Bentley v United States [2005] EWHC 1078 (Admin)

Case No CO/1687/2005[2005] EWHC 1078 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 12th May 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE SEDLEY
MR JUSTICE BEATSON
Between
RICHARD BENTLEYClaimant-v-
Between
THE GOVERNMENT OF THE UNITED STATESDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M SUMMERS (instructed by Hallinan Blackburn Gittings and Nott, London SW1P 1RR) appeared for CLAIMANTMR J HARDY (instructed by CPS London EC4M 7EX) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE SEDLEY:

This

[1]is an appeal brought under section 103 of the Extradition Act 2003 against the decision of the designated District Judge, Mr Nicholas Evans, sitting at Bow Street Magistrates' Court on 5th January 2005, to send to the Home Secretary the case for the extradition of the appellant, Richard Bentley, to the United States. The Home Secretary has ordered his extradition. The question for us is whether the District Judge erred in law or in fact (see section 103(4)) in deciding to send the case to the Home Secretary.[2]The charges against Mr Bentley are that he conspired with a Florida resident, Keith Reilly, to import into the US and to supply there a controlled drug, MDMA (known as ecstasy). All Mr Bentley's alleged acts - essentially telephoning Reilly and posting to him large quantities of ecstasy tablets - occurred in the UK. MDMA, according to the grand jury's indictment, signifies 3,4- methylenedioxymethamphetamine hydrochloride.[3]The three issues on which Mr Mark Summers on his behalf now appeals are these:(a) (A) The US government failed to prove to the District Judge that MDMA was a banned substance, at the material time, in the United States. The material time being 2003 to 2004.(b) (B) The conduct relied on did not take place in the United States.(c) (C) Extradition would violate Mr Bentley's rights under Article 8 of the European Convention on Human Rights, a question expressly posed for the District Judge by section 87 of the Extradition Act 2003. Criminality Section 137, in its material parts, provides:
"(1) This section applies in relation to conduct of a person if- (a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct, ... (2) The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied - (a) the conduct occurs in the category 2 territory; (b) ... (c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law)."
[4]The effect of section 137(2)(c) is that conduct does not constitute an extradition offence unless it is punishable with imprisonment for at least 12 months under the law of the United States. This involves demonstrating not only what the maximum sentence is but that the conduct it relates to is punishable. It is Mr Summers' contention that the material placed before the District Judge failed to show the second of these elements.[5]The United States of America is a category 2 territory. It is therefore one of the territories benefiting by the waiver pursuant to section 84(7) of the need to prove a prima facie case. The states listed in paragraph 3 of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 all enjoy this benefit. The critical remaining requirement is, by virtue of section 78(4)(b), to prove criminality.[6]The principal evidence adduced by the United States government on this issue was that of Joanne Fine Thaler, a special assistant US attorney for the southern district of Florida and an expert, as her affidavit deposed, on US criminal law and procedure. In her affidavit, under the caption "The charges and pertinent United States law", she said at paragraphs 9 and 10:
"9. The indictment charges in Count 1 that RICHARD BENTLEY and others did knowingly and intentionally combine, conspire, confederate and agree with each other to possess with intent to distribute a Schedule I (Title 21, US Code, Section 182) controlled substance, that is, a mixture a substance containing a detectable amount of 3, 4- methylenedioxy-methamphetamine hydrochloride (MDMA or ‘ecstacy’), in violation of Title 21, United States Code, Section 841(a)(1); all in violation of Title 21, United States Code, Sections 841(b)(1)(c). This offence carries a maximum penalty of 20-years of imprisonment upon conviction. The United States requests the extradition of RICHARD BENTLEY for the offence enumerated in Count 1. The offence is punishable under a statute that (1) was the duly enacted law of the United States at the time the offence was committed, (2) was the duly enacted law of the United States at the time the indictment was filed, and (3) is currently in effect. The offence is punishable under the United States law by more than one year of imprisonment. Copies of the pertinent sections of the aforementioned statutes are attached as Exhibit 3. 10. Count 1 charges RICHARD BENTLEY with conspiracy. Conspiracy to possess with intent to distribute MDMA or ‘ecstasy’ is a conspiracy for which the United States may extradite under its laws."
[7]Thus, albeit she asserts that MDMA, described by its correct chemical name, is a controlled substance, she goes on to exhibit the statute which she says so provides. When, however, one turns to the text of 21 USCA section 812, which she has exhibited, it does not list 3,4- methylenedioxymethamphetamine hydrochloride amongst the substances it proscribes in its first schedule. Given this, Mr John Hardy for the United States government relied before the District Judge upon a temporary measure, 21 CFR [Code of Federal Regulations] paragraph 1398, enacted by the Department of Justice on 31st May 1985, which added MDMA, correctly described, to the list scheduled to the statute. This measure, however, was expressed to expire at a date which at latest can have been 1st February 1987. There was no other evidence of proscription before the District Judge.[8]The district judge rejected Mr Summers' submission that he must discharge Mr Bentley on the ground that if section 137 was not met in full there could be no extradition offence within the meaning of section 78(4)(b), making discharge obligatory under section 78(6). In his written reasons he held as follows:
"The drug Mr Bentley is accused of trafficking is 3,4-methylenedioxymethamphetamine hydrochloride [13,16, 20 and 26]. That drug is not listed in schedule 1 to 21 USC 812 [34-38]. The scheduling provisions of 21 CFR Part 1038 [39-44] add 3,4- methylenedioxymethamphetamine, but the paperwork provided with the request shows that the temporary addition of this drug remained in force only until 1st February 1987 [42]. Almost certainly, although I accept there is no material before me to so conclude, those temporary provisions would have been renewed. Indeed, I would not be surprised to learn that there are now permanent provisions in force. Thus Mr Summers is correct in submitting that the request fails to provide copies of the statutory provisions identifying the particular drug said to have been trafficked. The omission of the statutory provisions is arguably a failure by the government to comply with the terms of the relevant extradition Treaty entered into by the UK and US governments. If there has been a failure to comply with the terms of the Treaty does that matter? Treaties confer no domestic rights upon individuals. The UK courts are only required to have regard to the procedural obligations of the Treaties where those obligations are given effect by domestic legislation, such as section 2 of the Extradition Act 1870 and section 1(3) of the Extradition Act 1989. There is no provision in the Extradition Act 1870 and section 1(3) of the Extradition Act 1989. There is no provision in the Extradition Act 2003 requiring the government to include in their request copies of the relevant statutory provisions. Section 78(4)(b) requires the appropriate judge to decide whether the offences specified in the request is an extradition crime. That exercise requires consideration of section 137(1) (a) and (2) and in particular, for the purposes of this submission, section 137(2)(c). (c) the conduct is so punishable under the law of the category 2 territory (however it is so described in that law). Thus it is a matter of foreign law whether the conduct is so punishable. Again reference to Ms Thaler’s affidavit at paragraph 9 [20] where she asserts, as an expert in US law, that 3,4-methylenedioxymethamphetamine hydrochloride (MDMA or ‘ecstacy’) is a controlled substance and that anyone who ‘knowingly and internationally… conspires(s) … to possess with intent to distribute’ that substance commits an offence carrying 20-years imprisonment upon conviction.

(c) "

[9]It is submitted for the Appellant that it was not open to the District Judge to assume the very thing that the documents volunteered by the requesting state failed to show. For the US government, however, Mr Hardy points out that Article VII of the 1972 Treaty, which did require the text of the relevant law to be produced to the court of the requested state, has been superseded by the repeal of the Extradition Act 1989 and its replacement by the 2003 Act which imposes no such requirement. It is therefore sufficient, he submits, that Ms Thaler has deposed that - in essence - possession of 3, 4 - methylenedioxymethamphetamine hydrochloride is a crime.[10]For my part, I do not accept this submission. It may be Mr Summers accepts as much - that if Ms Thaler has confined her evidence to this assertion the District Judge would have been entitled to accept it without question if it were the only evidence. But, in my judgment, when, as here, the requesting state itself has volunteered to the court documents which do not support the assertion in aid of which they are tendered, it becomes the court's duty, at least if the point is taken, to decide whether it is sure as it must be that the assertion is correct. On the evidence before him I do not see how the district judge could safely have concluded that the assertion that MDMA was a controlled substance in the United States Federal Law in 2003 to 2004, the period when the alleged offences took place, was correct. The deponent had, albeit voluntarily, undermined her own testimony.[11]It was not open to the district judge, although one understands why as a practical matter he took this course, to presume the existence of a critical fact which had not only not been proved but had been called into doubt by the deponent for the United States government. Nor do I accept Mr Hardy's submission that the District Judge and, in turn, this court are entitled to deduce criminalisation of MDMA in 2003 to 2004 from the wording of the indictment and the warrant. Both of these recite Title 21; and Title 21, which has been exhibited, on its face fails to criminalise possession of MDMA. Mr Hardy finds himself back where he started.[12]There is also the possibility which, for my part, I would wish to reserve, that even if paragraph 9 of Ms Thaler's affidavit had contained only its first segment, that is to say did not exhibit the material, the District Judge would have been entitled to call for the documents referred to in it, whether under Article IX(2) of the 1972 treaty or informally, in order to be satisfied that the documents referred to, and without which the statement itself was arguably incomplete, did support the statement about their contents.[13]Mr Hardy, contemplating the possibility that such a conclusion would be reached in this court, seeks, in that event, to rely on a supplementary affidavit of the same deponent, Ms Thaler. It says:
"2 The Defendant is charged by way of Federal Indictment of conspiracy to possess with the intent to distribute 3,4 - methylenedioxymethamphetamine hydrochloride ('MDMA' or 'ecstacy'). MDMA is a Schedule I controlled substance. 3. Schedule I, on its own terms, is updated by rules and regulations, with updates listed in the US Code of Federal Regulations (CFR). The relevant portions of the CFR are attached to the extradition request at Exhibit 3. The CFR constitutes the law of the United States. Pursuant to Section 812 and the CFR, promulgated pursuant to Sec 812, MDMA was at the time of the offence in question - and remains - a controlled substance. It became listed on 13 November 1986. 4. Therefore, MDMA became a Schedule I controlled substance effective November 13, 1986. 5. Consequently, at the time of the offence (from at least in or about August 2003, on or about January 22, 2004), MDMA was and continues to be a Schedule I controlled substance. see, 21, CFR 1308 (1986), attached hereto as 'Exhibit A'."
[14]What is attached is the identical document (which is in fact a document of 1985, not of 1986) to that exhibited to the deponent's first affidavit. The assertion that MDMA became listed on 13th November 1986 is the only thing that is new in the second affidavit, but the CFR exhibited in support of it continues to show that it became listed on 1st July 1985 for a period expiring "one year from the date of this order" that is to say either 31st May 1986 or 1st July 1996 with an extension of six months in proceedings still pending at that date.[15]Mr Hardy submits that we should admit this evidence as conclusive of the fact that MDMA became listed in 1986 and remains proscribed. We can do so, he suggests, under section 202(3), and can either remit the matter to the district judge or (since his decision will by then be a foregone conclusion) simply dismiss this part of the appeal. Section 203(3) permits the reception in evidence, in any proceedings under the Act, of a duly authenticated document issued in the requesting state. Since by virtue of section 103(3) an appeal lies on fact as well as on law, I see no obstacle in principle to the admission of Ms Thaler's second affidavit, although in practice it may well not clear the hurdles now set by the Civil Procedure Rules for the admission of fresh evidence.[16]But we need not be detained by this question because, having provisionally looked at it, it is apparent that it fails to fill the gap in the evidence adduced before the District Judge. All it does is deepen the mystery of why none of the enactments on which the requesting state has chosen to rely as showing that MDMA was proscribed in 2003-2004 appears to do so. From the specific requirement in section 78(5) that identity is to be determined on the balance of probability, it is apparent that the other essentials of extradition are to be decided, as before, on the criminal standard of proof. This is common ground before us. Foreign law is a question of fact. I do not think that any court could be satisfied to the appropriate standard on the materials before the district judge or those before this court that the conduct laid against Mr Bentley was punishable at the time of its commission under United States law.[17]That this conclusion is (as the judge was plainly well aware) heavily counter-intuitive is a comment not on the law or on judicial reasoning but on the simple failure of the requesting state to prove something which, in this new and simplified but rigorously prescribed jurisdiction, is still essential. The United States is not the only state to which paragraph 3 of the 2003 Order in Council grants the right to seek extradition on a bare assertion that the acts alleged constituted crimes at the material time in the requesting state. Since Parliament has delegated to the executive the power to include any states it thinks fit - a power it has exercised generously - the need for rigour at this elementary level is far more than merely technical.[18]In these circumstances it is unnecessary to embark on questions which might arise about the continuing applicability of the treaty of 1972. It is also unnecessary to deal in any detail with the remaining submissions; but out of deference to counsel I will do So. Extraterritoriality[19]Mr Summers’ second ground of appeal is that the conduct charged has, by virtue of section 137(1), to be the conduct "of a person"; that the person is the person charged; and that by virtue of section 137(2)(a) his conduct must have occurred in the material category 2 territory, here the United States. All of this is uncontentious, but Mr Summers goes on to assert that all the conduct laid against Mr Bentley took place in the United Kingdom. He is not said ever to have set foot in the United States.[20]Reliance is accordingly placed by Mr Summers in the decision of this court in Goatley v Governor of HMP Brixton [2002] EWHC 1209 (Admin). Goatley was charged inter alia with conspiring and attempting to import hashish into the Netherlands. He contended that his acts were extraterritorial to the Netherlands, whereas the authority to proceed had alleged intraterritorial conduct only. Mr Summers, who appeared in that case for the requesting state, cites the following passages of the judgment of the court delivered by Nelson J: 15. The applicant contended that the same arguments held good for the conspiracy and attempt charges as they too were extra-territorial. The agreement, which is the ‘conduct’ under the Act for a conspiracy, took place outside the jurisdiction and it mattered not that the consequences of the conspiracy would occur within the jurisdiction. The attempts were also extra-territorial conduct and hence the same argument applied. The fact that under English law it is an offence to conspire outside the jurisdiction to commit an offence within it (Somchai Liangsiriprasert v- Government of the United States of America [1991] 1 AC 225) or that an attempt to fraudulently evade the prohibition on the importation from outside the jurisdiction may be justiciable within it (R-v-Wall 59 Cr App R 58) does not alter the fact that both the conspiracies and the attempts were extra-territorial and hence had to be the subject of an extra-territorial ATP.30. Mr Summers, on behalf of the Respondent, submits that Re: Somchai and R v Sansom and R (Al Fawwaz & others)-v- Governor of Brixton Prison & others [2002] 2WLR 101 para 72 and 111-112 are, in so far as they can be viewed as extending UK jurisdiction, all examples of intra-territorial jurisdiction. There may be cases where the offence to which conspiracy relates is itself extra-territorial and hence the conspiracy to do that offence would also be extra-territorial. Here, however, one is dealing with the importation of cannabis under section 170(2) of the Customs and Excise Management Act 1979, which is itself an intra-territorial offence. It follows therefore that a conspiracy to import cannabis under section 1 of the Criminal Law Act 1977 remains intra-territorial. Thus this is a section 2(1)(a) case.31. I am satisfied that the Respondent’s submissions are correct. There can in my judgment be no answer to the proposition that the importing of cannabis is an intra-territorial offence, as is a conspiracy to commit that offence. (See R-v-Wall [1974] 59 Crim App R 58.)"[21]The fallacy in Mr Summers’ attempt to transpose this finding in reverse into the present case is this: the point in Goatley was that the acts of the accused, albeit taking place outside the Netherlands, offended against that state’s domestic law, creating a sufficient analogy with English law to permit extradition. The point in the present case is the same. The use of the vocabulary of intraterritoriality and extraterritoriality depends on the state from whose angle one is considering the offence. An act done in the United Kingdom with consequences in the United States is intraterritorial in origin and extraterritorial in effect. The two things are articulated, as Mr Hardy points out, by the common-law concept of agency and joint enterprise. The district

judge held on this limb of the case:

"This submission adopts submissions made in another extradition case, ‘the Enron case’, in which I gave a written ruling on 25th June 2004, copy attached. Both Mr Hardy and Mr Summers were involved in the Enron case and there is no need to repeat my reasoning here. I adopt the same approach in this case as I did in the Enron case. Here there is no evidence that Mr Bentley ever entered the United States of America. It is therefore necessary first to determine whether ‘such of the conduct as constitutes the criminal offence charged’ [adopting the formulation of Burnton J in Office of the King’s Prosecutor, Brussels-v-Cando Armas [2004] EWHC 2019 (Admin)] occurs in the category 2 territory, in this case Florida. A conspiracy to import ecstacy into Florida and thereafter distributing the same satisfies that requirement. Secondly, it is then necessary to determine whether any (not all) of Mr Bentley’s conduct was within that territory. Mr Bentley shipped more than 10,000 tablets of MDMA to Reilly (in Florida) on at least four occasions…all through regular mail delivery.[17] In addition there were telephone calls made between Mr Bentley in the UK and Mr Reilly in Florida making arrangements to further the objectives of the conspiracy. [18] Such conduct amounts to conduct by Mr Bentley in Florida. It is settled UK law that it is an offence to conspire outside the UK to commit an offence within it. Somchai Liangsiriprasertv USA [1991] 1 AC 225. A conspiracy between two persons, one within the jurisdiction (in Florida) and one without (in the UK), is an intra-territorial (Florida) offence. (See R -v- Wall [1974] 59 Crim App R 58) The government correctly asserts the conduct alleged amounts to an intra-territorial offence and thus it is necessary to consider only section 137(1) and (2) and not Section 137(3) which is irrelevant. I agree."
[22]I respectfully agree with this reasoning. There is, in my view, no substance in this ground of appeal. Human rights[23]Section 87 expressly confides to the court the question whether the proposed extradition is compatible with the accused’s Convention rights. Here it was submitted to the judge, and is now submitted to us, that removal to the United States will separate Mr Bentley from his young son, whom he sees regularly and with whom he has a close relationship, and from his mother, who is ill with skin cancer. It will throw on him, if he is not to rely on a public defender, a heavy burden of legal fees which he will not recover if he is acquitted. Moreover the crime charged is triable in this country, which is where all the material conduct occurred.[24]There is no dispute (see Launder v United Kingdom) (Commission, 27279/95) that extradition invades the primary Article 8 right and has to be shown to be in accordance with the law and necessary in a democratic society - that is to say, in the Court's long-established jurisprudence, proportionate.[25]The District Judge reached the following conclusions on this limb of the case. "Submission 7 The extradition process engages Article 8(1) of the ECHR. The right to family life is a qualified right. The obvious interference with this right, by the act of extradition, will be compliant with the Convention if it is ‘in accordance with the law’ and ‘is necessary in a democratic society’… ’for the prevention of disorder and crime’. In Launder v UK [1997] App 27279/95 at paragraph 3 The Commission considered ‘that it is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting State would be held to be an unjustified or disproportionate interference with the right to respect for family life.’ Mr Bentley faces serious charges, the extradition process is in accordance with the law, and it is necessary in a democratic society that those charged with serious criminal offences be tried in the prosecuting State where that State is entitled to so prosecute. Paragraph 22 of the skeleton argument incorrectly asserts that all Mr Bentley’s conduct occurred in the UK. Although Mr Bentley may have been located, at all material times, within the UK some of his conduct and its impact can properly be said to have occurred in the United States of America. [See my response to submission 4] It is perfectly correct to say that Mr Bentley could be prosecuted in the UK by a UK prosecuting authority. That is true of many cases but is not a relevant consideration for this court. I am satisfied that Mr Bentley’s extradition is compatible with his Convention right within the meaning of the Human Rights Act 1998. Submission 8: This submission relates to the costs likely to be incurred by Mr Bentley at any trial in the United States of America should he be extradited. This is another ‘Enron case’ point and I adopt the same approach as in that case. By agreement between counsel rather than adjourn to allow the reception of expert evidence (which would have resulted in very considerable delay and cost) the court was invited to deal with the submission on the following agreed basis:
'... A matter of US law, should the defendant not have sufficient funds to represent himself, he will be appointed a public defender to represent him at trial. However, should the defendant have sufficient funds to represent himself, he will be expected to fund his own representation. Those costs can reasonably be expected to be substantial. In the event of the Defendant’s acquittal at trial, US law makes no provision for the recovery of costs...'
Convention rights require that Mr Bentley be represented at his trial by a lawyer if he wants to be so represented. The arrangements in the United States of America are compliant with Mr Bentley’s convention rights."[26]For my part I have a reservation as to whether justiciability in this country is irrelevant to the Article 8 issue. But I have no doubt that, if his extradition were otherwise in order, it would not be disproportionate or otherwise contrary to his Convention rights to surrender Mr Bentley. It is not only in accordance with the law but important to the rule of law and to international comity that persons who are the subject of a proper request should be extradited to stand trial: in other words, there is an important and valid objective, and while it can be achieved in this case by other means - namely trial here - there was no submission before the District Judge that trial in the United States would place Mr Bentley at unacceptably enhanced risk either of conviction or upon sentence. The disruption of family ties in such a situation is inevitable and frequently tragic, but to allow it - save quite exceptionally - to obstruct extradition would discriminate arbitrarily against accused persons without such ties and make extradition a lottery in which the majority of the players won.

Conclusion

[27]Despite my views on the second and third issues, Mr Bentley is, in my judgment, entitled to succeed on the first issue canvassed before us. It follows that he ought to have been discharged by the district judge. I would accordingly allow the appeal.

MR JUSTICE BEATSON: I agree.

[29]MR SUMMERS: If you allow the appeal under section 106(5) you are obliged to also order his discharge and to quash the Secretary of State's order for his extradition. It is 104(5), my Lord.

LORD JUSTICE SEDLEY: This is a section 104, outcome is it not? The order of the court, unless, Mr Hardy, you have any other submission, will be that Mr Bentley be discharged and that the order for his extradition be quashed.

[31]MR SUMMERS: There is just one other matter. Please forgive me for raising it now. I know your Lordship has other matters in the list. It may not take that long. As a matter of principle Mr Bentley is entitled to his costs. He is legally aided. I have a duty under the Legal Aid Board to make an application under section 134. That is an order for costs out of funds provided by Parliament for this purpose, otherwise a simple legal aid taxation order will ensure that other persons facing criminal charges will be deprived.

LORD JUSTICE SEDLEY: You have a cash limited fund to protect and you are entitled to apply it. Mr Hardy?

[33]MR HARDY: My learned friend is right. Section 134 is somewhat unhappy in its drafting, a feature noticed about other aspects of this piece of litigation.

LORD JUSTICE SEDLEY: Not unique in that respect.

[35]MR HARDY: Subsection (7) is of no application, I take the liberty of assuming in this case. Subsection (8), however, requires that the court specifies in the order for costs the appropriate amount. Your Lordships are required to determine that appropriate amount in accordance with regulations made by the Lord Chancellor for the purpose of this section, and there are none. Evidently the Lord Chancellor has had other and more pressing business to deal with than to make the regulations that this subsection--

LORD JUSTICE SEDLEY: It nearly ceased to exist between the passage of this Act and today, but it is still with us. Let us just read this. Unless subsection (7) applies, and you say it does not - is that right, Mr Summers?

[37]MR SUMMERS: Unless you are of the view that I should not recover all my costs.

LORD JUSTICE SEDLEY:

[38]The appropriate amount is to be specified in the order if- "the court considers it appropriate for it to be so specified and the person in whose favour the order is made agrees the amount; (b) must be determined in accordance with regulations made by the Lord Chancellor for the purposes of this section, in any other case."[39]We can decline, in our discretion, to make an order under (a), in which case your application falls into limbo because the Lord Chancellor has done nothing under (b). The only choice we have then is to specify the appropriate amount provided you agree it.[40]In those circumstances, may I ask the court to defer its specification pending the submission, by those who instruct, me, of a schedule of costs.

LORD JUSTICE SEDLEY: There is a certain unilaterality about this process.

[42]MR HARDY: I wonder if I could assist my Lord in a case which also features my learned friend, Mr Summers, and myself, though happily both on the same side in that case, called Albania and (?) before this court constituted by Dillon LJ and Cox J. The same issue arose and that court took the view that in the absence of any regulations the old process of taxation still continued in force.

LORD JUSTICE SEDLEY: You mean if we decline under (a) it does not go into limbo under (b): it goes to taxation or to assessment?

[44]MR HARDY: It goes to assessment and then the court could, through its administrative machinery, specify the amount in the order after the process of taxation is complete.

LORD JUSTICE SEDLEY: Mr Summers, speaking for myself as I have not consulted my Lord, that sounds to me the best option. There is no suggestion that those instructing you would overload their bill, but the courts have to be careful. The only proper vetting agency is the assessment judge. Are you content with that?

[46]MR SUMMERS: My Lord, yes.

LORD JUSTICE SEDLEY: We had better give you liberty to apply in case it goes wrong. Thank you both very much indeed for your assistance.

[48]MR HARDY: I should inform the court before the matter is over that there are no applications by the government. That is to say, we shall not invite this court to certify a point or indeed seek leave.

LORD JUSTICE SEDLEY: It is most helpful of you and courteous to tell us. Thank you, Mr Hardy.

Cited in 5 later judgments