Wellington v HM Prison Belmarsh & Anor

In extradition proceedings under the Extradition Act 1989, the requesting state generally decides what evidence to place before the committing court and owes no general duty of disclosure equivalent to that in domestic criminal proceedings.

The court must nevertheless protect its process from abuse. The requesting state must act candidly and disclose material which would render worthless the evidence relied upon for committal. The person alleging abuse bears the burden of establishing it. Trial issues concerning admissibility, evidential strength and fairness generally belong to the requesting state’s trial court. In the absence of evidence of abuse, an adjournment or request for further evidence should generally be refused.

The United States sought the applicant’s extradition to face allegations of murder, attempted murder and related firearms and burglary offences. The extradition proceedings were conducted under the pre-2004 law, and the formal requirements were accepted to have been satisfied.

The applicant sought disclosure of investigative material, including other witness accounts and identification material. He argued that the absence of disclosure rendered the proceedings unfair, that the evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984, and that the evidence did not justify committal.

District Judge Pratt refused an adjournment, found no evidence of bad faith, and proceeded to committal. The central issues before the Administrative Court were the scope of disclosure, the court’s abuse-of-process jurisdiction, the application of section 78, and the effect of Articles 5(1)(f) and 5(4) of the Convention.

1. Application dismissed. The applicant was lawfully detained under paragraphs 5, 6 and 7 of Schedule 1 to the Extradition Act 1989. His detention was prescribed by accessible and sufficiently precise law, was not arbitrary or disproportionate, and was subject to speedy judicial review.
2. Extradition proceedings are criminal proceedings, but they are not equivalent to a domestic criminal trial. The committing court determines whether the statutory evidential threshold for committal is met. It does not ordinarily resolve trial issues concerning admissibility, evidential adequacy or the fairness of the eventual trial.
3. The requesting state alone determines the evidence on which it relies to seek committal and is under no general duty to disclose unused or additional material. The court must, however, protect its process from abuse. The requesting state’s continuing duty of candour requires disclosure of evidence which would render worthless the evidence relied upon for committal. The person alleging abuse must establish it.
4. Where an applicable Order in Council permits further evidence or information to be requested, that power belongs, at most, to the United Kingdom authorities rather than ordinarily to the magistrates’ court. In the absence of evidence of abuse, the court should generally refuse to request further material or adjourn for that purpose.
5. Section 78 of the Police and Criminal Evidence Act 1984 either did not apply to extradition proceedings conducted under the amended paragraphs 6(1) and 7(1) of Schedule 1, or could not assist on these facts. Even if applicable, the exceptional discretion described in R v Governor of Brixton Prison, ex parte Levin would not be engaged because there was no suggestion that the evidence had been obtained in a manner outraging civilised values.
6. R v Governor of HM Prison Brixton, Ex parte Kashamu (No 1) was confined to its facts and the concessions made there. It did not establish a general disclosure duty. Here there was no evidence that the United States possessed material undermining the reliability of the evidence relied upon, and the district judge was right to refuse an adjournment.
7. The Lord Chief Justice agreed with Mr Justice Mitting’s judgment, but remained unpersuaded that Article IX(2) of the applicable Order in Council gave the extradition judge a discretion to require the authorities to obtain information from the requesting state. If such a power existed, it could be used only in the most exceptional case. Permission to appeal was refused.

The judgment describes earlier extradition committal proceedings before District Judge Pratt. He refused an adjournment and proceeded to hear the case, finding no evidence of abuse and sufficient evidence for committal. The Administrative Court dismissed the application for habeas corpus. Permission to appeal was refused.