R (Kashamu) v Governor of Brixton Prison and Another (No 2); R (Kashamu) v Bow Street Magistrates' Court; R (Makhlulif and Another) v Bow Street Magistrates' Court

JurisdictionEngland & Wales
JudgeLORD JUSTICE ROSE,MR JUSTICE PITCHFORD
Judgment Date23 November 2001
Neutral Citation[2001] EWHC 1215 (Admin),[2001] EWHC 980 (Admin)
Docket NumberCO/1789/2001
CourtQueen's Bench Division (Administrative Court)
Date23 November 2001

[2001] EWHC 980 (Admin)

IN THE HIGH COURT OF JUSTICE

(DIVISIONAL COURT)

QUEEN'S BENCH DIVISION

Before:

Lord Justice Rose and

Mr Justice Pitchford

CO/1789/2001

CO/4628/2001

The Queen on the Application of
Buruji Kashamu
and
(1) The Governor of Hmp Brixton
(2) The Government of the United States of America
The Queen on the Application of
(1) Amar Maklulif
(2) Mustapha Labsi
and
Bow Street Magistrates' Court

MR E FITZGERALD QC, MR K STARMER and MISS P KAUFMANN (Judgment only) (instructed by Raja & Partners, Maddox House, Maddox Street, London W1R 9WA) appeared on behalf of KASHAMU.

MISS C MONTGOMERY QC (instructed by Birnberg, Pierce & Partners, 14 Inverness Street, London NW1 7HJ) appeared on behalf of MAKLULIF and LABSI.

MR A COLEMAN (instructed by the Crown Prosecution Service, 50 Ludgate Hill, London EC4) appeared on behalf of the Government of the United States of America and the Government of France.

Friday, 23rd November 2001

LORD JUSTICE ROSE
1

: There are before the Court applications for habeas corpus and judicial review in relation to a decision of District Judge Workman affecting Kashamu. His extradition is sought by the United States Government for offences of conspiracy to import and supply heroin. There is a separate, but similar, application for judicial review in relation to a later decision of the same district judge affecting Maklulif and Labsi. Maklulif's extradition is sought by the United States Government for an offence of conspiracy to use a weapon of mass destruction. Labsi's extradition is sought by the French Government for an offence of conspiracy to prepare a terrorist action and forging documents to prepare a terrorist attack. All three are accusation cases.

2

For present purposes, save to say that all the offences are extremely serious, the facts alleged against each applicant are immaterial. The question for determination is whether the district judge's ruling, which he gave on 13th March 2001 in relation to Kashamu and followed on 26th October 2001 in relation to Maklulif and Labsi, was correct. He said, by reference to Article 5 of the European Convention on Human Rights:

"…I entirely accept that the provisions of Article 5 require review by a court. I am, however, not convinced that issues over the lawfulness of a defendant's detention under a properly executed warrant of this court are matters for this court. The protection provided by Article 5, sub article 4, is undoubtedly provided by the High Court through an application for a Writ of Habeas Corpus. The issue is whether this court, being seized of the matter in general, has a concurrent jurisdiction. In resolving this issue, I have concluded that sub article 4 requires a procedure to be provided to review the lawfulness of detention. That procedure is provided by the ancient writ of Habeas Corpus and it seems to me to be more appropriate that the High Court alone should exercise this jurisdiction.

If, however, I am wrong in this approach and I should be entertaining this application, I would have felt it right to decline to rule on whether these proceedings amounted to abuse by oppression until such time as I had considered all the relevant evidence. The issue having been raised, it would have been necessary to keep the issue under review throughout the hearing, but I think it is unlikely that I would have been able to come to a final view on the abuse argument until such time as the evidence had been considered."

3

It is common ground that each applicant is detained in custody in response to a requisition by the appropriate government pursuant to the authority of the Secretary of State and has been brought before a magistrate in accordance with the relevant statutory procedures.

4

The procedures in Schedule 1 of the Extradition Act 1989 which relate to extradition requests from, among other countries, the United States apply to Kashamu and Maklulif. The procedures in Part III of the Act which relate to requests from, among other countries, France apply to Labsi. The relevant parts of Schedule 1 of the Extradition Act 1989, as amended by the Criminal Justice and Public Order Act 1994, because of the anticipated abolition of committal proceedings, read as follows:

"6(1) When a fugitive criminal is brought before the metropolitan magistrate, the metropolitan magistrate shall [have the same powers, as near as may be, including power to adjourn the case and meanwhile to remand the prisoner either in custody or in jail, as if the proceedings were the summary trial of an information against him for an offence committed in England and Wales.]"

5

7(1) provides:

"In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Schedule) would, according to the law of England and Wales, [make a case requiring an answer by the prisoner if the proceedings were for the trial in England and Wales of an information for the crime], the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged."

6

Section 11(3), which is precisely reflected in section 12(2) in relation to the Secretary of State's power to order return, provides:

"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that -

(a) by reason of the trivial nature of the offence; or

(b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or

(c) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him."

7

There is no similar provision in Schedule 1, but Schedule 1 paragraph 8 confers a discretion as to surrender on the Secretary of State which reflects Article V(2) of the treaty between the United Kingdom and the United States, whereby extradition may be refused on any ground specified by law.

8

It is common ground that, whichever is the requesting state, the Secretary of State is empowered not to order surrender of the fugitive if it would be unjust or oppressive to do so. It is also common ground that, prior to the coming into force of the Human Rights Act 1998 in October 2000, the House of Lords, in Atkinson v United States of America Government [1971] AC 197, R v Governor of Pentonville Prison, ex parte Sinclair [1991] 2 AC 64, and In re Schmidt [1995] 1 AC 339, clearly established that the courts have no discretion to refuse extradition on the ground that the proceedings are an abuse of the court's process (see per Lord Reid in Atkinson at 232D-E, per Lord Ackner in ex parte Sinclair at 81B, and per Lord Jauncey in Re Schmidt at 377H-378B).

9

The question which presently arises is whether, since the coming into force of the Human Rights Act, Article 5 of the European Convention of Human Rights requires a different view to be taken. The relevant provisions of Article 5 are as follows:

"(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law:

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

10

Article 5(4) provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

11

For Kashamu, Mr Fitzgerald QC submits that the matter should be remitted to the district judge for him to decide whether there has been an abuse of process. On 6th October 2000 the Administrative Court ordered Kashamu's release because the then proceedings against him were conceded to be unfair because of non-disclosure. It is said that for the United States Government to cause a second warrant to be issued and executed against him is oppressive and an abuse of process. In the previous proceedings, the Administrative Court held, following the analysis of Lord Hope in R v Governor of Brockhill Prison ex parte Evans [2001] 2 AC 19, 38B-E, to which I shall come, that, by virtue of Article 5, fairness is relevant to the function of the committing court in an extradition case (see para 39 of the Administrative Court's judgment).

12

It was crucial to the decision of the House of Lords in all the authorities prior to the Human Rights Act, submits Mr Fitzgerald, that the Secretary of State has the power not to return a fugitive to the requesting state if it would be unjust or oppressive to do so (see Atkinson per Lord Reid at 232G, Lord Morris at 239A and Lord Guest at 247B; ex parte Sinclair per Lord Ackner at 81A; and Re Schmidt per Lord Jauncey at 378A). Mr Fitzgerald submits that, in the light of the Human Rights Act, it must be the courts, rather than the Secretary of State, who determine the lawfulness of detention under Article 5(1)(f). Abuse of the process of the English courts can only properly be a matter for the courts, not the Secretary of State. He relies on the speech of Lord Hope in R v Governor of Brockhill Prison, ex parte Evans, at 38B-E:

"The jurisprudence of the European Court...

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