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HOUSE OF LORDS REGINA v.
HORSEFERRY ROAD MAGISTRATES’ COURT, Ex parte
BENNETT Official
citation (authoritative version) at: [1994] 1 A.C. 42 DATES: 1993 March 3, 4, 8, 9; June 24 JUDGES: Lord Griffiths, Lord Bridge of
Harwich, Lord Oliver of Aylmerton, Lord Lowry and Lord Slynn of Hadley SOLICITORS: Hallinan Blackburn Gittings and Nott; Crown
Prosecution Service. Reg. v. Guildford Magistrates’ Court, Ex parte Healy [1983] 1
W.L.R. 108, D.C. applied. Decision of the Divisional Court of the Queen’s Bench
Division [1993] 2 All E.R. 474; 97 Cr.App.R. 29 reversed. Appeal from the Divisional Court of the Queen’s Bench
Division by the defendant, Paul James Bennett, by leave of the Appeal Committee
of the House of Lords (Lord Keith of Kinkel). [*49] LORD GRIFFITHS. Their Lordships invite counsel
to address them on the appropriate court to exercise the abuse of process
jurisdiction. [*51] 24 June. LORD GRIFFITHS. My
Lords, the appellant is a New Zealand citizen who is wanted for criminal
offences which it is alleged he committed in connection with the purchase of a
helicopter in this country in 1989. The essence of the case against him is that
he raised the finance to purchase the helicopter by a series of false pretences
and has defaulted on the repayments. The English police eventually traced the appellant and the
helicopter to South Africa. The police, after consulting with the Crown
Prosecution Service, decided not to request the return of the appellant through
the extradition process. The affidavit of Detective Sergeant Martin Davies of
the Metropolitan Police of New Scotland Yard deposes as follows: “I originally considered
seeking the extradition of the applicant from South Africa. I conferred with
the Crown Prosecution Service, and it was decided that this course of action
should not be pursued. There are no formal extradition provisions in force
between the United Kingdom and the Republic of South Africa and any extradition
would have to be by way of special extradition arrangements under section 15 of
the Extradition Act 1989. No proceedings for the applicant’s
extradition were ever initiated.” It is the appellant’s case that, having taken the
decision not to employ the extradition process, the English police colluded
with the South African police to have the appellant arrested in South Africa
and forcibly returned to this country against his will. The appellant deposes
that he was arrested by two South African detectives on 28 January 1991 at
Lanseria in South Africa, who fixed a civil restraint order on the helicopter
on behalf of the United Kingdom finance company and told the appellant that he
was wanted by Scotland Yard and he was being taken to England. Thereafter he
was held in police custody until he was placed on an aeroplane in Johannesburg
ostensibly to be deported to New Zealand via Taipei. At Taipei when he
attempted to disembark he was restrained by two men who identified themselves
as South African police and said that they had orders to return him to South
Africa and then to the United Kingdom and [*52] hand
him over to Scotland Yard. He was returned to South Africa and held in custody
until he was placed, handcuffed to the seat, on a flight from Johannesburg on
21 February arriving at Heathrow on the morning of 22 February when he was
immediately arrested by three police officers including Detective Sergeant
Davies. He further deposes that he was placed on this flight in defiance of an
order of the Supreme Court of South Africa obtained by a lawyer on his behalf
on the afternoon of 21 February. The English police through Sergeant Davies deny that they were in
any way involved with the South African police in returning the appellant to
this country. They say that they had been informed that there were a number of
warrants for the appellant’s arrest in existence in Australia and New
Zealand and that they requested the South African police to deport the
appellant to either Australia or New Zealand and it was only on 20 February that
the English police were informed by the South African police that the appellant
was to be repatriated to New Zealand by being placed on a flight to Heathrow
from whence he would then fly on to New Zealand. Sergeant Davies does, however,
depose in a second affidavit as follows: “1. Further to my affidavit
sworn in the above-mentioned proceedings on 29 November 1991, my earliest
communications with the South African authorities following the
applicant’s arrest were with the South African police with a view to
his repatriation to New Zealand or deportation to Australia and his subsequent
extradition from one of those countries to England. I discussed with the South
African police the question as to whether the applicant would be returned via
the United Kingdom and I was informed by them that he might be returned via
London. I sought advice from the Crown Prosecution Service and from the Special
Branch of the Metropolitan Police as to what the position would be if he were
so returned. I informed the South African police by telephone that if the
applicant were returned via London he would be arrested on arrival.
Subsequently I was informed by the South African police that the applicant
could not be repatriated to New Zealand via Heathrow . . . “4. I now
recollect that it was on 20 February and not on 21 February as I stated in my
previous affidavit, that the South African police informed me on the telephone
that the applicant was to be returned to New Zealand via Heathrow. On the same
day I consulted the Crown Prosecution Service and it was decided that the
English police would arrest the applicant on his arrival at Heathrow.” It is not for your Lordships to pass judgment on where truth lies
at this stage of the proceedings but for the purpose of testing the submission
of the respondent that a court has no jurisdiction to inquire into such matters
it must be assumed that the English police took a deliberate decision not to
pursue extradition procedures but to persuade the South African police to arrest
and forcibly return the appellant to this country, under the pretext of
deporting him to New Zealand via Heathrow so that he could be arrested at
Heathrow and tried for the offences of dishonesty he is alleged to have
committed in 1989. I shall also assume that the [*53] Crown
Prosecution Service were consulted and approved of the behaviour of the police. On 22 May 1991 the appellant was brought before a stipendiary
magistrate for the purpose of committal proceedings. Counsel for the appellant
requested an adjournment to permit him to challenge the jurisdiction of the
magistrates’ court. The application was refused and the appellant was
committed for trial to the Southwark Crown Court on five offences of
dishonesty. The appellant obtained leave to bring proceedings for judicial
review to challenge the decision of the magistrate. On 22 July 1992 the
Divisional Court ruled that as a preliminary issue the court would consider
whether there was jurisdiction vested in the Divisional Court to inquire into
the circumstances by which the appellant had come to be within the jurisdiction
of the courts of England and Wales. On 31 July 1992 the Divisional Court held that even if the
evidence showed collusion between the Metropolitan Police and the South African
police in kidnapping the appellant and securing his enforced illegal removal
from the Republic of South Africa there was no jurisdiction vested in the court
to inquire into the circumstances by which the appellant came to be within the
jurisdiction and accordingly dismissed the application for judicial review. The
Divisional Court has certified the following question of law: “Whether in the exercise of
its supervisory jurisdiction the court has power to inquire into the
circumstances by which a person has been brought within the jurisdiction and if
so what remedy is available if any to prevent his trial where that person has
been lawfully arrested within the jurisdiction for a crime committed within the
jurisdiction.” The Divisional Court in this case was faced with conflicting
decisions of the Divisional Court in earlier cases. In Reg. v. Bow Street
Magistrates, Ex parte Mackeson (1981) 75 Cr.App.R. 24 the facts were
as follows. The applicant was a British citizen who had left this country at the
end of 1977 and in 1979 was working as a schoolteacher in Zimbabwe-Rhodesia. In
May 1979 he was wanted by the Metropolitan Police for offences of fraud that he
was alleged to have committed before he left this country. The Metropolitan
Police were aware that no extradition was lawfully possible at that time
because the Zimbabwe-Rhodesia Government was in rebellion against the Crown.
The Metropolitan Police therefore told the authorities in Zimbabwe-Rhodesia
that the applicant was wanted in England in connection with fraud charges with
the result that he was arrested and a deportation order made against him. The
applicant brought proceedings in Zimbabwe-Rhodesia for the deportation order to
be set aside which succeeded at first instance but the decision was set aside
on appeal. No attempt was made to use the extradition process to secure the
return of the applicant when Zimbabwe-Rhodesia returned to direct rule under
the Crown in December 1979. On 17 April 1980 the applicant was placed upon a
plane by the police in Zimbabwe-Rhodesia and arrested on his arrival at Gatwick
by the Metropolitan Police on 17 April 1980. No evidence was offered in respect
of the fraud charges but further charges were alleged against him [*54] under
the Theft Acts. The applicant applied for an order of prohibition to prevent
the hearing of committal proceedings against him in the magistrates’
court on those charges. On these facts Lord Lane C.J. giving the judgment of the
Divisional Court held, on the authority of Rex v. Officer Commanding Depot
Battalion, R.A.S.C., Colchester, Ex parte Elliott [1949] 1 All
E.R. 373, that the court had jurisdiction to try the applicant. He said, at p.
32: “Whatever the reason for the
applicant being at Gatwick Airport on the tarmac, whether his arrival there had
been obtained by fraud or illegal means, he was there. He was subject to arrest
by the police force of this country. Consequently the mere fact that his
arrival there may have been procured by illegality did not in any way oust the
jurisdiction of the court. That aspect of the matter is simple.” On the question of whether the court could or would exercise a
discretion in favour of the applicant to order his release from custody Lord
Lane C.J. relied upon a passage in the judgment of Woodhouse J. in Reg. v.
Hartley [1978] 2 N.Z.L.R. 199, a decision of the Court of Appeal of New
Zealand. In that case the New Zealand police had obtained the return of a man
named Bennett from Australia to New Zealand where he was wanted on a charge of
murder, merely by telephoning to the Australian police and asking them to
arrest Bennett and put him on an aeroplane back to New Zealand, which they had
done. Lord Lane C.J. cited the following extract from the judgment of Woodhouse
J. [1978] 2 N.Z.L.R. 199, 216-217: “There are explicit statutory
directions that surround the extradition procedure. The procedure is widely
known. It is frequently used by the police in the performance of their duty.
For the protection of the public the statute rightly demands the sanction of
recognised court processes before any person who is thought to be a fugitive
offender can properly be surrendered from one country to another. And in our
opinion there can be no possible question here of the court turning a blind eye
to action of the New Zealand police which has deliberately ignored those
imperative requirements of the statute. Some may say that in the present case a
New Zealand citizen attempted to avoid a criminal responsibility by leaving the
country: that his subsequent conviction has demonstrated the utility of the
short cut adopted by the police to have him brought back. But this must never
become an area where it will be sufficient to consider that the end has
justified the means. The issues raised by this affair are basic to the whole
concept of freedom in society. On the basis of reciprocity for similar favours
earlier received are police officers here in New Zealand to feel free, or even
obliged, at the request of their counterparts overseas to spirit New Zealand or
other citizens out of the country on the basis of mere suspicion, conveyed
perhaps by telephone, that some crime has been committed elsewhere? In the High
Court of Australia Griffith C.J. referred to extradition as a ‘great
prerogative power, supposed to be an incident of sovereignty’ and then
rejected any suggestion that ‘it could be put in motion by any
constable who thought he knew the law of a foreign country, [*55] and thought it
desirable that a person whom he suspected of having offended against that law
should be surrendered to that country to be punished:’ Brown v.
Lizars (1905) 2 C.L.R. 837, 852. The reasons are obvious. “We have said that if the
issue in the present case is to be considered merely in terms of jurisdiction
then Bennett, being in New Zealand, could certainly be brought to trial and
dealt with by the courts of this country. But we are equally satisfied that the
means which were adopted to make that trial possible are so much at variance
with the statute, and so much in conflict with one of the most important
principles of the rule of law, that if application had been made at the trial
on this ground, after the facts had been established by the evidence on the
voir dire, the judge would probably have been justified in exercising his
discretion under section 347(3) or under the inherent jurisdiction to direct
that the accused be discharged.” Lord Lane C.J. followed that passage and exercised the
court’s discretion to order prohibition against the
magistrates’ court and to discharge the applicant. Ex parte Mackeson, 75 Cr.App.R. 24 was followed by the
Divisional Court in Reg. v. Guildford Magistrates’ Court, Ex parte
Healy [1983] 1 W.L.R. 108. In Reg. v. Plymouth Justices, Ex parte Driver [1986] Q.B.
95 a differently constituted Divisional Court after hearing argument containing
more elaborate citation of authority declined to follow Ex parte Mackeson and
held that the court had no power to inquire into the circumstance in which a
person was found within the jurisdiction for the purpose of refusing to try
him. The Divisional Court regarded the law as settled by a trilogy of
cases. Ex parte Susannah Scott (1829) 9 B. & C. 446, Sinclair
v. H.M. Advocate (1890) 17 R.(J.) 38 and Rex v. Officer Commanding Depot
Battalion, R.A.S.C., Colchester, Ex parte Elliott [1949] 1 All
E.R. 373. These cases undoubtedly show that at the time they were decided the
judges were not prepared to inquire into the circumstances in which a person
came within the jurisdiction. In Ex parte Susannah Scott Lord Tenterden C.J.
granted a warrant for the apprehension of Scott so that she might appear and
plead to a bill of indictment charging her with perjury. Ruthven, the police
officer to whom the warrant was directed, arrested Scott in Brussels. She
applied to the British Ambassador for assistance but he refused to interfere
and Ruthven brought her to Ostend and then to England. A rule nisi was obtained
for a habeas corpus to bring up Scott in order that she might be discharged. In
giving judgment Lord Tenterden C.J. said, 9 B. & C. 446, 448: “The question, therefore, is
this, whether if a person charged with a crime is found in this country, it is
the duty of the court to take care that such a party shall be amenable to
justice, or whether we are to consider the circumstances under which she was
brought here. I thought, and still continue to think, that we cannot inquire
into them.” [*56] In Sinclair v. H.M. Advocate, 17 R.(J.) 38 the sheriff
substitute of Lanarkshire granted a warrant to a Glasgow sheriff officer to
arrest Sinclair for breach of trust and embezzlement and to receive him into
custody from the government of Spain. The accused was brought before the
sheriff substitute on this warrant and committed to prison to await his trial.
He brought a bill of suspension and liberation in which he alleged that he had
been arrested and imprisoned in Portugal by the Portuguese authorities without
a warrant; that he had been put by them on board an English ship in the Tagus,
and there had been taken into custody by a Glasgow detective officer without
the production of a warrant; but during the voyage to London the vessel had
been in the port of Vigo, in Spain, for several hours; that the complainer had
demanded to be allowed to land there but had been prevented by the officer;
that on arriving in London he was not taken before a magistrate, nor was the
warrant endorsed, but he was brought direct to Scotland, and there committed to
prison, and no warrant was ever produced or exhibited to him. It was held that
these allegations did not set forth any facts to affect the validity of the
commitment by the sheriff substitute, which proceeded upon a proper warrant. In the course of his judgment the Lord Justice-Clerk said, at pp.
40-42: “There are three stages of
procedure in this case - first, there are the proceedings abroad where the
complainer was arrested; second, there are the proceedings on the journey to
this country; and third, the proceedings here. As regards the proceedings
abroad and where the complainer was arrested, they may or may not have been
regular, formal, and in accordance with the laws of Portugal and Spain, but we
know nothing about them. What we do know is that two friendly powers agreed to
give assistance to this country so as to bring to justice a person properly
charged by the authorities in this country with a crime. If the Government of
Portugal or of Spain has done anything illegal or irregular in arresting and
delivering over the complainer his remedy is to proceed against these
Governments. That is not a matter for our consideration at all, and we cannot
be the judges of the regularity of such proceedings. “In point of fact the
complainer was put on board a British vessel which was at that time in the
roads at the mount of the Tagus, and given into the custody of a person who
held a warrant to receive him, and who did so receive him. This warrant was
perfectly regular, as also his commitment to stand his trial on a charge of
embezzlement. If there was any irregularity in the granting or execution of
these warrants the person committing such irregularity would be liable in an
action of damages if any damage was caused. But that cannot affect the
proceedings of a public authority here. The public authority here did nothing
wrong. The warrants given to the officer to detain the prisoner were quite
formal, and it is not said that he did anything wrong. “It is said that the
Government of Portugal did something wrong, and that the authorities in this
country are not to be entitled to obtain any advantage from this alleged
wrongdoing. As I have said, [*57] we cannot be the judges
of the wrongdoing of the Government of Portugal. What we have here is that a
person has been delivered to a properly authorised officer of this country, and
is now to be tried on a charge of embezzlement in this country. He is therefore
properly before the court of a competent jurisdiction on a proper warrant. I do
not think we can go behind this. There has been no improper dealing with the
complainer by the authorities in this country, or by their officer, to induce
him to put himself in the position of being arrested, as was the case in two of
the cases cited. They were civil cases in which the procedure was at the
instance of a private party for his own private ends, and the court very
properly held that a person could not take advantage of his own wrongdoing. But
that is not the case here. . . . “No irregularity, then,
involving suspension can be said to have taken place on his arrival in London
and on his journey here. But even if the proceedings here were irregular I am
of opinion that where a court of competent jurisdiction has a prisoner before
it upon a competent complaint they must proceed to try him, no matter what
happened before, even although he may have been harshly treated by a foreign
government, and irregularly dealt with by a subordinate officer.” Lord M’Laren stated his view in the following terms, at
pp. 43-44: “With regard to the
competency of the proceedings in Portugal, I think this is a matter with which
we really have nothing to do. The extradition of a fugitive is an act of
sovereignty on the part of the state who surrenders him. Each country has its own
ideas and its own rules in such matters. Generally it is done under treaty
arrangements, but if a state refuses to bind itself by treaty, and prefers to
deal with each case on its merits, we must be content to receive the fugitive
on these conditions, and we have neither title nor interest to inquire as to
the regularity of proceedings under which he is apprehended and given over to
the official sent out to receive him into custody. . . . “I am of opinion with your
Lordships that, when a fugitive is brought before a magistrate in Scotland on a
proper warrant, the magistrate has jurisdiction, and is bound to exercise it
without any consideration of the means which have been used to bring him from
the foreign country into the jurisdiction. “In a case of substantial
infringement of right this court will always give redress, but the public
interest in the punishment of crime is not to be prejudiced by irregularities
on the part of inferior officers of the law in relation to the
prisoner’s apprehension and detention.” In Rex v. Officer Commanding Depot Battalion, R.A.S.C.,
Colchester, Ex parte Elliott [1949] 1 All E.R. 373 a deserter from
the R.A.S.C. was arrested in Belgium by British officers accompanied by two
Belgian police officers. He was brought to this country where he was charged
with desertion and detained in Colchester barracks. He applied for a writ of
habeas corpus which was issued and on the return of the writ he submitted that
his arrest was illegal because the British authorities had [*58] no
power to arrest him in Belgium and his arrest was contrary to Belgian law.
Dealing with this submission Lord Goddard C.J. said, at p. 376: “The point with regard to the
arrest in Belgium is entirely false. If a person is arrested abroad and he is
brought before a court in this country charged with an offence which that court
has jurisdiction to hear, it is no answer for him to say, he being then in
lawful custody in this country: ‘I was arrested contrary to the laws
of the state of A or the state of B where I was actually arrested.’ He
is in custody before the court which has jurisdiction to try him. What is it
suggested that the court can do? The court cannot dismiss the charge of one
without its being heard. He is charged with an offence against English law, the
law applicable to the case. If he has been arrested in a foreign country and
detained improperly from the time that he was first arrested until the time he
lands in this country, he may have a remedy against the persons who arrested
and detained him, but that does not entitle him to be discharged, though it may
influence the court if they think there was something irregular or improper in
the arrest.” Lord Goddard C.J. then reviewed the decisions in Ex parte Susannah
Scott, 9 B. & C. 446, and Sinclair v. H.M. Advocate, 17 R.(J.)
38, and after citing the passage in the speech of Lord M’Laren which I
have already cited Lord Goddard C.J. continued, at pp. 377-378: “That, again, is a perfectly
clear and unambiguous statement of the law administered in Scotland. It shows
that the law of both countries is exactly the same on this point and that we
have no power to go into the question, once a prisoner is in lawful custody in
this country, of the circumstances in which he may have been brought here. The
circumstances in which the applicant may have been arrested in Belgium are no
concern of this court.” There were also cited to the Divisional Court a number of
authorities from the United States which showed that United States courts have
not regarded the constitutional right to “due process” as
preventing a court in the United States from trying an accused who has been
kidnapped in a foreign country and forcibly abducted into the United States:
see Ker v. Illinois (1886) 119 U.S. 436 and United States of
America v. Sobell (1957) 244 F.2d 520. Relying on this line of authority the Divisional Court declined to
follow Ex parte Mackeson, 75 Cr.App.R. 24, and held that it had no power to
inquire into the circumstances in which the applicant was brought within the
jurisdiction. In the present case the Divisional Court approved the decision in Ex
parte Driver [1986] Q.B. 95 and in giving the leading judgment of the court
Woolf L.J. said: “However, quite apart from
authority, I am bound to say it seems to me that the approach of Stephen Brown
L.J. [in Reg. v. Plymouth Justices, Ex parte Driver [1986] Q.B.
95], in general, must be correct. The power which the court is exercising, and
the power which the court was purporting to exercise, in Ex parte Mackeson is
one which [*59] is based upon the inherent power of the court to protect
itself against the abuse of its own process. If the matters which are being
relied upon have nothing to do with that process but only explain how a person
comes to be within the jurisdiction so that that process can commence, it seems
to me difficult to see how the process of the court (and I emphasise the word
‘court’) can be abused by the fact that a person may or may
not have been brought to this country improperly.” However, in a later passage Woolf L.J. drew a distinction between
improper behaviour by the police and the prosecution itself, he said: “Speaking for myself, I am
not satisfied there could not be some form of residual discretion which in
limited circumstances would enable a court to intervene, not on the basis of an
abuse of process but on some other basis which in the appropriate circumstances
could avail a person in a situation where he contends that the prosecution are
involved in improper conduct.” Your Lordships have been urged by the respondent to uphold the
decision of the Divisional Court and the nub of their submission is that the
role of the judge is confined to the forensic process. The judge, it is said,
is concerned to see that the accused has a fair trial and that the process of
the court is not manipulated to his disadvantage so that the trial itself is
unfair: but the wider issues of the rule of law and the behaviour of those
charged with its enforcement, be they police or prosecuting authority, are not
the concern of the judiciary unless they impinge directly on the trial process.
In support of this submission your Lordships have been referred to Reg. v.
Sang [1980] A.C. 402 and those passages in the speeches of Lord
Diplock, at pp. 436-437, and Lord Scarman, at pp. 454-455, which emphasise that
the role of the judge is confined to the forensic process and that it is no
part of the judge’s function to exercise disciplinary powers over the
police or the prosecution. The respondent has also relied upon the United States authorities
in which the Supreme Court has consistently refused to regard forcible
abduction from a foreign country as a violation of the right to trial by due
process of law guaranteed by the Fourteenth Amendment to the Constitution: see
in particular the majority opinion in United States v. Alvarez-Machain (1992) 119
L.Ed.2d 441 reasserting the Ker-Frisbie Rule. I do not, however, find these decisions
particularly helpful because they deal with the issue of whether or not an
accused acquires a constitutional defence to the jurisdiction of the United
States courts and not to the question whether assuming the court has
jurisdiction, it has a discretion to refuse to try the accused: see Ker v.
Illinois, 119 U.S. 436, 444. The respondent also cited two Canadian cases decided at the turn
of the century, Rex v. Whiteside (1904) 8 Can.Cr.Cas. 478 and Rex
v. Walton (1905) 10 Can.Cr.Cas. 269 which show that the Canadian courts
followed the English and American courts accepting jurisdiction in criminal
cases regardless of the circumstances in which the accused was brought within
the jurisdiction of the Canadian court. We have also had our attention drawn to
the New Zealand decision in Moevao v. [*60] Department
of Labour [1980] 1 N.Z.L.R. 464, in which Richmond P. expressed
reservations about the correctness of his view that the prosecution in Reg.
v. Hartley [1978] 2 N.Z.L.R. 199 was an abuse of the process of the court
and Woodhouse J. reaffirmed his view to that effect. The appellant contends for a wider interpretation of the
court’s jurisdiction to prevent an abuse of process and relies
particularly upon the judgment of Woodhouse J. in Reg. v. Hartley, the powerful
dissent of the minority in United States v. Alvarez-Machain and the decision of
the South African Court of Appeal in S. v. Ebrahim, 1991 (2)
S.A. 553, the headnote of which reads: “The appellant, a member of
the military wing of the African National Congress who had fled South Africa
while under a restriction order, had been abducted from his home in Mbabane,
Swaziland, by persons acting as agents of the South African State, and taken
back to South Africa, where he was handed over to the police and detained in
terms of security legislation. He was subsequently charged with treason in a
Circuit Local Division, which convicted and sentenced him to 20 years’
imprisonment. The appellant had prior to pleading launched an application for
an order to the effect that the court lacked jurisdiction to try the case
inasmuch as his abduction was in breach of international law and thus unlawful.
The application was dismissed and the trial continued. “The court, on appeal against
the dismissal of the above application, held, after a thorough investigation of
the relevant South African and common law, that the issue as to the effect of
the abduction on the jurisdiction of the trial court was still governed by the
Roman and Roman-Dutch common law which regarded the removal of a person from an
area of jurisdiction in which he had been illegally arrested to another area as
tantamount to abduction and thus constituted a serious injustice. A court
before which such a person was brought also lacked jurisdiction to try him,
even where such a person had been abducted by agents of the authority governing
the area of jurisdiction of the said court. The court further held that the
above rules embodied several fundamental legal principles, viz. those that
maintained and promoted human rights, good relations between states and the
sound administration of justice: the individual had to be protected against
unlawful detention and against abduction, the limits of territorial
jurisdiction and the sovereignty of states had to be respected, the fairness of
the legal process guaranteed and the abuse thereof prevented so as to protect
and promote the dignity and integrity of the judicial system. The state was
bound by these rules and had to come to court with clean hands, as it were,
when it was itself a party to proceedings and this requirement was clearly not
satisfied when the state was involved in the abduction of persons across the
country’s borders. “It was accordingly held that
the court a quo had lacked jurisdiction to try the appellant and his
application should therefore have succeeded. As the appellant should never have
been tried by the court a quo, the consequences of the trial had to be undone
and the appeal disposed [*61] of as one against conviction
and sentence. Both the conviction and sentence were accordingly set
aside.” In answer to the respondent’s reliance upon Reg. v.
Sang [1980] A.C. 402 the appellant points to section 78 of the Police
and Criminal Evidence Act 1984 which enlarges a judge’s discretion to
exclude evidence obtained by unfair means. As one would hope, the number of reported cases in which a court
has had to exercise a jurisdiction to prevent abuse of process are
comparatively rare. They are usually confined to cases in which the conduct of
the prosecution has been such as to prevent a fair trial of the accused. In Reg.
v. Derby Crown Court, Ex parte Brooks (1984) 80 Cr.App.R. 164, 168-169, Sir
Roger Ormrod said: “The power to stop a
prosecution arises only when it is an abuse of a process of the court. It may
be an abuse of process if either (a) the prosecution have manipulated or
misused the process of the court so as to deprive the defendant of a protection
provided by the law or to take unfair advantage of a technicality, or (b) on
the balance of probability the defendant has been, or will be, prejudiced in
the preparation or conduct of his defence by delay on the part of the
prosecution which is unjustifiable . . . The ultimate objective of this
discretionary power is to ensure that there should be a fair trial according to
law, which involves fairness to both the defendant and the
prosecution.” There have, however, also been cases in which although the
fairness of the trial itself was not in question the courts have regarded it as
so unfair to try the accused for the offence that it amounted to an abuse of
process. In Chu Piu-wing v. Attorney-General [1984]
H.K.L.R. 411 the Hong Kong Court of Appeal allowed an appeal against a conviction
for contempt of court for refusing to obey a subpoena ad testificandum on the
ground that the witness had been assured by the Independent Commission Against
Corruption that he would not be required to give evidence, McMullin V.-P. said,
at pp. 417-418: “there is a clear public
interest to be observed in holding officials of the state to promises made by
them in full understanding of what is entailed by the bargain.” And in a recent decision of the Divisional Court in Reg. v.
Croydon Justices, Ex parte Dean [1993] Q.B. 769, the committal of the
accused on a charge of doing acts to impede the apprehension of another
contrary to section 4(1) of the Criminal Law Act 1967 was quashed on the ground
that he had been assured by the police that he would not be prosecuted for any
offence connected with their murder investigation and in the circumstances it
was an abuse of process to prosecute him in breach of that promise. 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 [*62]
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. 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. 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, [*63] 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. Your Lordships have not previously had to consider whether
justices, and in particular committing justices, have the power to refuse to
try or commit a case upon the grounds that it would be an abuse of process to
do so. Although doubts were expressed by Viscount Dilhorne as to the existence
of such a power in Reg. v. Humphrys [1977] A.C. 1, 26, there is a
formidable body of authority that recognises this power in the justices. In Mills v. Cooper [1967] 2 Q.B. 459, Lord Parker C.J.
hearing an appeal from justices who had dismissed an information on the grounds
that the proceedings were oppressive and an abuse of the process of the court
said, at p. 467: “So far as the ground upon
which they did dismiss the information was concerned, every court has
undoubtedly a right in its discretion to decline to hear proceedings on the
ground that they are oppressive and an abuse of the process of the
court.” Diplock L.J. expressed his agreement with this view, at p. 470F.
In Reg. v. Canterbury and St. Augustine Justices, Ex parte Klisiak [1982] Q.B.
398, 411f, Lord Lane C.J. was prepared to assume such a jurisdiction. In Reg.
v. West London Stipendiary Magistrate, Ex parte Anderson (1984) 80
Cr.App.R. 143, Robert Goff L.J., reviewing the position at that date said, at
p. 149: “There was at one time some
doubt whether magistrates had jurisdiction to decline to allow a criminal
prosecution to proceed on the ground that it amounted to an abuse of the
process of the court: see Director of Public Prosecutions v. Humphrys (1976) 63
Cr.App.R. 95, 144; [1977] A.C. 1, 19, per Viscount Dilhorne. However, a line of
authority which has developed since that case has clearly established that
magistrates do indeed have such a jurisdiction: see in particular Brentford
Justices, Ex parte Wong (1981) 73 Cr.App.R. 67; [1981] Q.B. 445; Watford
Justices, Ex parte Outrim (1982) [1983] R.T.R. 26; Grays Justices, Ex
parte Graham (1982) 75 Cr.App.R. 229; [1982] 3 All E.R. 653. The power has,
however, been described by the Lord Chief Justice as being ‘very
strictly confined:’ see Oxford City Justices, Ex parte Smith (1982) 75
Cr.App.R. 200, 204.” The power has recently and most comprehensively been considered
and affirmed by the Divisional Court by Reg. v. Telford Justices, Ex parte
Badhan [1991] 2 Q.B. 78, 81. Provided it is appreciated by magistrates that this is a power to
be most sparingly exercised, of which they have received more than sufficient
[*64] judicial warning (see, for example, Lord Lane C.J. in Reg.
v. Oxford City Justices, Ex parte Smith (1982) 75 Cr.App.R. 200 and Ackner
L.J. in Reg. v. Horsham Justices, Ex parte Reeves (Note) (1980)
75 Cr.App.R. 236) it appears to me to be a beneficial development and I am
unpersuaded that there are any sufficient reasons to overrule a long line of
authority developed by successive Lord Chief Justices and judges in the
Divisional Court who are daily in much closer touch with the work in the
magistrates’ court than your Lordships. Nor do I see any force in an
argument developed by the respondents which sought to equate abuse of process
with contempt of court. 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. Although it may be convenient to label the
wider supervisory jurisdiction with which we are concerned in this appeal under
the head of abuse of process, it is in fact a horse of a very different colour
from the narrower issues that arise when considering domestic criminal trial
procedures. I adhere to the view I expressed in Reg. v. Guildford
Magistrates’ Court, Ex parte Healy [1983] 1
W.L.R. 108 that this wider responsibility for upholding the rule of law must be
that of the High Court and that if a serious question arises as to the
deliberate abuse of extradition procedures a magistrate should allow an
adjournment so that an application can be made to the Divisional Court which I
regard as the proper forum in which such a decision should be taken. I would answer the certified question as follows. The High Court
in the exercise of its supervisory jurisdiction has power to inquire into the
circumstances by which a person has been brought within the jurisdiction and if
satisfied that it was in disregard of extradition procedures it may stay the
prosecution and order the release of the accused. Accordingly I would allow this appeal and remit the case to the
Divisional Court for further consideration. LORD BRIDGE OF HARWICH. My Lords, this appeal raises an
important question of principle. When a person is arrested and charged with a
criminal offence, is it a valid ground of objection to the exercise of the
court’s jurisdiction to try him that the prosecuting authority secured
the prisoner’s presence within the territorial jurisdiction of the
court by forcibly abducting him from within the jurisdiction of some other
state, in violation of international law, in violation of the laws of the state
from which he was abducted, in violation of whatever rights he enjoyed under
the laws of that state and in disregard of available procedures to secure his
lawful extradition to this country from the state where he was residing? This
is to state the issue very starkly, perhaps some may think tendentiously. But
because this appeal has to be determined on the basis of assumed facts, your
Lordships, as it seems to me, cannot avoid grappling with the issue in this
stark form. [*65] In this country and in Scotland the mainstream of authority, as
the careful review in the speech of my noble and learned friend, Lord
Griffiths, shows, appears to give a negative answer to the question posed,
holding that the courts have no power to examine the circumstances in which a
prisoner was brought within the jurisdiction. I fully recognise the cogency of
the arguments which can be adduced in support of this view, sustained as they
are by the public interest in the prosecution and punishment of crime. But none
of the previous authorities is binding on your Lordships’ House and,
if there is another important principle of law which ought to influence the
answer to the question posed, then your Lordships are at liberty, indeed under
a duty, to examine it and, if it transpires that this is an area where two
valid principles of law come into conflict, it must, in my opinion, be for your
Lordships to decide as a matter of principle which of the two conflicting
principles of law ought to prevail. When we look to see how other jurisdictions have answered a
question analogous to that before the House in terms of their own legal
systems, the most striking example of an affirmative answer is the decision of
the South African Court of Appeal in S. v. Ebrahim, 1991 (2)
S.A. 553 allowing an appeal against his conviction for treason by a member of
the African National Congress on the sole ground that he had been abducted from
Swaziland, outside the jurisdiction of the South African court, by persons
acting as agents of the South African state. This decision, as the summary in
the headnote shows, resulted from the application of “several fundamental legal
principles: viz. those that maintained and promoted human rights, good
relations between states and the sound administration of justice: the
individual had to be protected against unlawful detention and against
abduction, the limits of territorial jurisdiction and the sovereignty of states
had to be respected, the fairness of the legal process guaranteed and the abuse
thereof prevented so as to protect and promote the dignity and integrity of the
judicial system. The state was bound by these rules and had to come to court
with clean hands, as it were, when it was itself a party to proceedings and
this requirement was clearly not satisfied when the state was involved in the
abduction of persons across the country’s borders.” In the United States, the authorities reveal a conflict of
judicial opinion. The doctrine established by Supreme Court decisions in 1886, Ker
v. Illinois, 119 U.S. 436, and in 1952, Frisbie v. Collins, 342 U.S.
519, accords substantially in its effect with the doctrine of the early English
authorities. But more recently this doctrine has been powerfully challenged. In
United States v. Toscanino (1974) 500 F.2d 267, 268 the
defendant, an Italian citizen, who had been convicted in the New York District
Court of a drug conspiracy, alleged that the court had “acquired
jurisdiction over him unlawfully through the conduct of American agents who had
kidnapped him in Uruguay . . . tortured him and abducted him to the United
States for the purpose of prosecuting him” there. The lower court
having held that these allegations were immaterial to the [*66]
exercise of its jurisdiction to try him, provided he was physically present at
the time of trial, he appealed to the United States Court of Appeals Second
Circuit. The effect of the court’s decision is sufficiently summarised
in the headnote. The court held: “that federal district
court’s criminal process would be abused or degraded if it was
executed against defendant Italian citizen, who alleged that he was brought
into the United States from Uruguay after being kidnapped, and such abuse could
not be tolerated without debasing the processes of justice, so that defendant
was entitled to a hearing on his allegations. . . . Government should be denied
the right to exploit its own illegal conduct, and when an accused is kidnapped
and forcibly brought within the jurisdiction, court’s acquisition of
power over his person represents the fruits of the government’s
exploitation of its own misconduct.” The most recent decision of the United States Supreme Court in United
States v. Alvarez-Machain, 119 L.Ed.2d 441 concerned a Mexican citizen indicted
for the murder of an agent of the Drug Enforcement Administration (D.E.A.). The
District Court had held that other D.E.A. agents had been responsible for the
defendant’s abduction from Mexico; that this had been in violation of
the extradition treaty between Mexico and the United States; and that the
accused should be discharged and repatriated to Mexico. This decision was
affirmed by the United States Court of Appeals, Ninth Circuit, but reversed by
the Supreme Court by a majority of six to three. The opinions related primarily
to the question whether the abduction was a breach of the treaty. The majority
held that the abduction, although “shocking,” involved no
breach of the treaty and relied on the earlier decisions in the cases of Ker, 119 U.S.
436, and Frisbie, 342 U.S. 519, for the view that the abduction was irrelevant to
the exercise of the court’s criminal jurisdiction. The dissenting
opinion of Stevens J., in which Blackmun and O’Connor JJ. joined, held
that the abduction was both in breach of the treaty and in violation of general
principles of international law and distinguished the earlier authorities as
having no application to a case where the abduction in violation of
international law was carried out on the authority of the executive branch of
the United States Government. The minority opinion was that this was an
infringement of the rule of law which it was the court’s duty to
uphold. After referring to the South African decision in S. v. Ebrahim, Stevens J. writes
in the final paragraph of his opinion, at pp. 466-467: “The Court of Appeal of South
Africa - indeed, I suspect most courts throughout the civilised world - will be
deeply disturbed by the Ɵmonstrous’ decision the court
announces today. For every nation that has an interest in preserving the rule
of law is affected, directly or indirectly, by a decision of this
character.” In the common law jurisdiction closest to our own the opinion
expressed by Woodhouse J. in the New Zealand case of Reg. v. Hartley [1978] 2
N.Z.L.R. 199, in which he describes the issue as “basic to the whole
concept of freedom in society,” has already been cited by my [*67] noble and
learned friend, Lord Griffiths, and I need not repeat it. In the later case of Moevao
v. Department of Labour [1980] 1 N.Z.L.R. 464, 475-476, Woodhouse J.
cited the relevant passage from his own judgment in Hartley and added: “It is not always easy to
decide whether some injustice involves the further consequence that a
prosecution associated with it should be regarded as an abuse of process. And
in this regard the courts have been careful to avoid confusing their own role
with the executive responsibility for deciding upon a prosecution. In the
Connelly case Lord Devlin referred to those matters and then, as I have said,
he went on to speak of the importance of the courts accepting what he described
as their ‘inescapable duty to secure fair treatment for those who come
or are brought before them.’ He said that ‘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’
([1964] A.C. 1254, 1354 . . .). Those remarks involve an important statement of
constitutional principle. They assert the independent strength of the judiciary
to protect the law by protecting its own purposes and function. It is essential
to keep in mind that it is ‘the process of law,’ to use Lord
Devlin’s phrase, that is the issue. It is not something limited to the
conventional practices or procedures of the court system. It is the function
and purpose of the courts as a separate part of the constitutional machinery
that must be protected from abuse rather than the particular processes that are
used within the machine. It may be that the shorthand phrase ‘abuse of
process’ by itself does not give sufficient emphasis to the principle
that in this context the court must react not so much against an abuse of the
procedure that has been built up to enable the determination of a criminal
charge as against the much wider and more serious abuse of the criminal
jurisdiction in general. It is for reasons of this kind that I remain of the
opinion that the trial judge would have been entirely justified in the Hartley
case in stopping the prosecution against the man Bennett.” Whatever differences there may be between the legal systems of
South Africa, the United States, New Zealand and this country, many of the
basic principles to which they seek to give effect stem from common roots.
There is, I think, no principle more basic to any proper system of law than the
maintenance of the rule of law itself. When it is shown that the law
enforcement agency responsible for bringing a prosecution has only been enabled
to do so by participating in violations of international law and of the laws of
another state in order to secure the presence of the accused within the
territorial jurisdiction of the court, I think that respect for the rule of law
demands that the court take cognisance of that circumstance. To hold that the
court may turn a blind eye to executive lawlessness beyond the frontiers of its
own jurisdiction is, to my mind, an insular and unacceptable view. Having then
taken cognisance of the lawlessness it would again appear to me to be a wholly
inadequate response for the court to hold that the only remedy lies in civil
proceedings at the suit of the defendant or in disciplinary or criminal [*68]
proceedings against the individual officers of the law enforcement agency who
were concerned in the illegal action taken. Since the prosecution could never
have been brought if the defendant had not been illegally abducted, the whole
proceeding is tainted. If a resident in another country is properly extradited
here, the time when the prosecution commences is the time when the authorities
here set the extradition process in motion. 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, in the language used by Woodhouse J. in Moevao v.
Department of Labour [1980] 1 N.Z.L.R. 464, 476, as an “abuse of the criminal
jurisdiction in general” or indeed, in the language of Mansfield J. in
United States v. Toscanino, 500 F.2d 267, 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. For these reasons and for the reasons given in the speech of my
noble and learned friend, Lord Griffiths, with which I fully agree, I would
allow the appeal. LORD OLIVER OF AYLMERTON. My Lords, a
citizen whose rights have been infringed by unlawful or over-enthusiastic
action on the part of an executive functionary has a remedy by way of recourse
to the courts in civil proceedings. It may not be an ideal remedy. It may not
always be a remedy which is easily available to the person injured. It may not
even, certainly in his estimation, be an adequate remedy. But it is the remedy
which the law provides to the citizen who chooses to invoke it. The question
raised by this appeal is whether, in addition to such remedies as may be
available in civil proceedings, the court should assume the duty of overseeing,
controlling and punishing an abuse of executive power leading up to properly
instituted criminal proceedings not by means of the conventional remedies
invoked at the instance of the person claiming to have been injured by such abuse
but by restraining the further prosecution of those proceedings. The results of
the assumption of such a jurisdiction are threefold; and they are surprising.
First, the trial put in train by a charge which has been properly laid will not
take place and the person charged (if guilty) will escape a just punishment;
secondly, the civil remedies available to that person will remain enforceable;
and thirdly, the public interest in the prosecution and punishment of crime
will have been defeated not by a necessary process of penalising those
responsible for executive abuse but simply for the purpose of manifesting
judicial disapproval. It is, of course, axiomatic that a person charged with having
committed a criminal offence should receive a fair trial and that, if he cannot
be tried fairly for that offence, he should not be tried for it at all. But it
is also axiomatic that there is a strong public interest in the prosecution and
punishment of crime. Absent any suggestion of unfairness or oppression in the
trial process, an application to the court [*69] charged
with the trial of a criminal offence (to which it may be convenient to refer by
the shorthand expression “a criminal court”), whether that
application be made at the trial or at earlier committal proceedings, to order
the discontinuance of the prosecution and the discharge of the accused on the
ground of some anterior executive activity in which the court is in no way
implicated requires to be justified by some very cogent reason. Making, as I do, every assumption in favour of the appellant as
regards the veracity of the evidence which he has adduced and the implications
sought to be drawn from it, I discern no such cogent reason in the instant
case. I do not consider that, either as a matter of established law or as a
matter of principle, a criminal court should be concerned to entertain
questions as to the propriety of anterior executive acts of the law enforcement
agencies which have no bearing upon the fairness or propriety of the trial process
or the ability of the accused to defend himself against charges properly
brought against him. I have had the advantage of reading in draft the speech delivered
by my noble and learned friend, Lord Griffiths, and I gratefully acknowledge
and adopt his recitation of the relevant authorities and the conflict of
judicial opinion which arises from them. Your Lordships have, in addition, been
referred in the course of argument to a number of reports of civil cases of
respectable antiquity in which persons originally unlawfully detained have been
released from custody in the exercise of the court’s undoubted
jurisdiction to prevent abuses of its own process. But those were cases in
which parties to civil proceedings had sought to take advantage of their own
wrong in securing the unlawful detention of another party by serving
proceedings for civil arrest upon him whilst unlawfully detained. In the case
of a person charged with the commission of a criminal offence following an
allegedly irregular initial detention, there was, until Reg. v. Bow Street
Magistrates, Ex parte Mackeson, 75 Cr.App.R. 24, an unbroken line of
authority in the United Kingdom dating from the early 19th century for the
proposition perhaps most pithily expressed by Lord Goddard C.J. in Rex v.
Officer Commanding Depot Battalion, R.A.S.C., Colchester, Ex parte Elliott [1949] 1 All
E.R. 373 that once a person is in lawful custody in this country the court has
no power and is not concerned to inquire into the circumstances in which he may
have been brought here. Ex parte Mackeson and Reg. v. Guildford
Magistrates’ Court, Ex parte Healy [1983] 1 W.L.R. 108 which
impliedly followed it, were to the contrary effect, but in a reserved judgment
of the Divisional Court delivered by Stephen Brown L.J. in Reg. v. Plymouth
Justices, Ex parte Driver [1986] Q.B. 95, in which all the
relevant authorities were fully reviewed, that court followed the earlier line
of authority and rejected the decision in Ex parte Mackeson as having
been decided per incuriam. Ex parte Driver was followed by the Divisional
Court in the instant case in rejecting the appellant’s claim that the
criminal court had jurisdiction to consider and pass judgment upon the
circumstances in which he had been brought within the jurisdiction. The appellant invites this House now to say that the decision in Ex
parte Mackeson is to be preferred and that a criminal court’s [*70]
undoubted jurisdiction to prevent abuses of its own process should be extended,
if indeed it does not already extend, to embrace a much wider jurisdiction to
oversee what is referred to generally as “the administration of
justice,” in the broadest sense of the term, including the executive
acts of law enforcement agencies occurring before the process of the court has
been invoked at all and having no bearing whatever upon the fairness of the
trial. I have to say that I am firmly of the opinion that, whether such a
course be properly described as legislation or merely as pushing forward the
frontiers of the common law, the invitation is one which ought to be resisted.
For my part, I see neither any inexorable logic calling for such an extension
nor any social need for it; and it seems to me to be a course which will be
productive of a good deal of inconvenience and uncertainty. I can, perhaps, best explain my reluctance to embark upon such a
course by postulating and seeking to answer two questions. First, does a criminal court have, or should it have, any general
duty or any power to investigate and oversee executive abuses on the part of
law enforcement officers not affecting either the fairness of the trial process
or the bona fides of the charge which it is called upon to try and occurring
prior to the institution of the criminal proceedings and to order the
discontinuance of such proceedings and the discharge of the accused if it is
satisfied that such abuses have taken place? Secondly, if there is no such
general jurisdiction and if the executive abuse alleged consists of the
repatriation of the accused from a foreign country through acts which are
unlawful in the country in which they occurred, is there some special quality
in this form of executive abuse which gives rise to or which calls for the
creation of such a jurisdiction in this particular case? So far as the first question is concerned, I know of no authority
for the existence of any such general supervisory jurisdiction in a criminal
court. It is not, of course, in dispute that the court has power to prevent the
abuse of its own process and that must, I would accept, include power to
investigate the bona fides of the charge which it is called upon to try and to
decline to entertain a charge instituted in bad faith or oppressively - for
instance, if the accused’s co-operation in the investigation of a
crime has been secured by an executive undertaking that no prosecution will
take place. Thus, I would not for a moment wish to suggest any doubt as to the
correctness of a decision such as that in the recent case of Reg. v. Croydon
Justices, Ex parte Dean [1993] Q.B. 769, where the court quashed
committal proceedings instituted after an undertaking given to the accused by
police officers that he would not be prosecuted. In such a case doubt is cast
both upon the bona fides of the prosecution and on the fairness of the process
to an accused who has been invited to prejudice his own position on the faith
of the undertaking. Where, however, there is no suggestion that the charge is
other than bona fide or that there is any unfairness in the trial process, the
duty of the criminal court is simply to try the case and I can see no ground
upon which it can claim a discretion, or upon which it ought properly to be
invited, to discontinue the proceedings and discharge an accused who is
properly charged simply because of some alleged anterior excess or unlawful act
on the part of the executive officers concerned with his [*71]
apprehension and detention. That is not for a moment to suggest that such
abuses, if they occur, are unimportant or are to be lightly accepted; but they
are acts for which, if they are unlawful, the accused has the same remedies as
those available to any other citizen whose legal rights have been infringed. If
they are not only unlawful but are criminal as well, they are themselves
remediable by criminal prosecution. That a judge may disapprove of or even be
rightly outraged by the manner in which an accused has been apprehended or by
his treatment whilst in custody cannot, however, provide a ground for declining
to perform the public duty of insuring that, once properly charged, he is tried
fairly according to law. In Reg. v. Sang [1980] A.C. 402, 454, Lord Scarman
observed: “Judges are not responsible
for the bringing or abandonment of prosecutions: nor have they the right to
adjudicate in a way which indirectly usurps the functions of the legislature or
jury.” Those words were used in the context of a suggested discretion to
prevent a prosecution because of judicial disapproval of the way in which
admissible evidence had been obtained, but they are equally applicable to other
executive acts which may incur judicial disapprobation. Experience shows that
allegations of abusive use of executive power in the apprehension of those
accused of criminal offences are far from rare. They may take the form of
allegations of illegal entry on private premises, of damage to property, of the
use of excessive force or even of ill-treatment or violence whilst in custody.
So far as there is substance in such allegations, such abuses are disgraceful
and regrettable and they may, no doubt, be said to reflect very ill on the
administration of justice in the broadest sense of that term. But they provide
no justification nor, so far as I am aware, is there any authority for the
proposition that wrongful treatment of an accused, having no bearing upon the
fairness of the trial process, entitles him to demand that he be not tried for
an offence with which he has been properly charged. Indeed, any such general
jurisdiction of a criminal court to investigate and adjudicate upon antecedent
executive acts would be productive of hopeless uncertainty. It clearly cannot
be the case that every excessive use of executive power entitles the accused to
be exonerated. But then at what point and at what degree of outrage is the
criminal court to undertake an inquiry and, if satisfied, to take upon itself
the responsibility of refusing further to try the case? If, then, it be right, as I believe that it is, that there neither
is nor should be any general discretion in a criminal court to inquire into the
conduct of executive officers before and leading up to the institution of
criminal proceedings, the second question which I have ventured to postulate
arises. Where, with the connivance or at the instigation of executive officers
in this country, an accused person who has taken refuge in a foreign country is
brought as a result of activity unlawful in that country within the
jurisdiction of an English court and is then lawfully detained and charged, is
there some special quality attaching to the unlawful and abusive activity
abroad which confers or ought to confer on the criminal court a discretion
which it would not otherwise possess? [*72] The matter can, perhaps, best be illustrated by a hypothetical example
of two terrorists, A and B, who, having detonated a bomb in London, make their
way to Dover with a view to escaping abroad. A, as a result of a quarrel with a
ticket inspector, is wrongfully detained by the railway police and whilst still
in wrongful custody is duly arrested for the terrorist offence and subsequently
charged. B, having successfully boarded a Channel ferry, is recognised as he
steps ashore in Calais by two off-duty constables returning from holiday who
seize him on the quayside and take him back on board keeping him under
restraint until the ferry returns to Dover where he is arrested and charged.
Now nobody would, I think, suggest for a moment that the trial of A should not
proceed, simply because, as a result of a wrongful arrest and detention, he has
been prevented from making good his escape, although he has in fact been put in
the position of being charged and brought to trial only by reason of an
unlawful abuse of executive power. What, then, distinguishes the case of B and
confers on the criminal court in his case a discretion to stay his trial and
discharge him which the court which does not possess in the case A? I can see
only two possible justifications for the suggestion that the court ought, in
B’s case, to have such a discretion. First, it may be argued that, as
a matter of international comity an English court ought to signify its
disapproval of the invasion of the protective rights of a foreign state over
those who come within its jurisdiction by declining to try a person who has
been wrongfully removed from the protection of that state through the
instrumentality of persons for whose actions the authorities of this country
are responsible. I do not find this argument persuasive. An English criminal
court is not concerned nor is it in a position to investigate the legality
under foreign law of acts committed on foreign soil and in any event any
complaint of an invasion of the sovereignty of a foreign state is, as it seems
to me, a matter which can only properly be pursued on a diplomatic level
between the government of the United Kingdom and the government of that state. Secondly, it may be argued that the unlawful activity of which
complaint is made, because it results in the accused being brought within a
jurisdiction from which he would otherwise have escaped, is invested with a
special character because it infringes some “right” of the
accused in English law to be repatriated only through a process of extradition
by the state under whose protection he has succeeded in placing himself. Now it
is, of course, perfectly true that the Extradition Act 1989 contains, in
section 6(4), an inhibition upon extradition from the United Kingdom unless
provision is made by the receiving state that the person extradited will not,
without the consent of the Secretary of State, be dealt with for (in broad
terms) offences other than those in respect of which his extradition has been
ordered. That provision is mirrored in section 18 of the Act which provides
that the person extradited to the United Kingdom from a foreign state will not
be triable for (again in broad terms) offences other than those for which he
has been extradited unless he has first had an opportunity of leaving the
United Kingdom. Thus a person who is returned only as a result of extradition
proceedings enjoys, as a result of this statutory inhibition, an advantage over
one who elects [*73] to return voluntarily or who is otherwise induced to return
within the jurisdiction. But these are provisions inserted in the Act for the
purpose of giving effect to reciprocal treaty arrangements for extradition. I
cannot, for my part, regard them as conferring upon a person who is fortunate
enough successfully to flee the jurisdiction some “right” in
English law which is invaded if he is brought or induced to come back within
the jurisdiction otherwise than by an extradition process, much less a right
the invasion of which a criminal court is entitled or bound to treat as
vitiating the process commenced by a charge properly brought. It is not
suggested for a moment that if, as a result of perhaps unlawful police action
abroad - for instance, in securing the deportation of the accused without
proper authority - in which officers of the United Kingdom authorities are in
no way involved, an accused person is found here and duly charged, the
illegality of what may have occurred abroad entitles the criminal court here to
discontinue the prosecution and discharge the accused. Yet in such a case the
advantage which the accused might have derived from the extradition process is
likewise destroyed. No “right” of his in English law has been
infringed, though he may well have some remedy in the foreign court against
those responsible for his wrongful deportation. What is said to make the
critical difference is the prior involvement of officers of the executive
authorities of the United Kingdom. But the arrest and detention of the accused
are not part of the trial process upon which the criminal court has the duty to
embark. Of course, executive officers are subject to the jurisdiction of the
courts. If they act unlawfully, they may and should be civilly liable. If they
act criminally, they may and should be prosecuted. But I can see no reason why
the antecedent activities, whatever the degree of outrage or affront they may
occasion, should be thought to justify the assumption by a criminal court of a
jurisdiction to terminate a properly instituted criminal process which it is
its duty to try. I would only add that if, contrary to my opinion, such an extended
jurisdiction over executive abuse does exist, I entirely concur with what has
fallen from my noble and learned friend, Lord Griffiths, with regard to the
appropriate court to exercise such jurisdiction. I would dismiss the appeal and
answer the certified question in the negative. LORD LOWRY. My Lords, having had the advantage of
reading in draft the speeches of your Lordships, I accept the conclusion of my
noble and learned friends, Lord Griffiths and Lord Bridge of Harwich, that the
court has a discretion to stay as an abuse of process criminal proceedings
brought against an accused person who has been brought before the court by
abduction in a foreign country participated in or encouraged by British
authorities. Recognising, however, the clear and forceful reasoning of my noble
and learned friend, Lord Oliver of Aylmerton to the contrary, I venture to
contribute some observations of my own. The first essential is to define abuse of process, which in my
opinion must mean abuse of the process of the court which is to try the
accused. Archbold, Criminal Pleading Evidence & Practice, 43rd ed. (1993),
para. 4-44 calls it “a misuse or improper manipulation of the process
of the court.” In Rourke v. The Queen (1977) 76
D.L.R. (3d) 193 Laskin [*74] C.J.C. said, at p. 205,
“The court is entitled to protect its process from abuse” and
also referred, at p. 207, to “the danger of generalising the
application of the doctrine of abuse of process.” In Moevao v.
Department of Labour [1980] 1 N.Z.L.R. 464, 476, Woodhouse J. spoke approvingly of
“the much wider and more serious abuse of the criminal jurisdiction in
general,” whereas Richmond P., giving expression to reservations about
the view in which he had concurred in Reg. v. Hartley [1978] 2
N.Z.L.R. 199, referred, at p. 471, to the need to establish “that the
process of the court is itself being wrongly made use of.” I think
that the words used by Woodhouse J. involve a danger that the doctrine of abuse
of process will be too widely applied and I prefer the narrower definition
adopted by the President. The question still remains what circumstances
antecedent to the trial will produce a situation in which the process of the
court of trial will have been abused if the trial proceeds. Whether the proposed trial will be an unfair trial is not the only
test of abuse of process. The proof of a previous conviction or acquittal on
the same charge means that it will be unfair to try the accused but not that he
is about to receive an unfair trial. Again, in Reg. v. Grays Justices, Ex
parte Low [1990] 1 Q.B. 54 it was held to be an abuse of process to
prosecute a summons where the accused had already been bound over and the
summons had been withdrawn, while in Reg. v. Horsham Justices, Ex parte
Reeves (Note), 75 Cr.App.R. 236 it was held to be an abuse of process to
pursue charges when the magistrates had already found “no case to
answer.” It would, I submit, be generally conceded that for the Crown
to go back on a promise of immunity given to an accomplice who is willing to
give evidence against his confederates would be unacceptable to the proposed
court of trial, although the trial itself could be fairly conducted. And to
proceed in respect of a non-extraditable offence against an accused who has
with the connivance of our authorities been unlawfully brought within the
jurisdiction from a country with which we have an extradition treaty need not
involve an unfair trial, but this consideration would not in my opinion be an
answer to an application to stay the proceedings on the ground of abuse of
process. This last example, though admittedly not based on authority,
foreshadows my conclusion that a court would have power to stay the present
proceedings against the appellant, assuming the facts alleged to be proved,
because I consider that a court has a discretion to stay any criminal
proceedings on the ground that to try those proceedings will amount to an abuse
of its own process either (1) because it will be impossible (usually by reason
of delay) to give the accused a fair trial or (2) because it offends the
court’s sense of justice and propriety to be asked to try the accused
in the circumstances of a particular case. I agree that prima facie it is the
duty of a court to try a person who is charged before it with an offence which
the court has power to try and therefore that the jurisdiction to stay must be
exercised carefully and sparingly and only for very compelling reasons. The
discretion to stay is not a disciplinary jurisdiction and ought not to be
exercised in order to express the court’s disapproval of official
conduct. Accordingly, if the [*75] prosecuting authorities
have been guilty of culpable delay but the prospect of a fair trial has not
been prejudiced, the court ought not to stay the proceedings merely
“pour encourager les autres.” Your Lordships have comprehensively reviewed the authorities and
therefore I will be content to highlight the features which have led me to
conclude in favour of the appellant. The court in Reg. v. Bow Street
Magistrates, Ex parte Mackeson, 75 Cr.App.R. 24, while quite clear
that there was jurisdiction to try the applicant, relied on Reg. v. Hartley [1978] 2
N.Z.L.R. 199 for the existence of a discretion to make an order of prohibition.
Woodhouse J. in Hartley had also recognised the jurisdictionto try Bennett, but
expressed the court’s conclusion that to do so in the circumstances
offended against “one of the most important principles of the rule of
law.” The court’s decision in Reg. v. Plymouth Justices,
Ex parte Driver [1986] Q.B. 95 to the contrary effect was influenced by Ex
parte Susannah Scott, 9 B. & C. 446, Sinclair v. H.M. Advocate, 17 R.(J.) 38
and Rex v. Officer Commanding Depot Battalion, R.A.S.C., Colchester, Ex
parte Elliott [1949] 1 All E.R. 373. Scott and Sinclair were decisions on
jurisdiction and formed the basis of the decision in Ex parte Elliott, in which
there was an application for a writ of habeas corpus, based on the allegation
that the applicant was not subject to military law and that he was wrongfully
held in custody. My noble and learned friend, Lord Griffiths, has described the
argument advanced by the applicant and the manner in which Lord Goddard C.J.
dealt with that argument in the court’s judgment by reference to the
cases of Scott and Sinclair. Then, having disposed of an argument based on
provisions of the Army Act relating to arrest, the Lord Chief Justice came to
“the only point in which there was any substance . . . whether there
has been such delay that this court ought to interfere:” p. 379a.
Neither in the discussion and rejection of this point nor anywhere else in the
judgment does the question of abuse of process arise and, as the judgment put
it, at p. 379: “What we were asked to do in
the present case, and the most we could have been asked to do, was to admit the
prisoner to bail until the court was ready to try him.” This brief review strengthens my inclination to prefer Ex parte
Mackeson to Ex parte Driver and to the Divisional Court’s judgment on
the main point in the present case, since I consider that the true guidance is
to be found not in the jurisdictional cases but in Reg. v. Hartley. My noble and
learned friend, Lord Griffiths, has already pointed out that the United States
authorities, in which opinion is divided, have involved a discussion of
jurisdiction and the interpretation of the Fourteenth Amendment. While on the subject of due process, I might take note of a
subsidiary argument by the respondent: the use by the prosecution of evidence
which has been unlawfully or dishonestly obtained is regarded in the United
States as a violation of due process (“the fruit of the poisoned
tree”), but the preponderant American view is in favour of trying
accused persons even when their presence in court has been unlawfully obtained;
therefore a fortiori the view in this jurisdiction ought to favour trying
[*76] such accused persons, having regard to the more tolerant
common law attitude here to unlawfully obtained evidence, as shown by Reg.
v. Sang [1980] A.C. 402. My answer is that I would consider it a
dangerous and question-begging process to rely on this chain of reasoning,
particularly where the constitutional meaning of “due
process” is one of the factors. As your Lordships have noted, the
respondent also relied on Reg. v. Sang directly in order to support the
argument that it does not matter whether the accused comes to be within the
jurisdiction by fair means or foul. The philosophy which inspires the proposition that a court may
stay proceedings brought against a person who has been unlawfully abducted in a
foreign country is expressed, so far as existing authority is concerned, in the
passages cited by my noble and learned friend, Lord Bridge of Harwich. The view
there expressed is that the court, in order to protect its own process from
being degraded and misused, must have the power to stay proceedings which have
come before it and have only been made possible by acts which offend the
court’s conscience as being contrary to the rule of law. Those acts by
providing a morally unacceptable foundation for the exercise of jurisdiction
over the suspect taint the proposed trial and, if tolerated, will mean that the
court’s process has been abused. Therefore, although the power of the
court is rightly confined to its inherent power to protect itself against the
abuse of its own process, I respectfully cannot agree that the facts relied on
in cases such as the present case (as alleged) “have nothing to do
with that process” just because they are not part of the process. They
are the indispensable foundation for the holding of the trial. The implications for international law, as represented by
extradition treaties, are significant. If a suspect is extradited from a
foreign country to this country he cannot be tried for an offence which is
different from that specified in the warrant and, subject always to the
treaty’s express provisions, cannot be tried for a political offence.
But, if he is kidnapped in the foreign country and brought here, he may be
charged with any offence, including a political offence. If British officialdom
at any level has participated in or encouraged the kidnapping, it seems to
represent a grave contravention of international law, the comity of nations and
the rule of law generally if our courts allow themselves to be used by the
executive to try an offence which the courts would not be dealing with if the
rule of law had prevailed. It may be said that a guilty accused finding himself in the
circumstances predicated is not deserving of much sympathy, but the principle
involved goes beyond the scope of such a pragmatic observation and even beyond
the rights of those victims who are or may be innocent. It affects the proper
administration of justice according to the rule of law and with respect to
international law. For a comparison of public and private interests in the
criminal arena I refer to an observation of Lord Reading C.J. in a different
context in Rex v. Lee Kun [1916] 1 K.B. 337, 341: “the trial of a person for a
criminal offence is not a contest of private interests in which the rights of
parties can be waived at pleasure. The prosecution of criminals and the
administration of the criminal law are matters which concern the
state.” [*77] If proceedings are stayed when
wrongful conduct is proved, the result will not only be a sign of judicial disapproval
but will discourage similar conduct in future and thus will tend to maintain
the purity of the stream of justice. No “floodgates” argument
applies because the executive can stop the flood at source by refraining from
impropriety. I regard it as essential to the rule of law that the court should
not have to make available its process and thereby endorse (on what I am
confident will be a very few occasions) unworthy conduct when it is proved
against the executive or its agents, however humble in rank. And, remembering
that it is not jurisdiction which is in issue but the exercise of a discretion
to stay proceedings, while speaking of “unworthy conduct,” I
would not expect a court to stay the proceedings of every trial which has been
preceded by a venial irregularity. If it be objected that my preferred solution
replaces certainty by uncertainty, the latter quality is inseparable from
judicial discretion. And, if the principles are clear and, as I trust, the
cases few, the prospect is not really daunting. Nor do I consider that your
Lordships ought to be deterred from deciding in favour of discretion by the
difficulty, which may sometimes arise, of proving the necessary facts. I would now pose and try to answer three questions. (1) What is the position if without intervention by the British
authorities a “wanted man” is wrongfully transported from a
foreign country to this jurisdiction? The court here is not concerned with irregularities abroad in
which our executive (at any level) was not involved and the question of staying
criminal proceedings, as proposed in a case like the present, does not arise.
It seems to me, however, that in practice the transporting of a wanted man to
the United Kingdom from elsewhere (by whatever method) will nearly always take
place in consequence of a request by the executive here. (2) Why should the court not stay for abuse of process if the
accused has been wrongfully arrested in the United Kingdom (which is not
alleged to have happened in the instant case)? A person wrongfully arrested here can seek release by applying for
a writ of habeas corpus but, once released, can be lawfully arrested, charged
and brought to trial. His earlier wrongful arrest is not essentially connected
with his proposed trial and the proceedings against him will not be stayed as
an abuse of process. (3) If at common law the rule in Reg. v. Sang applies to
let in admissible evidence obtained by wrongful conduct on the part of the
executive, why does similar reasoning not prevail where the presence of the
accused has been procured by wrongful conduct in which the executive is
involved? Reg. v. Sang exemplifies a common law rule of
evidence, as explained by the speeches in that case, which applied to all
admissible evidence except confessions and certain evidence produced by
confessions (as to which see Lam Chi-ming v. The Queen [1991] 2 A.C.
212). The abuse of process which brings into play the discretion to stay
proceedings arises from wrongful conduct by the executive in an international
context. Secondly, although there is no discretion at common law to exclude
[*78] evidence (except confession evidence) by reason of wrongful
conduct, there is discretion to stay proceedings as an abuse of process (see Connelly
v. Director of Public Prosecutions [1964] A.C. 1254) and the alleged
facts of the instant case are but one example of the need for that discretion. It has been suggested that, since the executive conduct complained
of invades the rights of other countries and of persons under their protection
and detracts from international comity, the remedy lies not with the courts but
in the field of diplomacy. I would answer that the court must jealously protect
its own process from misuse by the executive and that this necessity gives
particular point to the observation of Lord Devlin (which my noble and learned
friend, Lord Griffiths, has already noted) in Connelly v. Director of Public
Prosecutions, at p. 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.” I now turn to the question of procedure. The appellant, having
been committed for trial, applied for an order of certiorari to quash the order
for committal on the ground that the magistrates refused to adjourn the
committal proceedings “to enable the point of abuse of process to be
argued,” presumably in the Divisional Court of the Queen’s
Bench Division. Although I feel obliged to consider the procedure which was
followed in this case and that which must follow from the conclusion of the
majority of your Lordships, I preface my remarks by saying that I agree with
the answer to the certified question, and also with the order, which my noble
and learned friend, Lord Griffiths, has proposed. In Ex parte Mackeson, 75 Cr.App.R. 24 the applicant
applied to the Divisional Court before the day fixed for the committal
proceedings for an order of certiorari quashing the charges against him and an order
prohibiting the magistrates from proceeding with the committal proceedings. The
Divisional Court, having held that there was jurisdiction to stay the
proceedings as an abuse of process, granted prohibition. In Reg. v.
Guildford Magistrates’ Court, Ex parte Healy [1983] 1
W.L.R. 108, another case of alleged “disguised extradition,”
the single lay justice hearing the committal proceedings was invited to decide
the abuse of process point and to stay the proceedings. After a five day hearing
she decided the point against the accused, who then applied for an order of
certiorari. I have difficulty in seeing how the magistrate’s decision
on a question of fact could have been attacked by certiorari but in any event
the Divisional Court rejected the application on the merits. So the committal
stood. In his judgment my noble and learned friend, then Griffiths L.J., said,
at p. 112: “This court considers that it was wrong to invite a
single lay justice to consider a matter such as this. Whether or not there has
been an abuse of process of the sort raised in these proceedings is a matter
far more fitting to be inquired into by the Queen’s Bench Divisional
Court than by a single justice. If a point such as this is to be taken in future
it should be taken in the form in which it was in Reg. v. Bow Street
Magistrates, Ex parte Mackeson, 75 Cr.App.R. 24; that [*79] is,
there should be an objection to the justice hearing the committal and the
matter should be pursued before the Divisional Court by way of an application
for judicial review seeking an order of prohibition. That is not to say that we
have any criticism whatsoever of the way in which the justice approached her
task in this case. Both the defence and the prosecution asked her to decide the
question; she clearly went into it with the greatest care and we are quite
unable to find any fault or criticism with any of the conclusions of fact at
which she arrived. In the opinion of this court, having been asked to undertake
a task which we do not think was appropriate for a single lay justice, she
discharged her duties quite admirably.” And, at p. 113: “Accordingly, I have come to
the conclusion that there is no merit or substance in this application and it
will be refused. As I say, if this question is to be raised in further cases
the proper procedure is to use that in Reg. v. Bow Street Magistrates, Ex
parte Mackeson, 75 Cr.App.R. 24, so that the Divisional Court may be seised of
the matter, and not bring it up before a lay justice on committal proceedings.
However, we anticipate that cases of this nature are likely to be very
rare.” McCullough J., concurring, said, at pp. 113-114: “Whether this was an
application properly made to the justice or whether it was one that should
properly have been made in the first place to the Divisional Court, I am in no
doubt that no order of certiorari should go. Despite the admirable way in which
this justice dealt with the matter, I share the concern of Griffiths L.J. that
a single lay justice should be asked to grapple with questions of this kind. It
is better I think that the question should be dealt with as in Reg. v. Bow
Street Magistrates, Ex parte Mackeson, 75 Cr.App.R. 24 even although such a
course may leave one wondering precisely how a justice in such circumstances
can be said to have acted in excess of jurisdiction or made an error of
law.” In Ex parte Driver [1986] Q.B. 95 the applicant sought
prohibition in accordance with the Mackeson procedure, as recommended in Healy,
but the order sought was refused on the ground that there was no jurisdiction
to stay for the reasons relied on. The Driver doctrine therefore held sway when the present
case came before the magistrates with a view to committal. Accordingly, it is
understandable that the magistrates rejected the request of the accused to
adjourn while he made a Mackeson application and instead proceeded to
commit him for trial. My Lords, I am satisfied that, on the facts found in Mackeson, 75 Cr.App.R.
24, it was both lawful and appropriate to make an order of prohibition directed
to the magistrates’ court. While that court had jurisdiction to
entertain committal proceedings, the High Court decided that to permit the
criminal proceedings against the accused to continue would be an abuse of
process of the court (of trial); it would therefore [*80] be
equally an abuse of process to permit proceedings in the magistrates’
court to be conducted (or, once embarked on, continued) with a view to
committing the accused to the Crown Court for trial, which would be oppressive
to the accused and a waste of the court’s time. A parallel is found in
the order made in Reg. v. Telford Justices, Ex parte Badhan [1991] 2 Q.B.
78, where the Divisional Court prohibited the magistrates from further hearing
committal proceedings on the ground that, by reason of the prejudice caused by
delay, to proceed against the accused would amount to an abuse of process. In
my view the fact that the decision and order are made by the High Court,
although the Crown Court is the proposed court of trial, makes no difference.
It is the function of the High Court to exercise supervisory jurisdiction over
inferior courts, including the magistrates’ court. It is, moreover,
noteworthy that the function of directing or giving consent to preferment of a
“voluntary” bill of indictment can only be performed by a
High Court judge in England and Wales (or by the direction of the Criminal
Division of the Court of Appeal): see Administration of Justice (Miscellaneous
Provisions) Act 1933, section 2(2), which has continued in force unamended
since the transfer of criminal jurisdiction on indictment to the Crown Court in
1971. What I have said is not of course intended to detract from the
power of the court of trial itself, as the primary forum, to stay proceedings
as an abuse of process, but the convenience of staying the proceedings at an
earlier stage is obvious, when that can properly be done. Short of allowing the proceedings to reach the Crown Court, the
merit of having the case considered by the High Court in preference to the
examining magistrate or magistrates is clear. In any event, notwithstanding
dicta to the contrary, I would, on the authority of Grassby v. The Queen (1989) 168
C.L.R. 1, a decision of the High Court of Australia, and of cases there cited
(to which I shall presently refer), not be easily persuaded that examining
magistrates have jurisdiction to stay committal proceedings for abuse of
process. (I say nothing about the power of magistrates when sitting to try a
case as a court of summary jurisdiction, as in Mills v. Cooper [1967] 2 Q.B.
459.) My Lords, as I have said, the remedy sought is an order of
certiorari. I prefer to consider that remedy according to the conventional,
perhaps now old-fashioned, principles enunciated in Rex (Martin) v. Mahony [1910] 2 I.R.
695, Rex v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128 and Rex v.
Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 K.B.
338, without seeking to justify the making of an order in this case by
reference to more recent views, including views based on dicta uttered in this
House. As I see it, the magistrates here, understandably but erroneously
relying on Ex parte Driver [1986] Q.B. 95, acted prematurely and
therefore without jurisdiction when they proceeded to hear and determine the
committal proceedings without first allowing the appellant to make to the
Divisional Court an application which (subject to Ex parte Driver) was on its
face at least worthy of consideration. Having, however innocently, neglected an
essential preliminary step (namely the adjournment decreed by Ex parte Healy [1983] 1
W.L.R. 108), the magistrates incurred the liability to have their [*81] order
of committal quashed. For an example of proceedings in which a condition
precedent to jurisdiction was omitted I refer to In re McC. (A Minor) [1985] A.C.
528. I would be in favour of remitting the case to the Divisional Court to
reconsider it in the light of your Lordships’ opinions, since one
alternative would be to refuse an order of certiorari because an application to
stay the proceedings can perfectly well be made to the court of trial, and the
decision (relating to trial on indictment) would not, it seems, be reviewable: In
re Ashton [1993] 2 W.L.R. 846. The other, and perhaps more convenient,
course would be for the Divisional Court now to hear the application for a
stay. If that were decided in favour of the appellant, the court could make an
order of certiorari and such other order, if any, as might be needed to prevent
the proceedings in the magistrates’ court from going ahead. It seems
to me that, by analogy with proceedings which are terminated by reason of
irregular extradition procedures, the appellant, if he succeeds, would have to
be given an opportunity to “escape” but, subject to that, I
can see nothing to prevent him from being properly pursued in the future, for
example by ad hoc extradition under section 15. Since the resolution of the point is not essential to your
Lordships’ decision of the appeal, I shall be brief in my discussion
of whether the examining magistrates can stay committal proceedings as an abuse
of process. In Grassby v. The Queen, 168 C.L.R. 1, the accused was
charged with criminal defamation and the examining magistrate stayed the
committal proceedings on the ground of abuse of process. The Crown appealed to
the Court of Criminal Appeal of New South Wales, which set aside the stay. The
accused sought special leave to appeal from that decision. The High Court
granted special leave but dismissed the appeal (which involved another point,
namely the refusal of a member of the Court of Criminal Appeal to disqualify
himself). Dawson J. delivered the leading judgment, holding that a committing
magistrate has no power to stay the proceedings as an abuse of process. All the
other members of the court, presided over by Mason C.J., agreed except Deane J.
who considered that, if the magistrate concluded (in the words of the Act) that
“a jury would not be likely to convict” because the trial
court was likely to stay the proceedings for abuse of process, he should then
discharge the accused. The judge, however, agreed in the result on the facts
and his dissent was based only on his interpretation of section 41(6) of the
Justices Act 1902. Dawson J. said, at p. 10, that the magistrate’s power to
stay for abuse of process “has been denied upon the highest authority
in the United Kingdom.” He referred to Connelly v. Director of
Public Prosecutions [1964] A.C. 1254 and continued: “See also Mills v. Cooper [1967] 2 Q.B.
459, 467, per Lord Parker C.J. Whether such comments were correct in relation
to inferior courts exercising ordinary judicial functions has been doubted (see
Reg. v. Humphrys [1977] A.C. 1, 26 per Viscount Dilhorne, [1977] A.C. 1, 45-46,
per Lord Salmon; to the contrary Reg. v. West London Stipendiary Magistrate;
Ex parte Anderson (1984) 80 Cr.App.R. 143, 149), but it is clear that they do not extend
to a [*82] magistrate hearing committal proceedings. In Atkinson v.
Government of the United States of America [1971] A.C. 197, 231-232 Lord
Reid (with whom Lords MacDermott and Guest agreed) said: ‘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. The appellant argues that this was
established, if it had been in doubt, by the decision of this House in Connelly
v. Director of Public Prosecutions . . . Whatever may be the proper
interpretation of the speeches in Connelly’s case . . . with regard to
the extent of the power of a trial judge to stop a case, I cannot regard this
case as any authority for the proposition that magistrates have power to refuse
to commit an accused for trial on the ground that it would be unjust or
oppressive to require him to be tried. And that proposition has no support in
practice or in principle. In my view once a magistrate decides that there is
sufficient evidence to justify committal he must commit the accused for
trial.’” In Reg. v. Governor of Pentonville Prison, Ex parte Sinclair [1991] 2 A.C.
64, another extradition case, Lord Ackner in his illuminating speech pointed
out, at p. 78e, that Lord Reid’s view of the magistrate’s
power to refuse to commit for trial by reason of abuse of process was obiter.
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. Dawson J. observed that it has been consistently held that
committal proceedings do not constitute a judicial inquiry but are conducted in
the exercise of a judicial or ministerial function. Citing seven Australian
cases, he continued, 168 C.L.R. 1, 11: “The explanation is largely to be found in history. A
magistrate in conducting committal proceedings is exercising the powers of a
justice of the peace. Justices originally acted, in the absence of an organised
police force, in the apprehension and arrest of suspected offenders. Following
the Statutes of Philip and Mary of 1554 and 1555 (1 & 2 Philip & Mary
c. 13; 2 & 3 Philip & Mary c. 10), they were required to act upon
information and to examine both the accused and the witnesses against him. The
inquiry was conducted in secret and one of its main purposes was to obtain
evidence to present to a grand jury. The role of the justices was thus
inquisitorial and of a purely administrative nature. It was the grand jury, not
the justices, who determined whether the accused should stand trial. With the
establishment of an organised police force in England in 1829, the role of the
justices underwent change. The most significant factor in this change was in
the Indictable Offences Act 1848 (U.K.) (11 & 12 Vict. c. 42),
‘Sir John Jervis’s Act,’ which provided for
witnesses appearing before the justices to be examined in the [*83]
presence of the accused and to be cross-examined by the accused or his
counsel.” After an interesting and valuable historical review the judge
said, at pp. 15-16: “The fact that a magistrate
sits as a court and is under a duty to act fairly does not, however, carry with
it any inherent power. Indeed, in my view, the nature of a magistrate’s
court is such that it has no powers which might properly be described as
inherent even when it is exercising judicial functions. A fortiori that must be
the case when its functions are of an administrative character. In Reg. v.
Forbes; Ex parte Bevan (1972) 127 C.L.R. 1, 7, Menzies J. pointed out
that: ‘“Inherent jurisdiction” is the power which a
court has simply because it is a court of a particular description. Thus the
Courts of Common Law without the aid of any authorising provision had inherent
jurisdiction to prevent abuse of their process and to punish for contempt.
Inherent jurisdiction is not something derived by implication from statutory
provisions conferring particular jurisdiction; if such a provision is to be
considered as conferring more than is actually expressed that further
jurisdiction is conferred by implication according to accepted standards of
statutory construction and it would be inaccurate to describe it as
“inherent jurisdiction,” which, as the name indicates,
requires no authorizing provision. Courts of unlimited jurisdiction have
“inherent jurisdiction”.’” Then, having emphasised the distinction between inherent
jurisdiction and jurisdiction by implication, Dawson J. observed, at pp. 17-18: “The fact that in the conduct
of committal proceedings a magistrate is performing a ministerial or
administrative function is, of course, no bar to the existence of implied
powers, if such are necessary for the effective exercise of the powers which
are expressly conferred upon him. The latter are now to be found in section 41
of the Justices Act. But the scheme of that section, far from requiring the
implication of a general power to stay proceedings, is such as to impose an
obligation upon the magistrate to dispose of the information which brings the
defendant before him by discharging the defendant as to it or by committing him
for trial.” Having referred to section 41 of the Justices Act 1902, the judge
then said, at p. 18: “There is no room in the face of these statutory
obligations, couched as they are in mandatory terms, for the implication of a
discretionary power to terminate the proceedings in a manner other than that
provided. Nor is this surprising. True it is that a person committed for trial
is exposed to trial in a way in which he would otherwise not be, but the
ultimate determination whether he does in fact stand trial does not rest with
the magistrate. The power to order a stay where there is an abuse of the
process of the trial court is not to be found in the committing magistrate and
the considerations which [*84] would guide the exercise of
that power have little relevance to the function which the magistrate is
required to perform.” It would, of course, be convenient (as well as correct, in my
view) if the examining magistrates could not stay for abuse of process, because
judicial review of a decision to stay would be a most inadequate remedy if the
real ground of review was simply that the magistrates had erred in their
exercise of discretion. Moreover, their decision would not bind the court of
trial, if the Attorney-General were to prefer a voluntary bill. For the reasons already mentioned and also for the reasons given
by my noble and learned friends I would allow the appeal. LORD SLYNN OF HADLEY. My Lords, I have had the
advantage of reading in draft the speeches prepared by my noble and learned
friends, Lord Griffiths, Lord Bridge of Harwich and Lord Oliver of Aylmerton.
Despite the powerful reasons adverted to by Lord Oliver of Aylmerton I agree
with Lord Griffiths that the question should be answered in the way he
proposes. It does not seem to me to be right in principle that, when a person
is brought within the jurisdiction in the way alleged in this case (which for
present purposes must be assumed to be true) and charged, that the court should
not be competent to investigate the illegality alleged, and if satisfied as to
the illegality to refuse to proceed to trial. I would accordingly allow the
appeal. Appeal allowed. Legal aid taxation. |