Woolwich Equitable Building Society v Commissioners of Inland Revenue

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Keith of Kinkel,Lord Goff of Chieveley,Lord Jauncey of Tullichettle,Lord Browne-Wilkinson,Lord Slynn of Hadley,Lord Templeman,Lord Roskill,Lord Bridge of Harwich
Judgment Date20 Jul 1992
Judgment citation (vLex)[1992] UKHL J0720-1

[1992] EWHC J0720-1

House of Lords

Lord Templeman

Lord Roskill

Lord Bridge of Harwich

Lord Goff of Chieveley

Lord Jauncey of Tullichettle

In re Alves
(Respondent)
Lord Templeman

My Lords,

1

I have had the advantage of reading the speech of my noble and learned friend, Lord Goff of Chieveley. I agree with the reasons given for having allowed the appeal.

Lord Roskill

My Lords,

2

I have had the advantage of reading the speech of my noble and learned friend, Lord Goff of Chieveley. I too agree with the reasons given for having allowed the appeal.

Lord Bridge of Harwich

My Lords,

3

I have had the advantage of reading the speech of my noble and learned friend, Lord Goff of Chieveley. I too agree with the reasons given for having allowed the appeal.

Lord Goff of Chieveley

My Lords,

4

The Director of Public Prosecutions, acting on behalf of the Government of Sweden, appealed to this House against a decision of a Divisional Court (Stuart-Smith L.J. and Popplewell J.) by which the Court granted an application by the respondent, David Thomas Alves, for habeas corpus following upon the committal of the respondent by the Metropolitan Stipendiary Magistrate to custody pending extradition to Sweden at the request of the Swedish Government. The appeal was brought by leave of this House.

5

On 20th July, this House allowed the appeal, stating that the reasons for so doing would be given later. I now set out the reasons for which I agreed that the appeal should be allowed.

6

The matter arose as follows. On 10 April 1985 Stephen John Price pleaded guilty in Sweden to aggravated drug offences relating to the distribution in Sweden of a substantial quantity (believed to be about 140 kilos) of cannabis imported from abroad, and was sentenced to imprisonment for seven years. On 4 September 1989, while serving that sentence, Price, who had previously made a statement to the police, appeared before Senior District Judge Barbro Sjosten sitting in the Goteborg City Court, and was examined by the District Prosecutor. Public Defending Counsel was present, as was an interpreter. The examination of Price took place in the context of proceedings for the remand in absentia of the respondent. Although Price did not give his evidence on oath (because under Swedish law an accomplice cannot be required to give evidence on oath), he was reminded of his duty to speak the truth when questioned in court, and he declared himself to be aware of his duty of truthfulness. The evidence then given, consisting of both the questions of the Prosecutor and Price's answers to those questions, was recorded on tape. A transcript of this evidence in English was available in the present proceedings, running to 21 pages. In his evidence, Price described in detail the dealings in cannabis in which he had been involved. Throughout his evidence, Price implicated the respondent (whom he identified from a photograph) in those dealings as the man who had informed him of the consignment of cannabis in Sweden, and had asked him and a man named Ryan (who had also been sentenced to seven years imprisonment) to deliver it to customers in Sweden. Throughout his dealings with the cannabis in Sweden Price was, as he explained, answerable to the respondent; and he described in detail his conversations with the respondent during which he received instructions from him.

7

In 1989, the Swedish Government commenced proceedings for the extradition of the respondent from this country on charges relating to the importation of cannabis into Sweden, and the distribution of cannabis in Sweden. On 31 January 1990, the Secretary of State issued his order to proceed. In early April 1990 Price was released from prison in Sweden after serving approximately five years of his sentence. On 6 April 1990 he returned to this country, but at Dover he was found to be in possession of cannabis and was arrested. For that offence, he was sentenced to six months imprisonment. On 1 June 1990 the respondent was arrested in London and, following the first hearing of the extradition proceedings at Bow Street Magistrates' Court, he was remanded in custody. On 6 July Price was released from prison in this country. The committal proceedings, following upon the Secretary of State's order to proceed, took place at Bow Street on 16 August 1990. Meanwhile, on 20 July, at the request of the respondent's solicitors, Price had sworn an affidavit repudiating his Swedish evidence in so far as it implicated the respondent. At the hearing before the Magistrate on 16 August, the transcript of Price's evidence before the Court in Sweden was admitted in evidence without objection. Price was then called to give evidence in person on behalf of the respondent, and he again repudiated his evidence before the Swedish Court in so far as it implicated the respondent, on the ground that his evidence had been obtained by pressure exerted upon him by officers of the Swedish and Norwegian police. The Magistrate however decided to commit the respondent.

8

On the respondent's application for habeas corpus, the Divisional Court decided to allow the application. It was common ground that the transcript of Price's evidence before the Swedish Court was admissible in extradition proceedings under paragraph 12 of the First Schedule to the Extradition Act 1989. However, impressed in particular by the fact that Price was an accomplice who had retracted his Swedish evidence before the Magistrate, the Court decided to discharge the order made by the Magistrate.

9

I turn first to the governing statute, which is now the Extradition Act 1989. The Act provides for two procedures for extradition between the United Kingdom and foreign states, the new and the old. The new procedure is set out in Part III of the Act, which is applicable where the new procedure is available as between this country and the relevant foreign state. Where however, as in the present case, there is an Order in Council under section 2 of the Extradition Act 1870 in force in relation to a foreign state, the First Schedule to the Act of 1989 (which derives from the Act of 1870 and certain associated enactments) applies, subject to the terms of the Order in Council which embodies the relevant Treaty. This is, of course, the old procedure, which was the procedure applicable in the present case. For that procedure, we have therefore to turn to the First Schedule.

10

The most relevant paragraph of the First Schedule is paragraph 7(1), which provides as follows:

"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 Schedule) would, according to the law of England and Wales, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England or Wales, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged."

11

The applicable law, if a person is accused of committing a crime in this country, is to be found in section 6(1) of the Magistrates' Courts Act 1980, which provides that:

"… if a magistrates' court inquiring into an offence as examining justices is of opinion, on consideration of the evidence and of any statement of the accused, that there is sufficient evidence to put the accused on trial by jury for any indictable offence, the court shall commit him for trial; and, if it is not of that opinion, it shall … discharge him."

12

In the present case, the foreign warrant was duly authenticated. The evidence produced included a transcript in English of Price's evidence before the City Court of Goteborg; and it was not disputed that this evidence was admissible under paragraph 12 of the First Schedule. That evidence was, prima facie, of itself sufficient to justify the decision of the Magistrate that the respondent should be committed. However, as I have recorded, Price gave evidence before the Magistrate in the course of which he retracted his Swedish evidence in so far as it implicated the respondent. Moreover Price was, on the case for the Swedish Government, an accomplice of the respondent. Even so, the Magistrate decided to commit; and the question arises whether he was, in those circumstances, entitled to do so.

13

Before the Appellate Committee Mr. Nicholls Q.C. submitted, on behalf of the Swedish Government, that in committal proceedings in this country the same test is applicable as in the case of a submission by the defendant of no case to answer at the end of the prosecution evidence at his trial. In this connection he relied in particular on the statement of principle by Lord Lane C.J., delivering the judgment of the Court of Appeal in R. v. Galbraith (1981) 73 Cr. App. R. 124 at p. 127, where he said:

"How then should the judge approach a submission of no case? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury, and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried...

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