➥ CASE SUMMARY OF:
Regina v. Horseferry Road Magistrates Court (Respondents) ex parte Bennett (A.P.) (1993) – HL
by “PipAr” B.C. Chima
➥ COURT:
House of Lords
➥ JUDGEMENT DELIVERED ON:
24 June 1993
➥ AREA(S) OF LAW
Illegal Extradition.
➥ NOTABLE DICTA
⦿ COURT SHOULD REFUSE TO ACT ON PROCEEDINGS WHICH AT THE BACKGROUND HAS ILLEGALITY
My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law. The great growth of administrativelaw 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 ifit comes to the attention of the court that there has been a serious abuse ofpower it should, in my view, express its disapproval by refusing to act upon it. — Lord Griffiths.
⦿ THE COURT SHOULD DISCOUNTENANCE ILLEGAL EXTRADITION PROCEEDING
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 thatfor which he was extradited. If a practice developed in which the police or prosecuting authorities of this country ignored extradition procedures andsecured 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 forhis benefit. It is to my mind unthinkable that in such circumstances the court should declare itself to be powerless and stand idly by. — Lord Griffiths.
⦿ ILLEGAL EXTRADITION MAKES THE SUBSEQUENT CRIMINAL PROCEEDING TAINTED
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 theterritorial 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 thecourt 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 awholly 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 proceedings against the individual officers of the law enforcement agency whowere concerned in the illegal action taken. Since the prosecution could never have been brought if the defendant had not been illegally abducted, the wholeproceeding is tainted. If a resident in another country is properly extradited. — Lord Bridge of Harwich.
⦿ COMMON LAW: OFFENCE FOR A PERSON TO BE EXTRADITED IS THE SAME OFFENCE HE SHOULD BE TRIED ON
The implications for international law, as represented by extradition treaties, are significant. If a suspect is extradited from a foreign country tothis 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. — Lord Lowry.
⦿ RATIONALE FOR STAYING CRIMINAL PROCEEDING WHERE EXTRADITION IS ILLEGAL
It may be said that a guilty accused finding himself in thecircumstances 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.” If proceedings are stayed when wrongful conduct is proved, the result will notonly be a sign of judicial disapproval but will discourage similar conduct infuture 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 retraining from impropriety. — Lord Lowry.
➥ LEAD JUDGEMENT DELIVERED BY:
Lord Griffiths
➥ APPEARANCES
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
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.
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 South Africa,who fixed a civil restraint order on the helicopter on behalf of the UK 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 African and then to the United Kingdom and 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 anyway 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.
➥ ISSUE(S) & RESOLUTION
I. Whether a High Court has power to enquire into the circumstances by which a person has been brought within the jurisdiction?
RULING: ANSWERED POSITIVELY.
“I would answer the certified question as follows:- The High Court in the exercise of its supervisory jurisdiction has power to enquire 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.”
“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 courts’ 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 ofits 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.”
.
.
.
✓ DECISION:
“Accordingly, I would allow this appeal and remit the case to the Divisional Court for further consideration.”
➥ MISCELLANEOUS POINTS
***DISSENTING
**Lord Oliver of Aylmerton:
A. “Where, however, there is no suggestion that the charge isother than bona fide or that there is any unfairness in the trial process, theduty 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 beinvited, 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 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 theyare not only unlawful but are criminal as well, they are themselves remediableby 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.”
B. “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 eventany 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.”
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ FOR EXTRADITION, THE LEGAL PROCEDURES MUST BE FOLLOWED STRICTLY – THE END DOES NOT JUSTIFY THE MEANS
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, 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 by discharged.”
➥ REFERENCED (OTHERS)