R v Horseferry Road Magistrates Court, ex parte Bennett (No. 1)

The House of Lords held that the High Court, in the exercise of its supervisory jurisdiction, has power to inquire into the circumstances by which a person was brought within the jurisdiction and, if satisfied that the person was brought in disregard of extradition procedures and that domestic authorities were a knowing party to that conduct, may stay the prosecution and order the release of the accused. The decision recognises and limits the doctrine of abuse of process to cover serious executive misconduct in procuring an accused's presence where extradition procedures were available but were deliberately disregarded.

The Lords distinguished the narrower abuse of process powers exercised by magistrates in relation to domestic trial fairness from the wider supervisory jurisdiction of the High Court to uphold the rule of law where the executive has engaged in or colluded in unlawful international removals.

The appellant, a New Zealand citizen, alleged that he was arrested in South Africa and was forcibly returned to the United Kingdom with the connivance of British authorities after the police had decided not to pursue formal extradition under the Extradition Act 1989 (notably section 15). He sought judicial review of committal proceedings, arguing that the courts should enquire into the circumstances by which he had been brought within the jurisdiction and, if improper, prevent his trial.

The Divisional Court had held that it lacked power to inquire into the antecedent circumstances of the appellant's arrival and dismissed the application; the Divisional Court certified the question whether the High Court had power, in its supervisory jurisdiction, to inquire into how a person was brought within the jurisdiction and what remedy was available if the person had been lawfully arrested within the jurisdiction.

The House of Lords considered (i) whether courts may enquire into and remedy executive conduct that procures an accused's presence contrary to available extradition procedures, (ii) the scope of "abuse of process" and the proper forum to consider such complaints, and (iii) the appropriate remedies. The Lords reviewed competing authorities (including Ex parte Mackeson, Ex parte Driver, and authorities from other jurisdictions such as S v Ebrahim and United States decisions) and statutory context (including the Extradition Act 1989 and PACE s.78).

The majority concluded that where extradition procedures were available and the executive (police or prosecuting authorities) knowingly participated in or encouraged a forcible return in disregard of those procedures, the High Court has power to enquire and, if satisfied, to stay the prosecution and order release. The remedy is discretionary, to be sparingly exercised, and appropriate in order to uphold the rule of law; magistrates should generally adjourn to permit the Divisional Court to consider such issues.

Appeal allowed. The House of Lords declared that the High Court has power in its supervisory jurisdiction to inquire into the circumstances by which a person has been brought within the jurisdiction and, if satisfied that extradition procedures were disregarded and the domestic authorities were knowingly party to that conduct, may stay the prosecution and order the accused's release. The exercise of the power is discretionary and to be sparingly used; magistrates should defer to the Divisional Court on such grave issues.

Appeal from the Divisional Court of the Queen's Bench Division which on 31 July 1992 had held that the court had no jurisdiction to inquire into the circumstances by which the appellant was brought within the jurisdiction and dismissed the judicial review application; the House of Lords ([1993] UKHL 10) allowed the appeal and remitted the cause to the Queen's Bench Division for further consideration consistent with the Lords' judgment.