R v Bow Street Magistrates, ex parte Mackeson
| Jurisdiction | England & Wales |
| Judgment Date | 25 June 1981 |
| Date | 25 June 1981 |
| Court | Divisional Court |
(Lord Lane C.J. and Michael Davies J.)
Jurisdiction — Executive — Consequences of illegal arrest — Defendant detained in foreign country and returned to England — No attempt at extradition — Whether deportation from foreign country a disguised form of extradition — Whether circumstances of defendant's return to England deprives English courts of jurisdiction — Whether courts possess discretion not to hear charges against defendant
Extradition — Conditions — Return of fugitive offender other than by extradition — Disguised extradition — The law of England
Summary: The facts:—The applicant, a United Kingdom national, was in Zimbabwe-Rhodesia1 in 1979 when allegations of fraud were made against him in England. No attempt was made to extradite the applicant because, at that time, the regime in control of Zimbabwe-Rhodesia was in rebellion against the British Crown and was not recognized by the United Kingdom. However, the Metropolitan Police in London notified the authorities in Zimbabwe-Rhodesia that the applicant was wanted in England. In December 1979 Zimbabwe-Rhodesia was returned to Crown rule but no request for the extradition of the applicant was made. Instead, he was declared an illegal immigrant by the authorities in the former Zimbabwe-Rhodesia, deported and returned to England under escort. The applicant sought judicial review to prevent the holding of committal proceedings in relation to the charges brought against him.
Held:—The application was granted.
(1) The applicant's return to England had been a form of disguised extradition. However, this fact did not deprive the English courts of jurisdiction as the applicant had been lawfully arrested on his return to England.
(2) Nevertheless, the Court had a discretion to decline to permit a case of this kind to be tried. The present case was an appropriate one for the exercise of that discretion.
The text of the judgments delivered in the Divisional Court commences on the opposite page.
The Lord Chief Justice: This is an application for judicial review directed to the Bow Street magistrates, pursuant to leave granted by the single judge in January 1981.
The brief outline of the facts, which will have to be dealt with in more detail at a later stage of this judgment, are as follows. The applicant, Sir Rupert Henry Mackeson, Baronet, is a citizen of this country. In the back end of 1977 he left England, for reasons which are not material, and eventually in 1978 he went to Rhodesia, where he obtained a number of different types of employment, finally that of a school teacher.
It seems that in May 1979 allegations of fraud were made against him by the Metropolitan Police and, in short, on June 13, 1979, the Minister in Zimbabwe-Rhodesia, on whom fell this type of duty, deemed Sir Rupert to be a prohibited person. On June 15 of that year he was detained in a Salisbury prison pending removal from that country. In brief on April 15, 1980, after a number of matters had intervened which will have to be explained later, he was deported to this country by air. I shall refer hereafter to the deporting country as ‘Zimbabwe-Rhodesia’ for purposes of convenience, though that name is not always strictly correct.
On April 19, 1980, he, in the meantime having been arrested, was brought before the Court on three charges laid under section 20 of the Theft Act 1968. Those charges were that he on three separate occasions, in different circumstances, had dishonestly, with a view to gain for himself, by deceit procured the execution of cheques. On August 27, 1980, a further 16 charges were preferred against him, 14 under section 15 of the Theft Act 1968 and two under section 1 of the Theft Act 1978. However, on November 5, 1980, the prosecution dropped the original three charges, offering no evidence upon them. That left the other 16 charges, and committal proceedings in respect of those were due to start on January 15, 1981. But the present application was in the interim made and consequently those proceedings stand in abeyance, awaiting the outcome of the decision of this Court.
What Mr. Blom-Cooper, on behalf of Sir Rupert, applies for in the present case is an order of prohibition to prevent anyone from proceeding with the committal proceedings.
It was, as I said, on June 13, 1979, that the applicant was declared a prohibited immigrant under section 14 (1) (h) of the Immigration Act 1979 of Zimbabwe-Rhodesia. The principal grounds for that declaration were the three fraud charges which by this time had been levelled against him in the United Kingdom. For verification of that one turns to the affidavit of Basil Ross Burne who is, or was, an assistant secretary in the Ministry in Zimbabwe-Rhodesia dealing with prohibited persons and such like. This affidavit was sworn in proceedings which took place in Zimbabwe-Rhodesia at a time when the applicant was detained there with a view to his being deported.
What the deponent said was: ‘I deny that the petitioner's present detention is unreasonable, unjustifiable, inhuman and contrary to the Declaration of Rights and state that it has been brought about solely because of his behaviour in making it impossible for him to be removed by aircraft. I state that it would be in conflict and inconsistent with the first respondent's deeming of the petitioner as a prohibited person to release him at large. The main reason for his detention is that he is due to face charges of fraud in the United Kingdom and it is the policy of my Ministry to ensure that such a person is brought to justice in the country having jurisdiction over him in respect of such charges. Failure to comply with this policy would also result in fugitives from justice using this country as a refuge and could create a precedent for similar behaviour on the part of other prohibited persons.’
As the learned judge in Zimbabwe-Rhodesia observed at the hearing of the habeas corpus application there, the second part of that deposition is a non sequitur.
On June 14, 1979, the applicant was detained in Zimbabwe-Rhodesia. On June 15 his passport was sent to the United Kingdom, that passport having been, so it seems, surrendered by the applicant, or taken from him, and the passport was, without his knowledge, sent to the United Kingdom. The material passage of the letter from the Assistant Commissioner, Frauds, Salisbury and Mashonaland Provinces, dated June 19, 1979, reads: ‘It is advised that Sir Rupert's British Passport No. 680012B was despatched by registered post on June 15, 1979, to the Metropolitan Police, New Scotland Yard, London.’ The significance of that piece of evidence will emerge shortly.
If one turns to p. 64 of the bundle, there we find the affidavit by Mr. Hughes, superintendent of the Fraud Squad of the Criminal Investigation Department of the British South African police, which was the force involved in Africa with this matter. Paragraph 3 of the affidavit says: ‘… the petitioner's passport was sent to England to establish its authenticity.’ It is, I say in passing, now alleged by Mr. Purnell on...
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