Scottish High Court of Justiciary Decisons

At advising on 1st June 1972 the opinion of the Court was delivered by the Lord Justice-General.

LORD JUSTICE-GENERAL (Emslie) .—This is a petition presented under the nobile officium to the High Court by one Wan Ping Nam, who has been committed as a fugitive offender to the prison of Barlinnie by the Sheriff at Greenock. The order so committing him was made under section 10 of the Extradition Act, 1870.The prayer of the petition in effect seeks relief by way of suspension of the committal order, it being alleged in the petition that it was unlawful, in respect that the petitioner is a British subject. It should be explained that by the Federal Republic of Germany (Extradition) Order, 1960, which gave effect to the subsisting Agreement between Her Majesty's Government and the Federal German Republic for the extradition of fugitive criminals, it is provided, inter alia, by Article IV of the First Schedule that no British subject shall be delivered up by the Government of the United Kingdom to the Government of the United Kingdom to the Government of the Federal Republic of Germany. It follows from these terms of the statutory instrument, under reference to section 6 of the Extradition Act, 1870, that, where the alleged criminal is a British subject, the Act does not apply in the case of the Federal Republic of Germany; and that no British subject is a person "liable to be apprehended and surrendered in manner provided by" the Act.

The background against which the petition falls to be considered is briefly as follows. In February 1972 the petitioner was a member of the crew of the motor vessel Taiping, registered in Bremen in the Federal Republic of Germany. This ship, which may be owned by the Island Navigation Company, Hong Kong, was then on charter to a West German company. While the ship was at sea, the chief steward, one Ho On Hing, was the victim of an incident, as the result of which he later died. On 11th February 1972, when the ship called at Campbeltown, the petitioner, who was suspected of the murder of Ho On Hing, was removed from the ship by the police. On 12th February 1972 he appeared on petition before the Sheriff at Campbeltown upon a charge of murder and was committed to prison for further examination. On 18th February 1972 the petitioner was committed to prison until liberated in due course of law. Subsequently, when it was ascertained that the crime with which the petitioner had been charged had been committed on the high seas, he was formally liberated by administrative action. He was, however, at once rearrested and the proceedings with which this petition is concerned were begun. These were proceedings under the Extradition Act, 1870.

Essentially what happened was that a warrant for the apprehension of the petitioner as a fugitive criminal was issued by the Sheriff at Greeenock acting under section 8 of the Extradition Act, 1870. An order from the Secretary of State was then presented to the Sheriff signifying that a requisition for the surrender of the petitioner under the Extradition Act, 1870, had been made by the Federal German Republic. Thereupon the Sheriff after a hearing on 3rd May 1972 committed the petitioner to the prison of Barlinnie pending his possible surrender to the Federal German Republic. It is against the order so committing him, which purported to be made under section 10 of the Act, that this petition is directed.

This petition was served upon the Minister of Justice of the Federal Republic of Germany, the Secretary of State for Scotland and Her Majesty's Advocate. At the hearing before us all three respondents were represented and the primary question for our decision was whether the relief sought by the petitioner was available at the hands of this Court.

It is clear from an examination of the Extradition Act, 1870(and the problem before us is not affected by any of the subsequent amendments to that Act) that it was contemplated that proceedings with a view to the extradition of a fugitive criminal would normally be before a police magistrate in England. Indeed the statute is couched in language which plainly has the jurisdiction and the procedure of the English Courts primarily in mind. In particular, section 10, which deals with the stage of committal of the alleged fugitive criminal to prison, is in the following terms:

"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 (subject to the provisions of this Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged …

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If he commits such criminal to prison, he shall commit him to the Middlesex House of Detention, or to some other prison in Middlesex, there to await the warrant of a Secretary of State for his surrender, and shall forthwith send to a Secretary of State a certificate of the committal, and such report upon the case as he may think fit."

Where a person has been committed under section 10, the procedure under section 11 then comes into play. This section, which deals with the surrender of the fugitive criminal upon a warrant granted by the Secretary of State, opens thus:

"If the police magistrate commits a fugitive criminal to prison, he shall inform such criminal that he will not be surrendered until after the expiration of fifteen days, and that he has a right to apply for a writ of Habeas corpus."

From what we have said so far it is plain that, had the petitioner been committed to prison by a police magistrate in England, relief by way of application to the Court for a writ of habeas corpus would have been available to him. As we understand it, this prerogative writ provides, in England, the means by which unlawful detention can be brought to an end by the High Court. It need hardly be said that it does not run in Scotland and is wholly unknown to our law.

We come now to section 16 of the Act, which deals with extraditable crimes committed on the high seas. So far as is relevant to the problem before us, it is in the following terms:

"Where the crime in respect of which the surrender of a fugitive criminal is sought was committed on board any vessel on the high seas which comes into any port of the United Kingdom, the following provisions shall have effect:

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1. This Act shall be construed as if any stipendiary magistrate in England or Ireland, and any sheriff or sheriff substitute in Scotland, were substituted for the police magistrate throughout this Act, except the part relating to the execution of the warrant of the police magistrate:

"2. The criminal may be committed to any prison to which the person committing him has power to commit persons accused of the like crime:…" It is as the result of these provisions of section 16 that the Sheriff at Greenock came to commit the petitioner to prison under section 10 of the Act.

When, however, section 11 is construed as provided by section 16, paragraphs 1 and 2, it will be seen at once that the only form of relief expressly mentioned as being available to a person who has been committed by a Sheriff under section 10 is one which is unknown to the law of Scotland. In this situation, and since the statute, read as a whole, provides no means whereby a person committed by a Sheriff in Scotland can seek his release from detention under an unlawful order purporting to be made under section 10, the question is whether this Court can and should, under its inherent power to prevent injustice, supply the apparent omission in the Act by affording a remedy to the petitioner. It is to be noted in passing that this is not the only point at which, in the statute, there is an omission to deal with the consequences of a committal order pronounced in Scotland. There appears indeed to be a similar omission as regards Scotland in the procedure provided by section 12 for the discharge of persons committed but not surrendered within two months. By section 17 (4) Parliament expressly recognised the need to secure that this power of discharging a criminal should be available to a judge of any Court exercising, in a British possession, the like powers as the Court of Queen's Bench exercises in England. As in the case of section 11, however, the Act gives no recognition to the contingency that a fugitive criminal may have been committed under section 10 within the jurisdiction of the Courts in Scotland.

The answer to this question depends essentially upon the intention of the Act. In our opinion the intention that relief shall be available to all persons committed under section 10 is plain. This we discover from the express reference to habeas corpus procedure in section 11. In any event we cannot discern in the statute any indication of an intention that persons committed by a Sheriff in Scotland should be in any less advantageous position than those committed by a police magistrate in England. In these circumstances we are in no doubt that, the statute having disclosed the intention, this Court has ample power to provide what the statute has omitted to provide, namely, the means of giving effect to that intention. As we were reminded recently in the case of Wylie and Another v. H. M. Advocate (at p.151), "This Court, of course, is not a mere creation of recent statutes; it has, as Alison, Criminal Law of Scotland, volume II, page 23, states ‘the exclusive power of providing a remedy for all extraordinary or unforeseen occurrences in the course of criminal business, whether before themselves, or any inferior Court. Akin to the well-known nobile officium of the Court of Session, is a similar power enjoyed by the Justiciary Court…’ Moncreiff on Review in Criminal Cases, page 264, states: ‘In addition to its powers of review, the High Court of Justiciary, as the supreme Court in criminal matters, has, in respect of its nobile officium, the power of interfering in extraordinary circumstances, for the purpose of preventing injustice or oppression, although there may not be any judgement, conviction, or warrant brought under review.’ The same proposition is to be found in Macdonald on Criminal Law, at page 193." In our opinion, the circumstances of this case to which we have drawn attention are, on any view, extraordinary and we are satisfied that in the exercise of the nobile officium this Court may properly examine the allegation of injustice made by the petitioner, and suspend the order under which the petitioner is committed, if it should be established that it is unlawful in the respect set out in the petition.

On the whole matter we shall order the respondents to lodge answers to this petition, if so advised, within seven days, when the case will be put out by order for further procedure. This procedure may involve inquiry into the petitioner's claim to be a British subject. Any necessary inquiry will take place before one of our number. In so saying we observe that a similar claim was investigated de novo, in England, by the Court itself, in the case of In re Guerin.