Law Report: Extradition despite pending court proceedings: Regina v Governor of Brixton Prison and another, Ex parte Osman - Queen's Bench Divisional Court (Lord Justice Kennedy and Mr Justice Waterhouse), 20 November 1992

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The Secretary of State for the Home department was not precluded, under section 11(2)(b) of the Extradition Act 1989, from proceeding with arrangements for a person's extradition, pending an outstanding habeas corpus application by them, if he was satisfied that the application did not comply with section 14(2) of the Administration of Justice Act 1960.

The Queen's Bench Divisional Court dismissed Lorrain Esme Osman's ninth application for a writ of habeas corpus, directed to the governor of Brixton Prison, and his application for judicial review of a decision by the Home Secretary, on 2 November 1992, to take immediate steps to convey him into the jurisdiction of the Hong Kong government, notwithstanding the existence of outstanding habeas corpus proceedings.

Mr Osman, a native of Malaysia who has since become a British citizen, was wanted in Hong Kong on a large number of charges of corruption, fraud and false accounting in connection with his chairmanship of Bumiputra Malaysia Finance Ltd, a Hong Kong subsidiary of a Malaysian company, Bank Bumiputra Malaysia Berhad.

A warrant was issued for his arrest in London in 1985, since when he has been held on remand at Brixton Prison, his extradition having been postponed pending a variety of legal proceedings, including 10 habeas corpus applications. Following the present judgment, however, Mr Osman was finally extradited to Hong Kong on 15 December 1992.

Michael Mansfield QC and Patrick O'Connor (Eversheds) for Osman; Clive Nicholls QC and Graham Campbell Grant of the Hong Kong Bar (Clifford Chance) for the Hong Kong Government; Stephen Richards (Treasury Solicitor) for the Home Secretary; Clare Montgomery (CPS) for the prison governor.

LORD JUSTICE KENNEDY, giving the reserved judgment of the court, said that under section 11(2) of the Extradition Act 1989, 'A person committed,' as Mr Osman was on 1 June 1987, 'shall not be returned . . . (b) if an application for habeas corpus is made in his case, so long as proceedings on that application are pending.'

However, under section 14(2) of the Administration of Justice Act 1960, 'where a criminal or civil application for habeas corpus has been made by or in respect of any person, no such application shall again be made by or in respect of that person on the same grounds . . . unless fresh evidence is adduced in support of the application'. The present habeas corpus application was made on the grounds that two statements by the key prosecution witness, Ibrahim Jaafar, who had been Bumiputra's general manager, were allegedly not disclosed to the defence, and that such non-disclosure was indicative of bad faith by the prosecuting authorities.

Since Mr Osman had relied on the same ground in a previous habeas corpus application, this application could not succeed unless fresh evidence was adduced in support of it.

Mr Osman contended that Mr Jaafar's two statements did amount to new evidence, even though he had seen them both before making his eighth habeas corpus application, during which proceedings the point had not been taken.

But this was not evidence which the applicant could not have put forward on a previous application, or which he could not then reasonably be expected to have put forward. Accordingly, it was not fresh evidence for the purposes of section 14(2) of the 1960 Act.

That was sufficient to dispose of the case. The application for judicial review of the Home Secretary's decision became academic, because the circumstances which might have rendered the proposed action illegal, namely that a habeas corpus application was made, did not exist.

It was nevertheless argued that once a person in Mr Osman's position started legal proceedings on a second or subsequent occasion with the object of obtaining a writ of habeas corpus, then the provisions of section 11(2)(b) came into operation to prevent the Home Secretary returning him to the requesting state, because the court then had to decide if there had been compliance with section 14(2) of the 1960 Act. Otherwise the unsatisfactory situation might arise, as in M v Home Office (the Independent, 3 December 1991; (1992) 2 WLR 73) of the court finding, after action had already been taken which jeopardised liberty, that the Home Secretary had acted illegally.

But in M's case, the Court of Appeal criticised the executive for acting after an order had been made by the court; and in R v Home Secretary, ex p Muboyayi (the Independent, 18 July 1991; (1991) 3 WLR 442) the court was considering how to protect the position of a would-be immigrant, pending consideration of his judicial review application, so those two decisions were not really in point.

Here, their Lordships could not accept that the commencement of legal proceedings, whether by notice of motion or by affidavit, had any inhibiting effect upon the Home Secretary. If he was satisfied that the requirements of section 14(2) had not been complied with, because the same grounds were patently being relied upon and no fresh evidence was adduced, then he could proceed with his arrangements for the return of the person committed to the requesting state.

Of course, if there was any room for argument as to whether section 14(2) had been complied with, no doubt the Home Secretary would consider it prudent to await the decision of the court, and if the applicant feared he would not do so, he could always apply to the court for the sort of interim relief envisaged in Muboyayi.

Paul Magrath, Barrister