R v. Secretary of State for the Home Department, Ex parte Launder

Regina v. Secretary of State for the Home Department,
ex parte Launder

HOUSE OF LORDS

Lord Browne-Wilkinson Lord Steyn Lord Hope of Craighead Lord Clyde Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGEMENT IN THE CAUSE

REGINA v. SECRETARY OF STATE FOR THE HOME DEPARTMENT (APPELLANTS) EX PARTE LAUNDER (RESPONDENTS) (ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION) ON 21st May 1997

LORD BROWNE-WILKINSON

My Lords,

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 would allow the appeal.

LORD STEYN

My Lords,

I have read in draft the speech to be delivered by my noble and learned friend, Lord Hope of Craighead. For the reasons he gives I would allow the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

This is an appeal against the decision by the Divisional Court of the Queen's Bench Division (Henry L.J. and Ebsworth J.) on 6 August 1996 to quash a warrant under section 12(1) of the Extradition Act 1989 by which the Secretary of State for the Home Department ordered the respondent, Ewan Quayle Launder, to be returned to Hong Kong at the request of the Governor to face trial there on charges of corruption for which on 23 November 1989 a warrant had been issued by the Principal Magistrate.

Although the respondent denies the charges which have been laid against him, he accepts for the purposes of this case that a prima facie case against him has been made. The offences fall within the definition of the expression "extradition crime" in section 2(1) of the Act. Arrangements exist between the United Kingdom and the Crown Colony under the Fugitive Offenders (Hong Kong) Order 1967 for securing that the requirements of section 6(4), known as the "specialty protection", are satisfied. It is not suggested that any of the particular matters mentioned in section 12(2) which would make it unjust or oppressive for him to be returned the Hong Kong arise in this case. There is no reason to think that there would have been any other grounds for objecting to the warrant, had it not been for the fact that on 1 July 1997 sovereignty over Hong Kong will be transferred to the Peoples' Republic of China and Hong Kong will then cease to be a Crown Colony.

It has for some time been obvious that the respondent's trial for these offences could not take place until after the transfer of sovereignty. It was plain that questions would be raised about the procedures which would be in place in Hong Kong after 1 July 1997, to ensure that the respondent would receive a fair trial and that he would continue to have the benefit of the specialty protection there were he to be extradited. But the respondent has raised objections to the warrant directed to the future of Hong Kong which are of an even more fundamental character. He maintains that, despite the arrangements which have been made to secure continuity for the rule of law after the transfer, he would be faced with the real risk that the safeguards will not be effective and that he will receive an unfair trial and, if convicted, inhumane punishment. It is these questions which have given rise to the important and difficult issues in this appeal.

It is hard to imagine a more significant event in the history of any state than a transfer of its sovereignty. The transfer of sovereignty over Hong Kong from the United Kingdom to the Peoples' Republic of China (P.R.C.) will bring to an end more than a century and a half of British rule since Hong Kong island was first occupied by the United Kingdom in 1841 after the Opium War. For the peoples of the region, and for the people of Hong Kong in particular, the resumption of Chinese sovereignty will change many things. That is to be expected and is, indeed, inevitable. But in other respects the transfer will be an unusual one, perhaps unique. It will above all be a negotiated and orderly transfer, the product of 15 years' preparation for the event. There are numerous examples in history of transfers of sovereignty by conquest, by treaty or concession or by purchase. But such a long period of negotiation and preparation appears to be unprecedented. The transfer will also involve the creation in Hong Kong of a separate and novel system of government. This has been designed to preserve its own legal system and to provide for it a high degree of legislative and executive autonomy. Under the principle of "one country, two systems" the P.R.C. have decided that, upon its resumption of sovereignty, a Special Administrative Region (S.A.R.) will be established in Hong Kong and that the socialist system and policies will not be practised there. Not even the United Kingdom, which in other respects is a unique arrangement, provides a precise analogy. For example, the supreme judicial authority for all three jurisdictions in the United Kingdom, save only in respect of decisions of the High Court of Justiciary in Edinburgh, resides in the House of Lords at Westminster. For Hong Kong the supreme judicial authority will reside in Hong Kong, not the P.R.C.

It will be necessary for me later to describe some of the details of these arrangements. At this stage it is sufficient to say that the context for an examination of the issues of law in this case is, even for extradition cases, an unusual one. It placed a heavy responsibility on the Home Secretary whose decisions are under challenge in this case. Your Lordships will be aware of the responsibility which now rests with this House, in view of the critical stage which matters have now reached in the preparation for the hand-over in only a few weeks' time.

Procedural History

It is first necessary to set out briefly a history of the events which have led to this appeal.

The warrant which was issued by the Principal Magistrate on 23 November 1989 was in connection with 14 charges of accepting an advantage, contrary to section 9(1)(b) of the Prevention of Bribery Ordinance, Chapter 201 of the Laws of Hong Kong. The charges related to payments made to the respondent between 11 October 1980 and 3 January 1982, during a period when he was resident in Hong Kong and employed there in a senior position in a merchant banking company. They were alleged to have been made in connection with the granting by that company of loans to groups in which the persons who made the payments were shareholders. The payments allegedly so made total HK$45.95 million, which is £3.8 million at current exchange rates. A provisional warrant for the respondent's arrest was issued at Bow Street Magistrates' Court on 21 May 1990. He was arrested on 10 September 1993 at Heathrow Airport, having arrived in this country from Berlin. He was granted bail on 30 September 1993 and has been on bail ever since.

On 7 October 1993 the Governor of Hong Kong made a request to the Secretary of State for Foreign and Commonwealth Affairs for the extradition of the respondent to Hong Kong. On 12 January 1994 the Secretary of State issued to the magistrate an authority to proceed under section 7(1) and (4) of the Act of 1989. On the same day he issued a specialty certificate under section 6(7) of that Act to the effect that the Governor of Hong Kong had undertaken that the respondent would receive the protection set out in subsection (4) of that section. On 7 April 1994 the magistrate committed the respondent under section 9 to await the Secretary of State's decision whether or not to order his return. The respondent challenged that order by applying for a writ of habeas corpus to the Divisional Court. That application was dismissed by the Divisional Court on 14 December 1994, and on 9 March 1995 leave to appeal to the House of Lords was refused.

The respondent then made extensive representations to the Secretary of State in an endeavour to persuade him not to order his return to Hong Kong. These were made by him personally by letter to the Home Secretary, through his M.P. and through his solicitor. These representations were supported by lengthy affidavits from experts in this field which raised substantial questions about the prospects of a fair trial and the impartial administration of justice in Hong Kong after the transfer of sovereignty. Following an invitation to comment on a response on these matters from the Hong Kong Government as the requesting authority, the respondent's solicitor submitted further material to the Home Secretary. On 31 July 1995 the Secretary of State wrote to the respondent's solicitor informing him that he had decided to order the respondent's return to Hong Kong.

That letter was written on his behalf by Mr. David Ackland, the Head of the International Criminal Policy Division of the Home Office, of which the Extradition Section of the Home Office is a part. He stated that, in the light of the matters raised by the respondent, the Secretary of State had agreed exceptionally to give his reasons at that stage, reserving the right to expand on them later if leave were to be sought to move for judicial review of the decision. In his statement of the reasons he said that the Secretary of State had considered very carefully all the extensive representations made on the respondent's behalf, but that he did not consider that they were sufficient either individually or cumulatively to justify not surrendering him. After dealing with matters which are no longer in issue, he dealt with the allegations of prejudice arising from the position in Hong Kong after 1 July 1997. He summarised the measures which were to be in place in Hong Kong after that date in the light of the Joint Declaration and the Basic Law to which I shall return later in this speech. He then dealt with representations that the order would be in breach of the respondent's rights under the European Convention of Human Rights and European Community law.

The letter concluded with these paragraphs:

"3.The Secretary of State does not consider that there is anything known about Mr. Launder's personal circumstances that indicates that it would be oppressive or wrong to order his return.

4. The Secretary of State does not consider that it would be unjust or oppressive to order the return of Mr. Launder for any reason in section 12(2)(a) of the Extradition Act 1989, or that there are any other statutory bars to surrender.

5. The Secretary of State does not consider that in all the circumstances it would be unjust, oppressive or wrong for any other reason to order Mr. Launder's return.

6. The Secretary of State does not consider, therefore, that there is any reason why he should, in the exercise of his discretion, not order Mr. Launder's return."

That is the first decision which was challenged in the proceedings in the Divisional Court. Leave on the application was granted on 7 August 1995. On 8 January 1996 an affirmation by Mr. Ackland was lodged providing a more complete summary of the reasons for the decision taken by the Secretary of State.

Thereafter, in the light of further developments in Hong Kong which the respondent maintains made it clear that he would not get a fair trial after 1 July 1997 if he were to be extradited and that in other respects he would be exposed to oppression and injustice there, his solicitors wrote to the Home Secretary on 29 November 1995 inviting him to reconsider his decision to order the return. They enclosed with their letter a substantial body of further material which the Home Secretary was asked to consider in reviewing his decision. By a letter to the respondent's solicitor dated 21 December 1995, which was written on his behalf by Dr. Susan Atkins, the Head of the Extradition Section of the Home Office, the Home Secretary replied in these terms:

"The Secretary of State has given careful consideration to the representations made by you on behalf of Mr. Launder to determine whether they give rise to sufficient grounds for withdrawing the surrender warrant. He has asked me to say, however, that there is nothing contained in these latest representations which leads him to reverse his earlier decision to order the return of Mr. Launder to Hong Kong."

That decision also was challenged in the Divisional Court. An order granting leave on this application was granted on 4 January 1996. On 2 February 1996 an affidavit by Dr. Atkins was lodged setting out the reasons which had guided the Secretary of State in his decision that there were no grounds for reversing his decision of 31 July 1995.

Proceedings in the Divisional Court

The argument in the Divisional Court was directed to six issues, on all of which except one it was held that the application for judicial review must fail. Those on which the decision was adverse to the respondent were (1) the effect of delay, having regard in particular to the provisions of section 12(2)(a)(ii) of the Act of 1989; (2) alleged errors of law on the passage of time; (3) procedural improprieties, injustice and perversity; (4) the respondent's personal circumstances; and (5) the European Convention on Human Rights and European Community law points. On the final point (6), identified in the judgment as the China Point, the Divisional Court reached the view that the Secretary of State had erred in his approach to the exercise of his discretion under section 12(1). This was because they understood that he had felt himself bound by a collective Cabinet decision that the P.R.C. would comply with its treaty obligations in regard to each of the treaty provisions which were to be in place in Hong Kong after 1 July 1997 to prevent injustice. It was maintained that his decision on this basis was not reviewable in the courts, but that argument was rejected. The warrant ordering the return of the respondent was quashed, and the matter was remitted to the Secretary of State for further consideration.

As a result of that decision the following question was certified in order to identify the issue of public importance in the case:

"Whether in the exercise of his powers under section 6(4) and/or section 12 of the Extradition Act 1989 the Secretary of State is entitled, on a non-reviewable basis, to proceed on the footing that the requesting state or any successor state, or any other relevant State, will respect its treaty obligations on the sole grounds that this is the collective cabinet view and that there has been no repudiation of the relevant treaty and thus for this reason alone not to consider evidence which is put forward by the fugitive to show that the Extradition Act 1989 and/or the relevant treaties will not, or may not, be complied with in material respects."

The Issues in this Appeal

Mr. Parker Q.C. submitted, in opening the appeal, that the Divisional Court, while right in understanding his submission to be that the issue was non-justiciable, was wrong to conclude that the Secretary of State's decision was dictated by a collective decision by the Cabinet. He said that the Court had reached its judgment on the basis of a position which he had not put to them, as his argument had been that the Secretary of State had made a personal decision on these matters. He maintained that the Secretary of State had been entitled to rely on the fact that a treaty had been entered into between the United Kingdom and the P.R.C., the basic principles of which had been acted upon when the framework for the future administration of Hong Kong was set up when the Basic Law was promulgated. The real issue therefore was whether the Secretary of State had acted reasonably in reaching his decision, based on all the evidence, that the P.R.C. had not repudiated its obligations under the treaty and that there was no intention on its part not to implement the relevant provisions of the Basic Law.

In making these submissions Mr. Parker was repeating what had been set out in the Statement of Facts and Issues, in which it is recorded that there is an issue between the parties as to the basis of the Secretary of State's reasoning. The respondent's position is that the Secretary of State considered himself bound by a collective Cabinet decision to the effect that the P.R.C. would respect its obligations under the treaty and that there had been no acts indicating an intention on its part to repudiate those obligations. In the result he had considered that it was not open to him to examine for himself the question whether there was any risk to Mr. Launder if he were to be extradited. But Mr. Alun Jones Q.C. for the Government of Hong Kong supported Mr. Parker's submission that the Divisional Court had failed to appreciate that the Secretary of State had made an individual decision in which he had addressed the issues properly. He said that it was clear from the evidence that he had exercised his own discretion in reaching his decision on this matter, and that the only question in the case was whether he had acted irrationally. In the Divisional Court an issue had been raised for the first time about non-justiciablity, but the decision letters and the affidavits for the Home Secretary showed that he had conducted the normal exercise of assessing the competing factors in what was essentially a balancing exercise.

Mr. Vaughan Q.C. for the respondent maintained that the Divisional Court had been entitled to rely on the submissions of the Secretary of State's counsel, which had been to the effect that the decision taken was non-justiciable. That was why the certified question had, with the agreement of all counsel, been framed in order to identify this issue as the one which was of importance in the case. He agreed that it had not been stated anywhere in the evidence or in the Secretary of State's skeleton argument that the decision had been reached on the basis of a collective decision by the Cabinet. But he said that the evidence was ambiguous on this point and that it required explanation. He referred to a transcript of Mr. Parker's submissions to the Divisional Court in which he made it clear that his argument was that, as there had been a collective decision by the Government that the Joint Declaration and the Basic Law would be complied with by the P.R.C., the issue whether there was a substantial risk to the respondent was non-justiciable.

Mr. Parker conceded that the question as certified did not now arise, in view of his submissions to your Lordships about the state of the evidence. Mr. Vaughan submitted that your Lordships had no jurisdiction to decide any question other that that which had been certified and that, even if your Lordships had jurisdiction to consider the questions of irrationality and illegality, these questions should be directed only to the point whether there had been a repudiation by the P.R.C., not whether a proper assessment had been made of the risks to the respondent. I do not think that I need to expand upon these submissions because, having conferred after listening to them, your Lordships reached the view that we should not decline to hear argument on issues other than on the question which had been certified.

In Attorney General for Northern Ireland v. Gallagher [1963] A.C. 350 it was held that the jurisdiction of this House under section 1 of the Administration of Justice Act 1960 in criminal cases is not confined to the point of law set out in the certificate. The same reasoning can be applied to this case. As Lord Reid indicated, at pp.365-366, the function of the House is to decide the appeal. The only alternative would be to remit to the Court below to reopen the case, to hear further argument and to reach a fresh decision in the light of it. There would then have to be a further appeal to bring the matter back before your Lordships' House. In the present case that would not be attractive--it would mean more delay--and it is also unnecessary. All the evidence about the decisions in question is before us, and we were able to hear a full argument on all the issues which the respondent's counsel, in the knowledge that there was a dispute on this point, had set out in their printed case. While it is regrettable that, as Mr. Parker now accepts, the true issues in the case were not clearly identified in argument in the Divisional Court with the result that they were misled into deciding the case on a wrong basis, it would not be in the interests of justice for your Lordships to decline to deal with all the issues now in this appeal.

We must decline to answer the certified question, as it is conceded that that question does not now arise. It is accepted that the question whether the Secretary of State reached a decision which he was entitled to reach is justiciable. So the issues which your Lordships must decide are the familiar ones upon which an administrative decision is subject to review--those of procedural impropriety, illegality and irrationality. In addition there are the issues relating to the respondent's rights under the European Convention on Human Rights and European Community law, which Mr. Vaughan was allowed to develop again before your Lordships in view of the wider scope which it was necessary, in fairness to the respondent, to give to the argument. I shall deal with the issues in that order. But it is first necessary to set the scene by examining the situation in Hong Kong in more detail and identifying the basis on which the Secretary of State reached the decisions which are under challenge in this appeal.