Wellington v HM Prison Belmarsh & Anor [2004] EWHC 418 (Admin)

[2004] EWHC 418 (Admin)IN THE HIGH COURT OF JUSTICE CO/2883/2002ADMINISTRATIVE COURTDIVISIONAL COURTVenue Royal Courts of JusticeThe StrandLondonDate Monday 23 February 2004B e f o r e:THE LORD CHIEF JUSTICE OF ENGLAND AND WALES(The Lord Woolf of Barnes)andMR JUSTICE MITTING
IN THE MATTER OF AN APPLICATION FOR A WRITOF HABEAS CORPUS AD SUBJICIENDUMANDIN THE MATTER OF THE EXTRADITION ACT 1989RALSTON WELLINGTONApplicant- v -THE GOVERNOR OF HER MAJESTY'S PRISON BELMARSHandTHE GOVERNMENT OF THE UNITED STATES OF AMERICARespondents
Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone No: 020-7421 4040(Official Shorthand Writers to the Court)
MR GARETH PATTERSON (instructed by Messrs Russell-Cooke Potter &Chapman, London SW15 6AB appeared on behalf of THE APPLICANTMISS ADINA EZEKIEL (instructed by Crown Prosecution Service, CentralCasework, London EC4M 7EX) appeared on behalf of THE RESPONDENT
J U D G M E N TMonday 23 June 2003THE LORD CHIEF JUSTICE: I will ask Mr Justice Mitting to give the first judgment.
Between
WellingtonClaimantHM Prison Belmarsh & AnorDefendant
[1]On 13 February 1997 at an address in Kansas City, Jackson County, Missouri, three people were shot several times by a number of armed intruders. Two of the victims, Lakesha La Master and John Bonner, died as a result of their injuries. The third victim, JoVonn LaMaster, survived the incident. The Government of the United States of America alleges that the applicant was one of the armed intruders and therefore seeks his extradition.[2]The applicant is a 30 year old Jamaican national, born on 11 May 1973. He has been accused of two offences of murder, one of attempted murder, wounding with intent, aggravated burglary and possession of a firearm with intent to endanger life.[3]The main prosecution evidence relied upon by the Government of the United States is that provided in the transcripts of two video interviews given by Alonda Daniels on 15 and 17 February 1997 to Detective Carney. She has adopted the transcripts and states that she had read them thoroughly and that their content is true and accurate. The applicant's solicitors pointed to inaccuracies and contradictions in Alonda Daniels' account and queried whether her evidence is sufficient to found an extradition claim. They also pointed out that no evidence had been served which suggested that there were any eye-witnesses such as the surviving victim, who have identified the applicant.[4]According to Miss Daniels' account the applicant had been staying at her home for two weeks whilst she stayed elsewhere. She gave him keys to her property, despite knowing or suspecting that he was a drug dealer. On 13 February she was paged by him whilst shopping. She contacted him by telephone and went to meet him. When they met he was angry. He complained that $50,000 or $70,000 had been stolen from the house he had been staying in by the person he referred to as Miss Daniels' “brother” (in fact the son of her father's girlfriend). She told the applicant where her brother could be found.[5]In order to recover the stolen money the applicant and a number of other men, she said, armed themselves with guns. In her second interview she named four men, despite the fact that she had said in the first interview that she could only name the applicant. The evidence of the surviving victim of the attack suggests that there may only have been three men. The applicant then demanded that Miss Daniels drive them to 3836 Montgall, where he believed her brother would be. Having dropped her children off at an apartment, she drove them to the property. The defence contended that that action was motivated by a desire that the children should be out of the way so as not to prevent the offences from being committed.[6]Once at the property Miss Daniels sat in the car with one of the applicant's group who was armed with a gun. She heard gunshots coming from inside the address. The applicant and the others returned to the car and demanded that she drive them away from the scene. Whilst driving to a hotel the applicant allegedly said several times that he had shot a man in the face four or five times and had shot a girl in the head. The victims were male and female respectively, but the pathologist's evidence suggested that they had received gunshot wounds to their lower torsos and legs rather than their heads.[7]Once at the hotel Miss Daniels gave a false identity and lied to hotel staff about the car that she had been using. She stated that she was driving a different one from that which had actually been driving. After they had been shown to a hotel room the applicant told her to leave, which she did. She was, it seems, arrested herself because she had been the driver of the car which had taken the applicant and others to the scene of the crime. She was arrested on 14 February and gave the interviews referred to on 15 and 17 February. She identified the applicant from amongst six photographs on 14 February.[8]On 16 December 1997 a criminal complaint was filed before the County Circuit Court charging the applicant with the offences for which extradition is sought. On the same day a warrant for the arrest of the applicant was issued by the Circuit Court of Jackson County. The applicant was arrested at Streatham Police Station by Detective Constable Munro on a provisional warrant on 29 January 2003. On 30 January he appeared before Bow Streets Magistrates' Court and was remanded in custody.[9]The applicant made a request for information from the United States Government on 22 July 2003. The requests were for statements of witnesses identified in a document in the extradition papers and in particular statements from Brandon Winston and Vallgene Friday who, it was said, had told the police that the applicant was not involved in the shootings. They asked for details of the procedures by which the applicant was identified, and in particular referred to the alleged absence of identification of him by JoVonn LaMaster, the eye-witness in the house where the shooting occurred. They also asked for the evidence against Miss Daniels which led to her arrest and for details of any police record relating to her. They asked for details of the circumstances in which her arrest came to an end and for details of all other accounts given by her, relying on indications in the video-recorded statements that she had had some dealings with the police on 14 February 1997 when she picked out and signed the photograph to which I have referred. They sought copies of the videos of the interviews and requested an answer to the question why three others named by Miss Daniels had not been charged. They asked for details of the injuries to JoVonn LaMaster.[10]In summary the United States Government's responses to the request were, first of all, that there was no duty to disclose evidence in response to the request. In an e-mail of 25 September 2003, Jason Carter of the United States Department of Justice, Criminal Division, Office of International Affairs, said:
“With regard to disclosure of information in connection with a prosecution, the defence's assertion that it is entitled to discovery when the defendant has voluntarily absented himself from this jurisdiction is absurd. If he is present here and going to trial, then he is entitled to certain documents. However, he cannot have his cake and eat it too by being absent and then seeking to use to his benefit the law that he is avoiding. As a fugitive, he is disentitled from doing so.”
[11]In fact the local Jackson County prosecuting attorney provided some limited information in response to the request to which I have referred, and, most important in the course of the extradition proceedings Miss Ezekiel asserted that the United States Government accept that any prior statements made by Miss Daniels which were “so extreme as to make her evidence worthless” should be disclosed. There is no indication of the existence of any such statement in any of the material put before us.[12]The extradition committal proceedings occurred on 15 October 2003. It is accepted that all formalities were properly complied with.[13]Submissions were made on behalf of the applicant that the Government had a duty to disclose specific information and material arising out of the investigation into the allegations against the applicant similar to the duty which is imposed upon a prosecuting authority in this country in respect of criminal proceedings here and submitted that in the absence of such disclosure the proceedings should be adjourned to enable the applicant's solicitors to attempt to obtain the information themselves. It was also submitted that the evidence of Miss Daniels should be excluded under section 78 of the Police and Criminal Evidence Act 1984, and that the evidence did not warrant or justify committal.[14]In his brief ruling District Judge Pratt rejected the application for an adjournment. He noted that there had been indications of bad faith on the part of the US Government, but could find no trace of such bad faith in the documents to which he was referred. He concluded that he had no power to order disclosure of the specific items requested by the applicant's solicitors and that an adjournment would achieve nothing save delay.[15]The law which he was required to apply, and to which I now turn, is that which applied to extradition proceedings before 1 January 2004, when the Extradition Act 2003 came into force. A number of uncontroversial points can be made:(1) There are two procedures for extradition between the United Kingdom and foreign states. First, where there is an Order in Council made under section 2 of the Extradition Act 1870, the procedure is laid down in Schedule 1 of the Extradition Act 1989.(2) Where the Order in Council has been made under section 4 of the Extradition Act 1989, the procedure is laid down in Part III. The newer procedure permits extradition without consideration of evidence showing that the person accused of the crime has committed it -- for example, under the European Convention on Extradition Order 1990, Article 3. This case is concerned with the older procedure. Schedule 1, as far as is relevant, provides in paragraph 5 for the arrest or provisional arrest of a person in respect of whom extradition proceedings are to be undertaken. Paragraph 6(1) provides:
“When a fugitive criminal is brought before the metropolitan magistrate, the metropolitan magistrate shall have the same powers, as near as may be, including power to adjourn the case and meanwhile to remand the prisoner either in custody or on bail, as if the proceedings were the summary trial of an information against him for an offence committed in England and Wales.”
Paragraph 7(1) provides:
“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 .... would, according to the law of England and Wales, make a case requiring an answer by the prisoner if the proceedings were for the trial in England and Wales of an information for the crime, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged.”
Paragraph 8 makes provision for an application for habeas corpus and the detention of the fugitive. (3) Paragraphs 6(1) and 7(1) were amended by section 158(1) and (8) of the Criminal Justice and Public Order Act 1994, with effect from 1 April 1997. Prior to the amendment, paragraph 6(1) provided that the metropolitan magistrate should have the same jurisdiction and powers “as if the prisoner were brought before him charged with an indictable offence”. Paragraph 7(1) provided that the metropolitan magistrate shall commit if “such evidence is produced as .... would .... justify the committal for trial of the prisoner”. The purpose of the amendments was to cater for the prospective abolition of committal proceedings enacted in the 1994 Act but not brought into force: see R v Governor Brixton Prison, Ex parte Gross [1999] QB 538 at 545B-G and 545A-C. In relation to paragraph 7(1) it was expressly provided that the evidential test under the old and the new provision was the same: see section 35(3) of the 1989 Act (as amended) which provides:
“For the purposes of the application of this Act by virtue of any Order in Council in force under it or section 2 of the Extradition Act 1870, any reference in this Act to evidence making a case requiring an answer by an accused person shall be taken to indicate a determination of the same question as is indicated by a reference (however expressed) in any such Order (or arrangements embodied or recited in it) to evidence warranting or justifying the committal for trial of an accused person.”
The Divisional Court in Ex parte Gross held that no change was thereby effected in the right of a prisoner to adduce evidence in extradition proceedings on his own behalf. I am likewise satisfied that Parliament intended no other substantive change in the magistrate's powers by the change in the wording of paragraphs 6(1) and 7(1). (4) Extradition proceedings are criminal proceedings: see R v Governor of Brixton Prison, ex parte Levin [1997] AC 714, per Lord Hoffmann at 746F. (5) Prior to the enactment of the Human Rights Act 1998 it was settled law that: (i)A magistrates' court had no power to stay extradition proceedings as an abuse of process. (ii)The High Court's power to issue a writ of habeas corpus on the ground of, or similar to, abuse of process was limited to those circumstances specified in sections 6 and 11(3) of the 1989 Act: see In re Schmidt [1995] 1 AC 339. (iii)”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”: see R v Governor of Pentonville Prison, Ex parte Lee [1993 1 WLR 1294, per Ognall J at 1298F-G. (6) The first and second of those propositions have not withstood the impact of the Human Rights Act 1998, section 6(1) and Articles 5(1)(f) and (4) of the Convention, at least at the level of the Administrative Court. In R(Kashamu) v Governor of Brixton Prison (No 2) [2002] QB 887 (see paragraphs 27-31), when the question arises, both the magistrates' court and the High Court have the power and duty to enquire into an abuse of their processes in extradition proceedings. The scope of the enquiry is, however, narrow. At page 900D-G Rose LJ said:
“32. .... 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 accordance with Lords Hope's analysis in R v Governor of Brockhill Prison, Ex parte 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 that 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 cases 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.”
Pitchford J, in a concurring judgment at page 901 said:
“36. .... I cannot envisage that the district judge could now, consistent with his obligations under section 6 of the Human Rights Act 1998, decline to consider the question of arbitrariness. 37. Those views do not, however, involve a finding that the district judge can be addressed upon all those issues of abuse which are capable of arising in the course of the trial of an information.... 38. .... I do not, for these reasons, accept Mr Fitzgerald's central proposition that there is a duty upon the district judge to consider at the committal stage all and any questions of abuse because a finding of abuse concerning a trial in England would render the detention unlawful.” (7) The third proposition requires to be considered in the light of section 6(1) of the Human Rights Act 1998 and Articles 5(1)(f) and (4) of the Convention which state: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law. .... (f)the lawful arrest or detention of a person .... against whom action is being taken with a view to deportation or extradition. .... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The European Human Rights Commission ruled inadmissible the invocation of Article 6 in extradition cases. In Kirkwood v United Kingdom 6 EHRR 373, 386 it is said:
“The Commission recalls its decision on the admissibility of App No 10227/82 v SPAIN, where it considered whether extradition proceedings involved the 'determination' of a criminal charge. It recognised that the word 'determination' involve the full process of the examination of an individual's guilt or innocence of an offence. Since the proceedings in Spain did not involve an examination of the question of the applicant's guilt, but merely whether formal extradition requirements had been fulfilled, that application was declared inadmissible. The present case also concerns extradition, but the Commission notes that the task of the Magistrates' Court included the assessment of whether or not there was, on the basis of the evidence, the outline of a case to answer against the applicant. This necessarily involved a certain, limited, examination of the issues which would be decisive in the applicant's ultimate trial. Nevertheless, the Commission concludes that these proceedings did not in themselves form part of the determination of the applicant's guilt or innocence, which will be the subject of separate proceedings in the United States which may be expected to conform to standards of fairness equivalent to the requirements of Article 6, including the presumption of innocence, notwithstanding the committal proceedings. In these circumstances the Commission concludes that the committal proceedings did not form part of or constitute the determination of a criminal charge within the meaning of Article 6 of the Convention.”
Applying that reasoning, the Administrative Court has held on two occasions that the principles set out by Ognall J in Ex parte Lee remained good law: see R(Lodhi) v Governor of HMP Brixton [2001] EWHC Admin 178 (13 March 2001), paragraphs 114 and 115; and R(Serbeh) v Governor of HMP Brixton [2002] EWHC Admin 2396 (31 October 2002), in which it was contended that a duty of disclosure existed in extradition proceedings and that to withhold disclosure amounted to an abuse of process. Kennedy LJ stated:
“39. .... 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 faith 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.”
[16]I now turn to matters which are controversial. The application of section 78 of the Police and Criminal Evidence Act 1984 to extradition proceedings seems to me to be moot. Lord Hoffmann said in Ex parte Levin at page 747G-748F:
“In Ex parte Francis, as I have said, McCowan LJ said that section 78 of the Act of 1984 had no application to extradition proceedings. I think that this goes too far. If, as I think, extradition proceedings are criminal proceedings, then section 78 as originally enacted applied to them. In Reg v King's Lynn Justices, Ex parte Holland [1993] 1 WLR 324, the Divisional Court said that section 78 applied to committal proceedings and I think it must follow that it also applied to extradition proceedings. (I note parenthetically that, since the committal in this case, committal proceedings have been excluded from the application of section 78 by paragraph 26 of Schedule 1 to the Criminal Procedure and Investigations Act 1996 and it seems likely that the effect of section 9(2) and paragraph 6(1) of Schedule 1 to the Act of 1989 is to exclude extradition proceedings as well.) On the other hand, it must be borne in mind that when the section is being applied to committal or extradition proceedings, the question is whether the admission of the evidence would have such an adverse effect on the fairness of those proceedings that the court ought not to admit it. This is not at all the same thing as the question of whether the admission of the evidence at the trial would have an adverse effect on the fairness of the trial. On the contrary, the magistrates should ordinarily assume that the powers available to the judge at the trial will ensure that the proceedings are fair. The question is, therefore, whether the admission of the evidence would have an adverse effect on the fairness of the decision to commit or extradite the accused for trial, even if the trial is a fair one. I think that the circumstances would have to be very unusual before magistrates could properly come to such a decision ....”

After a citation from Ex parte Holland Lord Hoffmann continued:

“In extradition proceedings there is even less scope for the exercise of the discretion because, as McCowan LJ pointed out in Ex parte Francis .... extradition procedure is founded on concepts of comity and reciprocity. It would undermine the effectiveness of international treaty obligations if the courts were to superimpose discretions based on local notions of fairness upon the ordinary rules of admissibility. I do not wish to exclude the possibility that the discretion may be used in extradition proceedings founded upon evidence which, though technically admissible, has been obtained in a way which outrages civilised values. But such cases are also likely to be very rare.”
Lord Hoffmann's interpolation was a reference to section 78(3) of the Police and Criminal Evidence Act 1984 which, since 1 April 1997, has provided:
“This section shall not apply in the case of proceedings before a magistrates' court inquiring into an offence as examining justices.”
It is not clear from the passage which I have cited whether Lord Hoffmann had in mind the amendments to paragraphs 6(1) and 7(1) introduced on the same date, or only the old wording. After a citation from Ex parte Holland Lord Hoffmann continued:[17]In R(Saifi) v Governor of Brixton Prison [2001] 1 WLR 1134, it was assumed, without argument, that section 78 applied. We have not received full, or indeed any, detailed argument on the application of section 78. It was conceded on behalf of the United States Government in the court below that it did apply. Miss Ezekiel for the Government has not sought to resile from that concession before this court. Subject to that highly significant caveat, I venture to express the view that section 78 does not in fact apply to the amended paragraphs 6(1) and 7(1), and additionally does not do so on the facts of this case for the following reasons:(1) Section 78(3) applies to determination by the magistrates' court of the sufficiency of evidence for the purpose of committal for trial. Fairness of its use at trial is a matter for the trial court.(2) The determination of the question whether evidence is sufficient to warrant or justify committal for trial is the task which the committing magistrate (now district judge) has in extradition proceedings: see section 35(3) of the 1989 Act.(3) The fairness of the use of evidence at trial is a question for the trial court, not for the committing magistrate: see Kashamu (No 2) page 900D-G.(4) Therefore, in my view, section 78(3) excludes the application of section 78(1) in extradition proceedings.(5) Further, the requesting state is not necessarily “the prosecution” in the sense in which those words are used in section 78(1): “The court may refuse to allow evidence on which the prosecution proposes to rely”.(6) In this case the Federal Government of the United States is not the prosecution. The crimes in respect of which extradition is sought are state not federal crimes and the prosecuting authority is the Prosecuting Attorney of Jackson County, Missouri.(7) Even if section 78 does apply, its effect is limited to the circumstances identified by Lord Hoffmann in Ex parte Levin. There is, and can be, no suggestion that the evidence of Miss Daniels has been obtained in a way which outrages civilised values. For any or all of those reasons, in my view, section 78 either does not apply or does not assist the applicant.[18]Article 5(1)(f) and (4) of the Convention requires, but requires no more, than that, first, the arrest and detention of the person must be lawful; secondly, that the person detained must be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Those rights were explained by Lord Hope in R v Governor of Brockhill Prison, Ex parte Evans [2001] 2 AC 19, 38B-E where he said:
“The jurisprudence of the European Court of Human Rights indicates that there are various aspects to article 5(1) which must be satisfied in order to show that the detention is lawful for the purposes of that article. The first question is whether the detention is lawful under domestic law. Any detention which is unlawful in domestic law will automatically be unlawful under article 5(1). It will thus give rise to an enforceable right to compensation under article 5(5), the provisions of which are not discretionary but mandatory. The second question is whether, assuming that the detention is lawful under domestic law, it nevertheless complies with the general requirements of the Convention. These are based upon the principle that any restriction on human rights and fundamental freedoms must be prescribed by law: see articles 8 to 11 of the Convention. They include the requirements that the domestic law must be sufficiently accessible to the individual and that it must be sufficiently precise to enable the individual to foresee the consequences of the restriction: Sunday Times v United Kingdom (1979) 2 EHRR 245 and Zamir v United Kingdom (1983) 40 D&R 42, paras 90-91. The third questions is whether, again assuming that the detention is lawful under domestic law, it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate: Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 58 and Tsirlis and Kouloumpas v Greece (1997) 25 EHRR 198, para 56.”
[19]In this case the arrest and detention of the applicant were lawful under domestic law by virtue of paragraphs 5, 6 and 7 of Schedule 1 to the 1989 Act. The circumstances in which he could be arrested and detained were prescribed by an accessible and precise law. His detention was not arbitrary, let alone disproportionate. Further, domestic law provides an opportunity for the speedy determination of the lawfulness of his detention, including adequate safeguards against abuse by the authorities of extradition procedures: see Kashamu (No 2). On the facts, there is no suggestion of abuse.[20]Nothing in the Strasbourg jurisprudence requires the person accused of an extradition crime to have the opportunity to cross-examine witnesses against him in extradition hearings or to require the requesting state to furnish material against which the evidence on which it does rely can be tested. In Sanchez-Reisse v Switzerland 9 EHRR 71, a violation of Article 5(4) was found in the case of a person detained pending domestic criminal proceedings (following on a failed application for extradition by a foreign state) without having the opportunity to comment on the submissions that were made by the Federal Court by the Federal Police Office opposing his release. In paragraph 51 of its decision the Court said:
“In the Court's opinion, Article 5(4) required in the present case that Mr Sanchez-Reisse be provided, in some way or another, with the benefit of an adversarial procedure. Giving him the possibility of submitting written comments on the Office's opinion would have constituted and appropriate means ....”
[21]In Migon v Poland (24244/94, 25 September 2002), a like violation was found in the case of a person detained for one year without effective access to the case file which contained the material upon which the court determined his continued detention. The Court held in paragraph 86 of its decision:
“The Court considers that the documents available to the applicant .... did not provide an adequate basis on which to address the arguments relied on both by the prosecution and by the courts in support of the decisions to prolong his detention, and secure thereby any effective defence in the detention proceedings, in particular in the light of the progress of the investigations, in which new evidence was gradually coming to light. 87. Accordingly, there has been a violation of Article 5(4)....”
[22]Neither case supports the proposition that the applicant is entitled not only to the material on which he has been detained and upon which his extradition is sought, but to other material on which the requesting state does not rely. Accordingly, and subject to Kashamu (No 1), nothing in the domestic or Strasbourg jurisprudence supports the contention that in the absence of bad faith the requesting state can be required to produce material or evidence in addition to that on which it relies in the proceedings.[23]I have not overlooked R v Governor of HM Prison Brixton, Ex parte Kashamu (No 1) (6 October 2000). In that case, by error, the United States of America failed to supply evidence of identification of a man in a photo identification folder who was not the suspect, by the witness on whose evidence it was principally relying. That evidence, arguably, undermined other identification evidence given by the same witness. In paragraph 24 of his judgment, Pill LJ noted:
“[Counsel for the United States Government] accepted and asserted that the effect of the failure to supply the information to the magistrate had been to vitiate the committal and to render the committal order void.”
The court quashed the committal. Pill LJ observed that Ognall J's observations in Ex parte Lee that “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. His observation on Article 6 must, as has been observed in other divisions of this court, be viewed with caution in the light of Kirkwood v United Kingdom 6 EHRR 373 and, I would add, the observations of Lord Hutton in R(Al-Fawwaz) v Governor of Brixton Prison [2002] 1 AC 556, 590, paragraph 88.[24]I accept that the applicant was entitled to have committal proceedings determined fairly but, for reasons already given, not so as to require the requesting state to provide additional material for evidence beyond that on which it relied. Further, in his judgment in Kashamu (No 1) Pill LJ was careful in paragraph to state:
“.... 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.”
Kashamu (No 1) is not, therefore, in my view authority for any wider proposition than that on the facts and on the concession made, and in that case, fairness required that the committal be quashed.[25]Accordingly, I agree with, and respectfully adopt, the observations of Kennedy LJ in Serbeh v Governor of Brixton Prison, to which I have already referred, at paragraphs 39 and 40, and, with one proviso, believe that Ognall J's statement at page 1298F-G remains good law. The proviso is that the Order in Council may empower the United Kingdom, although not the magistrates' court, to request that the requesting state provides further evidence to the committal court. The Order in Council in this case does. Article IX(2) provides:
“If the requested Party requires additional evidence or information to enable a decision to be taken on the request for extradition, such evidence or information shall be submitted within such time as that Party shall require.”
In the event that there was evidence that the process of the court was being abused, the court would have been entitled, in my view, to ask the United Kingdom authorities to request the United States Government that it provide further evidence relevant to that question under that Article of the Order in Council.[26]From that review of the law I draw six propositions as stating the law as applicable to this application as determined by District Judge Pratt:(1) It is for the requesting state alone to determine the evidence upon which it relies to seek a committal.(2) The requesting state is not under any general duty of disclosure similar to that imposed on the prosecution at any stage in domestic criminal proceedings.(3) The magistrates' court has the right to protect its process from abuse and the requesting state has a duty not to abuse that process. That is no different from saying that the requesting state must fulfil the duty which it has always had of candour in making applications for extradition.(4) In fulfilment of that duty, the requesting state must disclose any evidence which would render worthless the evidence on which it relies to seek committal.(5) It is for the person subject to the extradition process to establish that the requesting state is abusing the process of the court.(6) The requested state may be given power to request further evidence under the relevant Order in Council but, in the absence of evidence of abuse, the court is entitled to, and should generally, refuse to request the UK authorities to exercise that power or to adjourn to permit it to be exercised.[27]Applying those principles to the facts of this case, there is no evidence (or now, even any suggestion) that the court's process was or is being abused. There is no material to suggest that the United States was in possession of evidence that rendered the evidence on which it relied worthless. The defence request was for material and evidence of a kind which might be used at trial to undermine or cast doubt upon the evidence of Miss Daniels. Consideration of those matters is for the trial court and not for the committing court. Given the complete absence of any material upon which it could plausibly be suggested, let alone demonstrated, that the United States was in breach of its obligation of candour, or was acting in abuse of the process of the magistrates' court, the district judge was right to rule as he did and to refuse to adjourn the proceedings, but, as he did, to go on to hear them. It is not disputed that on the evidence that he had in front of him there was sufficient material to warrant or justify the committal of the applicant.[28]For those reasons I would dismiss the application for the issue a writ of habeas corpus.

THE LORD CHIEF JUSTICE: I agree with the judgment which has been given, with one qualification. I remain to be persuaded that Article IX(2) is intended to give to the judge hearing the extradition proceedings a discretion to require the appropriate authorities to obtain information from the requesting party. If such a power does exist, certainly it should only be exercised in the most exceptional cases. The district judge hearing extradition proceedings should determine them in the ordinary way on the material placed before him and come to the appropriate conclusion on that evidence.

[30]MR PATTERSON: My Lord, I have an application for permission to appeal.

THE LORD CHIEF JUSTICE: Yes.

[32]MR PATTERSON: As your Lordship knows, there is a need in such cases for the certification of a point of law of general public importance, and so I do make an application.

THE LORD CHIEF JUSTICE: The application is refused.

[34]MR PATTERSON: My Lord, there is one final point. It is simply this. There are fourteen days for the preparation and service of the petition to the House of Lords. I wonder if it might be possible for the transcript to be expedited?

THE LORD CHIEF JUSTICE: I know that the shorthand writer of this court will do her best to assist, but she has substantial demands upon her time. I cannot make a direction for expedition.

[36]MR PATTERSON: So be it. I am grateful.

Cited in 7 later judgments