Regina v Secretary of State for the Home Department; Ex parte Launder

The House of Lords allowed the Secretary of State's appeal against a Divisional Court order quashing a surrender warrant. The court held that the Secretary of State had applied the correct legal test under section 12(2) of the Extradition Act 1989 (whether it would be "unjust or oppressive" to order return) and had given careful consideration to the representations about the position in Hong Kong after 1 July 1997. The decision-maker was entitled to rely on the Joint Declaration and the Basic Law as part of the assessment, provided he addressed the narrower question whether this particular individual's rights would be put at real risk; that narrower question had been asked and answered rationally. The court required anxious scrutiny where life or liberty were at stake, but found no procedural impropriety, illegality or irrationality in the Secretary of State's decisions. It also held that Community law did not bar extradition in the ordinary way and that Convention rights were relevant to, and had been considered in, the Secretary of State's assessment.

This was an appeal from the Divisional Court's quashing of a warrant under section 12(1) of the Extradition Act 1989 ordering the return of Ewan Quayle Launder to Hong Kong to face corruption charges. The respondent had been committed by a magistrate and challenged the Secretary of State's decision by way of judicial review. The Divisional Court allowed one limb of his challenge (the "China Point") and remitted the matter to the Secretary of State; this appeal followed.

The issues before the House were:

• whether the Secretary of State's exercise of his discretion under section 12(1) was justiciable and, if so, whether it was tainted by procedural impropriety, illegality or irrationality;
• whether the Secretary of State had wrongly treated compliance by the People's Republic of China with treaty obligations as non-justiciable or had fettered his discretion by failing to address the individual risk to the respondent;
• whether specialty protection required by section 6(4) of the Extradition Act 1989 would be in place after the 1997 handover and whether any gap vitiated the decision;
• whether European Community law or the European Convention on Human Rights provided a route to resist the surrender.

The House examined the factual and legal materials the Secretary of State had considered, including the Sino-British Joint Declaration and the Basic Law, and the extensive representations and affidavits lodged on the respondent's behalf alleging risk of unfair trial and inhumane punishment after the handover. The Lords held (i) the Secretary of State had asked the correct question under section 12(2) — whether it would be unjust or oppressive to return this individual — and had given careful consideration to the respondent's individual circumstances; (ii) it was not unlawful or irrational for him to take into account the Joint Declaration and Basic Law as part of that assessment; (iii) where life or liberty may be at risk the decision requires anxious scrutiny, but on the material before the Secretary of State his conclusion was not unreasonable; (iv) the specialty protection arrangements were likely to be in place by the handover and the perceived gap about re-surrender to the P.R.C. did not show that the earlier decisions were vitiated; and (v) Community law did not fetter extradition in the way urged and Convention rights were properly part of the material to be assessed by the Secretary of State, but did not, on these facts, require a different outcome.

Appeal allowed. The House concluded that the Secretary of State had applied the correct legal test under section 12(2) of the Extradition Act 1989, had given careful and proper consideration to the respondent's individual circumstances (including Convention arguments), and had not acted irrationally or unlawfully in ordering surrender. The Divisional Court's quashing of the warrant was therefore set aside.

The respondent was committed by a magistrate under the Extradition Act 1989. He applied for habeas corpus (dismissed by Divisional Court on 14 December 1994) and the Secretary of State issued a surrender warrant on 31 July 1995 (confirmed 21 December 1995). The Divisional Court of the Queen's Bench Division (Henry L.J. and Ebsworth J.) on 6 August 1996 quashed the warrant on one ground (the "China Point") and remitted the matter to the Secretary of State. The Secretary of State appealed to the House of Lords; this judgment allowed that appeal. (Neutral citation for this House of Lords judgment: [1997] UKHL 20.)