Cuoghi v Governor of Brixton Prison

Extradition proceedings are a criminal cause or matter for the purposes of section 18(1)(a) of the Supreme Court Act 1981. The same character attaches to habeas corpus proceedings arising from extradition and to ancillary applications for evidence intended for use in those proceedings. A statutory application under section 11(3) of the Extradition Act 1989 cannot be separated from the comprehensive extradition process merely because it raises a discrete issue, uses civil procedural rules, or carries a civil burden of proof. The relevant question is the nature and character of the proceedings as a whole, including their purpose and their connection with bringing an accused person to trial. Accordingly, no appeal lies to the Civil Division of the Court of Appeal from the relevant High Court judgment.

The Government of Switzerland sought the appellant’s extradition on fraud charges. Following committal under section 9(8) of the Extradition Act 1989, the appellant applied for habeas corpus and relied on section 11(3)(c), contending that return would be unjust or oppressive.

For the purpose of obtaining evidence, Forbes J issued letters of request under section 3 of the Criminal Justice (International Co-operation) Act 1990. Carnwath J later set that order aside, holding that section 3 did not extend to an offence committed abroad, and declined to issue a letter of request under Order 39, rule 1 of the Rules of the Supreme Court. Leave to appeal was granted, but the Court of Appeal directed that its jurisdiction be determined as a preliminary issue.

1. The application was dismissed with costs. The Civil Division had no jurisdiction to entertain the appeal, and leave to appeal was refused.
2. Per Lord Bingham CJ, extradition proceedings fall within the expression “criminal cause or matter” in section 18(1)(a) of the Supreme Court Act 1981. This was accepted by the appellant and was supported by In re Levin.
3. An application for habeas corpus in extradition proceedings has the same character. The Court followed the reasoning in Ex parte Alice Woodhall, which treated the nature and subject matter of the underlying proceedings as decisive. That approach had been followed or approved in R v Governor of Brixton Prison, ex parte Savarkar, R v Garrett, ex parte Sharf, Provincial Cinematograph Theatres Ltd v Newcastle-upon-Tyne Profiteering Committee and Amand v Home Secretary and Minister of Defence of Royal Netherlands Government.
4. Section 11(3) of the Extradition Act 1989 forms part of Part III’s comprehensive code governing extradition between Convention countries. It was artificial to isolate that provision and give it a different legal character because it determined a discrete issue, placed the burden on the applicant, or was governed by civil procedural rules.
5. Orders concerning evidence for a habeas corpus application were also criminal matters. The application was ancillary to criminal extradition proceedings; Bonalumi v Secretary of State for the Home Department supported treating evidence orders for foreign criminal proceedings as criminal; and the international mutual-assistance context reinforced that conclusion. The purpose of the application, its role in bringing the accused to trial, and its potential effect on the trial all pointed to the same result.

• Court of Appeal: dismissed the application with costs, holding that it had no jurisdiction to entertain the appeal; leave to appeal was refused.
• High Court, Queen’s Bench Division: Carnwath J set aside Forbes J’s order for letters of request and declined to issue a letter under Order 39, rule 1 of the Rules of the Supreme Court. The judgment was given on 22 May 1996; no citation is stated.