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R v. SECRETARY OF STATE FOR HOME DEPARTMENT ex parte KINGDOM OF BELGIUM v. R v. SECRETARY OF STATE FOR HOME DEPARTMENT ex parte AMNESTY INTERNATIONAL LIMITED and Five other applicants [2000] EWHC Admin 293 (15th February, 2000)
Case Nos: CO/236/2000
CO/238/2000
IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 15 February 2000
B e f o r e :
LORD JUSTICE SIMON BROWN
MR JUSTICE LATHAM
and
MR JUSTICE DYSON
|
R
v SECRETARY OF STATE FOR HOME DEPARTMENT
ex parte THE KINGDOM OF BELGIUM
|
Applicant
|
|
-
and -
|
|
|
R
v SECRETARY OF STATE FOR HOME DEPARTMENT
ex parte AMNESTY INTERNATIONAL LIMITED and Five other applicants
|
Respondent
Applicants
|
-
- - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J. Sumption QC & Mr P. Sales (instructed by Treasury Solicitor of
London SW1) for the Respondent
Mr R. Drabble QC & Miss Frances Webber (instructed by Messrs.
Bindman & Partners, Solicitors of London W1X 8QF) for Amnesty International
and 5 other applicants
Mr N. Pleming QC, Mr P. Sands, Mr R. Singh & Miss H. Mountfield
(instructed by Messrs Leigh Day & Co, Solicitors of London EC1M 4LB)
for The Kingdom of Belgium
Mr C. Nicholls QC & Mr J.B. Knowles (instructed by Messrs Kingsley
Napley, Solicitors of London EC1M 4AJ) for Augusto Pinochet Ugarte, an
interested party
- - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE SIMON BROWN:
Introduction
It is sixteen months since Senator Pinochet was arrested. What should happen
to him now? Should he be extradited to Spain to stand trial for the grave
crimes of which he is accused? Or should he be allowed to return home to
Chile? Many passionately hold one view, many the other. All, however, would
surely agree upon one thing. It is high time the decision was taken: Senator
Pinochet has spent quite long enough in this country. But the decision must,
of course, be taken lawfully, and that is the issue now before us.
This challenge, the latest in a whole succession of legal proceedings, is to
the Secretary of State's proposed decision not to extradite Senator Pinochet to
Spain on the ground that he is unfit to stand trial. More particularly at
issue is the Secretary of State's entitlement to take such a decision (as he is
"minded" to do) without first giving Spain and other requesting states sight of
the medical report which is critical to it. Shorn of the applicants' more
exorbitant demands - that they be allowed to examine Senator Pinochet
themselves, that they have an opportunity to question the four specialists who
prepared the Secretary of State's report, that the report be disseminated more
widely than to the four requesting states - this is the essence of their
complaint. What they ask is that the report now be disclosed to the
requesting states so that at least they may comment upon its conclusions.
There are two applicants before us, one the Kingdom of Belgium (Belgium), a
requesting state, the other a group of six human rights organisations headed by
Amnesty International (Amnesty). Their joint application for permission to
move for judicial review came initially before Maurice Kay J who dismissed it
on 31 January 2000: in the case of both applicants on the merits and in
Amnesty's case on the additional ground that they lack "sufficient interest"
i.e. standing. His judgment, right or wrong, is a model of clarity and
thoroughness extending to forty-five pages of transcript. On the core issue
he concluded:
"... that it is simply not arguable that the non-disclosure of the medical
report [to the requesting states] is unlawful, unfair or irrational."
The application was renewed before us. During the course of the hearing we
decided that it certainly merited permission and thereafter we proceeded to
deal with it as a substantive motion.
With that brief introduction let me now outline the facts as shortly as may be
The Facts
We shall assume our readers' familiarity with the earlier stages of this case:
Senator Pinochet's arrest in London on 16 October 1998 pursuant to a Spanish
warrant and the extensive subsequent litigation as to whether he enjoys state
immunity. I can pick up the story with the final House of Lords decision on
24 March 1999 essentially to the effect that the offences alleged in Spain's
request were "extradition crimes" only if committed after September 1988, and
that Senator Pinochet had no immunity in respect of such crimes committed after
December 1988. Following that decision, the Secretary of State on 14 April
1999 issued a fresh Authority to Proceed which Senator Pinochet thereafter
unsuccessfully sought to challenge.
The committal hearing before the Bow Street magistrate took place between 27
and 30 September 1999. On 8 October 1999 Senator Pinochet was committed on
all charges to await the decision of the Secretary of State as to whether he
should be extradited to Spain. A habeas corpus application was made
on Senator Pinochet's behalf on 22 October 1999 which presently stands fixed
for hearing on 20 March 2000. Under the Extradition Act 1989 the Secretary
of State cannot order extradition whilst that application remains outstanding.
He can, however, decide that he would not order Senator Pinochet's extradition
in any event and that is what he is presently minded to do.
Three other states, Belgium, France and Switzerland, have made requests for
Senator Pinochet's extradition. Pending the outcome of proceedings on the
Spanish request, no Authority to Proceed has been issued in respect of any of
these.
Recent events relate to Senator Pinochet's health. He is 84 years old.
The first sign that there might be a serious problem about his health came on 6
October 1999 when, two days before the judgment in the committal proceedings,
the Bow Street magistrate made the unusual decision to excuse him from
attending the judgment in person. That decision was based on evidence about
his state of health given to the court by the general practitioner attending
Senator Pinochet. On 14 October 1999, shortly after the magistrate's decision
to commit Senator Pinochet, the Secretary of State received representations
from the Chilean Embassy supported by medical reports which suggested that
there had been a recent and significant deterioration in Senator Pinochet's
health. After taking advice on the medical implications of this material from
the Chief Medical Officer (CMO), Professor Liam Donaldson, the Secretary of
State took the view that, whilst it was not conclusive, it did suggest that
Senator Pinochet might be unfit to stand trial. Although these
representations did not come from Senator Pinochet himself, the Secretary of
State was mindful of his duty to consider the discretion conferred upon him by
the Extradition Act in the light of relevant circumstances. He therefore
decided to invite Senator Pinochet to submit to a medical examination by a team
of clinicians appointed by the Secretary of State. The object was to obtain
an independent, comprehensive and authoritative report on the relevant facts
which would equip him to perform his statutory function. Correspondence
ensued between the Home Office and the solicitors representing Senator
Pinochet. In a letter dated 5 November 1999 the Home Office invited Senator
Pinochet to make himself available for medical examination. The letter went
on to state:
"It should go without saying that every effort would be made by the doctors and
their team, and the Home Office, to keep the report's contents entirely
confidential."
On 11 November 1999 Senator Pinochet's solicitors replied, stating:
"Senator Pinochet is prepared to undergo the examination on the understanding
that none of its contents are disclosed to anybody other than the Home Office
and ourselves."
Such a condition was considered to be too narrow by the Home Office officials:
it would have prevented the disclosure of the report to the Director of Public
Prosecutions or the Solicitor General in the event of a decision being made not
to extradite Senator Pinochet. Under Article 7 of the Convention Against
Torture the United Kingdom is required, if it does not extradite a person
accused of torture, "to submit the case to its competent authorities for the
purpose of prosecution." The functions of the Secretary of State in relation
to extradition include referring a case to the Director of Public Prosecutions
and the Solicitor General in this event. Such a reference would include
material relevant to any issue of Senator Pinochet's fitness for trial. On
29 November 1999 Senator Pinochet agreed to this provided that:
"... any medical report would not be considered for any other purpose and would
not be disclosed to any member of the Crown Prosecution Service in any other
capacity."
Thereafter the Secretary of State selected a team of clinicians who were
considered to have the required range of specialisations and who had no
inappropriate personal interest in the case. The selection was pursuant to
advice given by the CMO in the light of what was already known about Senator
Pinochet's condition. The team comprised Sir John Grimley Evans FRCP,
Professor of Clinical Geratology at the University of Oxford, a former
Vice-President of the Royal College of Physicians, who serves on the World
Health Organisation expert panel on the care of the elderly and who is
considered by the CMO to be "probably the most respected individual in British
geriatric medicine"; Dr Michael Denham, MD, FRCP, FRSA, Consultant Physician
in Geriatric Medicine at Northwick Park Hospital, London, a former president of
the British Geriatrics Society and the author of numerous papers on the care of
the elderly; and Professor Andrew Lees, MD, FRCP, Professor of Neurology at
the National Hospital for Neurology and Neurosurgery, London, a specialist in
movement disorders and dementia and medical adviser to and co-director of the
Parkinson's Disease Society. The CMO advised that all three are independent
practitioners of outstanding national and international reputation in their
fields. On the advice of the three clinicians and with the agreement of the
CMO, Maria Wyke MA, PhD, consultant neuro-psychologist, was added to the team.
Professor Lees and Dr Wyke are fluent Spanish speakers.
The medical examination was conducted in Spanish at the Northwick Park
Hospital over a period of some six hours on 5 January 2000. The Home Office
received the report of the examination the following day. The Secretary of
State's evidence describes it as follows:
"It summarises recent medical records concerning Senator Pinochet, and deals in
detail with his recent personal medical history and with the examination which
he underwent. The unequivocal and unanimous conclusion of all four
practitioners was that following the recent deterioration in the state of
Senator Pinochet's health which seems to have occurred mainly during September
and October 1999, he is not at present capable of meaningful participation in a
trial and that no change to that position can be expected. It is right to
emphasise that this statement is not simply the Secretary of State's inference
from the material which the report contains. It is the written conclusion of
the practitioners themselves."
Having received the report, the Secretary of State sought the advice of the
CMO. He advised that he had found the assessment made by the four
practitioners to be extremely thorough and their report to be clear and
comprehensive. He concluded that the report was authoritative and that it
left no reason to doubt the specialists' judgment that Senator Pinochet is not
fit to stand trial and that his present condition is not one which would be
expected to improve. The CMO also pointed out that the report made clear
that Senator Pinochet's condition could not be feigned and that this had been
backed up by some of the specialist tests which had been carried out.
On 11 January 2000 the Home Office wrote to the various interested parties
(including the applicants) to inform them of the Secretary of State's view.
All the letters referred to the finding of unfitness to stand trial and that no
change was expected. They also contained this passage:
"In the circumstances, you should note that the Secretary of State is minded to
conclude that there is no purpose to be served by continuing the present
proceedings, instituted as a result of the Spanish request of 16 October 1998
for his extradition. He is therefore minded to take a decision that he will
not extradite Senator Pinochet to Spain. The effect of such a decision would
be that the current basis for his continuing detention would lapse."
Amnesty and Spain were invited to submit any further representations (further,
that is, to those previously submitted at the Authority to Proceed stage) by 18
January. The other addressees were informed that that was the date by which
other parties were being invited to make representations.
In the letter to Senator Pinochet's solicitors the Home Office wrote this:
"In the light of the nature of the report, the Secretary of State is of the
view that it would be of assistance in enabling matters to progess as smoothly
as possible if it were disclosed in full, under conditions of strict
confidence, to Spain, France, Belgium and Switzerland. He is not, however,
asking for agreement to disclose the report any more widely, for example to
interested pressure groups."
Consent was refused.
Amnesty's letter in response raised a number of concerns as to whether other
particular experts should also have been involved and included this
paragraph:
"Quite apart from the public interest in securing compliance with international
obligations, there is the vital public interest in maintaining the integrity of
the criminal justice system. This integrity is severely damaged by the public
perception that defendants with influence or wealth, like Ernest Saunders, are
able to mock the system by feigning dementia for long enough to escape justice.
This is another factor making it imperative that a decision that Senator
Pinochet is unfit to stand trial is completely safe and is seen to be so."
Besides making other more extensive requests, Amnesty sought disclosure of the
report. The Home Office replied on 18 January and this letter I should quote
at length as did the judge below:
"In referring to Senator Pinochet's fitness to stand trial, the Secretary of
State is referring to his capacity to participate meaningfully in a trial.
The Home Secretary has proceeded on the footing that the decisive criteria are
the quality of his memory, his ability to process verbal information and to
follow the proceedings, his ability to understand the content and implications
of questions put to him, his ability to express himself coherently and
comprehensibly, and his ability to instruct his legal representatives. The
Home Secretary was not using the expression in the sense of ´general
physical debility'.
There has never been any obscurity about this. Immediately after making his
statement in the House of Commons on 12 January, the Secretary of State was
asked a question very similar to your own by Mr Simon Hughes. He replied in
substantially the same terms:
´Among the criteria that I took into account were whether the Senator
would be in a position to follow the proceedings, to give intelligible
instructions to those representing him and to give a coherent statement of his
case, and of recollection' [Hansard 12 January 2000 col 281]
The report of the medical examination of Senator Pinochet on 5 January directly
addressed all of the above matters. This was in accordance with their
instructions which stated the criteria as follows:
´Without in any way intending to limit the comprehensive scope of the
commission, the Home Secretary would be grateful in particular to be advised
whether, in your view, there are any aspects of Senator Pinochet's state of
health which, separately or together, would suggest that he is not at present
fit, or is likely to become unfit, to stand trial in Spain. In this context
he is particularly interested in Senator Pinochet's ability to follow a line of
questioning, to recall events, some of which took place as long ago as the
1970s, and to give coherent evidence. Any trial might be expected to take
place within the next 18 months to three years.'
I now turn to your request for a copy of the report. The report contains
detailed personal information about Senator Pinochet's medical history and the
examination which he underwent, which is confidential to him. The Secretary
of State is not at liberty to disclose it, because Senator Pinochet consented
to the medical examination on the express basis that the report was to be used
only for the purpose of enabling the Secretary of State to perform his
functions under the Extradition Act and of enabling the Director of Public
Prosecutions and the Solicitor General to perform their functions in relation
to any possible domestic prosecution, and that disclosure would accordingly be
confined to those three office-holders. Subject to any overriding public
interest, the Secretary of State is bound to respect those stipulations. It
appears to him that the relevant public interest is in the proper performance
of the functions of the three office-holders, and that the disclosure to which
Senator Pinochet has already consented is sufficient for that purpose. The
Secretary of State has already made it clear that he would have preferred to
disclose the report, as a matter of courtesy and on suitable terms as to its
further dissemination, to the relevant authorities of the Kingdom of Spain and
the three other states which have made extradition requests. Senator Pinochet
was asked to consent to this, but refused."
The letter then dealt with Amnesty's request to be allowed to have Senator
Pinochet further medically examined but no point now arises in that regard and
I need say no more about it.
Belgium's response to the letter of 11 January was essentially by way of two
letters rogatory issued pursuant to the European Convention on Mutual
Assistance in Criminal Matters. The first, dated 19 January, requested
assistance for the purpose of "appointing a panel of experts, medical doctors,
with the task ... of examining [Senator Pinochet] in depth and on an equal
footing ..." The second, dated 24 January, sought assistance in the form of
(i) disclosure of the medical report, and (ii) the hearing as witnesses of the
authors of the report.
Spain's response, it is convenient to note at this stage, was communicated by
letter from the Spanish ambassador dated 17 January:
"I have received instructions to convey to you the full Spanish respect for the
decision that the Home Secretary may take, in the understanding that the
decision that he has indicated that he is minded to take is within his
exclusive discretionary powers according to applicable British laws. With
regard to that, I confirm to you that the Kingdom of Spain has no intention to
appeal against the decision taken in due time by the Home Secretary."
The letter indicated the Spanish government's awareness that the decision
would be based upon "all the data available" and the representations previously
made. It also enclosed a detailed letter from the Spanish judge complaining
inter alia of "the lack of knowledge about the medical report upon which
an opinion is asked for, which renders a bit absurd situation (sic) ...
[and] makes impossible any kind of concrete pronouncement, rendering illusory
the guarantees that should be present - as essential elements - in every
criminal proceedings, i.e. the principle of equal opportunities for all
parties."
France and Switzerland, we are told, have made representations, to what effect
we know not.
The Application below
As already indicated, the applicants below were seeking substantially more in
the way of relief than they do now. Now they ask only that the Secretary of
State should do that which he has stated that he would like to do: disclose
the report under conditions of strict confidentiality to the four requesting
states.
There is another respect too in which the argument below went to issues that
fell away before us. Given the narrower basis of challenge now advanced, Mr
Sumption QC for the Secretary of State accepted that Amnesty as well as Belgium
have sufficient interest to give them standing. Nor has it been necessary to
explore the somewhat technical arguments that arose below with regard to
Belgium's letters rogatory.
On the core issue, however, the arguments before us plainly ranged further and
wider than in the court below. By no means all of them, I should warn, will
find mention in this judgment.
The Context of the Secretary of State's Decision
Before I turn to the arguments, it is necessary to set out the context in
which the decision was taken. The applicants' central contention is that the
requesting states, all of whom were given the opportunity (although only Spain
was expressly invited) to make representations in respect of the Secretary of
State's "minded to" decision, are entitled as a matter of fairness to be shown
the report. Fairness, therefore, is at the heart of this challenge and, as
Lord Mustill said in R v Home Secretary ex parte Doody [1994] 1 AC 531
at 560:
"What fairness demands is dependent on the context of the decision, and this is
to be taken into account in all its aspects. ... An essential feature of the
context is the statute which creates the discretion, as regards both its
language and the shape of the legal and administrative system within which the
decision is taken."
The decision which the Secretary of State is presently considering falls to be
taken under s.12 of the Extradition Act 1989:
"(1) Where a person is committed under s.9 above and is not discharged by order
of the High Court [as stated, Senator Pinochet's application for habeas
corpus remains outstanding], the Secretary of State may by warrant order
him to be returned unless his return is prohibited, or prohibited for the time
being, by this Act or the Secretary of State decides under this section to make
no such order in his case.
(2) Without prejudice to his general discretion as to the making of an order
for the return of a person to a foreign state ...
a. the Secretary of State shall not make an order in the case of any person if
it appears to the Secretary of State in relation to the ... offences in respect
of which his return is sought that ... (ii) by reason of the passage of time
since he is alleged to have committed it ... it would, having regard to all the
circumstances, be unjust or oppressive to return him ..."
Were the Secretary of State to take the view that Senator Pinochet's medical
condition brought him within s.12(2)(a)(ii) and that in those circumstances it
would be "unjust or oppressive to return him", then he would have no discretion
in the matter: Senator Pinochet would have to be discharged. If, however,
s.12(2)(a) does not apply - and the case law suggests a narrow application of
these provisions - the Secretary of State would nevertheless have a general
discretion in the matter and would then need to have regard to a whole range of
other considerations - including his policy in extradition cases, various
political considerations (one notes amongst the consultees the Government of
Chile, the Foreign and Commonwealth Office and the Ministry of Defence), and
where best the decision on fitness for trial should be taken - the relevance
and weight of which would be entirely for him.
If at any point the Secretary of State were contemplating making an order for
Senator Pinochet's return, it should be noted, Senator Pinochet would have the
right to make representations under s.13(2) of the Act, and if, despite those
representations, a warrant for his return were issued, a right under s.13(6) to
apply for leave to seek judicial review of the Secretary of State's decision to
make the order. The respondents point out that there is no equivalent
provision in the Act for the requesting state to be given advance notice of an
adverse decision and an opportunity to make representations about it. They
point too to dicta of the highest authority indicating that the Secretary of
State's discretion is unfettered and that it exists mainly for the benefit of
the accused, not the requesting state. As Lord Reid said in Atkinson v
Government of the United States of America [1971] AC 197 at 232:
"The Secretary of State always has power to refuse to surrender a man committed
to prison by the magistrate. It appears to me that Parliament must have
intended the Secretary of State to use that power whenever in his view it would
be wrong, unjust or oppressive to surrender the man."
This approach, the Secretary of State and Senator Pinochet submit, is
consistent too with the provisions of the European Convention on Extradition
under which the rights of requesting states are limited. Their express rights
are solely (i) to make an extradition request (Article 12), (ii) to be given an
opportunity to supply any supplementary information necessary to enable the
requested state to make a decision (Article 13) and (iii) to be given reasons
by the requested state for any complete or partial rejection of their request
(Article 18(2)). By Article 22 it is provided that: "Except where this
Convention otherwise provides, the procedure with regard to extradition and
provisional arrest shall be governed solely by the law of the requested
Party."
Essentially, therefore, submit the respondents, the Secretary of State's
discretion exists principally for the protection of the accused and neither the
Statute nor the Convention accord to the requesting state any right to
participate in its exercise. Rather the decision falls to be taken by the
executive authority acting inquisitorially and, as Staughton LJ said in R v
Secretary of State ex parte McGuire [unreported, 25 November 1995]:
"What fairness requires in this situation is a proper balance between the basic
requirements of justice on the one hand and the manifest intent of the statute
on the other that there should not be a lengthy and elaborate trial before the
fugitive can be surrendered for trial somewhere else."
A fortiori, submit the respondents, there should not be a lengthy and
elaborate trial before an accused can be discharged.
The Secretary of State's Argument
That statutory context notwithstanding, the Secretary of State accepts that
the interests of the requesting states (and most particularly Spain) are
directly affected by his decision and that he is under a duty to act fairly
towards them. He submits, however, that fairness here does not require the
disclosure of the report to those states. True, he acknowledges, where a
public authority is under an obligation to consult others about a prospective
decision or chooses to do so, the consultation must be effective. As Webster
J said in R v Secretary of State for Social Services ex parte Association of
Metropolitan Authorities [1986] 1 WLR 1, 4:
"... sufficient information must be supplied by the consulting to the consulted
party to enable it to tender helpful advice. ... By helpful advice in this
context, I mean sufficiently informed and considered information or advice
about aspects of the form or substance of the proposals, ... being aspects
material to the implementation of the proposals as to which the Secretary of
State might not be fully informed or advised and as to which the party
consulted might have relevant information or advice to offer."
Here, submits Mr Sumption, the requesting states were not being consulted upon
Senator Pinochet's clinical condition but rather upon the implications of that
condition for the Secretary of State's final decision, for example upon whether
it would be more consonant with justice to leave to Spain the question of
fitness for trial. And certainly, he submits, the consultees could have
nothing useful to say about Senator Pinochet's fitness to stand trial: the
primary facts about his condition are a matter of direct clinical observation
and cannot be challenged by those who have not observed him; the rest is a
matter of professional opinion based on those facts. Unless, therefore, the
report on its face contains some patent logical or clinical error which
vitiates its conclusions, no effective representations could be made upon it.
In the light of the CMO's assessment of the report as comprehensive and
authoritative, the Secretary of State is satisfied that no such vitiating error
exists. In short, submits Mr Sumption, even if the requesting states are to
be regarded as having been consulted generally upon the question of Senator
Pinochet's future, his fitness to stand trial was not an "aspect" of the
decision upon which they "might have relevant information or advice to offer."
Mr Sumption further relies in this part of his argument upon the authority of
R v Joint Higher Committee on Surgical Training ex parte Milner (1995) 7
Admin LR 454 in which Ognall J rejected the applicant's complaint about the
non-disclosure of his tutors' reports upon his surgical abilities on the
footing that he "has not demonstrated that the evidence on which the [advisory
committee] relied is amenable to any significant challenge or any challenge
which would have made any difference to the outcome." So too here, submits
the Secretary of State. The possibility of the requesting states being able
to affect his thinking on the issue of fitness for trial is remote and highly
speculative. The court is not concerned with theoretical possibilities but
with substantial injustice - see R v The Chief Constable of the Thames
Valley Police ex parte Cotton [1990] IRLR 344.
Not merely is the Secretary of State therefore not bound to disclose the
report, but, submits Mr Sumption, he is not even entitled to do so and this,
moreover, considerations of confidentiality apart. In support of this limb of
his argument Mr Sumption relies on R v Chief Constable of North Wales Police
ex parte Thorpe [1999] QB 396, a case where convicted paedophiles
unsuccessfully sought to challenge the right of the police to disclose
information about them in the locality to which they had moved upon release
from prison. Lord Bingham CJ in the Divisional Court (at pp.409 - 410) said
this:
"When, in the course of performing its public duties, a public body ... comes
into possession of information relating to a member of the public, being
information not generally available and potentially damaging to that member of
the public if disclosed, the body ought not to disclose such information save
for the purpose of and to the extent necessary for performance of its public
duty or enabling some other public body to perform its public duty ... The
principle ... rests on a fundamental rule of good public administration which
the law must recognise and if necessary enforce."
In the Court of Appeal Lord Woolf MR put the principle thus:
"... the information having come into the police's possession to enable them to
perform their functions, as a public body they were only entitled to use that
information when this was reasonably required to enable them to properly carry
out their functions."
It is Mr Sumption's contention that it is unnecessary for the Secretary of
State to disclose the report to the requesting states for the proper
performance of his public duty. This is to reach a decision under s.12 and,
if he refuses extradition, to refer the case to the Solicitor General and DPP
pursuant to Article 7 of the Torture Convention. If, as he is satisfied,
consultation with the requesting states on the contents of the report would
serve no useful purpose, then it cannot be necessary for the performance of his
public duty that he should disclose it to them. Only if there was a realistic
possibility of their being able to make effective representations on the issue
of Senator Pinochet's fitness to stand trial would the Secretary of State be
entitled to disclose the report to them. Perhaps then in any event Spain at
least would be entitled to see the report pursuant to their right under Article
13 of the European Convention on Extradition to be given the opportunity to
supply "supplementary information necessary to enable the requested state to
make a decision".
Mr Sumption turns next to an important further feature of this report, namely
its confidential character. That medical information is intrinsically
confidential (and attracts the right of privacy under ECHR) is indisputable.
And this report, of course, was subject also to an express assurance of
confidentiality. Senator Pinochet cannot be deprived of these rights without
proper legal reason and here, submit the respondents, there is none. There is
no point in consulting on the contents of the report since its conclusions
cannot usefully be challenged. Disclosure to the requesting states,
therefore, is not necessary for the proper performance of the Secretary of
State's executive function so that there exists no countervailing public
interest capable of overriding Senator Pinochet's rights. Disclosure here, Mr
Sumption argues, would not be "in accordance with the law and ... necessary in
a democratic society ... for the prevention of disorder or crime" (Article 8.2
of ECHR) as those terms are explained in the Strasbourg jurisprudence.
In the result, submits Mr Sumption, although the Secretary of State would
prefer as a matter of courtesy to disclose the report to the four requesting
states, he is not in law entitled to do so, a submission in which he is
strongly supported by Mr Nicholls QC for Senator Pinochet.
These are powerful arguments. But there are powerful arguments on the other
side too. Before I turn to these, however, it is convenient first to say
something about the Secretary of State's initial assurance to Senator Pinochet
that the report's contents would be kept "entirely confidential" (letter of 5
November 1999) and "would not be disclosed" save to the Secretary of State,
DPP, and Solicitor General (letter of 29 November 1999).
The Secretary of State's assurance of confidentiality
Although at first blush that express assurance might be thought of some
importance, Mr Sumption tells us that in fact it plays little if any part in
the Secretary of State's decision not to disclose the report. And that,
indeed, is the logic of his argument: given that the contents of the report
are in any event confidential, then no assurance was required; equally, if the
public interest in disclosure is such as to outweigh the confidentiality,
disclosure would have to be made whether or not an assurance had been given.
In short, Mr Sumption tells us, the assurance was given because it was thought
that in those circumstances Senator Pinochet would be more likely to agree to
independent medical examination (his health having been put in issue by Chile
rather than himself) but the Secretary of State regarded it in any event as
subject to an implied term that it would give way to any overriding public
interest. Mr Sumption, indeed, further suggests that disclosure has already
been made in two respects beyond that to which Senator Pinochet consented. In
the first place, the report was disclosed to the CMO, an officer of the
Department of Health, not the Home Office. Secondly, the report's conclusions
were announced by press notice, to the effect that Senator Pinochet is and is
likely to remain permanently unfit to stand trial, and moreover the Secretary
of State has published his instructions to the clinicians and the criteria by
which they reached their conclusion, namely Senator Pinochet's ability to
follow the proceedings, give intelligible instructions to his lawyers, recall
events, and give coherent evidence.
There is this further important consideration. As Mr Stadlen, the senior
Home Office official concerned with extradition, states in his witness
statement of 7 February 2000 (provided at our request during the hearing):
"In almost all cases where the accused's health is raised as a serious issue, I
would normally expect it to be necessary to seek further information from the
requesting state. There are two reasons for this. The first is that the
accused's condition is almost invariably amenable, at least to some extent, to
treatment or alleviation. Its significance may therefore depend on the
facilities available in the requesting state for treating him or otherwise
dealing with his condition ... This is so, whether it is being contended that
the accused is unfit to stand trial or simply that it would be unduly harsh to
extradite him. The Home Office's ordinary practice in such cases is to seek
information on this point from the requesting state, so that it can be put
before the Secretary of State when he makes his decision. For this purpose it
is usually necessary to supply the requesting state with a copy of the medical
report so that it may properly consider the facilities for dealing with the
problems described in it. The second reason why the accused's health may
make it necessary to seek further information from the requesting state applies
only to cases where it is being said that he is unfit to stand trial. In this
case the Home Office may ask the requesting state what are its criteria and
procedures for determing the accused's fitness to plead."
Mr Stadlen then describes Senator Pinochet's case as unique in a number of
respects including this:
"... his condition is of such a nature that no significant improvement can be
expected. This meant that there was no question of enquiring of the
requesting states what facilities they had for treatment or alleviation. So
far as I am able to discover, there has been no previous case of an accused who
on the best available medical evidence, was permanently unfit to be tried."
It follows from all this that had the report not, uniquely amongst such
reports, concluded that no significant improvement can be expected in Senator
Pinochet's condition, it would in any event have been disclosed to the
requesting states. It is hardly surprising that in these circumstances the
Secretary of State's case for non-disclosure is not founded upon the assurance.
The assurance accordingly has now lost the significance which appears earlier
to have been attached to it - not least, for example, in the Home Office's
letter to Amnesty of 18 January 2000 - and it is therefore unnecessary to
explore, as at one stage had seemed essential, both the wisdom and the effect
of the Secretary of State having given the assurance in the first place.
On analysis there arises but a single question in this case: does the public
interest in making the limited further disclosure now sought outweigh the
remaining confidentiality in the report? That in turn seems to me to depend
upon whether disclosure to the requesting states is required in the interests
of fairness. If fairness demands disclosure, then to my mind disclosure
clearly becomes the overriding public interest.
The Applicants' Argument
Although both Mr Pleming QC for Belgium and Mr Drabble QC for Amnesty made
their own very full written and oral submissions to the court, I think it
convenient, now that standing is no longer in issue because the applicants
jointly seek the same relief, to treat their cases for the most part
indistinguishably. Three central themes dominate their arguments. First
that, contrary to Mr Sumption's core submission, the requesting states might
well be able to make useful representations on the content of the report.
Second, that an executive decision maker, acting quasi-judicially as the
Secretary of State on 13 January 2000 told Parliament he is, cannot properly
withhold from directly interested parties the very material which is likely to
form the foundation of his decision simply on the basis of his ipse
dixit that its conclusions are incontrovertible. Third, it is submitted
that the appearance of fairness is of very particular importance in the
circumstances of this unique case. Let me consider these briefly in turn.
The applicants contend that, if the report were disclosed to them, the
requesting states would be able to express views (a) upon the value of the
particular tests used to establish whether Senator Pinochet could meaningfully
participate in a trial, (b) whether or not his condition (i) could be feigned,
and (ii) is permanent, and (c) whether the analysis of the tests and the
conclusions drawn from them were valid. The mere fact that the clinicians
selected for the examination were of great eminence and that the CMO was later
involved does not mean that the conclusions drawn from the report are
necessarily unassailable. It is salutary to recall Megarry J's celebrated
dictum in John v Rees [1970] Ch. 345, 402:
"It may be that there are some who would decry the importance which the courts
attach to the observance of the rules of natural justice. ´When
something is obvious,' they may say, ´why force everyone to go through the
tiresome waste of time involved in framing charges and giving an opportunity to
be heard? The result is obvious from the start.' Those who take this view
do not, I think, do themselves justice. As everybody who has anything to do
with the law well knows, the path of the law is strewn with examples of open
and shut cases which, somehow, were not; unanswerable charges which, in the
event, were completely answered; of inexplicable conduct which was fully
explained; of fixed and unalterable determinations that, by discussion,
suffered a change. Nor are those with any knowledge of human nature who pause
to think for a moment likely to underestimate the feelings of resentment of
those who find that a decision against them has been made without their being
afforded any opportunity to influence the course of events."
Milner, submit the applicants, was a very different case. At the
heart of the judge's conclusion there was that the undisclosed reports
contained essentially expressions of opinion rather than disputed matters of
fact; the applicant "might have vigorously dissented from them, but could not
in any sensible way have corrected them." Here, by contrast, the medical
opinions relied upon by the Secretary of State depend crucially on the
undisclosed primary facts and, it is said, the requesting states (or rather the
medical experts advising them) may well have informed comment to make upon
them.
The applicants' second main argument is that where, as here, the undisclosed
report founds the very basis of the proposed decision, a fairness challenge
cannot be resisted simply by asserting that its effect is overwhelming. That
is decision-making by ministerial fiat based on unexamined material.
It is hidden justice, the very antithesis of a just procedure. Once, as here,
an obligation to act fairly to the requesting states as directly interested
parties is recognised, then the material upon which it is proposed to take the
decision should be made available to them unless there are compelling reasons
to the contrary. Here there are not. Given (a) the extent to which the
conclusions of the report have already been made public, and (b) the limited
and closely controlled further disclosure now sought, comparatively little
further impairment of privacy would be involved.
Thirdly, this is on any view a highly exceptional case and yet, paradoxically,
it appears to be the only extradition case in which, according to Mr Stadlen,
the Secretary of State has not consulted with the requesting state on the
medical issues raised in respect of the accused. One exceptional feature of
this case is that it involves allegations of international crimes, crimes
against not only the laws of particular states but the laws of all nations.
Lord Browne-Wilkinson in R v Bow Street Magistrate ex parte Pinochet
(No. 3) [1999] 2 WLR 827, 841, noting that the international law prohibiting
torture has the character of jus cogens or a peremptory norm, said
this:
"The jus cogens nature of the international crime of torture justifies
states in taking universal jurisdiction over torture wherever committed.
International law provides that offences jus cogens may be punished by
any state because the offenders are ´common enemies of all mankind and all
nations have an equal interest in their apprehension and prosecution':
Demjanjuk v Petrovsky (1985) 603 F.Supp. 1468."
The applicants contend that it cannot be right for the executive of a single
state to make so fundamental a decision in relation to the unfitness for trial
of an alleged "enemy of all mankind" without subjecting the underlying medical
report to some form of consideration by requesting states who "have an equal
interest in [Senator Pinochet's] apprehension and prosecution."
Conclusions
I have not found this an easy case. There are, as I have said, powerful
arguments on both sides. Ultimately, as I have sought to explain, there is
but a single question for our determination: does fairness require disclosure
of this report to the requesting states? This is not a question which we can
shirk on the footing that the procedure to be followed by the Secretary of
State is substantially a matter for him. It is not. As De Smith, Woolf and
Jowell, 5th edition, states at pages 406- 407:
"Whether fairness is required and what is involved in order to achieve fairness
is for the decision of the courts as a matter of law. The issue is not one
for the discretion of the decision-maker. The test is not whether no
reasonable body would have thought it proper to dispense with a fair hearing.
The Wednesbury reserve has no place in relation to procedural propriety."
The footnoted case of R v Panel on Takeovers and Mergers ex parte
Guinness [1990] QB 146 is clear authority for that proposition.
I readily see the force of much of Mr Sumption's argument. In common with
the Secretary of State, I too doubt whether on sight of the report the
requesting states would in reality be able to make representations seriously
challenging the cogency of its conclusions. I recognise too that some
additional loss of confidentiality and privacy would be involved in any further
disclosure of the report and that Senator Pinochet remains an unconvicted
accused who himself has rights which must be protected. It is also true that
under the scheme of extradition contemplated by the European Convention and the
1989 Act there is no right in the requesting state, let alone anyone else, to
participate fully in decisions taken by the executive of the requested state in
the exercise of its wide discretion. As Mr Stadlen observes:
"In no previous case of which I am aware has the Secretary of State announced a
provisional decision publicly and invited representations from the parties.
Representations were invited on this occasion from those who had participated
in the hearings in the House of Lords and made representations on the two
occasions when the Secretary of State was considering the issue of Authorities
to Proceed. This reflected the exceptional public controversy surrounding the
Pinochet case, and a genuine belief that human rights organisations with
special expertise of international human rights law and practice might have
something to say in those areas which would be of value in the decision-making
process."
The Secretary of State plainly cannot be faulted in the care he took to
commission as expert and authoritative a medical report as possible, nor in the
range of those whom he later chose to consult. He is, indeed, much to be
commended in these regards. Mr Sumption makes the further telling point that
never previously has a requesting state (or anyone else) sought to challenge a
decision of the Secretary of State favourable to the accused. Rather such
decisions have hitherto been accepted with good grace. It is, he submits, of
some significance that Spain is not amongst those challenging the present
decision. These are, I repeat, powerful arguments.
Yet despite them all I find myself driven to conclude that this report really
ought to be disclosed to the requesting states. The decision which the
Secretary of State is "minded to" take is, it need hardly be emphasised, one of
very great moment. Its consequence would be that Senator Pinochet, accused
though he is of the most terrible crimes, would be effectively untriable
anywhere in the world. He would not be extradited to Spain. No more would
he be extradited to any of the other three requesting states. Although
theoretically the Solicitor General and DPP would need to reach an independent
decision on whether to prosecute him here under Article 7 of the Torture
Convention, the inescapable logic of the Secretary of State's position is that
they too would inevitably find Senator Pinochet unfit for trial. Whilst, of
course, the Chilean authorities would not themselves be bound by the Secretary
of State's conclusion, Senator Pinochet would presumably pray it in aid with
compelling effect in any proceedings brought against him there. If ever there
were a case in which the integrity of the international criminal justice system
needed to be demonstrated, a case calling for the highest standards of fairness
and transparency, this is it. It is simply not satisfactory that this
all-important medical report should be seen only by four office-holders within
a single state.
Much would be gained by the limited further disclosure now sought;
comparatively little lost. The gains would be first and foremost that the
requesting states would have the opportunity to comment - and just might have
something constructive to say - about the report's conclusions. Second,
justice would be seen to be done. Third, minds would be set at rest. If,
as the Secretary of State clearly supposes, those who see the report are almost
certain to endorse his conclusion upon it, that very endorsement might be
expected to reassure the wider world. More than mere courtesy (or "good
public relations" as Mr Sumption came to call it) would be achieved: a
uniquely controversial case would have been decided according to the fairest
possible procedures. And what would be lost? Little in the way of delay,
even at this late stage. As we indicated during the hearing, the Secretary
of State would need to allow the requesting states no more than perhaps seven
days following sight of the report to make their final comments upon it. It
would then be for him alone (aided by such further advice as he chose to take)
to evaluate these responses and reach his final decision. There is no
question of embarking on "a lengthy and elaborate trial" of the kind rightly
held inappropriate in ex parte McGuire. Nor will the order proposed
here represent a charter for disappointed prosecutors or victims in future; it
is difficult to imagine another case combining so many extraordinary features
as this one.
As for the additional loss of confidence involved in further disclosure of the
report, this seems to me in the particular context both limited and
predictable. Its limited nature is surely obvious. The report's conclusions
have already been publicly announced. What remains to be disclosed are the
factual findings underlying them and these will be seen only by the requesting
states and under conditions of strict confidence. Why I describe this
additional loss of confidence as predictable is because the issue to which the
report goes - the accused's fitness for trial - is ordinarily one for
resolution within the judicial process. Under domestic law the question of
fitness to plead is one for a jury, that of general fitness to stand trial (at
any rate once proceedings have started) one for the judge. And, as I
understand it, in all the other states party to the European Convention on
Extradition the present issue would fall to be resolved by the courts rather
than the executive. Indeed, were Senator Pinochet to rely on his medical
condition in the course of his pending habeas corpus application under
s.11 of the 1989 Act (the terms of which precisely mirror those of s.12), the
report then would clearly have to be disclosed at least to Spain.
I recognise, of course, that initially it was Chile who put Senator Pinochet's
medical condition in issue and that it was at least partly for this reason that
the express assurance of confidentiality was given. Once, however, Senator
Pinochet lent himself to what is essentially an application for discharge on
the ground of unfitness to stand trial - as to my mind he did by submitting to
medical examination - and once one discounts the express assurance of
confidentiality - as for the reasons already given one must - these factors
cannot in my judgment outweigh the demands of fairness and transparency in the
decision-making process.
What, then, of the respondents' reliance on Article 8 of ECHR to protect
Senator Pinochet's privacy? In my judgment it is misplaced. Accepting
entirely, as I do, "that the protection of ... medical data is of fundamental
importance to a person's enjoyment of his or her right to respect for private
and family life" (see MS v Sweden (1999) 28 EHRR 313, 338), I
nevertheless conclude that the limited further disclosure proposed here would
be both "in accordance with the law" and "necessary in a democratic society ...
for the prevention of discorder or crime". I have already described the
proposed disclosure as predictable and to my mind Senator Pinochet could
properly have foreseen that it would be required by the common law in the
interests of a fair and just procedure. "The prevention of disorder or crime"
extends to the prosecution or extradition of alleged offenders and again it
seems to me that the limited further interference with Senator Pinochet's
rights proposed here is proportionate to the pressing social need for such a
process to apply fairly to all concerned and not merely the accused himself.
Even, therefore, were the Human Rights Act 1998 already in full force, I would
not regard the proposed order as involving any violation of Senator Pinochet's
Article 8 rights.
It follows from all this that on the central issue arising on this challenge I
would hold that fairness demands that the report now be disclosed to the four
requesting states and that they be given a brief opportunity to comment upon
it. I reject the Secretary of State's argument that this can be dispensed
with as "pointless," and I reject too his and Senator Pinochet's contention
that the loss of confidentiality and privacy involved is disproportionate to
the advantages this will bring. In the result, the Secretary of State is not
merely entitled to make disclosure; he is obliged to do so. The governing
interest is the public interest in operating a procedure which would be
perceived and accepted by the great majority to be fair. That is the
imperative and in my judgment it outweighs any contrary private interest.
That, therefore, is the order I would make.
I should perhaps add this. I regard the challenge advanced by these
particular applicants as neither weaker nor stronger than any challenge which
Spain itself might have brought. Not weaker because, once their standing is
accepted, the court must rule on the issue raised - the fairness and thus the
legality of the procedure impugned - no less than were Spain the applicant.
Not stronger because I find no substance in any of the party-specific arguments
raised by each applicant. I reject Mr Pleming's contention that Belgium must
be regarded as "some other public body" (within Lord Bingham's formulation in
ex parte Thorpe) which now needs to see the report "to perform its
public duty", namely to decide whether or not to pursue its own extradition
request. That seems to me entirely artifical and contrived. But, of course,
the submission is an unnecessary one given that ex parte Thorpe cannot
in any event avail the Secretary of State once the court holds, as I would, the
further disclosure to be "necessary for [the] performance of [his]
public duty." Nor do I find Mr Drabble's reliance on Article 6 of ECHR any
more convincing than did Maurice Kay J on the initial application. The
argument in essence is that a number of torture victims represented by Justicia
propose to bring civil claims in Spain which would be dependent upon the
successful prosecution there of Senator Pinochet, and that this prospect ought
not to be curtailed by the Secretary of State's proposed decision without the
process being attended by greater procedural safeguards than have thus far been
afforded. Of course one sympathises deeply with the victims of torture:
their concerns that justice in the extradition process be done and be seen to
be done is readily understandable. Their civil claims, however, to my mind
add nothing to their urgent plea that, if at all possible, Senator Pinochet
should stand trial.
Finally this. Much was made by Mr Pleming in argument of the importance in
this case of international law obligations and the comity of nations, and true
it is that our law is replete with dicta explaining how extradition is
founded in concepts of comity and reciprocity. But it is important to
recognise the nature of the rules of comity in public international law. They
are, said Lord Diplock in Buck v The Attorney General [1965] 1 Ch. 745
at 770, "the accepted rules of mutual conduct as between state and state which
each state adopts in relation to other states and expects other states to adopt
in relation to each other". Or, as Donaldson LJ put it in Buttes Gas and
Oil Company v Hammer [1981] QB 223 at 256: "do as you would be done
by".
I do not believe that comity in the present context requires more of the
Secretary of State than that he acts with the conspicuous fairness to the
requesting states which disclosure of the report to them would represent.
And this too should be added. Comity, like fairness, is a two-way street.
Both Belgium and Amnesty have clearly stated that they would support the
Secretary of State's decision if only they could be satisfied that Senator
Pinochet is indeed shown by the report to be permanently unfit to stand trial.
The requesting states, one must hope and expect, will not lightly dissent from
the Secretary of State's conclusion. They will wish to be scrupulous to
ensure that any critique they make of the report is itself fair. They too
must do as they would be done by.
That, however, is but a footnote. For the reasons given earlier, this
application succeeds.
MR JUSTICE LATHAM:
This application raises novel and difficult issues as to the functions and
duties of the Secretary of State in a case which has already resulted in
substantial legal and political controversy. I agree with Simon Brown LJ that
the issue before us can be reduced to the single question: did fairness, in
the context of these extradition proceedings, require the Secretary of State to
disclose the contents of the medical reports to the requesting states? The
Secretary of State has consistently argued that the obligation upon him, when
considering whether or not to exercise the discretionary power under Section 12
of the Extradition Act 1989 not to order Senator Pinochet's return to Spain,
required him to do no more than fully inform himself of all relevant material,
and come to a rational decision in the light of that material. He accepts a
limited duty to consult those from whom he invited representations as to what
consequences should follow from his conclusion that Senator Pinochet is unfit
to stand trial. He also accepts that he would be bound to take into account
any relevant representations made by any person, organisation, or country, and
in particular the requesting states, who, although not expressed to be
consultees, nonetheless clearly had the opportunity to make representations.
He asserts that no useful purpose would be served by consulting in relation to
the medical reports, as to which he has already reached a clear and unequivocal
conclusion, supported by the Chief Medical Officer. Further medical opinions
he says would either be of no value, as any doctor seeking to give such an
opinion could not examine Senator Pinochet himself, or be of little value. It
follows that there is no significant prospect of consultation in relation to
the medical reports producing any material of value in the decision that he has
to make. It follows, he says, that there is no public interest which could
justify the clear breach of confidence which would be entailed in disclosing
the medical reports.
The Human Rights organisations, and Belgium, have all now narrowed their
argument to the proposition that the requesting states have an interest in the
decision which is sufficient to entitle them to be consulted as a matter of
fairness, and that proper consultation necessarily involves disclosure of the
medical reports. They say that the Secretary of State has misdirected himself
if he considers that no useful purpose could be served by such disclosure. It
is said that useful comment could be made, inter alia, about whether or not the
clinical examination and tests were appropriate and did support the medical
opinions expressed, and whether or not the medical opinions supported the
Secretary of State's conclusion. It is pointed out that the Secretary of State
himself considered that it was appropriate, strictly in breach of the assurance
of confidentiality, to obtain the opinion of the Chief Medical Officer. The
consultation offered is so restricted as to be meaningless. The result would
be that the Secretary of State could come to a conclusion which would have the
consequences described by Simon Brown LJ on the ipse dixit of the Secretary of
State without any opportunity for anyone, including the Court, to comment on
the extent to which the conclusion the Secretary of State has reached as to
Senator Pinochet's condition is indeed justified by the medical reports.
Those are the battle lines drawn by the protagonists on what I conceive to be
the central issue. I agree with Simon Brown LJ that the discrete point taken
by the Human Rights organisations based upon Article 6 of the European
Convention of Human Rights has no merit. Whilst the interests of victims are
capable of being a consideration relevant to the exercise of the Secretary of
State's discretion, a refusal to order Senator Pinochet's return in no way
interferes with the rights of those victims in the United Kingdom nor does it
preclude them from bringing civil proceedings wherever they wish to do so.
Equally, for the reasons that he has given, it seems to me that the arguments
which have been addressed to us arising out of the assurances given to Senator
Pinochet are of subsidiary relevance. The assurance was inevitably subject to
any overriding considerations of public interest. Clearly Article 8 is
relevant in this context; but, as Simon Brown LJ has explained, does not at
the end of the day add anything in this context to domestic law.
Having formulated the essential question in the way I have, I do not intend to
dissent in any way from the proposition of the Secretary of State that the
exercise that he is engaged in is the exercise of a discretionary power, in
which his fundamental obligation is to take reasonable steps to inform himself
of all relevant material and come to a rational conclusion on that material.
Fairness will necessarily be part of the process wherever the exercise of the
discretion is capable of affecting the interests of a person or body to the
detriment of that person or body. But that general statement of principle is
in one sense no help. The Secretary of State has, by implication even if not
expressly, accepted a duty to act fairly in the sense that he considers that it
is appropriate for him to obtain representations in relation to the course of
action that he should adopt in the light of his conclusions. The concept of
fairness underpins the duty to consult. It is the rationale of any express
duty to consult, and the justification for any implied duty, whether expressed
as arising from a legitimate expectation, or otherwise. The difficulty is in
deciding how the concept of fairness can be met in any given case.
In R v Home Secretary ex p Doody [1994] 1AC 531 at page 560 Lord Mustill
set out a number of factors which have to be borne in mind. In particular he
said:
"(3) The principles of fairness are not to be applied by rote identically in
every situation. What fairness demands is dependent on the context of the
decision, and this is to be taken into account in all its aspects.
(4) An essential feature of the context is the statute which creates the
discretion, as regards both its language and the shape of the legal and
administrative system within in which the decision is taken.
(5) Fairness will very often require that a person who may be adversely
affected by the decision will have an opportunity to make representations on
his own behalf either before the decision is taken with a view to producing a
favourable result; or after it is taken, with a view to procuring its
modification; or both.
(6) Since the person affected usually cannot make worthwhile representations
without knowing what factors may weigh against his interests of fairness will
very often require that he is informed of the gist of the case which he has to
answer.......
...... the respondents acknowledge that it is not enough for them to persuade
the Court that some procedure other than the one adopted by the decision maker
would be far better or more fair. Rather they must show that the procedure is
actually unfair. The Court must constantly bear in mind that it is to the
decision maker, not the Court, that parliament has entrusted not only the
making of the decision but also the choice as to how the decision is made."
In the present case, the context includes not only domestic legislation, but
international treaties, as explained by Simon Brown LJ. There is much to be
said for the view which underpins the argument of the Secretary of State, that
the requesting state has only a limited role once the requested state has
accepted that extradition procedures are appropriate in relation to the accused
in question. Clearly, at the time that it is making the request, it has the
task of setting out sufficient material to persuade the Secretary of State to
give his authority to proceed. But thereafter, apart from the opportunity to
respond to a request for further information, neither the European Convention
on Extradition Order 1990 nor the Extradition Act 1989 envisage a separate role
for the requesting state beyond that required for the judicial process of
determining whether the requirements of the Act have been satisfied so as to
justify the return of the accused.
In support of their argument that the requesting state does have a role in any
discretionary decisions which may fall to be made, the Human Rights
organisations and Belgium rely on the international obligation of comity which,
it is said, requires a requested state to consult a requesting state if a
discretionary decision to refuse to order return is contemplated. I have
considerable difficulty with this argument. If a settled practice could be
identified by which nations did consult in such circumstances, then that might
have provided some basis for the argument that comity, as a distinct principle,
had some application to this type of situation. In the absence of any evidence
of such practice, I cannot see how the concept of comity advances the case any
more than the general principle of fairness does. Either a requesting state
has, in the context of the treaties and legislation a sufficient interest in a
particular decision to justify the conclusion that a failure to consult will
amount to unfairness, or it does not.
For my part, I have little difficulty in accepting the proposition that the
requesting state does have a sufficient interest in a decision as to whether or
not, in the exercise of discretion, the Secretary of State should decline to
order return to justify imposing upon him the obligation to act fairly towards
the requesting state. In truth, I do not believe that the Secretary of State
would seek to argue the contrary. The real question is whether or not in
choosing to invite representations on the limited basis that he did, he in fact
acted fairly. The Secretary of State submits that he did; he did not consider
that any purpose would be served by offering consultation in relation to the
medical reports, as the results of that consultation could not realistically be
expected to have provided any useful material for the purposes of the exercise
of his statutory functions. The cases of R v Joint Higher Committee on
Surgical Training ex parte Milner [1994] 7 Admin CR 56 and R v The Chief
Constable of the Thames Valley Police ex parte Cotton [1990] I RLR 344 are
authority for the proposition, it is said, that where no purpose could be
served by giving an opportunity to comment on or make representations about
matters to be taken into account by the Secretary of State, no unfairness
results if such representations were bound to be of no effect. Assuming for
the moment that those cases are authority for that proposition, this argument,
in my judgment, brings into useful focus the fact that the approach of both
the Secretary of State, and the Human Rights organisations and Belgium
essentially point in the same direction. As I see it, the Secretary of State
accepts that were consultation appropriate, it must be the sort of consultation
described by Webster J in R v Secretary of State for Social Services ex
parte Association of Metropolitan Authorities [1986] 1WLR 1. And, as I
understand it, he accepts that if representations resulting from such
consultation are capable of producing material which might have a significant
effect on the exercise of his statutory function, then, in relation to a
person who in fairness he should consult, he is under an obligation to do so
effectively. It follows that if, on the one hand, fairness to the interests of
the requesting states points to the need for consultation, and, on the other,
consultation in relation to the content of the medical report could produce
material capable of affecting the Secretary of State's decision, then
disclosure of the reports would be necessary in order to meet the obligation of
fairness.
In my judgment the argument that no useful representations could be made about
the content of the medical reports is untenable. The Secretary of State
himself considered that the views of the Chief Medical Officer were at the very
least relevant. Other informed representations may produce useful information,
opinion or argument to help the Secretary of State to decide whether the
medical examinations were sufficient and appropriate, and whether the
conclusions are justified, and are a secure basis upon which to determine that
Senator Pinochet is unfit to stand trial. Confirmation of his present view
could be as helpful as criticism. To deny the requesting states the
opportunity to make such representations is in my judgment unfair in the sense
that effective consultation has been denied to them.
There is therefore a sufficiently clear public interest in their disclosure,
but only to requesting states, to justify overriding Senator Pinochet's right
to confidentiality. That confidence has, in any event, been compromised by
disclosure to the Chief Medical Officer, and by the very nature of the
Secretary of State's public statement as to his present intentions. Limited
disclosure to one or more of the requesting states on appropriate terms would
not, in my judgment, breach the domestic law of confidence, nor Article 8 of
the European Convention on Human Rights which recognises the public interest,
in particular in relation to the prevention of crime, which is a wide enough
interest to encompass decisions such as this taken in the course of criminal
proceedings.
MR JUSTICE DYSON:
These applications are but the latest in a long series of legal proceedings
that have been generated by the detention of Senator Pinochet in this country,
and the subsequent attempts to have him extradited. Two features of this case
are particularly relevant to the applications. First, and overwhelmingly, the
charges are of the utmost gravity. They have attracted strong and emotional
responses worldwide. We were told that the Secretary of State has received
47,000 representations as to how he should exercise his powers under section 12
of the Extradition Act 1989. The alleged crimes offend against the laws of all
nations. Torture is a "peremptory norm" of international law, which may be
punished by any state, because "the offenders are "common enemies" of mankind,
and all nations have an equal interest in their apprehension and prosecution":
per Lord Browne-Wilkinson in R v Secretary of State for
Home Affairs ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827, 841B. No
doubt, that is why the Secretary of State took the course, never previously
taken, of inviting a number of human rights organisations to make
representations to him. As Mr Stadlen puts it, this reflected the exceptional
public controversy surrounding the Pinochet case. There has been no previous
case in which a requesting state (or anyone else) has sought to challenge a
decision by the Secretary of State that is favourable to the accused. That is
as good an indicator as any of the uniqueness of this case.
Secondly, the Secretary of State has been advised that Senator Pinochet is at
present unfit for trial, and that no improvement in his condition can be
expected. If the Secretary of State had been of the opinion that Senator
Pinochet's condition was treatable, he would almost certainly have disclosed
the medical report to the Spanish authorities. This is because he would have
wanted to know whether the facilities for treating Senator Pinochet's condition
were available in Spain before deciding whether to extradite him.
The short question raised by these applications is whether the Secretary of
State has acted unlawfully in refusing to disclose the medical report without
the consent of Senator Pinochet. The applicants contend that fairness requires
disclosure; the Secretary of State and Senator Pinochet say that it does not.
That is the stark issue that falls to be determined.
In my view, the starting point is that the Secretary of State did decide to
invite representations before making his decision. That may have been an
unusual course to adopt, but that is what he did. Spain and the human rights
organisations were expressly invited to make representations. By writing in the
terms that he did to the other requesting states, it seems to me that he
impliedly invited representations from them too. It is submitted on behalf of
the Secretary of State that the invitation did not extend to making comment on
the medical opinion that had been reached. It is said that all that was being
offered was the opportunity to provide information that the Secretary of
State might take into account in exercising his discretion under section 12 of
the 1989 Act. Mr Stadlen says that he did not "envisage" that representations
would include criticisms of the medical examination. But it seems to me that
the Secretary of State was asking for representations quite generally.There was
nothing in the letters of 11 January to indicate that the representations could
not include expressions of opinion, or that they could not express an opinion
on the medical issue. In fact, the principal purpose of the letters was not to
elicit factual information, but to seek the views of those consulted, so that
they could be taken into account by the Secretary of State when he made his
decision whether or not to extradite.
Since the human rights organisations no longer seek disclosure of the medical
report to themselves, and are content with disclosure to the requesting states,
I shall give no further separate consideration to their position. It is said
that there is nothing in the terms of the European Convention on Extradition or
the 1989 Act itself to indicate that the requesting state is intended to have
any role in the decision making process. That is unquestionably correct. But
the requesting state is not an intermeddling busybody: it has a vital interest
in the outcome of the extradition proceedings which it has initiated. It is not
necessary in this case to consider in what circumstances (apart from seeking
information to enable him to perform his section 12 function properly) it is
necessary for the Secretary of State to consult a requesting state. The fact is
that they were consulted.
Mr Sumption QC seeks to justify the refusal by the Secretary of State to
disclose the medical report by submitting that the main primary facts about
Senator Pinochet's condition are a matter of direct clinical observation, and
cannot be challenged by those who have not observed him. The rest is a matter
of professional opinion based on those facts. The number and eminence of the
clinicians, and the fact that their report has been reviewed by the Chief
Medical Officer must make the possibility that the report contains some patent
vitiating error "speculative and remote". The Secretary of State has made no
secret of the fact that he would have preferred to disclose the report, but he
has felt constrained to withold disclosure out of respect for the
confidentiality of its contents. In his view, the interest in preserving that
confidentiality outweighs any public interest in disclosure, principally
because he considers that it is extremely unlikely that those whose
representations he has sought would be able to make any meaningful criticisms
of the report. It follows that, if the Secretary of State had considered that
there was any reasonable prospect that those who have been consulted could make
any material comments about the report, he would have disclosed it.
It is common ground that the Secretary of State was required as a matter of law
to carry out the consultation exercise fairly. As Lord Mustill said in R
v Secretary of State for the Home Department, ex parte
Doody [1994] 1 AC 1 531, 560E:
"(3) The principles of fairness are not to be applied by rote identically in
every situation. What fairness demands is dependent on the context of the
decision, and this is to be taken into account in all its aspects. (4) An
essential feature of the context is the statute which creates the
discretion...(5) Fairness
will very often require that a person who is adversely affected by the
decision
will have an opportunity to make representations on his own behalf either
before the decision is taken with a view to producing a favourable result; or
after it is taken with a view to procuring its modification."
The issue is not whether there was a duty to act fairly, but as to the
content of that duty: did it require the disclosure of the report? It will
therefore be seen that the issue is very narrow.
Nor is it in dispute that what fairness requires is a question of law for the
court to determine. The issue is not one for the discretion of the Secretary of
State: see R v Panel on Takeovers and Mergers, ex parte
Guiness Plc [1990] 1QB 146. It was made clear by the Court of Appeal in
that case that, in judging fairness, the court should accept the decision
maker's view of the facts, unless (per Lord Donaldson at page 178H) that view
is unreasonable in the Wednesbury sense. Moreover, it seems (at any rate
where the decision is that of a judicial or quasi-judicial body), the court
will give great weight to the decision maker's view of what is fair, especially
where (as in that case) the decision was that of a distinguished and
experienced tribunal (per Lloyd LJ at page 184D). But as Lloyd LJ said,
however, "in the last resort the court is the arbiter of what is fair"
(184E).
In the present case, the decision not to disclose the report did not depend on
a controversial view of the facts. It is obvious that, even with sight of the
report, the requesting states would be unlikely to be able to make meaningful
and telling criticisms of its contents. The points made by the Secretary of
State are powerful. The clinicians are renowned. Their report has been
considered by the Chief Medical Officer. The requesting states will not be able
to conduct their own examinations. None of this is in doubt. The issue is
whether, on those facts, it is nevertheless unfair to withold the report. The
resolution of that issue does not depend on a rejection of the Secretary of
State's view of the facts.
Nor do I consider that any particular weight should be given to the Secretary
of State's view of what fairness requires in the particular circumstances of
this case. This is not analogous to a case (such as Guinness), where the
fairness of the tribunal's procedures for holding an inquiry is in issue. As
Lloyd LJ pointed out (185E), the tribunal had great experience of City affairs,
and was well equipped to decide what was fair by City standards. The present
case is concerned with an exercise of executive discretion in circumstances
quite unlike any which have previously occurred. The Secretary of State had no
relevant previous experience on which to draw. He was in a very difficult
position, and no better able than the court to decide whether fairness demanded
that he disclose the report.
In my view, therefore, it is for this court, untrammelled by the views of the
Secretary of State, to decide whether in the interests of fairness he should
have disclosed the report. Mr Sumption (as did Maurice Kay J) places
considerable reliance on the decision in R v Joint Higher
Committee on Surgical Training ex parte Milner [1994] 7 Admin LR 56 for
the proposition that effective and fair consultation does not require the
disclosure of information of a kind that is not "amenable to any significant
challenge or any challenge that would have made any difference to the outcome"
(page 469D). That was a case which concerned the witholding of confidential
references by the applicant's tutors as to his suitability to become an
accredited specialist surgeon. The references were placed before Ognall J. He
held that they were essentially expressions of opinion by the applicant's
trainers as to his "overall aptitude" for plastic surgery. The judge said that
the decisions did not depend on any disputed questions of fact or questions of
fact which might have been amenable to serious dispute.
Another authority cited to us was R v The Chief Constable of the Thames
Valley Police, ex parte Cotton [1990] IRLR 344. In that case, the
applicant's employment was terminated for obesity. In deciding to terminate the
applicant's employment, the Chief Constable took into account a report by the
chief medical adviser. The applicant challenged the decision on the grounds of
a breach of natural justice, since the report had not been disclosed to him. It
was held by the Court of Appeal that the failure to disclose the report was not
unfair. The applicant knew from the outset that his weight was regarded by his
employers as a crucial issue. He made all the representations on that topic
that he could have made, and the disclosure of the report would have made no
difference to what he would or could have said.
In my view, the present case can be distinguished from both of these
authorities. A conclusion by doctors that a person is unable to follow legal
proceedings and to give a coherent statement of his case comprises both fact
and opinion. The doctors must decide what tests and what form of examination to
conduct. This involves an exercise of judgment (opinion) as to what is
appropriate in the circumstances. They must make their observations. This
involves making findings of fact, but ones where there may well be a
significant component of judgment. Finally, on those findings they must reach
their conclusions as to the nature and extent of the medical problem, and its
likely duration. This is essentially a question of opinion.
The medical examination of Senator Pinochet took place over a period of 6
hours. It is clear that the assessment of his medical condition was a complex
matter. It was described by the Chief Medical Officer as "extremely thorough",
and their report was said by him to be "comprehensive". Such a report is not
analogous to the report by the applicant's tutors in Milner that he did
not have the aptitude of a plastic surgeon. Ognall J treated that conclusion as
an expression of pure opinion, and not one based on disputed fact which was not
amenable to challenge. In the present case, it is impossible to know whether
the conclusions expressed in the medical report are based on undisputed fact.
More importantly, it is impossible to know whether the opinion component of the
exercise can reasonably be challenged without sight of the report. Without
knowing what tests were carried out, and what observations were made, how can
one say whether the overall conclusion is amenable to challenge?
Ex parte Cotton was quite different because there the court was
satisfied that, even if the report had been disclosed to the applicant, it
would have made no difference. At paragraph 60, Bingham LJ gave a number of
reasons why what Sir William Wade called "the dubious doctrine that a hearing
would make no difference" would apply only rarely. These included the fact
that, as was memorably put by Megarry J in John v Rees [1970] Ch
345, 402, experience shows that that which is confidently expected is by no
means always that which happens.
In the present case, it is impossible to say that the production of the report
would make no difference to the representations that the requesting states
could and would make. That is conceded by Mr Sumption. His point is that the
possibility that disclosure of the report would make a difference is so remote
that it can safely be ignored. But by denying them sight of the report, the
Secretary of State has denied the requesting states the opportunity of
expressing a view, for example, as to (a) the adequacy of the tests conducted
and observations made by the doctors, and (b) the validity of the analysis of
the results of those tests. In my view, it is a fair point to make that the
Secretary of State saw fit (in breach of his undertaking to Senator Pinochet)
to reveal the report to the Chief Medical Officer. It is said on behalf of the
Secretary of State that there is no realistic possibility that the requesting
states will be able to challenge, or raise any material doubts about, the
report without conducting a medical examination of Senator Pinochet. If that is
so, it does prompt the question: why was the Chief Medical Officer asked for
his opinion? Either a consideration of the report without a medical examination
is a meaningful exercise or it is not. Presumably, it was thought to be
worthwhile to ask the Chief Medical Officer to review the report. It is
difficult to see why it has now become a pointless exercise.
When deciding what fairness demands, it is necessary to have regard to the
whole context in which the decision under section 12 is to be taken. In my
view, fairness requires disclosure in this case for the following reasons.
First, the enormity of the alleged crimes. Were it not for that feature, it is
clear that the Secretary of State would not have consulted the requesting
states or the human rights organisations. Secondly, if the Secretary of State
does not extradite Senator Pinochet to one of the requesting states, he will be
returned to Chile, and it is likely that he will never be tried for these
alleged crimes anywhere. In view of the gravity of the charges, that is a
startling result of the exercise of ministerial discretion. It simply serves to
underline the monumental importance of the decision that the Secretary of State
is poised to make. No doubt that is why he would prefer to disclose the report.
Thirdly, the scope of the disclosure now sought is very limited indeed. It is
that there should be disclosure to the four requesting states alone, but only
on terms that they agree to receive them on terms of confidentiality. The
details of these terms would have to be worked out, since the requesting states
would clearly need to be at liberty to disclose the report to independent
doctors of the relevant disciplines. Fourthly, when one assesses the impact of
the proposed limited disclosure, it should also be borne in mind that there has
already been the widest possible dissemination of the basic conclusions of the
medical report. The whole world already knows that the gist of the report is
that Senator Pinochet is unfit to stand trial, because he would not be able to
follow the proceedings, give intelligible instructions to those representing
him at trial, or give a coherent statement of his case. All of that emerges
clearly enough from the answers given by the Secretary of State to questions in
Parliament on 12 January 2000. The additional disclosure to a very limited
class of persons needs, therefore, to be put into its true perspective.
Finally, in my view, it is simply not possible to assess how likely it is that,
following disclosure of the report, the requesting states would be able to make
representations on the medical issue that they would not otherwise be able to
make, representations which might influence the decision that the Secretary of
State has to make.
In my judgment, the cumulative effect of these considerations is that fairness
requires disclosure of the report to the limited extent that I have indicated.
In reaching this conclusion, I have not overlooked the fact that, as a matter
of common law, there was a public interest in maintaining the duty of
confidence owed to Senator Pinochet in respect of the contents of the report.
But there was a competing public interest in disclosure to the extent that this
was necessary to enable the Secretary of State to carry out the consultation
exercise fairly, and thereby to discharge his functions under section 12 of the
1989 Act properly. It is for the court to decide how this balance should be
struck. I have no doubt that, for the reasons already given, the balance comes
down in favour of the limited disclosure that is requested by the applicants in
this case.
Mr Sumption and Mr Clive Nicholls QC both submitted that disclosure would
infringe Senator Pinochet's right to respect for his private life under Article
8(1) of the European Convention on Human Rights. But it seems to me that the
limited disclosure proposed would, in the exceptional circumstances of this
case, satisfy the requirements of Article 8(2), ie interference "in accordance
with the law and necessary in a democratic society.....for the prevention of
crime and disorder". The balancing exercise to which I have referred has to be
conducted as a matter of the English common law, and that is sufficient to
satisfy the requirement of "in accordance with the law". I accept the
submission of Mr Pleming QC that the proposed limited publication to the
prosecuting authorities of the requesting states is not different in kind from
the publication that will be made to the Solicitor General and the DPP, if the
Secretary of State decides to make no order under section 12. The "prevention
of crime" includes the prosecution of crime. Mr Sumption concedes this, but
submits that it applies to disclosure to prosecuting authorities in requesting
states only after extradition has taken place. I do not see why such a narrow
approach should be adopted. It seems to me that it is sufficient that
proceedings should have begun in the requesting state, and that a request for
extradition should have been made. In my view, the limited proposed disclosure
is a proportionate interference with Senator Pinochet's Article 8(1) rights.
For all these reasons, I would allow these applications for disclosure of the
report to the requesting states. The precise terms will have to be the subject
of agreement or further argument.
-
- - - - - - - - - - - - -
MR SUMPTION: My Lords, the Secretary of State requires copies of the
medical report and certain other associated material to the four requesting
states in the course of this afternoon. I will deal with the question of terms
in a moment if I may. He will not make a decision until he has received and
studied any observations which the four requesting states choose to make or the
time deadline has expired. It is proposed that the requesting states will have
seven days in which to make their observations. That time will expire at 5 pm
on 22nd February, next Tuesday. It is expected that a decision one way or the
other will probably be made shortly after that time.
My Lords, as far as terms are concerned, we do not see that much
discussion on terms is required. The course that we propose to adopt, subject
obviously to contrary directions from your Lordships, is simply to inform the
requesting states in accordance with your Lordships' decision that this
material is being supplied to them on terms of strict confidence, to make it
clear that that is not intended to prevent them from taking appropriate expert
medical advice on its implications, but otherwise we would take it for granted
that having made that position clear to the requesting states that they would
adhere to that without any need for them to come back to us and say so in
terms.
My Lord, that deals with the question what, as we see it, will happen
next. So far as the form of order is concerned, subject again to your
Lordships views on this, my learned friend Mr Pleming and I are, I think,
agreed that it is appropriate that your Lordships should make a declaration,
and the declaration that I proposed, and that I think Mr Pleming accepts, is
that the Secretary of State is bound, before making any decision under section
12 of the Act, on the basis of the medical report of 6th January to disclose a
copy of that report in confidence to Spain, Belgium, France and Switzerland.
Now, my Lords, that leaves, as far as relief is concerned, the specific
claim for relief which is made by Belgium in their Form 86A, which is of
course, as your Lordships pointed out, more extensive than what your Lordships
have ordered. What I would invite your Lordships to do is having made the
declaration that I have indicated, to refuse the relief claimed so far as it
extends beyond requiring delivery of a copy of the medical report.
LORD JUSTICE SIMON BROWN: Why cannot we simply grant the application to the
extent that he made a declaration in the terms you have indicated?
MR SUMPTION: My Lord, that would effectively amount to the same thing, and
might be a more elegant way of doing it.
My Lords, unless there is any other matter your Lordships wish me to deal
with, those are the only ones that I have to make.
MR PLEMING: My Lord, on behalf of the Kingdom of Belgium the declaration as
suggested would be satisfactory to my client. Again, so there be no doubt, and
I have discussed this with Mr Sumption, the disclosure to Belgium will also
include some disclosure to the investigating judge, Mr Van der Mish(?), and
that is understood between us.
My Lord, there is only one other --
LORD JUSTICE SIMON BROWN: Mr Sumption, is there any problem on that?
MR SUMPTION: None at all. The covering letter which we propose to send will
refer to the authorities of the requesting state. We take it for granted that
that means the administrative authorities concerned with extradition and the
magistrates responsible for the case. So, for instance, it will also include
Judge Garzon(?) in Spain.
LORD JUSTICE SIMON BROWN: Thank you very much.
MR PLEMING: My Lord, would you then allow the application for judicial review
with costs? That would then only leave various small suggested typographical
corrections to your Lordships' judgment. If you wish to receive those in open
court we can give you a list of them. Otherwise we will --
LORD JUSTICE SIMON BROWN: This are purely typographical. Perhaps the
shorthand writer may take them off you.
MR DRABBLE: My Lord, on the same basis I ask for the declaration to be made on
my application for judicial review, and I also ask for costs, including the
costs of the proceedings in front of Maurice Kay J.
LORD JUSTICE SIMON BROWN: What, as a matter of interest, was the order for
costs before --
MR DRABBLE: There was no order for costs.
LORD JUSTICE SIMON BROWN: Mr Nicholls, have you any submission on any aspect
of all this, not least the relief? Are you happy with the form of
declaration?
MR NICHOLLS: My Lord, I am, yes.
LORD JUSTICE SIMON BROWN: Thank you very much.
MR NICHOLLS: My Lord, obviously we are concerned about the confidentiality,
but, my Lord, in the terms in which it has been expressed, we accept that it is
as such.
LORD JUSTICE SIMON BROWN: Thank you very much.
Mr Sumption, costs.
MR SUMPTION: My Lord, my instructions are not to resist an order for costs
from either Belgium or Amnesty, so I do not do so.
LORD JUSTICE SIMON BROWN: You are ready to pay both sets of costs?
MR SUMPTION: Yes, my Lord, those are my instructions.
LORD JUSTICE SIMON BROWN: Thank you very much.
Any there other applications at the Bar in relation to this matter? We
have the habeas listed for further directions.
Very well. Then we grant the application to the extent of making the
declaration in the terms agreed, and we order Secretary of State to pay the
costs of both applicants Belgium and Amnesty.
© 2000 Crown Copyright
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