Fernandes v Governor of HMP Brixton
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,or,Mr Justice Pitchers,LORD JUSTICE AULD |
| Judgment Date | 07 October 2004 |
| Neutral Citation | [2004] EWHC 2207 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6712/2003, CO/6781/2003 & CO/1540/2004 |
| Date | 07 October 2004 |
[2004] EWHC 2207 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Auld And
The Honourable Mr Justice Pitchers
Case No: CO/6712/2003, CO/6781/2003 & CO/1540/2004
Mr John Hardy (Instructed by Christmas & Sheehan) for the First Applicant
Mr James Hines (instructed by Hallinan Blackburn Gittings & Nott) for the Second Applicant
Mr Julian Knowles (instructed by TNT Solicitors) for the Third Applicant
Miss Helen Malcolm (instructed by CPS) for the Respondents
Charles Fernandes, Roy Fernandes and Anthony Travasso apply for writs of habeas corpus in respect of their detention pursuant to an order of District Judge Nicholas Evans at the Bow Street Magistrates' Court on 13 th October 2003, committing them on bail to await the decision of the Secretary of State for the Home Department in respect of requests by the Government of the Bahamas for their extradition for offences of unlawful sexual intercourse with a girl under the age of 16.
At the material time the three men were employed as waiters on the "Sundream", a cruise ship registered in the Bahama Islands, while it was cruising in the Baltic, off the coast of Russia. The only evidence on which the Government of the Bahamas relied in support of its request was that of the complainant, a 14 year old girl, who was travelling on the ship with her mother, and of Mr Bernard Swift, the ship's director of security, who questioned each of the three men shortly after the alleged incidents. The Bahamian Government seemingly did not have, and/or did not seek to rely on, any scientific evidence.
The complainant alleged that, shortly after midnight on 26 th August 2002, each of the three men had had sexual intercourse with her in a crew cabin on the ship. When she came to make a witness statement she gave vague descriptions of each of them, but did not identify any of them. Her account was as follows. She was a passenger, travelling on the ship with her mother. She asked Charles Fernandes for some beer. In breach of the rules of his employment, he invited her into his cabin, where also were his brother, Roy Fernandes, and Anthony Travasso. Once inside Charles Fernandes locked the door and gave her a can of beer. She then asked to leave. One or other of the three men told her that she would have to wait because there was someone in the corridor outside, it being a disciplinary and probably "sackable" offence for a passenger to be in their crew quarters. Charles Fernandes began to kiss her, and she again asked to leave. He persisted and, despite her struggles, he had sexual intercourse with her, also trying without success to persuade her to perform oral sex on him. After he had finished she tried to leave the cabin. But then Roy Fernandes pulled her back, and he too had sexual intercourse with her, notwithstanding her struggles. Then Anthony Travasso in his turn did the same thing. During his act of intercourse with her, she was crying – practically screaming – "No". They then allowed her to leave the cabin, one of them giving her two cigarettes as she did so.
The complainant went immediately to some friends on board and told them what had happened. She also reported the incident to an assistant purser, with the result that, at about 2.15 a.m. the same night a nurse saw her and a doctor examined her.
Meanwhile, in the early hours of the same morning, Mr Swift interviewed the applicants separately, in each case without caution or in the presence of a friend or adviser and without taking any contemporaneous note. His evidence was as follows. Charles Fernandes admitted having had sexual intercourse with the complainant in his cabin, stating that he had thought she was about 17 and that the intercourse was consensual. The other two admitted that they had been present in the cabin during that act of sexual intercourse, but denied having had intercourse with her themselves. Mr Swift gave oral evidence to this effect in his deposition at the committal hearing (and in accordance with summaries he had written after the interviews, which the applicants had signed), and was cross-examined by counsel on behalf of each applicant. It emerged in cross-examination that he had said to them "You're in big trouble, you could lose your jobs, you had better tell me about it". He also stated in evidence that, as crew members, they had been under a duty to co-operate with his investigation and that dire consequences could have followed if they had remained silent, which they should have, but may not have, known at the time. The effect of this evidence coupled with the lack of a caution or anyone present to support or advise them, it is said on their behalf, was to bring improper pressure on them to answer his questions and to have breached Code C of the Police and Criminal Evidence Act 1984 ("PACE") in a number of serious respects, such as to render it inadmissible under section 76 or to require its exclusion under 78 of the Act.
The three men were detained in this country on 31 st August 2002 when the ship returned to port here at the end of its cruise. They were initially detained in relation to immigration matters, and then arrested and detained on 3 rd September 2002 on a provisional warrant issued by the Bow Street Magistrates' Court pursuant to section 8(1)(b) of the Extradition Act 1989 ("the 1989 Act").
The committal proceedings, which were originally based on charges of rape, began at Bow Street Magistrates' Court on 3 rd February 2003. Following adjournment of that hearing and of a number of further hearings, the Court, on 13 th October 2003, committed each of the three men on bail on a charge of unlawful sexual intercourse with a girl under the age of 16, the Government of the Bahamas having abandoned the original charges of rape. In the course of the extradition proceedings the three men raised two main issues: first as to the credibility of the complainant; and second as to the admissibility of Mr Swift's evidence of his interviews of them.
The case for the Government of the Bahamas was that Charles Fernandes' admission of presence and of having had sexual intercourse with the complainant is true and that the other two's admissions of presence are also true, but that their denials of sexual intercourse are untrue. The Government conceded that, without Mr Swift's evidence of those admissions in his interviews of the three men, there would have been insufficient evidence to support the request for extradition of any of them. No identification procedures had been followed and there was no independent or scientific evidence to support the complainant's account.
The case of Roy Fernandes and Anthony Travasso was, in part, that the District Judge unfairly refused to permit cross-examination of the complainant (who, unusually for such proceedings had been required to attend the proceedings to verify a video-tape of her interview standing as her evidence in chief). And the case of all three complainants was and is that the admissions were confessions within the meaning of section 82(1) of PACE and were inadmissible under section 76 of that Act as a result of oppression (not argued on behalf of Charles Fernandes) and/or because the circumstances in which they were allegedly made rendered them unreliable.
There were thus two principal issues: first, the credibility of the complainant; and second, the admissibility of the admissions, in the case of Charles Fernandes, of having had sexual intercourse with the complainant, and in the case of the other two, as to their presence in the cabin at the time.
As to the credibility of the complainant, the District Judge heard and saw her evidence in chief, given by way of a video-taped recording in September 2003, a procedure now apt in this country for taking the evidence of vulnerable witnesses. Counsel on behalf of Roy Fernandes and Anthony Travasso applied for permission to cross-examine her. First, they wanted to cross-examine her about the allegations themselves, principally to explore inconsistencies in accounts she had given to various people shortly after the incident and to contrast them with her video-taped evidence. Second, they wanted to cross-examine her as to her credibility, on the strength of information disclosed to the District Judge and to them by another shipping company, P & O, of a "log" of complaints made against her and her mother when passengers on one of its cruise ships. They suggested that this record, if put before the court through the medium of cross-examination of the complainant, would show that she had a predisposition to initiating sexual encounters with crew members on cruises and then making false allegations against them.
As I have indicated, the District Judge, unusually for such proceedings, permitted the Government of the Bahamas to call the complainant to give oral evidence. He did so, as he explained in his ruling, because it had omitted to obtain from her, as part of her sworn statement verifying her account in the video-taped interview, an assertion that it was true. Thus, her presence at the committal proceedings and oral evidence via video-link were necessary to make good a technical, but critical, deficiency in its case. However, the District Judge refused to allow cross-examination of her for two main reasons. First, she was, by reason of her age and the nature of her complaint, a vulnerable witness...
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