by Parliament in section 12. It follows that the Divisional Court were correct in concluding that the decisions in Atkinson and Sinclair had not been affected by Bennett and should be followed. That is sufficient for disposal of the appeal but in deference to the arguments of counsel I must refer to the alternative argument advanced by Mr. Alun Jones for the respondents to the effect that even if the High Court did have power to intervene the circumstances here were not of such a nature as would, within the reasoning of Bennett, entitle it to intervene.

In the Divisional Court, Roch L.J. considered that even if the court had power to intervene the conduct of the Metropolitan Police was not so grave or serious as to warrant intervention. Sedley J., on the other hand, considered that the conduct of D.S. Jones amounted to coercion akin to the conduct criticised by this House in Bennett.

There was in this case no question of forceable abduction as in Bennett. The only sanction attached to the ruse was that the applicant, if he did not attend a meeting with D.S. Jones in England, would be arrested when his presence in England was next detected by the authorities. In these circumstances to suggest that he had no alternative but to come to this country and was thereby coerced seems to me to be unrealistic. Had he chosen to remain in Ireland, there was nothing that the authorities here could have done about it. At the very worst, he was tricked into coming to England but not coerced. In Somchai Liangsiriprasert v. Government of the United States of America [1991] 1 A.C. 225, a drug dealer was persuaded by a United States drug enforcement agent to travel from Thailand to Hong Kong in order to receive payment for drugs exported from Thailand to the United States. There was no extradition between the two countries for drug offences. On arrival in Hong Kong the applicant was arrested and proceedings for his extradition to the United States were commenced. He submitted, inter alia, that it would be oppressive and an abuse of process for a government agency to entice a criminal to a jurisdiction from which extradition was available. In answer to this submission Lord Griffiths said, at pp. 242-243:

"As to the suggestion that it was oppressive or an abuse of process the short answer is that international crime has to be fought by international co-operation between law enforcement agencies. It is notoriously difficult to apprehend those at the centre of the drug trade; it is only their couriers who are usually caught. If the courts were to regard the penetration of a drug dealing organisation by the agents of a law enforcement agency and a plan to tempt the criminals into a jurisdiction from which they could be extradited as an abuse of process it would indeed be a red letter day for the drug barons. . . . In the present case the applicant and S.C. came to Hong Kong of their own free will to collect, as they thought, the illicit profits of their heroin trade. They were present in Hong Kong not because of any unlawful conduct of the authorities but because of their own

criminality and greed. The proper extradition procedures have been observed and their Lordships reject without hesitation that it is in the circumstances of this case oppressive or an abuse of the judicial process for the United States to seek their extradition."

The 58 German charges outstanding against the applicant suggest that he may be a substantial international dealer in drugs. As such, his frequent visits to England are unlikely to be in the public interest. To bring such a person to justice the police and other drug enforcement agencies may from time to time have to tempt him to enter their fief. In my view, what was done by D.S. Jones was far more akin to the enticement of the drug enforcement agent in Liangsiriprasert than to the forceable abduction in Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42. I agree with Roch L.J. that the detective sergeant's conduct was not so grave or serious as would have warranted the intervention of the High Court had it possessed such a power.

On the whole matter I would dismiss the appeal for the reasons which I have already stated.

LORD SLYNN OF HADLEY. My Lords, I agree that this appeal should be dismissed for the the reasons given by my noble and learned friend, Lord Jauncey of Tullichettle.

LORD LLOYD OF BERWICK. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Jauncey of Tullichettle. I agree with it and for the reasons he gives I, too, would dismiss this appeal.

Solicitors: Reynolds Dawson; Crown Prosecution Service, Headquarters.

M. G.