R (Saifi) v Governor of Brixton Prison
|England & Wales
|THE VICE PRESIDENT
|21 December 2000
|Judgment citation (vLex)
| EWHC J1221-7
|Queen's Bench Division (Administrative Court)
|Case No: CO/4176/1999
|21 December 2000
 EWHC J1221-7
IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH (DIVISIONAL COURT)
The Vice President
(LORD JUSTICE ROSE) and
Mr Justice Newman
Case No: CO/4176/1999
Application for habeas corpus
Clive Nicholls QC, James Lewis & M/s Clair Dobbin (instructed by Henri Brandman & Co) appeared for the applicant
Paul Garlick QC, David Perry & M/s Adina Ezekiel (instructed by CPS London) appeared for the respondents
This is the judgment of the court. The applicant, an Indian Muslim who came to this country with his pregnant wife and child in July 1997, applies for habeas corpus. The second respondent, the Union of India, seeks his extradition for the murder of Gulsham Kumar on 12th August 1997 and conspiracy to murder.
By rulings on 25th February, 30th June and 21st September 1999 the Metropolitan Stipendiary magistrate at Bow Street, Mr Christopher Pratt, declined to exclude the evidence relied on by the second respondent, found that there was sufficient evidence to establish a prima facie case against the applicant and ordered, under s9 (8) of the Extradition Act 1989, that he be committed to await the Secretary of State's decision as to his return.
The applicant challenges these decisions on 5 grounds. First, the evidence of Ali Shaikh, on which the prosecution rely, proffered to the Bow Street magistrate in English, was inadmissible in extradition proceedings because Ali Shaikh had given his evidence in India in Hindi. Secondly, Ali Shaikh's evidence should have been excluded under s78 of PACE. Thirdly, the evidence was insufficient to justify committal and the magistrate's analysis of it was inadequate. Fourthly, it would be unjust or oppressive to return the applicant because, pursuant to s11(3)(c) of the Act "the accusation against him is not made in good faith in the interests of justice". Fifthly, the applicant might, if returned, "be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his………. religion" (s6(1)(d)).
As to the first ground, Mr Clive Nicholls QC, for the applicant, submitted that there should have been primary evidence from Ali Shaikh before the Bow Street magistrate, that is a record in Hindi, together with an independent expert translation into English. Instead, although there may have been primary evidence before the Indian Magistrate, all that was before the Bow Street magistrate was a statement in English which was the product of non-independent, unchallengeable translation from Hindi by the Indian Magistrate or his clerk: this was inadmissible, secondary, hearsay evidence.
The Extradition Act 1989 s27 provides
"(1) in any proceedings under this Act in relation to a person whose return has been requested by a designated Commonwealth country or a colony, including proceedings on an application for habeas corpus in respect of a person in custody under this Act (a) a document, duly authenticated, which purports to set out evidence given on oath in a designated Commonwealth country or a colony shall be admissible as evidence of the matters stated in it.
"a document shall be deemed to be duly authenticated for the purposes of this section (a) in the case of a document purporting to set out evidence given as mentioned in sub-section 1(a) above, if the document purports to be certified by a judge or magisterial officer in or of the country or colony in question to be the original document containing or recording that evidence or a true copy of such a document".
Mr Nicholls did not suggest that, in the present case, there is any want of authentication of the document. He submitted that the rationale of s27 is to provide an exception to the hearsay rule, by avoiding the need for oral evidence to be given before the English Magistrate by the maker of the statement relied on. It is for the second respondent to establish admissibility. And, in the present case, the Bow Street magistrate fell into error. In particular, having rightly concluded that the document setting out evidence given in India was authenticated in accordance with s27(2) and admissible as a document, he failed to consider the implications of Fugitive Offenders Act 1967, (which is in identical terms to s27(1)(a) of the Extradition Act), said where, giving the Divisional Court's judgment, Croom-Johnson J, at 544E, referring to s11 (1)(a) of the
"The section is dealing with procedure and method but not admissibility……This is an enabling provision allowing documents with due authentication to be put before the magistrate…….It does not mean that anything that is in that document, regardless of whether or not it complies with the ordinary rules of evidence which would be applied in the committing court shall be considered by the magistrate".
Mr Nicholls submitted, accordingly, that s27 does not make otherwise inadmissible evidence admissible. The Bow Street magistrate should have concluded that, in order to be admissible in the English extradition proceedings, the Indian depositions had to comply with English rules of admissibility requiring the statement of a witness to be in his own language. By asking himself whether, if he had done what the Indian Magistrate did, the evidence would be admissible in England he asked the wrong question. He should have asked whether, sitting in Bow Street, the evidence was admissible before him. Had he done so, he would have concluded that it was not, because the English translation was not the statement of the witness. Mr Nicholls submitted that the practical importance of the witness's Hindi evidence being before the English magistrate is amply demonstrated in the present case by the crucially different translations of an alleged telephone conversation in Hindi on 9th August 1997 between the murdered man and a newspaper editor relating to threats made to the former: the purported English translation before the court includes a reference to the applicant, whereas the correct translation does not.
Mr Nicholls referred to Magistrates Courts Act 1980 but, rather, the interpreter's translation of what had been said., (unreported, Divisional Court transcript of 10th July 2000), where it was concluded that the translation placed before a magistrate of statements made to a police officer were not "statements of the witness" within the meaning of s5 A of the Mr Nicholls also referred to where Harre CJ held that there was no basis on which a prima facie case could be found when, on an extradition request by Switzerland to the Cayman Islands, statements in German were submitted to the Cayman court without any translation into English.
As to s78, Mr Nicholls submitted that, in the light of Hughes , the correct approach for the magistrate was a two stage process: first, determination of the circumstances, including the primary facts, and then a decision in the light of the primary facts as to whether admitting the evidence would have such an adverse effect on the fairness of the committal proceedings that it ought not to be admitted. In determining the primary facts, there is an evidential burden on the defendant and then a burden to the criminal standard on the prosecution ie the prosecution must rebut the facts raised by the defence beyond reasonable doubt. Accordingly, he submitted that there is no difference in this respect between s78 and s76 of PACE which expressly confers such a burden on the prosecution in relation to confessions. Mr Nicholls referred to Keenan and a reference therein to Delaney and submitted that those judgments contemplated the prosecution having to disprove allegations under s78 to the criminal standard. This, in our judgment is an impossible contention. An examination of these decisions shows that the passage relied on by Mr Nicholls relates to breaches of the Code of Practice in relation to confessions and s76.
The second stage, he submitted, involved the court forming an opinion, without reference to the burden or standard of proof. In the present case, if the police had acted in bad faith the evidence should have been excluded. He accepted, in the light of Lord Hoffman's speech in , that the proceedings here relevant for the purposes of s78 are the extradition proceedings rather than the trial of the accused and that the scope of the application of the section is more limited than in relation to a trial. But, he submitted, evidence had been obtained in the present case in a way which, in the words of Lord Hoffman, "outrages civilised values". As in extradition proceedings there is no opportunity to cross examine and accomplice evidence may be sufficient to establish a case to answer, a police officer in the requesting state can disproportionately influence the decision to commit if he produces evidence obtained in bad faith. Therefore, the consequence of admitting improperly obtained evidence is more profound at committal than at trial. The court must have regard to its obligations under the Human Rights Act 1998 when considering s78. Furthermore breaches of international and foreign law and rules designed for the protection of an accused or a witness in the country where evidence was gathered can be taken into account (see per Nolan J at 332H). Regard should also have been paid to the Convention against Torture and Other Cruel Human or Degrading Treatment or Punishment (1984). Accordingly, the magistrate should have asked himself...
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