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Petitioner: REGINADefendant VS Respondent: HORSEFERRY ROAD MAGISTRATES' COURT, EX PARTE BENNETT
Court Name: House of Lords Judge(s):Lord Bridge Of Harwich, Lord Lowry, Lord Oliver Of Aylmerton, Lord Griffiths,
Lord Slynn Of Hadley Title:REGINADefendant vs HORSEFERRY ROAD MAGISTRATES' COURT, EX PARTE BENNETT Case No.: [(1993)] 3 Weekly Law Reports 90= (1993) 3 All ER138] Date of Judgment:1993-06-24 Reported As: 1994 SCMR 618 Result: Appeal allowed Judgment ORDER ORDER LORD GRIFFITHS.---My Lords, the appellant is a New Zealand citizen who is wanted for criminal offences which it is alleged he committed in connection with the purchase of a helicopter in this country in 1989. The essence of the case against him is that he raised the finance to purchase the helicopter by a series of false pretences and has defaulted on the repayments. ' The English police eventually traced the appellant and the helicopter to South Africa. The police, after consulting with the Crown Prosecution Service, decided not to request the return of the appellant through the extradition process. The affidavit of Detective Sergeant Martin Davies of the Metropolitan Police of New Scotland Yard deposes as follows: "I originally considered seeking the extradition of the applicant from South Africa. I conferred with the Crown Prosecution Service, and it was decided that this course of action should not be pursued. There are no formal extradition provisions in force between the United Kingdom and the Republic of South Africa and any extradition would have to be by way of special extradition arrangements under section 15 of the Extradition Act, 1989. No proceedings for the applicant's extradition were ever initiated." ' It is the appellant's case that, having taken the decision not to employ the extradition process, the English police colluded with the South African police to have the appellant arrested in South Africa and forcibly returned to this country against his will. The appellant deposes that he was arrested by two South African detectives on 28th January, 1991 at Lanseria South Africa, who fixed a civil
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restraint order on the helicopter on behalf of the United Kingdom finance company and told the appellant that he was wanted by Scotland Yard and he was being taken to England. Thereafter, he was held in police custody until he was placed on an aeroplane in Johannesburg ostensibly to be deported to New Zealand via Taipei. At Taipei when he attempted to disembark he was restrained by two men who identified themselves as South African police and said that they had orders to return him to South Africa and then to the United Kingdom and hand him over to Scotland Yard. He was returned to South Africa and held in custody until he was placed, handcuffed to the seat, on a flight from Johannesburg on 21st February arriving at Heathrow on the morning of 22nd February when he was immediately arrested by three police officers including Detective Sergeant Davies. He further deposes that he was placed on this flight in defiance of an order of the Supreme Court of South Africa obtained by a lawyer on his behalf on the afternoon of 21st February. ' The English Police through Sergeant Davies deny that they were in any way involved with the South African police in returning the appellant to this country. They say that they had been informed that there were a number of warrants for the appellant's arrest in existence in Australia and New Zealand and that they requested the South African police to deport the appellant to either Australia or New Zealand and it was only on 20th February that the English police were informed by the South African police that the appellant was to be repatriated to New Zealand by being placed on a flight to Heathrow from whence he would then fly on to New Zealand. Sergeant Davies does, however, depose in a second affidavit as follows: "1. Further to my affidavit sworn in the above-mentioned proceedings on 29th November, 1991, my earliest communications with the South African authorities following the applicant's arrest were with the South African police with a view to his repatriation to New Zealand or deportation to Australia and his subsequent extradition from one of those countries to England. I discussed with the South African police the question as to whether the applicant would be returned via the United Kingdom and I was informed by them that he might be returned via London. I sought advice from the Crown Prosecution Service and from the Special Branch of the Metropolitan Police as to what the position would be if he were so returned. I informed the South African Police by telephone that if the applicant were returned via London he would be arrested on arrival. Subsequently I was informed by the South African Police that the applicant could not be repatriated to New Zealand via Heathrow ... 4. I now recollect that it was on 20th February and not on 21st February as I stated in my previous affidavit, that the South African police informed me on the telephone that the applicant was to be returned to New Zealand via Heathrow, On the same day I consulted the Crown Prosecution Service and it was decided that the English police would arrest the applicant on his arrival at Heathrow." ' It is not for your Lordships to pass judgment on where truth lies at this stage of the proceedings but for the purpose of testing the submission of the respondent that a Court has no jurisdiction to inquire into such matters it must be assumed that the English police took a deliberate decision not to pursue extradition procedures but to persuade the South African police to arrest and forcibly return the appellant to this country, under the pretext of deporting him to New Zealand via Heathrow so that he could be arrested at Heathrow and tried for the offences of dishonesty he is alleged to have committed in 1989. I shall also assume that the Crown Prosecution Service were consulted and approved of the behaviour of the police. ' On 22nd May 1991 the appellant was brought before a stipendiary Magistrate for the purpose of committal proceedings. Counsel for the appellant requested an adjournment to permit him to challenge the jurisdiction of the Magistrates' Court. The application was refused and the appellant was committed for trial to the Southwark Crown Court on five offences of dishonesty. The appellant obtained leave to bring proceedings for judicial review to challenge the decision of the Magistrate. On 22nd July, 1992 the Divisional Court ruled that as a preliminary issue the Court would consider
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whether there was jurisdiction vested in the Divisional Court to inquire into the circumstances by which the appellant had come to be within the jurisdiction of the Courts of England and Wales. ' On 31st July, 1992 the Divisional Court held that even if the evidence showed collusion between the Metropolitan Police and the South African Police in kidnapping the appellant and securing his enforced illegal removal from the Republic of South Africa there was no jurisdiction vested in the Court to inquire into the circumstances by which the appellant came to be within the jurisdiction and accordingly dismissed the application for judicial review. The Divisional Court has certified the following question of law: "Whether in the exercise of its supervisory jurisdiction the Court has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if so what remedy is available if any to prevent his trial where that person has been lawfully arrested within the jurisdiction for a crime committed within the jurisdiction." ' The Divisional Court in this case was faced with conflicting decisions of the Divisional Court in earlier cases. In Reg. v. Bow Street Magistrates, Ex parte Mackeson (1981) 75 Cr.App.R. 24 the facts were as follows. The applicant was a British citizen who had left this country at the end of 1977 and in 1979 was working as a school teacher in Zimbabwe-Rhodesia. In May 1979 he was wanted by the Metropolitan Police for offences of fraud that he was alleged to have committed before he left this country. The Metropolitan Police were aware that no extradition was lawfully possible at that time because the Zimbabwe-Rhodesia Government was in rebellion against the Crown. The Metropolitan Police therefore told the authorities in Zimbabwe-Rhodesia that the applicant was wanted in England in connection with fraud charges with the result that he was arrested and a deportation order made against him. The applicant brought proceedings in Zimbabwe-Rhodesia for the deportation order to be set aside which succeeded at first instance but the decision was set aside on appeal. No attempt was made to use the extradition process to secure the return of the applicant when Zimbabwe-Rhodesia returned to direct rule under the Crown in December 1979. On 17th April, 1980 the applicant was placed upon a plane by the police in Zimbabwe-Rhodesia and arrested on his arrival at Gatwick by the Metropolitan Police on 17th April, 1980. No evidence was offered in respect of the fraud charges but further charges were alleged against him under the Theft Acts. The applicant applied for an order of prohibition to prevent the hearing of committal proceedings against him in the Magistrates' Court on those charges. ' On these facts Lord Lane C.J. Giving the judgment of the Divisional Court held, on the authority of Rex v. Officer Commanding Depot Battalion, RA.S.C., Colchester, Ex parte Elliott (1949) 1 All E.R. 373, that the Court had jurisdiction to try the applicant. He said, at p.32: "Whatever the reason for the applicant being at Gatwick Airport on the tarmac, whether his arrival there had been obtained by fraud or illegal means, he was there. He was subject to arrest by the police force of this country. Consequently the mere fact that his arrival there may have been procured by illegality did not in any way oust the jurisdiction of the Court. That aspect of the matter is simple." ' On the question of whether the Court could or would exercise a discretion in favour of the applicant to order his release from custody Lord Lane C.J. Relied upon a passage in the judgment of Woodhouse, J. In Reg. v. Hartley (1978) 2 N.Z.L.R. 199, a decision of the Court of Appeal of New Zealand. In that case the New Zealand police had obtained the return of a man named Bennett from Australia to New Zealand where he was wanted on a charge of murder, merely by telephoning to the Australian police and asking them to arrest Bennett and put him on an aero plane back to New Zealand, which they had done. Lord Lane, C.J. Cited the following extract from the judgment of Woodhouse, J. (1978) 2 N.Z.L.R. 199, 216-217: "There are explicit statutory directions that surround the extradition procedure. The procedure is widely known. It is frequently used by the police in the performance of their duty. For the protection
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of the public the statute rightly demands the sanction of recognised Court processes before any person who is thought to be a fugitive offender can properly be surrendered from one country to another. And in our opinion there can be no possible question here of the Court turning a blind eye to action of the New Zealand police which has deliberately ignored those imperative requirements of the statute. Some may say that in the present case a New Zealand citizen attempted to avoid a criminal responsibility by leaving the country: that his subsequent conviction has demonstrated the utility of the short cut adopted by the police to have him brought back. But this must never become an area where it will be sufficient to consider that the end has justified the means. The issues raised by this affair are basic to the whole concept of freedom in society. On the basis of reciprocity for similar favours earlier received are police officers here in New Zealand to feel free, or even obliged, at the request of their counterparts overseas to spirit New Zealand or other citizens out of the country on the basis of mere suspicion, conveyed perhaps by telephone, that some crime has been committed elsewhere? In the High Court of Australia Griffith, C.J. Referred to extradition as a 'great prerogative power, supposed to be an incident of sovereignty' and then rejected any suggestion that 'it could be put in motion by any constable who thought he knew the law of a foreign country, and thought it desirable that a person whom he suspected of having offended against that law should be surrendered to that country to be punished:' Brown v. Lizars (1905) 2 C.L.R. 837, 852. The reasons are obvious. ' We have said that if the issue in the present case is to be considered merely in terms of jurisdiction then Bennett, being in New Zealand, could certainly be brought to trial and dealt with by the Courts of this country. But we are equally satisfied that the means which were adopted to make that trial possible are so much at variance with the statute, and so much in conflict with one of the most important principles of the rule of law, that if application had been made at the trial on this ground, after the facts had been established by the evidence on the voir dire, the Judge would probably have been justified in exercising his discretion under section 347(3) or under the inherent jurisdiction to direct that the accused be discharged." ' Lord Lane, C.J. Followed that passage and exercised the Court's discretion to order prohibition against the Magistrates' Court and to discharge the applicant. Ex parte Mackeson, 75 Cr.App.R. 24 was followed by the Divisional Court in Reg. v. Guildford Magistrates' Court, Ex parte Healy (1983) 1 W.L.R. 108. ' In Reg. v. Plymouth Justices, Ex parte Driver (1986) Q.B. 95 a differently constituted Divisional Court after hearing argument containing more elaborate citation of authority declined to follow Ex parte Mackeson and held that the Court had no power to inquire into the circumstance in which a person was found within the jurisdiction for the purpose of refusing to try him. ' The Divisional Court regarded the law as settled by a trilogy of cases. Ex parte Susannah Scott (1829) 9 B. & C. 446, Sinclair v. H.M,, Advocat (1890) 17 R.(J.) 38 and Rex v. Officer Commanding Depot Battalion, R.A.S.C. Colchester, Ex parte Ellion (1949) 1 All E.R. 373. These cases undoubtedl show that at the time they were decided the Judges were not prepared t inquire into the circumstances in which a person came within the jurisdiction In Ex parte Susannah Scott Lord Tenterden, C.J. Granted a warrant for th apprehension of Scott so that she might appear and plead to a bill o indictment charging her with perjury. Ruthven, the police officer to whom th warrant was directed, arrested Scott in Brussels. She applied to the Britis Ambassador for assistance but he refused to interfere and Ruthven brough her to Ostend and then to England. A rule of nisi was obtained for a habe corpus to bring up Scott in order that she might be discharged. In giving judgment Lord Tenterden, C.J. Said, 9 B. & C. 446, 448: "The question, therefore, is this, whether if a person charged with a crime is found in this country, it is the duty of the Court to take care that such a party shall be amenable to justice, or whether we
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are to consider the circumstances under which she was brought here. I thought, and still continue to think, that we cannot inquire into them." ' In Sinclair v. H.M., Advocate (1890) 17 R.(J.) 38 the sheriff substitute of Lankashire granted a warrant to a Glasgow sheriff officer to arrest Sinclair for breach of trust and embezzlement and to receive him into custody from the government of Spain. The accused was brought before the sheriff substitute on this warrant and committed to prison to await his trial. He brought a bill of suspension and liberation in which he alleged that he had been arrested and imprisoned in Portugal by the Portuguese authorities without a warrant; that he had been put by them on board an English ship in the Tagus, and there had been taken into custody by a Glasgow detective officer without the production of a warrant; but during the voyage to London the vessel had been in the port of Vigo, in Spain, for several hours; that the complainer had demanded to be allowed to land there but had been prevented by the officer; that on arriving in London he was not taken before a Magistrate, nor was the warrant endorsed, but he was brought direct to Scotland, and there committed to prison, and no warrant was ever produced or exhibited to him. It was held that these allegations did not set forth any facts to affect the validity of the commitment by the sheriff substitute, which proceeded upon a proper warrant. ' In the course of his judgment the Lord Justice-Clerk said, at pp. 40-42: "There are three stages of procedure in this case---first, there are the proceedings abroad where the complainer was arrested; second, there are the proceedings on the journey to this country; and third, the proceedings here. As regards the proceedings abroad and where the complainer was arrested, they may or may not have been regular, formal, and in accordance with the laws of Portugal and Spain, but we know nothing about them. What we do know is that two friendly powers agreed to give assistance to this country so as to bring to justice a person properly charged by the authorities in this country with a crime. If the Government of Portugal or of Spain has done anything illegal or irregular in arresting and delivering over the complainer his remedy is to proceed against these Governments. That is not a matter for our consideration at all, and we cannot be the judges of the regularity of such proceedings. ' In point of fact the complainer was put on board a British vessel which was at that time in the roads at the mount of the Tagus, and given into the custody of a person who held a warrant to receive him, and who did so receive him. This warrant was perfectly regular, as also his commitment to stand his trial on a charge of embezzlement. If there was any irregularity in the granting or execution of these warrants the person committing such irregularity would be liable in an action of damages if any damage was caused. But that cannot affect the proceedings of a public authority here. The public authority here did nothing wrong. The warrants given to the officer to detain the prisoner were quite formal, and it is not said that he did anything wrong. ' It is said that the Government of Portugal did something wrong, and that the authorities in this country are not to be entitled to obtain any advantage from this alleged wrongdoing. As I have said, we cannot be the judges of the wrongdoing of the Government of Portugal. What we have here is that a person has been delivered to a properly authorised officer of this country, and is now to be tried on a charge of embezzlement in this country. He is therefore properly before the Court of a competent jurisdiction on a proper warrant. I do not think we can go behind this. There has been no improper dealing with the complainer by the authorities in this country, or by their officer, to induce him to put himself in the position of being arrested, as was the case in two of the cases cited. They were civil cases in which the procedure was at the instance of a private party for his own private ends, and the Court very properly held that a person could not take advantage of his own wrongdoing. But that is not the case here.... ' No irregularity, then, involving suspension can be said to have taken place on his arrival in London and on his journey here. But even if the proceedings here were irregular I am of opinion that where
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a Court of competent jurisdiction has a prisoner before it upon a competent complaint they must proceed to try him, no matter what happened before, even although he may have been harshly treated by a foreign government, and irregularly dealt with by a subordinate officer." ' Lord M'Laren stated his view in the following terms, at pp.43-44: "With regard to the competency of the proceedings in Portugal, I think this is a matter with which we really have nothing to do. The extradition of a fugitive is an act of sovereignty on the part of the State who surrenders him. Each country has its own ideas and its own rules in such matters. Generally it is done under treaty arrangements, but if a State refuses to bind itself by treaty, and prefers to deal with each case on its merits, we must be content to receive the fugitive on these conditions, and we have neither title nor interest to inquire as to the regularity of proceedings under which he is apprehended and given over to the official sent out to receive him into custody... ' I am of opinion with your Lordships that, when a fugitive is brought before a Magistrate in Scotland on a proper warrant, the Magistrate has jurisdiction, and is bound to exercise it without any consideration of the means which have been used to bring him from the foreign country into the jurisdiction. ' In a case of substantial infringement of right this Court will always give redress, but the public interest in the punishment of crime is not to be prejudiced by irregularities on the part of inferior officers of the law in relation to the prisoner's apprehension and detention." ' In Rex v. Officer Commanding Depot Battalion, RA.S.C., Colchester, Ex parte Elliott (1949) 1 All E.R. 373 a deserter from the RA.S.C. Was arrested in Belgium by British officers accompanied by two Belgian police officers. He was brought to this country where he was charged with desertion and detained in Colchester barracks. He applied for a writ of habeas corpus which was issued and on the return of the writ he submitted that his arrest was illegal because the British authorities had no power to arrest him in Belgium and his arrest was contrary to Belgian law. Dealing with this submission Lord Goddard, C.J. Said, at p376: "The point with regard to the arrest in Belgium is entirely false. If a person is arrested abroad and he is brought before a Court in this country charged with an offence which that Court has jurisdiction to hear, it is no answer for him to say, he being then in lawful custody in this country: 'I was arrested contrary to the laws of the State of A or the State of B where I was actually arrested.' He is in custody before the Court which has jurisdiction to try him. What is it suggested that the Court can do? The Court cannot dismiss the charge of one without its being heard. He is charged with an offence against English law, the law applicable to the case. If he has been arrested in a foreign country and detained improperly from the time that he was first arrested until the time he lands in this country, he may have remedy against the persons who arrested and detained him, but that does not entitle him to be discharged, though it may influence the Court if they think there was something irregular or improper in the arrest." ' Lord Goddard, C.J. Then reviewed the decisions in Ex parte Susannah Scott, 9 B. & C. 446, and Sinclair v. H.M. Advocate, 17 R.(J.) 38, and after citing the passage in the speech of Lord M'Laren which I have already cited Lord Goddard, C.J. Continued, at pp. 377-378: "That, again, is a perfectly clear and unambiguous statement of the law administered in Scotland. It shows that the law of both countries is exactly the same on this point and that we have no power to go into the question, once a prisoner is in lawful custody in this country, of the circumstances in which he may have been brought here. The circumstances in which the applicant may have been arrested in Belgium are no concern of this Court." ' There were also cited to the Divisional Court a number of authorities from the United States which showed that United States Courts have not regarded the Constitutional right to "due process" as preventing a Court in the United States from trying an accused who has been kidnapped in a
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foreign country and forcibly abducted into the United States: see Ker v. Illinois (1886) 119 U.S. 436 and United States of America v. Sobell (1957) 244 F.2d 520. ' Relying on this line of authority the Divisional Court declined to follow Ex parte Mackeson, 75 Cr.App.R. 24, and held that it had no power to inquire into the circumstances in which the applicant was brought within the jurisdiction. ' In the present case the Divisional Court approved the decision in Ex parte Driver (1986) Q.B. 95 and in giving the leading judgment of the Court Woolf, L.J. Said: "However, quite apart from authority, I am bound to say it seems to me that the approach of Stephen Brown, L.J. (in Reg. v. Plymouth Justices, Ex parte Driver (1986) Q.B. 95), in general, must be correct. The power which the Court is exercising, and the power which the Court was purporting to exercise, in Ex parte Mackeson is one which is based upon the inherent power of the Court to…
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