R v Secretary of State for the Home Department, ex parte Hill
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOOPER,LORD JUSTICE ROSE |
| Judgment Date | 03 March 1997 |
| Judgment citation (vLex) | [1997] EWHC J0303-2 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 March 1997 |
| Docket Number | CO 3962/96 |
[1997] EWHC J0303-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Royal Courts of Justice
Strand
London WC2
Lord Justice Rose
and
Mr Justice Hooper
CO 3962/96
CO/3993/96
In the Matter of the Extradition Act Section 11
In the Matter of Robert Oliver Hill
and
In the Matter of an Application for a Writ of Habeas Corpus
and
In the Matter of an Application for Judicial Review
MR ALAN JONES QC and MR BRIAN DOCTOR (instructed by Penningtons, London EC2M 2PY) appeared on behalf of the Applicant.
MR STUART CATCHPOLE (instructed by Treasury Solicitors, SW1H) appeared on behalf of the Respondent.
MR MICHAEL BIRNBAUM QC and MR JAMES LEWIS (instructed by the CPS, Special Case Dept, London EC4) appeared on behalf of interested party, The Government of South Africa.
(As Approved)
On October 29 1996 Robert Oliver Hill was committed in custody by a Metropolitan Stipendiary Magistrate, Mr Ronald Bartle, to await the Secretary of State's decision as to his extradition. He now makes an application for habeas corpus under Section 11 of the Extradition Act 1989 ("the 1989 Act") and, with the leave of Dyson J., seeks Judicial Review of the decision of the Home Secretary to issue a certificate on 11 September 1996 under Section 6(7) of the 1989 Act (known as a specialty certificate). The applications for habeas corpus and for judicial review have been heard together.
During the hearing we were provided with the certificate of committal. It is agreed that the certificate is wrong in that there is an error as to the number of charges and an error in the description of half of the substantive charges. For that reason, the matter will have to be remitted to the magistrates' court.
The habeas corpus application is based on nine separate grounds.
Ground 1: The scheme of extradition provided for in part 3 of the 1989 Act does not apply to crimes committed before the Act came into force;
Ground 2: Alternatively, the 1989 Act does not apply in the case of a designated Commonwealth country to extradition crimes committed before that country was designated;
Ground 3: The documents submitted by the requesting country were not duly authenticated as required by Section 27 of the 1989 Act;
Ground 4: The crimes of conspiracy set out in the orders to proceed are not crimes of which the Applicant is accused and the Magistrates' committal upon them should therefore be quashed;
Ground 5: The substantive charges of forgery and using a false document upon which the Magistrate committed are not extradition crimes;
Ground 6: There was no evidence before the Court as to the central allegations that banks were obliged by law to stamp loan certificates and deeds when they were sold from a resident to a non-resident or vice versa and that brokers were obliged by law to hand them to bankers for stamping;
Ground 7: The substantive crimes upon which the Applicant was committed were bad for uncertainty.
Ground 8: The Applicant's return to South Africa is prohibited by Section 6(4) of the 1989 Act
Ground 9: By reason of the passage of time it would, having regard to all the circumstances, be unjust or oppressive to return the Applicant to South Africa.
Ground 8 and the application for judicial review are linked. The basis of the application for Judicial Review is that the decision of the Secretary of State to issue the certificate under section 6(7) was Wednesbury unreasonable.
By virtue of section 1(1) of Part I of the Act, a person in the United Kingdom who is accused of an "extradition crime" in a "designated Commonwealth country" may be returned to that country in accordance with the extradition procedures set out in Part III of the Act.
An "extradition crime" means "conduct in the territory of a … designated Commonwealth country … which, if it occurred in the United Kingdom, would constitute an offence punishable with" 12 months' imprisonment or more and "which, however described in the law of the … Commonwealth country … is so punishable under that law" (section 2(1)(a)).
South Africa ("SA") became a designated Commonwealth country on March 18 1996 by virtue of The Extradition (Designated Commonwealth Countries) Order 1991 (Amendment) Order 1996 (SI 1996, No. 279) made pursuant to section 5 of the Act. Section 5(4) provides that the Order in Council may contain transitional provisions. The 1996 Order contained no such provisions. The 1991 order repealed a number of orders dating from a period prior to the coming into force of the 1989 Act. Those orders remained effective for the purposes of the 1989 Act by virtue of section 17 of the Interpretation Act 1978.
Section 6(4) - (7) provides:
(4) A person accused of an offence shall not be returned, or committed or kept in custody for the purposes of such return, unless provision is made by the relevant law, or by an arrangement made with the relevant … Commonwealth country … for securing that he will not, unless he has first had an opportunity to leave it, be dealt with there for or in respect of any offence committed before his return to it other than -
(a) the offence in respect of which his return is ordered;
(b) an offence, other than an offence excluded by subsection (5) below, which is disclosed by the facts in respect of which his return was ordered; or
(c) subject to subsection (6) below, any other offence being an extradition crime in respect of which the Secretary of State may consent to his being dealt with.
(5) The offences excluded from paragraph (b) of subsection (4) above are offences in relation to which an order for the return of the person concerned could not lawfully be made.
(6) The Secretary of State may not give consent under paragraph (c) of that subsection in respect of an offence in relation to which it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made.
(7) Any such arrangement as is mentioned in subsection (4) above which is made with a designated Commonwealth country … may be an arrangement made for the particular case or an arrangement of a more general nature; and for the purposes of that subsection a certificate issued by or under the authority of the Secretary of State confirming the existence of an arrangement with a Commonwealth country … and stating its terms shall be conclusive evidence of the matters contained in the certificate."
Section 7 of Part III of the Act provides that a person shall not be dealt with under this Part of the Act "except in pursuance of an order of the Secretary of State (in this Act referred to as an 'authority to proceed') issued in pursuance of a request (in this Act referred to as an 'extradition request') for the surrender of a person under this Act made … by or on behalf of a designated Commonwealth country." A person arrested under Part III for the purposes of obtaining his extradition must be brought before what is described in the Act as a "court of committal". By virtue of section 9(8), if a court of committal is satisfied the offence to which the authority to proceed relates is an extradition crime and (in this case) "the evidence would be sufficient to warrant his trial if the extradition crime had taken place within the jurisdiction of the court", the court shall, subject to various exceptions, "commit him … (i) to await the Secretary of State's decision as to his return …"
The authority to proceed
The authority to proceed dated September 11 1996 states:
"Whereas in pursuance of section 7 of the Extradition Act 1989 a request has been made to the Secretary of State by or on behalf of the Government of South Africa for the surrender of Robert Oliver Hill who is accused of conduct in the jurisdiction of South Africa which appears to the Secretary of State to be conduct which, had it occurred in the United Kingdom, would have constituted the offences of conspiracy to defraud, conspiracy to forge documents, conspiracy to use forged documents, conspiracy to obtain property by deception, forgery, using a false instrument, and obtaining property by deception.
Now the Secretary of State hereby authorises you to proceed in conformity with the provisions of Part III of the Extradition Act of 1989".
Section 6(7) certificate
The certificate is dated September 11 1996 and reads as follows:
"In pursuance of section 6(7) of the Extradition Act 1989 the Secretary of State hereby certifies that an arrangement as mentioned in section 6(4) of the Act has been made with the Government of South Africa acting through the Attorney-General of the Witwatersrand Local Division of the Supreme Court of South Africa in the case of Robert Oliver Hill in the following terms:-
In submitting this request for the extradition of Robert Oliver Hill, the Attorney-General of the Witwatersrand Local Division of the Supreme Court of South Africa State's that the Accused, unless he has first had an opportunity to leave South Africa, will not be dealt with in South Africa for or in respect of any offence committed before his departure under the Extradition Act 1989, other than:
(a) the offences in respect of which his return under the Act is ordered;
(b) an offence, other than an offence in relation to which an Order for his return could not lawfully be made, which is disclosed by the facts in respect of which his return was ordered: or
(c) any other offence being an Extradition crime in respect of which the Secretary of State of the United Kingdom may consent to his...
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