Judgments - Reg. v. Secretary of State for the Home Department, Ex parte Launder  continued

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      But what was the Secretary of State to make of the respondent's argument that the treaty arrangements with the P.R.C. could not be relied upon to guarantee his rights to a fair trial and to appropriate punishment? It is clear that an argument in these terms would not be justiciable in the courts. In Regina v. Governor of Brixton Prison, Ex parte Kotronis [1971] A.C. 250 the applicant was a Greek national who had been convicted of an offence in a Greek court for which he had been sentenced to three years' imprisonment. It was contended that, as he was a political opponent of the then Greek government, he had good reason to fear that, should he be returned to Greece, he would be detained either after, or in lieu of, serving his sentence there. Lord Reid dealt with that aspect of his case at pp. 278-279: 

     "Finally, the respondent founds on the political elements in this case. It appears from his evidence that he is a determined opponent of the present Greek Government, that he has spent long periods out of Greece and that when in Greece he has been on three occasions detained without trial and without any charge being made against him. He says he has good reason to fear that if he is returned to Greece he will again be detained either after or in lieu of serving his sentence. But article 7 of our Extradition Treaty with Greece (set out in 1912, S.R & O., No.193) provides that: 'A person whose surrender has been granted shall in no case be detained or tried . . . for any other crime, or on account of any other matters than those for which the extradition shall have taken place.' So it would be a clear breach of faith on the part of the Greek Government if he were detained in Greece otherwise than for the purpose of serving his sentence, and it appears to me to be impossible for our courts or for your Lordships sitting judicially to assume that any foreign Government with which Her Majesty's Government has diplomatic relations may act in such a manner. If that is so, then Kotronis cannot take advantage of any of the provisions in the Act which empower the court to grant relief in a case of a political nature."

      The position of the Secretary of State is, of course, different. He cannot ignore representations of that kind on the ground that it must be assumed that a foreign government with which this country has diplomatic relations will adhere to its treaty obligations. If issues of that kind are raised in a responsible manner, by reference to evidence and supported by reasoned argument, he must consider them. The greater the perceived risk to life or liberty, the more important it will be to give them detailed and careful scrutiny. In Regina v. Secretary of State for the Home Department, Ex parte Bugdaycay [1987] A.C. 514, 531G Lord Bridge of Harwich said:

     "The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny." 

In the same case, at p 537H, Lord Templeman extended that duty to the court in its examination of the Secretary of State's decision-making process: "In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision-making process."

      In that case one of the appellants, Musisi, had arrived at Heathrow from Kenya. He was a national of Uganda from which he was a refugee, and he claimed political asylum. The decision to refuse him leave to enter was not based on the denial of his claim to refugee status, but on a conclusion by the Secretary of State that his status as a refugee under the Convention from Uganda did not present an obstacle to his return to Kenya whence he had come. The argument on his behalf was that he would be at risk of being returned to Uganda if he were to be returned to Kenya as a Ugandan national. His appeal was successful, because the evidence showed that the Secretary of State had not adequately considered the question whether there was a danger that his removal to Kenya would result in his return to Uganda. He had not taken into account or adequately resolved the ambiguities and uncertainties which surrounded the conduct and policy of the authorities in Kenya. Lord Bridge explained the approach in this way, at p. 532 E-G:

     "For the sake of illustration, I have necessarily taken cases at opposite ends of a spectrum. In the ordinary case of a person arriving here, from a third country, and claiming asylum as a refugee from the country of his nationality, there will be no ground to apprehend that his removal to the third country whence he comes would put him at risk. But at the other end of the spectrum, the risk may be obvious. Between these two extremes there may be varying degrees of danger that removal to a third country of a person claiming refugee status will result in his return to the country where he fears persecution. If there is some evidence of such a danger, it must be for the Secretary of State to decide as a matter of degree the question whether the danger is sufficiently substantial to involve a potential breach of article 33 of the Convention. If the Secretary of State has asked himself that question and answered it negatively in the light of all relevant evidence, the court cannot interfere."

Procedural Impropriety, Illegality and Irrationality

      I can deal briefly with the issues of procedural impropriety and irrationality. Mr. Vaughan submitted, after taking us through the evidence, that it was clear that the Secretary of State had completely failed to conduct the proper procedures in his approach to this material. It seems to me however, as it did to the Divisional Court, that the Secretary of State cannot be faulted on the ground that he failed to act with procedural fairness. He gave ample opportunity to the respondent to submit representations. He took advice from the Government of Hong Kong, and he gave the respondent a further opportunity to comment on that advice. He decided, in a commendable departure from the normal procedure in extradition cases, to give reasons for his decision in the letter of 31 July 1995. This enabled the respondent to prepare and submit further representations, which the Secretary of State received and considered before issuing his decision on 21 December 1995 not to withdraw the surrender warrant. He made it clear both in his decision letters and through the affidavits of his officials that he had considered carefully all the representations which had been made.

      As for irrationality, which Mr. Alun Jones said was the only real issue in the case, this also seems to me to be a complaint which is without any real substance. The question whether it is unjust or oppressive to order the respondent's return to Hong Kong must in the end depend upon whether the P.R.C. can be trusted in implement of its treaty obligations to respect his fundamental human rights, allow him a fair trial and leave it to the courts, if he is convicted, to determine the appropriate punishment.

      It cannot be stressed too strongly that the decision in this matter rests with the Secretary of State and not at all with the court. The function of the court in the exercise of its supervisory jurisdiction is that of review. This is not an appeal against the Secretary of State's decision on the facts. His decision has had to be taken amidst an atmosphere of mistrust and suspicion which a court is in no position to penetrate. The visible part is the framework of law which I have described. That part can be explained and analysed. The invisible part is about the hearts and minds of those who will be responsible for the administration of justice in Hong Kong after the handover. This is not capable of analysis. It depends, in the end, upon the exercise of judgment of a kind which lies beyond the expertise of the court. That, no doubt, is why the decision whether or not to grant the warrant has been entrusted to the Secretary of State by Parliament.

      On this matter there is room for two quite different views. On one view, which is that taken by the respondent and is supported by a substantial body of evidence from expert witnesses, the P.R.C. has already demonstrated by its conduct in recent years within China that it is incapable of giving effect to the rule of law on which the Basic Law must depend. On this view there is a risk, especially in a case which may be regarded as politically sensitive, that any trial would be unfair and that on conviction the executive would insist on inhuman and excessive punishment. The other view, which is that taken by the Secretary of State, is that the P.R.C. has good reason to make every effort in the Hong Kong S.A.R. to preserve the existing criminal justice system, in recognition that it would not be appropriate to practise the socialist system and policies there. As the preamble to the Basic Law declares, it has been appreciated by the P.R.C. that this is essential if the prosperity and stability of Hong Kong is to be maintained after the transfer. The P.R.C. have an obvious interest in making a success of the new arrangements. A breakdown of the rule of law generally, or even a departure from it in some cases such as this one, would be bound to have a serious effect on confidence throughout the business community on which it depends for that success. In these circumstances optimism about the future for human rights in Hong Kong after the handover, for which such careful arrangements have been made in the Joint Declaration and the Basic Law, cannot be said to be unreasonable. Past conduct within China is not necessarily a good guide to what will happen in Hong Kong after the transfer of sovereignty. The care which has been taken during the long period of preparation for the event to address this issue, which is obvious from the close attention to detail which is revealed by the relevant documents, provides a clear basis for holding that the decision of the Secretary of State to reject the respondent's arguments was not irrational. If there was room for doubt on this matter, I would regard this as a case where great caution would have to be exercised, despite the need for anxious scrutiny, before holding that decision to be one which, in the relevant sense, was unreasonable. But, in all the circumstances, I do not think that there is any real room for doubt.

      The real question in the case, as I see it, is whether in taking his decision the Secretary of State asked himself the right question or whether, to put it another way, he fettered his discretion by asking himself the wrong one. This issue has been obscured by the way in which the case was argued on his behalf in the Divisional Court. There can be no doubt that if, as was being suggested, the Secretary of State regarded himself as bound by the Cabinet's judgment on this matter to assume that the P.R.C. would comply with its treaty obligations and on this ground gave no further consideration to the respondent's arguments, he would have failed to direct himself properly to his responsibilities under section 12 of the Act. But, for the reasons already given, I am satisfied that that is not what he did. The evidence shows that he took his own decision after considering all the representations which had been made to him.

      But what was the question to which he addressed his mind? If, as was suggested by Mr. Parker at one stage in the argument, he addressed his mind only to the question whether the P.R.C. had repudiated, or was likely to repudiate, its obligations under the treaty, he would have failed to ask himself the right question. The right question, in the light of the representations which had been made to him, was a narrower and more precise one. It goes to the heart of the issue as to whether it would be unjust or oppressive for the respondent to be extradited. It is whether this particular individual would be exposed to the risk of injustice or oppression if he were to be returned to Hong Kong to face trial there after 1 July 1997. If he asked himself the wrong question his decision would be flawed on the ground of illegality. If he asked himself the right one and answered it negatively in the light of all relevant evidence, then, as Lord Bridge said in Bugdaycay, the court cannot interfere.

      The point requires anxious consideration in the light of the risks which the respondent has identified. An assessment of the risks to the individual after 1 July 1997 is not completed by looking simply for evidence of repudiation by the P.R.C. of its obligations under the treaty. There are passages, especially in the affidavits, which indicate an assumption by the Secretary of State that all the treaty obligations relating to the implementation of the Basic Law will be observed. That, no doubt, is why so much of the content of the affidavits has been taken up with an explanation of the measures which will be in place by the date of the handover. There is nothing wrong with that as a starting point. The words of the Joint Declaration and the Basic Law are both relevant and important in the assessment of what the respondent is likely to face if he is returned to Hong Kong. But the question then has to be asked whether these words are likely in practice, in his case, to be meaningless. As the transfer of sovereignty still lies in the future, assumptions about what the future holds for him are inevitable. The P.R.C. cannot be required to serve a probationary period in order to test its behaviour after the handover. The question then is whether the Secretary of State went further in his consideration of the case beyond general assumptions about legality and examined the risks to the respondent as an individual.

      The concluding paragraphs of the letter of 31 July 1995 which I quoted earlier provide the best evidence of the question which the Secretary of State had identified. He made it clear here that he had asked himself whether, in all the circumstances, it would be unjust or oppressive or wrong to order the respondent's return to Hong Kong. This was the correct test, and I consider that by applying it the Secretary of State can be taken to have applied his mind to the position which the respondent in particular would face under the new arrangements in view of the risks which he had identified. The point to which the respondent had drawn his attention was that the letter of the Basic Law could not be relied upon, at least in his case. The Secretary of State said in his decision letters that he gave careful consideration to the representations which had been made to him. It was not necessary for him to deal with every point which had been raised in the reasons which he gave. Any attempt to deal with only some of them would be open to criticism on the ground that the other points were ignored. There was so much material before him that it would not have been practicable for him to go over the whole ground in the written explanations for the decisions which he took. His statements that he considered the whole matter very carefully must be given due weight. In this unusual case, against the whole background which his letter of 31 July 1995 had identified, that was enough. The emphasis which he gave to the legal framework was not just, as Mr. Vaughan asked us to accept, an assertion that the law is the law. It was the basis for his decision, which as I have said was not an irrational one, that the P.R.C.--despite its actions elsewhere and in other circumstances--could be relied upon to respect the law in the respondent's case and not to interfere in the process of justice in bringing him to trial in Hong Kong and, if he is convicted, imposing and enforcing the appropriate penalties. If that assumption is made it provides a rational and complete answer to all the objections. I do not think that your Lordships would be justified in holding that he failed to address himself to the right question in reaching the conclusion that he should grant a warrant in this case.

      There remains however one particular issue in this chapter which must be considered, because if it was clear that the Secretary of State misdirected himself about this it would be necessary to consider whether we should quash his decision and allow him to look at the matter again. This is whether there is substance in the respondent's concern about the absence of specialty protection after 1 July 1997.

Specialty Protection

      Section 6 of the Extradition Act 1989 imposes a number of general restrictions on the return of a person to a foreign state. If one or more of these restrictions apply the Secretary of State has no discretion in the matter. It is unlawful for the person to be returned to the requesting state or committed or kept in custody for the purposes of return. Among these restrictions is that set out in subsection (4), known as the Specialty Protection. That subsection provides:

     "A person shall not be returned, or committed or kept in custody for the purposes of such return, unless provision is made by the relevant law, or by an arrangement made with the relevant foreign state, Commonwealth country or colony, for securing that he will not, unless he has first had an opportunity to leave it, be dealt with there for or in respect of any offence committed before his return to it other than--

     (a) the offence in respect of which his return is ordered; (b)an offence, other than an offence excluded by subsection (5) below, which is disclosed by the facts in respect of which his return was ordered; or (c) subject to subsection (6) below, any other offence being an extradition crime in respect of which the Secretary of State may consent to his being deal with."

In subsection (7) it is provided that any such arrangement as is mentioned in subsection (4) which is made with a designated Commonwealth country or a colony may be an arrangement for the particular case or an arrangement of a general nature, and that a certificate of the Secretary of State confirming the existence of such an arrangement and stating its terms shall be conclusive evidence of the matters contained in the certificate.

      The issues which were raised in regard to the Specialty Protection fall neatly into two separate chapters, although it is right to add that the whole subject is a complex one in view of the way matters have been developing prior to the handover on 1 July 1997. The first chapter relates to the question whether the Specialty Protection was in place on the dates when the Secretary of State took the decisions. The second question relates to the question whether the Specialty Protection will be in place after the handover. The third relates to the question whether, assuming that the Specialty Protection will be in place after the handover, it will provide effective protection against the respondent's removal from Hong Kong S.A.R. to any other part of the P.R.C. As the argument developed before your Lordships it became clear that the issue which is of primary importance is that raised in the third chapter. But it is necessary to deal with the other two chapters also, if only by way of background, because of the important place which the Specialty Protection has in extradition law.

a      The Position at Present

      It is clear, and not disputed by the respondent, that the requirements of section 6(4) were satisfied at the time when the decisions were taken and that they will continue to be satisfied until the date of the handover. The relevant provisions for extradition to the Crown Colony are contained in the Fugitive Offenders (Hong Kong) Order 1967, which was made under the Fugitive Offenders Act 1967 and remains in force notwithstanding the repeal of that Act: see section 34(3) of the Extradition Act 1989. Section 14 of the Schedule to the 1967 Order provides the protection which is required by section 6(4) of the Act of 1989. A certificate to the effect that the special protection exists has been issued under section 6(7) of that Act. It is equally clear that the existence of this protection is now, and has some for some time been, academic for the purposes of this case as it will cease to exist when sovereignty over Hong Kong is transferred to the P.R.C. For the time being the requirements of section 6(4) are satisfied, but the Secretary of State was also obliged to consider what the position would be on and after 1 July 1997. It would plainly be unjust for the respondent to be returned to Hong Kong until it was clear that there was in place in Hong Kong from and after that date a provision for special protection which satisfied the terms of section 6(4).

b      The Position in Future

      The situation has changed since 1995 when the decisions were taken. So it is necessary first to mention the situation at that time and then to examine the situation at the present stage. Although we are concerned primarily with the reasonableness of the decisions at the time when they were taken we cannot ignore these developments. We are dealing in this case with concerns which have been expressed about human rights and the risks to the respondent's life and liberty. If the expectations which the Secretary of State had when he took his decisions have not been borne out by events or are at risk of not being satisfied by the date of the respondent's proposed return to Hong Kong, it would be your Lordships' duty to set aside the decisions so that the matter may be reconsidered in the light of the changed circumstances.

      At the date when the decisions were taken in 1995 the matter had to be based upon a reasonable expectation of what would be arranged in the future. As Mr. Ackland has explained in paragraph 31 of his affirmation, the P.R.C. had agreed that Hong Kong might negotiate and conclude, under authorisation by the P.R.C., its own extradition arrangements prior to the date of the handover which would remain in force after that date. By the date of his affirmation a number of such agreements had already been signed with other countries which contained the Specialty Protection. A draft of an Ordinance to be enacted locally in Hong Kong had been prepared and was awaiting approval by the P.R.C. Mr. Ackland said that it was reasonably expected that the P.R.C. would give its approval, as Hong Kong's independent extradition arrangements were fully accepted by the P.R.C.

      Since that date there have been further developments. We were shown a copy of an Order in Council made on 8 April 1997 under paragraph 3(2) of the Schedule to the Hong Kong Act 1985, called The Hong Kong (Extradition) Order 1997. That Order is subject to the negative resolution procedure. It had not yet been laid before Parliament. We were also shown a copy of Hong Kong Ordinance No. 23 of 1997 which was made on 26 March 1997, to be known as the Fugitive Offenders Ordinance. This is designed to regulate extradition between Hong Kong and places outside Hong Kong after 1 July 1997. Section 17 of the Ordinance will provide the Specialty Protection in Hong Kong S.A.R. after that date for persons who are surrendered to Hong Kong under such extradition arrangements. In order to complete the necessary arrangements with the United Kingdom it will be necessary for an agreement to be entered into in accordance with the statutory scheme contained in the Ordinance. Provision is made by section 3(1) of the Ordinance for these agreements, once made, to be enacted as part of the law of Hong Kong. The procedures in the Ordinance will then apply as between Hong Kong and the United Kingdom subject to the limitations, restrictions, exemptions and qualifications, if any, contained in the order.