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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Calder, Re Application for Judicial Review [2005] ScotCS CSOH_125 (20 September 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_125.html Cite as: [2005] ScotCS CSOH_125, [2005] CSOH 125 |
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Calder, Re Application for Judicial Review [2005] ScotCS CSOH_125 (20 September 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 125 |
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P614/05
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OPINION OF LORD McEWAN in the petition of DAVID JOHN CALDER Petitioner; for JUDICIAL REVIEW OF THE EXTRADITION ACT 2003 (DESIGNATION OF PART 2 TERRITORIES) ORDER 2003 (S.I. 3334)
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Petitioner: Bovey, Q.C., Mrs Hughes; Drummond Miller, W.S.
Respondent: Moynihan, Q.C., Ms Crawford; Office of the Solicitor to the Advocate General
20 Sepember 2005
[1] Mr Calder lives in Aberdeen. He has the misfortune to be a man wanted by the authorities in the United States. They have applied to the relevant Scottish Court for his extradition to face criminal charges in California. The offences relate, I was told, to sending certain chemicals to the United States from which the "date rape" drug can be made. At present the matter is before a Sheriff in Edinburgh and is adjourned to await a decision in this case. [2] The judicial review before me concerns a Treaty and proceedings in Parliament. I am asked to declare that certain proceedings in Parliament are ultra vires. The matter arises in this way according to the Petition. Following a review of Extradition in general, which is governed in this country by various Treaties, Statutes and other arrangements, a four-tiered extradition framework was proposed ranging from simple fast track procedure to more complex arrangements. Countries were to be designated into different categories by Order in Council. Safeguards would be provided and Human Rights respected. Following from this a new bilateral treaty was concluded between the United Kingdom and the United States of America with whom we process most of our extradition cases. The Treaty was signed at Washington on 31 March 2003 and had to be ratified (Article 23). It would then supersede earlier treaties. [3] However, in order to give effect to all the new extradition arrangements Parliament passed the Extradition Act 2003 which came into force on 1 January 2004. The Act does not refer to the Treaty, or indeed any Treaty, and is not in any way dependent on it or them. It introduces the concept of "designation", that being done by Order in Council. Such Orders are governed by section 233 and require "(5) ... a draft (to be) laid before Parliament and approved by a resolution of each House ..." (the affirmative resolution procedure). [4] Against this background the Petitioner's complaint, in short, is this. Under the former procedure in the earlier 1972 Treaty he could not be extradited unless inter alia evidence was put before the Sheriff sufficient under our law to justify his committal for trial. Now under the new Act all the Sheriff has to look at is "information" presented to him. This is valid both for the arrest and the hearing. The detail of this is narrated and does not matter for present purposes. It is the loss of the "sufficient evidence" test to justify the warrant or, later, to make a case to answer which is the complaint. What the Petitioner further alleges is that in moving the Order in Council the Minister misdirected himself and led the House to believe that the new Treaty would shortly be ratified by the U.S. Senate. The pleas-in-law say that this was an irrational act and the Order ultra vires. A restricted remedy was sought as will be seen in counsel's argument and now only relates to the step in procedure where there is a hearing before the Sheriff. [5] In opening Mr Bovey said that he was going to challenge the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (S.I. 3334) applying sections of the Act to the United States. However, at the outset he intended to restrict his challenge in Paragraph 3 of the Petition to declarator and reduction only to the extent of section 84(7). [6] Here the requesting note was dated 25 August 2004 some eight months after the Act and Order came into force on 1 January. Counsel then compared and contrasted the differing provisions of the 1972 Treaty with that of the 2003 Treaty, pointing out that the sufficiency test under the former summary proceedings was an important safeguard; and how before the extradition could take effect there were a number of hurdles to overcome. He then posed the question of whether the new Act and its Order had any life independent of the Treaty? [7] The essence of extradition, he said, was mutuality. That consideration was not before the Home Secretary when he made the Order and as a result the United States got everything it wanted without having to ratify. They did not have to show any "sufficiency" of evidence. The United Kingdom in a reverse question with them, would have to. That showed the Treaty was lopsided. Obligations did not have to be identical provided they were mutual. [8] He then looked at the history of Extradition beginning with the 1870 Act. He referred to section 2, and how "arrangements" had to exist. Then came the Extradition Act, 1989 where once again the idea of arrangements both general and special were found. He referred me to sections 3, 4, 15 and 31. The new Act in 2003 was not couched by any reference to Treaties. Category 2 territories were governed by Part 2 of the Act. There had to be a request under section 70(3). A valid request results in a certificate and both are issued to the appropriate judge. Before a warrant to arrest can be given the judge must have "evidence" (section 71(2) and (3)) to justify. However, a designated category 2 territory (here the United States) only has to provide "information". In Scotland the appropriate judges are certain designated Sheriffs of the Lothian and Borders (section 139). There has to be a summary hearing (section 76 and 77) and the offence has to be an extradition offence. Such conduct both within and outwith the category territory is described in section 137. Broadly speaking it has to be conduct punishable in both the U.K. and the category territory. Counsel argued that this has always been a principle of law. [9] Sections 79 to 83 give certain bars to Extradition. Then comes section 84 which in subsections (1) and (7) shows that the Sheriff does not consider evidence but does have to consider Human Rights (section 87). If the request passes all these tests it goes to the Minister to decide. Even at this stage there are certain bars (section 93) e.g. the death penalty and speciality. There is also an appeal provision. [10] Mr Bovey went on to stress and complain that there were no arrangements for speciality here. That, he said, was the cornerstone of mutuality. You could not be prosecuted except for the offence certified. I was also referred to a Review of Extradition Law and the motives for change in 2003. [11] Counsel then referred me to a number of authorities, beginning with R. v Governor of Brixton Prison ex parte Soblen [1963] 2 Q.B. 243 at 299 to 302. He maintained in that case that deportation had been used to avoid the problems of extradition. In the same way, he said this order went further than the earlier Treaty and was beyond the powers of the Act. Next was R. (Javed) v Secretary of State for the Home Department [2002] Q.B. 129. After quoting most of the case counsel said it was authority for the proposition that the Courts could review the legality of subordinate legislation, and although political decisions could not be challenged, where Parliament had been deceived and there was a demonstrable error review was possible. He stressed the Human Rights aspect of his client's position and maintained that he could face 20 years in prison. Where a Minister had in a statement fettered his discretion the Courts could also interfere. The authority for that was R. v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 A.C. 513. He quoted pages 546-553 and 571-575. Finally he referred me to East Kilbride Development Corporation v Secretary of State for Scotland 1995 S.L.T. 1238 at 1244 and 1247; and to West v Secretary of State for Scotland 1992 SC 385 at 413 C. [12] Mr Bovey concluded his arguments by referring to some of the Parliamentary materials produced to me as excerpts from Hansard. From these debates it is clear that a number of politicians did not like the Treaty and regarded it as unequal. The tension between reciprocity and the Treaty benefits are seen for example in the Commons Standing Committee on Delegated Legislation 15 December 2003 col. 27. The explanation for the Order is seen in the Lords Debate of 16 December 2003 col. 1062 onwards especially 1070 and 1071; and on 12 January, col. 252. Counsel said that the mutuality in the 1972 Treaty was lost when the Order was made. The basis on which it had been lost was the erroneous one that the Government thought the United States would ratify the Treaty. To grant the remedy sought would still allow extradition to the United States but with a sufficiency test. The United States would simply be in a category with other countries where evidence was needed e.g. India and Hong Kong (section 84(1). [13] Counsel for the respondents moved me to dismiss the Petition under reference to his first and second pleas-in-law. The question he said was a simple one viz. should the Sheriff assess sufficiency as well the other safeguards. There were 48 countries with the "no evidence" privilege, some in Part 1 and others in Part 2; and it was a Government decision approved by both houses that the United States be one of them. That decision was made and approved in December 2003 knowing that the Act would commence on 1 January 2004; knowing also that the Treaty had not been ratified and for a period the Act would be in force here without the Treaty being in force. If the Government and Parliament knew these matters and went ahead that could not be questioned. One had to ask whether the United States could be a "no evidence" country without the Treaty being in force. The answer was in the affirmative and the whole matter was a political question, not one for the Courts. There was no suggestion that Parliament had been misled, and the decision on the day had to be viewed in the light of the knowledge at the time. It may be that the expectations of the U.S. ratification were over-optimistic but that did not render them invalid. There need have been no concern about when the Treaty came into force because only the Statute created the "no evidence" rule. The debate on the Order was all about the United States. Affirmative procedure was needed; hence the vote. [14] Counsel then demonstrated by reference to section 1, 69, 73, 74 and 223 how designation and selection were achieved and (in certain causes) the number of days within which the evidence had to be produced. Category one countries (23 of them) operated the European Arrest Warrant. Category two countries numbered 92, but, of these, 25 had the "no evidence" privilege and the remainder required evidence. For some further different countries other arrangements were made under section 193 or ad hoc. [15] Counsel also noticed the "speciality" rule, a term of art introduced in the 1972 Treaty. Reverting to the main argument he continued by saying the Order designated the various countries and introduced a differential standard. It was not possible, as the Petitioner wanted, to seek partial reduction of what Parliament had done. The Court could not question the Minister or Parliament's view on the quality of justice in the United States. In any event there was no evidence with the Petition to raise the question let alone answer it; and in any case the Court should be reluctant to question the judgement of Parliament. An examination of the debate showed that the Minister had asked herself the correct question. The date of the Treaty being in force was a subsidiary question. Everyone knew the Act would be in force before the Treaty, and the crucial question was confidence in the United States. The stark question before the House was to approve or not. It could not amend. That put the Court in the curious position of being asked to partially exclude the United States, a thing which even Parliament could not do. [16] Mr Moynihan looked at some of the authorities. He relied on Javed especially at pages 148-9 where it was clear that the debate did not exhaust the issue, and the Minister had no rational reason to be satisfied about persecution. Soblen he said was not in point. In the Fire Brigade case the Minister had defied Parliament and fettered his discretion. Here there were no fetters except in relation to Capital Punishment. The East Kilbride case was quite different and was in any event pre Javed. [17] Counsel then looked at the wider implications of the Treaty. It could not influence Statute directly unless it was incorporated as some Treaties were (e.g. the Human Rights Convention). There were no conditions upon the Minister making the Order and it was not said in the Petition that she had taken leave of her senses or tried to deceive the House. There was no such material here to address this question. While the subject of Extradition over the years had taken different forms from earliest days the latest Act did things differently. The procedures and the protections were all in primary legislation. Because there were now so may countries there was a need for standardisation, designation and Parliamentary approval. [18] The argument about mutuality and reciprocity revealed a fundamental misunderstanding. Even if the Treaty had been in force there was a mismatch. While the United Kingdom dispensed with the need for evidence for the United States they could not reciprocate since their Constitution needed "probable cause". There was nothing inherently wrong with our Parliament deciding that for people in the United Kingdom the safeguards described were enough without asking the United States to demonstrate a "prima facie" case. It was known the arrangements would not be reciprocal. [19] Accordingly on 16 December 2003 there had been no misrepresentation and the designation of the United States was a political issue whose reasonableness was scrutinised by Parliament itself. The Court could not and should not give a reverse answer to what Parliament had done. The very exacting standards set forth in Javed had not even been asked. [20] I now turn to look at the cases beginning with the Court of Appeal decision in Soblen. The facts were these. Soblen had been convicted by a Court in the United States of spying for the Soviet Union. He was allowed bail and his various appeals against conviction and sentence of life imprisonment failed. He then flew to Tel Aviv using a false passport and on arrival the Israeli authorities flew him to Athens where he was put on an El Al flight via London to the United States. On the flight he inflicted knife wounds on himself and at London Airport was taken from the plane to hospital. A deportation order was served on him and subsequently (pp. 249-50) various other notices requiring his removal. At the court hearing Soblen sought to recover documents containing representations made by the United States for his return. The Minister refused to disclose these. The Deportation Order was made under the Aliens Order 1953. It authorised any carrier to remove him to the U.S.A. By his writ of habeas corpus the applicant challenged the deportation order on various grounds. It was said inter alia that the Crown were seeking to use deportation as a means to extradite him for a non-extraditable offence. The applicant had done nothing here to merit deportation. It was said the Home Secretary was not acting in good faith. [21] The decision in the case was quite clear. An argument that the 1953 Order was ultra vires was dismissed as unstateable (Lord Denning 297). The matter of deportation to his country of origin was for the Home Secretary and his decision could not be questioned in the Courts unless it was taken in bad faith. On the evidence no such case had been made out. [22] In my view the case is of no assistance in the present dispute. It does not concern the will of Parliament. It did concern the discretion of a Minister on an individual case which, on its facts, had no merit. As page 310 Donovan L.J. said this:"... what evidence is there for the allegation that the Home Secretary never genuinely came to the conclusion that it was conducive to the public good to deport the applicant? Here the applicant relies again on the facts I have already narrated. But the evidence the other way is indeed formidable. In the first place he gained admittance by a stratagem which relied for its success on the humanity of our immigration officials. That reliance was justified in the event, and the success of the stratagem has produced for the home authorities an extremely troublesome problem, and, as it now transpires, substantial expense for the taxpayer. I venture to think it would be the duty of the Home Secretary in the interests of the public to do whatever he could to prevent such a stratagem from achieving its ultimate end, lest its success should set a precedent for others to copy ...".
Then referring to the fact that the United States was an ally he added that:
"... each (country) may well think it conducive to the public good of their own citizens that they should co-operate to see that a national of one of them, who gives defence information to a common potential enemy, should not escape the consequences inflicted upon him by due process of law ...".
I wish to add one postscript. The arguments before me raised sharply the doctrine of the separation of the powers. That had its eighteenth century beginnings in England where the delicate balance in the scales between Parliament and the Judges was the envy of the civilised world; it was slowly eroded in the nineteenth and twentieth centuries due to history, war and events. Dicey and many others eloquently wrote of it. The balance swung against the Courts but in recent years with judicial review and now Human Rights the Courts especially in England have tried slowly to redress the balance. How this doctrine will fare in the "new" Scotland with its own Executive remains to be seen. The case in front of me really affects the United Kingdom. In view of what I have said in this case in the preceding pages I can add not a scruple to the Judges' side of the scales.
In the result I shall repel the petitioner's plea-in-law; sustain both the respondent's pleas-in-law; refuse the orders sought and dismiss the petition.
