R v Horseferry Road Magistrates' Court, ex parte Bennett (No. 1)

JurisdictionEngland & Wales
JudgeLORD JUSTICE MANN,LORD JUSTICE SIMON BROWN,MR JUSTICE BUCKLEY
Judgment Date10 March 1994
Neutral Citation[1993] EWHC J0706-2
Judgment citation (vLex)[1993] EWHC J1111-1
Docket NumberNo: CO-1620-91,CO 1620/91
CourtQueen's Bench Division (Administrative Court)
Date10 March 1994

[1993] EWHC J0706-2

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(DIVISIONAL COURT)

CROWN OFFICE LIST

Before: Lord Justice Mann and Mr Justice Sedley

No: CO-1620-91

Regina
and
Horseferry Road Magistrates Court Ex Parte Paul Bennett

MR A NEWMAN QC and MR B JUBB (instructed by Hallinan Blackburn Gittings & Nott, 26 Buckingham Palace Road, London SW1) appeared on behalf of the Applicant.

MR C NICHOLLS QC (instructed by Crown Prosecution Service) appeared on behalf of the Respondent.

1

Tuesday, 6th July 1993

LORD JUSTICE MANN
2

In the circumstances of this somewhat unusual case, we think it right to grant leave to move and to grant an interlocutory injunction restraining the execution of the warrant within the English and Welsh jurisdiction. That interim relief is granted on the undertaking of the applicant through his counsel forthwith, on obtaining legal aid, to apply to the Sheriff's Court of the Grampian Highlands and Islands in regard to the warrant. There will, of course, be a liberty to apply. I have used "in regard to" because the precise form of proceedings in Scotland must be the subject of advice in Scotland.

3

As to the substantive hearing, that clearly ought to take place as soon as may be. But, that said, I know not how long it would take to secure the view of the Scottish Court, which I would regard as being of importance in this matter.

4

Is your Lordship ordering that these proceedings be placed in the expedited hearing list?

LORD JUSTICE MANN
5

I am not, because if it is placed in the expedited list it may come on very quickly, and I see great advantage in having the view of the Scottish Court before this matter comes on.

6

If your Lordships please. Thank you.

LORD JUSTICE MANN
7

I can certainly abridge time, if that would help?

8

No, my Lord. It was in relation to another matter. There are other problems and difficulties in the existing proceedings; in particular, public interest immunity is rearing its head in a rather large way.

LORD JUSTICE MANN
9

I heard about that yesterday. That is to be dealt with early next term.

10

I hope that my fears will prove groundless, but my learned friend, I must say, has worried me about the immigration position, but your Lordships are not concerned with that.

LORD JUSTICE MANN
11

I am not concerned with that. The position so far as this application is clear, and I hope that steps are taken, perhaps before this evening, to initiate the application for legal aid and hence the application to the Scottish Court.

12

If your Lordships please.

LORD JUSTICE MANN
13

You can convey to the Legal Aid Board the view of this Court that the matter must be dealt with as a matter of urgency.

14

My Lord, that will be conveyed. I am very grateful to your Lordships for hearing this matter at such short notice.

[1993] EWHC J1111-1

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(DIVISIONAL COURT)

Before: Lord Justice Simon Brown and Mr Justice Buckley

CO 1620/91

Regina
and
Horseferry Road Magistrates' Court
Ex Parte Paul Jones Bennett

MR A NEWMAN QC and MR B JUBB (Instructed by Hallinan Blackburn Gittings & Nott, London SW1 0QP) appeared on behalf of the Applicant.

THE RESPONDENT did not appear and was unrepresented.

MR C NICHOLLS QC and MR R FISCHEL appeared on behalf of the Interested Parties.

LORD JUSTICE SIMON BROWN
1

On 19th October 1993 we made an order for discovery, requiring the Crown Prosecution Service (hereafter CPS) to produce for inspection by the applicant, Paul James Bennett, a large number of documents of a class ordinarily attracting public interest immunity. We now give our reasons for doing so and, an altogether harder task, some measure of guidance as to how in future the CPS would be entitled to deal with such applications.

2

Making the order in the present case presented no difficulty. The application for disclosure was unopposed. Indeed the CPS were at one with the applicant in wanting the documents in question to be available at the substantive hearing. More importantly, the documents go to the very heart of a factual dispute between the parties, a dispute which if resolved in the applicant's favour could well bring to an end the criminal proceedings against him. Although, therefore, these documents are covered by a ministerial certificate objecting to their production on well-established public interest immunity grounds ordinarily regarded as compelling, there could be no doubt here where the balance falls between the competing public interests in play.

3

The essential facts surrounding the present application are these. The applicant is a New Zealand citizen who was wanted in the United Kingdom for serious criminal offences committed in connection with the purchase of a helicopter in 1989. The English police traced him to South Africa where he was arrested and eventually put on a flight to New Zealand via Heathrow. The police, having earlier consulted with the CPS, had decided not to request his return through the extradition process. (There are no formal extradition provisions in force between the United Kingdom and South Africa and any extradition would have had to be by way of special arrangements under section 15 of the Extradition Act 1989.) The applicant was arrested on arrival at Heathrow on 22nd February 1991 and charged with two offences of obtaining by deception. On 22nd May 1991 he was committed by the Stipendiary Magistrate for trial at the Crown Court.

4

On 11th September 1991 the applicant was given leave to apply for judicial review of those committal proceedings and of the decision to commit him for trial. His ground of challenge was that the proceedings constituted an abuse of the process. His essential allegation was that, having taken the decision not to proceed by way of extradition, the English police had colluded with the South African police to have him arrested in South Africa and forcibly returned to this country. He says that when he was arrested in South Africa on 28th January 1991 he was told that he was wanted by Scotland Yard and was being taken to England. He says the South African police told him that there was a fax from the English police saying he was to be returned to England in any way possible. Initially he was placed on an aeroplane for deportation to New Zealand via Taipei but once at Taipei he was returned to South Africa. He then remained in custody until 21st February when he was put on a flight from Johannesburg to Heathrow where on the following morning he was arrested by English police officers.

5

English police officers for their part have sworn affidavits denying any involvement with the South African police in returning the applicant to this country. They say that when they learned from the South African police that the applicant might be repatriated to New Zealand via the United Kingdom they sought advice from the CPS and as a result notified the South African police that in that event the applicant would be arrested on arrival. That was as far as it went.

6

That, I should say, is a substantially compressed account of the very extensive evidence filed on the issue in these proceedings.

7

On 31st July 1992 the Divisional Court decided to consider as a preliminary issue whether it had jurisdiction to inquire into the circumstances by which the applicant had come to be within the jurisdiction of the courts of England and Wales. It ruled that it had not and accordingly dismissed the application.

8

On 24th June 1993 the House of Lords, in a decision reported at [1993] 3 WLR 90, allowed the applicant's appeal from the Divisional Court's ruling, holding, first, that the High Court, in the exercise of its supervisory jurisdiction, has power to inquire into the circumstances by which a person had been brought within the jurisdiction and, in an appropriate case, to stay the prosecution as an abuse of process and order the release of the defendant; second, that where such a question arose the magistrates should adjourn the matter to enable an application to be made to the Divisional Court which was the proper forum for deciding the matter. The case was therefore remitted to the Divisional Court for further consideration.

9

In the light of that history the Divisional Court will now have to determine at a future substantive hearing whether the applicant's allegations are well-founded and, if so, what relief should be granted. The exercise is, of course, very different from that normally involved in the discharge of the Courts' supervisory jurisdiction, the essential dispute being one of fact. On the material issue there is a direct conflict between the evidence filed by the applicant and that filed on behalf of the CPS. The Court will have to resolve that conflict. In doing so, the documents passing between the English police and the South African authorities will be highly relevant, perhaps decisive.

10

As stated, these documents are covered by a ministerial certificate. This was signed by the Home Secretary in July 1992, at a time when the Home Secretary was objecting to their production. Now, as indicated, he no longer objects. On the application before us Mr. Nicholls QC appeared together with

11

Mr. Stephen Richards. He told us that both Counsel have at various stages of these proceedings been instructed by the Home Office as well as by the CPS. Consideration has been given to separate representation for these departments....

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