SERBEH v (CLAIMANT) [2002] EWHC 2356 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
[2002] EWHC 2356 (Admin)Case No CO/2853/2002Venue Royal Courts of Justice, Strand, London WC2
Between
SERBEH(CLAIMANT)GOVERNOR OF HMP BRIXTON(DEFENDANT)
Before
Lord Justice KennedyMr Justice PitchersMR M SUMMERS (instructed by AB Solicitors, Wembley) appeared on behalf of the CLAIMANTMR J HARDY (instructed by Crown Prosecution Service) appeared on behalf of the DEFENDANTDate 31 October 2002
[1]Thursday, 31st October 2002 LORD JUSTICE KENNEDY: This is an application for habeas corpus brought by Samuel Serbeh (allegedly also known as Christopher Yao Fodo and Christopher Boetang) directed to the Governor of Her Majesty's Prison and the Government of the United States.[2]In 1999 a man called Christopher Fodo (also known as Christopher Boetang) was arrested in the United States. He was of Ghanaian origin, born on 14th August 1966, so he was then about 33 years of age. He was photographed, his fingerprints were taken and he received a sentence of imprisonment.[3]In about February 2000, whilst serving his sentence of imprisonment at a prison in Ohio, he told a cell mate, who for his own protection has been given the code-name of W1, that he, that is to say Fodo, was involved in the movement of heroin from Ghana to the United States and that on release he intended to continue in that activity. W1 advised the American Drugs Enforcement Agency.[4]By October 2000 Fodo had told W1 of a telephone number in Ghana at which he could be contacted and Fodo was then released.[5]In May 2001, at the instigation of the Drugs Enforcement Agency, W1 made a telephone call to the number he had been given and spoke to someone he recognised as Fodo. W1 told him he knew of someone who wanted to contact him to purchase heroin. Fodo told W1 to pass on his telephone number to that person. W1 then gave the telephone number to W2, who seems to work with the Drugs Enforcement Agency, and to an undercover Drugs Enforcement Agency official named Cannida, who had the code name of Geno.[6]Therefore between May 2001 and the end of the year there were recorded telephone conversations between W2 and Geno on the one hand and a man in Ghana on the other, who was contacted at the telephone number which W2 had been given. The case for the United States Government is that the man in Ghana was Fodo.[7]The man in Ghana put W2 and Geno in touch with two United States citizens, named Ageyi and Sarpong, who would be the contacts when the heroin was imported.[8]On 5th September 2001 Sarpong supplied Geno with 300 grams of heroin and was given a part payment of US$10,000.[9]In a telephone conversation on 6th September 2001 the man in Ghana told W2 that his associate had delivered 300 grams to Geno on the previous day and been paid US$10,000.[10]On 20th September 2001 Geno made a further payment to Sarpong of US$16,000.[11]On 11th October 2001 a Drugs Enforcement Officer named Hladun allowed W1 to hear three tapes of telephone conversations with the man in Ghana, and according to Hladun W1 identified the voice as that of Fodo. The statement of W1 does not deal with voice identification, but he does say that in October 2001 he picked out from a series of photographs a photograph of Fodo. It had been taken at the time of his arrest in 1999, and that photograph was number 4.[12]On 2nd November 2001 Sarpong applied Geno with a further 700 grams of heroin and was given a part payment of US$8,000. A further US$5,000 was paid on 14th November 2001.[13]In a telephone conversation on 29th November 2001 the man in Ghana agreed to travel to London to collect further payments and arrange further importations. He said that he would travel as SG Serbeh and would arrive on 13th December 2001.[14]On 29th November 2001 an arrest warrant was issued at the Baltimore District Court, Maryland, for Christopher Yao Fodo (also known as Christopher Boetang) in respect of a proposed indictment alleging conspiracy to import heroin and importation of heroin.[15]On 13th December 2001 a provisional arrest warrant was issued by Bow Street Magistrates' Court, and on the same day the applicant, travelling at Samuel Jerry Serbeh, was arrested on an aircraft from Ghana as soon as it landed at Heathrow airport. His passport showed his date of birth as 24th August 1969, and when asked if he was also known as Christopher Fodo he said "yes". He was told by the English arresting officers that a provisional warrant had been issued with a view to his extradition to the United States in respect of drugs matters and, he said, "I've served my sentence out there for this".[16]After arrest he was taken to court where he again gave his name as Samuel Gerry Serbeh and agreed that he was also known as Christopher Fodo. Officer Cannida was present and was able to recognise the voice as that of the man in Ghana with whom he had spoken many times.[17]On 14th January 2002 the appellant's fingerprints were compared with those of Fodo taken in 1999 and were found to be identical.[18]On 21st February 2002 the Secretary of State, having received a requisition from the United States Government for the surrender of Christopher Yao Fodo (also known as Christopher Boetang and Samuel Jerry Serbeh) who is accused of conspiracy to evade the prohibition on the importation of a controlled drug, gave authority to proceed.[19]On 18th April 2002 the District Judge committed the applicant to await the decision of the Secretary of State.[20]Before the District Judge and before us three issues have been raised, but the second and third issues are closely linked.[21]The first issue relates to identity. Mr Summers contends that although there is ample evidence to show that the applicant is the man who was known as Fodo when serving a sentence of imprisonment in Ohio, that is now conceded, there is, Mr Summers contends, insufficient evidence to show that the applicant was the man in Ghana.[22]The second and third issues relate to the non-disclosure at this stage of the tape recordings and transcripts of the telephone conversations between the Drugs Enforcement Agency officers on the one hand and the man in Ghana on the other. Mr Summers contends that there is a duty of disclosure in extradition proceedings, alternatively that to withhold disclosure in this case amounts to an abuse of process, and that accordingly this court should intervene.[23]In relation to the issue of identity, Mr Summers reminded us of two authorities which demonstrate how the rule against the admission of hearsay evidence can operate where information such as a telephone number or a vehicle registration number is passed on orally to a law enforcement officer by a third party.[24]In Jones v Metcalfe [1967] 1 WLR 1286 an independent witness gave to the police officer a registration number of a lorry which was said to have caused an accident, but the witness could no longer remember the number at the time of the trial. The police saw the defendant and he admitted being the driver of the lorry with that registration number, but denied causing any accident. In this court it was held that there was no admissible evidence to show that the lorry which the defendant admitted driving had caused the accident.[25]Similarly, in R v McLean [1968] 52 Crim LR 80 the victim of a robbery gave a vehicle number to a third party who wrote it down. The victim did not check the note and the third party was not allowed to say what he had been told, namely that the number recorded was that of the vehicle involved in the robbery.[26]Fortified by those authorities, Mr Summers submits that there is no admissible evidence to show that the Ghanaian telephone number used by W2 and Geno was the number given to W1 by Fodo and passed on by W1 to the Drugs Enforcement Agency officers. I agree, but in order to prove that the applicant was involved in the conspiracy alleged it is not necessary to show that the Ghanaian telephone number used by W2 and Geno was the one received by W1 from Fodo. One can start the trail with W2 and Geno. They had telephone contact with a man in Ghana who was clearly involved with the importation of heroin into the United States. He put the Drugs Enforcement Agency officers in touch with Ageyi and Sarpong, and on the day after Sarpong delivered the first 300 grams the man in Ghana knew all about it. After the second delivery the man in Ghana agreed to travel to London to collect the balance of the purchase price and to arrange further importations. He said that he would travel as Serbeh and arrive on 13th December 2001, so when the applicant arrived at Heathrow on that date using that name the obvious inference was, and is, that he was the man in Ghana with whom the Drugs Enforcement Agency representatives had been negotiating, and who was deeply involved in the conspiracy. That conclusion received a little further support from the evidence of Geno who said that having heard the applicant speak during the hearing when he was brought before an English court after his arrest "and from listening to the numerous telephone calls I have monitored and recorded during this investigation I recognise that voice as one and the same as the voice of the individual who had identified himself as Christopher Fodo". Voice identification evidence can be given by experts, but a lay comparison of the kind made by Geno is admissible, for what it is worth (see R v Robb [1991] 93 Cr App R 161).[27]After the applicant was arrested it was possible to show by means of photographs and fingerprints that he was the Christopher Fodo who had been in prison in Ohio, about whom W1 had sworn an affidavit. So there is clear admissible evidence that in 2000 the applicant was telling W1 that he intended to continue in the drug importation business, and that he provided W1 with a contact number in Ghana. Even if he were not the man in Ghana, when the 2000 evidence is put alongside the evidence of the applicant appearing at Heathrow as Serbeh on the day on which the man in Ghana indicated that Serbeh would arrive to collect money in relation to two importations of drugs and to arrange further importations, that is clear evidence that the applicant was involved in the conspiracy to import.[28]Accordingly, in my judgment, the District Judge was right to decide as he did in relation to the first issue. Despite the operation of the rule against the admission of hearsay evidence, there is here ample evidence of the applicant's involvement in the conspiracy alleged, and indeed sufficient evidence to show that he was the man in Ghana.[29]During his submissions in reply, Mr Summers invited our attention to three authorities which support the proposition that where it is possible to draw more than one inference from a given set of circumstances, and only one inference is consistent with guilt, then a jury cannot safely draw that inference (see RvO'Brien [1974] 59 Cr App R 222, R v Moore [1992] 20th August unreported, and R v Burley [1995] 16th March unreported). I accept the proposition, but for the reasons I have given I see no reason for its application to the facts of this case.[30]I turn now to the second and third issues, namely discovery and abuse of process. Mr Summers complains that the United States Government has not been prepared at this stage to disclose either the tape recordings of the telephone conversations with the man in Ghana or the transcripts of those tape recordings.[31]In R v Governor of Pentonville Prison ex parte Lee [1993] 1 WLR 1295 the applicant wanted an adjournment to secure documents which, he contended, might affect the reliability of the affirmations on which the Hong Kong Government relied. His application was refused. At page 1298 Ognall J said:
"It is important to remember that the conduct of extradition proceedings is entirely the creature of statute. This has a number of consequences. (1) The requesting state must be the sole arbiter of such material as it chooses to place before the court in support of its application and in purported compliance with the relevant domestic extradition legislation. It alone will decide what material in support of its allegations it places before the Secretary of State and the court under sections 7 and 9 of the Act of 1989. If it furnishes inadequate evidence, then it takes the risk that its request will be refused; in which event, it will be up to the requesting state to determine whether it starts fresh proceedings or not. Neither principles of comity nor the express terms of the Act afford the court in this country any right - still less power - to request further material from the requesting state as a condition precedent to committal."
Later Ognall J referred to Thong Chai Sanguan Dikul v Government of the United States , a decision of the Supreme Court of Hong Kong, which on 21st January 1993 was the subject of an unsuccessful petition to appeal to the Privy Council. At page 1300 of the report in Lee Ognall J said:
"Before the Judicial Committee, Lord Griffiths observed to counsel for the applicant, in the course of argument, that although the duty to disclose unused material was a well-settled part of domestic criminal proceedings, extradition was 'very different indeed'. We respectfully agree. It is of course right to observe that the law of extradition proceeds upon the fundamental assumptions that the requesting state is acting in good faith and that the fugitive will receive a fair trial in the courts of the requesting state. If it were otherwise, one may assume that our government would not bind itself by treaty to such process. But that is not to say that it is the duty of our courts to enquire into the adequacy or otherwise of the procedural safeguards afforded to a defendant before those courts. Our courts have consistently resisted attempts to import the requirements of domestic criminal procedure into extradition proceedings. Provided that there has been a compliance with the terms of the Extradition Act 1989, fairness is not a criterion relevant to the function of the committing court."
[32]Mr Summers points out that in Lee what was sought was material which the Hong Kong Government did not have, and on which it did not intend to rely. Here we are concerned with tapes and transcripts in the possession of the United States Government which, if disclosed, might enable the applicant to raise issues in relation to section 76 or section 78 of the Police and Criminal Evidence Act 1984. There may be points to be taken as to oppression, inducement or tricks, or even possibly issues such as tampering, continuity, accuracy of transcripts, voice analysis and so forth. But, as Mr Summers freely concedes, that is all speculation, and, as Mr Hardy for the respondent Government points out, the applicant did not choose to give evidence before the District Judge, so he has not raised any issue of that kind.[33]I do not believe that Lee 's case can be distinguished on the basis that it was unused evidence that was sought. The important point made by Ognall J at page 1298 was that it is for the requesting state to decide what material to place before the court, and the nature of extradition proceedings is such that the court has no power to order discovery. There can be voluntary discovery, as there was in Re Proulx [2001] 1 All ER 57, but there can be no compulsion.[34]As Mr Summers points out, Proulx was decided by this court prior to the implementation of the Human Rights Act 1998 which made Article 5 of the European Convention on Human Rights (the right to liberty) part of English law and by section 6 of the Act required courts as public authorities to act compatibly with convention rights. Since the Act was implemented there have been four decisions of this court to which our attention has been invited. I turn to them in chronological order.[35]In Kashamu (No 1) , 6th October 2000 unreported, the applicant was alleged to be concerned in a conspiracy to import heroin and his extradition was sought by the United States Government, which failed to put certain exculpatory material before the court. The Government admitted that it should have been disclosed. As Pill LJ said at page 26 of his judgment, by reason of the disclosure of part only of the crucial evidence the proceedings before the magistrates were unfair. In this court Article 5 was relied upon, and Pill LJ said at paragraphs 38 and 39 of his judgment:
"38. The Government have fulsomely acknowledged the obligation which was upon them in this case by way of disclosure and the fault which occurred. I do not consider it to be an appropriate case in which to consider generally the duty of disclosure in extradition proceedings, the concessions having been made. 39. It does, however, appear to me that the statement of Ognall J in [ ex parte Lee ] at 1300C, that under the Extradition Act, 1989, 'fairness is not a criterion relevant to the function of the committing court' cannot stand in the light of the Human Rights Act and Articles 5 and 6 of the Convention. I do not doubt the correctness of the actual decision in Lee ."
[36]In Lodlu , 13th March 2001 unreported, an attempt was made to build on Kashamu (No 1) . It was said that there had been material non-disclosure which raised doubts about the bona fides of the requesting state and left open the possibility that other unused material existed which would be helpful to the defence, foreshadowing, perhaps, the argument advanced to us. In response to that argument, Brooke LJ referred to the earlier passage in Lee which I have cited and to the decision of the European Commission in Kirkwood v United Kingdom 6 EHRR 373, which held that Article 6 does not apply to extradition proceedings because such proceedings do not themselves form part of the determination of the applicant's guilt or innocence. That will be "the subject matter of separate proceedings in the United States which may be expected to conform to standards of fairness equivalent to the requirements of article 6". Brooke LJ went on to say in paragraphs 114 and 115 of his judgment that "the attention of the committing court, as Ognall J suggested, is focused on the contents of the committal bundle", and that the principles set out by Ognall J ex parte Lee are still good law.[37]After Kashamu was released he was immediately re-arrested, and in the second committal proceedings the District Judge refused to hear a submission that the proceedings were an abuse of process on the basis that the abuse jurisdiction was that of the High Court. In Kashamu No 2 [2002] 2 WLR 907 Rose LJ said at page 917, paragraphs 32 to 34:
"What is in issue in the present case is whether, when lawful extradition proceedings are being used, a resultant detention may be unlawful by virtue of abuse of the court's process. The magistrates' court rather than the High Court, is, in my judgment, the appropriate tribunal for hearing evidence and submissions, finding facts relevant to abuse and doing so speedily. Furthermore, as it seems to me, the district judge's obligation under section 6(1) of the Human Rights Act 1998 to act compatibly with Convention rights requires him to make a determination under article 5(4). It seems to me that that determination should be in compliance with Lord Hope's analysis in R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19 , that is he must consider whether the detention is lawful by English domestic law, complies with the general requirements of the Convention and is not open to criticism for arbitrariness. 33. It does not, however, follow that the district judge can be addressed on all the issues which may arise in the course of a summary trial. Extradition proceedings do not, nor does fairness require that they should, involve resolution of trial issues. Self-evidently, extradition contemplates trial in another jurisdiction according to the law there. It is there questions of admissibility, adequacy of evidence and fairness of the trial itself will be addressed; and, if the Secretary of State has concerns in relation to these or other matters, it is open to him to refuse to order a fugitive's return. 34. What is pertinent here in the present case is solely whether the detention is unlawful by English domestic law and/or arbitrary, because of bad faith or deliberate abuse of the English courts' procedure. The scope of the inquiry is, therefore, narrow. In that connection, it by no means follows, merely because second proceedings have been instituted against Kashamu, following failure of the first proceedings in the circumstances earlier out, that there has been an abuse. I add that it will only be in a very rare extradition case, provided the statutory procedures have been followed, that it will be possible to argue that abuse of process has rendered the detention unlawful under article 5(4)."
Pitchford J gave a judgment to the same effect.[38]Finally, in Castillo , 13th June 2002, Gibbs J, sitting with Rose LJ, adopted what had been said in both Kashamu cases. It was submitted that matters of fairness and indeed abuse of process can properly be taken into account by this court in deciding the lawfulness of detention under the 1989 Act, and at paragraph 27 Gibbs J said:
"This court is now bound to take these matters into account, whatever may have been the position before the Human Rights Act 1998 came into force."
[39]All of that I accept, but I can find nothing in the authorities to support Mr Summers' proposition that even where, as here, there is not even a suspicion of bad faith the requesting country must now, as a result of the implementation of the Human Rights Act, make full disclosure of its prosecution case, and of any relevant unused material or be at risk of having the proceedings struck out as an abuse of process.[40]In my judgment, as was made clear by Ognall J in Lee and by the European Commission in Kirkwood , extradition proceedings are not to be equated with criminal proceedings before domestic courts. In extradition proceedings it is still for the requesting state to decide what material it chooses to place before the court in support of its application. There is still a fundamental assumption that the requesting state is acting in good faith. If there is reason in the particular case to call that assumption into question, then the reason can be examined, and if appropriate acted upon, but there was and is no such reason in this case, and accordingly, in my judgment the complaints of non-disclosure and abuse of process are misconceived.[41]I would therefore dismiss this application and order legal aid taxation of the applicant's costs. MR JUSTICE PITCHERS: I agree. MR SUMMERS: My Lord, may I raise two other matters. The first is this, may I have 14 days to consider whether or not leave to appeal is to be sought? LORD JUSTICE KENNEDY: Yes. MR SUMMERS: Secondly, may I request that this court orders an expedited transcript in order that I can give full consideration to that application. LORD JUSTICE KENNEDY: I am told that it will be available on Monday. MR SUMMERS: My Lord, I am grateful.

Cited in 4 later judgments