R Gambrah v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Mr Justice Mitting |
| Judgment Date | 18 July 2013 |
| Neutral Citation | [2013] EWHC 4126 (Admin) |
| Docket Number | CO/2617/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 July 2013 |
[2013] EWHC 4126 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Aikens
Mr Justice Mitting
CO/2617/2013
Mr J Knowles QC & Ms R Barnes appeared on behalf of the Claimant
Mr J Lewis & Mr D Sternberg appeared on behalf of the Defendant
I will ask Mitting J to give the first judgment.
By a claim form issued on 21 February 2013, the claimant sought judicial review of the refusal by the Crown Prosecution Service "to conduct the disclosure exercise required by the Attorney General's guidelines on disclosure in criminal cases in this extradition case." Permission was refused on the papers by Males J on 13 May. The date of the decision challenged is 7 June 2012. The claimant therefore needs an extension of time in which to bring the claim, as well as permission on the merits. Because the issue raised by the claimant is a discrete question of law of potentially wider importance than the facts of this case, and because a colourable excuse has been advanced for the delay in bringing proceedings, I would be minded to, and would, grant permission to apply for judicial review and to go on to treat the hearing of this application for permission as a full judicial review hearing.
The Government of Ghana seeks the extradition of the claimant to stand trial for an offence of murder. Extradition proceedings are governed by Part 2 of the Extradition Act 2003. The Crown Prosecution Service represents the Government of Ghana in those proceedings.
On 14 December 2011, the Government of Ghana submitted a request to the Secretary of State. On 24 January 2012, the claimant was arrested on a provisional warrant. On 20 February 2012, the Secretary of State certified the Government of Ghana's request as valid. The extradition hearing opened on 27 February 2012 and the full hearing commenced on 28 November 2012. It is still in progress. Three days are listed for hearing on 22 to 24 July.
The Secretary of State has not designated Ghana as a Category two territory under section 84(7) of the 2003 Act. Therefore the Government of Ghana is required to demonstrate in extradition proceedings that "there is evidence which would be sufficient to make a case requiring an answer by the (requested) person if the proceedings were the summary trial of an information against him" (see section 84(1)). This is therefore a case in which the District Judge is required to consider the strength of the case against the claimant. If he decides the question in section 84(1) in the affirmative, he must proceed under section 87; if not, he must order the claimant's discharge.
The test to be applied is the same as that under paragraph 7(1) of Schedule 1 to the Extradition Act 1989; so too, in my judgment, are the duties of a requesting state and those who represent it. They were considered by the Court of Appeal in R(Raissi) v Secretary of State for the Home Department [2008] QB 793. The case was not an extradition case but one which arose out of the claimant's detention during extradition proceedings brought by the Government of the United States of America. The court considered the duties both of the requesting state and of the Crown Prosecution Service. As far as the requesting state goes, it endorsed the observations of the Privy Council in Knowles v Government of the United States of America [2007] 1 WLR 47 at paragraph 35:
"There are many respects in which extradition proceedings must, to be lawful, be fairly conducted. But a requesting state is not under any general duty of disclosure similar to that imposed on a prosecutor in English criminal proceedings. It does, however, owe the court of the requested state a duty of candour and good faith. While it is for the requesting state to decide what evidence it will rely on to seek a committal, it must in pursuance of that duty disclose evidence which destroys or very severely undermines the evidence on which it relies. It is for the party seeking to resist an order to establish a breach of duty by the requesting state."
As far as the duty of the Crown Prosecution Service is concerned, the Court of Appeal quoted with approval the observations of Glidewell LJ in R v The Director of Public Prosecutions ex parte Frederick Thom, The Times, 21 December 1994:
"I agree with Ms Clare Montgomery too that the position of the director in extradition proceedings is quite unlike her position in criminal proceedings in England and Wales. She is not to be regarded as the prosecutor but as a lawyer acting on behalf of a foreign client."
Nevertheless, the court accepted that the Crown Prosecution Service, as a public authority, owed to the court a duty going somewhat beyond that which is owed by a solicitor in private proceedings to the court. In paragraph 138, the court observed:
"We are in no doubt that, in the event of conflict between its instructions from the requesting state and its duty to the court, the CPS's primary duty is to the court. To take but one example from the facts of this case, if, as is alleged, the CPS said in opposing bail that the claimant had trained the hijackers, when the information available to it did not support such an allegation, that would be a breach of its duty to the court."
At paragraph 139 it also expressed a view that:
"the CPS's duty to the court will also, in our view, include a duty to ensure that the requesting state complies with its duty of disclosure."
It then went on to refer to the nature and extent of that duty, as set out in paragraph 35 of the opinion of the Privy Council in Knowles v Government of United States of America. At paragraph 140, the court stated:
"It must follow in our view that the CPS has a duty to disclose evidence about which it knows and which destroys or severely undermines the evidence on which the requesting state relies. This will also apply in the context of contested applications for bail. To take an example from the facts alleged in the present case, if the CPS did not disclose the material in its possession which cast doubt on the accuracy of the affidavit of Mr Plunkett that would be a breach of its duty of disclosure."
In paragraph 141 it accepted a further proposition relevant to the duty of the CPS advanced by Mr Fitzgerald for the claimant:
"If the proceedings were an abuse ab initio, the CPS would be in serious default to the extent that they knew or ought to have known of the abuse. We accept that submission. In our view the duty of the CPS to the court extends also to a duty not to take part in proceedings which it knows, or ought to...
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