CU (Appellant) v Westminster Magistrates' Court (Respondent)
|Cite as:|| UKSC 59|
|Hand-down Date:||November 05, 2014|
Michaelmas Term  UKSC 59
On appeal from:  EWHC 889 (Admin)
VB, CU, CM and EN (Appellants)
Westminster Magistrates' Court (Respondent) and
The Government of Rwanda (Respondent) and
The Crown Prosecution Service (Respondent) and
CMK (Interested Party) before
Lord Neuberger, President Lord Mance
Lord Reed Lord Hughes Lord Toulson JUDGMENT GIVEN ON 5 November 2014 Heard on 11 and 12 June 2014 Appellant (VB) Respondents Alun Jones QC James Lewis QC Sam Blom-Cooper Gemma Lindfield (Instructed by Frank Brazell & Partners) (Instructed by Crown Prosecution Service) Appellant (EN) Intervener (CMK) Diana Ellis QC Helen Malcolm QC Joanna Evans Mark Weekes (Instructed by Clifford Johnston Solicitors) (Instructed by Bindmans LLP) Appellant (CM) Tim Moloney QC James O'Keeffe (Instructed by O'Keeffe Solicitors) Appellant (CU) Edward Fitzgerald QC Rachel Kapila (Instructed by Hallinan Blackburn Gittings &
Nott) LORD MANCE (with whom Lord Neuberger and Lord Reed agree)
The Supreme Court has before it appeals by four individuals, VB, CU,CM and EN, whose extradition is requested by the respondent, the Government of Rwanda ("GoR"), so that they may stand trial in Rwanda for crimes allegedly committed during the civil war which took place between April and July 1994. Memoranda of Understanding dated 8 March 2013 were made between the United Kingdom and Rwanda in respect of the four appellants and a certificate issued by the Secretary of State under section 194 of the Extradition Act 2003. Consequently, Part 2 (contained in sections 69 et seq) of the 2003 Act applies to the relevant extradition proceedings.
The main issues are whether, in the absence of any relevant statutory power, it is open to the district judge hearing the extradition proceedings (a) to use a closed material procedure to receive evidence which the appellants wish to adduce, or (b) in the alternative in relation to some of such evidence to make an irrevocable non-disclosure order providing for the disclosure of such evidence to the Crown Prosecution Service ("CPS"), but prohibiting its disclosure to the GoR. A subsidiary point is whether in relation to some of the evidence it would be possible to make an anonymity order, either under the Coroners and Justice Act 2009, section 87, or otherwise.
The GoR has sought previously, in 2007, to obtain the extradition of the appellants. The district judge was satisfied that there was a prima facie case of involvement in genocide and crimes against humanity, but in April 2009 the High Court discharged the appellants on the ground that the appellants faced a real risk of a flagrant denial of justice if returned to Rwanda to stand trial: VB and others v Government of Rwanda  EWHC 770 (Admin).
Since 2009 there have been changes in Rwanda, including the introduction of facilities for witness protection, video-conferencing and the possibility of using international judges to try cases of alleged genocide, and in the light of these changes a number of national and international courts have held that other persons wanted for trial in Rwanda would receive a fair trial there. The appellants' case is that the risks remain, at least in relation to them and some of the Rwandan-based witnesses whose evidence they wish to adduce; that they themselves would as a result suffer a flagrant denial of justice, in breach of article 6 of the Human Rights Convention, or even torture or mistreatment
in breach of article 3, if extradited to Rwanda; that the evidence to demonstrate the existence of such risks requires, by the very nature of the risks, either to be received in closed session or to be disclosed only to the CPS; and that witness anonymity would, at least in relation to much of such evidence, offer no solution, since the content of the evidence is such as would necessarily disclose the identity of the witness giving it. None of this means that there is not and will not also be other evidence before the district judge, and some of it has already been called.
The extradition proceedings to date
The current extradition proceedings have been proceeding before District Judge Arbuthnot. The Government of Rwanda's evidence to establish a prima facie case has been read, and the District Judge has already heard, in open court, various witnesses called by the appellants. Among them is Ms Scarlet Nerad, co-founder of Centre for Capital Assistance and founder of Community Resource Initiative. She had investigated in Rwanda witnesses giving evidence for the GoR against CU and attested to meeting one of them, who had been tortured during the period ending in 2000 and remained too frightened of being tortured again to give evidence unless its disclosure was limited to the CPS, and to believing that others were in similar position. The appellants also called an expert, Professor Filip Reyntjens. Two further experts are scheduled to give evidence later in the proceedings, Dr Phil Clark to be called by the Government, who will it appears take issue with points made by Professor Reyntjens, and Professor Timothy Longman to be called by the appellants.
It is common ground that in relation to issues of extraneous circumstances (section 81), human rights (section 87) and abuse of process, it is established practice to allow extensive relaxation of the ordinary rules of evidence in extradition proceedings. However, the closed material which the appellants wish to adduce is, they say, factual and specific evidence which would not otherwise be capable of being adduced.
The issues thus arising regarding use of a closed material procedure were argued before District Judge Arbuthnot. She on 28th January 2014 gave a judgment in which she held herself bound by authority to hold that it would be unlawful to sit in private. However, during a case management hearing in December 2013 from which she excluded the Government of Rwanda's representative, those representing VB gave her a file of the proposed evidence and in January 2014 those representing CU sent her another file, not for disclosure to the Government. The District Judge recorded in her judgment (para 5) that she had read both files, and was "for the purpose of
this argument only prepared to accept they contain important and material evidence which is relevant to the issues I have to decide". After concluding that the applications to rely on the material in a closed hearing must fail, she also added (para 23):
"I have concerns that there may be a risk of serious prejudice to the defence in making that decision but in all the circumstances I do not consider I have any choice. For that reason with some reluctance I refuse the application."
That was a comment which she made without the Government of Rwanda having had the opportunity to make submissions on, or to explore the accuracy of, the material in question. Unless and until the District Judge reached a conclusion on the permissibility of a closed material procedure opposite to that which she in fact reached, the right course would have been not to see or read the files.
In the course of her judgment, District Judge Arbuthnot also considered whether (if and to the extent that the substance of any of the proposed evidence could be disclosed) a witness anonymity order could be made under section 87 of the Coroners and Justice Act 2009. She thought not, in view of the requirement under section 87(3) that, in the case of an application by a defendant, the defendant must inform the prosecutor as well as the court of the identity of the witness.
The four appellants challenged the District Judge's judgment by judicial review, identifying the Westminster Magistrates' Court as defendant, the Government of Rwanda as first interested party and the CPS as second interested party. By judgment dated 27 March 2014, the Administrative Court (Moses LJ and Mitting J) granted permission, but dismissed the challenge to the District Judge's refusal to admit evidence that was not disclosed to the Government of Rwanda. The Administrative Court, effectively of its own motion, raised the question whether section 87 of the Coroners and Justice 2009 applied, and in its judgment expressed the view that it would enable the appellants to apply for a witness anonymity order in respect of any evidence the substance of which they were willing to disclose. The Court reached this conclusion on the basis that, although the appellants were defendants and the proceedings were criminal proceedings within the meaning of the 2009 Act, neither the CPS nor the Government of Rwanda was a prosecutor within the definition in that Act. There was thus no requirement under section 87(3) to disclose the identity of the relevant witnesses to anyone save the court.
On appeal to the Supreme Court, the main burden of the appellants' submissions has been taken by Mr Alun Jones QC for VB and by Mr Edward Fitzgerald QC for CU. Both endorse each other's submissions. They submit that under the previous legislative scheme the Secretary of State had a role which enabled him to decide whether extradition was appropriate in the light of material which the requesting state did not see, and that under the 2003 Act the courts must have been intended to inherit a similar role or freedom. They submit that extradition proceedings are not classic adversarial or criminal proceedings, but sui generis. They rely upon the established practice to relax the normal rules of evidence in relation to certain issues capable of arising in extradition proceedings (para 6 above).
These submissions all contribute to the further principal submissions, that the courts should recognise in respect of...
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