Law Report: Abuse of extradition is reviewable: Regina v Horseferry Road Magistrates' Court, Ex parte Bennett - House of Lords (Lord Griffiths, Lord Bridge of Harwich, Lord Oliver of Aylmerton, Lord Lowry and Lord Slynn of Hadley), 24 June 1993

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The Divisional Court has jurisdiction to inquire into whether an accused has been brought within the jurisdiction in disregard of extradition procedures, and, if satisfied that there has been an abuse of extradition procedures, may stay the prosecution and order the release of the accused.

The House of Lords (Lord Oliver dissenting) allowed an appeal by the applicant from the Divisional Court's decision that it had no jurisdiction to inquire into the circumstances by which a defendant was brought within the jurisdiction.

The applicant, a New Zealand citizen wanted for criminal offences in this country in 1989, alleged that the English police and Crown Prosecution Service, having traced him to South Africa and having decided not to request his return through extradition, colluded with the South African police to have him forcibly returned to this country.

At committal proceedings the stipendiary magistrate refused an adjournment to permit a challenge to the magistrates' court's jurisdiction. On the applicant's application for judicial review of the magistrate's decision, the Divisional Court ruled that it had no jurisdiction to inquire into the circumstances by which the applicant had come to be within the court's jurisdiction.

Alan Newman QC and Brian Jubb (Hallinan Blackburn Gittings & Nott) for the applicant; Colin Nicholls QC and Robert Fischel (Crown Prosecution Service) for the Crown.

LORD GRIFFITHS said that there was no suggestion that the applicant could not 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 was to have power to interfere with the prosecution it must be because the judiciary accepted a responsibility for the maintenance of the rule of law that embraced a willingness to oversee executive action and to refuse to countenance behaviour that threatened either basic human rights or the rule of law.

There was no doubt that the judiciary should accept that responsibility in the field of criminal law.

Extradition procedures were designed not only to ensure that criminals were returned but also to protect the rights of those accused of crimes by the requesting country.

Where process of law was available to return an accused to this country through extradition procedures, our courts would refuse to try him if he had been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our police, prosecuting or other executive authorities had been a knowing party.

If extradition was not available, very different considerations would arise on which no opinion was expressed.

The power of the magistrates, whether sitting as committing justices or exercising their summary jurisdiction, to exercise control over their powers through an abuse of process jurisdiction was affirmed. That power should be confined to matters directly affecting the fairness of the trial, such as delay or unfair manipulation of court procedures.

If a serious question arose as to the deliberate abuse of extradition procedures, a magistrate should allow an adjournment so that an application could be made to the Divisional Court which was the proper forum in which such a decision should be taken.

The High Court in its supervisory jurisdiction had power to inquire into the circumstances by which a person had been brought within the jurisdiction and if satisfied that it was in disregard of extradition procedures it might stay the prosecution and order the release of the accused.

LORD BRIDGE, concurring, said that there was no principle more basic to any proper system of law than the maintenance of the rule of law itself. To hold that the court might turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction was an insular and unacceptable view.

Having then taken cognisance of the lawlessness it would be a wholly inadequate response for the court to hold that the only remedy lay in civil proceedings at the suit of the defendant or in disciplinary or criminal proceedings against the officers who were concerned in the illegal action.

If the authorities, instead of proceedings by way of extradition, had resorted to abduction, that was the effective commencement of the prosecution process and was the illegal foundation on which it rested. It was apt to describe those circumstances as a 'degradation' of the court's criminal process.

LORD OLIVER, dissenting, said that a criminal court should not be concerned to entertain questions as to the propriety of anterior executive acts of the law enforcement agencies which had no bearing on the fairness or propriety of the trial process or the ability of the accused to defend himself against charges properly brought against him.

LORD LOWRY concurred with Lord Griffiths. LORD SLYNN agreed.

Ying Hui Tan, Barrister