McIntyre v Government of the United States of America
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 10 June 2014 |
| Neutral Citation | [2014] EWHC 1886 (Admin) |
| Docket Number | Case No: CO/12120/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 June 2014 |
[2014] EWHC 1886 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
Mr Justice Cranston
Case No: CO/12120/2013
and
Edward Fitzgerald QC and Ben Cooper (instructed by Kaim Todner Solicitors Limited) for the Appellant
Toby Cadman (instructed by the CPS) for the Government of the United States of America
Ben Watson (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department
Hearing date: 18 March 2014
Lord Thomas of Cwmgiedd, CJ:
This is the judgment of the court.
There is before the court an appeal under s. 108(5)-(8) of the Extradition Act 2003 (the 2003 Act); these provisions were inserted into the 2003 Act by the Crime and Courts Act 2013 (the 2013 Act).
It is common ground that under the transitional provisions of the Act, these new provisions apply to this appeal. Before turning to the specific circumstances of the appeal, it is necessary to set out the approach that we will take to the new provisions. The background is as follows.
(a) The Human Rights jurisdiction of the Home Secretary
The 2003 Act has always provided that in relation to extradition under Part 2 of the 2003 Act to category 2 territories (which include the USA), there must be an extradition hearing before a District Judge in respect of the requested person. If the conditions in the Act are satisfied, the District Judge then sends the case to the Home Secretary to decide whether to order extradition. If that decision is made and so ordered, then the requested person may appeal to the High Court against the decision of the District Judge and the Order of the Home Secretary.
If the appeal failed, then under the law as it had developed prior to the amendment to the 2003 Act effected by the 2013 Act, the requested person could seek to invite the Secretary of State to withdraw the extradition order on the basis that new circumstances had arisen which would put the Secretary of State in breach of her obligations as a public authority under s.6 of the Human Rights Act if the extradition proceeded. That jurisdiction, sometimes referred to as the McKinnon or "long stop" human rights jurisdiction, was explained in decisions of this court in which the court was asked to set aside by way of judicial review the decision of the Home Secretary refusing to withdraw the extradition order: see McKinnon v The Government of the USA [2007] EWHC 762 (Admin) at paragraphs 61–63 and McKinnon v The Home Secretary [2009] EWHC 2021 (Admin) at paragraphs 64–5.
(b) The proposals for reform
In the review of the UK's extradition arrangements conducted under the chairmanship of Sir Scott Baker in September 2011 recommendations were made that the human rights issues arising at the end of the extradition process should be dealt with by the courts: see paragraphs 9.32–40 and 11.71–2 of the report of the review. The recommendation was that any supervening human rights issues arising after the conclusion of the appeals should be addressed by re-opening the appeal, as the High Court had held could be done in Part 1 cases: see Ignaoua and Others v The Judicial Authority of the Courts of Milan and Others [2008] EWHC 2619 (Admin). In the proceedings relating to Abu Hamza [2012] EWHC 2736 (Admin), this court pointed out the serious delays that were occasioned by invoking this jurisdiction at the end of the extradition process in the courts.
(c) The new provisions
To give effect to these recommendations the 2003 Act was amended by the Crime and Courts Act 2013.
i) S.70 (10) and (11) were added; they provide that the Secretary of State is not to consider whether extradition would be compatible with the requested person's human rights under the Convention at any time after the issue of the certificate under s.70 that there is a valid extradition request.
ii) s.108 was amended to insert s.108 (5) –( 8). S. 108 (5) and (6) provide that, if the permitted period for bringing an appeal of 14 days from the date of the decision of the Secretary of State has expired and the requested person has not been extradited (as is the case here), the person can only appeal on human rights grounds. S.108 (7) provides:
"Where notice of an appeal is given in accordance with sub-sections (5) and (6) the High Court is to consider the appeal only if it appears to the High Court that –
(a) the appeal is necessary to avoid real injustice, and
(b) the circumstances are exceptional and make it appropriate to consider the appeal."
The effect of these amendments has been to divest the Secretary of State of her human rights jurisdiction under the so called McKinnon or "long stop" jurisdiction.
The Extradition Appeals (England & Wales and Northern Ireland) Order 2013 ( S.I. 2013/2384) made on 19 September 2013 further amended the 2003 Act in respect of the interrelationship of the new provisions and s.109 of the 2003 Act by making it clear that the court can allow or dismiss an appeal where the Home Secretary did not consider human rights issues because of the effect of the modifications to s.70(11).
The terms of s.108(7) (a) and (b) of the 2003 Act are identical to the conditions set out in (a) and (b) of the Rule 52.17(1) of the Civil Procedure Rules which provide for the re-opening of final appeals and which currently govern appeals in extradition cases:
"(1) The Court of Appeal or the High Court will not re-open a final determination of any appeal unless –
(a) it is necessary to do so in order to avoid real injustice
(b) the circumstances are exceptional and make it appropriate to re-open the appeal; and there is no alternative effective remedy.
(c) there is no alternative effective remedy."
The Rules governing extradition appeals later this year, probably from 6 October 2014, will be contained in the Criminal Procedure Rules; the corresponding provision to CPR 52.17(1) will be Crim PR 17.27.
(d) The submissions of the parties
The contentions of the parties on the proper approach to the operation of the new provisions can be briefly summarised.
i) Mr Fitzgerald QC on behalf of the appellant accepted that there generally had to be some supervening development after the conclusion of the appeal for the court to be able to exercise the jurisdiction under s.108 (5)-(8). However the court should not be prescriptive beyond this; it should look to the justice of the case. A supervening event could take the form of new evidence which had not been before the court on a previous occasion and there was good reason to consider it. The court should not import the requirement that the requested person had acted with reasonable diligence. It should look simply to the avoidance of injustice.
ii) Mr Watson, who appeared for the Home Secretary, submitted that as the new provision followed the terms of CPR 52.17 (1) (a) and (b), the court ought to interpret the provisions in the light of the case law in respect of CPR 52.17 together with that concerning the Home Secretary's former McKinnon or "long stop" human rights jurisdiction. He referred us to the decisions in Ignaoua, McKinnon and Navadunskis v Serious Organised Crime Agency [2009] EWHC 1292 (Admin).
(e) Our conclusion on the applicable principles
As with any new statutory provision which reflects some part of existing practice, there is an inevitable temptation to set about imposing on the new provision the case law that was decided before the provision was enacted.
However, as this court made clear in Dewani v Republic of South Africa [2012] EWHC 842 (Admin), [2013] 1 WLR 82 at paragraphs 72 and 73, we consider that the court be firmly fixed on the statutory language; the citation of cases which gloss the language or illustrate its application to the circumstances of a case are strongly to be discouraged. The courts will otherwise fall into similar errors to those to which Lord Judge CJ referred in R v Erskine [2009] 2 Cr App R 29, [2009] 2 Cr App Rep 29, [2009] EWCA Crim 1425, [2010] Crim LR 48. The court should simply give effect to the statutory language having regard to its statutory context and purpose:
i) It is well established that all issues relating to the extradition of a requested person under Part 2 of the 2003 Act should be raised at the extradition hearing before the District Judge.
ii) On any appeal to the Divisional Court the court only considers such issues as have been raised, subject to s.106(5) (a) and (b) of the 2003 Act, as explained by Sir Anthony May PQBD in Hungarian Judicial Authorities v Fenyvesi [2009] EWHC 231 (Admin) at paragraphs 32–35 in relation to the equivalent provision in Part 1 (s.29(4) (a) and (b)).
iii) The decision on the extradition hearing (if there is no appeal) or of the Divisional Court or Supreme Court (if there is an appeal) is intended to bring finality to the extradition proceedings; the Home Secretary is thereafter under an obligation to extradite within strict time limits.
iv) Exceptionally events can occur after the decision on the extradition hearing (if there is no appeal) or of the Divisional Court or of the Supreme Court (on any appeal) which would make extradition incompatible with the requested person's human rights.
v) It was determined by Parliament that it is not apposite that the jurisdiction to determine these issues should remain with the Home Secretary.
vi) The provisions of s.108 (5)-(8) are therefore intended to permit the determination of such issues by the courts...
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