R v Horseferry Road Magistrates Court ex parte Bennett (A.P.)

JurisdictionUK Non-devolved
JudgeLord Griffiths,Lord Bridge of Harwich,Lord Oliver of Aylmerton,Lord Lowry,Lord Slynn of Hadley
Judgment Date24 June 1993
Judgment citation (vLex)[1993] UKHL J0624-7
Date24 June 1993
CourtHouse of Lords
Horseferry Road Magistrates Court
Ex Parte Bennett (A.P.)

[1993] EWHC J0624-7

Lord Griffiths

Lord Bridge of Harwich

Lord Oliver of Aylmerton

Lord Lowry

Lord Slynn of Hadley

House of Lords

Lord Griffiths

My Lords,


The appellant is a New Zealand citizen who is wanted for criminal offences which it is alleged he committed in connection with the purchase of a helicopter in this country in 1989. The essence of the case against him is that he raised the finance to purchase the helicopter by a series of false pretences and has defaulted on the repayments.


The English police eventually traced the appellant and the helicopter to South Africa. The police, after consulting with the Crown Prosecution Service, decided not to request the return of the appellant through the extradition process. The affidavit of Detective Sergeant Martin Davies of the Metropolitan Police of New Scotland Yard deposes as follows:

"I originally considered seeking the extradition of the applicant from South Africa. I conferred with the Crown Prosecution Service, and it was decided that this course of action should not be pursued. There are no formal extradition provisions in force between the United Kingdom and the Republic of South Africa and any extradition would have to be by way of special extradition arrangements under section 15 of the Extradition Act 1989. No proceedings for the applicant's extradition were ever initiated."


It is the appellant's case that, having taken the decision not to employ the extradition process, the English police colluded with the South African police to have the appellant arrested in South Africa and forcibly returned to this country against his will. The appellant deposes that he was arrested by two South African detectives on 28 January 1991 at Lanseria South Africa, who fixed a civil restraint order on the helicopter on behalf of the UK finance company and told the appellant that he was wanted by Scotland Yard and he was being taken to England. Thereafter he was held in police custody until he was placed on an aeroplane in Johannesburg ostensibly to be deported to New Zealand via Taipei. At Taipei when he attempted to disembark he was restrained by two men who identified themselves as South African police and said that they had orders to return him to South African and then to the United Kingdom and hand him over to Scotland Yard. He was returned to South Africa and held in custody until he was placed, handcuffed to the seat, on a flight from Johannesburg on 21 February arriving at Heathrow on the morning of 22 February when he was immediately arrested by three police officers including Detective Sergeant Davies. He further deposes that he was placed on this flight in defiance of an order of the Supreme Court of South Africa obtained by a lawyer on his behalf on the afternoon of 21 February.


The English police through Sergeant Davies deny that they were in any way involved with the South African police in returning the appellant to this country. They say that they had been informed that there were a number of warrants for the appellant's arrest in existence in Australia and New Zealand and that they requested the South African police to deport the appellant to either Australia or New Zealand and it was only on 20 February that the English police were informed by the South African police that the appellant was to be repatriated to New Zealand by being placed on a flight to Heathrow from whence he would then fly on to New Zealand. Sergeant Davies does, however, depose in a second affidavit as follows:

"1. Further to my affidavit sworn in the above mentioned proceedings on 29 November 1991, my earliest communications with the South African authorities following the applicant's arrest were with the South African police with a view to his repatriation to New Zealand or deportation to Australia and his subsequent extradition from one of those countries to England. I discussed with the South African police the question as to whether the applicant would be returned via the United Kingdom and I was informed by them that he might be returned via London. I sought advice from the Crown Prosecution Service and from the Special Branch of the Metropolitan Police as to what the position would be if he were so returned. I informed the South African police by telephone that if the applicant were returned via London he would be arrested on arrival. Subsequently I was informed by the South African police that the applicant could not be repatriated to New Zealand via Heathrow� .

4. I now recollect that it was on 20 February and not on 21 February as I stated in my previous affidavit, that the South African police informed me on the telephone that the applicant was to be returned to New Zealand via Heathrow. On the same day I consulted the Crown Prosecution Service and it was decided that the English police would arrest the applicant on his arrival at Heathrow."


It is not for your Lordships to pass judgment on where truth lies at this stage of the proceedings but for the purpose of testing the submission of the respondents that a court has no jurisdiction to inquire into such matters it must be assumed that the English police took a deliberate decision not to pursue extradition procedures but to persuade the South African police to arrest and forcibly return the appellant to this country, under the pretext of deporting him to New Zealand via Heathrow so that he could be arrested at Heathrow and tried for the offences of dishonesty he is alleged to have committed in 1989. I shall also assume that the Crown Prosecution Service were consulted and approved of the behaviour of the police.


On 22 May 1991 the appellant was brought before a stipendiary magistrate for the purpose of committal proceedings. Counsel for the appellant requested an adjournment to permit him to challenge the jurisdiction of the magistrates' court. The application was refused and the appellant was committed for trial to the Southwark Crown Court on five offences of dishonesty. The appellant obtained leave to bring proceedings for judicial review to challenge the decision of the magistrate. On 22 July 1992 the Divisional Court ruled that as a preliminary issue the court would consider whether there was jurisdiction vested in the Divisional Court to inquire into the circumstances by which the appellant had come to be within the jurisdiction of the courts of England and Wales.


On 31 July 1992 the Divisional Court held that even if the evidence showed collusion between the Metropolitan Police and the South African police in kidnapping the appellant and securing his enforced illegal removal from the Republic of South Africa there was no jurisdiction vested in the court to inquire into the circumstances by which the appellant came to be within the jurisdiction and accordingly dismissed the application for judicial review. The Divisional Court has certified the following question of law:

"Whether in the exercise of its supervisory jurisdiction the court has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if so what remedy is available if any to prevent his trial where that person has been lawfully arrested within the jurisdiction for a crime committed within the jurisdiction".


The Divisional Court in this case was faced with conflicting decisions of the Divisional Court in earlier cases. In Reg. v. Bow Street Magistrates' Court, Ex parte Mackeson (1981) 75 Cr.App.R. 24 the facts were as follows. The applicant was a British citizen who had left this country at the end of 1977 and in 1979 was working as a schoolteacher in Zimbabwe-Rhodesia. In May 1979 he was wanted by the Metropolitan Police for offences of fraud that he was alleged to have committed before he left this country. The Metropolitan Police were aware that no extradition was lawfully possible at that time because the Zimbabwe-Rhodesia Government was in rebellion against the Crown. The Metropolitan Police therefore told the authorities in Zimbabwe-Rhodesia that the applicant was wanted in England in connection with fraud charges with the result that he was arrested and a deportation order made against him. The applicant brought proceedings in Zimbabwe-Rhodesia for the deportation order to be set aside which succeeded at first instance but the decision was set aside on appeal. No attempt was made to use the extradition process to secure the return of the applicant when Zimbabwe-Rhodesia returned to direct rule under the Crown in December 1979. On 17 April 1980 the applicant was placed upon a plane by the police in Zimbabwe-Rhodesia and arrested on his arrival at Gatwick by the Metropolitan Police on 17 April 1980. No evidence was offered in respect of the fraud charges but further charges were alleged against him under the Theft Acts. The applicant applied for an order of prohibition to prevent the hearing of committal proceedings against him in the magistrates court on those charges.


On these facts Lord Lane C. J. giving the judgment of the Divisional Court held, on the authority of Rex v. Officer Commanding Depot Battalion, R.A.S.C., Colchester, Ex parte Elliott [1949] 1 All E.R. 373, that the court had jurisdiction to try the applicant. He said, at p. 32:

"Whatever the reason for the applicant being at Gatwick Airport on the tarmac, whether his arrival there had been obtained by fraud or illegal means, he was there. He was subject to arrest by the police force of this country. Consequently the mere fact that his arrival there may have been procured by illegality did not in any way oust the jurisdiction of the court. That aspect of the matter is simple."


On the question of whether the court could or would exercise a discretion in favour of the applicant to order his release from custody Lord Lane C.J. relied...

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