R v Governor of Belmarsh Prison, ex parte Francis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE McCOWAN |
| Judgment Date | 10 March 1995 |
| Judgment citation (vLex) | [1995] EWHC J0310-8 |
| Docket Number | C0-152/95 |
| Date | 10 March 1995 |
| Court | Queen's Bench Division (Administrative Court) |
[1995] EWHC J0310-8
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Before: Lord Justice McCowan -and- Mr Justice McKinnon
C0-152/95
MR A NEWMAN QC and MR C QUINN (Instructed by JD Spicer & Co.,) appeared on behalf of the Applicant.
MR J LEWIS (Instructed by the Crown Prosecution Service, London, EC4 7EX) appeared on behalf of the Respondent.
This is an application for a writ of habeas corpus following upon the committal of the Applicant by the Metropolitan Stipendiary Magistrate on 3 January 1995 in custody, pending extradition to the United States of America at the request of the United States Government, to answer 16 charges, including murder, attempted murder, robbery, theft, conspiracy to possess controlled drugs and conspiracy to supply them.
The evidence against the Applicant consists mainly of testimony from eight former members of a gang known as the Edwards Enterprise, which for some years operated in the United States, its principal activity being the manufacture and distribution of cocaine and a derivative of it known as "crack". Each of these eight accomplices has pleaded guilty in the United States pursuant to a "plea agreement" with the U.S. prosecuting authorities, and they have received sentences ranging from 21 months to 20 years. It is submitted on behalf of the Applicant that it is self-evident that the plea agreements must have included a term that the accomplices would receive substantially reduced sentences of imprisonment in return for giving evidence against, among others, the Applicant, because other members of the gang, who did not enter into such agreements, received sentences of 99 years. For the Respondent it is conceded that one at any rate of those members of the gang who did not enter into such agreements received 99 years, and further that the evidence of the eight accomplices who did is necessary to provide a prima facie case against the Applicant.
The Stipendiary Magistrate ruled that s.78 of the Police and Criminal Evidence Act 1984 did apply to extradition committal proceedings but that, in the exercise of his discretion thereunder, he would not exclude the accomplice evidence. Two questions have arisen for the decision of this Court:
(1)Does s.78 apply to extradition committal proceedings; and
(2)assuming that it does, should this Court interfere with the Magistrate's discretion under s.78 not to exclude the accomplices' evidence?
The terms of s.78 are:
"(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence".
By s.82(1) "proceedings" are defined as "criminal proceedings".
It was held by the Divisional Court in R v King's Lynn Justices ex parte Holland96 CAR 74 that s.78 applies to domestic committal proceedings, but that examining justices should only exercise their discretion under the section to exclude admissible evidence in the clearest case and in exceptional circumstances, that is to say where they are satisfied that the admission of the evidence at trial would be so obviously unfair that no judge properly directing himself could admit it.
There is, however, no appellate authority on the question of the applicability of s.78 to extradition proceedings, though a number of decisions have proceeded on the assumption that it did apply, for example R v Governor of Pentonville Prison ex parte Chinoy [1992] 1 AER 317. However, in the unreported case of In re Davison decided on 1 July 1994, the Divisional Court expressly reserved its position on the question, Buxton J saying at page 21 of the transcript:
"I agree. I only wish to add one point to what my Lord has said, and that is this. It was not contested in this case that section 78 of the Police and Criminal Evidence Act applies in extradition proceedings. As my Lord has demonstrated, on the particular facts of this case there can be no possibility of relief under that section. However, I, for my part, would wish to reserve, as I believe my Lord has also reserved, the question of whether in fact that section does apply in extradition proceedings at all.
The matter was not argued before us, and I say no more about it than this, that the longer I listened to these particular proceedings, the greater became my doubts as to whether that section should apply, and does apply, on its true construction, to proceedings of this sort."
For the Applicant Mr Alan Newman QC places reliance first on Rule 17 in Dicey & Morris on Conflict of Laws, 12 Edition at p.169:
"All matters of procedure are governed by the domestic law of the country to which the court wherein any legal proceedings are taken belongs ( lex fori)".
A specific instance of this general proposition, Mr Newman says, is that questions as to the admissibility of evidence are decided in accordance with the lex fori (see Dicey & Morris at page 175).
He submits that the Extradition Act 1989 contains provisions which accord entirely with those general principles. Thus, paragraphs 6(1) and 7(1) of Schedule 1 provide a court deciding whether to commit a fugitive to await extradition with the normal domestic powers of a Court of committal. These paragraphs read:
"6(1) When a fugitive criminal is brought before the metropolitan magistrate, the metropolitan magistrate shall hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence committed in England or Wales.
7(1) 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, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England or Wales, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged."
The vital words, Mr Newman argues, are in paragraph 7(1), namely "according to the law of England and Wales". That law includes s.78 of the Police and Criminal Evidence Act 1984, which goes to admissibility not weight, and applies to "any proceedings".
Mr Lewis for the Respondent says that it does not apply to "any proceedings" but, by reason of the definition of "proceedings" in section 82 of the Act, only to "criminal proceedings". In his submission, extradition proceedings are not criminal proceedings. They are extradition proceedings concerning a criminal cause or matter, just as the present habeas corpus proceedings are correctly to be described as civil proceedings in a criminal cause or matter. Mr Newman replies that there is no sensible distinction between "criminal proceedings" and "a criminal cause or matter", relying on Amand v Home Secretary [1943] AC 147.
Support for Mr Lewis's proposition that extradition proceedings are sui generis, not criminal proceedings and not subject to the s.78 criterion of fairness, is to be found in R v Governor of Pentonville Prison ex parte Lee [1993] 3 AER 504 where Ognall J, in a judgment with which Watkins LJ agreed, said at page 509d:
"….. there is highly persuasive authority to be found in the decision of Kaplan J in Thong Chai Sanguan Dikul v Government of United States (1992) 26 May, unreported. It is highly persuasive because...
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