JUDGMENT
VB, CU, CM and EN (Appellants)
v
Westminster Magistrates’ Court (Respondent)
and
The Government of Rwanda (Respondent)
and
The Crown Prosecution Service (Respondent)
and
CMK (Interested Party)
before
Lord Neuberger, President
Lord Mance
Lord Reed
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
5 November 2014
Heard on 11 and 12 June 2014
Appellant (VB) Respondents
Alun Jones QC James Lewis QC
Sam Blom
-Cooper Gemma Lindfield
(Instructed by Frank
Brazell & Partners
)
(Instructed by Crown
Prosecution Service
)
Appellant (EN) Intervener (CMK)
Diana Ellis QC Helen Malcolm QC
Joanna Evans Mark Week
e
s
(Instructed by Clifford
Johnston Solicitors
)
(Instructed by Bindmans
LLP)
Appellant (CM)
Tim Moloney QC
James O’Keeffe
(Instructed by O’Keeffe
Solicitors)
Appellant (CU)
Edward Fitzgerald QC
Rachel Kapila
(Instructed by Hallinan
Blackburn Gittings &
Not
t
)
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LORD MANCE (with whom Lord Neuberger and Lord Reed agree)
Introduction
1. The Supreme Court has before it appeals by four individuals, VB, CU,CM
and EN, whose extradition is requested by the respondent, the Government
of Rwanda (“GoR”), so that they may stand trial in Rwanda for crimes
allegedly committed during the civil war which took place between April and
July 1994. Memoranda of Understanding dated 8 March 2013 were made
between the United Kingdom and Rwanda in respect of the four appellants
and a certificate issued by the Secretary of State under section 194 of the
Extradition Act 2003. Consequently, Part 2 (contained in sections 69 et seq)
of the 2003 Act applies to the relevant extradition proceedings.
2. The main issues are whether, in the absence of any relevant statutory power,
it is open to the district judge hearing the extradition proceedings (a) to use a
closed material procedure to receive evidence which the appellants wish to
adduce, or (b) in the alternative in relation to some of such evidence to make
an irrevocable non-disclosure order providing for the disclosure of such
evidence to the Crown Prosecution Service (“CPS”), but prohibiting its
disclosure to the GoR. A subsidiary point is whether in relation to some of
the evidence it would be possible to make an anonymity order, either under
the Coroners and Justice Act 2009, section 87, or otherwise.
3. The GoR has sought previously, in 2007, to obtain the extradition of the
appellants. The district judge was satisfied that there was a prima facie case
of involvement in genocide and crimes against humanity, but in April 2009
the High Court discharged the appellants on the ground that the appellants
faced a real risk of a flagrant denial of justice if returned to Rwanda to stand
trial: VB and others v Government of Rwanda [2009] EWHC 770 (Admin).
4. Since 2009 there have been changes in Rwanda, including the introduction
of facilities for witness protection, video-conferencing and the possibility of
using international judges to try cases of alleged genocide, and in the light of
these changes a number of national and international courts have held that
other persons wanted for trial in Rwanda would receive a fair trial there. The
appellants’ case is that the risks remain, at least in relation to them and some
of the Rwandan-based witnesses whose evidence they wish to adduce; that
they themselves would as a result suffer a flagrant denial of justice, in breach
of article 6 of the Human Rights Convention, or even torture or mistreatment
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in breach of article 3, if extradited to Rwanda; that the evidence to
demonstrate the existence of such risks requires, by the very nature of the
risks, either to be received in closed session or to be disclosed only to the
CPS; and that witness anonymity would, at least in relation to much of such
evidence, offer no solution, since the content of the evidence is such as would
necessarily disclose the identity of the witness giving it. None of this means
that there is not and will not also be other evidence before the district judge,
and some of it has already been called.
The extradition proceedings to date
5. The current extradition proceedings have been proceeding before District
Judge Arbuthnot. The Government of Rwanda’s evidence to establish a prima
facie case has been read, and the District Judge has already heard, in open
court, various witnesses called by the appellants. Among them is Ms Scarlet
Nerad, co-founder of Centre for Capital Assistance and founder of
Community Resource Initiative. She had investigated in Rwanda witnesses
giving evidence for the GoR against CU and attested to meeting one of them,
who had been tortured during the period ending in 2000 and remained too
frightened of being tortured again to give evidence unless its disclosure was
limited to the CPS, and to believing that others were in similar position. The
appellants also called an expert, Professor Filip Reyntjens. Two further
experts are scheduled to give evidence later in the proceedings, Dr Phil Clark
to be called by the Government, who will it appears take issue with points
made by Professor Reyntjens, and Professor Timothy Longman to be called
by the appellants.
6. It is common ground that in relation to issues of extraneous circumstances
(section 81), human rights (section 87) and abuse of process, it is established
practice to allow extensive relaxation of the ordinary rules of evidence in
extradition proceedings. However, the closed material which the appellants
wish to adduce is, they say, factual and specific evidence which would not
otherwise be capable of being adduced.
7. The issues thus arising regarding use of a closed material procedure were
argued before District Judge Arbuthnot. She on 28th January 2014 gave a
judgment in which she held herself bound by authority to hold that it would
be unlawful to sit in private. However, during a case management hearing in
December 2013 from which she excluded the Government of Rwanda’s
representative, those representing VB gave her a file of the proposed
evidence and in January 2014 those representing CU sent her another file, not
for disclosure to the Government. The District Judge recorded in her
judgment (para 5) that she had read both files, and was “for the purpose of
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this argument only prepared to accept they contain important and material
evidence which is relevant to the issues I have to decide”. After concluding
that the applications to rely on the material in a closed hearing must fail, she
also added (para 23):
“I have concerns that there may be a risk of serious prejudice
to the defence in making that decision but in all the
circumstances I do not consider I have any choice. For that
reason with some reluctance I refuse the application.”
That was a comment which she made without the Government of Rwanda
having had the opportunity to make submissions on, or to explore the
accuracy of, the material in question. Unless and until the District Judge
reached a conclusion on the permissibility of a closed material procedure
opposite to that which she in fact reached, the right course would have been
not to see or read the files.
8. In the course of her judgment, District Judge Arbuthnot also considered
whether (if and to the extent that the substance of any of the proposed
evidence could be disclosed) a witness anonymity order could be made under
section 87 of the Coroners and Justice Act 2009. She thought not, in view of
the requirement under section 87(3) that, in the case of an application by a
defendant, the defendant must inform the prosecutor as well as the court of
the identity of the witness.
9. The four appellants challenged the District Judge’s judgment by judicial
review, identifying the Westminster Magistrates’ Court as defendant, the
Government of Rwanda as first interested party and the CPS as second
interested party. By judgment dated 27 March 2014, the Administrative Court
(Moses LJ and Mitting J) granted permission, but dismissed the challenge to
the District Judge’s refusal to admit evidence that was not disclosed to the
Government of Rwanda. The Administrative Court, effectively of its own
motion, raised the question whether section 87 of the Coroners and Justice
2009 applied, and in its judgment expressed the view that it would enable the
appellants to apply for a witness anonymity order in respect of any evidence
the substance of which they were willing to disclose. The Court reached this
conclusion on the basis that, although the appellants were defendants and the
proceedings were criminal proceedings within the meaning of the 2009 Act,
neither the CPS nor the Government of Rwanda was a prosecutor within the
definition in that Act. There was thus no requirement under section 87(3) to
disclose the identity of the relevant witnesses to anyone save the court.
Page 5
10. On appeal to the Supreme Court, the main burden of the appellants’
submissions has been taken by Mr Alun Jones QC for VB and by Mr Edward
Fitzgerald QC for CU. Both endorse each other’s submissions. They submit
that under the previous legislative scheme the Secretary of State had a role
which enabled him to decide whether extradition was appropriate in the light
of material which the requesting state did not see, and that under the 2003
Act the courts must have been intended to inherit a similar role or freedom.
They submit that extradition proceedings are not classic adversarial or
criminal proceedings, but sui generis. They rely upon the established practice
to relax the normal rules of evidence in relation to certain issues capable of
arising in extradition proceedings (para 6 above).
11. These submissions all contribute to the further principal submissions, that the
courts should recognise in respect of extradition proceedings a third
exception to the normal rule identified in Al Rawi, that absent Parliamentary
authority justice should be open as between all the parties to litigation; or
that, alternatively and by analogy with the position in asylum proceedings (cf
W (Algeria) v Secretary of State for the Home Department [2012] UKSC 8,
[2012] 2 AC 115), the courts should recognise the GoR as a special kind of
party and restrict disclosure to the CPS.
12. Mr Fitzgerald supports this last submission with the argument that, if an order
for extradition were to be made on the basis of the open material alone, it
would still be open to those appellants who are not United Kingdom citizens
to apply for asylum, which application could be decided, both by the
Secretary of State and (since there is a statutory scheme in place for use of a
closed material procedure in asylum cases) by the courts, on the basis of both
open and closed material. The resulting anomaly would be compounded by
the possibility that those appellants who are United Kingdom citizens would,
because they could not make an asylum claim, be worse off than those who
were not (although the appellants also submit that their United Kingdom
status might give them corresponding protection by a different route).
The Extradition Act 2003 – analysis
13. The 2003 Act was framed to provide a clear structure for decision-making.
The Secretary of State’s role was carefully delimited and section 70(11) now
provides, by amendment made in 2013, that she “is not to consider whether
the extradition would be compatible with the Convention rights within the
meaning of the Human Rights Act 1998”. Once an extradition request has
been received and certified, and the person sought has been arrested under a
provisional warrant and the appropriate judge has received the relevant
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documents under section 70, the extradition hearing will be fixed to
commence under section 76. At that hearing, according to section 77(1):
“the appropriate judge has the same powers (as nearly as may
be) as a magistrates’ court would have if the proceedings were
the summary trial of an information against the person whose
extradition is requested”.
14. Assuming that the District Judge is satisfied as to certain important
preliminaries, she must then proceed under section 79 to consider whether
any one of five potential bars to extradition applies. They are the rule against
double jeopardy (section 80), extraneous considerations (section 81), the
passage of time (section 82), hostage-taking considerations (section 83) and
(since 14 October 2013) forum (section 83A-E). Section 81 provides:
“A person’s extradition to a category 2 territory is barred by
reason of extraneous considerations if (and only if) it appears
that –
(a) the request for his extradition (though purporting to be made
on account of the extradition offence) is in fact made for the
purpose of prosecuting or punishing him on account of his race,
religion, nationality, gender, sexual orientation or political
opinions, or
(b) if extradited he might be prejudiced at his trial or punished,
detained or restricted in his personal liberty by reason of his
race, religion, nationality, gender, sexual orientation or
political opinions.”
15. Assuming that none of the five bars applies, the judge must proceed under
section 84 which provides:
“(1) If the judge is required to proceed under this section he
must decide whether there is evidence which would be
sufficient to make a case requiring an answer by the person if
the proceedings were the summary trial of an information
against him.
Page 7
(2) In deciding the question in subsection (1) the judge may
treat a statement made by a person in a document as admissible
evidence of a fact if –
(a) the statement is made by the person to a police
officer or another person charged with the duty
of investigating offences or charging offenders,
and
(b) direct oral evidence by the person of the fact
would be admissible
(3) In deciding whether to treat a statement made by a person
in a document as admissible evidence of a fact, the judge must
in particular have regard –
(a) to the nature and source of the document;
(b) to whether or not, having regard to the nature
and source of the document and to any other
circumstances that appear to the judge to be
relevant, it is likely that the document is
authentic;
(c) to the extent to which the statement appears
to supply evidence which would not be readily
available if the statement were not treated as
being admissible evidence of the fact;
(d) to the relevance of the evidence that the
statement appears to supply to any issue likely to
have to be determined by the judge in deciding
the question in subsection (1);
(e) to any risk that the admission or exclusion of
the statement will result in unfairness to the
person whose extradition is sought, having
regard in particular to whether it is likely to be
possible to controvert the statement if the person
Page 8
making it does not attend to give oral evidence in
the proceedings
(4) A summary in a document of a statement made by a person
must be treated as a statement made by the person in the
document for the purposes of subsection (2).”
16. If the judge decides under section 84(1) that sufficient evidence exists, she
must then under section 87:
“decide whether the person’s extradition would be compatible
with the Convention rights within the meaning of the Human
Rights Act 1998”
If she does so decide, she must send the case to the Secretary of State for her
decision whether the person is to be extradited, informing the person of his
right to an appeal to the High Court (which will not however be heard until
after the Secretary of State has made her decision). The Secretary of State’s
role in respect of any case so sent her is closely circumscribed by section 97,
which limits it to considering whether she is prohibited from ordering the
extradition sought by section 94 (death penalty), section 95 (speciality),
section 96 (earlier extradition to the UK from other territory or section 96A
(earlier transfer to the UK by the International Criminal Court). If none of
those sections applies, then (unless the request for extradition has been
withdrawn or the person is discharged in the light of competing extradition
requests or claims or on national security grounds), the Secretary of State
must under section 93(4) order extradition.
17. The specific scheme introduced by the 2003 Act is not consistent with the
appellants’ submission that the court has simply acquired the like powers to
any which the Secretary of State might have exercised prior to the Act. The
scheme involves a tight delineation of the respective roles and powers of the
Secretary of State and the courts, by reference to which the present appeals
must be decided. The extradition process is now substantially judicialised.
But the previous legislation also gave courts a significant substantive role in
relation to the extraneous considerations now covered by section 81of the
2003 Act: see section 6(1) of the Extradition Act 1989; prior to that, it had a
similar role, as regards any request made with a view to trial or punishment
for an offence of a political character: see section 3(1) of the Extradition Act
1870, considered in R v Governor of Brixton Prison, Ex p Schtraks [1964]
AC 556. Outside the express statutory scheme, the court can however
consider whether an extradition request involves an abuse of process by the
Page 9
requesting state: R (Government of the USA) v Bow Street Magistrates’ Court
(“Tollman No. 1”) [2006] EWHC 2256 (Admin), [2007] 1 WLR 1157. None
of these circumstances provides any support for the appellants’ submission
that any wider powers previously possessed by the Secretary of State must
now by implication be exercisable by the courts.
18. The appellants’ submission that extradition proceedings are not conventional
criminal proceedings is correct, up to a point. They do not lead to conviction,
but they are brought to obtain surrender for the purpose of trial abroad. They
are an important aspect of enforcement of the rule of law worldwide. The
jurisdiction of a magistrate in extradition proceedings is derived exclusively
from statute: In re Nielsen [1984] AC 606, p 623D-E, per Lord Diplock. The
2003 Act prescribes that the district judge’s powers are the same “as nearly
as may be” as those possessed by a magistrate on a summary trial and that
the judge’s role is to “decide whether there is evidence that would be
sufficient to make a case requiring an answer by the person if the proceedings
were the summary trial of an information against him”: see sections 77(1)
and 84(1) of the 2003 Act cited in paras 13 and 15 above. The appellants
submit that section 77(1) is not to be read as covering evidential matters; on
their case, it deals only with other matters such as powers over witnesses and
the conduct of proceedings. The powers of a magistrates’ court on a summary
trial and of a District Judge under the 2003 Act are however statutory, and
the natural effect of section 77(1) is to provide for all aspects of their exercise,
including the admission and admissibility of evidence.
19. Both the general correctness of treating extradition proceedings as criminal
proceedings, albeit of a very special kind, and the correctness of
understanding section 77(1) in its natural sense as embracing evidence and
procedure, are confirmed under the parallel provision in the previous
legislation, the Extradition Act 1989, by R v Governor of Brixton Prison, Ex
p Levin [1997] AC 741. In that case, Lord Hoffmann, in a speech with which
all other members of the House concurred, said, at pp 746-747:
“Finally, I think that extradition proceedings are criminal
proceedings. They are of course criminal proceedings of a very
special kind, but criminal proceedings nonetheless.
Both case law and the terms of the Extradition Act 1989 point
to extradition proceedings being categorised as criminal. First,
the cases. In Amand v. Home Secretary and Minister of Defence
of Royal Netherlands Government [1943] A.C. 147 this House
approved the decision of the Court of Appeal in Ex parte Alice
Woodhall (1888) 20 Q.B.D. 832 that the refusal of an
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application for habeas corpus by a person committed to prison
with a view to extradition was a decision in a ‘criminal cause
or matter.’ It would seem to me to follow a fortiori that the
extradition proceedings themselves are criminal proceedings
and in Amand’s case Viscount Simon L.C. said, at p 156, that
the cases demonstrated that ‘the matter in respect of which the
accused is in custody may be “criminal” although he is not
charged with a breach of our own criminal law.’
Secondly, the Extradition Act 1989. Section 9(2) and paragraph
6(1) of Schedule 1 require that extradition proceedings should
be conducted “as nearly as may be” as if they were committal
proceedings before magistrates. Committal proceedings are of
course criminal proceedings and these provisions would make
little sense if the metropolitan magistrate could not apply the
normal rules of criminal evidence and procedure. The
suggestion of counsel in Ex parte Francis that extradition
proceedings were ‘sui generis’ would only make matters worse,
because it would throw doubt upon whether the magistrate
could apply the rules of civil evidence and procedure either.”
20. The appellants submit that contrary indication is to be found in established
case law and the provisions of section 202 of the 2003 Act. Section 202(3)
providing that a document issued in a category 2 territory may be received in
evidence in extradition proceedings if duly authenticated – which by section
202(4) means that it purports to be signed by a judge, magistrate or officer of
the territory, or to be authenticated by the oath or affirmation of a witness.
The purpose of section 202(3) is clearly to permit the use of such documents
as evidence of the matters stated therein, about which oral evidence would
otherwise have to be called. Section 202(5) goes on to provide that this does
not prevent a document which is not duly authenticated from being received
in evidence in proceedings under the Act. On its face, this simply extends the
power to admit a document as evidence of its contents to unauthenticated
documents. But it is unnecessary on these appeals to decide finally that this
is as far as it goes, since it clearly cannot be read as addressing the issues
whether any form of closed material procedure is permissible, now before the
Supreme Court.
21. The parties to this appeal agree that, as a matter of established practice, the
normal rules of evidence are relaxed on issues arising under the heads of
extraneous considerations, human rights and abuse of process in extradition
proceedings. At the root of their agreement on this point is the decision in
Schtraks. There the House of Lords was considering the courts’ role under
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section 3(1) of the Extradition Act 1870, which prohibited surrender if the
person requested
“prove to the satisfaction of … the court before whom he is
brought on habeas corpus, or to the Secretary of State, that the
requisition for his surrender has in fact been made with a view
to try or punish him for an offence of a political character”
The House reasoned that, since the Secretary of State could not have been
intended to be bound by the strict rules of evidence, the court could not have
been intended to be.
22. In Lodhi v The Governor of Brixton Prison [2001] EWHC 178 Admin, para
89, and Hilali v The Central Court of Criminal Proceedings No 5 of the
National Court, Madrid [2006] EWHC 1239 Admin, the Divisional Court
was concerned with an issue of “extraneous circumstances” arising under,
respectively, section 6(1) of the 1989 Act and section 13 of the 2003 Act.
Making express reference to Schtraks v Government of Israel [1964] AC 556,
it said (in paras 89 and 63 respectively) that it was, in this context, “common
ground …. that the court is not restricted to considering ‘evidence’ in the
strict sense” and “long …. established that the Court … is not bound by the
ordinary rules of evidence; the appellant may rely on any material in support
of a submission based on section 13”.
23. The legislation has changed since Schtraks v Government of Israel [1964]
AC 556, but it is unnecessary on this appeal to say anything more about the
established practice on which the parties are agreed. Whatever its admissible
scope, the Supreme Court understands it to be common ground that it does
not extend beyond the areas of extraneous considerations, human rights and
abuse of process; in particular, it does not apply to other issues such as
whether a prima facie case has been shown under section 84(1). Under the
current legislation, the better analysis may be not that the ordinary rules of
evidence are suspended in the areas to which the practice is agreed to apply,
but that a broad approach is taken to the nature and basis of the expert
evidence that is admissible. In any event, any relaxation in the areas of
extraneous considerations, human rights and abuse of process cannot affect
the normal rule that applies to a witness called to give evidence before a court,
viz that his or her evidence must be given and be capable of being tested inter
partes. Any relaxation, on whatever basis, does not therefore help on the
present issue whether the district judge can operate a closed material
procedure without any statutory authority.
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24. Reliance was also placed on a procedure accepted by the Divisional Court in
Tollman No. 1 [2007] 1 WLR 1157 (para 16 above), whereby a judge, before
whom reason was shown to believe that an abuse of process had occurred,
could call upon the requesting authority to provide whatever information or
evidence he or she might require in order to adjudicate upon the issue so
raised. Such information and evidence should normally be made available to
the defendants, because (para 90)
“Equality of arms requires that, in normal circumstances, the
party contesting extradition should be aware of, and thus able
to comment on, the material upon which the court will be
basing its decision”.
25. However, the Divisional Court in Tollman No. 1 indicated that it was not
open to the district judge to order the production of the material. If the
requesting government was unwilling for it to be seen by a defendant, but
prepared to allow the judge to see it, then the judge could evaluate its
significance. If the judge concluded that its disclosure was in fairness
required, the requesting government could be given a further chance to
disclose, failing which disclosure the appropriate course would be to dismiss
the extradition request as an abuse. The Divisional Court would by
implication presumably also have regarded dismissal as appropriate if the
requesting authority refused to allow the material to be seen even by a judge
before whom reason had been shown to believe that an abuse of process had
occurred.
26. Tollman No. 1 is of no real assistance on the issue now before the Supreme
Court. It concerns circumstances where a prima facie case of abuse of process
is shown and the requesting authority cannot rebut that case without
disclosing to the defendant material which it has. In such a case, it may well
be appropriate to put the requesting authority to its election – to disclose such
material or in effect abandon its request. The present appeal concerns
circumstances where a defendant wishes, in support of its case, to rely on
material which he has, without showing such material to the requesting
government. Far from promoting the “equality of arms”, of which the
Divisional Court spoke in Tollman No. 1, the appellants’ case involves
departing significantly from it.
27. At the core of the appellants’ case is the submission that extradition
proceedings are special in a sense which justifies or calls for a further
qualification of the principle of open justice, beyond any recognised in Al
Rawi v Security Service [2011] UKSC 34. In Al Rawi and, more recently, in
R (British Sky Broadcasting Ltd) v Central Criminal Court [2014] UKSC 17,
Page 13
the courts were concerned with the question whether they could, without any
statutory basis, use closed hearing procedures to enable public authorities to
avoid disclosure to individual litigants of allegedly sensitive security
material, including the identity of the witness providing it. This Court
declined any general power to do so, and in Al Rawi at paras 63-65, per Lord
Dyson, identified only two categories of potential exception to the normal
rule: (a) child welfare cases where “the whole object of the proceedings is to
protect and promote the best interests of the child” and (b) intellectual
property cases where full disclosure would undermine the whole object of the
proceedings (to protect intellectual property), so that “confidentiality rings”
are permissible, at least at the interlocutory stage.
28. The appellants point to the underlying rationale of those cases, that “a
departure from the normal rule may be justified by special reasons in the
interests of justice”: para 63, per Lord Dyson. In their submission, a further
departure is justified in the present case by the protective nature of the bars
to extradition which exist in cases of extraneous circumstances, potential
human rights violations and abuse of process; and, if a closed material
procedure is necessary in order to be able to demonstrate the existence of one
or more of these bars, a closed material procedure must be permissible. The
appellants submit that this is reinforced by a “triangulation of interests”
present where public interest considerations militating in favour of
extradition and trial are matched by the need to protect not only the appellants
but also independent witnesses from risks of persecution, human rights
violations and abuse of process. The phrase comes from Lord Woolf’s speech
in R (Roberts) v Parole Board [2005] UKHL45, [2005] 2 AC 738, para 48.
29. A principal difficulty about accepting these submissions is that they assume
what they set out to prove. The appellants already have the benefit of expert
evidence and such factual evidence as they are able to call without a closed
material procedure. Expert evidence customarily includes material of which
there is no direct proof, and it is, as stated, common ground on this appeal
that the strict rules governing the adducing of factual material will not be
applied to the relevant issues. It is inevitably only speculation that any
material which the appellants might adduce in a closed material procedure
would be relevant, truthful or persuasive, and the very nature of a closed
material procedure would mean that this could not be tested. The same
applies to any material which might be ordered to be adduced to the CPS on
the basis that it would not be further disclosed to the GoR. The appellants are
inviting the Court to create a further exception to the principle of open inter
partes justice, without it being possible to say that this would be necessary or
fair.
Page 14
30. The two exceptions identified in Al Rawi differ from the further exception
now advocated. In the first, the paramount object of the proceedings is not
the resolution of an inter partes dispute, but the protection of a third party,
the child. In the second, the object, to protect intellectual property belonging
to one party, would be frustrated if the intellectual property were disclosed.
Even then, in giving this example, Lord Dyson at para 64 made clear that its
focus was on the interlocutory stages of proceedings; the trial could be
expected to proceed on a fully inter partes basis, without use of the
intellectual property as such in evidence.
31. Roberts was explained in this Court in Al Rawi as turning on the existence of
an express statutory power to adopt a closed material procedure: para 55, per
Lord Dyson. But, in any event, there is in the present case no “triangulation
of interests” parallel to that identified by Lord Woolf in Roberts. The
witnesses whose evidence the appellants wish to adduce are on no basis at
risk. If a closed material procedure (or, where relevant, a limitation of
disclosure of their evidence to the CPS) were ordered, they would not be at
risk. But, equally, if a closed material procedure or such a limitation is
refused, the appellants will not adduce their evidence at all. There is therefore
a two-sided issue between the GoR and the appellants alone, not a
triangulation.
32. As to the appellants’ reliance on the special nature of extradition proceedings
(para 19), the public and international interest in bringing potential offenders
to trial is significant. So too of course is the public and human interest in
ensuring that individuals are not surrendered to places where they will suffer
risks of human rights or other abuses. But the assessment of each of these
potentially competing factors falls to be determined on an inter partes basis
between, in this case, the GoR and the appellants. It is an assessment subject
to the clearly established statutory procedure in the 2003 Act, and it is one
which, so far as appears from that Act, can and should be performed in the
ordinary way by the adducing of evidence on the relevant issues on each side.
33. For good measure, I note that it was also a balance struck in relation to
surrender to Rwanda for trial by the High Court in VB and others v
Government of Rwanda [2009] EWHC 770 (Admin) (refusing surrender),
but that there have been a number of subsequent decisions concluding that
fair trial was possible in Rwanda – notably by the ICTR Referral Chamber on
28 June 2011 in respect of Mr Uwinkindi, the Oslo District Court on 11 July
2011 in respect of Mr Bandora, the European Court of Human Rights on 27
October 2011 in respect of Mr Ahorugeze, the ICTR Appeals Chamber
upholding the Referral Chamber in respect of Mr Uwinkindi on December
2011 and the ICTR Referral Chamber on 22 February 2012 in respect of
Fulgence Kayishema. The nature of the issues and procedures involved in
Page 15
these cases has not however been the subject of any close examination on this
appeal.
34. In these circumstances, I see no basis on which this Court would be justified
in recognising or creating in the present circumstances a closed material
procedure as a new exception to the principle of open inter partes justice
recognised in Al Rawi.
35. The appellants’ fall-back case in respect of some of the relevant material is
that the district judge should be recognised as having power to limit
disclosure to the CPS and to prohibit further disclosure to the GoR. In
extradition proceedings under the 2003 Act the CPS acts on behalf of a
requesting state or authority, although owing duties to the court, as explained
in R (Raissi) v Secretary of State for the Home Department [2008] EWCA
Civ 72, [2008] QB 836. In relation to the possibility of a non-disclosure order,
the appellants rely on W (Algeria) v Secretary of State for the Home
Department [2012] UKSC 8, [2012] 2 AC 115. There, the Home Secretary
had given each appellant notice of the intention to deport him to Algeria on
the basis that his presence in the United Kingdom was not conducive to the
public good on grounds of national security. Each asserted before the Special
Immigration Appeals Commission (“SIAC”) that he would be likely on
return to Algeria to suffer ill-treatment contrary to article 3 of the Human
Rights Convention. One of them wished to adduce evidence from a source
who required an absolute and unconditional guarantee of permanent
confidentiality as a precondition to giving evidence. It was common ground
(para 27) that SIAC had under the Special Immigration Appeals Commission
(Procedure) Rules 2003, rules 4, 39(1) and 43 power to make such an order
against the Home Secretary, with the effect of precluding any disclosure of
the evidence to Algeria.
36. Lord Brown and Lord Dyson, in judgments with which the other members of
this Court agreed, held that, although “such orders come perilously close to
offending against basic principles of open justice” and although it would
mean that “the Home Secretary will be largely unable to investigate [the
evidence] and will find it difficult, therefore, to explain or refute it” (paras 16
and 17, per Lord Brown), nonetheless such an order was in the circumstances
justified. Lord Dyson noted that:
“36. Regrettably, …. the circumstances of a case sometimes
call for unusual and undesirable remedies. Ultimately, the court
has to decide what is demanded by the interests of justice. In
weighing the prejudice that the Secretary of State may suffer in
the appeal process as a result of an irrevocable non-disclosure
Page 16
order, it should not be overlooked that the appeals themselves
will be conducted entirely inter partes. In particular, no material
that is placed before SIAC by the appellants will be withheld
from the Secretary of State. She may be able to demonstrate
that the claimed need for confidentiality is without foundation
and to persuade SIAC to give the evidence little or no weight
for that reason alone. She may also be able to test the evidence
of the witness(es) effectively even though she has been unable
to discuss it with the AAs. For example, she may be able to
show on the basis of objective general material about the
conditions in Algeria that the evidence of the witness is
unlikely to be true; and even where the evidence is more
specific, she may be able to obtain information from the AAs
which will enable her to rebut the evidence without divulging
the name or identity of the witness or saying anything which
might lead to his or her identification. It will, of course, depend
on the nature of the evidence to be given by the witness. I do
not wish to suggest that the effect of an irrevocable nondisclosure order may not inhibit the ability of the Secretary of
State to resist the appeals. In some cases, such an order will
undoubtedly have that effect. But it cannot safely be said that
it is bound to do so in every case.”
37. The circumstances in W (Algeria) differ very significantly from the present.
The issue there was between the Secretary of State and Algerian nationals,
who the Secretary of State was seeking to remove from the jurisdiction.
Algeria had no interest in claiming or receiving the return of W or his fellow
Algerians, perhaps the contrary. Algeria was not party to the proceedings
brought by the Algerian nationals against the Secretary of State to challenge
the order for their removal. SIAC had express statutory power to make the
non-disclosure order sought. In contrast, the present appeals are taking place
on an inter partes basis between the appellants and the GoR, which has a real
and direct interest in their pursuit and in obtaining the surrender of the
appellants. The CPS are merely representing the legal interests of the GoR.
Further, even if these factors were not by themselves conclusive, the district
judge has no special statutory power which could enable her to make a nondisclosure order in relation to the GoR.
38. This brings me to two final points made by the appellants. First, VB has since
2001 or 2002 been a United Kingdom citizen. Relying on Halligen v
Government of the USA, sub nom. Pomiechowski v Poland [2012] UKSC 20,
[2012] 1 WLR 1604, Mr Jones submits that he enjoys a common law right of
residence in the United Kingdom, and that article 6 applies to the
determination of extradition proceedings which engage that right. Accepting
Page 17
the premise, I am unable to draw from it any conclusion that article 6 requires
the district judge to discard the ordinary principles of open inter partes justice,
contrary to Al Rawi and to the conclusions that I have reached up to this point.
39. The other point, advanced forcefully by Mr Fitzgerald, relates to the other
appellants who are foreign nationals. If they are unable to adduce evidence
under a closed material procedure or to obtain a non-disclosure order, and
extradition orders are made against them, then they will claim asylum, says
Mr Fitzgerald. On an asylum claim, the issue will be between them and the
United Kingdom authorities. They will be able under the relevant rules, in
particular AIT (Procedure) Rules 2005 rules 45(1) and 45(4)(i), to invite the
First Tier Tribunal to make directions relating to the conduct of the
proceedings and, more particularly, to issue directions making provision to
secure the relevant appellants’ anonymity. The Tribunal would, if necessary,
also be able under rule 54(3) to exclude the public in order to protect such
appellants’ private lives or under rule 54(4), in exceptional circumstances and
if and to the extent strictly necessary, to ensure that publicity does not
prejudice the interests of justice. Mr Fitzgerald submits that the Tribunal’s
rules are sufficiently analogous with those of SIAC for it to be able, like
SIAC, to make a non-disclosure order such as was permitted in W (Algeria).
(Since the present cases do not appear to engage interests of public order or
national security, the further provisions of rule 54(3) addressing those
interests appear irrelevant, and, for the same reason, it appears that any
asylum claim by the present appellants would come before the Tribunal,
rather than SIAC.)
40. When the Convention relating to the Status of Refugees (1951) (Cmd 9171)
was agreed, the answer to any such claim for asylum as Mr Fitzgerald
suggests may have been conceived as lying in article 1F(b), which provides
that:
“The provisions of this Convention shall not apply to any
person with respect to whom there are serious reasons for
considering that:
(a) he has committed a crime against peace, a war
crime, or a crime against humanity, as defined in
the international instruments drawn up to make
provision in respect of such crimes;
Page 18
(b) he has committed a serious non-political
crime outside the country of refuge prior to his
admission to that country as a refugee;
(c) that he has been guilty of acts contrary to the
purposes and principles of the United Nations.2”
41. Regulation 2 of the Refugee or Person in Need of International Protection
(Qualification) Regulations 2006 (SI 2006/2525) (transposing into United
Kingdom law Council Directive 2004/83) provides that “‘refugee’ means a
person who falls within article 1(A) of the Geneva Convention and to whom
regulation 7 does not apply”. Regulation 7(1) states that “A person is not a
refugee, if he falls within the scope of article 1D, 1E or 1F of the Geneva
Convention”.
42. In R (JS (Sri Lanka)) v Secretary of State for the Home Department [2010]
UKSC 15, [2011] 1 AC 184, Lord Brown recorded (para 2) that
“It is common ground between the parties (i) that there can only
be one true interpretation of article 1F(a), an autonomous
meaning to be found in international rather than domestic law;
(ii) that the international instruments referred to in the article
are those existing when disqualification is being considered,
not merely those extant at the date of the Convention; (iii) that
because of the serious consequences of exclusion for the person
concerned the article must be interpreted restrictively and used
cautiously; and (iv) that more than mere membership of an
organisation is necessary to bring an individual within the
article’s disqualifying provisions.”
43. In Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54,
[2013] 1 AC 745, the Supreme Court considered the standard of proof
required to bring a case within article 1F(c) and held (para 16)
“The article should be interpreted restrictively and applied with
caution. There should be a high threshold ‘defined in terms of
the gravity of the act in question, the manner in which the act
is organised, its international impact and long-term objectives,
and the implications for international peace and security’. And
there should be serious reasons for considering that the person
Page 19
concerned bore individual responsibility for acts of that
character.”
44. Since criminal proceedings against Mr Al-Sirri had been dismissed on the
ground that no reasonable and properly directed jury could on the evidence
available convict him (Al-Sirri, para 23), it is not entirely clear why it was
necessary to attempt to define the relevant standard of proof in that case.
Adopting the approach in Al-Sirri, article 1F(b), appearing between the two
articles considered in these two authorities, covers “serious non-political
crime” which may, nevertheless, not always reach the standard of seriousness
envisaged in articles 1F(a) and (c). But it seems reasonably clear that a similar
approach must apply under all three articles. On that basis, the prima facie
proof of involvement in the crimes committed during the Rwandan civil war,
which the GoR seeks to adduce against these appellants, may not be sufficient
to bring any of the articles in article 1F into play. It is therefore conceivable
that, if the present proceedings lead to extradition orders against all four
appellants, the three appellants who are not United Kingdom nationals will
be able to seek to claim asylum, and in the course of so doing before the First
Tier Tribunal to seek some form of order which would have the effect of
precluding disclosure to the GoR of evidence which they wish to call but
cannot call if its author or contents will or may thereby become known to the
GoR – whereas VB as a United Kingdom citizen will not be able to do this
and will be liable to immediate surrender.
45. A number of observations may be made on this possibility. First, it may of
course be that the nature of the evidence adduced before the District Judge in
the present proceedings and before the First Tier Tribunal on any asylum
claim may satisfy SIAC even to the higher standard which Al-Sirri indicates
to be required. Second, it is relevant to recognise the normal reason for which
a court or tribunal would decide to exercise its discretion to give directions
for anonymity or to exclude the public in asylum proceedings. This is not
related to the reasons for seeking such a procedure in the present case – in
other words, it is not to expand the nature of the evidence admissible in
asylum proceedings. Rather, it is to protect the asylum seeker him- or herself,
as well as others, particularly any dependants and family members in his or
her home country, from persecution or other harm, which might result from
knowledge of the asylum proceedings. This is now reflected in a European
Union context in article 22 of Directive 2005/85/EC on minimum standards
on procedures in Member States for granting and withdrawing refugee status.
In the present case, that reason could have no application. The GoR is well
aware of the appellants’ position, knows where they are and is seeking their
return. It now also knows of the possibility that some of them may be eligible
to make and may well make asylum claims in the United Kingdom. Other
grounds on which an anonymity or exclusion order might be sought, as
Page 20
contemplated in Presidential Guidance Note No 2 of 2011 issued by the
President of the FTT on 14 February 2011 and revised 7 July 2011 appear
equally irrelevant. The appellants may well therefore be unable to obtain any
anonymity or exclusion order. However, the further power which was
recognised in W (Algeria) was to restrain the Home Secretary from disclosing
to the relevant foreign government evidence relating to risks which the
asylum seeker claimed that he would face in the foreign country, which
evidence he would otherwise have been unable to adduce. Assuming the First
Tier Tribunal to have a like power under its rules, as Mr Fitzgerald submits,
the reasoning in W (Algeria) lends support to the appellants’ case that they
might be able in asylum proceedings before the Tribunal, to which the GoR
is not party, to adduce evidence from witnesses which they cannot adduce in
the present proceedings to which the GoR is party.
46. Third, assuming that the (on the face of it somewhat anomalous) scenario
indicated in the preceding paragraphs is a possible one, and that the appellants
might in fact also be able to obtain permission to obtain from the First Tier
Tribunal some form of order which would prevent disclosure of material
evidence to the GoR, this would be the consequence of a variety of factors:
the possession by the appellants of different nationalities; different standards
of proof involved in extradition and in asylum proceedings; and different
statutory regimes. It cannot in my view distort or alter the clear conclusions
which I have arrived at in relation to the extradition proceedings, which are
all that are currently before the Supreme Court.
Section 87 of Coroners and Justice Act 2009
47. I add a brief word on the application of section 87 of the Coroners and Justice
Act 2009, on which the Administrative Court expressed views, as set out in
para 9 above. The Divisional Court concluded that the term “defendant” in
section 87 was wide enough to include the appellants, but that the term
“prosecutor” was incapable of covering a requesting state. That would appear
unsustainable on any view. However, before the Supreme Court, it was in the
event common ground that section 87 has no relevant application to
extradition proceedings at all.
48. The reasons were explained by Mr James Lewis QC for the GoR as follows:
a. Section 87 only applies where there is a defendant charged with an
“offence to which the proceedings relate”: section 97(1). That, on a
true construction, does not embrace extradition proceedings with a
view to a trial abroad.
Page 21
b. By the same token, a foreign state requesting surrender should not be
treated as prosecutor, even though extradition proceedings are
criminal proceedings of a special kind.
c. The Extradition Act 2003 itself is careful to refer to the person “whose
surrender is requested” as such, rather than to the defendant, and it
makes specific provision when the concept of “defendant” is intended
to include such person as well as when the concept of “prosecutor” is
intended to include a requesting authority: see e g section 205(3). One
might have expected similar caution in the 2009 Act, had section 87
been intended to cover extradition proceedings.
49. Lord Hughes has in his judgment examined the position regarding the 2009
Act in detail and reached the conclusion that it does not apply for fuller
reasons, with which I agree.
50. Assuming section 87 to be inapplicable, there is authority that anonymous
evidence may be admissible in certain circumstances in extradition
proceedings: R (Al-Fawwaz) v Governor of Brixton Prison [2001] UKHL 69,
[2002] 1 AC 556. In the light of the requirement in section 84 of the
Extradition Act 2003 that there should be “evidence …. sufficient to make a
case requiring an answer if the proceedings were the summary trial of an
information”, that conclusion cannot be justified on a simple basis that
extradition proceedings are not themselves criminal proceedings. Equally, it
is no longer possible to justify the reasoning in Al-Fawwaz in so far as it
endorsed the approach to anonymous evidence taken at common law in R v
Taylor and Crabb [1995] Crim LR 254, prior to the House’s decision in R v
Davis [2008] UKHL 36; [2008] 1 AC 1128. But, since the enactment of the
Criminal Evidence (Witness Anonymity) Act 2008 and now sections 86-97
of the Coroners and Justice Act 2009, anonymous evidence may under
statutory conditions be admitted at trial, and, without going further into this
aspect, in those circumstances at least the requirements of section 84 of the
Extradition Act 2003 will be capable of being met. Again, I have read and
agree with Lord Hughes’ analysis of the law in this respect.
Conclusion
51. For the reasons given in paras 1 to 46, I would dismiss the appellants’
appeals.
Page 22
LORD HUGHES (with whom Lord Neuberger and Lord Reed agree)
52. I very largely agree with the conclusions set out in Lord Mance’s judgment
and need not repeat what he so clearly sets out. It is clear to me that the
extradition court ought never to embark upon closed material procedures,
hearing evidence on behalf of the person whose surrender is sought, but
altogether withholding that evidence from the other party, the Requesting
State, so that the latter not only cannot respond to it, but does not even known
what it is to which response is called for. I deal here only with two issues:
(i) the impact (if any) of our decision upon procedure to be adopted
in any subsequent asylum or human rights claims which might
be made by any of the appellants, or by people in a similar
position; and
(ii) the separate question whether an extradition judge conducting
proceedings under the Extradition Act 2003 has the power to
receive evidence from a witness who is anonymous, that is to
say whose identity is withheld from one or other party to the
proceedings. That is of course not the same as a closed material
procedure, where evidence is received which is altogether
withheld from one or other party. A witness who is anonymous
is heard by all parties. All parties have the opportunity to agree
or contradict what he says and his evidence can be tested by
cross examination, albeit the extent of cross examination may
be limited by his anonymity.
(i) Subsequent immigration or human rights claims
53. The possible relevance of subsequent proceedings developed as a potential
issue in the present case in the course of oral argument before this court.
Before the courts below, and in written argument for this court, the argument
advanced on behalf of the persons whose surrender is sought was that
immigration proceedings, and particularly asylum claims, provided an
analogy, which should be adopted by extradition courts. In asylum claims, it
was correctly pointed out, an immigration judge has power to sit in private,
in order to protect the confidentiality of the applicant and in particular in
order to deny access by the state from whom protection is claimed to the fact
that an allegation of danger of persecution is made and to any evidence which
may demonstrate that danger, lest reprisals follow. Hence, it was submitted,
an extradition court should also by analogy deny a requesting state access to
evidence that it would infringe the Convention rights of the person sought, in
Page 23
case the requesting state might use the evidence to ill-treat either the person
sought or others, such as witnesses. A similar and alternative argument was
advanced that an extradition court should in appropriate cases make an
irrevocable non-disclosure order by analogy with the procedure permitted to
SIAC in exceptional circumstances by W (Algeria) v Secretary of State for
the Home Department [2012] UKSC 8; (2012) 2 AC 115.
54. However, as the oral argument proceeded, the submission made on behalf of
the persons sought expanded beyond suggested powers in the extradition
court found by way of analogy with immigration proceedings. It became the
more striking submission that unless the extradition court has the powers
claimed (to conduct closed material procedures and to make irrevocable nondisclosure orders) there would be likely to follow asylum claims by the
persons sought, in which different procedures would apply. Said Mr
Fitzgerald QC, the applicants whom he represents, who have hitherto been
granted leave to remain without dispute and who have never made any kind
of asylum claim, might now make such a claim. If they do, he submitted, they
ought to be permitted by the Immigration Judge in the First Tier Tribunal to
adduce the evidence on which they wish at present to rely before the
extradition court, in order to demonstrate that they would be at risk of
persecution in Rwanda. And, he submitted, they ought to be permitted to
adduce this evidence in a private hearing from which the Government of
Rwanda and its representatives are excluded, and to have that evidence relied
upon by the Immigration Judge in deciding the asylum claim. Moreover, he
submitted, they ought similarly to be permitted to obtain from the First Tier
Tribunal an irrevocable non-disclosure order preventing the Secretary of
State, as the other party to the asylum appeal, from ever disclosing the
evidence to Rwanda. The consequence may well be, he submitted, that the
Immigration Judge may accept the refugee status of the persons sought, in
effect contrary to the findings of the extradition court.
55. Mr Fitzgerald offered the further argument that, if this scenario were to come
to pass, there would ensue an unfair distinction between, on the one hand, a
person sought who was a foreign national, and thus able to apply for asylum,
and, on the other, a British national who is sought. As it happens, one of the
present appellants is a British citizen.
56. These arguments call for some consideration of the inter-relation of asylum
or immigration proceedings on the one hand and extradition proceedings on
the other. Is there a prospect of inconsistent findings of fact, or (worse) of
inconsistent orders? The court is significantly inhibited in deciding these
questions by the late appearance of the arguments, and by their resulting
incomplete content. It is likely that if the suggested scenario should come to
Page 24
pass, further full consideration will be essential. It may help, however, to
identify at least some signposts.
57. The first and principal reason why an immigration judge may exercise the
power to sit in private in an asylum case is to satisfy the international duty of
confidentiality towards asylum claimants. This is now well recognised, in
particular in Europe by article 22 of Directive 2005/85/EC on minimum
standards on procedures in Member States for granting and withdrawing
refugee status, which provides:
“Article 22
Collection of information on individual cases
For the purposes of examining individual cases, Member States
shall not:
(a) directly disclose information regarding individual
applications for asylum, or the fact that an application has been
made, to the alleged actor(s) of persecution of the applicant for
asylum;
(b) obtain any information from the alleged actor(s) of
persecution in a manner that would result in such actor(s) being
directly informed of the fact that an application has been made
by the applicant in question, and would jeopardise the physical
integrity of the applicant and his/her dependants, or the liberty
and security of his/her family members still living in the
country of origin.”
58. The purpose of this duty of confidentiality is to protect the asylum claimant
and/or his family from any risk of reprisals for having made allegations
against his home State. For the reasons Lord Mance explains at paragraph 45,
this can have no application where the State accused, here Rwanda, knows
full details of the persons sought, and indeed has been informed in open court
of the suggested possibility of asylum applications. It follows that there
would be no reason for any immigration judge to accede to an application to
hear any asylum claim in private on this, the common, ground, nor on this
ground to hear evidence which Rwanda is prevented from hearing.
Page 25
59. A second, distinct, possible scenario is afforded in limited circumstances by
the decision in W(Algeria) v SSHD (supra). This court there concluded that
there could be circumstances in which justice required that, in order to
determine whether or not deportation to a particular State would infringe the
article 3 (or, it must follow, the article 2) rights of the individual concerned,
a court could receive evidence on terms that the other party (the Secretary of
State) is ordered not to disclose it to anyone else, including the State to which
return is under consideration. That is possible, it was held, where the evidence
would otherwise be withheld for fear of reprisals. W(Algeria) was a strong
case. The proposed State of return was known to practice torture, which
would ordinarily have been a bar to return on article 3 grounds. The evidence
went to whether assurances offered by that State to the Secretary of State
could be relied upon. The judgments of both Lord Brown and Lord Dyson
make it clear that the procedure contemplated was wholly exceptional,
because it infringes ordinary principles of natural justice by impairing the
ability of one party, the Secretary of State, to challenge and test the evidence.
They also make it clear that such a procedure could be expected to be justified
only when article 3 rights, not to be the subject of torture or inhuman or
degrading punishment, was in question. If other rights were in question, the
balance would be likely to fall against so unusual a procedure.
60. There is no question of W (Algeria) authorising the receipt by an extradition
judge of evidence of the kind here sought to be adduced. The proceedings in
W (Algeria) were deportation (immigration) proceedings, to which the parties
were the individual and the Secretary of State, but not Algeria, the proposed
State of return. The claimant was at pains to disclaim any argument that the
Secretary of State, as a party to the proceedings, should be unable to hear the
evidence in question. The order sought, and granted, was one preventing the
Secretary of State from passing the evidence on, by way of enquiry or
otherwise, to Algeria. In extradition proceedings, the proposed State of
return, here Rwanda, is a party.
61. However, the exceptional procedure thus sanctioned in W (Algeria) needs to
be considered in context when the relationship of asylum or deportation to
extradition is in question. The terms of the Extradition Act make it clear that
extradition is subject to the non-infringement of the Convention or refugee
rights of the individual sought. For Part I extraditions, to European States,
section 39 provides that a European arrest warrant is not to result in
extradition whilst a claim for asylum is pending. The present case falls under
Part II, via section 194. In the context of Part II extraditions, to non-European
States, the process of extradition begins when the Secretary of State certifies
that a valid request for an individual has been received: see section 70. Under
section 70(2)(b) and (c) the Secretary of State need not certify if either the
individual has been accepted as a refugee or he has been granted leave to
Page 26
remain in this country on the grounds that removal to the requesting State
would involve infringement of his article 2 or article 3 rights. Ordinarily, it
may well be that any person sought for serious crime would be excluded from
refugee rights by article 1F(b) of the Refugee Convention, set out by Lord
Mance at paragraph 40, and it seems to me to follow that the scope for a
finding that there is a prima facie case justifying extradition but no serious
reasons for thinking that he is guilty of such a crime is likely to be narrow.
But Convention rights, as extended by the Soering principle, may well be
more extensive than refugee rights. The Act appears to contemplate that any
asylum claim will be made before any extradition proceedings, and it goes
on to provide in section 70(11) that once the Secretary of State has issued the
section 70 certificate all questions of human rights are for the extradition
judge, who is required by section 87 to halt the sequential process provided
for by the Act, and to discharge the person sought, if breach of such rights
(not limited to articles 2 or 3) would be the result of extradition. That makes
it clear that the extradition process is, once the section 70 certificate is issued,
an entirely judicialised one. Once the judicial ruling for extradition has been
made, the Secretary of State is bound by section 93 of the Extradition Act, to
give effect to it unless specified reasons (death penalty, specialty, earlier
extradition into the UK or transfer to it by the ICC) apply. Whether there
remains room for a subsequent application, outside the extradition process,
for asylum, or (absent any asylum or refugee claim) for a decision by the
Secretary of State (or immigration judge on appeal) that removal to the
requesting State would involve infringement of article 2 or 3 rights, appears
to remain unexplored. But if there is room for such, then it would appear to
follow as a possibility that a W (Algeria) non-disclosure order might be open
for consideration in such proceedings. It would be a material consideration
that the application was made late, and in a form which in effect mounted a
collateral challenge to an earlier ruling of the extradition judge that the
individual is to be extradited.
(ii) Anonymity of witnesses
62. The Divisional Court itself raised the possibility that an extradition judge
could hear an anonymous witness. Having done so, it held that such a power
did exist and that it derived from sections 86-97 of the Coroners and Justice
Act 2009 (“the 2009 Act”), or the equivalent provisions of its predecessor,
the Criminal Evidence (Witness Anonymity) Act 2008 (“the 2008 Act”). It
described the application of those Acts to extradition as “adventitious”.
63. Closer examination demonstrates that the Divisional Court was right to say
that an extradition judge has power, if justice calls for it, to receive the
evidence of a witness who is anonymous to one or all parties, but not to derive
this power from either the 2008 or the 2009 Act.
Page 27
64. The 2008 Act was passed to give a criminal court the express power, in
defined conditions, to allow a witness (by whomever called) to remain
anonymous to the defendant and/or to co-defendants. The principal
conditions are that such a course of action must be found to be necessary on
specified grounds, which include preserving the safety of the witness, and
that the court must be satisfied that the trial can nevertheless be fair. The Act
was passed against the background of growing concern about witness
intimidation and the reluctance of potential witnesses to crime, for fear of
reprisals, to be seen to be co-operating with a police investigation. In the
years before 2008 courts hearing criminal trials in England and Wales had
from time to time permitted witnesses to give evidence anonymously where
satisfied that the evidence would not otherwise be given, or effectively given,
owing to genuine fear, and that the defendant was not disabled from properly
challenging it. However, in R v Davis [2008] UKHL 36; (2008) 1 AC 1128
the House of Lords held that this was not permissible because at common law
the rights of a defendant in a criminal case to know and confront his accuser
had to prevail. The House held that if a power was to be created to hear
evidence in a criminal case from a witness who remained anonymous to a
defendant, that could only be done by statute. The 2008 Act was the
immediate Parliamentary response. It was enacted after a greatly attenuated
legislative timetable, with the agreement of all major parties. It was expressly
stipulated to have a short life, so that further consideration could be given to
the principle to which it gave effect. After such further consideration, the
2009 Act re-enacted its provisions in substantially the same terms.
65. In the present case the Divisional Court held that these provisions applied. Its
reasoning was as follows (by reference to the 2009 Act):
(i) the Act applies to “criminal proceedings”; these are defined in
section 97(1) as those in a Magistrates’ court, Crown court or
the Court of Appeal (Criminal Division) in England and Wales
which are:
“criminal proceedings consisting of a trial or other
hearing at which evidence falls to be given”;
(ii) extradition proceedings are a kind of criminal proceeding
within that definition, and extradition was described as a form
of criminal proceeding by Lord Hoffmann in R v. Governor of
Brixton Prison Ex parte Levin [1997] AC 741 at 746 F-G;
Page 28
(iii) the present appellants, whose surrender was sought by Rwanda,
were “defendants” for the purpose of the 2009 Act because they
had been charged with offences (in Rwanda);
(iv) although section 87(3) requires a defendant who applies for a
witness anonymity order to disclose the identity of the proposed
witness to “the prosecutor”, as well as to the court, this
presented no obstacle because that term is defined in section 97
as “any person acting as prosecutor, whether an individual or a
body”; a requesting State making an application for extradition
is not acting as a prosecutor; either it, or some other body may
in due course, if extradition is granted, take up the role of
prosecutor at the subsequent trial, but that stage has not yet been
reached;
(v) although the Crown Prosecution Service (“CPS”) generally
conducts extradition proceedings on behalf of the Requesting
State, and does so in this case, it, like the State, is not acting as
a prosecutor when it does so.
66. There is no difficulty with propositions (iv) and (v). Extradition proceedings
are not a criminal trial. The person whose extradition is sought is not in peril
in them of conviction, and his guilt or innocence will not be decided. The
issue is whether he should be surrendered to the Requesting State for the
purpose of subsequent trial. The Requesting State is not prosecuting him
before the English court; it is asking the UK to surrender him. The CPS
generally acts as the advocate or agent of the Requesting State; that its
principal role in England & Wales is to prosecute allegations of crime does
not mean that it does not have this separate and different function in
extradition proceedings. Its role in extradition proceedings is made clear by
section 190 of the Extradition Act 2003. That amends section 3(2) of the
Prosecution of Offences Act 1985, which ascribes various functions to the
CPS, chief of which is to “take over the conduct of all criminal
proceedings…” (with specified exceptions). The amendment made by
section 190 of the Extradition Act inserts a new additional function, namely:
“(2)(ea) to have the conduct of any extradition proceedings”
That, however, is made subject to the specific exception that the CPS is not
to do so when requested not to by the Requesting State. This makes clear
the advocacy or agency role of the CPS in extradition proceedings. [It ought
to be noted that the CPS may separately fulfil a different function under
Page 29
section 83A and following of the Extradition Act where forum proceedings
fall to be determined, but these do not affect the foregoing propositions.]
67. The difficulty lies in propositions (i) to (iii). There cannot be the slightest
doubt that the 2008 and 2009 Acts were passed in order to deal with criminal
prosecutions in England, Wales and Northern Ireland. They were a direct
response to R v Davis which itself was concerned with such prosecutions and
with no other form of proceeding. The modest extension afforded by the
definition section (section 97) to other hearings “at which evidence falls to
be given” is plainly intended to encompass the kind of ancillary application
or proceeding which may attend a criminal prosecution either in advance of
the trial or after it has finished. Many possible examples might be envisaged.
They might include, in advance of trial, case management hearings at which
a fear of witness intimidation falls to be considered or where rulings as to the
giving of evidence are to be considered, and, after trial, hearings relating to
such matters as sentencing or the making of protective orders like Sexual
Offences Prevention Orders or Serious Crime Prevention Orders. In the days
when magistrates conducted committal proceedings to hear the Crown
evidence and to determine whether there was a case to answer, those would
no doubt have fallen within the definition, for such committal proceedings
were an integral part of the prosecution process and the parties were the same
as they would be at trial in the Crown Court, namely a prosecutor and the
defendant. But one cannot treat extradition proceedings as a part of a criminal
prosecution in England and Wales. Even though, in the case of some (but by
no means all) Part II territories, it may be necessary for the Requesting State
to establish a prima facie case, the proceedings are not a prosecution but,
rather, concerned solely with the issue of surrender. Any prosecution is yet
to come; it may or may not ensue and if it does it will not be under English
rules.
68. It is true that in Ex p Levin Lord Hoffmann, giving the sole speech in the
House of Lords, described extradition proceedings as criminal proceedings
for the purpose of the application of the evidential rules contained in the
Police and Criminal Evidence Act 1984. In the end, the observation was
obiter, because the issue in the case was the admissibility of certain bank
records and since they were held to be real evidence rather than hearsay their
admissibility did not depend on that Act at all. But Lord Hoffman did accept
that the Act would apply to extradition proceedings, and indeed that so had
the power of the court under section 78 to exclude prosecution evidence on
the ground that it would have an unfair effect on the proceedings, until the
amendment of that section to except committal proceedings. It does not,
however, follow that extradition proceedings can be equated to a criminal
prosecution or that they are “criminal proceedings” for all purposes, still less
that they are “criminal proceedings” for the purpose of the 2008 and 2009
Page 30
Acts. On the contrary, it is clear that neither proposition is correct. That
appears from any or all of the following considerations.
(i) Lord Hoffmann explicitly described extradition proceedings as
“criminal proceedings of a very special kind” (at 746F).
(ii) The application to extradition proceedings of English rules of
criminal evidence (including those in the Police and Criminal
Evidence Act 1984) was clear in any event, then as now. At that
time the relevant provision was paragraph 7(1) of Schedule 1 to
the Extradition Act 1989, which provided that the prospective
defendant was to be remanded in custody for the decision of the
Secretary of State upon surrender if
“such evidence is produced as . . . would,
according to the law of England and Wales,
justify the committal for trial of the prisoner if
the crime of which he is accused had been
committed in England or Wales…”
Now, the same result follows from section 84(1) of the
Extradition Act 2003, read with section 77. Section 84(1)
requires the appropriate judge to determine whether:
“there is evidence which would be sufficient to
make a case requiring an answer by the person if
the proceedings were the summary trial of an
information against him” ,
whilst section 77 provides that he shall have the same powers
“as nearly as may be” as he would have in summary
proceedings for an offence.
(iii) Lord Hoffmann recognised that even if section 78 did apply to
extradition proceedings, it would do so only by way of the
(then) rule that evidence was to be considered as if at English
committal proceedings. He specifically identified the special
nature of extradition proceedings and held that section 78
would require to be modified in its application to them so that
what fell for consideration was not any unfair effect on any
Page 31
subsequent trial but unfair effect on the extradition hearing
itself: see 748A, where he underlined the fact that at the
extradition hearing it ought ordinarily to be assumed that if the
prospective defendant is surrendered local procedures in the
Requesting State will ensure fairness there. That is a clear
recognition of the essential difference between extradition
proceedings on the one hand and a criminal prosecution and
trial on the other.
(iv) Section 87 of the 2009 Act provides for applications for witness
anonymity orders to be made either by “the prosecutor” or by
“the defendant”. Where the application is made on behalf of a
defendant, section 87(3) requires the identity of the witness to
be revealed not only to the court but to the prosecutor. As the
Divisional Court correctly held, there is no prosecutor in an
extradition hearing. The notion of criminal proceedings
existing without a prosecutor is difficult enough on any view;
but even if such a thing can for any purpose be imagined, it is
clear that the 2009 Act, and its predecessor the 2008 Act, are
confined to prosecutions, with prosecutors.
(v) It is also doubtful that the person whose extradition is sought
falls within the definition of “defendant” for the purposes of the
2009 Act. “Defendant” is defined by section 97 in terms which
are plainly appropriate to a person facing trial in England and
Wales, but may not be to someone whose surrender is sought
for potential trial elsewhere:
“the defendant”, in relation to any criminal
proceedings, means any person charged with an
offence to which the proceedings relate (whether
or not convicted)”
Extradition proceedings under Part II of the Extradition Act
2003 depend upon a request to the UK by the Requesting State.
For the very detailed process of the Act to begin, the Secretary
of State must certify under section 70 that she has received a
valid request. A valid request is one which states, inter alia, that
the person sought:
Page 32
“is accused in the category 2 territory of the
commission of an offence specified in the
request”.
The use of the word “accused” would appear to be deliberate.
The person concerned may or may not have been charged in
the Requesting State, according, no doubt, among other things,
to that State’s practice in relation to absent persons. It is to be
observed that the Extradition Act 2003 generally refers to the
person who is the object of extradition proceedings as “the
person whose extradition is sought”, rather than as “the
defendant”, and that in certain places where it wishes to apply
other statutory references to a ‘defendant’ to this person, it says
so expressly. An example is section 205(3) which provides:
“(3) As applied by subsection (1) in relation to
proceedings under this Act, section 10 of the
Criminal Justice Act 1967 and section 2 of the
Criminal Justice (Miscellaneous Provisions) Act
(Northern Ireland) 1968 have effect as if –
(a) references to the defendant were to the person
whose extradition is sought (or who has been
extradited);
(b) references to the prosecutor were to the
category 1 or category 2 territory concerned; …”
(vi) Lastly, it is by no means clear that the place of an extradition
hearing is within the definition of “court” for the purposes of
the 2009 Act. Section 97 provides that for the purposes of a
witness anonymity order:
“court” means –
(a) in relation to England and Wales, a
magistrates’ court, the Crown Court or the
criminal division of the Court of Appeal……”
Page 33
Those are, of course, the courts in which prosecutions in
England and Wales are conducted. Extradition hearings under
the Act of 2003 are held before what that Act calls “the
appropriate judge” – in relation to Part II see section 70(9) and
following. The “appropriate judge” is, by section 139, a District
Judge (Magistrates’ Courts) specially nominated by the Lord
Chief Justice. The fact that the nomination has fallen upon
certain District Judges (Magistrates’ Courts) who ordinarily sit
at Westminster Magistrates’ Court does not mean that they are
sitting in that capacity when conducting an extradition hearing,
nor that such hearing is held in a Magistrates’ Court.
Consistently with this, section 77 provides that in an extradition
hearing, the appropriate judge:
“has the same powers (as nearly as may be) as a
magistrates’ court would have if the proceedings
were the summary trial of an information against
the person whose extradition is requested.”
69. It is not, however, necessary to force extradition proceedings into the 2008
or 2009 Acts in order to justify the receipt of evidence from a witness whose
anonymity is protected. The jurisdiction to receive evidence on this basis
which was discussed in R v Davis derived from the inherent powers of the
court to control its own procedure. What Davis decided was that this power
did not extend, in a criminal prosecution, to hearing a witness whose identity
was not disclosed to the defendant. Statutory sanction was called for.
Statutory sanction has now been given for the paradigm case of an English
criminal prosecution. The inherent power of the court to admit such evidence
in extradition proceedings remains, and can properly be exercised by analogy
with the statutes. Indeed, at the time of Davis, there was existing House of
Lords authority in R (Al-Fawwaz) v Governor of Brixton Prison [2001]
UKHL 69, [2002] 1 AC 556 for the proposition that anonymous evidence
was indeed receivable in extradition proceedings, and in Davis Lord Bingham
endorsed this decision. As Lord Mance observes at paragraph [50] this
endorsement may not have given full consideration to the reliance in Al
Fawwaz upon the cases in which English criminal courts had admitted
anonymous evidence, such as R v Taylor and Crabb [1995] Crim LR 254,
nor did it refer to the requirement that a prima facie case be adduced in
extradition proceedings. However, I agree with Lord Mance that even if these
considerations weaken the authority of the endorsement of Al Fawwaz in
Davis, the subsequent passage of the 2008 and 2009 Acts clearly shows that
anonymous evidence may be received in English criminal cases, providing
the statutory safeguards are met, and it follows that such evidence is equally
admissible in extradition proceedings.
Page 34
70. In the present appeal, Mr Lewis QC for the Government of Rwanda conceded
that in relation to some parts of an extradition hearing there could be no
objection to the hearing of evidence from a witness who remained
anonymous. His concession was confined to issues arising under sections 81
(extraneous considerations) or 87 (human rights barriers to surrender) and
was made on the basis that the ordinary rules of evidence do not apply on
those issues. That approach enabled him to submit that the persons whose
extradition is sought in this case could not rely on witnesses on the issue of
prima facie case unless their identity was disclosed to all parties. The practice
in relation to material going to section 81 or 87 issues is, however, as Lord
Mance says, probably better analysed as a relaxed approach to expert
evidence. Experts are generally entitled to give evidence based upon a
background corpus of knowledge. What appears to happen on these issues,
as in immigration cases, is that there is a relaxed readiness to permit experts
to give evidence of opinion as to prevailing circumstances in the foreign State
which is based upon information gathered from unnamed and sometimes
unknown sources. To that extent, such sources are likely to remain unknown
not only to the other party, but to the court. Any possible unreliability of such
sources falls to be assessed by the court as part of its overall evaluation of the
evidence. Receipt of evidence of this kind is clearly different from hearing a
witness who is present but whose identity is known to the court but not to one
party.
71. In the present proceedings, the persons whose extradition is requested seek
to adduce evidence not only of this expert variety but also from witnesses of
fact who are said to be in genuine fear for the safety of themselves or their
families if their identity is known to the Requesting State. The evidence in
question (which this court has, correctly, not viewed) is said to go both to the
question of whether there is or is not a prima facie case and to issues arising
under section 81 and/or 87.
72. It is difficult to see why, if witness anonymity is in principle permissible in
extradition proceedings, subject to its being fair to receive it, it should be
confined to section 81 or 87 issues. In Al Fawwaz the evidence of the
anonymous witnesses went to whether there was or was not a prima facie
case, and was tendered on behalf of the requesting State. True it is that section
84 of the Extradition Act means that a prima facie case must be established
by evidence which could establish it if the proceedings were a summary trial,
but the 2009 Act makes it clear that in a summary trial a witness may be heard
anonymously if the safeguards set out in that Act are in place.
73. An extradition judge will bear in mind that where the issue is the presence of
a prima facie case, he is generally not concerned to assess the credibility of
the witnesses relied upon, at least unless they are so damaged that no court
Page 35
of trial could properly rely on them. Nevertheless, it is likely that any
extradition judge will be more cautious in relation to the admission of
anonymous evidence on the issue of prima facie case than in relation to
section 81 or 87 issues, and the more cautious still where it is proffered by
the requesting State. It is clear that the overriding principle is that such
evidence can be admitted only when it is fair to all parties that it should be.
It must remain an unusual exception to the general practice. That is likely to
mean that an extradition judge will apply by analogy, so far as may relevant,
the same principles as are stipulated in the 2009 Act for criminal prosecutions
in England and Wales. He will need to be satisfied that there is genuine cause
for anonymity, generally a justified fear for the safety of the witness or others
which cannot otherwise be protected, and that justice requires that the
evidence be given. It will also be likely to mean that a crucial factor in his
decision whether to admit it will be the extent of the means available to the
other party to challenge it. In considering this question he will no doubt want
to consider whether the party tendering the witness has or has not provided
the maximum possible information about the witness, short of identifying
material, which could be deployed in challenging him. He will ordinarily
require that the court itself is given the fullest information of identity. He will
no doubt have in mind that anonymity may often weaken the weight which
can be given to evidence given. Providing, however, he makes all relevant
enquiries and admits the evidence of a person who is anonymous to a party
only if satisfied that the proceedings are nevertheless fair, he has the power
to hear such a witness.
LORD TOULSON
74. The form of Memorandum of Understanding (“MOU”) under which the
present extraditions are sought begins with three recitals. Two of them are in
these terms:
“HAVING DUE REGARD for human rights and the rule of
law;
MINDFUL of the guarantees under their respective legal
systems which provide an accused person with the right to a
fair trial, including the right to an adjudication by an impartial
tribunal established pursuant to law;”
Page 36
75. The MOU seeks to achieve the objective of ensuring protection of the
appellants’ human rights by providing in para 4(d) that extradition may be
refused if
“it appears to the Judicial Authority that extradition would be
incompatible with [X’s] human rights”.
76. The “Judicial Authority” is defined in paragraph 1 as the judicial authority
which is charged under the law of this country with the duty of considering
requests for extradition. In other words it is the Magistrates’ Court.
77. In her judgment dated 28 January 2014 on the appellants’ application to adopt
a closed hearing procedure to enable the appellants to place before the court
evidence in the absence of the Crown Prosecution Service representing the
Government of Rwanda, District Judge Arbuthnot recorded that she had read
for the purposes of the application folders of evidence provided by Dr
Brown’s and Mr Ugirashebuja’s lawyers. She was later provided with a
folder by the lawyers acting for Mr Nteziryayo, but did not read it, and she
was told that evidence on behalf of Mr Mutabaruka was in preparation.
78. The judge said that she was prepared to accept that the files which she read
contained important and material evidence which was relevant in particular
to the question whether the relevant appellants would receive an article 6
compliant trial if they were extradited. She held that she was bound by the
decisions of this court in Al Rawi and the Divisional Court in B Sky B (later
affirmed by this court) to refuse the applications. But she expressed concern
that there may be a risk of serious prejudice to the defence in making that
decision and for that reason it was with some reluctance that she refused the
application.
79. Dr Brown’s solicitor has made witness statements in which he says that he
has visited Rwanda with leading and junior counsel and taken statements
from four witnesses, who all say that they are not willing for their identities
to be revealed to the Rwandan Government for fear that they and their
families would be placed in serious danger. He states that the nature of their
evidence makes them immediately identifiable to the Rwandan authorities
and that any redaction that sufficiently protects their identity would make
their evidence meaningless. It is said that the most important witness is either
a present or former Rwandan prosecutor or police officer, a Rwandan judicial
officer or a prosecution witness. It is said that he has given audio-taped and
video-taped evidence to Dr Brown’s lawyers about the fabrication of
evidence against Dr Brown by state officials.
Page 37
80. The court is in a cleft stick. On the one hand, Lord Mance says (at para 29)
that the appellants’ submission that the court should receive such evidence in
a closed session assumes the truth of what they set out to prove; that it is only
speculation that what they say would be relevant, truthful and persuasive; and
that the very nature of a closed material procedure would mean that this could
not be tested.
81. I think that we may take it that the material is relevant because the district
judge has accepted that it is, but in any event that would not be difficult to
assess. The real problem is whether it is truthful and how that is to be
assessed. If it is truthful, then the refusal of the witnesses to allow their
identity to be disclosed is not remarkable. (The English courts have
experience of truthful witnesses who are too frightened to give evidence if
their identity is to be revealed. In some circumstances, statute permits the
prosecution to rely on evidence of witnesses whose identity is withheld from
the defence.) I do not agree that the appellants’ submissions assume that the
evidence is truthful. Rather, they assert that it is potentially credible and that
the court should be prepared to consider it.
82. It is said that if the court is prepared to look at such evidence, it will
encourage others to manufacture false evidence. That is certainly a risk. The
same objection was made to allowing people accused of serious offences to
give evidence on their own behalf prior to the Criminal Evidence Act 1898.
No doubt that Act has enabled some defendants to hoodwink juries by
inventing false defences which the prosecution has been unable to disprove,
but that is a less grave affront to justice than disallowing defendants from
putting their evidence before the court on account of the attendant
opportunities for abuse. In the present case two of the appellants have
obtained evidence which the district judge considers relevant and important
to their case, but those witnesses are beyond the protection of the United
Kingdom and the appellants are unable to put their evidence before the court
unless the court is prepared to consider it without disclosure to the requesting
state. There is obvious prejudice to the requesting state if the court agrees to
do so and obvious potential for abuse. That is one side of the picture, but
there is another.
83. Just as the evidence cannot be assumed to be truthful, so it cannot be assumed
to be untruthful. What if it is indeed the case that the prosecution’s evidence
has been fabricated and that those who have provided that information to the
appellants’ lawyers are genuinely frightened to reveal their identity on
understandable grounds? If the United Kingdom authorities decline to look
at the evidence unless it is disclosed to the requesting state – which it cannot
be – the appellants are likely to suffer a denial of their human rights as a result
of our shutting our eyes to that evidence. In my view that is unacceptable.
Page 38
The evidential problem is very real, but it is not a satisfactory answer simply
to apply a blindfold to the evidence. To refuse to consider it has the same
practical effect as assuming the evidence to be untrue, which cannot be
assumed.
84. I would hold that justice, and the respect for human rights on which the MoU
was expressly predicated, require that at some stage in the process the
evidence should be able to be considered. There are three ways in which this
could occur.
85. The first is for the court to make an exception to the Al Rawi principle in this
case. The exception would be based on the need to ensure that the court does
not through blindness facilitate a foreseeable and potentially serious breach
of human rights by ordering extradition to a foreign country, of which there
is evidence that, by the very nature of the circumstances, cannot be disclosed
to the requesting state.
86. If that approach is rejected, as it is by the majority in this case, I apprehend
that it will be open to those appellants who are not British citizens to apply
for asylum or humanitarian protection; and, on appeal against a refusal by the
Home Secretary, they would be able to place before the immigration judge
the material which the district judge was not permitted to consider, without
that evidence being disclosed to the foreign state, since it would not be a party
to the proceedings.
87. That avenue would not be available to the appellant who is a British citizen.
It would be manifestly unacceptable that a non-British citizen should have
greater means of protection of their human rights than a British citizen, and
that cannot have been the intention of the government in entering into the
MoU. I anticipate that it would be open to the British appellant to ask the
government to apply the MoU in a way which would involve treating him no
less favourably than it would a non-British citizen, on the ground that to do
otherwise would be a (highly unusual) form of unjustifiable discrimination,
and if necessary to bring judicial review proceedings.
88. In my view the first way would be the best. Under the MoU it was intended
that determination of any human rights issues should be a matter for the
judicial authority. The district judge has received and is due to hear general
evidence on the subject. If the evidence which the appellants seek to
introduce is to be considered by anyone, it would be best done by the same
judge, who would evaluate to the best of her ability it in the context of all the
evidence before her. The exercise would be similar to that performed by
Page 39
immigration and asylum judges when considering asylum applications
supported by evidence about alleged conduct of foreign authorities which
will not have been disclosed to those authorities. Tribunal judges are used to
scrutinising such evidence in the light of other objective evidence. It is not a
perfect system but it is fair and workable.
89. The second way would avoid the problem of disclosure of the evidence to the
foreign state, because the foreign state would not be a party to the application,
any more than it would be in any other asylum application. There would be
no question of withholding the evidence from the Secretary of State. On the
contrary, the evidence would form the basis of the request to the Secretary of
State, against which an appeal would lie. It would be contrary to the ordinary
practice of the Secretary of State to disclose such evidence to the foreign
authority, and it is difficult to imagine that there would be any question of
disclosure of statements of witnesses which, if true, could place them or their
families in jeopardy. But there are disadvantages to this way of proceeding.
90. First, to have two sets of proceedings with overlapping evidence is
undesirable. I do not see that the asylum application could be dismissed as an
abuse of process, on the ground that it amounted to a collateral attack on the
findings in the extradition proceedings, in circumstances where the appellants
would not have been able to present all relevant evidence to the magistrates’
court. The United Kingdom has an international obligation to consider an
application for asylum, and I cannot see that this responsibility could be said
to have been fulfilled by an extradition hearing at which the court was
precluded by its own rules from hearing evidence relevant to the asylum
claim. (Nor do I think, with respect, that the tribunal judge could properly
draw any adverse inference about the credibility of the evidence from the
lateness of the asylum application, when the applicant on legal advice had
sought to deploy the evidence at what was thought to be the appropriate
stage.)
91. Secondly, there is the problem that an application for asylum or human rights
protection would be open only to the appellants who are not British subjects.
Such discrimination might be overcome in the way that I have mentioned,
but that would potentially involve a further set of proceedings.
92. Thirdly, rights under the European Convention are not identical with rights
under the Refugee Convention, although the overlap is such that in the
present case there may well not be a practical problem.
Page 40
93. Mention has been made by Lord Mance and Lord Hughes of the possibility
that any asylum claim would be excluded by article 1F(a) of the Refugee
Convention relating to war criminals. Lord Hughes suggests that the scope
for a finding that there is a prima facie case for extradition. but no serious
reason for applying the exclusion is likely to be narrow. However, there is a
significant difference in the standard of proof. A prima facie case for
extradition requires a much less high standard of proof than a decision that
an applicant’s rights under the Refugee Convention are excluded by article
1F(a): compare R v Governor of Pentonville Prison Ex parte Alves [1993]
AC 284,290,292 and Al Sirri v SSHD [2012] UKSC 54, [2013] 1 AC 745.
Moreover the evidence before the district judge and the tribunal judge would
be different. I do not therefore consider, with respect, that article 1F(a) is
relevant to the issue which this court has to decide.
94. The complications and delays which I foresee arising at the next stage or
stages of legal proceedings, if in the circumstances of this case the district
judge is not permitted to examine evidence of the kind with which we are
concerned in a closed hearing, reinforce my view that the least unjust way to
ensure proper protection of the appellants’ human rights is to make the
exception to the Al Rawi principle for which they contend.
95. I would therefore allow these appeals. On the separate question whether an
extradition judge conducting proceedings under the Extradition Act 2003 has
power to receive evidence from an anonymous witness, I agree with Lord
Hughes.
