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R v Governor of Brixton Prison, ex parte Osman

Weekly Law Reports The Times Law Reports Cited authorities 4 Cited in 46 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date12 December 1990
Date12 December 1990
CourtQueen's Bench Division (Administrative Court)
[QUEEN'S BENCH DIVISION] REGINA v. GOVERNOR OF BRIXTON PRISON, Ex pare OSMAN 1990 Nov. 12, 13, 14 Mann L.J. and Garland J.

Crown - Privilege - Objection to produce documents - Correspondence between requesting authority and government departments for return of fugitive - Certificate claiming public interest immunity in criminal proceedings - Whether documents privileged - Estoppel - Per rem judicatam - Issue estoppel - Interlocutory application in criminal proceedings - Whether decision giving rise to issue estoppel per rem judicatam

Following a request by the Government of Hong Kong and the Secretary of State's authority to proceed under the Fugitive Offenders Act 1967, the Chief Metropolitan Stipendiary Magistrate, pursuant to section 7(5) of the Act, committed the applicant to custody to await return to Hong Kong to face charges of conspiracy to defraud, conspiracy to steal, bribery, theft and false accounting. The applicant made three unsuccessful applications for a writ of habeas corpus. In the course of the third application, the court ordered the disclosure of correspondence between the magistrates' court and the Home Office and between the Home Office and other government departments and the Government of Hong Kong but, although the correspondence was disclosed to the parties, it was not read in open court. The applicant then made a fourth application for a writ of habeas corpus and, by affirmation, he relied on nine items in the correspondence as indicative of the motives of the requesting authority in bringing a prosecution against him in Hong Kong. He applied for discovery of further documents supported by a second affirmation but that application was refused on the ground that the nine documents did not indicate the existence of other documents likely to suggest that the accusations made against him were made other than in good faith.

On a motion by the Secretary of State for the Foreign and Commonwealth Office claiming public interest immunity for the nine documents and applying for the relevant parts of the applicant's two affirmations to be struck out under R.S.C., Ord. 41, r. 6: —

Held, granting the application, (1) that, since the outcome of the proceedings in which habeas corpus was sought by the applicant affected might result in his trial and punishment for an alleged offence, the proceedings were criminal in nature; that public interest immunity could be claimed in criminal proceedings as well as in civil proceedings and the public interest immunity had to be balanced against the weighty interest of justice; that, since none of the nine documents disclosed any matter requiring the privilege to be set aside in the interests of justice and since there had been only limited dissemination of the contents of the documents, the balance was decisively in favour of the documents not being disclosed in the public interest (post, pp. 287G–288A, C–E, 289G–290B, 294B).

(2) That although the application for disclosure of further documents was an interlocutory matter, the court had made a final decision of which an essential element had been that the nine documents were irrelevant to the assertion of lack of good faith on the par of the requesting authority; that the dismissal of the application for discovery raised an issue estoppel and the applicant could not now rely on the documents as being relevant; and that, therefore, those documents and the relevant part of the applicant's two affirmations were inadmissible (post, pp. 291B–D, 292G, 293H, 294B).

The following cases are referred to in the judgment:

Air Canada v. Secretary of State for Trade [1983] 2 A.C. 394; [1983] 2 W.L.R. 494; [1983] 1 All E.R. 910, H.L.(E.)

Amand v. Home Secretary and the Minister of Defence of Royal Netherlands Government [1943] A.C. 147; [1942] 2 All E.R. 381, H.L.(E.)

Burmah Oil Co. Ltd. v. Governor and Company of the Bank of England [1980] A.C. 1090; [1979] 3 W.L.R. 722; [1979] 3 All E.R. 700, H.L.(E.)

Buttes Gas and Oil Co. v. Hammer (No. 3) [1981] Q.B. 223; [1980] 3 W.L.R. 668; [1980] 3 All E.R. 475 C.A.

Conway v. Rimmer [1968] A.C. 910; [1968] 2 W.L.R. 998; [1968] 1 All E.R. 874, H.L.(E.)

Duncan v. Cammell Laird & Co. Ltd. [1942] A.C. 624; [1942] 1 All E.R. 587, H.L.(E.)

Marks v. Beyfus (1890) 25 Q.B.D. 494, C.A.

Midland Bank Trust Co. Ltd. v. Green [1980] Ch. 590; [1978] 3 W.L.R. 149; [1978] 3 All E.R. 555.

Mills v. Cooper [1967] 2 Q.B. 459; [1967] 2 W.L.R. 1343; [1967] 2 All E.R. 100, D.C.

Reg. v. Governor of Pentonville Prison, Ex parte Osman [1990] 1 W.L.R. 277, D.C.

Reg. v. Robertson, Ex parte McAulay (1983) 21 N.T.R. 11

Sankey v. Whitlam (1978) 21 A.L.R. 505; 142 C.L.R. 1

Savings & Investment Bank Ltd. v. Gasco Investments (Netherlands) B.V. [1984] 1 W.L.R. 271; [1984] 1 All E.R. 296

Tipene v. Apperley [1978] 1 N.Z.L.R. 761

The following additional cases were cited in argument:

Multi Guarantee Co. Ltd. v. Cavalier Insurance Co. Ltd., The Times, 24 June 1986

Pamplin v. Express Newspapers Ltd. [1985] 1 W.L.R. 689; [1985] 2 All E.R. 185

Penn-Texas Corporation v. Murat Anstalt (No. 2) [1964] 2 Q.B. 647; [1964] 3 W.L.R. 131; [1964] 2 All E.R. 594, C.A.

Reg. v. Barton [1973] 1 W.L.R. 115; [1972] 2 All E.R. 1192

Reg. v. Brown (Richard Bartholomew) (1987) 87 Cr.App.R. 52, C.A.

Reg. v. Commissioner of Police, Ex parte Hart-Leverton, The Times, 8 February 1990, D.C.

Reg. v. Governor of Pentonville Prison, Ex parte Osman (No. 3) [1990] 1 W.L.R. 878; [1990] 1 All E.R. 999, D.C.

Reg. v. Hallett [1986] Crim.L.R. 462, C.A.

Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department [1973] A.C. 388; [1972] 3 W.L.R. 279; [1972] 2 All E.R. 1057, H.L.(E.)

Reg. v. Secretary of State for the Environment, Ex parte Hackney London Borough Council [1983] 1 W.L.R. 524; [1983] 3 All E.R. 358, D.C.

Reg. v. Williams [1988] Crim.L.R. 113

Robinson v. State of South Australia (No. 2) [1931] A.C. 704, P.C.

Sennar, The (No. 2) [1985] 1 W.L.R. 490; [1985] 2 All E.R. 104, H.L.(E.)

APPLICATION

By application dated 5 February 1990, the applicant, Lorraine Esme Osman, applied for the fourth time for writ of habeas corpus following the order of the Chief Metropolitan Stipendiary Magistrate, under section 7(5) of the Fugitive Offenders Act 1967, for the applicant to be detained in custody to await return to Hong Kong to face criminal charges. During the hearing of the third application for a writ of habeas corpus, the Divisional Court (Parker L.J. and Tudor Evans J.) ordered the disclosure of correspondence passing between the Government of Hong Kong and United Kingdom government departments and between the Home Office and the magistrates' court. Relying on nine items in the correspondence, the applicant affirmed that they indicated that the request for his extradition by the requesting authority was not bona fide and he sought discovery of further documents. The Divisional Court (Legatt L.J. and Nolan J.) refused that application for discovery on 20 June 1990.

By notice of motion, the Secretary of State for the Foreign and Commonwealth Office claimed that public interest immunity attached to the nine documents and sought an order pursuant to R.S.C., Ord. 41, r. 6, to strike out part of affirmation made by the applicant referring to and relying on those nine documents.

The facts are stated in the judgment of Mann L.J.

Martin Thomas Q.C., Mark H. Lomas and John Mok for the applicant, Mr. Osman.

Kevin de Haan and Clare Montgomery for the Governor of Brixton Prison.

Clive Nicholls Q.C. and Graham Grant for the Governor of Hong Kong.

John Laws and Stephen Richards for the Foreign and Commonwealth Office.

MANN L.J. There is before the court a motion, dated 26 October 1990, made on behalf of the Secretary of State for the Foreign and Commonwealth Office. By that motion, the Secretary of State seeks an order pursuant to R.S.C., Ord. 41, r. 6, that

“the affirmations made herein by Lorraine Esme Osman and dated respectively 2 February 1990 and 15 June 1990 be struck out to the extent of the passages and exhibits referred in the schedule hereto.

That motion is made in the context of an application for a writ of habeas corpus made by Lorraine Esme Osman on 5 February 1990. That application was an application in respect of Osman's committal to custody on 1 June 1987 under section 7(5) of the Fugitive Offenders Act 1967. The substantive hearing of that application is due to come before this court as presently constituted shortly.

The application of 5 February 1990 is the fourth application for a writ of habeas corpus made in respect of the committal to custody. All the previous applications were unsuccessful. To the third of them, Reg. v. Governor of Pentonville Prison, Ex pate Osman (No. 3) [1990] 1 W.L.R. 878, I must refer.

It was an application heard before this court, presided over by Parker L.J. in October and November 1989. During the course of that hearing, events occurred which are now material and which are sufficiently summarised in paragraph 4 of an affidavit sworn by Nicolas James Peter Ash of the Treasury Solicitors' Department for the purposes of the Secretary of State's motion now before the court. That affidavit was sworn on 25 October 1990. I quote:

“In the course of the hearing of the applicant's third application for habeas corpus (CO/746/89), in October/November 1989, the Divisional Court (Parker L.J. and Tudor Evans J.) ordered disclosure of certain material considered relevant to the matters then before the court. The order, made I believe on 5 October, and which was not formally drawn up, related to correspondence between the Bow Street Magistrates Court (the court of extradition) and the Home Office, and between the Home Office and other Government departments and the Government of Hong Kong.”

I interpose to say that the Government of Hong Kong is the requesting authority in the extradition proceedings.

“The relevant period was stated as being from the time when the Hong Kong Government asked New...

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