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Judicial Jurisdiction and Abuse of Process

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick
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Extract

British cases used to be widely relied upon to show that courts were entitled to hear criminal proceedings against defendants brought before them without having to enquire into the process by which custody over them had been obtained: and specifically, that there was no bar to proceeding where the allegation was made that custody had been obtained in breach of international law.1 The consistency of the doctrine was breached by Mackeson2 when the English court refused to hear the case against a defendant who, it accepted, had been brought to England by a collusive process between the English and Zimbabwean authorities, which arguably breached both national laws, even if it did not involve a breach of international law. While the previous orthodoxy soon reasserted itself in Driver,3 the edifice of authority was substantially undermined in Bennett4 when the House of Lords acceded to the claim of the applicant that proceedings against him would be an abuse of process, given the circumstances in which his presence in the United Kingdom had been achieved. Outside the United Kingdom, the practice in other States continued in different directions, sometimes confirming the old position of male captus, bene detentus,5 sometimes the reverse.6

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 49 , Issue 2 , April 2000 , pp. 489 - 496
Copyright
Copyright © British Institute of International and Comparative Law 2000

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References

1. For example, Sinclair, v. HM Advocate (1890) 17 R.(J.) 38Google Scholar; R. v. Officer Commanding Depot Battalion, RASC Colchester, ex p. Elliott [1949] 1 All E.R. 138.

2. R. v. Bow Street Magistrates, ex p. Mackeson 75 Cr.App.R. 24.

3. R. v. Plymouth Justices, ex p. Driver [1985] 2 All E.R. 681.

4. R. v. Horseferry Road Magistrates' Court, ex p. Bennett [1993] 3 All E.R. 138.

5. For example, United States v. Alvarez-Machin 504 US 655 (1995).

6. For example, S v. Ebrahim 1991 (2) SA 553, on which see Dugard, , “No Jurisdiction over Abducted Persons in Roman-Dutch Law: Male Captus, Male Detentus” (1991) 7 South African Journal of Human Rights 199CrossRefGoogle Scholar. For an extensive survey of the case-law, see Gilbert, G., Transnational Fugitive Offenders in International Law (1998), pp.337–377.Google Scholar

7. Jaffe v. Smith 825 F.2d 304.

8. On refusal of entry, leading to return, see Gilbert, above n.6, pp.364–365.

9. In general, see Choo, Andrew, Abuse of Process and Judicial Stays of Criminal Proceedings (1993)Google Scholar; in the present context, pp.78–87. Choo, at p.185, favours a principle which acknowledges the injury to the defendant, rather than one which penalises the errant executive.

10. Choo, , “International Kidnapping, Disguised Extradition and Abuse of Process” (1994) 57 Modern Law Review 626, at 632–633CrossRefGoogle Scholar, says that Lord Griffiths puts forward a non-discretionary view of abuse of process.

11. Bennett, above n.4, p.150f.

12. Idem, p.155g.

13. Idem, p.163d.

14. Idem, p.163h.

15. Idem, p.164f.

16. Choo, above n.10, p.635.

17. Bennett v. HM Advocate 1995 S.L.T. 510 (afterwards, Bennett (Sc)).

18. Idem, pp.517K–518H.

19. R. v. Staines Magistrates' Court and others, ex p. Westfallen; idem, ex p. Soper, R. v. Swindon Magistrates' Court and others, ex p. Nangle [1998] 4 All E.R. 210.

20. R. v. Mullen [1999] 3 W.L.R. 777.

21. Westfallen, above n.19, p.222f.

22. Idem, p.222h.

23. Idem, p.224f.

24. Mullen, above n.20, p.780H. The authorities were highly conscious of Mackeson, above n.2, which coincidentally also concerned a return from Zimbabwe.

25. Idem.

26. R. v. Latif [1996] 1 All E.R. 353.

27. Idem, p.361b, d.

28. Mullen, above n.20, p.789d.

29. On the face of it, this seems a plausible conclusion but it must be remembered that the rights of persons involved in extradition and deportation processes are only superficially protected in human rights law, certainly not by the full fair trial rights, though it has been argued that they should be, Van den Wyngaert, , “Applying the European Convention on Human Rights to Extradition: Opening Pandora's Box?” (1990) 39 I.C.L.Q. 757, 775–776.CrossRefGoogle Scholar

30. Mullen, above n.20, p.790f.

31. Idem, p.790f.

32. Above n.17, p.514C

33. Idem, p.517H.

34. Mullen, above n.20, p.789D–E.

35. Above n.6.

36. As Professor Gilmore's note on Charrington shows, above pp.477–489.

37. Bozano v. France E.C.H.R. A/111 (1986).

38. Bozano v. Italy App. No.9991/82, 39 D.R. 147.

39. Altmann v. France App. No.10689/83, 37 D.R. 225.

40. Stocke v. Germany App. No.11755/85, Report, paras.166–169.

41. Stocke v. Germany E.C.H.R. A/199 (1991), para.54. See also Sanchez-Ramirez v. France App. No.28780/95, 86–B D.R. 155.

42. Sounders v. UK E.Ct.H.R. Rep. 1996–VI 2044, 23 E.H.R.R. 313.

43. Teixeira de Castro v. Portugal E.Ct.H.R. Rep. 1998–IV 1451, paras.38–39.