R v Horseferry Road Magistrates Court, ex p. Bennett (No. 1) [1993] UKHL 10

Bennett, a New Zealand citizen wanted for fraud offences in England, alleged he was kidnapped in South Africa and forcibly returned to the UK with the connivance of British police, bypassing extradition procedures. The House of Lords held that courts have power to stay proceedings as an abuse of process where authorities have disregarded extradition procedures.

Facts

The appellant, Paul James Bennett, a New Zealand citizen, was wanted by English police for alleged fraud offences committed in England in 1989 relating to the purchase of a helicopter. The police traced Bennett to South Africa but decided not to pursue extradition under section 15 of the Extradition Act 1989, as there were no formal extradition provisions between the UK and South Africa.

Bennett alleged that the English police colluded with South African police to have him arrested in South Africa and forcibly returned to England against his will. He claimed he was arrested by South African detectives, held in custody, placed on a flight ostensibly to New Zealand, restrained when he attempted to disembark at Taipei, returned to South Africa, and then flown to Heathrow where he was immediately arrested by Metropolitan Police officers. He further alleged this occurred in defiance of a South African court order.

The English police denied any collusion but admitted they had discussed with South African police the possibility of Bennett being returned via London and informed them he would be arrested on arrival at Heathrow.

Issues

The certified question was:

“Whether in the exercise of its supervisory jurisdiction the court has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if so what remedy is available if any to prevent his trial where that person has been lawfully arrested within the jurisdiction for a crime committed within the jurisdiction.”

Judgment

Lord Griffiths

Lord Griffiths, delivering the leading majority judgment, held that the courts should accept responsibility for maintaining the rule of law, which embraces a willingness to oversee executive action and refuse to countenance behaviour threatening basic human rights or the rule of law. He stated:

“If a practice developed in which the police or prosecuting authorities of this country ignored extradition procedures and secured the return of an accused by a mere request to police colleagues in another country they would be flouting the extradition procedures and depriving the accused of the safeguards built into the extradition process for his benefit. It is to my mind unthinkable that in such circumstances the court should declare itself to be powerless and stand idly by.”

Lord Griffiths echoed Lord Devlin’s words from Connelly v. Director of Public Prosecutions:

“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.”

He concluded that where process of law is available through extradition procedures, courts will refuse to try an accused who has been forcibly brought within the jurisdiction in disregard of those procedures by a process to which British police, prosecuting or executive authorities have been a knowing party.

Lord Bridge of Harwich

Lord Bridge agreed, emphasising the fundamental importance of the rule of law:

“There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself. When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of the laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of that circumstance.”

Lord Oliver of Aylmerton (Dissenting)

Lord Oliver dissented, arguing that criminal courts should not be concerned with the propriety of anterior executive acts that have no bearing on the fairness of the trial process. He stated that the public interest in prosecution and punishment of crime should not be defeated merely to manifest judicial disapproval of executive conduct.

Lord Lowry

Lord Lowry agreed with the majority, noting that a court has discretion to stay proceedings where it offends the court’s sense of justice and propriety to try the accused in the particular circumstances. He emphasised that the discretion must be exercised carefully and sparingly.

Lord Slynn of Hadley

Lord Slynn agreed with Lord Griffiths that it was not right in principle that when a person is brought within the jurisdiction in the alleged manner, the court should be incompetent to investigate the illegality and refuse to proceed to trial.

Implications

This case established that the High Court has supervisory jurisdiction to inquire into the circumstances by which a person has been brought within the jurisdiction. If satisfied that extradition procedures were disregarded with the participation of UK authorities, the court may stay the prosecution and order the accused’s release.

The decision represents an important extension of the abuse of process doctrine beyond matters affecting trial fairness to encompass the maintenance of the rule of law and proper respect for international law and extradition procedures. It affirms the judiciary’s role in overseeing executive action and refusing to countenance behaviour that threatens basic human rights or the rule of law, even where a fair trial could be conducted.

Verdict: Appeal allowed. The House of Lords set aside the Divisional Court’s order and declared that the High Court, in exercise of its supervisory jurisdiction, has power to inquire into the circumstances by which a person has been brought within the jurisdiction and, if satisfied it was in disregard of extradition procedures, may stay the prosecution and order the release of the accused. The case was remitted to the Divisional Court for further consideration.

Source: R v Horseferry Road Magistrates Court, ex p. Bennett (No. 1) [1993] UKHL 10