Case Comment: VB v Westminster Magistrates’ Court  UKSC 59
21 Thursday May 2015
The four appellants were wanted by the Government of Rwanda to stand trial for crimes allegedly committed during the genocide in 1994. They had been discharged from extradition requests in 2007, following a High Court decision that they faced a real risk of a flagrant denial of justice if returned to Rwanda. Following amendments made since 2009 to the Rwandan criminal justice system and provisions for the trial of alleged génocidaires, new requests were issued for their extradition from the UK to Rwanda.
In the course of the extradition proceedings at Westminster Magistrates’ Court, the appellants sought to introduce evidence from anonymous witnesses who claimed to have been tortured by Rwandan authorities into giving evidence against the appellants. The witnesses were frightened of the potential repercussions they might face if they gave evidence in the appellants’ extradition proceedings disclosing the alleged torture. The appellants therefore sought a procedure by which they could rely on the witnesses’ testimony without disclosing the identity of the witnesses’ to the Rwandan authorities.
The issue that arose, therefore, was whether the district judge was able, in the absence of any statutory power, to use a closed material procedure to receive the evidence or, in the alternative, whether the district judge could make an irrevocable non-disclosure order by which the evidence could be disclosed to the CPS but not to the Government of Rwanda. There was a corollary issue as to whether the anonymity order provisions under the Coroners and Justice Act 2009, s 87, applied.
District Judge Arbuthnot at Westminster Magistrates’ Court refused the appellants’ application to rely on the material in a closed hearing – “with some reluctance”. She also considered that s 87 of the 2009 Act did not assist the appellants since s 87(3) requires a defendant, when making an application for an anonymity order, to inform the prosecutor as well as the court of the identity of the witness.
The appellants challenged the district judge’s decision by way of judicial review. Permission was granted but the challenge dismissed. However, the Admin court considered that the appellants could take advantage of the s 87 provision since, although the appellants were defendants, neither the CPS nor the Government of Rwanda was a prosecutor within the definition of that Act.
The appellants appealed to the Supreme Court against the finding that the judge had no power to order a closed material procedure.
Supreme Court Decision
By a 4-1 majority (Lord Toulson dissenting), the Supreme Court dismissed the appeal.
The Court held that a District Judge in extradition proceedings does not have the power to admit evidence in a closed material hearing. There was no basis for recognising or creating a closed material procedure or departing from the ordinary principle of open inter partes justice [para 34].
The power of the magistrates’ court conducting extradition proceedings is derived entirely from statute [para 18]. It was agreed that the normal rules of evidence are relaxed on issues arising under the heads of extraneous considerations, human rights and abuse of process in extradition proceedings [para 21]. Nevertheless, any relaxation on whatever basis does not affect the normal rule that applies to a witness’s evidence being capable of being tested inter partes [para 23].
The Court also found that the judge had no power to order disclosure to the CPS on the condition that further disclosure to the Rwandan Government was prohibited, because the CPS in extradition proceedings are merely representing the legal interests of the requesting state, which has a real and direct interest in obtaining the surrender of the appellants [para 37]. In any event, the district judge has no special statutory power by which to make a non-disclosure order in relation to the requesting state.
On the issue of a witness anonymity order under s 87 of the 2009 Act, the Court agreed (it being common ground between the parties) that, contrary to the view of the Administrative Court, s 87 has no relevant application to extradition proceedings at all [para 47]. S 87 applies only where the defendant is charged with an “offence to which the proceedings relate”, which does not embrace extradition proceedings with a view to a trial abroad. However, the Court did find that an extradition judge has power, if justice calls for it, to receive the evidence of a witness who is anonymous to one or all parties [para 63] but that that power does not derive from the 2009 Act. Indeed, the Court considered that extradition proceedings do not even amount to “criminal proceedings” for the purposes of the 2009 Act [para 68]. Instead, anonymous evidence may be received in extradition proceedings as part of the court’s inherent power to control its own proceedings [para 69], and it may be received regardless of the nature of the challenge it supports [para 72], as long as it is fair to all parties that it should be adduced [para 73].
Although the appellants lost the case, in that their arguments about the district judge’s power to order closed material procedures and make anonymity orders were rejected, it is interesting that the Court’s key positive finding, i.e. that anonymous evidence can be adduced in extradition proceedings, may in fact allow the appellants, and others in a similar situation, to achieve the end they sought anyway.
The Court’s conclusions on the interaction between extradition proceedings and asylum proceedings (governed by a different statutory framework in which, for example, immigration judges may make irrevocable anonymity orders) make clear that possible conflict between the two does not allow the importation of powers for district judges that do not have their own clear statutory source. However, the unfortunate result of that finding is that there may well be determinations about the same individuals in extradition and immigration proceedings that contradict each other, and discrimination between requested persons where (as here) one appellant was a British citizen and unable to make an asylum application, while the other foreign national requested persons are able to pursue an asylum claim.