(1) Armand Michael Proulx (Applicant) (1) The Governor of HM Prison Brixton and Another (Respondents) (2) R (1) Bow Street Magistrates'court (Respondent) (2)crown Prosecution Service and Another (Applicant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MANCE,Mr Justice Newman |
| Judgment Date | 28 July 2000 |
| Judgment citation (vLex) | [2000] EWHC J0728-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No.: CO/99/3802&3804 |
| Date | 28 July 2000 |
[2000] EWHC J0728-1
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mance
Mr Justice Newman
Case No.: CO/99/3802&3804
Mr Michel Massih Q.C. and Mr Mark J Summers (instructed by Messrs. Lound Mulrenan) appeared for the Applicant
Mr John Hardy (instructed by The Crown Prosecution Service) for the Respondents
Bow Street Magistrates'Court were not represented
Introduction
During the night of 25 /26 th March 1995 Stacey Koehler was killed by blows struck to the head with a heavy implement in her flat in Burnaby, British Columbia, Canada. She had worked in a Kentucky Fried Chicken restaurant in New Westminster, and had been promoted to become its manager about two months before her death. The applicant worked in the same restaurant, as did Patricia Gulliford, who was his girlfriend until April 1995. The applicant and Patricia Gulliford were interviewed after Stacey Koehler's death. He told the police and Patricia Gulliford confirmed that he had been with Patricia Gulliford on the evening of 25 th March 1995. According to an affidavit sworn 16 th October 1998 by Patricia Gulliford, that was in fact incorrect. It is common ground that its incorrectness could give rise to no more than suspicion in relation to the applicant. He was not arrested, and he left Canada for Mexico using his own passport in or about August 1995.
The applicant later moved to England, where he worked at the Queen Alexander Nursing Home, Folkestone. On 28 th August 1998 he was arrested on a warrant for his arrest issued by the Bow Street Magistrates Court under s.8(1)(b) of the Extradition Act 1989. On 16 th October 1998 nine affidavits were sworn setting out the basis and evidence upon which the respondent Government of Canada sought his extradition to Canada to stand trial for murder of Stacey Koehler. As will appear, the evidence relied upon is evidence of confessions made on 21 st and 22 nd August 1998 to Scott Doran, an officer of the Royal Canadian Mounted Police ("RCMP") working as an undercover agent in collaboration with the Kent Police Force and London Metropolitan Police in an operation code-named Implore.
The Secretary of State gave authority to proceed under s.7(4) of the Extradition Act 1989 on 9 th November 1998. The matter came before Mr Nicholas Evans, the Stipendiary Magistrate, under s.9(8) of the 1989 Act. That sub-section (as amended by the Criminal Justice and Public Order Act 1994) reads:
"9-(8) Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any representations made in support of the extradition request or on behalf of that person, that the offence to which the authority relates is an extradition crime, and is further satisfied-
(a) where that person is accused of the offence …. that the evidence would be sufficient to make a case requiring an answer by that person if the proceedings against him were the summary trial of an information against him;
(b) where that person is alleged to be unlawfully at large after conviction of the offence, that he has been so convicted and appears to be so at large,
the court …. shall commit him to custody or on bail-
(i) to await the Secretary of State's decision as to his return; and
(ii) if the Secretary of State decides that he shall be returned, to await his return."
The offence in relation to which extradition is sought is an extradition crime within the meaning of s.9(8). The issue argued before the Stipendiary Magistrate was whether the evidence before him "would be sufficient to make a case requiring an answer by [the applicant] if the proceedings against him were the summary trial of an information against him". By a ruling handed down on 2 nd September 1999, the Stipendiary Magistrate answered that issue affirmatively, and in consequence made an order for committal under s.9(8).
Applications for habeas corpus under s.11(1) and/or (3)(b) and/or (c) of the 1989 Act and/or for judicial review were lodged on 16 th September 1999. Permission to seek judicial review was granted on 11 th April 2000, and the applications for habeas corpus and judicial review were consolidated. The primary ground upon which habeas corpus is sought is that the Magistrate erred in his conclusion that there was any sufficient evidence under s.9(8). This in turn depends upon submissions that the Magistrate ought —under ss.76 and/or 78 of the Police and Criminal Evidence Act 1984 ("PACE") and/or under common law principles – to have excluded the evidence of the confessions made by the applicant to the RCMP officer working undercover in the course of Operation Implore. The Government of Canada accepts that there was and is no other evidence capable of justifying extradition. And, as the Magistrate said, if the confession is admitted, then, in the absence of any further evidence, a "case to answer"has been made out.
The application for judicial review represents an alternative, though Mr Massih QC for the applicant submits potentially wider, way of putting the applicant's objection to the use of the undercover evidence relied upon against him. It is submitted that the Magistrate erred in law in admitting the evidence and/or acted in a way in which no reasonable Magistrate properly directing himself could fairly have acted.
I shall have to consider further below the Divisional Court's role in relation to the applications for habeas corpus and judicial review with respect to the Stipendiary Magistrates'rulings and conclusion.
Secondary grounds upon which relief is sought are that it would having regard to all the circumstances be unjust or oppressive to return the applicant to Canada, under s.11(3)(b) by reason of the passage of time since he is alleged to have committed the murder and/or under s.11(3)(c) because the accusation against him is not made in good faith in the interests of justice. Similar submissions of injustice or oppression are relied upon as factors in support of the application for judicial review.
.The evidence
I start with the evidence upon which the respondent Government relies and the circumstances in which it was obtained. Operation Implore was carefully and professionally planned and executed, with attention being given expressly to English authority (particularly Smurthwaite and Gill (1994) 98 CAR 437) and Code C to PACE. In addition to the nine affidavits on which the Government relies, the Government made available, on a voluntary basis, to those representing the applicant extensive material relating to the operation, including a policy file showing the strategy and tactics adopted and its inception and course, a video and sound recording of the critical three hour meeting and conversation on 21 st August 1998, a sound recording of a subsequent meeting on 22 nd August 1998 and numerous recordings of other taped conversations in June, July and August 1998, together, it appears, with a number of witness statements. On the basis of this further material, a large number of admissions were drafted and made by the Government. The policy file, the video and sound recording of 21 st August and the transcript of the recording of 22 nd August 1998 were, together with the admissions, before the Magistrate.
At one point Mr Massih representing the applicant suggested that the Government had owed a positive duty to make (more extensive) disclosure. He later conceded that the issue of disclosure was argued and determined against the applicant by the Magistrate, and that there is no challenge to the Magistrate's ruling upon it. It is true, as Mr Massih points out, first that not all of the conversations which took place involving the applicant were recorded or successfully recorded, and secondly that further documentation relating to some aspects of Operation Implore must exist in the Government's possession. But the Government owed no duty to produce such material at this stage. In fact it has produced very substantial material, and there seems to me no doubt that a very full and fair picture of Operation Implore was put before the Magistrate, and indeed before us.
Whilst it will be material later in this judgment to consider precisely what the role of this Court is upon applications such as the present, we were ourselves asked to and have watched and listened to the video and sound recording of 21 st August 1998. We have read the transcript of the recording of 22 nd August 1998. The course of events is otherwise to be derived from the policy file, and from the contents of the admissions agreed with the applicant and made by the respondents which extract or summarise matters derived from the other recordings or relating to the course of events generally.
The avowed purpose of Operation Implore was throughout to "infiltrate"the applicant and to obtain evidence of his commission of Stacey Koehler's murder in 1995. The operation was under the control of DCI Townshend and DI Bungay of the Kent Police Force. Actual contact with the applicant was mainly by Scott Doran (calling himself "Woody"), but also by undercover policewomen from the Kent Police Force (particularly "Maxine"and from 19 th August 1998 "Alex") and some other undercover officers of no present materiality. Neither Woody nor any of those in direct contact with the applicant...
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