VB, CU, CM and EN v Westminster Magistrates' Court The Government of Rwanda (First Interested Party) The Crown Prosecution Service (Second Interested Party) CM (Third Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting,Lord Justice Moses |
| Judgment Date | 27 March 2014 |
| Neutral Citation | [2014] EWHC 889 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 March 2014 |
| Docket Number | Case Numbers: CO/528/2014 CO/511/2014 CO/694/2014 |
[2014] EWHC 889 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
and
Mr Justice Mitting
Case Numbers: CO/528/2014
CO/585/2014
CO/511/2014
CO/694/2014
and
and
and
Mr Alun Jones QC AND Mr Samuel Blom-Cooper (instructed by FRANK BRAZELL AND PARTNERS) for the Applicant VB
Mr Edward Fitzgerald QC AND Miss Rachel Kapila (instructed by HALLINAN BLACKBURN GITTINGS & NOTT) for the Applicant CU
Mr Timothy Moloney QC AND Mr Iain Edwards (instructed by O'KEEFE SOLICITORS) for the Applicant CM
Miss Diana Ellis QC AND Ms Joanna Evans (instructed by CLIFFORD JOHNSTON SOLICITORS) for the Applicant EN
Mr James Lewis QC AND Miss Gemma Lindfield (instructed by THE CROWN PROSECUTION SERVICE) for the First and Second Interested Parties
Mr Mark Weekes (instructed by BINDMANS LLP) for the Third Interested Party
Hearing dates: 19 March 2014
By a Memorandum of Understanding signed on 8 March 2013 in respect of each claimant, the United Kingdom agreed to surrender him to Rwanda to stand trial for offences punishable under the laws of both countries by a minimum sentence of at least 12 months imprisonment. By paragraph 5 of the Memorandum a request for extradition was to be made in writing to the Secretary of State for the Home Department. By an 86 page document, with further extensive annexes, dated 2 April 2013, the Government of Rwanda requested the extradition of each claimant to stand trial for offences of genocide and related inchoate crimes, crimes against humanity and public order and murder. The claimants were arrested on 29 May 2013 and brought before Westminster Magistrates' Court.
The Secretary of State has certified that arrangements have been made between the United Kingdom and Rwanda for the extradition of the claimants and that Rwanda is not a category 1 or 2 territory within the Extradition Act 2003. Accordingly, Part 2 of the Act applies to Rwanda's request with the modifications set out in Section 194(4)(a) and in the Memorandum. The principal modification is to Section 84: in the case of these requests, the Government of Rwanda, unlike a designated category 2 country, must establish that there is evidence sufficient to make a case requiring an answer by each claimant as if the proceedings were the summary trial of an information against him: Section 84(1).
Section 87 applies unamended: a judge "must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998". If not, the judge must order the person's discharge.
The claimants seek to establish before Deputy Senior District Judge Arbuthnot that there are substantial grounds for believing that, if extradited, there is a real risk that they will be subjected to a flagrantly unfair trial. If they succeed, it is now settled law in Strasbourg that the United Kingdom would be in breach of its obligations under Article 6 if they were to be extradited: Othman v United Kingdom [2012] 55 EHRR 1 paragraphs 258 – 262.
The claimants wish to adduce evidence from witnesses who are said not to be willing to give evidence if their evidence, and in particular anything in it from which their identity might be discerned, is revealed to the Government of Rwanda. In the case of a small number of witnesses it is said that they will only allow their evidence to be seen by the judge; and undertakings not to disclose their evidence to anyone other than the judge are said to have been given by lawyers acting for the relevant claimants. We have not seen any of this material. We have been asked to decide the difficult questions which arise in this claim as a matter of principle. The judge however, has seen and read some of the witness statements on which some of the claimants rely, for the purpose of determining applications to her about the manner in which the evidence can be deployed. They have not been disclosed to counsel for the Government of Rwanda or the CPS who act on their behalf. She stated that "for the purpose of this argument only I am prepared to accept that they contain important and material evidence which is relevant to the issues I have to consider". I, too, make that assumption for the purpose of the issues which we have to determine.
The claimants submitted to the judge that she should devise a common law procedure to permit her to take the evidence on which they wish to rely into account without it being disclosed to the Government of Rwanda. They proposed that the interests of the Government of Rwanda could be at least partially protected by the adoption of what they described as a "reverse closed material procedure". Two possibilities were canvassed: the appointment of a special advocate, drawn from the Attorney General's panel of vetted special advocates, who would perform a function for the Government of Rwanda similar to that performed on behalf of an appellant under Section 6 Special Immigration Appeals Commission Act 1997 or on behalf of a respondent to asset freezing proceedings under the Counter-Terrorism Act 2008 or proceedings under the Terrorism Prevention and Investigation Measure Act 2011 ( CPR 79.18 and 80.19); or the making of an order similar to that devised by the Supreme Court in W(Algeria) v. SSHD [2012] 2AC 115. In fact, the claimants invited the judge to make a significantly different order. A W(Algeria) order is not a reverse closed material procedure order: the Secretary of State and her lawyers and identified advisers saw the material in respect of which the order was made. What it did was to prohibit her from disclosing the material to others, in particular the Government of Algeria, to obtain information about it. What the claimants seek here is an order which prohibits disclosure to the Government of Rwanda, whilst permitting the lawyers who represent it to see it – a sort of imposed confidentiality ring.
Mr. Lewis QC for the Government of Rwanda submitted that the judge had no power to make such an order, relying on Al-Rawi v. Security Service [2012] 1 AC 531 and the decision of the Divisional Court in British Sky Broadcasting Ltd v. Central Criminal Court [2012] QB 785. The judge accepted that submission, concluding that for the court to sit in private excluding one party would be unlawful. She refused the application "with some reluctance".
The claimants seek permission to challenge her decision by this claim. Ouseley J ordered that there be a rolled-up hearing of this application. I would grant permission and deal with the claim substantively.
A Magistrates' Court conducting an extradition hearing under Part 2 of the 2003 Act is not a court of unlimited jurisdiction. Its powers and the manner in which it must proceed are set out in detail in Part 2. Section 77 defines the powers of the judge:
"(1) In England and Wales, at the extradition hearing the appropriate judge has the same powers (as nearly as may be) as a Magistrates' Court would have if the proceedings were the summary trial of an information against the person whose extradition is requested".
She is then required to answer a series of questions: whether certain formalities have been complied with and that the person brought before her is the person whose extradition is requested (Section 78); whether extradition is barred for the reasons set out in Section 79 or because, in the case of conduct of which a significant part has taken place in the United Kingdom, it would not be in the interests of justice for the requested person to be tried in the requesting territory (Section 83A). In a case in which the requested person has not been convicted, the judge must decide whether there is a prima facie case against the requested person: Section 84(1). The evidential rules which would apply in a summary trial of an information are modified. Section 84(2) permits a judge to treat a statement made by a person in document as admissible evidence of a fact if made to a police officer or other person charged with the duty of investigating offences or charging offenders, provided that direct oral evidence by that person would be admissible. Section 84(3) sets out the factors to which the judge must have regard, such as likely authenticity and relevance and the risk that the admission or exclusion of the statement will result in unfairness to the person whose extradition is sought. Provision is made for the use of live links in Section 206A – C.
Consideration of the power of the judge to admit evidence probative of the case of one party to extradition proceedings which is not disclosed to the other must begin with the statutory scheme, in particular Section 77. In the absence of statutory provision, it is, in my judgment, inconceivable that a Magistrates' Court trying an information could admit evidence probatively at the request of either the prosecution or defence which was not fully disclosed to the other. To do so would cross the line identified by Lord Hope in Al Rawi at paragraph 72.
Mr. Jones QC, supported by counsel for the other three claimants and the 3 rd interested party, submits that the words "as nearly as may be" and specific authority in the extradition context permit that to happen. His fundamental submission is that the interests of justice demand it. Mr. Fitzgerald QC gave an example from a decided case to...
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