Re Schmidt
| Jurisdiction | England & Wales |
| Judge | Lord Templeman,Lord Ackner,Lord Jauncey of Tullichettle,Lord Slynn of Hadley,Lord Lloyd of Berwick |
| Judgment Date | 30 June 1994 |
| Judgment citation (vLex) | [1994] UKHL J0630-14 |
| Date | 30 June 1994 |
| Court | House of Lords |
[1994] EWHC J0630-14
Lord Templeman
Lord Ackner
Lord Jauncey of Tullichettle
Lord Slynn of Hadley
Lord Lloyd of Berwick
House of Lords
My Lords,
For the reasons to be given by my noble and learned friend Lord Jauncey of Tullichettle I would dismiss this appeal.
My Lords,
For the reasons given in the speech prepared by my noble and learned friend, Lord Jauncey of Tullichettle, I too would dismiss this appeal.
My Lords,
The primary issue in this appeal concerns the extent of the powers of the High Court to intervene in procedure under Part III of the Extradition Act 1989.
Factual Background.
The appellant, who is a German national, is accused by the prosecuting authorities in Mannheim of having on some 58 occasions in Germany supplied and possessed cannabis which he had imported from Holland to a total of more than 386 kilograms between 1987 and 1991. Having moved his place of abode from Germany to Ireland he was arrested in the latter country on 12 August 1991 and charged with being in possession of drugs. On 13 August 1991 an international warrant of arrest was issued by the court in Mannheim and the German authorities proceeded to set in motion procedure in Ireland for extradition. On 24 September 1991 the appellant was convicted of the drugs charge and later released. On 29 October 1991 the Irish authorities informed the German authorities that the extradition warrant was not in order. No further steps towards extradition were thereafter taken by the German authorities. During 1992 New Scotland Yard received information that the appellant was living in Waterford and was making frequent visits to the United Kingdom using false British and E.E.C. passports to conceal his true identity. There was also information that he had visited Italy and Belgium using such passports. In September 1992 Detective Sergeant Jones, an officer of the extradition squad branch of the Metropolitan Police, decided to investigate whether the appellant might be involved in terrorist activities and had committed offences in connection with forged passports. It is accepted that there was no evidence to connect the appellant with terrorist activities. Detective Sergeant Jones also obtained the authority of a senior officer to pass himself off as an officer investigating cheque fraud in the hope that he could thereby persuade the appellant to meet him in England, where the appellant could be arrested on a provisional warrant if the German Government were to request his extradition.
Thereafter Detective Sergeant Jones telephoned the appellant and his solicitor in Ireland and explained that he was investigating a cheque fraud allegedly committed by a Mr. N. Schmidt and that he was anxious to exclude the appellant from his inquiries. He invited the appellant to come to England to be interviewed and on being asked by his solicitor what would happen if the appellant did not attend the interview he said that it would be the normal practice to circulate his name as that of a suspect and that he would be arrested when his presence in the United Kingdom next came to the notice of the authorities. The respondents accept that there was no truth in the cheque fraud suggestion and that this was simply a device to persuade the appellant to enter the United Kingdom.
On 17 November 1992 Detective Sergeant Jones met the appellant's solicitor by arrangement in Green Park and shortly thereafter he met the appellant who accompanied him to Charing Cross Police Station where he was arrested on a provisional warrant issued that morning. On 18 November the appellant was remanded in custody and after sundry procedure he was, on 18 February 1993, committed to custody to await the decision of the Secretary of State as to his return. The appellant thereupon appealed to the High Court for a writ of habeas corpus and judicial review of the Secretary of State's decision to issue an Authority to Proceed to the Metropolitan Magistrate. The basis of the appellant's application was that the ruse adopted by Detective Sergeant Jones to persuade him to come to the United Kingdom was an abuse of power by the executive and an abuse of process of the Courts of England and Wales which vitiated the whole extradition proceedings. The Divisional Court refused the application and the appellant now comes to this House seeking reversal of the Divisional Court's judgment but only in so far as it relates to the habeas corpus application.
Relevant Legislation
Before considering the relevant provisions of the Act of 1989 it is useful to look briefly at the legislative history. The Extradition Act 1870, which applied only to the surrender of fugitive criminals to foreign states, provided in section 10:
"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 Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged.
…
If he commits such criminal to prison, he shall commit him to the Middlesex House of Detention, or to some other prison in Middlesex, there to await the warrant of a Secretary of State for his surrender, and shall forthwith send to a Secretary of State a certificate of the committal, and such report upon the case as he may think fit."
The omitted paragraph made provisions for convicted fugitive criminals similar to those for fugitive accused. Section 11 provided that after the committal of a fugitive criminal to prison it should, subject to habeas corpus provisions, be lawful for the Secretary of State to order the surrender of the fugitive to an authorised representative of the foreign state. In Atkinson v. U.S.A. Government [1971] A.C. 197, to which I shall refer in more detail later, it was held by this House that once a magistrate had decided that there was sufficient evidence to justify committal he had no power to refuse to commit on the ground that it would be unjust or oppressive to require the accused to be tried.
The Fugitive Offenders Acts of 1881 and 1967 applied to the return of fugitives from one part of the Crown's Dominions to another part thereof. The Act of 1881 contained provisions broadly similar to those contained in sections 10 and 11 of the Act of 1870 but also conferred power on a superior court to discharge a fugitive in certain circumstances. Section 10, which conferred this power, was in the following terms:
"Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities for communication, and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period, such court may discharge the fugitive, either absolutely or on bail, or order that he shall not be returned until after the expiration of the period named in the order, or may make such other order in the premises as to the court seems just."
The words "or otherwise" in this section were construed in Regina v. Governor of Brixton Prison, Ex parte Naranjan Singh [1962] 1 Q.B. 211 as conferring upon the court a wide discretion to do what in all the circumstances of the case was just (Lord Parker C.J. at pp. 218-20). The Act of 1967 which repealed the Act of 1881 conferred upon the High Court by section 8(3) the following powers in relation to a person who, having been committed to custody under the prescribed procedure, made an application for habeas corpus:
"8(3) On any such application the High Court or High Court of Justiciary may, without prejudice to any other jurisdiction of the court, order the person committed to be discharged from custody if it appears to the court that—
( a) by reason of the trivial nature of the offence of which he is accused or was convicted; or
( b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or
( c) because the accusation against him is not made in good faith in the interests of justice,
it would, having regard to all the circumstances, be unjust or oppressive to return him."
The omission in section 8(3) of the words "or otherwise" which had occurred in section 10 of the Act of 1881 was referred to in Union of India v. Narang and Another [1978] A.C. 247 by three of their Lordships who expressed the firm opinion that the powers of the court to discharge a person had by the omission been restricted to situations falling within the three categories set out in the subsection (Viscount Dilhorne 271G-H, Lord Edmund-Davies 282G-283A, Lord Keith of Kinkel 293C-E).
On 13 December 1957 the European Convention on Extradition was opened for signature by Members of the Council of Europe. Article 1 thereof is in the following terms:
"OBLIGATION TO EXTRADITE
The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order."
The United Kingdom signed the Convention in 1981 and almost all of the Act of 1989, which repealed both the Acts of 1870 and 1967, came into force on 27 September 1989, with the result that extradition from...
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