Crime analysis: A Supreme Court decision that there is no way in extradition proceedings to prevent witness evidence being disclosed to the requesting state is examined by Edward Grange of Hodge Jones and Allen LLP.
VB and others v Westminster Magistrates’ Court and others  UKSC 59,  All ER (D) 41 (Nov)
The appellants’ extradition to Rwanda was sought to stand trial for alleged offences committed during the civil war in 1994. They sought to adduce witness evidence in a closed material procedure or for it to be disclosed only to the third respondent Crown Prosecution Service (CPS). The Supreme Court held that there was no basis for recognising or creating a closed material procedure as a new exception to the principle of open inter partes justice. Further, there was no special statutory power which could enable a judge to make a non-disclosure order in relation to the requesting state. However, the judge had a discretion to admit anonymous evidence, provided that the proceedings were fair.
What were the key issues considered by the Supreme Court and how did it decide?
The Supreme Court considered whether, in extradition proceedings, the judge conducting the extradition hearing has the power to admit evidence in a closed material hearing. A closed material hearing is one in which the evidence is considered by the judge but not seen or disclosed to the state requesting extradition. The Supreme Court also considered whether a witness anonymity order can be made under the Coroners and Justice Act 2009, s 87 (CJA 2009).
The majority (4:1) decided that the judge had no power to order a closed material hearing or to limit disclosure to the requesting state. It also decided that the judge had no power to order disclosure to the CPS on the condition that the evidence could not be disclosed to the requesting state. Finally, the court determined that the judge had no power to make a witness anonymity order under CJA 2009, s 87. However, the court retained the discretion to admit anonymous evidence–but it must be ‘an unusual exception to the general practice’.
What about the dissenting judgment by Lord Toulson?
Lord Toulson gave the only dissenting opinion. He took the view there should be an exception to the principle of open justice where not ordering a closed material hearing or not prohibiting the disclosure of evidence to the requesting state could facilitate a ‘foreseeable and potentially serious breach of human rights’.
The judge in the extradition proceedings had already received the proposed evidence that was to be considered in a closed material hearing and she had considered it to be relevant.
Did the decision clarify the law in this area?
The decision does not mean that anonymous evidence can never be given in extradition proceedings. Lord Hughes concluded that such evidence could be received but that it must be ‘an unusual exception to the general practice’ and the judge must be ‘more cautious where the anonymous evidence is proffered by the requesting state’.
The case illustrates the gulf between extradition proceedings and asylum proceedings, as secret material is admissible in the latter.
Under what circumstances could information be kept secret in extradition proceedings?
Secret material can never be received in a closed material hearing with the other side excluded from that part of the proceedings. However, in some parts of the extradition hearing there could be no objection to the hearing of evidence from a witness who remained anonymous. Indeed, in some challenges to extradition, requested persons rely upon experts who are able to give an expert opinion that has been based upon information obtained from unnamed and sometimes unknown sources. The weight to be attached to such evidence will vary from case to case.
Could there be any unintended consequences?
The concern in this case (which was shared by the judge who made the order that a closed material hearing could not take place) was that by not permitting a closed material hearing, there may be a risk of serious prejudice to the defence as the witnesses would not give evidence, which was determined to be important and material, and as such impinge upon the ability of the defence to properly advance its case. In asylum proceedings, evidence can be given without the fear that it will be disclosed to the state to which the person is facing removal. The decision of the Supreme Court not to allow closed material hearings means that secret or sensitive evidence may only be presented and considered as part of a subsequent asylum claim, but that would only apply to non-UK nationals who claimed asylum.
What should lawyers advising in this area take note of?
Lawyers representing requested persons are still able to present evidence from anonymous witnesses on the issue of prima facie case, as they can for issues on extraneous considerations and human rights issues. However, the lawyers will have to persuade the judge that it is a genuine case for anonymity and that there is a justified fear for the safety of the witness who cannot otherwise be protected and that justice requires that the evidence is heard and considered. Although the identity may not be disclosed to the requesting state, the party requesting anonymity should ordinarily give the fullest information of identity to the judge.
The admission of anonymous evidence should only be admitted if the judge is satisfied that the proceedings are nevertheless fair, despite its admission.
Are there any trends emerging in this area of law?
There are lots of changes in extradition law, such as the introduction of the forum bar, a new proportionality bar and the introduction of the amended Criminal Procedure Rules 2014, SI 2014/1610 including a part on extradition.
Interviewed by Robert Matthews.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
This article was first published on LexisPSL on 12 November 2014