Fernandes & Ors v HM Prison Brixton & Anor

Extradition committal proceedings are not a trial. A District Judge may protect a vulnerable complainant from cross-examination where it would involve testing credibility or sexual history prematurely and would risk pre-empting the trial court. The statutory extradition test remains whether the evidence would make a case requiring an answer if the proceedings were a summary trial.

PACE 1984 Code C is confined to investigations of domestic criminal offences and does not govern evidence obtained abroad for extradition. Sections 76 and 78 may nevertheless have limited application. Exclusion at the committal stage is appropriate only in very unusual cases, including evidence obtained in a way that would outrage civilised values. The reviewing court should respect the District Judge’s evaluative judgment.

The three applicants sought habeas corpus after a District Judge committed them on bail to await the Secretary of State’s decision on extradition to the Bahamas. They were accused of unlawful sexual intercourse with a girl under 16 on a Bahamian cruise ship.

The applicants challenged the coexistence of two authorities to proceed, the refusal to permit cross-examination of the complainant, the refusal of an adjournment for DNA testing, and the admission of interviews conducted by the ship’s security director. The central issues concerned the statutory extradition test, the scope of the District Judge’s powers, and the application of PACE 1984 and Code C.

1. Disposition. All three applications for habeas corpus were dismissed. The District Judge had jurisdiction to proceed on the authorities to proceed. It was immaterial whether the Secretary of State could withdraw one authority, provided the basis on which the court was to proceed was clear. The alleged conduct could satisfy the intra-territorial or extra-territorial definitions of an extradition crime under the Extradition Act 1989.
2. Cross-examination. Extradition proceedings are a contingent preparation for trial, not a trial. The District Judge has power to control cross-examination and may have regard to domestic protections for vulnerable witnesses. He was entitled to refuse cross-examination about inconsistencies and alleged sexual history where the complainant’s attendance was needed only to correct a formal defect in her sworn statement. Comity and reciprocity required caution before adopting the trappings of a trial. The refusal was neither legally erroneous nor perverse.
3. DNA evidence. The refusal to adjourn for testing was within the District Judge’s discretion. The proposed negative evidence would have added little to the issue whether there was a case requiring an answer, and the application was made late in already prolonged proceedings.
4. Code C and PACE. Code C applies to investigations of domestic criminal offences. It does not apply as a domestic code to an investigation abroad for extradition proceedings, although fundamental principles concerning voluntariness may inform decisions under sections 76 and 78. The admissions were confessions within section 82(1).
5. Exclusion of evidence. Sections 76 and 78 may have potential application in extradition proceedings, but their operation is restricted by the extradition context. The District Judge had to consider whether the evidence was obtained by oppression, in circumstances likely to render it unreliable, or in a manner that would make admission fundamentally unfair. The high threshold identified in R v Governor of Brixton Prison, ex p Levin [1997] AC 741 applied. The alleged failures to caution, record the interviews, or provide legal support did not make the decision irrational or approach oppression or conduct that would outrage civilised values.
6. Review. The District Judge’s factual and evaluative conclusions were reviewable only on orthodox judicial review principles. No basis existed for intervention.

First-instance applications for habeas corpus in the Administrative Court. All three applications were dismissed.