A Procured Illegal Deportation of the Appellant Amounted to an Abuse of Process
| DOI | http://doi.org/10.1177/002201839906300534 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
The Journal
of
Criminal Law
AProcured Illegal Deportation of the Appellant
Amounted to an Abuse of Process
R v
Nicholas
Robert
Neil
Mullen,
The
Times,
15 February 1999;
[1999] All ER (D) 108
On 8
June
1990,
the
appellant was convicted of conspiracy to cause
explosions likely to endanger life
or
cause serious injury to property. He
was sentenced to 30 years' imprisonment. The grounds of
the
appeal
related solely to the appellant's deportation from Zimbabwe to England
prior to his trial. The day before
the
discovery of bomb-making equip-
ment
in
the
appellant's rented houses, he had flown to Zimbabwe. The
London police contacted
the
Zimbabwe Central Intelligence Organisa-
tion (CIO). The appellant had not disclosed his previous convictions to
the
Zimbabwean, authorities
and
had
given false details. The London
police decided
that
they were
not
in a position to apply for extradition
and
arequest was made to the CIO to help
them
secure
the
appellant's
deportation. The appellant
had
Irish citizenship
and
it was agreed
not
to
tell
him
about
the
proposed proceedings in
the
UK or allow
him
access
to a lawyer before deportation in case he exercised his right to be
returned to Ireland. The negotiations for the deportation were made
subject of a public interest immunity order before the trial
and
not
disclosed to
the
appellant until seven years after conviction.
It
was submitted on appeal
that
the
English authorities, knowing
that
extradition was available, instigated and, in collusion with the
Zimbabwe authorities, procured the appellant's deportation in circum-
stances in which he was denied access to a lawyer contrary to Zimbab-
wean
law
and
internationally recognised
human
rights. The appellant
was denied the right to appeal to
the
Zimbabwean authorities
and
that
this constituted an abuse of the process following R v
Horseferry
Road
Magistrates'
Court,
exp
Bennett
Hi.
It
was further submitted
that
if
an
abuse of
the
process was established
then
the conviction was
unsafe within the meaning of s 2(1)(a) of the Criminal Appeal Act 1968
as amended.
HELD,
ALLOWING
THE
APPEAL:
1. Certainty of guilt could
not
displace the essential feature of this
form of abuse of process, namely, the degradation of
the
lawful admin-
istration of justice. The British authorities
had
encouraged unlawful
conduct in Zimbabwe
and
were in breach of public international law by
initiating
and
subsequently assisting in the procured deportation of
the
appellant by unlawful means in circumstances
where
there were specific
extradition facilities between the
two
countries. The conduct of
the
British authorities
had
been
'so unworthy or shameful
that
it was an
affront to the public conscience to allow
the
prosecution to succeed':
RvLatif [1996] 1 WLR 104.
2. The omission to disclose
the
circumstances of
the
deportation was
a
matter
to be taken into account
when
considering
the
safety of
the
conviction. If
the
circumstances of
the
deportation
had
been disclosed at
458
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