Law Report: Retracted evidence can be basis for extradition: Re Alves - House of Lords (Lord Templeman, Lord Roskill, Lord Bridge of Harwich, Lord Goff of Chieveley and Lord Jauncey of Tullichettle), 29 October 1992

A witness's retraction, at committal proceedings for the extradition of the accused, of earlier evidence implicating the accused which was the basis of the extradition request did not deprive the magistrate of power to commit the accused for extradition on the basis of the evidence. The retraction of the evidence was a matter for the magistrate to take into account when considering its reliability and deciding whether there was sufficient evidence to justify an order for committal.

The House of Lords gave reasons for allowing on 20 July 1992 an appeal by the Director of Public Prosecutions on behalf of the Swedish government from the Queen's Bench Divisional Court's decision granting the respondent, Thomas Alves, an application for habeas corpus.

In 1985 Stephen John Price pleaded guilty in Sweden to drug offences relating to the distribution of a large quantity of cannabis and was sentenced to seven years. While serving that sentence, Price was examined by a Swedish district judge and gave evidence, recorded on tape, implicating the respondent.

In 1989 the Swedish government began proceedings for the extradition of the respondent on charges relating to the importation and distribution of cannabis in Sweden. In 1990 Price was released from prison and returned to this country. In July 1990, Price, at the request of the respondent's solicitors, swore an affidavit repudiating his Swedish evidence in so far as it implicated the respondent.

Committal proceedings, following the Secretary of State's order to proceed, took place in August 1990. A transcript of Price's evidence in Sweden, which was admissible under paragraph 12 of the First Schedule to the Extradition Act 1989, was admitted in evidence. Price gave evidence in person on behalf of the respondent and repudiated his evidence in Sweden in so far as it implicated the respondent. The Metropolitan Stipendiary Magistrate decided to commit the respondent to custody pending extradition to Sweden.

The Divisional Court granted the respondent's application for habeas corpus. The DPP, on behalf of the Swedish government, appealed.

Clive Nicholls QC and Clare Montgomery (CPS) for the DPP; Alan Newman QC and Donald Broatch (Julius Melchior & Co) for the respondent.

LORD GOFF said that the transcript of Price's evidence before the Swedish Court was, prima facie, of itself sufficient to justify the decision of the magistrate that the respondent should be committed. However, before the magistrate Price retracted his Swedish evidence. Moreover, Price was an accomplice of the respondent. The question was whether the magistrate was, in those circumstances, entitled to commit.

The applicable test was to be found in R v Galbraith (1981) 73 Cr App R 124, 127 where Lord Lane CJ said that where the judge concluded that the prosecution evidence was such that a jury properly directed could not properly convict, it was his duty to stop that case. But where the strength or weakness of the prosecution evidence depended on the view taken of a witness's reliability or other matters within the province of the jury and where on one possible view of the facts there was evidence on which a jury could conclude that the defendant was guilty then the judge should allow the matter to be tried by the jury. There could be more than one possible explanation why a witness might retract evidence and one possibility might be that it was the later retraction, rather than the earlier evidence, which was not worthy of belief.

It could not be right that retraction of evidence previously given in the requesting state would ipso facto discredit the evidence and so deprive the magistrate of any power to commit on that basis.

If the magistrate concluded, on the evidence before him, that the previous evidence was such that a jury properly directed could not properly convict, then on the principle stated in Galbraith, he should not commit. The magistrate should reject any evidence which he considered to be worthless.

But otherwise, if the prosecution evidence was such that its strength or weakness depended on the view to be taken of its reliability, the magistrate was entitled to act upon that evidence in deciding whether was sufficient evidence to justify an order for committal. That was evidently the conclusion reached by the magistrate. It was a conclusion which he was entitled to reach on the evidence before him.

The same approach applied to the fact that Price was an accomplice. Such a fact could not ipso facto render Price's evidence worthless, even where, as here, the evidence of the accomplice was uncorroborated.

The magistrate, no doubt, took into account the fact that Price was an accomplice, together with the fact that Price had retracted his earlier evidence implicating the respondent, when deciding whether to make an order for committal. Mr Newman also submitted that there must be evidence before the magistrate to the effect that the courts of the requesting state had jurisdiction to try the respondent for his participation in the offences committed in Sweden, when he himself was not in Sweden.

However, that submission was inconsistent with the law as stated in R v Governor of Pentonville Prison, Ex parte Sinclair (1991) 2 AC 64, in which it was made clear that apart from consideration where appropriate whether the offence was an offence of a political character, the magistrate was not concerned with questions of foreign law at all.

Lord Templeman, Lord Roskill, Lord Bridge and Lord Jauncey agreed.

Ying Hui Tan, Barrister