Cuoghi v Governor of Brixton Prison
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE KENNEDY,LORD JUSTICE SAVILLE |
| Judgment Date | 15 July 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0715-8 |
| Date | 15 July 1997 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBCOF 97/0506/D |
[1997] EWCA Civ J0715-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR JUSTICE CARNWATH)
Royal Courts of Justice
The Strand
London
The Lord Chief Justice of England
(Lord Bingham of Cornhill)
Lord Justice Kennedy
and
Lord Justice SAVILLE
QBCOF 97/0506/D
MR CLIVE NICHOLLS QC and MR JAMES LEWIS (instructed by Messrs Judge Sykes, Frixton) appeared on behalf of THE APPLICANT
MR PAUL GARLICK QC (instructed by the Crown Prosecution Service, London) appeared on behalf of THE RESPONDENTS
MR JAMES TURNER (instructed by the Treasury Solicitor) appeared on behalf of an interested party (the Secretary of State)
Wednesday 15 July 1997
Before us for decision is a preliminary issue: whether the appeal which the appellant seeks to pursue is one that the Civil Division of the Court of Appeal has jurisdiction to entertain. The answer turns on section 18(1)(a) of the Supreme Court Act 1981 which provides (subject to an irrelevant exception) that no appeal shall lie to the Court of Appeal from any judgment of the High Court in any criminal cause or matter. 'Cause' and 'matter' are both defined in section 151(1) of the Act, but without throwing any light on their meaning relevantly for present purposes.
The factual background to the issue can be very shortly summarised. The Government of Switzerland has requested the return of the appellant on serious charges of fraud against Credit Suisse Fides Trust SA. He has been resident in this country. The Secretary of State gave authority to proceed under section 7 of the Extradition Act 1989. Under section 9(8) of that Act the appellant was committed by the Bow Street Magistrate after a contested committal hearing to await the Secretary of State's decision as to his surrender. The appellant on 16 June 1995 applied for habeas corpus. One of his grounds related to the lawfulness of the magistrate's decision to commit him. Another relied on section 11(3) of the Extradition Act 1989. The relevant provisions of that subsection are:
"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that—
….
(c) because the accusation against him is not made in good faith in the interests of justice,
it would, having regard to all the circumstances, be unjust or oppressive to return him."
To obtain evidence in support of his case under section 11(3)(c) the appellant applied ex parte for the issue of letters of request under section 3 of the Criminal Justice (International Co-operation) Act 1990. That application was granted by Forbes J on 26 September 1995. The respondents then applied to set aside the order of Forbes J on the ground that there was no jurisdiction for the court to issue the letters of request as the word 'offence' in section 3 of the 1990 Act was limited on a true construction to domestic offences. Accordingly it was argued that, since the appellant's offence was alleged to have occurred in Switzerland, it was outside the scope of section 3. Carnwath J accepted the respondents' construction in a judgment given on 22 May 1996, and accordingly set aside the order of Forbes J. The appellant raised a new issue before Carnwath J, namely that the judge should issue a letter of request under Order 39, rule 1 of the Rules of the Supreme Court, but the judge declined to do so. Carnwath J refused leave to appeal against his decision, but leave was granted by the Court of Appeal on 26 March of this year. Since it was known to be in issue whether the Court of Appeal could properly entertain this appeal, it has sensibly been ordered that that question should be determined at a preliminary issue.
As it seems to me, the answer to this issue depends on the answer to three major questions. The first is: do extradition proceedings fall within the statutory expression "criminal cause or matter" in section 18(1)(a) of the Supreme Court Act 1981? To that question the answer is unquestionably "Yes". If there were any doubt about the correctness of that answer, such doubt is resolved by the recent decision of the House of Lords in In re Levin [1997] 3 WLR 117. Mr Clive Nicholls QC who represents the appellant accepts that extradition proceedings do fall within the statutory expression. It is therefore unnecessary to recite the terms of the decision in In re Levin in extenso.
I go on therefore to the second question which is: does an application for habeas corpus made in extradition proceedings fall within the statutory expression? To that question also I would give the answer "Yes". In doing so I rely particularly on the earliest in a long line of authorities, a decision of an unusually eminent Court of Appeal in Ex parte Alice Woodhall (1888) 20 QBD 832. In that case the applicant had been brought before the Chief Metropolitan Magistrate charged under the provisions of the Extradition Act as a fugitive criminal accused of having committed forgery in New York. The magistrate committed the applicant to a prison in Middlesex, and application was thereupon made on her behalf to a Divisional Court for an order of habeas corpus. In argument in the Court of Appeal the jurisdiction issue was addressed. It then turned on the language of section 47 of the Judicature Act 1873 which was in the same terms as the present provision. It was argued on behalf of the applicant that an application for a writ of habeas corpus was not a criminal cause or matter within the meaning of section 47. It was said to be a collateral matter not necessarily having reference to any criminal proceeding and it was urged that the primary object of such an application was to secure that the person who had detained the applicant should produce him. On those grounds it was argued that an appeal lay from the order of the High Court whether granting or refusing the writ. That argument did not prevail. Lord Esher MR at page 835 said:
"The result of all the decided cases is to shew that the words 'criminal cause or matter' in s. 47 should receive the widest possible interpretation. The intention was that no appeal should lie in any 'criminal matter' in the widest sense of the term, this Court being constituted for the hearing of appeals in civil causes and matters."
After reference to earlier authority the Master of the Rolls continued at page 836:
"I think that the clause of s. 47 in question applies to a decision by way of judicial determination of any question raised in or with regard to proceedings, the subject-matter of which is criminal, at whatever stage of the proceedings the question arises. Applying that proposition here, Was the decision of the Queen's Bench Division, refusing the application for a writ of habeas corpus, a decision by way of judicial determination of a question raised in or with regard to the proceedings before Sir James Ingham? I am clearly of opinion that it was, and I think it is impossible to say that what took place before him was not a proceeding the subject-matter of which was criminal. If the proceeding before the magistrate was a proceeding the subject-matter of which was criminal, then the application in the Queen's Bench Division for the issue of a writ of habeas corpus, which if issued would enable the applicant to escape from the consequences of the proceeding before the magistrate, was a proceeding the subject-matter of which was criminal. It follows, therefore, that this Court has no jurisdiction to hear the appeal."
Lindley LJ gave judgment to similar effect. At page 837 he said:
"Can we say that the application in the present case is not an application in a criminal cause or matter? I think that in substance it certainly is. Its whole object is to enable the person in custody to escape being sent for trial in America upon a charge of forgery."
Bowen LJ at page 838 said:
"It must therefore be the case of a person who has fled from foreign justice; and the crime of which he is accused must be one of those specified in the schedule which would be a crime according to the law of this country. The magistrate is charged with the duty of considering, upon the evidence before him, whether that evidence is sufficient according to English law to justify the committal for trial of the accused person. How can the matter be other than criminal from first to last? It is a matter to be dealt with from first to last by persons conversant with criminal law, and competent to decide what is sufficient evidence to justify a committal. The questions upon which the application for a writ of habeas corpus depend, are whether or not there was evidence before the magistrate of a crime, which would be a crime according to English law, having been committed in a foreign country, and whether or not that evidence was sufficient to justify him in committing the accused for trial if the crime had been committed in England."
That case was followed in R v Governor of Brixton Prison, ex parte Savarkar [1910] 2 KB 1056. I need only make reference to the judgment of Vaughan Williams LJ when he said at page 1063:
"…. yet the appeal which it is sought to bring before us is nothing else than an appeal in respect of the refusal by the Court of the King's Bench Division to make absolute a rule nisi for a writ of habeas corpus issued in respect of the body of the appellant, who under a warrant of the magistrate at Bow Street Police Court...
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