"I originally considered seeking the extradition of the applicant from South Africa. I conferred with the Crown Prosecution Service, and it was decided that this course of action should not be pursued. There are no formal extradition provisions in force between the United Kingdom and the Republic of South Africa and any extradition would have to be by way of special extradition arrangements undersection 15 of the Extradition Act 1989 . No proceedings for the applicant's extradition were ever initiated."
"1. Further to my affidavit sworn in the above mentioned proceedings on29 November 1991 , my earliest communications with the South African authorities following the applicant's arrest were with the South African police with a view to his repatriation to New Zealand or deportation to Australia and his subsequent extradition from one of those countries to England. I discussed with the South African police the question as to whether the applicant would be returned via the United Kingdom and I was informed by them that he might be
"4. I now recollect that it was on 20 February and not on 21 February as I stated in my previous affidavit, that the South African police informed me on the telephone that the applicant was to be returned to New Zealand via Heathrow. On the same day I consulted the Crown Prosecution Service and it was decided that the English police would arrest the applicant on his arrival at Heathrow."
"Whether in the exercise of its supervisory jurisdiction the court has power to inquire into the circumstances by which a person has been
"Whatever the reason for the applicant being at Gatwick Airport on the tarmac, whether his arrival there had been obtained by fraud or illegal means, he was there. He was subject to arrest by the police force of this country. Consequently the mere fact that his arrival there may have been procured by illegality did not in any way oust the jurisdiction of the court. That aspect of the matter is simple."
"There are explicit statutory directions that surround the extradition procedure. The procedure is widely known. It is frequently used by the police in the performance of their duty. For the protection of the public the statute rightly demands the sanction of recognised court processes before any person who is thought to be a fugitive offender can properly be surrendered from one country to another. And in our opinion there can be no possible question here of the court turning a blind eye to action of the New Zealand police which has deliberately ignored those imperative requirements of the statute. Some may say that in the present case a New Zealand citizen attempted to avoid a criminal responsibility by leaving the country: that his subsequent conviction has demonstrated the utility of the short cut adopted by the police to have him brought back. But this must never become an area where it will be sufficient to consider that the end has justified the means. The issues raised by this affair are basic to the whole concept of freedom in society. On the basis of reciprocity for similar favours earlier received are police officers here in New Zealand to feel free, or even obliged, at the request of their counterparts overseas to spirit New Zealand or other citizens out of the country on the basis of mere suspicion, conveyed perhaps by telephone, that some crime has been committed elsewhere? In the High Court of Australia Griffith C.J. referred to extradition as a 'great prerogative power, supposed to be an incident of sovereignty' and then rejected any suggestion that 'it could be put in motion by any constable who thought he knew the law of a foreign country, and thought it desirable that a person whom he suspected of having offended against that law should be surrendered to that country to be punished': Brown v. Lizars (1905) 2 C.L.R. 837, 852. The reasons are obvious.
"We have said that if the issue in the present case is to be considered merely in terms of jurisdiction then Bennett, being in New Zealand, could certainly be brought to trial and dealt with by the courts of this country. But we are equally satisfied that the means which were adopted to make that trial possible are so much at variance with the statute, and so much in conflict with one of the most important principles of the rule of law, that if application had been made at the trial on this ground, after the facts had been established by the evidence on the voir dire, the judge would probably have been justified in exercising his discretion under section 347(3) or under the inherent jurisdiction to direct that the accused by discharged."
"The question, therefore, is this, whether if a person charged with a crime is found in this country, it is the duty of the court to take care that such a party shall be amenable to justice, or whether we are to consider the circumstances under which she was brought here. I thought, and still continue to think, that we cannot inquire into them."
"There are three stages of procedure in this case - first, there are the proceedings abroad where the complainer was arrested; second, there are the proceedings on the journey to this country; and third, the proceedings here. As regards the proceedings abroad and where the complainer was arrested, they may or may not have been regular, formal, and in accordance with the laws of Portugal and Spain, but we know nothing about them. What we do know is that two friendly powers agreed to give assistance to this country so as to bring to justice a person properly charged by the authorities in this country with a crime. If the Government of Portugal or of Spain has done anything illegal or irregular in arresting and delivering over the complainer his remedy is to proceed against these Governments. That is not a matter for our consideration at all, and we cannot be the judges of the regularity of such proceedings.
"In point of fact the complainer was put on board a British vessel which was at that time in the roads at the mount of the Tagus, and given into the custody of a person who held a warrant to receive him, and who did so receive him. This warrant was perfectly regular, as also his commitment to stand his trial on a charge of embezzlement. If there was any irregularity in the granting or execution of these warrants the person committing such irregularity would be liable in an action of damages if any damage was caused. But that cannot affect the proceedings of a public authority here. The public authority here did nothing wrong. The warrants given to the officer to detain the prisoner were quite formal, and it is not said that he did anything wrong.
"It is said that the Government of Portugal did something wrong, and that the authorities in this country are not to be entitled to obtain any advantage from this alleged wrongdoing. As I have said, we cannot be the judges of the wrongdoing of the Government of Portugal. What we have here is that a person has been delivered to a properly authorised officer of this country, and is now to be tried on a charge of embezzlement in this country. He is therefore properly before the court of a competent jurisdiction on a proper warrant. I do not think we can go behind this. There has been no improper dealing with the complainer by the authorities in this country, or by their officer, to induce him to put himself in the position of being arrested, as was the case in two of the cases cited. They were civil cases in which the procedure was at the instance of a private party for his own private ends, and the court very properly held that a person could not
"No irregularity, then, involving suspension can be said to have taken place on his arrival in London and on his journey here. But even if the proceedings here were irregular I am of opinion that where a court of competent jurisdiction has a prisoner before it upon a competent complaint they must proceed to try him, no matter what happened before, even although he may have been harshly treated by a foreign government, and irregularly dealt with by a subordinate officer."
"With regard to the competency of the proceedings in Portugal, I think this is a matter with which we really have nothing to do. The extradition of a fugitive is an act of sovereignty on the part of the state who surrenders him. Each country has its own ideas and its own rules in such matters. Generally it is done under treaty arrangements, but if a state refuses to bind itself by treaty, and prefers to deal with each case on its merits, we must be content to receive the fugitive on these conditions, and we have neither title nor interest to inquire as to the regularity of proceedings under which he is apprehended and given over to the official sent out to receive him into custody . . .
"I am of opinion with your Lordships that, when a fugitive is brought before a magistrate in Scotland on a proper warrant, the magistrate has jurisdiction, and is bound to exercise it without any consideration of the means which have been used to bring him from the foreign country into the jurisdiction.
"In a case of substantial infringement of right this court will always give redress, but the public interest in the punishment of crime is not to be prejudiced by irregularities on the part of inferior officers of the law in relation to the prisoner's apprehension and detention.'"
"The point with regard to the arrest in Belgium is entirely false. If a person is arrested abroad and he is brought before a court in this
'I was arrested contrary to the laws of the state of A or the state of B where I was actually arrested.'
"That, again, is a perfectly clear and unambiguous statement of the law administered in Scotland. It shows that the law of both countries is exactly the same on this point and that we have no power to go into the question, once a prisoner is in lawful custody in this country, of the circumstances in which he may have been brought here. The circumstances in which the applicant may have been arrested in Belgium are no concern of this court."
'However, quite apart from authority, I am bound to say it seems to me that the approach of Stephen Brown L.J. [in Reg. v. Plymouth
"Speaking for myself. I am not satisfied there could not be some form of residual discretion which in limited circumstances would enable a court to intervene, not on the basis of an abuse of process but on some other basis which in the appropriate circumstances could avail a person in a situation where he contends that the prosecution are involved in improper conduct."
"The appellant, a member of the military wing of the African National Congress who had fled South Africa while under a restriction order, had been abducted from his home in Mbabane, Swaziland, by persons acting as agents f the South African State, and taken back to South Africa, where he was handed over to the police and detained in terms of security legislation. He was subsequently charged with treason in a Circuit Local Division, which convicted and sentenced him to 20 years' imprisonment. The appellant had prior to pleading launched an application for an order to the effect that the court lacked jurisdiction to try the case inasmuch as his abduction was in breach of international law and thus unlawful. The application was dismissed and the trial continued.
"The court, on appeal against the dismissal of the above application, held, after a thorough investigation of the relevant South African and common law, that the issue as to the effect of the abduction on the jurisdiction of the trial court was still governed by the Roman and Roman-Dutch common law which regarded the removal of a person from an area of jurisdiction in which he had been illegally arrested to another area as tantamount to abduction and thus constituted a serious injustice. A court before which such a person was brought also lacked jurisdiction to try him, even where such a person had been abducted by agents of the authority governing the area of jurisdiction of the said court. The court further held that the above rules embodied several fundamental legal principles, viz. those that maintained and promoted human rights, good relations between states and the sound administration of justice: the individual had to be protected against unlawful detention and against abduction, the limits of territorial jurisdiction and the sovereignty of states had to be respected, the
"It was accordingly held that the court a quo had lacked jurisdiction to try the appellant and his application should therefore have succeeded. As the appellant should never have been tried by the court a quo, the consequences of the trial had to be undone and the appeal disposed of as one against conviction and sentence. Both the conviction and sentence were accordingly set aside."
"The power to stop a prosecution arises only when it is an abuse of a process of the court. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable . . .
"The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness to both the defendant and the prosecution."
"there is a clear public interest to be observed in holding officials of the state to promises made by them in full understanding of what is
"The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused."
"So far as the ground upon which they did dismiss the information was concerned, every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court."
"There was at one time some doubt whether magistrates had jurisdiction to decline to allow a criminal prosecution to proceed on the ground that it amounted to an abuse of the process of the court: see D.P.P. v. Humphrys(1976) 63 Cr.App.R. 95 , 144; [1977] A.C. 1, 19, per Viscount Dilhorne. However, a line of authority which has developed since that case has clearly established that magistrates do indeed have such a jurisdiction: see in particular Brentford Justices, Ex parte Wong(1981) 73 Cr.App.R. 67 ; [1981] Q.B. 445; Watford Justices, Ex parte Outrim (1982) [1983] R.T.R. 26; Grays Justices, Ex parte Graham(1982) 75 Cr.App.R. 229 ; [1982] 3 All E.R. 653. The power has, however, been described by the Lord Chief Justice as being 'very strictly confined': see Oxford City Justices, Ex parte Smith(1982) 75 Cr.App.R. 200 , 204."
". . . several fundamental legal principles: viz. those that maintained and promoted human rights, good relations between States and the sound administration of justice: the individual had to be protected against unlawful detention and against abduction, the limits of territorial jurisdiction and the sovereignty of States had to be respected, the fairness of the legal process guaranteed and the abuse thereof prevented so as to protect and promote the dignity and integrity of the judicial system. The State was bound by these rules and had to come to Court with clean hands, as it were, when it was itself a party to proceedings and this requirement was clearly not satisfied when the State was involved in the abduction of persons across the country's borders."
". . . that federal district court's criminal process would be abused or degraded if it was executed against defendant Italian citizen, who alleged that he was brought into the United States from Uruguay after being kidnapped, and such abuse could not be tolerated without debasing the processes of justice so that defendant was entitled to a hearing on his allegations. . . . Government should be denied the
"The Court of Appeal of South Africa - indeed, I suspect most courts throughout the civilised world - will be deeply disturbed by the 'monstrous' decision the Court announces today. For every nation that has an interest in preserving the rule of law is affected, directly or indirectly, by a decision of this character."
"It is not always easy to decide whether some injustice involves the further consequence that a prosecution associated with it should be
"Those remarks involve an important statement of constitutional principle. They assert the independent strength of the judiciary to protect the law by protecting its own purposes and function. It is essential to keep in mind that it is 'the process of law', to used Lord Devlin's phrase, that is the issue. It is not something limited to the conventional practices or procedures of the Court system. It is the function and purpose of the Courts as a separate part of the constitutional machinery that must be protected from abuse rather than the particular processes that are used within the machine. It may be that the shorthand phrase 'abuse of process' by itself does not give sufficient emphasis to the principle that in this context the Court must react not so much against an abuse of the procedure that has been built up to enable the determination of a criminal charge as against the much wider and more serious abuse of the criminal jurisdiction in general. It is for reasons of this kind that I remain of the opinion that the trial Judge would have been entirely justified in the Hartley case in stopping the prosecution against the man Bennett."
"Judges are not responsible for the bringing or abandonment of prosecutions; nor have they the right to adjudicate in a way which indirectly usurps the functions of the legislature or jury."
"What we were asked to do in the present case, and the most we could have been asked to do, was to admit the prisoner to bail until the court was ready to try him."
". . . the trial of a person for a criminal offence is not a contest of private interests in which the rights of parties can be waived at pleasure. The prosecution of criminals and the administration of the criminal law are matters which concern the State."
"The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused."
"This court considers that it was wrong to invite a single lay justice to consider a matter such as this. Whether or not there has been an abuse of process of the sort raised in these proceedings is a matter far more fitting to be inquired into by the Queen's Bench Divisional Court than by a single justice. If a point such as this is to be taken in future it should be taken in the form in which it was in Reg. v. Bow Street Magistrates, Ex parte Mackeson, 75 Cr.App.R. 24; that is, there should be an objection to the justice hearing the committal and the matter should be pursued before the Divisional Court by way of an application for judicial review seeking an order of prohibition. That is not to say that we have any criticism whatsoever of the way in which the justice approached her task in this case. Both the defence and the prosecution asked her to decide the question: she clearly went into it with the greatest care and we are quite unable to find any fault or criticism with any of the conclusions of fact at which she arrived. In the opinion of this court, having been asked to undertake a task which we do not think was appropriate for a single lay justice, she discharged her duties quite admirably."
"Accordingly, I have come to the conclusion that there is no merit or substance in this application and it will be refused. As I say, if this question is to be raised in further cases the proper procedure is to use that in Reg. v. Bow Street Magistrates, Ex parte Mackeson, 75 Cr.App.R. 24, so that the Divisional Court may be seised of the matter, and not bring it up before a lay justice on committal proceedings. However, we anticipate that cases of this nature are likely to be very rare."
"Whether this was an application properly made to the justice or whether it was one that should properly have been made in the first place to the Divisional Court, I am in no doubt that no order of certiorari should go. Despite the admirable way in which this justice dealt with the matter, I share the concern of Griffiths L. J. that a single lay justice should be asked to grapple with questions of this kind. It is better I think that the question should be dealt with as in Reg. v. Bow Street Magistrates, Ex parte Mackeson, 75 Cr.App.R. 24 even although such a course may leave one wondering precisely how a justice in such circumstances can be said to have acted in excess of jurisdiction or made an error of law."
"See also Mills v. Cooper [1967] 2 Q.B. 459, per Lord Parker C.J. Whether such comments were correct in relation to inferior courts exercising ordinary judicial functions has been doubted (see Reg. v . Humphrys [1977] A.C. 1 per Viscount Dilhorne, per Lord Salmon; to the contrary Reg. v. West London Stipendiary Magistrate; Ex parte Anderson(1984) 80 Cr.App.R. 143 , but it is clear that they do not extend to a magistrate hearing committal proceedings. In Atkinson v . Government of the United States of America [1971] A.C.
'The question is whether, if there is evidence sufficient to justify committal, the magistrate can refuse to commit on any other ground such as that committal would be oppressive or contrary to natural justice. The appellant argues that every court in England has power to refuse to allow a criminal case to proceed if it appears that justice so requires.
"The appellant argues that this was established, if it had been in doubt, by the decision of this House in Connelly v. Director of Public Prosecutions . . .
"With the establishment of an organised police force in England in 1829, the role of the justices underwent change. The most significant factor in this change was inThe Indictable Offences Act 1848 (U.K.) (11 & 12 Vict, c.42), 'Sir John Jervis's Act', which provided for witnesses appearing before the justices to be examined in the presence of the accused and to be cross-examined by the accused or his counsel."
"The fact that a magistrate sits as a court and is under a duty to act fairly does not, however, carry with it any inherent power. Indeed, in my view, the nature of a magistrate's court is such that it has no powers which might properly be described as inherent even when it is exercising judicial functions. A fortiori that must be the case when its functions are of an administrative character. In Reg. v. Forbes; Ex parte Bevan, Menzies J. pointed out that:
"The fact that in the conduct of committal proceedings a magistrate is performing a ministerial or administrative function is, of course, no bar to the existence of implied powers, if such are necessary for the effective exercise of the powers which are expressly conferred upon him. The latter are now to be found in s. 41 of the Justices Act. But the scheme of that section, far from requiring the implication of a general power to stay proceedings, is such as to impose an obligation upon the magistrate to dispose of the information
"There is no room in the face of these statutory obligations, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided. Nor is this surprising. True it is that a person committed for trial is exposed to trial in a way in which he would otherwise not be, but the ultimate determination whether he does in fact stand trial does not rest with the magistrate. The power to order a stay where there is an abuse of the process of the trial court is not to be found in the committing magistrate and the considerations which would guide the exercise of that power have little relevance to the function which the magistrate is required to perform."