|Judgments - Reg. v. Secretary of State for the Home Department, Ex parte Launder continued|
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Professor Yash Ghai has therefore correctly identified a gap in the proposed arrangements which is of particular importance to the respondent's position were he to be returned to Hong Kong. Two questions then arise. The first is whether other protections will be available to him to prevent his surrender to the P.R.C. whether before or after any trial on the charges which have been made against him. The second is whether the existence of this gap, which was not observed by the Secretary of State when he took his decisions, vitiates these decisions and makes it necessary for the matter to be remitted to him for further consideration.
The answer to the first point lies partly in the terms of the agreement which is being negotiated by the United Kingdom with Hong Kong prior to its enactment under section 3(1) of the Ordinance, and partly in the Basic Law. The draft agreement contains in article 18(1) a provision by which the surrender of the fugitive "to any other jurisdiction" is restricted on terms which are consistent with the Specialty Protection in section 6(4) of the Act of 1989. Mr. Walsh states that all six of the agreements which have been made to date contained an article in similar terms. That safeguard will become part of the Ordinance once the agreement with the United Kingdom has been enacted under section 3(1). Persons returned from the United Kingdom to the jurisdiction of Hong Kong S.A.R. after 1 July 1997 will therefore have the benefit of that protection, in the same way as persons returned to the jurisdiction of Hong Kong S.A.R. from the other six countries with whom agreements have already been made.
Then there are the provisions of the Basic Law relating to the rights and freedoms of persons in Hong Kong and to the judiciary. Mr. Walsh has explained in his affidavit that there is no operative legal basis for the surrender of fugitives from Hong Kong S.A.R. to the P.R.C. after the handover. The Chinese Extradition Ordinance, Cap. 235 which was originally enacted in Hong Kong in 1898 dealt only with the surrender from Hong Kong to China of Chinese nationals, not fugitives, and it is being repealed. Professor Yash Ghai has expressed concern about the risk of informal surrender from Hong Kong to the P.R.C., but Mr. Walsh states that Hong Kong has to date never informally, or otherwise, extradited a person from Hong Kong to the P.R.C. It does on a regular basis repatriate illegal immigrants, but it is the stated policy of the present Hong Kong Government and of the incoming Government of the S.A.R. that it does not and will not surrender or re-surrender persons to places outside its jurisdiction either to face trial or to serve sentences unless it is pursuant to a law and subject to safeguards.
I think that it is reasonable to conclude therefore that, in accordance with the fundamental policy which has been enshrined in the Basic Law, the prohibitions which are needed to ensure that the respondent is not surrendered to the P.R.C. will be in place on and after 1 July 1997. As I have already said, there is room for two views as to whether the P.R.C. can be relied upon to respect this policy. But it cannot be said to be irrational to prefer the view that sufficient commitment to that policy has already been demonstrated by the P.R.C. and that sufficient incentives exist to ensure the continuation of that commitment after the handover.
As for the second point, I do not think that the fact that this gap appears to have been overlooked by the Secretary of State is fatal to the decisions. It was not clearly identified until the Fugitive Offenders Ordinance had become available and the argument was well under way in your Lordships' House. The Secretary of State dealt sufficiently with the representations which were made to him at the time. There is nothing in the present information to suggest that the position is now materially different from that which, taking his decisions overall, he had anticipated.
European Community Law and Human Rights
In the Divisional Court the respondent contended that his arrest at Heathrow Airport, on his arrival there from Berlin, was an infringement of his right of freedom of movement under article 48 of the European Community Treaty and that the Secretary of State's decisions were in breach of various articles of the European Convention on Human Rights. These arguments were rejected by the Divisional Court. The respondent then applied to the Divisional Court for certification of these issues as raising matters of general public importance and for leave to cross-appeal. These applications were opposed by the appellant and they were rejected by the Divisional Court. As I have already mentioned however, Mr. Vaughan was allowed to develop these arguments again before your Lordships in view of the wider scope which it was necessary to give to the whole matter.
(a) European Union Law
The respondent had established a place of business in Germany. It was necessary for him to travel extensively between the Member States for the purposes of that business, and he had done so frequently before his arrest. Article 48.3 of the European Community Treaty provides:
The respondent's argument is that the effect of his arrest and of any subsequent order for his extradition would be to prevent him from continuing with his business activities in Germany, from which he could not have been extradited to Hong Kong, and elsewhere in the Community. Although he relies principally on article 48 which applies to workers, he refers also to article 52 which relates to the right to establishment of the self-employed and to article 59 which relates to the provision of services. These articles also are subject to such limitations as may be justified on grounds of public policy: see articles 56 and 66 of the European Community Treaty. The effect of these provisions is to prevent discriminatory restrictions imposed by a Member State, other than that of which the person is a national, in which he wishes to carry out business activities. They can also extend to non-discriminatory restrictions imposed by his state of origin on movement to another Member State in which the person proposes to pursue or is pursuing his work or business activities: UEFA v. Bosman (case C-415/93)  E.C.R. 1-1, 18-20. As these provisions have direct effect the respondent is entitled to apply to the courts of this country for their enforcement under section 2 of the European Communities Act 1972.
The question which the respondent has raised is whether his detention and extradition can be justified on grounds of public policy. The Divisional Court held that extradition must come within the public policy exception. In his argument to your Lordships Mr. Vaughan said that the respondent had never contended that European Union law prevents extradition in all circumstances. His submission is that, whereas in normal circumstances public policy will justify extradition, in exceptional circumstances it will not do so. He maintains that such exceptional circumstances exist in this case because of the evidence which has been produced to show that the respondent's extradition to Hong Kong would expose him to the risk of violations of the European Convention on Human Rights, and that public policy could never justify such a restriction on his fundamental rights under European Union law.
In Regina v. Governors of Pentonville Prison, Ex parte Budlong; Reg. v. Governor of Holloway Prison, Ex parte Kember  1 W.L.R. 1110 the applicant, Kember, was a UK national who had been charged with burglary in the United States of America. The United States Government made a request for her surrender under the Extradition Treaty between the United Kingdom and the U.S.A. The applicant then sought a reference to the European Court of Justice for a preliminary ruling on the question whether her extradition had to be justified on public policy grounds under article 48(3). If her submission had been right on that point it would have meant that her extradition could only have been ordered on grounds of public policy based exclusively on her own personal conduct: see article 3 of Council Directive 64/221/EEC of 25 February 1964. Her argument was rejected and, as the point was held to be reasonably clear and free from doubt, no reference was made to the European Court. Griffiths J. observed, at p. 1127FA-D, in regard to the argument which relied on the decision of the European Court of Justice in Regina v. Bouchereau  Q.B. 732 that a recommendation for deportation made by a criminal court in this country was a measure within the meaning of article 3(1) and (2) of the Directive and could only be made on grounds of public policy, that if this submission was right it would impose a formidable fetter upon extradition:
The decision in Kember was followed in In re Habeas Corpus Application of Navinder Singh Virdee  1 C.M.L.R. 709, in which it was held that article 48 did not apply to a case where the applicant was to be surrendered to a non-European Community state under the Visiting Forces Act, and in In re Habeas Corpus Application of Carthage Healy  3 C.M.L.R. 575, in regard to the detention of an Irish national pending his extradition from the United Kingdom. Mr. Vaughan has criticised the decisions in these cases on the ground that Kember was founded on the opinion of the Advocate-General in Regina v. Saunders (case 175/78)  E.C.R. 1129. He has pointed out that it was made clear in UEFA v. Bosman (case C-415/93) that there was no Community element in Regina v. Saunders  E.C.R. 1-1, as the situation there was a purely internal one. He has also pointed out that in none of these cases before the Divisional Court was it suggested that there was a risk of a breach of the European Convention of Human Rights by virtue of the surrender. But I do not think that either of these points affects the substance of the opinion which Griffiths J. expressed in Kember.
It is true that Griffiths J. relied in that case on the decision in Saunders that article 48 did not aim to restrict the power of the Member States to lay down restrictions, within their own territory, on the freedom of movement of all persons subject to their jurisdiction in the implementation of domestic criminal law. That case was concerned with a matter which was wholly internal to the United Kingdom, as Miss Saunder's case was concerned with the breach by her of a condition of a binding-over order requiring her to return to her place of residence in Northern Ireland. It did not involve travel between Member States. But the point which Griffiths J. was making was that in Saunders a clear distinction had been drawn between deportation, which was the subject of the decision in Regina v. Bouchereau, and restrictions on the freedom of movement of individuals imposed by the criminal court in the ordinary course of the administration of justice. He said that extradition was far more closely analogous to the implementation of domestic criminal law than to deportation.
In my opinion the recognition in Bosman that there was no Community element in Saunders adds nothing new which is relevant to this point. There is no indication in what Griffiths J. says about Saunders that he had overlooked the fact that it was dealing with a matter which was purely internal to the United Kingdom. On the contrary his repeated use of the phrase "domestic criminal law" shows that he was well aware of this point. His main reason for regarding extradition as outside the scope of article 48 was that, if that was so, the process of extradition would be emasculated if it was to be necessary to justify the decision in each case on grounds of public policy, and he also said that it would produce anomalies between Member States whose extradition treaties had been entered into before the Treaty of Rome and those whose treaties were made or amended after that date. His reasoning on these points seems to me, with respect, to be entirely satisfactory. As Goff L.J. explained in Healy  3 C.M.L.R. 575, 583 the significance of Saunders is that in that case the court took a purposive approach to article 48. He said that it was obvious that that article did not aim to restrict the power of Member States to lay down restrictions within their own territory from the freedom of movement of all persons subject to their jurisdiction in the implementation of extradition procedures. In my opinion the same can be said of the implementation by Member States of their obligation to extradite persons from their territory under treaty obligations entered into with other States. The result is that it is not necessary for the Secretary of State to justify the respondent's detention and his decision to extradite him on the grounds of public policy.
Mr. Vaughan's argument that the public policy exception does not permit extradition in cases where there is a risk of a breach of the European Court of Human Rights does not therefore arise. The decision in Kember was not that extradition could always be justified on grounds of public policy, but that the relevant provisions of the European Community Treaty did not apply to extradition cases at all. As I consider that Kember was correctly decided on this point, I consider it unnecessary to examine the scope of the public policy exception in this case.
b European Convention on Human Rights
The respondent's argument in the Divisional Court was that, in the light of what Mr. Vaughan has described as the exceptional circumstances of this case, the provisions of the European Convention itself provided a remedy. That argument was rejected by the Divisional Court on the ground that the Convention has not been incorporated into United Kingdom law: Regina v. Secretary of State for the Home Department, Ex parte Brind  1 A.C. 696. Mr. Vaughan's argument in that court that judicial review is a flexible remedy which can often achieve the same results as could be achieved in the European Court of Human Rights was accepted. But, as Henry L.J. put it, " . . . what matters is the route. Unless and until the Convention is incorporated into our law, breaches of the Convention cannot be relied on as such to provide the route."
Mr. Vaughan renewed his argument before your Lordships on a number of grounds which I think require more careful examination. The way in which they were expressed does not enable them to be dismissed simply on the ground that he has chosen the wrong route. Indeed, two features of this case seem to me to indicate that the respondent's arguments under the Convention are directly relevant to the remedy which he seeks by way of judicial review. The first is the argument which he presented to the Secretary of State in his representations. This was that the rights which would be put at risk if he were to be returned to Hong Kong were his rights under the Convention--in particular his rights to life and liberty, to a fair trial and not to be subjected to inhuman or degrading treatment or punishment: see articles 2, 3, 5 and 6. The second is that the Secretary of State himself, as Mr. Ackland has told us in paragraph 36 of his affirmation, took account of the respondent's representations that his extradition to Hong Kong would be a breach of the Convention in reaching his decision that he should be extradited.
It is often said that, while the Convention may influence the common law, it does not bind the executive. This view was reflected in the observation by Sir Thomas Bingham M.R. in Regina v. Ministry of Defence, ex parte Smith  Q.B. 517, 558E that exercising an administrative discretion is not of itself a ground for impugning that exercise. That is so; but the whole context of the dialogue between the Secretary of State and the respondent in this case was the risk of an interference with the respondent's human rights. That in itself is a ground for subjecting the decisions to the most anxious scrutiny, in accordance with the principles laid down by this House in Regina v. Secretary of State for the Home Department, ex parte Bugdaycay  A.C. 151, as Sir Thomas Bingham M.R. also recognised in Smith at p. 554H. Then there is the question whether judicial review proceedings can provide the respondent with an effective remedy, as article 13 requires where complaints are raised under the Convention in extradition and deportation cases: see Soering v. United Kingdom  11 E.H.H.R. 439; Vilvarajah v. United Kingdom  14 E.H.H.R. 248; D. v. United Kingdom, The Times, 12 May 1997. If the respondent is to have an effective remedy against a decision which is flawed because the decision-maker has misdirected himself on the Convention which he himself says he took into account, it must surely be right to examine the substance of the argument. The ordinary principles of judicial review permit this approach because it was to the rationality and legality of the decisions, and not to some independent remedy, that Mr. Vaughan directed his argument.
That argument was directed to three issues. The first was whether the Secretary of State correctly took into account the scope and content of the Convention. It was maintained that it was not sufficient for him merely to assert that he took the Convention into account if he had failed to do so correctly. In a life and liberty case a bare assertion that the Convention was considered was insufficient, especially where the decision-maker had stated that his decision was based wholly on political policy considerations. The second was whether the Secretary of State had personally and properly considered the respondent's individual case and circumstances. It was pointed out that the Convention protects the individual and that it must be applied to his individual circumstances. It would not be sufficient for the Secretary of State to rely on a political decision of the Cabinet or to reach a decision not related to the respondent's contentions or to his individual circumstances. The third was directed to the rationality of the Secretary of State's decisions. In this regard the argument was that, in a case concerning the personal circumstances of an individual and not the creation or operation of a rule to be applied generally, the Convention was directly relevant.
It can be seen from this summary that much of the substance of the objection is directed to an aspect of the argument in the Divisional Court which has been departed from expressly in this House. I have already dealt with this point in my outline of the issues in this appeal and in my analysis of the decisions by the Secretary of State as revealed by his decision letters and the affidavits. The evidence which is before us does not support the proposition that his decision was based wholly on political policy considerations. It shows that he took his own decision, having proper regard to the rights of the respondent as an individual. The test which he applied was whether it would in all the circumstances be unjust or oppressive for the respondent to be extradited to Hong Kong. The application of this test shows that he was aware that his concern was with the rights of the individual, not with political considerations. The respondent's allegation in his printed case that the Secretary of State washed his hands of the respondent's fate without detailed scrutiny of his allegations is not made out by the evidence. The case would have been different, if the evidence had shown that the decisions were wholly political and that proper regard had not been paid to the respondent's human rights. If that had been the position there would have been no need, in a case of this kind, for Mr. Vaughan to rely on the Convention. The Secretary of State would have failed to address himself to the right question, and on that ground at least it would have been open to review as to its legality. As it is, that is not the state of the evidence and there are no longer any grounds for maintaining this criticism.
The remaining part of Mr. Vaughan's argument can be dealt with under the heading of irrationality. He maintained that the Convention required detailed scrutiny and evaluation of the facts in an extradition case where the person's human rights were at risk. He referred to Soering v. United Kingdom (1989) 11 E.H.H.R. 439 to illustrate his point that confidence in a legal system was not enough. There had to be an examination of the domestic law and practice as it was applied in reality. In that case, on the facts, practice in the United States was at serious risk of failing to conform to the standards of the Convention, so the decision to order the detainee's surrender to that country was held to involve a breach of the Convention. Mr. Vaughan said that the Secretary of State had based his decision on a formal interpretation of the Joint Declaration, asserting that the law was the law, rather than an analysis of practice in Hong Kong.
Here again, however, the argument raises points which I have already dealt with under previous headings, and in particular in my examination of the question whether the decisions could be said to be irrational. I do not think that it is necessary to go over these points again. It is enough to say that the argument which Mr. Vaughan presented under this heading seemed to me to be inextricably linked to those which he had already presented under the heading of irrationality. No new points of substance were raised in this branch of his argument. The decision which he says should have been taken would have had to have been based on the conclusion that, despite the provisions of the Joint Declaration and the Basic Law, the practice of the P.R.C. in the field of human rights to date within its own territory showed that there was a serious risk that the provisions of these instruments would be departed from in Hong Kong S.A.R. But the arguments are not all one way on this point, as I have already sought to demonstrate. A reasonable Secretary of State could, on the material available to him, have concluded that the concerns which were indicated by the P.R.C.'s actions in other places and in other circumstances were not so serious as to give rise to a serious risk of injustice or oppression in the respondent's case. The human rights context has not been overlooked in this assessment. On the contrary, it lies at the heart of the whole argument. It is precisely because it was not irrational for the Secretary of State to say that he was not persuaded that there was a case on human rights grounds for refusing extradition to Hong Kong that his decisions stand up to the required degree of scrutiny.
For these reasons I would allow this appeal and dismiss the respondents' applications for judicial review. In view of the fact that the argument for the Secretary of State in the Divisional Court was departed from, I would not alter the order as to costs which was made in that court. I would make no order as to costs in the appeal to this House.
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Hope of Craighead. For the reasons which he gives, I too would allow the appeal.
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hope of Craighead. I agree with it and for the reasons which he gives I would allow the appeal.
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