Law Report: Abuse of process challenge against extradition is limited: Re Schmidt; House of Lords (Lord Templeman, Lord Ackner, Lord Jauncey of Tullichettle, Lord Slynn of Hadley and Lord Lloyd of Berwick), 30 June 1994.

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In extradition proceedings under the Extradition Act 1989, the High Court's power to intervene in the committal of a fugitive for extradition is limited to the circumstances specified in the Act, and the High Court has no inherent common law supervisory power to consider whether the extradition proceedings might be an abuse of the process of court.

The House of Lords unanimously dismissed an appeal by Norbert Schmidt from the Queen's Bench Divisional Court's dismissal of his application for habeas corpus.

Mr Schmidt, a German, was accused by the prosecution authorities in Mannheim of supplying and possessing cannabis. In 1991, when he was in Ireland, the German authorities started the procedure for his extradition from Ireland, but the extradition warrant was not in order. In 1992, a Metropolitan Police officer, using the ruse that he was investigating a cheque fraud and was anxious to exclude Mr Schmidt from his inquiries, persuaded him to meet in London and arrested him.

Mr Schmidt was committed to custody to await the Home Secretary's decision as to his return to Germany.

Mr Schmidt applied for a writ of habeas corpus on the basis that the ruse adopted was an abuse of power and process which vitiated the whole extradition proceedings. It was argued that the High Court had an inherent and supervisory power to correct an abuse of process, unlimited by section 11(3) of the Extradition Act 1989, which gives the court power to order a fugitive's release in specified circumstances (trivial nature of offence, passage of time since the offence, and accusation not made in good faith).

Alan Newman QC, and James Lewis (Reynolds Dawson) for Mr Schmidt; R Alun Jones QC, and Clare Montgomery (CPS, HQ) for the governor of Brixton prison and German government.

LORD JAUNCEY said that in the light of the decisions of the House of Lords in Atkinson v USA government (1971) AC 197 and Regina v Pentonville Prison, Ex p Sinclair (1991) 2 AC 64, it might be thought that it was beyond argument that the High Court had only such discretion as was conferred by section 11(3).

However Mr Newman relied on, inter alia, Regina v Horseferry Justices, Ex p Bennett (1994) AC 42, where the South African and English police colluded to effect the appellant's forcible return from South Africa to England and the House of Lords held that the High Court had power, on judicial review of the justices' decision to commit him for trial in England, to consider deliberate abuse of extradition procedure.

Bennett had no application as contended in the present appeal. The issue in Bennett was whether the English courts should decline to try the accused by staying the prosecution. That the power to intervene, which was held to exist in the High Court, was related only to a trial was abundantly clear. The decisions in Sinclair and Atkinson were recognised to apply to the different procedures in extradition.

The position in relation to a pending trial in England was wholly different to that in relation to pending proceedings for extradition from England. In the former case the High Court, in its supervisory jurisdiction, was the only bulwark against any abuse of process resulting in injustice or oppression which might have resulted in the accused being brought to trial in England.

In the latter case, not only had the Home Secretary power under section 12 to refuse to surrender the accused, but the courts of the requesting authority were likly to have powers similar to those held to exist in Bennett. An accused fugitive was thus likely to have not one but two safeguards against injustice and oppression before being brought to trial in the requesting state.

The position now was that in extradition proceedings under the 1989 Act the High Court had power to intervene only in the circumstances predicated by the Act, and had no inherent common law supervisory power as contended.

Even if the High Court did have power to intervene, the circumstances here were not of such a nature as would, within the reasoning of Bennett, entitle it to intervene. There was no question of forceable abduction as in Bennett. The officer's conduct here was not so grave or serious as would have warranted the intervention of the High Court had it possessed such a power.

The appeal would be dismissed.

Ying Hui Tan, Barrister