VB & Ors v Westminster Magistrates [2014] UKSC 59

Four individuals sought by Rwanda for genocide-related crimes appealed against refusal to permit closed material procedures in extradition proceedings. The Supreme Court dismissed the appeals, holding extradition judges have no power to hear evidence withheld from the requesting state, though anonymous witnesses may be permitted.

Facts

The Government of Rwanda (‘GoR’) sought the extradition of four individuals (VB, CU, CM and EN) to stand trial in Rwanda for crimes allegedly committed during the 1994 civil war. Memoranda of Understanding dated 8 March 2013 were entered between the UK and Rwanda, and the Secretary of State issued a certificate under section 194 of the Extradition Act 2003, engaging Part 2 of the Act. A previous 2007 request had been refused by the High Court in 2009 on grounds of a real risk of a flagrant denial of justice. Since then, various national and international courts had held that fair trial was possible in Rwanda following reforms.

Before District Judge Arbuthnot, the appellants sought to adduce evidence from witnesses in Rwanda who were said to be too frightened to allow their identity or evidence to be disclosed to the GoR. They applied for a closed material procedure, alternatively for a non-disclosure order limiting disclosure to the CPS. The District Judge, having read files of proposed evidence, accepted for the purposes of argument that the material was important and relevant but held herself bound by authority (notably Al Rawi) to refuse the application. The Administrative Court dismissed judicial review of that decision but raised the possibility of witness anonymity orders under section 87 of the Coroners and Justice Act 2009.

Issues

The Supreme Court had to decide:

• Whether, absent statutory power, a district judge in extradition proceedings under Part 2 of the 2003 Act may use a closed material procedure to receive evidence adduced by the person whose extradition is sought, but withheld from the requesting state.
• Whether, alternatively, the judge may make an irrevocable non-disclosure order allowing disclosure only to the CPS but not to the GoR.
• Whether section 87 of the Coroners and Justice Act 2009 applies to extradition proceedings so as to permit witness anonymity orders, and if not, whether anonymous witness evidence is otherwise receivable.

Arguments

Appellants

Mr Alun Jones QC and Mr Edward Fitzgerald QC submitted that extradition proceedings are sui generis, not classic criminal proceedings, and that under the previous statutory scheme the Secretary of State could consider material not seen by the requesting state – a function inherited by the courts under the 2003 Act. They argued for a third exception to the Al Rawi principle of open inter partes justice, or alternatively by analogy with W (Algeria) v Secretary of State for the Home Department [2012] UKSC 8, that disclosure could be limited to the CPS. Mr Fitzgerald argued that anomaly would arise if non-British appellants could raise the evidence in later asylum proceedings while British-citizen appellants could not.

Respondents

The GoR and CPS submitted that the 2003 Act creates a tightly delineated statutory scheme, that extradition proceedings are criminal proceedings of a special kind subject to ordinary rules of evidence save in recognised areas (extraneous considerations, human rights and abuse of process), and that no basis existed for creating a new exception to the principle of open inter partes justice.

Judgment

The Supreme Court unanimously dismissed the appeals on the closed material procedure issue (Lord Toulson dissenting on the outcome). Lord Mance (with whom Lord Neuberger and Lord Reed agreed) held:

• The 2003 Act creates a specific structure closely delineating the respective roles of the Secretary of State and the courts. The courts did not inherit any wider powers the Secretary of State previously possessed.
• Extradition proceedings are, following R v Governor of Brixton Prison, Ex p Levin [1997] AC 741, criminal proceedings of a very special kind, and section 77(1) of the 2003 Act naturally embraces both evidence and procedure.
• Relaxation of ordinary evidential rules on issues of extraneous considerations, human rights and abuse of process (as recognised in Schtraks, Lodhi and Hilali) is better analysed as a broad approach to expert evidence, and does not extend to authorising a closed material procedure.
• Tollman No. 1 did not assist: it concerned putting a requesting state to its election where a prima facie case of abuse was shown, not permitting a defendant to adduce material without disclosure to the requesting state.
• The two exceptions to open justice recognised in Al Rawi (child welfare and intellectual property) were inapplicable. The appellants’ submissions assumed what they sought to prove – that closed material would be relevant, truthful and persuasive – which could not be tested. There was no true ‘triangulation of interests’ as in Roberts.
• W (Algeria) was distinguishable: SIAC had express statutory power; Algeria was not a party; here Rwanda is a party with a direct interest, and the district judge has no equivalent statutory power.
• The possibility that non-British appellants might later obtain more favourable procedures in asylum proceedings did not distort the clear conclusions on extradition.

On section 87 of the 2009 Act, Lord Hughes (with whom Lord Neuberger and Lord Reed agreed) held that the Act does not apply to extradition proceedings: extradition is not a prosecution; the CPS acts as agent for the requesting state; there is no ‘prosecutor’ within the meaning of the Act; and the definitions of ‘defendant’ and ‘court’ do not naturally cover extradition hearings. However, the inherent power of the court to receive evidence from anonymous witnesses, endorsed in R (Al-Fawwaz) v Governor of Brixton Prison [2001] UKHL 69, survives and may be exercised by analogy with the safeguards in the 2009 Act, provided the proceedings remain fair.

Lord Toulson’s dissent

Lord Toulson would have allowed the appeals, holding that the least unjust course was to recognise an exception to Al Rawi so that the district judge could examine the evidence in closed session. He considered the alternative – forcing appellants into later asylum proceedings – to be unsatisfactory, causing delay, potential inconsistency and unjustifiable discrimination against the British-citizen appellant.

Implications

The decision confirms that extradition proceedings under Part 2 of the 2003 Act are criminal proceedings of a special kind, governed by a tightly structured statutory scheme. It reinforces the principle in Al Rawi that closed material procedures require statutory authorisation and cannot be created by the courts to accommodate defendants seeking to adduce evidence withheld from a requesting state which is a party to the proceedings.

The judgment clarifies that established relaxations of evidential rules in extradition (on extraneous considerations, human rights and abuse of process) do not extend to authorising closed material procedures or non-disclosure orders binding the requesting state. W (Algeria) is confined to its particular statutory and factual context.

Importantly, the Court confirmed that anonymous witness evidence may be received in extradition proceedings under the court’s inherent power, exercised cautiously and by analogy with the safeguards of the Coroners and Justice Act 2009. Extradition judges should ordinarily require the fullest disclosure of identity to the court itself, be satisfied of a genuine need for anonymity, and consider the extent to which the other party can meaningfully challenge the evidence. Anonymity may be more readily permitted on section 81/87 issues than on prima facie case, and more cautiously where tendered by the requesting state.

The Court left open, as unresolved, whether asylum or human rights claims may be pursued after an extradition order, and whether a W (Algeria)-style non-disclosure order might be available in such subsequent proceedings. The decision is significant for extradition practitioners, requested persons and requesting states, delineating the procedural limits within which fair trial concerns must be assessed at the extradition stage.

Verdict: The appeals were dismissed by a majority (Lord Neuberger, Lord Mance, Lord Reed and Lord Hughes; Lord Toulson dissenting). The Supreme Court held that a district judge conducting extradition proceedings under Part 2 of the Extradition Act 2003 has no power to adopt a closed material procedure or to make an irrevocable non-disclosure order restricting disclosure to the CPS. Section 87 of the Coroners and Justice Act 2009 does not apply to extradition proceedings, but the court retains an inherent power to receive anonymous witness evidence, exercised by analogy with the safeguards of that Act where fairness permits.

Source: VB & Ors v Westminster Magistrates [2014] UKSC 59