R (Brown and Others) v Governor of Belmarsh Prison and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham |
| Judgment Date | 13 March 2007 |
| Neutral Citation | [2007] EWHC 498 (Admin) |
| Docket Number | Case No: CO/1368/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 March 2007 |
Lord Justice Latham and
mr. Justice Lloyd Jones
Case No: CO/1368/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Alun Jones QC and David Hooper (instructed by Frank Brazell and Partners ) for the First Applicant
Alun Jones QC and Joanna Evans (instructed by Robert Lizar Solicitors ) for the Second Applicant
Ben Watson ( instructed by Hallinans, Gittings and Nott Solicitors ) for the Third Applicant
Ben Watson (instructed by O'Keefe's ) for the Fourth Applicant
No appearance for the First Respondent
Jonathan Swift and Deok Joo Rhee (instructed by Treasury Solicitors ) for the Second Respondent
Rodney Dixon and Gemma Lindfield (instructed by Crown Prosecution Service ) for the Third Respondent
Hearing dates: Thursday 22 nd February 2007.
Mr Justice Lloyd Jones:
This is an application for habeas corpus by Vincent Brown (formerly Vincent Bajinya), Emmanuel Nteziryayo, Celestin Ugirashebuja and Charles Munyaneza.
The Republic of Rwanda ("Rwanda") seeks the extradition of the Applicants in connection with their alleged involvement in genocide and murder in that State. There is no extradition treaty between the United Kingdom and Rwanda. However, for the purposes of the proposed extradition of these Applicants the United Kingdom and Rwanda have entered into a series of memoranda of understanding, each relating to a separate Applicant. Each memorandum sets out the arrangements which apply to the proposed extradition of the individual to whom it relates. Each memorandum has been amended by a further memorandum of understanding.
In domestic law, effect is given to such special extradition arrangements by section 194, Extradition Act 2003 ("the 2003 Act") which provides:
194 Special extradition arrangements
(1) This section applies if the Secretary of State believes that—
(a) arrangements have been made between the United Kingdom and another territory for the extradition of a person to the territory, and
(b) the territory is not a Category 1 territory or a Category 2 territory.
(2) The Secretary of State may certify that the conditions in paragraphs (a) and (b) of subsection (1) are satisfied in relation to the extradition of the person.
(3) If the Secretary of State issues a certificate under subsection (2) this Act applies in respect of the person's extradition to the territory as if the territory were a Category 2 territory.
(4) As applied by subsection (3), this Act has effect—
(a) as if sections 71(4), 73(5), 74(11)(b), 84(7) and 86(7) were omitted;
(b) with any other modifications specified in the certificate.
(5) A certificate under subsection (2) in relation to a person is conclusive evidence that the conditions in paragraphs (a) and (b) of subsection (1) are satisfied in relation to the person's extradition.
The Secretary of State has certified pursuant to section 194(2) that special arrangements have been made in respect of each of the Applicants as set out in the relevant memorandum of understanding and that Rwanda is not a Category 1 territory or a Category 2 territory. In addition, by a further certificate the Secretary of State has certified that the 2003 Act will apply to the extradition with the modification that in section 74(11)(a) the required period of 45 days is replaced by one of 95 days.
The Applicants were arrested pursuant to provisional warrants on 28 th December 2006. On the 29 th December 2006 the Applicants were remanded in custody following a hearing at the City of Westminster Magistrates' Court.
Section 74 of the 2003 Act provides in relevant part:
74 Person arrested under provisional warrant
(1) This section applies if a person is arrested under a provisional warrant.
(2) A copy of the warrant must be given to the person as soon as practicable after his arrest.
(3) The person must be brought as soon as practicable before the appropriate judge.
(4) But subsection (3) does not apply if—
(a) the person is granted bail by a constable following his arrest, or
(b) in a case where the Secretary of State has received a valid request for the person's extradition, the Secretary of State decides under section 126 that the request is not to be proceeded with.
(5) If subsection (2) is not complied with and the person applies to the judge to be discharged, the judge may order his discharge.
(6) If subsection (3) is not complied with and the person applies to the judge to be discharged, the judge must order his discharge.
(7) When the person first appears or is brought before the appropriate judge, the judge must—
(a) inform him that he is accused of the commission of an offence in a Category 2 territory or that he is alleged to be unlawfully at large after conviction of an offence by a court in a Category 2 territory;
(b) give him the required information about consent;
(c) remand him in custody or on bail.
(8) The required information about consent is—
(a) that the person may consent to his extradition to the Category 2 territory in which he is accused of the commission of an offence or is alleged to have been convicted of an offence;
(b) an explanation of the effect of consent and the procedure that will apply if he gives consent;
(c) that consent must be given in writing and is irrevocable.
(9) If the person is remanded in custody, the appropriate judge may later grant bail.
(10) The judge must order the person's discharge if the documents referred to in section 70(9) are not received by the judge within the required period.
(11) The required period is—
(a) 45 days starting with the day on which the person was arrested, or
(b) if the Category 2 territory is designated by order made by the Secretary of State for the purposes of this section, any longer period permitted by the order.
(12) Subsection (4)(a) applies to Scotland with the omission of the words "by a constable".
The documents referred to in section 70(9) are, for present purposes, the request for extradition and the certificate under section 70(1). The Applicants maintain that the modification of section 74(11)(a) is ultra vires and that, accordingly, since the required period of 45 days expired on the 11 th February 2007 a judge is required to order their discharge. Upon this basis it is submitted that there is no lawful basis for their continuing detention.
At a further hearing at the City of Westminster Magistrates' Court on the 14 th February 2007 the Applicants applied for their discharge. District Judge Evans, having heard argument on behalf of the Crown Prosecution Service and on behalf of Rwanda, refused to determine the applications and gave directions for the further conduct of the case.
The Applicants now apply to this court for habeas corpus. On behalf of the First Applicant Mr. Alun Jones QC submits that the power conferred on the Secretary of State by section 194(4)(b) does not include a power to extend the required period of 45 days in section 74(11)(a). He submits that the power contained in section 74(11)(b) is deliberately abrogated and that had it been the intention of Parliament to confer on the Secretary of State a power to lengthen the period it would have provided so expressly. More generally, he submits that what is permitted by section 194(4)(b) is modification of any other provisions of the 2003 Act and that Parliament cannot have intended by such language to deprive an accused person of the protections provided by that statute. He submits that it cannot plausibly be argued that Parliament by virtue of section 194(4)(a) has taken away the power of the Secretary of State to remove the requirement on a State to provide an evidential basis for extradition but has by section 194(4)(b) nonetheless permitted him to abolish the bars to surrender. In his submission the word "modification" denotes a more modest legislative purpose limited to making more exacting demands of a territory seeking the extradition of an individual. He submits that this reflects the status of territories not falling within Category 1 or Category 2.
These submissions have been adopted by counsel on behalf of the other Applicants.
The Applicants do not seek to challenge the decision to substitute a required period of 95 days on grounds specific to the facts of these individual cases such as irrationality or improper purpose. The challenge is limited to the question of the scope of the power conferred by section 194(4)(b).
On behalf of the Secretary of State Mr. Jonathan Swift submits that section 194(4)(b) empowers the Secretary of State to extend the required period and that this has been validly done in respect of each of the Applicants with the result that the required period has not yet expired. Mr. Dixon makes the same submission on behalf of Rwanda.
The provisions specified in section 194(4)(a) are not the only powers to vary the applicable provisions in the case of Category 2 territories. Section 223(9) confers on the Secretary of State a more general power to provide by order that the 2003 Act shall have effect in relation to a designated territory with specified modifications. The effect of section 223(5) is that, in their application to a Category 2 territory, all of these provisions are subject to a requirement that the amending orders be laid before Parliament and approved by a resolution of each House, the affirmative resolution procedure. By...
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Joe Anthony Chappell v Secretary of State for the Home Department
...itself. 68 There is no dispute that the effect of s194(4) is far reaching. As stated by Lloyd Jones J (as he then was) in R (Brown) v Governor of Belmarsh Prison [2007] QB 838 at [14]: “It is of course a striking feature of paragraph (b) that it confers a general power of modification whic......