The appellant was committed under 1881 Act to await his return to Ghana to face trial on corruption charges. He applied for a writ of habeas corpus contending inter alia that it would be unjust and oppressive to return him since he would be liable to be tried under the provisions of the Corrupt Practices (Prevention) Act 1964 by process which might contravene natural justice, in contrast to trial in accordance with the Ghana Criminal Code 1960. ‘During the hearing the Government of Ghana undertook [by counsel] that if he were returned, he would be tried in accordance with the Criminal Procedure Code 1960’. The Divisional Court had dismissed the application.
Held: The House granted the appeal (majority).
Lord Reid said: ‘in general it appears to me to be very undesirable that a foreign government should be encouraged to offer not to apply the ordinary law of its country to one of its own subjects if he is returned to that country. There may not be the same objection to the foreign government stating that it does not intend to take certain executive action with regard to the accused person and it might be proper to accept an undertaking on the lines of section 3(2) of the Extradition Act, 1870. But any undertaking or statement of intention is liable to create misunderstanding and perhaps acute difficulties in the event of a change of circumstances.’
and ‘If a magistrate or any other tribunal has jurisdiction to enter on the inquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision. If he has jurisdiction to go right he has jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction.’
Lord Upjohn: ‘[T]he Divisional Court accepted the undertakings of the Government of Ghana (1) that if tried and acquitted the appellant would not be taken into protective custody and would be free to leave Ghana; (2) that the appellant would be tried under the Criminal Procedure Code and not under the Corrupt Practices (Prevention) Act, 1964.
The bona fides of the Government of Ghana and of its Attorney-General are not for one moment in doubt, but I think it is wrong in principle to permit such undertakings to be given or to take them into account.
The appellant can surely come to the superior court (where alone, of course, section 10 arises) and say:
‘My liberty is at stake, I am a British subject, judge of the laws of the country to which my return is sought as they stand. It is most unjust to me that to attain their ends the Government should unilaterally be permitted to say that I alone of all the inhabitants am to be freed from those laws which I submit would make it oppressive and unjust to return me.’
So I think that the matter should be judged upon the laws as they stand and it then becomes a matter for the exercise of the discretion of the court under section 10 to consider the relevance of any laws to which the applicant may draw attention and their weight in the balance against other considerations such as the seriousness of the alleged offence, the strength or thinness of the case against the fugitive and all other relevant circumstances.
In addition, it was readily conceded that the word ‘undertaking’ is a misnomer; it is no more than an expression of intention. Speaking generally, and not with any special reference to the Government of Ghana, there may be a change of government who may not feel bound by the acts of their predecessor. There may be a genuine difference of opinion as to the proper interpretation of the undertakings. Finally, it might in some circumstances be the duty of a government to depart from its expressed intention in the discharge of its duty in the good governance of the country and its inhabitants as a whole.’
Lord Pearce said: ‘It appears that for at least 100 years the courts have accepted the depositions and decision in place of a formal return of the writ, in cases where a writ of certiorari would lie, without insisting on an additional writ to bring the depositions before the court.
In 1864 in In re Tivnan 5 BandS 645, 646, a case of extradition, the depositions were considered as being before the court on an application of habeas corpus: ‘As to the remaining question, viz., whether . . . there is a case on which the magistrate ought to commit these prisoners, I cannot say that there is not evidence under which he was entitled to do so-a prima facie case was made out.’ See, too In re Windsor (1865) 6 BandS 522,523, where there was an arrangement between the parties that the depositions and affidavits were taken as in court. It appears that this was the practice at the time when the Extradition Act was passed in 1870 and the Fugitive Offenders Act in 1881. And no doubt it was in the light of that practice that the magistrates’ court was enjoined by section 11 in the former Act and section 5 in the latter to point out to the accused his remedy by way of habeas corpus. When the depositions were thus before it the court was entitled and bound to see whether there was evidence which raised, in the case of the Fugitive Offenders Act, a strong or probable presumption, and which thus gave the magistrate jurisdiction to commit. If there were not, the accused was entitled to be discharged.’
Otherwise – Regina v Governor of Brixton Prison, Ex parte Armah
Lord Upjohn, Lord Reid, Lord Pearce
[1968] AC 192
Fugitive Offenders Act 1881
England and Wales
Cited by:
Cited – Ahmad and Aswat v United States of America Admn 30-Nov-2006
The defendants appealed orders for their extradition. They were suspected of terrorist offences, and feared that instead of facing a trial, they would be placed before a military commission.
Held: The appeals failed. The court had diplomatic . .
Cited – Gibson v United States of America PC 23-Jul-2007
(The Bahamas) The US government sought the extradition of the appellant from the Bahamas on drugs charges. The warrants were found to be void, and the defendant released unconditionally, when the nmagistrate rejected evidence from an admitted . .
Lists of cited by and citing cases may be incomplete.
Extradition, Litigation Practice
Leading Case
Updated: 11 November 2021; Ref: scu.247667