Law Report: Police collusion on jet stopover was improper: Regina v Horseferry Road magistrates' court, ex parte Bennett (No 2): Queen's Bench Divisional Court (Lord Justice Mann and Mr Justice French), 10 March 1994

To observe the proper procedure respecting the liberty of persons brought before the courts, was more important than the understandable desire to bring a wanted man to trial.

The Queen's Bench Divisional Court granted a judicial review application by Paul James Bennett and quashed (i) committal charges preferred against him by the CPS and (ii) an order by Horseferry Road magistrates' court committing him for trial, because he had been brought into the United Kingdom by unlawful means.

The applicant, a New Zealand citizen wanted for criminal offences in the UK in 1989, alleged that the English police and CPS, having traced him to South Africa, colluded with the South African police to have him forcibly returned to the UK. He was arrested at Heathrow airport on 22 February 1991, whilst being deported to New Zealand from South Africa as an illegal immigrant.

His application for judicial review was originally dismissed by the Divisional Court, on the ground that it had no jurisdiction to inquire into the circumstances by which he came to be within the jurisdiction, but was remitted to the Divisional Court for reconsideration following an appeal to the House of Lords, who held that if the High Court was satisfied the applicant had been brought within the jurisdiction in disregard of extradition procedures, it might stay the prosecution and order the release of the accused (see the Independent, 1 July 1993; (1994) AC 42).

Alan Newman QC and Brian Jubb (Hallinan Blackburn Gittings & Nott) for Bennett; Colin Nicholls QC and Robert Fischel (CPS HQ) for the Crown.

LORD JUSTICE MANN, giving the judgment of the court, said the essential question was how the applicant came to be at Heathrow. There was no extradition treaty between the UK and South Africa but there was always the possibility of a special extradition arrangement under section 15 of the Extradition Act 1989. That possibility was rejected seemingly for political reasons, sanctions against South Africa being in force at the time. Thus, however the applicant came to be at Heathrow, it was not through the operation of extradition procedures.

The South African authorities, who regarded him as an illegal immigrant, had ostensibly decided that the applicant should be repatriated to New Zealand via London. The route was not an obvious one and involved a transfer between Heathrow and Gatwick as to which no arrangements had been made.

The only material inquiry was whether the applicant came to be in the United Kingdom in defiance of normal extradition procedures because of collusion between the English and South African authorities. The inquiry involved liberty of the subject and the court had to be satisfied on a high balance of probabilities that the applicant was properly available for arrest at Heathrow.

Detective Sergeant Martin Davies, who arrested the applicant on 22 February 1991, deposed that he had only learnt on the previous evening that the applicant was being despatched via England next day.

But against that oral evidence was one contemporaneous document, a CPS memorandum dated 4 February 1991, which read:

'DS Davies informs me that the SA police are, within the next few days, putting Bennett on a plane to NZ which rather conveniently will stop over at Heathrow] Special Branch want you to nick him and he will be taken to City Rd for interview/charge'.

The date was to be observed and their Lordships regarded the exclamation mark as eloquent. Coupled with the curiosity of the route and the absence of inter-airport arrangements, the memorandum was decisive in the applicant's favour. The desire to bring him to trial was understandable but the propriety of procedure in regard to the liberty of anyone brought within the jurisdiction was transcendant.