Cuoghi v Governor of Brixton Prison
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,MR JUSTICE BLOFELD |
| Judgment Date | 30 April 1998 |
| Judgment citation (vLex) | [1998] EWHC J0430-2 |
| Docket Number | CO/1839/95 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 April 1998 |
[1998] EWHC J0430-2
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION (DIVISIONAL COURT)
Royal Courts of Justice
Strand
London W2A 2LL
Lord Justice Kennedy
(Vice President of the Queens Bench Division)
Mr Justice Blofeld
CO/1839/95
and
MR D LEE (instructed by Messrs Judge Sykes Frixon, London WC2B 6YF) appeared on behalf of the applicant.
MISS R ARLOW (instructed by The Crown Prosecution Service) appeared on behalf of the 1st Respondent.
MR J TURNER (instructed by Treasury Solicitors) appeared on behalf of the 2nd respondent.
Thursday 30 April 1998
This is an application for Habeas Corpus brought by the applicant in extradition proceedings following his committal by the Magistrate to await the determination of the Secretary of State. Part of the procedural history is the essential background to this application, so I turn first to that history.
The applicant was arrested in London on 30th November 1994 at the request of the Government of Switzerland on a provisional warrant which alleged that in 1992 to 1993 he had been defrauding Credit Suisse. On the same day he was granted bail, and on 14th January 1995, in response to a request from the Swiss Authorities, the Secretary of State gave authority to proceed pursuant to section 7(4) of the Extradition Act 1989.
When the papers were served on the applicant and were seen by his lawyers it appeared to them that the papers were not authenticated as envisaged by section 26(1) of the 1989 Act and the United Kingdom reservation to Article 12 of the European Convention on Extradition (to be found in schedule 1 to the European Convention on Extradition Order 1990) in that they were not sealed with the official seal of the Minister of Justice or some other Swiss Minister of State.
On behalf of the applicant expert advice was sought from the Swiss lawyer, Monsieur Neyroud, who confirmed that to be the position.
It seems, as Mr Garlick QC for the Government of Switzerland put it to us, that the documents had been authenticated by the Canton but not by the State.
On 10th May 1995 when the committal proceedings commenced, without prior warning the point was taken on behalf of the applicant that the documents were not properly authenticated. It was submitted that without properly authenticated documents, no committal order could be made. Mr Garlick submitted that in an accusation case, governed by the European Convention, it was not necessary to have authenticated documents. That submission failed.
He then sought an adjournment to enable him to make his own enquiries as to whether the documents had in fact been seen by the Minister of Justice or some other Swiss Minister of State. The adjournment was not sought to give the Swiss Government a chance to produce authenticated documents. The applicant's counsel asked for Mr Garlick to undertake not to use the adjournment to "put matters right". Mr Garlick pointed out that he had no authority to give any such undertaking, but he did apparently say that the Government of Switzerland would not use the adjournment to re-authenticate the papers. The applicant's representatives did not oppose the application for an adjournment to 2nd June 1995 and it was granted as the subsequent letter from the Magistrates' Court makes clear: "solely on the question of authentication of the documents".
Miss Arvinder Sambei of the CPS, who was acting in this matter for the Government of Switzerland, then wrote on 12th May 1995 to her contact at the Swiss Embassy setting out the point taken on behalf of the applicant in the Magistrates' Court and enclosing a copy of Monsieur Neyroud's affidavit. Her letter continues:
"I suggest that a copy of the affidavit and the extradition papers be sent to Switzerland for a lawyer to consider the comments made by Mr Neyroud.
If the lawyer instructed by the Swiss Authorities disagrees with the contents of the defence affidavit, he should provide us with an affidavit stating his views and the reason for it … If, however, the lawyer agrees with the Defence then we may be in obvious difficulties, in which case the Swiss Authorities may have to submit a fresh request which is properly authenticated. The request will have to be sent at the latest by the end of May 1995.
It may be prudent to include in the fresh request particulars of the identity of Mr Cuoghi, namely his photograph or fingerprints which must also be authenticated."
On 19th May 1995 the solicitors acting for the applicant wrote to the Secretary of State saying that at the adjourned hearing on 2nd June 1995 the applicant's counsel would contend that the proceedings were invalid, and asking that in the event of a further authority to proceed being sought by the Swiss Government, the applicant would be given an opportunity to make representations to the Secretary of State prior to the granting of the authority to proceed.
In a reply dated 26th May 1995 the Home Office recognised the possibility that the applicant would be discharged on 2nd May 1995 because at that stage the Crown Prosecution Service was not intending to contest the proceedings. In that event the Secretary of State would consider issuing a fresh authority to proceed and the applicant's solicitors were asked to make any representations they might wish to make by 1st June 1995. In fact, that was not the course they chose to pursue. What they did was to bring the matter back before the Magistrate on 30th May 1995 thus in effect (and having regard to the contents of the letter of 26th May 1995) depriving the Secretary of State of an opportunity to issue a fresh authority to proceed.
On 30th May 1995 Mr Garlick indicated that he was now satisfied that the documents which had been before the Magistrates on the previous occasion were not sealed as envisaged by section 26(1) of the Act and the reservation to Article 12 of the Convention, but that since 10th May 1995 the Swiss Government, not at his instigation or at the instigation of those instructing him, had supplied a new sealed bundle of the same statements. So, whilst reserving his right to argue in this court that authentication was unnecessary, Mr Garlick invited the Magistrate to proceed on the basis of the new bundle. Mr Clive Nicholls QC, who appeared on that occasion with Mr Lewis for the applicant objected to the course proposed on the basis it went beyond the purpose for which the adjournment had been granted. It was suggested that what was proposed by Mr Garlick might amount to an abuse of process and to give further time for argument the matter was adjourned to 2nd June 1995.
During that short adjournment the solicitors acting for the applicant enquired of the Crown Prosecution Service as to what had prompted the fresh bundle of documents from the Swiss Government and in a letter of 1st June 1995 Mrs Riley of the Crown Prosecution Service said that it appeared from the file that:
"… these documents were sent in response to a letter from the lawyer then responsible asking the Swiss Authorities to reply to the affidavit of Philippe Neyroud or provide a fresh request, properly sealed."
The letter referred to was, of course, Miss Sambei's letter of 12th May 1995.
On 2nd June 1995 Mr Nicholls developed his arguments against the admission of the fresh documentation. He submitted that it was an abuse of the process of the court and that the document should be excluded pursuant to section 78 of the Police and Criminal Evidence Act 1984. The Magistrate in a short judgment, which I need not recite, ruled against him. Despite objection oral evidence was given by the arresting officer to complete the chain of identification evidence and the applicant was committed on bail to await the determination of the Secretary of State. These proceedings were then commenced but the hearing has been delayed by an attempt to obtain evidence from Switzerland to support an application pursuant to section 11(3) of the 1989 Act. That is not a matter with which we are now concerned, so I turn to the issues which we do have to consider.
In my judgment there are five issues namely:
1) in the absence of authenticated documents was the Secretary of State entitled on 14th January 1995 to grant authority to proceed?
2) on 10th May 1995 was the Magistrate right to find as he did that authenticated documents were necessary to enable him to proceed?
3) on 30th May 1995 was the Government of Switzerland, for any reason, estopped from seeking a committal on the basis of the authenticated documents?
4) on 2nd June 1995 was the Magistrate entitled to rule, as he did, in relation to:
a) abuse of process, and—
b) section 78 of the Police and Criminal Evidence Act?
5) On 2nd June 1995 was the Magistrate entitled to commit on documents (namely the authenticated documents) which had not been before the Secretary of State?
Those five questions set out in a slightly different form the issues which Mr Lewis identified for us in his helpful skeleton argument and which all three counsel have addressed.
In order to answer the questions which I have posed it is necessary to say something about the framework of extradition law which forms the background of this case.
Section 1 (1) of the Extradition Act 1989 provides that where, as in this case, extradition procedures under Part III of the Act are available as between the United Kingdom and a foreign state, a person in the United Kingdom who is accused in that state of the commission of an extradition crime (and the crimes of which the applicant is accused are...
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Cases
...(1998) 3 WLR 1060 137RvET(1999)163JP399452RVFarr(1999)163JP193 422R vForbes(1999)AllER 457 461R vGovernorof BrixtonPrison,ex pCuoghi(1998) 1 WLR 1513 87R vGovernorof BrockhillPrison,ex p Evans(No.2)(1998) 4AllER 993 204R vGreatrexand Bates (1999) 1 CrAppR126 568R v Guney (1998) 2 CrAppR 242......
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Cases
...(1998) 3 WLR 1060 137RvET(1999)163JP399452RVFarr(1999)163JP193 422R vForbes(1999)AllER 457 461R vGovernorof BrixtonPrison,ex pCuoghi(1998) 1 WLR 1513 87R vGovernorof BrockhillPrison,ex p Evans(No.2)(1998) 4AllER 993 204R vGreatrexand Bates (1999) 1 CrAppR126 568R v Guney (1998) 2 CrAppR 242......
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Cases
...3 WLR 1060 137RvET (1999) 163 JP 399 452R v Farr (1999) 163 JP 193 422R vForbes[1999] All ER457461R vGovernorof BrixtonPrison,ex pCuoghi[1998] 1WlR1513 87RvGovernorofBrockhillPrison,ex p Evans(No.2) [1998] 4 All ER 993 204RVGuney[1998]2CrAppR242117R v H(Henry)[1998] 2 Cr App R 161 31R v Har......
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Cases
...3 WLR 1060 137RvET (1999) 163 JP 399 452R v Farr (1999) 163 JP 193 422R vForbes[1999] All ER457461R vGovernorof BrixtonPrison,ex pCuoghi[1998] 1WlR1513 87RvGovernorofBrockhillPrison,ex p Evans(No.2) [1998] 4 All ER 993 204RVGuney[1998]2CrAppR242117R v H(Henry)[1998] 2 Cr App R 161 31R v Har......