VB & Ors v Westminster Magistrates' Court & Ors

A magistrates’ court conducting an extradition hearing cannot receive and rely on evidence tendered by one party which is not disclosed to the other, unless Parliament has authorised that procedure. Extradition is an inter partes hearing, and the common-law requirements of natural justice and open justice apply even where the court must protect Convention rights under section 87 of the Extradition Act 2003. The court may, however, use the statutory witness-anonymity regime in sections 86 to 88 of the Coroners and Justice Act 2009. Anonymous evidence may include documentary hearsay where section 84 of the Extradition Act 2003 permits it.

Four claimants sought judicial review of the Deputy Senior District Judge’s refusal to adopt a reverse closed material procedure in extradition proceedings brought by Rwanda. They wished to rely on evidence from witnesses who feared serious harm if their identities or evidence were disclosed to Rwanda.

The claimants argued that the court’s duty under section 87 of the Extradition Act 2003 to assess Convention compatibility justified a common-law exception to ordinary inter partes procedure. The central questions were whether such a procedure was lawful and whether the claimants could instead obtain witness-anonymity orders under the Coroners and Justice Act 2009.

1. Claim for judicial review dismissed. Permission was granted, but the Deputy Senior District Judge was right to refuse the proposed reverse closed material procedure.
2. A magistrates’ court conducting an extradition hearing has the powers conferred by section 77 of the Extradition Act 2003, which are equivalent, so far as possible, to those of a magistrates’ court trying an information. A court conducting such a summary trial could not admit probative evidence from one party without disclosure to the other. The phrase “as nearly as may be” did not authorise this radical departure from ordinary procedure.
3. The principles in Al-Rawi v Security Service [2012] 1 AC 531 and British Sky Broadcasting Ltd v The Commissioner of Police of the Metropolis [2014] UKSC 70 applied. An extradition hearing is an inter partes hearing. Equal treatment requires each party to know the material which the court is asked to take into account and to have a fair opportunity to answer it.
4. Section 87 did not require the court to disregard those procedural constraints. The judge had to protect the requested person’s Convention rights within the limits imposed by law. The court could not create a further common-law exception without authority from Parliament or the Supreme Court.
5. The statutory witness-anonymity provisions applied. The claimants were “defendants”, while Rwanda and the CPS were not “prosecutors” in these extradition proceedings. If the statutory conditions were met, the judge could receive anonymous evidence without disclosing witness identities to Rwanda or the CPS.
6. Section 84(3) also permitted anonymous documentary hearsay in extradition proceedings, subject to the statutory conditions and fairness safeguards. Anonymous evidence could be used on all issues arising in the extradition proceedings, not only section 87 issues.

Lord Justice Moses agreed with Mitting J. He added that the observations in Government of the United States of America v Bow Street Magistrates’ Court (Tollman (No 1)) [2007] 1 WLR 1157 concerned only material considered to assess whether a requesting state’s refusal to disclose evidence was abusive, not substantive reliance on undisclosed evidence.

The claimants sought permission to challenge the Deputy Senior District Judge’s decision. Ouseley J directed a rolled-up hearing. The Administrative Court granted permission but dismissed the substantive judicial review claim.