International Kidnapping, Disguised Extradition and Abuse of Process
| Author | Andrew L.‐T. Choo |
| Published date | 01 July 1994 |
| Date | 01 July 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01964.x |
The Modern Law Review
[Vol.
57
Dicey's day, with vicarious liability on the part of the department. If this does not
quite justify its rapturous re~eption,~~ it should secure
M
v
Home 08ce
an
honourable place in a line of postwar cases47 in which courts have moved to cut
down to size prerogative powers asserted by government and subject them to
controls appropriate to a modern democracy.
International Kidnapping, Disguised Extradition and
Abuse
of
Process
Andrew
L.-T.
Choo"
Suppose that you are wanted in England in connection with criminal offences
allegedly committed in England. You have, however, fled to Utopia. Instead of
complying with the relevant extradition procedures, the English police adopt the
simple expedient of asking the Utopian authorities to deport you. On your return to
England you are arrested by the English police and charged.
You argue that the proceedings against you should be stayed because of the
illegal means by which your presence
in
the jurisdiction has been secured. The
prosecution argue, however, that there is no basis on which a trial may be stayed in
these circumstances: the pre-trial police improprieties can have no effect on the
trial in terms of the ability
of
the trial to determine your guilt or innocence
accurately. The mere fact that the English police behaved improperly at the pre-
trial stage does not raise any possibility of your being convicted even
if
innocent.
These were the precise issues with which the House of Lords was confronted
in
the recent case of
R
v
Horseferry
Road
Magistrates'
Court,
exp Bennett.'
The
defendant, Bennett, was a New Zealand citizen who was wanted in England for
criminal offences allegedly committed in connection with the purchase of a
helicopter. The Crown case against the defendant was that he had raised the
finance to purchase the helicopter by a series of false pretences, and had defaulted
on the repayments. The defendant was traced by the English police to South
Africa. Although there was no extradition treaty between the United Kingdom and
South Africa, special arrangements could have been made for extradition under
section
15
of the Extradition Act
1989.
The English police, however, took a
deliberate decision not to institute extradition proceedings, but instead persuaded
the South African police to arrest the defendant and return him forcibly to
England, under the pretext of deporting him to New Zealand via Heathrow. It
seemed that the Crown Prosecution Service were consulted about, and approved
of, this plan. On his arrival at Heathrow, the defendant was arrested by the English
police. He was committed for trial at the Crown Court and obtained leave to bring
proceedings for judicial review to challenge the decision of the stipendiary
magistrate to commit him for trial. The Divisional Court held that it had no
46
See n 3 above.
47 Amongst which should be numbered the landmark decisions in
Burmah Oil
v
Lord Advocate
119651
AC 75;
Conway
v
Rimmer
[1968] AC 910;
Council
of
Civil Service Unions
v
Minister for the Civil
Service
[1985] AC 374;
R
v
Home Secretary,
ex
p
Bentley
[
19941
2
WLR
101.
See also
Attorney
General
v
Guardian Newspapers
[
19871
1
WLR 1248, [1990]
I
AC
109.
It
would
be
churlish
to
dwell
on the backsliding.
*Lecturer in Law, Faculty
of
Law, University
of
Leicester.
1
[I9931 3 WLR
90.
626
0
The
Modern
Law
Revicw Limiled
1994
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