Regina v. Horseferry Road Magistrates Court (Respondents)
ex parte Bennett (A.P.) (Appellant) (On Appeal from a
Divisional Court of the Queen’s Bench Division)
JUDGMENT
Die Jovis 24° Junii 1993
Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Horseferry Road Magistrates
Court ex parte Bennett, That the Committee had heard Counsel as
well on Wednesday the 3rd as on Thursday the 4th, Monday the 8th
and Tuesday the 9th days of March last upon the Petition and
Appeal of Paul James Bennett currently on remand at Her Majesty’s
Prison Belmarsh, Western Way, London SE28 OEB, praying that the
matter of the Order set forth in the Schedule thereto, namely an
Order of a Divisional Court of the Queen’s Bench Division of the
31st day of July 1992, might be reviewed before Her Majesty the
Queen in Her Court of Parliament and that the said Order might
be reversed, varied or altered or that the Petitioner might have
such other relief in the premises as to Her Majesty the Queen in
Her Court of Parliament might seem meet; as upon the case of the
Director of Public Prosecutions on behalf of the Crown
Prosecution Service lodged in answer to the said Appeal; and due
consideration had this day of what was offered on either side in
this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of a Divisional Court of the
Queen’s Bench Division of Her Majesty’s High Court of Justice of
the 31st day of July 1992 complained of in the said Appeal be,
and the same is hereby, Set Aside save as to legal aid taxation,
and that the certified question be answered by a Declaration that
“the High Court, in the exercise of its supervisory jurisdiction,
has power to enquire into the circumstances by which a person has
been brought within the jurisdiction and, if satisfied that it
was in disregard of extradition procedures, it may stay the
prosecution and order the release of the accused”: And it is
further Ordered, That the Cause be, and the same is hereby,
remitted back to the Queen’s Bench Division of the High Court of
Justice to do therein as shall be just and consistent with this
Judgment.
Cler: Parliamentor:
Judgment: 24 June 1993
HOUSE OF LORDS
REGINA
v.
HORSEFERRY ROAD MAGISTRATES COURT
(RESPONDENTS)
EX PARTE BENNETT (A.P.)
(APPELLANT)
(ON APPEAL FROM A DIVISIONAL COURT
OF THE QUEEN’S BENCH DIVISION)
Lord Griffiths
Lord Bridge of Harwich
Lord Oliver of Aylmerton
Lord Lowry
Lord Slynn of Hadley
LORD GRIFFITHS
My Lords,
The appellant is a New Zealand citizen who is wanted for criminal
offences which it is alleged he committed in connection with the purchase of
a helicopter in this country in 1989. The essence of the case against him is
that he raised the finance to purchase the helicopter by a series of false
pretences and has defaulted on the repayments.
The English police eventually traced the appellant and the helicopter
to South Africa. The police, after consulting with the Crown Prosecution
Service, decided not to request the return of the appellant through the
extradition process. The affidavit of Detective Sergeant Martin Davies of the
Metropolitan Police of New Scotland Yard deposes as follows:
– 1 –
“I originally considered seeking the extradition of the applicant from
South Africa. I conferred with the Crown Prosecution Service, and it
was decided that this course of action should not be pursued. There
are no formal extradition provisions in force between the United
Kingdom and the Republic of South Africa and any extradition would
have to be by way of special extradition arrangements under section 15
of the Extradition Act 1989. No proceedings for the applicant’s
extradition were ever initiated.”
It is the appellant’s case that, having taken the decision not to employ
the extradition process, the English police colluded with the South African
police to have the appellant arrested in South Africa and forcibly returned to
this country against his will. The appellant deposes that he was arrested by
two South African detectives on 28 January 1991 at Lanseria South Africa,
who fixed a civil restraint order on the helicopter on behalf of the UK finance
company and told the appellant that he was wanted by Scotland Yard and he
was being taken to England. Thereafter he was held in police custody until
he was placed on an aeroplane in Johannesburg ostensibly to be deported to
New Zealand via Taipei. At Taipei when he attempted to disembark he was
restrained by two men who identified themselves as South African police and
said that they had orders to return him to South African and then to the United
Kingdom and hand him over to Scotland Yard. He was returned to South
Africa and held in custody until he was placed, handcuffed to the seat, on a
flight from Johannesburg on 21 February arriving at Heathrow on the morning
of 22 February when he was immediately arrested by three police officers
including Detective Sergeant Davies. He further deposes that he was placed
on this flight in defiance of an order of the Supreme Court of South Africa
obtained by a lawyer on his behalf on the afternoon of 21 February.
The English police through Sergeant Davies deny that they were in any
way involved with the South African police in returning the appellant to this
country. They say that they had been informed that there were a number of
warrants for the appellant’s arrest in existence in Australia and New Zealand
and that they requested the South African police to deport the appellant to
either Australia or New Zealand and it was only on 20 February that the
English police were informed by the South African police that the appellant
was to be repatriated to New Zealand by being placed on a flight to Heathrow
from whence he would then fly on to New Zealand. Sergeant Davies does,
however, depose in a second affidavit as follows:
“1. Further to my affidavit sworn in the above mentioned
proceedings on 29 November 1991, my earliest communications with
the South African authorities following the applicant’s arrest were with
the South African police with a view to his repatriation to New
Zealand or deportation to Australia and his subsequent extradition from
one of those countries to England. I discussed with the South African
police the question as to whether the applicant would be returned via
the United Kingdom and I was informed by them that he might be
– 2 –
returned via London. I sought advice from the Crown Prosecution
Service and from the Special Branch of the Metropolitan Police as to
what the position would be if he were so returned. I informed the
South African police by telephone that if the applicant were returned
via London he would be arrested on arrival. Subsequently I was
informed by the South African police that the applicant could not be
repatriated to New Zealand via Heathrow. . . .
“4. I now recollect that it was on 20 February and not on 21
February as I stated in my previous affidavit, that the South African
police informed me on the telephone that the applicant was to be
returned to New Zealand via Heathrow. On the same day I consulted
the Crown Prosecution Service and it was decided that the English
police would arrest the applicant on his arrival at Heathrow.”
It is not for your Lordships to pass judgment on where truth lies at this
stage of the proceedings but for the purpose of testing the submission of the
respondents that a court has no jurisdiction to inquire into such matters it must
be assumed that the English police took a deliberate decision not to pursue
extradition procedures but to persuade the South African police to arrest and
forcibly return the appellant to this country, under the pretext of deporting
him to New Zealand via Heathrow so that he could be arrested at Heathrow
and tried for the offences of dishonesty he is alleged to have committed in
1989. I shall also assume that the Crown Prosecution Service were consulted
and approved of the behaviour of the police.
On 22 May 1991 the appellant was brought before a stipendiary
magistrate for the purpose of committal proceedings. Counsel for the
appellant requested an adjournment to permit him to challenge the jurisdiction
of the magistrates’ court. The application was refused and the appellant was
committed for trial to the Southwark Crown Court on five offences of
dishonesty. The appellant obtained leave to bring proceedings for judicial
review to challenge the decision of the magistrate. On 22 July 1992 the
Divisional Court ruled that as a preliminary issue the court would consider
whether there was jurisdiction vested in the Divisional Court to inquire into
the circumstances by which the appellant had come to be within the
jurisdiction of the courts of England and Wales.
On 31 July 1992 the Divisional Court held that even if the evidence
showed collusion between the Metropolitan Police and the South African
police in kidnapping the appellant and securing his enforced illegal removal
from the Republic of South Africa there was no jurisdiction vested in the court
to inquire into the circumstances by which the appellant came to be within the
jurisdiction and accordingly dismissed the application for judicial review. The
Divisional Court has certified the following question of law:
“Whether in the exercise of its supervisory jurisdiction the court has
power to inquire into the circumstances by which a person has been
– 3 –
brought within the jurisdiction and if so what remedy is available if
any to prevent his trial where that person has been lawfully arrested
within the jurisdiction for a crime committed within the jurisdiction”.
The Divisional Court in this case was faced with conflicting decisions
of the Divisional Court in earlier cases. In Reg. v. Bow Street Magistrates’
Court, Ex parte Mackeson (1981) 75 Cr.App.R. 24 the facts were as follows.
The applicant was a British citizen who had left this country at the end of
1977 and in 1979 was working as a schoolteacher in Zimbabwe-Rhodesia. In
May 1979 he was wanted by the Metropolitan Police for offences of fraud that
he was alleged to have committed before he left this country. The
Metropolitan Police were aware that no extradition was lawfully possible at
that time because the Zimbabwe-Rhodesia Government was in rebellion
against the Crown. The Metropolitan Police therefore told the authorities in
Zimbabwe-Rhodesia that the applicant was wanted in England in connection
with fraud charges with the result that he was arrested and a deportation order
made against him. The applicant brought proceedings in Zimbabwe-Rhodesia
for the deportation order to be set aside which succeeded at first instance but
the decision was set aside on appeal. No attempt was made to use the
extradition process to secure the return of the applicant when Zimbabwe-
Rhodesia returned to direct rule under the Crown in December 1979. On 17
April 1980 the applicant was placed upon a plane by the police in Zimbabwe-
Rhodesia and arrested on his arrival at Gatwick by the Metropolitan Police on
17 April 1980. No evidence was offered in respect of the fraud charges but
further charges were alleged against him under the Theft Acts. The applicant
applied for an order of prohibition to prevent the hearing of committal
proceedings against him in the magistrates court on those charges.
On these facts Lord Lane C. J. giving the judgment of the Divisional
Court held, on the authority of Rex v. Officer Commanding Depot Battalion,
R.A.S.C., Colchester, Ex parte Elliott [1949] 1 All E.R. 373, that the court
had jurisdiction to try the applicant. He said, at p. 32:
“Whatever the reason for the applicant being at Gatwick Airport on the
tarmac, whether his arrival there had been obtained by fraud or illegal
means, he was there. He was subject to arrest by the police force of
this country. Consequently the mere fact that his arrival there may
have been procured by illegality did not in any way oust the
jurisdiction of the court. That aspect of the matter is simple.”
On the question of whether the court could or would exercise a
discretion in favour of the applicant to order his release from custody Lord
Lane C.J. relied upon a passage in the judgment of Woodhouse J. in Reg. v.
Hartley [1978] 2 N.Z.L.R. 199. a decision of the Court of Appeal of New
Zealand. In that case the New Zealand police had obtained the return of a
man named Bennett from Australia to New Zealand where he was wanted on
a charge of murder, merely by telephoning to the Australian police and asking
them to arrest Bennett and put him on an aeroplane back to New Zealand,
– 4 –
which they had done. Lord Lane C.J., cited the following extract from the
judgment of Woodhouse J. [1978] 2 N.Z.L.R. 199, 216-217:
“There are explicit statutory directions that surround the extradition
procedure. The procedure is widely known. It is frequently used by
the police in the performance of their duty. For the protection of the
public the statute rightly demands the sanction of recognised court
processes before any person who is thought to be a fugitive offender
can properly be surrendered from one country to another. And in our
opinion there can be no possible question here of the court turning a
blind eye to action of the New Zealand police which has deliberately
ignored those imperative requirements of the statute. Some may say
that in the present case a New Zealand citizen attempted to avoid a
criminal responsibility by leaving the country: that his subsequent
conviction has demonstrated the utility of the short cut adopted by the
police to have him brought back. But this must never become an area
where it will be sufficient to consider that the end has justified the
means. The issues raised by this affair are basic to the whole concept
of freedom in society. On the basis of reciprocity for similar favours
earlier received are police officers here in New Zealand to feel free,
or even obliged, at the request of their counterparts overseas to spirit
New Zealand or other citizens out of the country on the basis of mere
suspicion, conveyed perhaps by telephone, that some crime has been
committed elsewhere? In the High Court of Australia Griffith C.J.
referred to extradition as a ‘great prerogative power, supposed to be
an incident of sovereignty’ and then rejected any suggestion that ‘it
could be put in motion by any constable who thought he knew the law
of a foreign country, and thought it desirable that a person whom he
suspected of having offended against that law should be surrendered to
that country to be punished’: Brown v. Lizars (1905) 2 C.L.R. 837,
852. The reasons are obvious.
“We have said that if the issue in the present case is to be considered
merely in terms of jurisdiction then Bennett, being in New Zealand,
could certainly be brought to trial and dealt with by the courts of this
country. But we are equally satisfied that the means which were
adopted to make that trial possible are so much at variance with the
statute, and so much in conflict with one of the most important
principles of the rule of law, that if application had been made at the
trial on this ground, after the facts had been established by the
evidence on the voir dire, the judge would probably have been justified
in exercising his discretion under section 347(3) or under the inherent
jurisdiction to direct that the accused by discharged.”
Lord Lane C.J. followed that passage and exercised the court’s
discretion to order prohibition against the Magistrates’ Court and to discharge
the applicant.
– 5 –
Ex parte Mackeson, 75 Cr.App.R. 24, was followed by the Divisional
Court in Reg. v. Guildford Magistrates’ Court, Ex parte Healy [1983] 1
W.L.R. 108.
In Reg. v. Plymouth Justices, Ex parte Driver [1986] Q.B. 95 a
differently constituted Divisional Court after hearing argument containing
more elaborate citation of authority declined to follow Ex parte Mackeson and
held that the court had no power to inquire into the circumstance in which a
person was found within the jurisdiction for the purpose of refusing to try
him.
The Divisional Court regarded the law as settled by a trilogy of cases.
Ex parte Susannah Scott (1829) 9 B. & C. 446, Sinclair v. H.M. Advocate
(1890) 17 R.(J.) 38 and Rex v. Officer Commanding Depot Battalion,
R.A.S.C., Colchester, Ex parte Elliott [1949] 1 All.E.R. 373. These cases
undoubtedly show that at the time they were decided the judges were not
prepared to enquire into the circumstances in which a person came within the
jurisdiction. In Ex parte Susannah Scott Lord Tenterden C.J. granted a
warrant for the apprehension of Scott so that she might appear and plead to
a bill of indictment charging her with perjury. Ruthven, the police officer to
whom the warrant was directed arrested Scott in Brussels. She applied to the
British Ambassador for assistance but he refused to interfere and Ruthven
brought her to Ostend and then to England. A rule of nisi was obtained for
a habeas corpus to bring up Scott in order that she might be discharged. In
giving judgment Lord Tenterden C.J. said, 9 B. & C. 446, 448:
“The question, therefore, is this, whether if a person charged with a
crime is found in this country, it is the duty of the court to take care
that such a party shall be amenable to justice, or whether we are to
consider the circumstances under which she was brought here. I
thought, and still continue to think, that we cannot inquire into them.”
In Sinclair v. H.M. Advocate (1890) 17 R.(J.) 38 the sheriff substitute
of Lanarkshire granted a warrant to a Glasgow sheriff officer to arrest Sinclair
for breach of trust and embezzlement and to receive him into custody from the
government of Spain. The accused was brought before the sheriff substitute
on this warrant and committed to prison to await his trial. He brought a bill
of suspension and liberation in which he alleged that he had been arrested and
imprisoned in Portugal by the Portuguese authorities without a warrant; that
he had been put by them on board an English ship in the Tagus, and there had
been taken into custody by a Glasgow detective officer without the production
of a warrant; but during the voyage to London the vessel had been in the port
of Vigo, in Spain, for several hours: that the complainer had demanded to be
allowed to land there but had been prevented by the officer; that on arriving
in London he was not taken before a magistrate, nor was the warrant
endorsed, but he was brought direct to Scotland, and there committed to
prison, and no warrant was ever produced or exhibited to him. It was held
– 6 –
that these allegations did not set forth any facts to affect the validity of the
commitment by the sheriff substitute, which proceeded upon a proper warrant.
In the course of his judgment the Lord Justice-Clerk said, at pp. 40-42:
“There are three stages of procedure in this case – first, there are the
proceedings abroad where the complainer was arrested; second, there
are the proceedings on the journey to this country; and third, the
proceedings here. As regards the proceedings abroad and where the
complainer was arrested, they may or may not have been regular,
formal, and in accordance with the laws of Portugal and Spain, but we
know nothing about them. What we do know is that two friendly
powers agreed to give assistance to this country so as to bring to
justice a person properly charged by the authorities in this country with
a crime. If the Government of Portugal or of Spain has done anything
illegal or irregular in arresting and delivering over the complainer his
remedy is to proceed against these Governments. That is not a matter
for our consideration at all, and we cannot be the judges of the
regularity of such proceedings.
“In point of fact the complainer was put on board a British
vessel which was at that time in the roads at the mount of the Tagus,
and given into the custody of a person who held a warrant to receive
him, and who did so receive him. This warrant was perfectly regular,
as also his commitment to stand his trial on a charge of embezzlement.
If there was any irregularity in the granting or execution of these
warrants the person committing such irregularity would be liable in an
action of damages if any damage was caused. But that cannot affect
the proceedings of a public authority here. The public authority here
did nothing wrong. The warrants given to the officer to detain the
prisoner were quite formal, and it is not said that he did anything
wrong.
“It is said that the Government of Portugal did something
wrong, and that the authorities in this country are not to be entitled to
obtain any advantage from this alleged wrongdoing. As I have said,
we cannot be the judges of the wrongdoing of the Government of
Portugal. What we have here is that a person has been delivered to a
properly authorised officer of this country, and is now to be tried on
a charge of embezzlement in this country. He is therefore properly
before the court of a competent jurisdiction on a proper warrant. I do
not think we can go behind this. There has been no improper dealing
with the complainer by the authorities in this country, or by their
officer, to induce him to put himself in the position of being arrested,
as was the case in two of the cases cited. They were civil cases in
which the procedure was at the instance of a private party for his own
private ends, and the court very properly held that a person could not
– 7 –
take advantage of his own wrongdoing. But that is not the case here.
. . .
“No irregularity, then, involving suspension can be said to have
taken place on his arrival in London and on his journey here.
But even if the proceedings here were irregular I am of opinion
that where a court of competent jurisdiction has a prisoner
before it upon a competent complaint they must proceed to try
him, no matter what happened before, even although he may
have been harshly treated by a foreign government, and
irregularly dealt with by a subordinate officer.”
Lord M’Laren stated his view in the following terms, at pp. 43-44:
“With regard to the competency of the proceedings in Portugal, I think
this is a matter with which we really have nothing to do. The
extradition of a fugitive is an act of sovereignty on the part of the state
who surrenders him. Each country has its own ideas and its own rules
in such matters. Generally it is done under treaty arrangements, but
if a state refuses to bind itself by treaty, and prefers to deal with each
case on its merits, we must be content to receive the fugitive on these
conditions, and we have neither title nor interest to inquire as to the
regularity of proceedings under which he is apprehended and given
over to the official sent out to receive him into custody . . .
“I am of opinion with your Lordships that, when a fugitive is brought
before a magistrate in Scotland on a proper warrant, the magistrate has
jurisdiction, and is bound to exercise it without any consideration of
the means which have been used to bring him from the foreign country
into the jurisdiction.
“In a case of substantial infringement of right this court will always
give redress, but the public interest in the punishment of crime is not
to be prejudiced by irregularities on the part of inferior officers of the
law in relation to the prisoner’s apprehension and detention.'”
In Rex v. Officer Commanding Depot Battalion R.A.S.C., Colchester,
Ex parte Elliott [1949] 1 All E.R. 373 a deserter from the R.A.S.C. was
arrested in Belgium by British officers accompanied by two Belgian police
officers. He was brought to this country where he was charged with desertion
and detained in Colchester barracks. He applied for a writ of habeas corpus
which was issued and on the return of the writ he submitted that his arrest was
illegal because the British authorities had no power to arrest him in Belgium
and his arrest was contrary to Belgian law. Dealing with this submission Lord
Goddard C.J. said, at p. 376:
“The point with regard to the arrest in Belgium is entirely false. If a
person is arrested abroad and he is brought before a court in this
– 8 –
country charged with an offence which that court has jurisdiction to
hear, it is no answer for him to say, he being then in lawful custody
in this country: ‘I was arrested contrary to the laws of the state of A
or the state of B where I was actually arrested.’ He is in custody
before the court which has jurisdiction to try him. What is it
suggested that the court can do? The court cannot dismiss the charge
of one without its being heard. He is charged with an offence against
English law, the law applicable to the case. If he has been arrested in
a foreign country and detained improperly from the time that he was
first arrested until the time he lands in this country, he may have a
remedy against the persons who arrested and detained him, but that
does not entitle him to be discharged, though it may influence the
court if they think there was something irregular or improper in the
arrest.”
Lord Goddard C.J. then reviewed the decisions in Ex parte Susannah Scott,
9 B. & C. 446, and Sinclair v. H.M. Advocate, 17 R.(J.) 38, and after citing
the passage in the speech of Lord M’Laren which I have already cited Lord
Goddard C.J. continued, at pp. 377-378:
“That, again, is a perfectly clear and unambiguous statement of the
law administered in Scotland. It shows that the law of both countries
is exactly the same on this point and that we have no power to go into
the question, once a prisoner is in lawful custody in this country, of
the circumstances in which he may have been brought here. The
circumstances in which the applicant may have been arrested in
Belgium are no concern of this court.”
There were also cited to the Divisional Court a number of authorities
from the United States which showed that United States courts have not
regarded the constitutional right to “due process” as preventing a court in the
United States from trying an accused who has been kidnapped in a foreign
country and forcibly abducted into the United States. (See Ker v. Illinois
(1886) 119 U.S. 436 and United States of America v. Sobell (1956) 142 Supp.
515; (1957) 244 F. 2d 520.)
Relying on this line of authority the Divisional Court declined to
follow Mackeson, 75 Cr.App.R. 24, and held that it had no power to enquire
into the circumstances in which the applicant was brought within the
jurisdiction.
In the present case the Divisional Court approved the decision in Ex
parte Driver [1986] Q.B. 95 and in giving the leading judgment of the court
Woolf L.J. said:
‘However, quite apart from authority, I am bound to say it seems to
me that the approach of Stephen Brown L.J. [in Reg. v. Plymouth
– 9 –
Justices, Ex parte Driver [1986] Q.B. 95], in general, must be correct.
The power which the court is exercising, and the power which the
court was purporting to exercise, in Ex, parte Mackeson is one which
is based upon the inherent power of the court to protect itself against
the abuse of its own process. If the matters which are being relied
upon have nothing to do with that process but only explain how a
person comes to be within the jurisdiction so that that process can
commence, it seems to me difficult to see how the process of the court
(and I emphasise the word “court”) can be abused by the fact that a
person may or may not have been brought to this country improperly.”
However, in a later passage Woolf L.J. drew a distinction between improper
behaviour by the police and the prosecution itself, he said:
“Speaking for myself. I am not satisfied there could not be some form
of residual discretion which in limited circumstances would enable a
court to intervene, not on the basis of an abuse of process but on some
other basis which in the appropriate circumstances could avail a person
in a situation where he contends that the prosecution are involved in
improper conduct.”
Your Lordships have been urged by the respondents to uphold the
decision of the Divisional Court and the nub of their submission is that the
role of the judge is confined to the forensic process. The judge, it is said, is
concerned to see that the accused has a fair trial and that the process of the
court is not manipulated to his disadvantage so that the trial itself is unfair:
but the wider issues of the rule of law and the behaviour of those charged with
its enforcement, be they police or prosecuting authority, are not the concern
of the judiciary unless they impinge directly on the trial process. In support
of this submission your Lordships have been referred to Reg. v. Sang [1980]
A.C. 402 and those passages in the speeches of Lord Diplock at pp. 436-437
and Lord Scarman at pp. 454-455, which emphasise that the role of the judge
is confined to the forensic process and that it is no part of the judge’s function
to exercise disciplinary powers over the police or the prosecution.
The respondents have also relied upon the United States authorities in
which the Supreme Court has consistently refused to regard forcible abduction
from a foreign country as a violation of the right to trial by due process of
law guaranteed by the Fourteenth Amendment to the Constitution. See in
particular the majority opinion in United States v. Humberto Alvarez- Machain
(1992) 119 L. Ed. 2d 441 reasserting the Ker-Frisbie Rule. I do not,
however, find these decisions particularly helpful because they deal with the
issue of whether or not an accused acquires a constitutional defence to the
jurisdiction of the United States courts and not to the question whether
assuming the court has jurisdiction, it has a discretion to refuse to try the
accused. See Ker v. Illinois, 119 U.S. 436, 444.
– 10 –
The respondents also cited two Canadian cases decided at the turn of
the century, Rex v. Whiteside (1904) 8 Can. Cr. Cas. 478 and Rex v. Walton
(1905) 10 Can. Cr. Cas. 269 which show that the Canadian courts followed
the English and American courts accepting jurisdiction in criminal cases
regardless of the circumstances in which the accused was brought within the
jurisdiction of the Canadian court. We have also had our attention brought
to the New Zealand decision in Moevao v. Department of Labour [1980] 1
N.Z.L.R. 464, in which Richmond P. expressed reservations about the
correctness of his view that the prosecution in Reg. v. Hartley [1978] 2
N.Z.L.R. 199 was an abuse of the process of the court and Woodhouse J.
reaffirmed his view to that effect.
The appellant contends for a wider interpretation of the court’s
jurisdiction to prevent an abuse of process and relies particularly upon the
judgment of Woodhouse J. in Reg. v. Hartley, the powerful dissent of the
minority in United States v. Humberto Alvarez-Machain and the decision of
the South African Court of Appeal in S. v. Ebrahim 1991 (2) S.A. 553, the
headnote of which reads:
“The appellant, a member of the military wing of the African
National Congress who had fled South Africa while under a restriction
order, had been abducted from his home in Mbabane, Swaziland, by
persons acting as agents f the South African State, and taken back to
South Africa, where he was handed over to the police and detained in
terms of security legislation. He was subsequently charged with
treason in a Circuit Local Division, which convicted and sentenced
him to 20 years’ imprisonment. The appellant had prior to pleading
launched an application for an order to the effect that the court lacked
jurisdiction to try the case inasmuch as his abduction was in breach of
international law and thus unlawful. The application was dismissed
and the trial continued.
“The court, on appeal against the dismissal of the above
application, held, after a thorough investigation of the relevant South
African and common law, that the issue as to the effect of the
abduction on the jurisdiction of the trial court was still governed by the
Roman and Roman-Dutch common law which regarded the removal of
a person from an area of jurisdiction in which he had been illegally
arrested to another area as tantamount to abduction and thus constituted
a serious injustice. A court before which such a person was brought
also lacked jurisdiction to try him, even where such a person had been
abducted by agents of the authority governing the area of jurisdiction
of the said court. The court further held that the above rules embodied
several fundamental legal principles, viz. those that maintained and
promoted human rights, good relations between states and the sound
administration of justice: the individual had to be protected against
unlawful detention and against abduction, the limits of territorial
jurisdiction and the sovereignty of states had to be respected, the
– 11 –
fairness of the legal process guaranteed and the abuse thereof
prevented so as to protect and promote the dignity and integrity of the
judicial system. The state was bound by these rules and had to come
to court with clean hands, as it were, when it was itself a party to
proceedings and this requirement was clearly not satisfied when the
state was involved in the abduction of persons across the country’s
borders.
“It was accordingly held that the court a quo had lacked
jurisdiction to try the appellant and his application should therefore
have succeeded. As the appellant should never have been tried by the
court a quo, the consequences of the trial had to be undone and the
appeal disposed of as one against conviction and sentence. Both the
conviction and sentence were accordingly set aside.”
In answer to the respondent’s reliance upon Reg. v. Sang [1980] A.C.
402 the appellant points to section 78 of the Police and Criminal Evidence Act
1984 which enlarges a judge’s discretion to exclude evidence obtained by
unfair means.
As one would hope, the number of reported cases in which a court has
had to exercise a jurisdiction to prevent abuse of process are comparatively
rare. They are usually confined to cases in which the conduct of the
prosecution has been such as to prevent a fair trial of the accused. In Reg. v.
Derby Crown Court, Ex parte Brooks (1984) 80 Cr.App.R. 164, Sir Roger
Ormrod said, at pp. 168-169:
“The power to stop a prosecution arises only when it is an abuse of a
process of the court. It may be an abuse of process if either (a) the
prosecution have manipulated or misused the process of the court so
as to deprive the defendant of a protection provided by the law or to
take unfair advantage of a technicality, or (b) on the balance of
probability the defendant has been, or will be, prejudiced in the
preparation or conduct of his defence by delay on the part of the
prosecution which is unjustifiable . . .
“The ultimate objective of this discretionary power is to ensure
that there should be a fair trial according to law, which
involves fairness to both the defendant and the prosecution.”
There have, however, also been cases in which although the fairness of the
trial itself was not in question the courts have regarded it as so unfair to try
the accused for the offence that it amounted to an abuse of process. In Chu
Piu Wing v. Attorney-General [1984] H.K.L.R. 411 the Hong Kong Court of
Appeal allowed an appeal against a conviction for contempt of court for
refusing to obey a subpoena ad testificandum on the ground that the witness
had been assured by the Independent Commission Against Corruption that he
would not be required to give evidence, McMulen V.-P. said, at pp. 417-418:
– 12 –
“there is a clear public interest to be observed in holding officials of
the state to promises made by them in full understanding of what is
entailed by the bargain.”
And in a recent decision of the Divisional Court in Reg. v. Croydon Justices,
Ex parte Dean (unreported), 19 February 1993, the committal of the accused
on a charge of doing acts to impede the apprehension of another contrary to
section 4(1) of the Criminal Law Act 1967 was quashed on the ground that he
had been assured by the police that he would not be prosecuted for any
offence connected with their murder investigation and in the circumstances it
was an abuse of process to prosecute him in breach of that promise. .
Your Lordships are now invited to extend the concept of abuse of
process a stage further. In the present case there is no suggestion that the
appellant cannot have a fair trial, nor could it be suggested that it would have
been unfair to try him if he had been returned to this country through
extradition procedures. If the court is to have the power to interfere with the
prosecution in the present circumstances it must be because the judiciary
accept a responsibility for the maintenance of the rule of law that embraces a
willingness to oversee executive action and to refuse to countenance behaviour
that threatens either basic human rights or the rule of law.
My Lords, I have no doubt that the judiciary should accept this
responsibility in the field of criminal law. The great growth of administrative
law during the latter half of this century has occurred because of the
recognition by the judiciary and Parliament alike that it is the function of the
High Court to ensure that executive action is exercised responsibly and as
Parliament intended. So also should it be in the field of criminal law and if
it comes to the attention of the court that there has been a serious abuse of
power it should, in my view, express its disapproval by refusing to act upon
it.
Let us consider the position in the context of extradition. Extradition
procedures are designed not only to ensure that criminals are returned from
one country to another but also to protect the rights of those who are accused
of crimes by the requesting country. Thus sufficient evidence has to be
produced to show a prima facie case against the accused and the rule of
speciality protects the accused from being tried for any crime other than that
for which he was extradited. If a practice developed in which the police or
prosecuting authorities of this country ignored extradition procedures and
secured the return of an accused by a mere request to police colleagues in
another country they would be flouting the extradition procedures and
depriving the accused of the safeguards built into the extradition process for
his benefit. It is to my mind unthinkable that in such circumstances the court
should declare itself to be powerless and stand idly by; I echo the words of
Lord Devlin in Connelly v. Director of Public Prosecutions [1964] A.C. 1254,
1354:
– 13 –
“The courts cannot contemplate for a moment the transference to the
Executive of the responsibility for seeing that the process of law is not
abused.”
The courts, of course, have no power to apply direct discipline to the
police or the prosecuting authorities, but they can refuse to allow them to take
advantage of abuse of power by regarding their behaviour as an abuse of
process and thus preventing a prosecution.
In my view your Lordships should now declare that where process of
law is available to return an accused to this country through extradition
procedures our courts will refuse to try him if he has been forcibly brought
within our jurisdiction in disregard of those procedures by a process to which
our own police, prosecuting or other executive authorities have been a
knowing party.
If extradition is not available very different considerations will arise on
which I express no opinion.
The question then arises as to the appropriate court to exercise this
aspect of the abuse of process of jurisdiction. It was submitted on behalf of
the respondents that the examining magistrates have no power to stay
proceedings on the ground of abuse of process and reliance was placed on the
decisions of this House in Reg. v. Governor of Pentonville Prison, Ex parte
Sinclair [1991] 2 A.C. 64 and Atkinson v. United States of America
Government [1971] A.C. 197, which established that in extradition
proceedings a magistrate has no power to refuse to commit an accused on the
grounds of abuse of process. But the reason underlying those decisions is that
the Secretary of State has the power to refuse to surrender the accused if it
would be unjust or oppressive to do so; and now under the Extradition Act
1989 an express power to this effect has been conferred upon the High Court.
Your Lordships have not previously had to consider whether justices,
and in particular committing justices, have the power to refuse to try or
commit a case upon the grounds that it would be an abuse of process to do so.
Although doubts were expressed by Viscount Dilhorne as to the existence of
such a power in Reg. v. Humphrys [1917] A.C. 1, 26, there is a formidable
body of authority that recognises this power in the justices.
In Mills v. Cooper [1967] 2 Q.B. 459, Lord Parker C.J. hearing an
appeal from justices who had dismissed an information on the grounds that the
proceedings were oppressive and an abuse of the process of the court said, at
p. 467E:
“So far as the ground upon which they did dismiss the information was
concerned, every court has undoubtedly a right in its discretion to
decline to hear proceedings on the ground that they are oppressive and
an abuse of the process of the court.”
– 14 –
Diplock L. J. expressed his agreement with this view, at p. 470F. In Reg. v.
Canterbury and St. Augustine Justices, Ex parte Klisiak [1982] Q.B. 398,
411F, Lord Lane C.J. was prepared to assume such a jurisdiction. In Reg.
v. West London Stipendiary Magistrate, Ex parte Anderson (1984) 80
Cr.App.R. 143, Robert Goff L.J., reviewing the position at that date said, at
p. 149:
“There was at one time some doubt whether magistrates had
jurisdiction to decline to allow a criminal prosecution to proceed on the
ground that it amounted to an abuse of the process of the court: see
D.P.P. v. Humphrys (1976) 63 Cr.App.R. 95, 144; [1977] A.C. 1,
19, per Viscount Dilhorne. However, a line of authority which has
developed since that case has clearly established that magistrates do
indeed have such a jurisdiction: see in particular Brentford Justices,
Ex parte Wong (1981) 73 Cr.App.R. 67; [1981] Q.B. 445; Watford
Justices, Ex parte Outrim (1982) [1983] R.T.R. 26; Grays Justices,
Ex parte Graham (1982) 75 Cr.App.R. 229; [1982] 3 All E.R. 653.
The power has, however, been described by the Lord Chief Justice as
being ‘very strictly confined’: see Oxford City Justices, Ex parte
Smith (1982) 75 Cr.App.R. 200, 204.”
The power has recently and most comprehensively been considered and
affirmed by the Divisional Court by Reg. v. Telford Justices, Ex parte Badhan
[1991] 2 Q.B. 78, 81.
Provided it is appreciated by magistrates that this is a power to be most
sparingly exercised, of which they have received more than sufficient judicial
warning (see, for example, Lord Lane C.J. in Reg. v. Oxford City Justices,
Ex parte Smith (1982) 75 Cr.App.R. 200 and Ackner L.J. in Reg. v. Horsham
Justices, Ex parte Reeves (Note) (1980) 75 Cr.App.R. 236.) it appears to me
to be a beneficial development and I am unpersuaded that there are any
sufficient reasons to overrule a long line of authority developed by successive
Lord Chief Justices and judges in the Divisional Court who are daily in much
closer touch with the work in the magistrates court than your Lordships. Nor
do I see any force in an argument developed by the respondents which sought
to equate abuse of process with contempt of court. I would accordingly affirm
the power of the magistrates, whether sitting as committing justices or
exercising their summary jurisdiction, to exercise control over their
proceedings through an abuse of process jurisdiction. However, in the case
of magistrates this power should be strictly confined to matters directly
affecting the fairness of the trial of the particular accused with whom they are
dealing, such as delay or unfair manipulation of court procedures. Although
it may be convenient to label the wider supervisory jurisdiction with which we
are concerned in this appeal under the head of abuse of process, it is in fact
a horse of a very different colour from the narrower issues that arise when
considering domestic criminal trial procedures. I adhere to the view I
expressed in Reg. v. Guildford Magistrates’ Court, Ex parte Healy [1983] 1
– 15 –
W.L.R. 108 that this wider responsibility for upholding the rule of law must
be that of the High Court and that if a serious question arises as to the
deliberate abuse of extradition procedures a magistrate should allow an
adjournment so that an application can be made to the Divisional Court which
I regard as the proper forum in which such a decision should be taken.
I would answer the certified question as follows:- The High Court in
the exercise of its supervisory jurisdiction has power to enquire into the
circumstances by which a person has been brought within the jurisdiction and
if satisfied that it was in disregard of extradition procedures it may stay the
prosecution and order the release of the accused.
Accordingly I would allow this appeal and remit the case to the
Divisional Court for further consideration.
LORD BRIDGE OF HARWICH
My Lords.
This appeal raises an important question of principle. When a person
is arrested and charged with a criminal offence, is it a valid ground of
objection to the exercise of the court’s jurisdiction to try him that the
prosecuting authority secured the prisoner’s presence within the territorial
jurisdiction of the court by forcibly abducting him from within the jurisdiction
of some other state, in violation of international law, in violation of the laws
of the state from which he was abducted, in violation of whatever rights he
enjoyed under the laws of that state and in disregard of available procedures
to secure his lawful extradition to this country from the state where he was
residing? This is to state the issue very starkly, perhaps some may think
tendentiously. But because this appeal has to be determined on the basis of
assumed facts, your Lordships, as it seems to me, cannot avoid grappling with
the issue in this stark form.
In this country and in Scotland the mainstream of authority, as the
careful review in the speech of my noble and learned friend Lord Griffiths
shows, appears to give a negative answer to the question posed, holding that
the courts have no power to examine the circumstances in which a prisoner
was brought within the jurisdiction. I fully recognise the cogency of the
arguments which can be adduced in support of this view, sustained as they are
by the public interest in the prosecution and punishment of crime. But none
of the previous authorities is binding on your Lordships’ House and, if there
is another important principle of law which ought to influence the answer to
the question posed, then your Lordships are at liberty, indeed under a duty,
to examine it and, if it transpires that this is an area where two valid
principles of law come into conflict, it must, in my opinion, be for your
– 16 –
Lordships to decide as a matter of principle which of the two conflicting
principles of law ought to prevail.
When we look to see how other jurisdictions have answered a question
analogous to that before the House in terms of their own legal systems, the
most striking example of an affirmative answer is the decision of the South
African Court of Appeal in S. v. Ebrahim 1991 (2) S.A. 553 allowing an
appeal against his conviction for treason by a member of the African National
Congress on the sole ground that he had been abducted from Swaziland,
outside the jurisdiction of the South African court, by persons acting as agents
of the South African state. This decision, as the summary in the headnote
shows, resulted from the application of
“. . . several fundamental legal principles: viz. those that maintained
and promoted human rights, good relations between States and the
sound administration of justice: the individual had to be protected
against unlawful detention and against abduction, the limits of
territorial jurisdiction and the sovereignty of States had to be
respected, the fairness of the legal process guaranteed and the abuse
thereof prevented so as to protect and promote the dignity and integrity
of the judicial system. The State was bound by these rules and had to
come to Court with clean hands, as it were, when it was itself a party
to proceedings and this requirement was clearly not satisfied when the
State was involved in the abduction of persons across the country’s
borders.”
In the United States, the authorities reveal a conflict of judicial
opinion. The doctrine established by Supreme Court decisions in 1886, Ker
v. Illinois 119 U.S. 436, and in 1952, Frisbie v. Collins 342 U. S. 519,
accords substantially in its effect with the doctrine of the early English
authorities. But more recently this doctrine has been powerfully challenged.
In United States v. Toscanino (1974) 500 F. 2d 267, 268 the defendant, an
Italian citizen, who had been convicted in the New York District Court of a
drug conspiracy, alleged that the court had “acquired jurisdiction over him
unlawfully through the conduct of American agents who had kidnapped him
in Uruguay . . . tortured him and abducted him to the United States for the
purpose of prosecuting him” there. The lower court having held that these
allegations were immaterial to the exercise of its jurisdiction to try him,
provided he was physically present at the time of trial, he appealed to the
United States Court of Appeals Second Circuit. The effect of the court’s
decision is sufficiently summarised in the headnote. The court held:
“. . . that federal district court’s criminal process would be abused or
degraded if it was executed against defendant Italian citizen, who
alleged that he was brought into the United States from Uruguay after
being kidnapped, and such abuse could not be tolerated without
debasing the processes of justice so that defendant was entitled to a
hearing on his allegations. . . . Government should be denied the
– 17 –
right to exploit its own illegal conduct, and when an accused is
kidnapped and forcibly brought within the jurisdiction, court’s
acquisition of power over his person represents the fruits of the
government’s exploitation of its own misconduct.”
The most recent decision of the United States Supreme Court in United
States v. Alvarez-Machain (1992) 119 L.Ed. 2d 441 concerned a Mexican
citizen indicted for the murder of an agent of the Drug Enforcement
Administration (D.E.A.). The District Court had held that other D.E.A.
agents had been responsible for the defendant’s abduction from Mexico; that
this had been in violation of the extradition treaty between Mexico and the
United States; and that the accused should be discharged and repatriated to
Mexico. This decision was affirmed by the United States Court of Appeals,
Ninth Circuit, but reversed by the Supreme Court by a majority of 6 to 3.
The opinions related primarily to the question whether the abduction was a
breach of the treaty. The majority held that the abduction, although
“shocking”, involved no breach of the treaty and relied on the earlier
decisions in the cases of Ker, 119 U.S. 436, and Frisbie, 342 U.S. 519, for
the view that the abduction was irrelevant to the exercise of the court’s
criminal jurisdiction. The dissenting opinion of Stevens J., in which
Blackmun and O’Connor JJ. joined, held that the abduction was both in breach
of the treaty and in violation of general principles of international law and
distinguished the earlier authorities as having no application to a case where
the abduction in violation of international law was carried out on the authority
of the executive branch of the United States Government. The minority
opinion was that this was an infringement of the rule of law which it was the
court’s duty to uphold. After referring to the South African decision in S. v.
Ebrahim, Stevens J. writes in the final paragraph of his opinion, at pp. 466-
467:
“The Court of Appeal of South Africa – indeed, I suspect most courts
throughout the civilised world – will be deeply disturbed by the
‘monstrous’ decision the Court announces today. For every nation that
has an interest in preserving the rule of law is affected, directly or
indirectly, by a decision of this character.”
In the common law jurisdiction closest to our own the opinion
expressed by Woodhouse J. in the New Zealand case of Reg. v. Hartley
[1978] 2 N.Z.L.R. 199, in which he describes the issue as “basic to the whole
concept of freedom in society,” has already been cited by my noble and
learned friend Lord Griffiths and I need not repeat it. In the later case of
Moevao v. Department of Labour [1980] 1 N.Z.L.R. 464, 475-476,
Woodhouse J. cited the relevant passage from his own judgment in Hartley
and added:
“It is not always easy to decide whether some injustice involves the
further consequence that a prosecution associated with it should be
– 18 –
regarded as an abuse of process. And in this regard the Courts have
been careful to avoid confusing their own role with the executive
responsibility for deciding upon a prosecution. In the Connelly case
Lord Devlin referred to those matters and then, as I have said, he went
on to speak of the importance of the Courts accepting what he
described as their ‘inescapable duty to secure fair treatment for those
who come or are brought before them’. He said that ‘the courts
cannot contemplate for a moment the transference to the Executive of
the responsibility for seeing that the process of law is not abused’
[1964] A.C. 1254, 1353. . . .
“Those remarks involve an important statement of constitutional
principle. They assert the independent strength of the judiciary to
protect the law by protecting its own purposes and function. It is
essential to keep in mind that it is ‘the process of law’, to used Lord
Devlin’s phrase, that is the issue. It is not something limited to the
conventional practices or procedures of the Court system. It is the
function and purpose of the Courts as a separate part of the
constitutional machinery that must be protected from abuse rather than
the particular processes that are used within the machine. It may be
that the shorthand phrase ‘abuse of process’ by itself does not give
sufficient emphasis to the principle that in this context the Court must
react not so much against an abuse of the procedure that has been built
up to enable the determination of a criminal charge as against the
much wider and more serious abuse of the criminal jurisdiction in
general. It is for reasons of this kind that I remain of the opinion that
the trial Judge would have been entirely justified in the Hartley case
in stopping the prosecution against the man Bennett.”
Whatever differences there may be between the legal systems of South
Africa, the United States, New Zealand and this country, many of the basic
principles to which they seek to give effect stem from common roots. There
is, I think, no principle more basic to any proper system of law than the
maintenance of the rule of law itself. When it is shown that the law
enforcement agency responsible for bringing a prosecution has only been
enabled to do so by participating in violations of international law and of the
laws of another state in order to secure the presence of the accused within the
territorial jurisdiction of the court, I think that respect for the rule of law
demands that the court take cognisance of that circumstance. To hold that the
court may turn a blind eye to executive lawlessness beyond the frontiers of its
own jurisdiction is, to my mind, an insular and unacceptable view. Having
then taken cognisance of the lawlessness it would again appear to me to be a
wholly inadequate response for the court to hold that the only remedy lies in
civil proceedings at the suit of the defendant or in disciplinary or criminal
proceedings against the individual officers of the law enforcement agency who
were concerned in the illegal action taken. Since the prosecution could never
have been brought if the defendant had not been illegally abducted, the whole
proceeding is tainted. If a resident in another country is properly extradited
– 19 –
here, the time when the prosecution commences is the time when the
authorities here set the extradition process in motion. By parity of reasoning,
if the authorities, instead of proceeding by way of extradition, have resorted
to abduction, that is the effective commencement of the prosecution process
and is the illegal foundation on which it rests. It is apt, in my view, to
describe these circumstances, in the language used by Woodhouse J. in
Moevao v. The Department of Labour [1980] 1 N.Z.L.R. 464, 467, as an
“abuse of the criminal jurisdiction in general” or indeed, in the language of
Mansfield J. in United States v. Toscanino, 500 F. 2d 267, as a “degradation”
of the court’s criminal process. To hold that in these circumstances the court
may decline to exercise its jurisdiction on the ground that its process has been
abused may be an extension of the doctrine of abuse of process but is, in my
view, a wholly proper and necessary one.
For these reasons and for the reasons given in the speech of my noble
and learned friend Lord Griffiths, with which I fully agree, I would allow the
appeal.
LORD OLIVER OF AYLMERTON
My Lords,
A citizen whose rights have been infringed by unlawful or over-
enthusiastic action on the part of an executive functionary has a remedy by
way of recourse to the courts in civil proceedings. It may not be an ideal
remedy. It may not always be a remedy which is easily available to the
person injured. It may not even, certainly in his estimation, be an adequate
remedy. But it is the remedy which the law provides to the citizen who
chooses to invoke it. The question raised by this appeal is whether, in
addition to such remedies as may be available in civil proceedings, the court
should assume the duty of overseeing, controlling and punishing an abuse of
executive power leading up to properly instituted criminal proceedings not by
means of the conventional remedies invoked at the instance of the person
claiming to have been injured by such abuse but by restraining the further
prosecution of those proceedings. The results of the assumption of such a
jurisdiction are threefold; and they are surprising. First, the trial put in train
by a charge which has been properly laid will not take place and the person
charged (if guilty) will escape a just punishment; secondly, the civil remedies
available to that person will remain enforceable; and thirdly, the public
interest in the prosecution and punishment of crime will have been defeated
not be a necessary process of penalising those responsible for executive abuse
but simply for the purpose of manifesting judicial disapproval.
It is, of course, axiomatic that a person charged with having committed
a criminal offence should receive a fair trial and that, if he cannot be tried
– 20 –
fairly for that offence, he should not be tried for it at all. But it is also
axiomatic that there is a strong public interest in the prosecution and
punishment of crime. Absent any suggestion of unfairness or oppression in
the trial process, an application to the court charged with the trial of a
criminal offence (to which it may be convenient to refer by the shorthand
expression “a criminal court”), whether that application be made at the trial
or at earlier committal proceedings, to order the discontinuance of the
prosecution and the discharge of the accused on the ground of some anterior
executive activity in which the court is in no way implicated requires to be
justified by some very cogent reason.
Making, as I do, every assumption in favour of the appellant as regards
the veracity of the evidence which he has adduced and the implications sought
to be drawn from it, I discern no such cogent reason in the instant case. I
do not consider that, either as a matter of established law or as a matter of
principle, a criminal court should be concerned to entertain questions as to the
propriety of anterior executive acts of the law enforcement agencies which
have no bearing upon the fairness or propriety of the trial process or the
ability of the accused to defend himself against charges properly brought
against him.
I have had the advantage of reading in draft the speech delivered by
my noble and learned friend Lord Griffiths and I gratefully acknowledge and
adopt his recitation of the relevant authorities and the conflict of judicial
opinion which arises from them. Your Lordships have, in addition, been
referred in the course of argument to a number of reports of civil cases of
respectable antiquity in which persons originally unlawfully detained have
been released from custody in the exercise of the court’s undoubted
jurisdiction to prevent abuses of its own process. But those were cases in
which parties to civil proceedings had sought to take advantage of their own
wrong in securing the unlawful detention of another party by serving
proceedings for civil arrest upon him whilst unlawfully detained. In the case
of a person charged with the commission of a criminal offence following an
allegedly irregular initial detention, there was, until the case of Reg. v. Bow
Street Magistrates’ Court, Ex parte Mackeson (1981) 75 Cr.App.R. 24 an
unbroken line of authority in the United Kingdom dating from the early
nineteenth century for the proposition perhaps most pithily expressed by Lord
Goddard C.J. in Rex v. Officer Commanding Depot Battalion, R.A.S.C.,
Colchester, Ex parte Elliott [1949] 1 All E.R. 373 that once a person is in
lawful custody in this country the court has no power and is not concerned to
inquire into the circumstances in which he may have been brought here. Ex
parte Mackeson and Reg. v. Guildford Magistrates’ Court, Ex parte Healy
[1983] 1 W.L.R. 108 which impliedly followed it, were to the contrary effect,
but in a reserved judgment of the Divisional Court delivered by Stephen
Brown L.J. in Reg. v. Plymouth Justices, Ex parte Driver [1986] Q.B. 95, in
which all the relevant authorities were fully reviewed, that court followed the
earlier line of authority and rejected the decision in Ex parte Mackeson as
– 21 –
having been decided per incuriam. Ex parte Driver was followed by the
Divisional Court in the instant case in rejecting the appellant’s claim that the
criminal court had jurisdiction to consider and pass judgment upon the
circumstances in which he had been brought within the jurisdiction.
The appellant invites this House now to say that the decision in Ex
parte Mackeson is to be preferred and that a criminal court’s undoubted
jurisdiction to prevent abuses of its own process should be extended, if indeed
it does not already extend, to embrace a much wider jurisdiction to oversee
what is referred to generally as “the administration of justice,” in the broadest
sense of the term, including the executive acts of law-enforcement agencies
occurring before the process of the court has been invoked at all and having
no bearing whatever upon the fairness of the trial.
I have to say that I am firmly of the opinion that, whether such a
course be properly described as legislation or merely as pushing forward the
frontiers of the common law, the invitation is one which ought to be resisted.
For my part, I see neither any inexorable logic calling for such an extension
nor any social need for it; and it seems to me to be a course which will be
productive of a good deal of inconvenience and uncertainty.
I can, perhaps, best explain my reluctance to embark upon such a
course by postulating and seeking to answer two questions :-
First, does a criminal court have, or should it have, any general duty
or any power to investigate and oversee executive abuses on the part of law-
enforcement officers not affecting either the fairness of the trial process or the
bona fides of the charge which it is called upon to try and occurring prior to
the institution of the criminal proceedings and to order the discontinuance of
such proceedings and the discharge of the accused if it is satisfied that such
abuses have taken place? Secondly, if there is no such general jurisdiction
and if the executive abuse alleged consists of the repatriation of the accused
from a foreign country through acts which are unlawful in the country in
which they occurred, is there some special quality in this form of executive
abuse which gives rise to or which calls for the creation of such a jurisdiction
in this particular case?
So far as the first question is concerned, I know of no authority for the
existence of any such general supervisory jurisdiction in a criminal court. It
is not, of course, in dispute that the court has power to prevent the abuse of
its own process and that must, I would accept, include power to investigate
the bona fides of the charge which it is called upon to try and to decline to
entertain a charge instituted in bad faith or oppressively – for instance, if the
accused’s co-operation in the investigation of a crime has been secured by an
executive undertaking that no prosecution will take place. Thus, I would not
tor a moment wish to suggest any doubt as to the correctness of a decision
such as that in the recent case of Reg. v. Croydon Justices, Ex parte Dean
(unreported), 19 February 1993. where the Court quashed committal
– 22 –
proceedings instituted after an undertaking given to the accused by police
officers that he would not be prosecuted. In such a case doubt is cast both
upon the bona fides of the prosecution and on the fairness of the process to
an accused who has been invited to prejudice his own position on the faith of
the undertaking. Where, however, there is no suggestion that the charge is
other than bona fide or that there is any unfairness in the trial process, the
duty of the criminal court is simply to try the case and I can see nc ground
upon which it can claim a discretion, or upon which it ought properly to be
invited, to discontinue the proceedings and discharge an accused who is
properly charged simply because of some alleged anterior excess or unlawful
act on the part of the executive officers concerned with his apprehension and
detention. That is not for a moment to suggest that such abuses, if they
occur, are unimportant or are to be lightly accepted; but they are acts for
which, if they are unlawful, the accused has the same remedies as those
available to any other citizen whose legal rights have been infringed. If they
are not only unlawful but are criminal as well, they are themselves remediable
by criminal prosecution. That a judge may disapprove of or even be rightly
outraged by the manner in which an accused has been apprehended or by his
treatment whilst in custody cannot, however, provide a ground for declining
to perform the public duty of insuring that, once properly charged he is tried
fairly according to law.
In Reg. v. Sang [1980] AC 402, 454, Lord Scarman observed:
“Judges are not responsible for the bringing or abandonment of
prosecutions; nor have they the right to adjudicate in a way which
indirectly usurps the functions of the legislature or jury.”
Those words were used in the context of a suggested discretion to prevent a
prosecution because of judicial disapproval of the way in which admissible
evidence had been obtained, but they are equally applicable to other executive
acts which may incur judicial disapprobation. Experience shows that
allegations of abusive use of executive power in the apprehension of those
accused of criminal offences are far from rare. They may take the form of
allegations of illegal entry on pnvate premises, of damage to property, of the
use of excessive force or even of ill-treatment or violence whilst in custody.
So far as there is substance in such allegations, such abuses are disgraceful
and regrettable and they may, no doubt, be said to reflect very ill on the
administration of justice in the broadest sense of that term. But they provide
no justification nor. so far as I am aware, is there any authority for the
proposition that wrongful treatment of an accused, having no bearing upon the
fairness of the trial process, entitles him to demand that he be not tried for an
offence with which he has been properly charged. Indeed, any such general
jurisdiction of a criminal court to investigate and adjudicate upon antecedent
executive acts would be productive of hopeless uncertainty. It clearly cannot
be the case that every excessive use of executive power entitles the accused
to be exonerated. But then at what point and at what degree of outrage is the
-23-
criminal court to undertake an enquiry and, if satisfied, to take upon itself the
responsibility of refusing further to try the case?
If, then, it be right, as I believe that it is, that there neither is nor
should be any general discretion in a criminal court to enquire into the
conduct of executive officers before and leading up to the institution of
criminal proceedings, the second question which I have ventured to postulate
arises. Where, with the connivance or at the instigation of executive officers
in this country, an accused person who has taken refuge in a foreign country
is brought as a result of activity unlawful in that country within the
jurisdiction of an English court and is then lawfully detained and charged, is
there some special quality attaching to the unlawful and abusive activity
abroad which confers or ought to confer on the criminal court a discretion
which it would not otherwise possess?
The matter can, perhaps, best be illustrated by a hypothetical example
of two terrorists, A and B, who, having detonated a bomb in London, make
their way to Dover with a view to escaping abroad. A, as a result of a
quarrel with a ticket inspector, is wrongfully detained by the railway police
and whilst still in wrongful custody is duly arrested for the terrorist offence
and subsequently charged. B, having successfully boarded a Channel ferry,
is recognised as he steps ashore in Calais by two off-duty constables returning
from holiday who seize him on the quayside and take him back on board
keeping him under restraint until the ferry returns to Dover where he is
arrested and charged. Now nobody would, I think, suggest for a moment
that the trial of A should not proceed, simply because, as a result of a
wrongful arrest and detention, he has been prevented from making good his
escape, although he has in fact been put in the position of being charged and
brought to trial only by reason of an unlawful abuse of executive power.
What, then, distinguishes the case of B and confers on the criminal court in
his case a discretion to stay his trial and discharge him which the court which
does not possess in the case A? I can see only two possible justifications for
the suggestion that the court ought, in B’s case, to have such a discretion.
First, it may be argued that, as a matter of international comity an English
court ought to signify its disapproval of the invasion of the protective rights
of a foreign state over those who come within its jurisdiction by declining to
try a person who has been wrongfully removed from the protection of that
state through the instrumentality of persons for whose actions the authorities
of this country are responsible. I do not find this argument persuasive. An
English criminal court is not concerned nor is it in a position to investigate the
legality under foreign law of acts committed on foreign soil and in any event
any complaint of an invasion of the sovereignty of a foreign state is, as it
seems to me, a matter which can only properly be pursued on a diplomatic
level between the government of the United Kingdom and the government of
that state.
Secondly, it may be argued that the unlawful activity of which
complaint is made, because it results in the accused being brought within a
-24-
jurisdiction from which he would otherwise have escaped, is invested with a
special character because it infringes some “right” of the accused in English
law to be repatriated only through a process of extradition by the state under
whose protection he has succeeded in placing himself. Now it is, of course,
perfectly true that the Extradition Act 1989 contains, in section 6(4), an
inhibition upon extradition from the United Kingdom unless provision is made
by the receiving state that the person extradited will not, without the consent
of the Secretary of State, be dealt with for (in broad terms) offences other
than those in respect of which his extradition has been ordered. That
provision is mirrored in section 18 of the Act which provides that the person
extradited to the United Kingdom from a foreign state will not be triable for
(again in board terms) offences other than those for which he has been
extradited unless he has first had an opportunity of leaving the United
Kingdom. Thus a person who is returned only as a result of extradition
proceedings enjoys, as a result of this statutory inhibition, an advantage over
one who elects to return voluntarily or who is otherwise induced to return
within the jurisdiction. But these are provisions inserted in the Act for the
purpose of giving effect to reciprocal treaty arrangements for extradition. I
cannot, for my part, regard them as conferring upon a person who is fortunate
enough successfully to flee the jurisdiction some “right” in English law which
is invaded if he is brought or induced to come back within the jurisdiction
otherwise than by an extradition process, much less a right the invasion of
which a criminal court is entitled or bound to treat as vitiating the process
commenced by a charge properly brought. It is not suggested for a moment
that if, as a result of perhaps unlawful police action abroad – for instance, in
securing the deportation of the accused without proper authority -in which
officers of the United Kingdom authorities are in no way involved, an accused
person is found here and duly charged, the illegality of what may have
occurred abroad entitles the criminal court here to discontinue the prosecution
and discharge the accused. Yet in such a case the advantage in which the
accused might have derived from the extradition process is likewise destroyed.
No “right” of his in English law has been infringed, though he may well have
some remedy in the foreign court against those responsible for his wrongful
deportation. What is said to make the critical difference is the prior
involvement of officers of the executive authorities of the United Kingdom.
But the arrest and detention of the accused are not part of the trial process
upon which the criminal court has the duty to embark. Of course, executive
officers are subject to the jurisdiction of the courts. If they act unlawfully,
they may and should be civilly liable. If they act criminally, they may and
should be prosecuted. But I can see no reason why the antecedent activities,
whatever the degree of outrage or affront they may occasion, should be
thought to justify the assumption by a criminal court of a jurisdiction to
terminate a properly instituted criminal process which it is its duty to try.
I would only add that if, contrary to my opinion, such an extended
jurisdiction over executive abuse does exist, I entirely concur with what has
fallen from my noble and learned friend Lord Griffiths with regard to the
– 25 –
appropriate court to exercise such jurisdiction. I would dismiss the appeal
and answer the certified question in the negative.
LORD LOWRY
My Lords,
Having had the advantage of reading in draft the speeches of your
Lordships, I accept the conclusion of my noble and learned friends Lord
Griffiths and Lord Bridge of Harwich that the court has a discretion to stay
as an abuse of process criminal proceedings brought against an accused person
who has been brought before the court by abduction in a foreign country
participated in or encouraged by British authorities. Recognising, however,
the clear and forceful reasoning of my noble and learned friend Lord Oliver
of Aylmerton to the contrary, I venture to contribute some observations of my
own.
The first essential is to define abuse of process, which in my opinion
must mean abuse of the process of the court which is to try the accused.
Archbold (1992 edition) at paragraph 4.44 calls it “a misuse or improper
manipulation of the process of the court”. In Rourke v. R. (1977) 76 D.L.R.
(3d) 193 Laskin C.J.C. said at p. 205, “The court is entitled to protect its
process from abuse’ and also referred at p. 207 to “the danger of generalising
the application of the doctrine of abuse of process”. In Moevao v. Department
of Labour [1980] 1 N.Z.L.R. 464 Woodhouse J. spoke approvingly of “the
much wider and more serious abuse of the criminal jurisdiction in general”,
whereas Richmond P., giving expression to reservations about the view in
which he had concurred in Reg. v. Hartley [1978] 2 N.Z.L.R. 199, referred
at p. 470 to the need to establish “that the process of the court is itself being
wrongly made use of”. I think that the words used by Woodhouse J. involve
a danger that the doctrine of abuse of process will be too widely applied and
I prefer the narrower definition adopted by the President. The question still
remains what circumstances antecedent to the trial will produce a situation in
which the process of the court of trial will have been abused if the trial
proceeds.
Whether the proposed trial will be an unfair trial is not the only test
of abuse of process. The proof of a previous conviction or acquittal on the
same charge means that it will be unfair to try the accused but not that he is
about to receive an unfair trial. Again, in Reg. v. Grays JJ., Ex parte Low
(1989) 88 Cr.App.R. 291 it was held to be an abuse of process to prosecute
a summons where the accused had already been bound over and the summons
had been withdrawn, while in Reg. v. Horsham JJ., Ex parte Reeves (1982)
75 Cr.App.R. 236 it was held to be an abuse of process to pursue charges
when the magistrates had already found “no case to answer”. It would, I
submit, be generally conceded that for the Crown to go back on a promise of
immunity given to an accomplice who is willing to give evidence against his
– 26 –
confederates would be unacceptable to the proposed court of trial, although the
trial itself could be fairly conducted. And to proceed in respect of a non-
extraditable offence against an accused who has with the connivance of our
authorities been unlawfully brought within the jurisdiction from a country with
which we have an extradition treaty need not involve an unfair trial, but this
consideration would not in my opinion be an answer to an application to stay
the proceedings on the ground of abuse of process.
This last example, though admittedly not based on authority,
foreshadows my conclusion that a court would have power to stay the present
proceedings against the appellant, assuming the facts alleged to be proved,
because I consider that a court has a discretion to stay any criminal
proceedings on the ground that to try those proceedings will amount to an
abuse of its own process either (1) because it will be impossible (usually by
reason of delay) to give the accused a fair trial or (2) because it offends the
court’s sense of justice and propriety to be asked to try the accused in the
circumstances of a particular case. I agree that prima facie it is the duty of
a court to try a person who is charged before it with an offence which the
court has power to try and therefore that the jurisdiction to stay must be
exercised carefully and sparingly and only for very compelling reasons. The
discretion to stay is not a disciplinary jurisdiction and ought not to be
exercised in order to express the court’s disapproval of official conduct.
Accordingly, if the prosecuting authorities have been guilty of culpable delay
but the prospect of a fair trial has not been prejudiced, the court ought not to
stay the proceedings merely “pour encourager les autres”.
Your Lordships have comprehensively reviewed the authorities and
therefore I will be content to highlight the features which have led me to
conclude in favour of the appellant. The court in Ex parte Mackeson (1982)
75 Cr.App.R. 24, while quite clear that there was jurisdiction to try the
applicant, relied on Reg. v. Hartley [1978] 2 N.Z.L.R. 199 for the existence
of a discretion to make an order of prohibition. Woodhouse J. in Hartley had
also recognised the Jurisdiction to try Bennett, but expressed the court’s
conclusion that to do so in the circumstances offended against “one of the
most important principles of the rule of law”. The court’s decision in Ex
parte Driver [1986] 1 Q.B. 95 to the contrary effect was influenced by Ex parte Susannah Scott (1829) 9 B. & C. 446, Sinclair v. H.M. Advocate (1890)
17 R.(J.) 38 and Rex v. Officer Commanding Depot Battalion R.A.S.C.
Colchester, Ex parte Elliott [1949] 1 All E.R. 373. Scott and Sinclair were
decisions on jurisdiction and formed the basis of the decision in Ex parte
Elliott, in which there was an application for a writ of habeas corpus, based
on the allegation that the applicant was not subject to military law and that he
was wrongfully held in custody. My noble and learned friend Lord Griffiths
has described the argument advanced by the applicant and the manner in
which Lord Goddard C.J. dealt with that argument in the court’s judgment by
reference to the cases of Scott and Sinclair. Then, having disposed of an
argument based on provisions of the Army Act relating to arrest, the Lord
– 27 –
Chief Justice came to “The only point in which there was any substance . . .
whether there has been such delay that this court ought to interfere.” (p.
379A). Neither in the discussion and rejection of this point nor anywhere else
in the judgment does the question of abuse of process arise and, as the
judgment put it at p. 379F,
“What we were asked to do in the present case, and the most we could
have been asked to do, was to admit the prisoner to bail until the court
was ready to try him.”
This brief review strengthens my inclination to prefer Ex parte Mackeson to
Ex parte Driver and to the Divisional Court’s judgment on the main point in
the present case, since I consider that the true guidance is to be found not in
the jurisdictional cases but in Reg. v. Hartley. My noble and learned friend
Lord Griffiths has already pointed out that the United States authorities, in
which opinion is divided, have involved a discussion of jurisdiction and the
interpretation of the Fourteenth Amendment.
While on the subject of due process, I might take note of a subsidiary
argument by the respondent: the use by the prosecution of evidence which has
been unlawfully or dishonestly obtained is regarded in the United States as a
violation of due process (“the fruit of the poisoned tree”), but the
preponderant American view is in favour of trying accused persons even when
their presence in court has been unlawfully obtained; therefore a fortiori the
view in this jurisdiction ought to favour trying such accused persons, having
regard to the more tolerant common law attitude here to unlawfully obtained
evidence, as shown by Reg. v. Sang [1980] AC 402. My answer is that I
would consider it a dangerous and question-begging process to rely on this
chain of reasoning, particularly where the constitutional meaning of “due
process” is one of the factors. As your Lordships have noted, the respondent
also relied on Reg. v. Sang directly in order to support the argument that it
does not matter whether the accused comes to be within the jurisdiction by fair
means or foul.
The philosophy which inspires the proposition that a court may stay
proceedings brought against a person who has been unlawfully abducted in a
foreign country is expressed, so far as existing authority is concerned, in the
passages cited by my noble and learned friend Lord Bridge of Harwich. The
view there expressed is that the court, in order to protect its own process from
being degraded and misused, must have the power to stay proceedings which
have come before it and have only been made possible by acts which offend
the courts’ conscience as being contrary to the rule of law. Those acts by
providing a morally unacceptable foundation for the exercise of jurisdiction
over the suspect taint the proposed trial and, if tolerated, will mean that the
court’s process has been abused. Therefore, although the power of the court
is rightly confined to its inherent power to protect itself against the abuse of
its own process, I respectfully cannot agree that the facts relied on in cases
such as the present case (as alleged) “have nothing to do with that process”
– 28 –
just because they are not part of the process. They are the indispensable
foundation for the holding of the trial.
The implications for international law, as represented by extradition
treaties, are significant. If a suspect is extradited from a foreign country to
this country he cannot be tried for an offence which is different from that
specified in the warrant and, subject always to the treaty’s express provisions,
cannot be tried for a political offence. But, if he is kidnapped in the foreign
country and brought here, he may be charged with any offence, including a
political offence. If British officialdom at any level has participated in or
encouraged the kidnapping, it seems to represent a grave contravention of
international law, the comity of nations and the rule of law generally if our
courts allow themselves to be used by the executive to try an offence which
the courts would not be dealing with if the rule of law had prevailed.
It may be said that a guilty accused finding himself in the
circumstances predicated is not deserving of much sympathy, but the principle
involved goes beyond the scope of such a pragmatic observation and even
beyond the rights of those victims who are or may be innocent. It affects the
proper administration of justice according to the rule of law and with respect
to international law. For a comparison of public and private interests in the
criminal arena I refer to an observation of Lord Reading C.J. in a different
context in Rex v. Lee Kun [1916] 1 K.B. 337, 341:
“. . . the trial of a person for a criminal offence is not a contest of
private interests in which the rights of parties can be waived at
pleasure. The prosecution of criminals and the administration of the
criminal law are matters which concern the State.”
If proceedings are stayed when wrongful conduct is proved, the result will not
only be a sign of judicial disapproval but will discourage similar conduct in
future and thus will tend to maintain the purity of the stream of justice. No
“floodgates” argument applies because the executive can stop the flood at
source by retraining from impropriety.
I regard it as essential to the rule of law that the court should not have
to make available its process and thereby endorse (on what I am confident will
be a very few occasions) unworthy conduct when it is proved against the
executive or its agents, however humble in rank. And, remembering that it
is not jurisdiction which is in issue but the exercise of a discretion to stay
proceedings, while speaking of “unworthy conduct”, I would not expect a
court to stay the proceedings of every trial which has been preceded by a
venial irregularity. If it be objected that my preferred solution replaces
certainty by uncertainty, the latter quality is inseparable from judicial
discretion. And, if the principles are clear and, as I trust, the cases few, the
prospect is not really daunting. Nor do I consider that your Lordships ought
to be deterred from deciding in favour of discretion by the difficulty, which
may sometimes arise, of proving the necessary facts.
– 29 –
I would now pose and try to answer three questions.
1. What is the position if without intervention by the British authorities
a “wanted man” is wrongfully transported from a foreign country to this
jurisdiction?
The court here is not concerned with irregularities abroad in which our
executive (at any level) was not involved and the question of staying criminal
proceedings, as proposed in a case like the present, does not arise. It seems
to me, however, that in practice the transporting of a wanted man to the
United Kingdom from elsewhere (by whatever method) will nearly always take
place in consequence of a request by the executive here.
2. Why should the court not stay for abuse of process if the accused has
been wrongfully arrested in the United Kingdom (which is not alleged to have
happened in the instant case)?
A person wrongfully arrested here can seek release by applying for a
writ of habeas corpus but. once released, can be lawfully arrested, charged
and brought to trial. His earlier wrongful arrest is not essentially connected
with his proposed trial and the proceedings against him will not be stayed as
an abuse of process.
3. If at common law the rule in Reg. v. Sang applies to let in admissible
evidence obtained by wrongful conduct on the part of the executive, why does
similar reasoning not prevail where the presence of the accused has been
procured by wrongful conduct in which the executive is involved?
Reg. v. Sang exemplifies a common law rule of evidence, as explained
by the speeches in that case, which applied to all admissible evidence except
confessions and certain evidence produced by confessions (as to which see
Lam Chi-Ming v. The Queen [1991] 2 A.C. 212.) The abuse of process which
brings into play the discretion to stay proceedings arises from wrongful
conduct by the executive in an international context. Secondly, although there
Is no discretion at common law to exclude evidence (except confession
evidence) by reason of wrongful conduct, there is discretion to stay
proceedings as an abuse of process (see Connelly v. D.P.P. [1964] A.C.
1254) and the alleged facts of the instant case are but one example of the need
for that discretion.
It has been suggested that, since the executive conduct complained of
invades the rights of other countries and of persons under their protection and
detracts from international comity, the remedy lies not with the courts but in
the field of diplomacy. I would answer that the court must jealously protect
its own process from misuse by the executive and that this necessity gives
particular point to the observation of Lord Devlin (which my noble and
learned friend Lord Griffiths has already noted) in Connelly v. D.P.P. at p.
1354:
– 30 –
“The courts cannot contemplate for a moment the transference to the
Executive of the responsibility for seeing that the process of law is not
abused.”
I now turn to the question of procedure. The appellant, having been
committed for trial, applied for an order of certiorari to quash the order for
committal on the ground that the magistrates refused to adjourn the committal
proceedings “to enable the point of abuse of process to be argued”,
presumably in the Divisional Court of the Queen’s Bench Division. Although
I feel obliged to consider the procedure which was followed in this case and
that which must follow from the conclusion of the majority of your Lordships,
I preface my remarks by saying that I agree with the answer to the certified
question, and also with the order, which my noble and learned friend Lord
Griffiths has proposed.
In Ex parte Mackeson (1982) 75 Cr.App.R. 24 the applicant applied
to the Divisional Court before the day fixed for the committal proceedings for
an order of certiorari quashing the charges against him and prohibiting the
magistrates from proceeding with the committal proceedings. The Divisional
Court, having held that there was jurisdiction to stay the proceedings as an
abuse of process, granted prohibition. In Ex parte Healy [1983] 1 W.L.R.
108, another case of alleged “disguised extradition”, the single lay justice
hearing the committal proceedings was invited to decide the abuse of process
point and to stay the proceedings. After a five day hearing she decided the
point against the accused, who then applied for an order of certiorari. I have
difficulty in seeing how the magistrate’s decision on a question of fact could
have been attacked by certiorari but in any event the Divisional Court rejected
the application on the merits. So the committal stood. In his judgment my
noble and learned friend, then Griffiths L.J., said at p. 112A:
“This court considers that it was wrong to invite a single lay justice to
consider a matter such as this. Whether or not there has been an
abuse of process of the sort raised in these proceedings is a matter far
more fitting to be inquired into by the Queen’s Bench Divisional Court
than by a single justice. If a point such as this is to be taken in future
it should be taken in the form in which it was in Reg. v. Bow Street
Magistrates, Ex parte Mackeson, 75 Cr.App.R. 24; that is, there
should be an objection to the justice hearing the committal and the
matter should be pursued before the Divisional Court by way of an
application for judicial review seeking an order of prohibition. That
is not to say that we have any criticism whatsoever of the way in
which the justice approached her task in this case. Both the defence
and the prosecution asked her to decide the question: she clearly went
into it with the greatest care and we are quite unable to find any fault
or criticism with any of the conclusions of fact at which she arrived.
In the opinion of this court, having been asked to undertake a task
which we do not think was appropriate for a single lay justice, she
discharged her duties quite admirably.”
– 31 –
and at p. 113G:
“Accordingly, I have come to the conclusion that there is no merit or
substance in this application and it will be refused. As I say, if this
question is to be raised in further cases the proper procedure is to use
that in Reg. v. Bow Street Magistrates, Ex parte Mackeson, 75
Cr.App.R. 24, so that the Divisional Court may be seised of the
matter, and not bring it up before a lay justice on committal
proceedings. However, we anticipate that cases of this nature are
likely to be very rare.”
McCullough J., concurring, said at p. 113H:
“Whether this was an application properly made to the justice or
whether it was one that should properly have been made in the first
place to the Divisional Court, I am in no doubt that no order of
certiorari should go. Despite the admirable way in which this justice
dealt with the matter, I share the concern of Griffiths L. J. that a single
lay justice should be asked to grapple with questions of this kind. It
is better I think that the question should be dealt with as in Reg. v.
Bow Street Magistrates, Ex parte Mackeson, 75 Cr.App.R. 24 even
although such a course may leave one wondering precisely how a
justice in such circumstances can be said to have acted in excess of
jurisdiction or made an error of law.”
In Ex parte Driver [1986] Q.B. 95 the applicant sought prohibition in
accordance with the Mackeson procedure, as recommended in Healy, but the
order sought was refused on the ground that there was no jurisdiction to stay
for the reasons relied on.
The Driver doctrine therefore held sway when the present case came
before the magistrates with a view to committal. Accordingly, it is
understandable that the magistrates rejected the request of the accused to
adjourn while he made a Mackeson application and instead proceeded to
commit him for trial.
My Lords, I am satisfied that, on the facts found in Mackeson, it was
both lawful and appropriate to make an order of prohibition directed to the
magistrates’ court. While that court had jurisdiction to entertain committal
proceedings, the High Court decided that to permit the criminal proceedings
against the accused to continue would be an abuse of process of the court (of
trial); it would therefore be equally an abuse of process to permit proceedings
in the magistrates’ court to be conducted (or, once embarked on, continued)
with a view to commuting the accused to the Crown Court for trial, which
would be oppressive to the accused and a waste of the court’s time. A
parallel is found in the order made in Reg. v. Telford JJ., Ex parte Badhan
[1991] 2 Q.B. 78, where the Divisional Court prohibited the magistrates from
– 32 –
further hearing committal proceedings on the ground that, by reason of the
prejudice caused by delay, to proceed against the accused would amount to an
abuse of process. In my view the fact that the decision and order are made
by the High Court, although the Crown Court is the proposed court of trial,
makes no difference. It is the function of the High Court to exercise
supervisory jurisdiction over inferior courts, including the magistrates’ court.
It is, moreover noteworthy that the function of directing or giving consent to
preferment of a “voluntary” bill of indictment can only be performed by a
High Court judge in England and Wales (or by the direction of the Criminal
Division of the Court of Appeal): see Administration of Justice (Miscellaneous
Provisions) Act 1933 section 2(2), which continues in force unamended since
the transfer of criminal jurisdiction on indictment to the Crown Court in 1971.
What I have said is not of course intended to detract from the power of the
court of trial itself, as the primary forum, to stay proceedings as an abuse of
process, but the convenience of staying the proceedings at an earlier stage is
obvious, when that can properly be done.
Short of allowing the proceedings to reach the Crown Court, the merit
of having the case considered by the High Court in preference to the
examining magistrate or magistrates is clear. In any event, notwithstanding
dicta to the contrary, I would, on the authority of Grassby v. The Queen
(1989) 168 C.L.R. 1, a decision of the High Court of Australia, and of cases
there cited (to which I shall presently refer), not be easily persuaded that
examining magistrates have jurisdiction to stay committal proceedings for
abuse of process. (I say nothing about the power of magistrates when sitting
to try a case as a court of summary jurisdiction, as in Mills v. Cooper [1967]
2 Q.B. 459.)
My Lords, as I have said, the remedy sought is an order of certiorari.
I prefer to consider that remedy according to the conventional, perhaps now
“old-fashioned”, principles enunciated in R. (Martin) v. Mahony [1910] 2 I.R.
695, Rex v. Nat Bell Liquors [1922] 2 AC 128 and Rex v. Northumberland
Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 KB 338, without
seeking to justify the making of an order in this case by reference to more
recent views, including views based on dicta uttered in this House. As I see
it, the magistrates here, understandably but erroneously relying on Ex parte
Driver, acted prematurely and therefore without jurisdiction when they
proceeded to hear and determine the committal proceedings without first
allowing the appellant to make to the Divisional Court an application which
(subject to Ex parte Driven was on its face at least worthy of consideration.
Having, however innocently, neglected an essential preliminary step (namely
the adjournment decreed by Ex parte Healy), the magistrates incurred the
liability to have their order of committal quashed. For an example of
proceedings in which a condition precedent to jurisdiction was omitted I refer
to In re McC. (a minor) [1985] A.C. 528. I would be in favour of remitting
the case to the Divisional Court to reconsider it in the light of your Lordships’
opinions, since one alternative would be to refuse an order of certiorari
– 33 –
because an application to stay the proceedings can perfectly well be made to
the court of trial, and the decision (relating to trial on indictment) would not,
it seems, be reviewable: In re Ashton [1993] 2 W.L.R. 846. The other, and
perhaps more convenient, course would be for the Divisional Court now to
hear the application for a stay. If that were decided in favour of the appellant,
the court could make an order of certiorari and such other order, if any, as
might be needed to prevent the proceedings in the magistrates’ court from
going ahead. It seems to me that, by analogy with proceedings which are
terminated by reason of irregular extradition procedures, the appellant, if he
succeeds, would have to be given an opportunity to “escape” but, subject to
that, I can see nothing to prevent him from being properly pursued in the
future, for example by ad hoc extradition under section 15.
Since the resolution of the point is not essential to your Lordships’
decision of the appeal, I shall be brief in my discussion of whether the
examining magistrates can stay committal proceedings as an abuse of process.
In Grassby v. The Queen supra the accused was charged with criminal
defamation and the examining magistrate stayed the committal proceedings on
the ground of abuse of process. The Crown appealed to the Court of Criminal
Appeal of New South Wales, which set aside the stay. The accused sought
special leave to appeal from that decision. The High Court granted special
leave but dismissed the appeal (which involved another point, namely the
refusal of a member of the Court of Criminal Appeal to disqualify himself.)
Dawson J. delivered the leading judgment, holding that a committing
magistrate has no power to stay the proceedings as an abuse of process. All
the other members of the court, presided over by Mason, C.J., agreed except
Deane J. who considered that, if the magistrate concluded (in the words of the
Act) that “a jury would not be likely to convict” because the trial court was
likely to stay the proceedings for abuse of process, he should then discharge
the accused. The judge, however, agreed in the result on the facts and his
dissent was based only on his interpretation of section 41(6) of the Justices
Act.
Dawson J. said at p. 10 that the magistrate’s power to stay for abuse
of process “has been denied upon the highest authority in the United
Kingdom.” He referred to Connelly v. D.P.P. [1964] A.C. 1254 and
continued:
“See also Mills v. Cooper [1967] 2 Q.B. 459, per Lord Parker
C.J. Whether such comments were correct in relation to inferior
courts exercising ordinary judicial functions has been doubted (see
Reg. v. Humphrys [1977] A.C. 1 per Viscount Dilhorne, per Lord
Salmon; to the contrary Reg. v. West London Stipendiary Magistrate;
Ex parte Anderson (1984) 80 Cr.App.R. 143, but it is clear that they
do not extend to a magistrate hearing committal proceedings. In
Atkinson v. Government of the United States of America [1971] A.C.
– 34 –
197,231 Lord Reid (with whom Lords MacDermott and Guest agreed)
said:
‘The question is whether, if there is evidence sufficient to
justify committal, the magistrate can refuse to commit on any
other ground such as that committal would be oppressive or
contrary to natural justice. The appellant argues that every
court in England has power to refuse to allow a criminal case
to proceed if it appears that justice so requires.
“The appellant argues that this was established, if it had been
in doubt, by the decision of this House in Connelly v. Director
of Public Prosecutions . . .
‘Whatever may be the proper interpretation of the speeches in
Connelly’s case . . . with regard to the extent of the power of
a trial judge to stop a case, I cannot regard this case as any
authority for the proposition that magistrates have power to
refuse to commit an accused for trial on the ground that it
would be unjust or oppressive to require him to be tried. And
that proposition has no support in practice or in principle. In
my view once a magistrate decides that there is sufficient
evidence to justify committal he must commit the accused for
trial.'”
In Ex parte Sinclair [1991] 2A.C. 64, another extradition case, Lord Ackner
in his illuminating speech pointed out at p. 78E that Lord Reid’s view of the
magistrate’s power to refuse to commit for trial by reason of abuse of process
was obiter. Nonetheless a view expressed by such a high authority commends
respect, and Lord Reid was making his point as an integral link in his
argument, to show that in extradition proceedings a magistrate has no such
power.
Dawson J. observed that it has been consistently held that committal
proceedings do not constitute a judicial inquiry but are conducted in the
exercise of a judicial or ministerial function. Citing seven Australian cases,
he continued at p. 11:
The explanation is largely to be found in history. A
magistrate in conducting committal proceedings is exercising the
powers of a justice of the peace. Justices originally acted, in the
absence of an organised police force, in the apprehension and arrest of
suspected offenders. Following the Statutes of Philip and Mary of
1554 and 1555 (1 & 2 Philip & Mary c. 13; 2 & 3 Philip & Mary c.
10), they were required to act upon information and to examine both
the accused and the witnesses against him. The inquiry was conducted
in secret and one of its main purposes was to obtain evidence to
present to a grand jury. The role of the justices was thus inquisitorial
– 35 –
and of a purely administrative nature. It was the grand jury, not the
justices, who determined whether the accused should stand trial.
“With the establishment of an organised police force in England
in 1829, the role of the justices underwent change. The most
significant factor in this change was in The Indictable Offences Act
1848 (U.K.) (11 & 12 Vict, c.42), ‘Sir John Jervis’s Act’, which
provided for witnesses appearing before the justices to be examined in
the presence of the accused and to be cross-examined by the accused
or his counsel.”
After an interesting and valuable historical review the judge said, at pp. 15-
16:
“The fact that a magistrate sits as a court and is under a duty
to act fairly does not, however, carry with it any inherent power.
Indeed, in my view, the nature of a magistrate’s court is such that it
has no powers which might properly be described as inherent even
when it is exercising judicial functions. A fortiori that must be the
case when its functions are of an administrative character. In Reg. v.
Forbes; Ex parte Bevan, Menzies J. pointed out that:
‘”Inherent jurisdiction” is the power which a court has
simply because it is a court of a particular description. Thus
the Courts of Common Law without the aid of any authorising
provision had inherent jurisdiction to prevent abuse of their
process and to punish for contempt. Inherent jurisdiction is not
something derived by implication from statutory provisions
conferring particular jurisdiction; if such a provision is to be
considered as conferring more than is actually expressed that
further jurisdiction is conferred by implication according to
accepted standards of statutory construction and it would be
inaccurate to describe it as “inherent jurisdiction”, which, as
the name indicates, requires no authorizing provision. Courts
of unlimited jurisdiction have ‘inherent jurisdiction’.'”
Then, having emphasised the distinction between inherent jurisdiction and
jurisdiction by implication, Dawson J. observed at p. 17:
“The fact that in the conduct of committal proceedings a
magistrate is performing a ministerial or administrative function is, of
course, no bar to the existence of implied powers, if such are
necessary for the effective exercise of the powers which are expressly
conferred upon him. The latter are now to be found in s. 41 of the
Justices Act. But the scheme of that section, far from requiring the
implication of a general power to stay proceedings, is such as to
impose an obligation upon the magistrate to dispose of the information
– 36 –
which brings the defendant before him by discharging the defendant as
to it or by committing him for trial.”
Having referred to section 41 of the Justices Act, the learned judge then said
at p. 18:
“There is no room in the face of these statutory obligations,
couched as they are in mandatory terms, for the implication of a
discretionary power to terminate the proceedings in a manner other
than that provided. Nor is this surprising. True it is that a person
committed for trial is exposed to trial in a way in which he would
otherwise not be, but the ultimate determination whether he does in
fact stand trial does not rest with the magistrate. The power to order
a stay where there is an abuse of the process of the trial court is not
to be found in the committing magistrate and the considerations which
would guide the exercise of that power have little relevance to the
function which the magistrate is required to perform.”
It would, of course, be convenient (as well as correct, in my view) if the
examining magistrates could not stay for abuse of process, because judicial
review of a decision to stay would be a most inadequate remedy if the real
ground of review was simply that the magistrates had erred in their exercise
of discretion. Moreover, their decision would not bind the court of trial, if
the Attorney General were to prefer a voluntary bill.
For the reasons already mentioned and also for the reasons given by
my noble and learned friends I would allow the appeal.
LORD SLYNN OF HADLEY
My Lords.
I have had the advantage of reading in draft the speeches prepared by
my noble and learned friends Lord Griffiths, Lord Bridge of Harwich and
Lord Oliver of Aylmerton. Despite the powerful reasons adverted to by Lord
Oliver of Aylmerton I agree with Lord Griffiths that the question should be
answered in the way he proposes. It does not seem to me to be right in
principle that, when a person is brought within the jurisdiction in the way
alleged in this case (which for present purposes must be assumed to be true)
and charged, that the court should not be competent to investigate the illegality
alleged, and if satisfied as to the illegality to refuse to proceed to trial. I
would accordingly allow the appeal.
– 37 –
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