Law Report: Extradition warrant for prisoner is upheld: Regina v Secretary of State for the Home Department and another, ex parte Osman - Queen's Bench Divisional Court (Lord Justice Woolf and Mr Justice Pill), 30 July 1992

On an application for judicial review of the issue of an extradition warrant, where a flawed decision might imperil the life or liberty of the applicant, the court had a special responsibility requiring it to subject the decision and the decision-making process to the most anxious scrutiny. But this approach, comparable to that adopted by the courts in asylum cases, did not impose on the decision-maker the burden of proving that his decision was justified.

The Queen's Bench Divisional Court refused an application by Lorrain Osman for judicial review of a decision by the Home Secretary, on 15 June 1992, to issue a warrant for Mr Osman's return to Hong Kong, under section 12 of the Extradition Act 1989, to stand trial on charges of fraud. The court also refused Mr Osman's eighth application for a writ of habeas corpus.

Martin Thomas QC and Paddy O'Connor (Eversheds) for Mr Osman; Clive Nicholls QC and Graham Grant (Clifford Chance) for the Hong Kong government; Claire Montgomery (Treasury Solicitor) for the Home Secretary and UK Government.

LORD JUSTICE WOOLF said Mr Osman had been in prison for six and a half years during which he had vigorously contested the extradition proceedings brought against him. He contended that he would not receive a fair trial in Hong Kong, that he would face further delays before trial and a risk, if convicted, of being sentenced to death by the Chinese government after 1997, as his offences would be economic crimes for which the sentence of death was at present imposed on mainland ETHER write errorChina.

The Hong Kong government alleged that Mr Osman, while non - executive director of Bumiputra Malaysia Finance Ltd, had been party to fraud involving many millions of pounds in Hong Kong and Malaysia. Mr Osman denied the allegations and said he was being made a scapegoat.

On 1 June 1987, the Chief Metropolitan Magistrate found there was a case for him to answer and made a committal order. Since then, Mr Osman had made seven unsuccessful applications for habeas corpus.

He now applied for judicial review of the Home Secretary's decision to issue the extradition warrant, contending that the Home Secretary failed to give proper or adequate consideration to the case and that his decision was unlawful and unreasonable.

Although it was possible to draw a distinction between a case such as this and an application for asylum, the court should nonetheless adopt the same approach as that laid down by the House of Lords in Bugdaycay v Home Secretary (1987) 1 AC 514 at 531 and 537 to 538. This placed a 'special responsibility' on the court where a 'flawed decision may imperil life or liberty', requiring the court to subject the decision and decision- making process to 'most anxious scrutiny'. However, to suggest that this had the effect of reversing the normal onus of proof, so that it was for the Home Secretary to justify his decision and not for the application to show that it was flawed, was to overstate the position.

Since the Home Secretary was not required to give a reasoned decision, an applicant could not succeed by saying the onus of proof was on the respondent. None the less, in cases of this nature, the court could expect the respondent to file an affidavit disclosing the basis on which the decision was taken.

In this case, the affidavit filed on the Home Secretary's behalf provided singularly little information. The court regarded this as unsatisfactory and therefore addressed a series of 'interrogatories' to the Home Secretary, designed to elicit sufficient information to enable it to adequately scrutinise his decision.

Having considered all the circumstances, including the Home Secretary's answers to the interrogatories, their Lordships concluded that there were no grounds for reviewing his decision.

Although the Home Secretary had only read the papers between 2pm and 3.50pm on the day he gave his decision, he had previously been informed of the background to the case and had available to him the advice of his officials. It was very important that decisions of this sort should be considered by the Home Secretary personally, and that the courts should appreciate the constraints imposed by his office.

While it would have been preferable if a personal letter from Mr Osman had been available at the time the Home Secretary took his decision, there was no reason to doubt his subsequent statement that the letter would not have altered his decision.

The Home Secretary was also entitled to cancel a visit by a Parliamentary delegation on Mr Osman's behalf, and to decline to make inquiries of the French government as to why they did not order the extradition from France of a co-accused.

The fact that UK sovereignty over Hong Kong expired in 1997 and that Mr Osman's application to the European Commission for Human Rights was pending did not prevent the Home Secretary making an extradition order.

Mr Osman also made a further habeas corpus application. In the light of R v Governor of Pentonville Prison, ex p Tarling (1979) 1 WLR 1417 at 1425, it would not be right to hold that the court had no jurisdiction to hear an application for habeas corpus, based on the grounds in section 11(3) of the 1989 Act, after the Home Secretary had made an extradition order. But it would be very exceptional for the court to intervene at that stage, and although Mr Osman's plight evoked sympathy, he could not show he had been treated unjustly or oppressively. His applications should be dismissed. MR JUSTICE PILL agreed.