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ZARDARI v. SECRETARY OF STATE FOR HOME DEPARTMENT [2001] EWHC Admin 275 (9th April, 2001)
Case No: CO/3659/2000
Neutral Citation Number: [2001] EWHC Admin 275
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION (DIVISIONAL COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 9th April 2001
B e f o r e :
LORD JUSTICE KENNEDY
MR JUSTICE GARLAND
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|
SENATOR
ASIF ALI ZARDARI
|
Applicant
|
|
-
and -
|
|
|
THE
SECRETARY OF STATE FOR THE HOME DEPARTMENT
|
Respondent
|
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Michael BROMLEY-MARTIN (instructed by Zaiwalla & Co for
the Applicant)
Mr James TURNER QC (instructed by Treasury Solicitor for the
Respondent)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE GARLAND :
INTRODUCTION
1. This is a renewed application for permission to apply for Judicial Review of
a decision by the Secretary of State for the Home Department to transmit
evidence received by Bow Street Magistrates' Court to the Attorney-General of
Pakistan pursuant to the provisions of Section 4 and paragraph 5 of Schedule 1
of the Criminal Justice (International Co-operation) Act 1990. The decision of
the Secretary of State was communicated to the Applicant's Solicitors in
England, Zaiwalla & Co, by a 14-page letter dated 21st September 2000. The
application for permission was made on 5th October 2000; grounds for contesting
the claim were filed by the Secretary of State on 26th October and on 3rd
November permission was refused by Sullivan, J.
THE STATUTE
2. The 1990 Act contains provisions for the reciprocal service of process,
obtaining evidence, and the transfer of prisoners to give evidence or assist in
investigations. Section 7 applies Part II of the Police and Criminal Evidence
Act 1984 to the gathering of evidence relevant to an overseas investigation and
Schedule 1 paragraphs 1 - 4 provide for securing the attendance of witnesses
and taking evidence. Paragraph 5 deals with the transmission of the evidence
taken in England and Wales to the requesting authority. The provisions
relevant to this application are Section 4 sub-sections (1), (2), (4), (5) and
(6) and paragraph 5 of Schedule 1:-
"4 United Kingdom evidence for use overseas
(1) This section has effect where the Secretary of State receives -
(a) from a court or tribunal exercising criminal jurisdiction in a country
or territory outside the United Kingdom or a prosecuting authority in such a
country or territory; or
(b) from any other authority in such a country or territory which appears to
him to have the function of making requests of the kind to which this section
applies,
a request for assistance in obtaining evidence in the United Kingdom in
connection with criminal proceedings that have been instituted, or a criminal
investigation that is being carried on, in that country or territory.
(2) If the Secretary of State or, if the evidence is to be obtained in
Scotland, the Lord Advocate is satisfied -
(a) that an offence under the law of the country or territory in question has
been committed or that there are reasonable grounds for suspecting that such an
offence has been committed; and
(b) that proceedings in respect of that offence have been instituted in that
country or territory or that an investigation into that offence is being
carried on there,
he may, if he thinks fit, by a notice in writing nominate a court in England,
Wales or Northern Ireland or, as the case may be, Scotland to receive such of
the evidence to which the request relates as may appear to the court to be
appropriate for the purpose of giving effect to the request."
3. Sub-section (4) relieves the Secretary of State from having to carry out
detailed enquiries or investigations by providing:-
"(4) For the purpose of satisfying himself as to the matters mentioned in
sub-section (2)(a) and (b) above the Secretary of State or, as the case may be,
the Lord Advocate shall regard as conclusive a certificate issued by such
authority in the country or territory in question as appears to him to be
appropriate."
4. Sub-section (5) provides that "evidence" includes documents and other
articles; sub-section (6) that Schedule 1 shall have effect with respect to the
proceedings before a nominated court in pursuance of a notice under sub-section
(2). Paragraph 5(1) of Schedule 1 provides:-
"5. (1) The evidence received by the court shall be furnished to the Secretary
of State or, in Scotland, the Lord Advocate for transmission to the court,
tribunal or authority that made the request."
THE BACKGROUND
5. The application has to be examined in the context of political events in
Pakistan and earlier litigation in this country. The Applicant is the husband
of Benazir Bhutto. In November 1996 her Government was dissolved and she was
succeeded by Nawaz Sharif. An organisation called the Ehteshab Cell (or
Accountability Cell) headed by Senator Saifur Rehman was created to pursue
allegations of corruption against members and supporters of the previous
government. It was concerned only with alleged corruption. A separate
organisation, the Anti-Narcotics Force ("ANF") was concerned with drug
trafficking. It was an independent organisation headed by Major General
Mushtaq Hussain.
6. One aspect of the Pakistan criminal justice system which is relevant to the
Applicant's case is the formal manner in which a criminal investigation is
commenced. A Police Officer cannot initiate an investigation; there has first
to be created a "First Investigation Report" ("FIR") signed, sealed or marked
by the complainant or informant and attested by the officer recording the
"first information". This is the first step in any investigation. If a
suspect is arrested and in interview implicates someone else, an investigation
into that person cannot begin until the suspect signs an FIR as "first
informant".
7. The Applicant was arrested on the day that the Bhutto government was
dissolved. On 19th December 1996 there was an FIR against him for the murder
of Benazir Bhutto's brother; on 16th February 1997 an FIR for corruption in
connection with air freight charges; on 18th August 1997 another for corruption
in connection with a consultancy contract and in September a further one for
murder. The authorities were concerned that substantial assets may have been
corruptly transferred to Europe and that the Applicant may have been involved
in drug trafficking. This appears from the passage in the affidavit of Simon
Watkin sworn on 18th May 1998 and referred to the Secretary of State's first
decision letter of 11th October 1999:-
"Prior to 21st October 1997 requests were made by the Pakistan Government to
the UK for mutual legal assistance, including restraint of assets and obtaining
of evidence relating to alleged corruption and alleged drug-related offences.
These requests were either not in a satisfactory form and/or failed to provide
sufficient information and/or sought assistance of a type the Secretary of
State could not give."
8. At about the same time the Ehteshab Cell ("EC") made requests to the Swiss
Government for assistance in relation to corruption allegations. A recurring
theme of Mr Bromley-Martin's submissions was that whereas in the UK freezing,
restraint and forfeiture orders can be made in proceedings under the 1990 Act
for drug trafficking offences, they are not available in relation to corruption
offences but in Switzerland they are equally available in relation to both
types of offence. In September 1997 a Home Office team including lawyers, went
to Pakistan to assist the EC with advice which included an explanation that the
availability of freezing, restraint and forfeiture orders in the UK was limited
to drug trafficking.
THE LETTER OF REQUEST
9. On 21st October 1997 a Letter of Request was received by the British
Government requesting assistance in relation to investigations into drug
trafficking by the Applicant. The Letter contained a list of property and
accounts of which evidence was sought. With the Request came a copy of an FIR
dated 19th October 1997 timed at 18.15 and a Certificate for the purposes of
S.4(4) signed by the then Attorney-General, Chaudry Mohammed Farooq. On 15th
December, the Secretary of State nominated Bow Street Magistrates' Court to
receive evidence. The Magistrate required the Police to obtain statements and
documentary evidence from witnesses. The Applicant was not informed of the
Letter of Request but his Solicitors in London became aware of it and asked to
be allowed to see it or to be provided with details of the contents. The Home
Office replied that they were seeking the views of the Pakistan Government.
The Applicant applied for leave to move for Judicial Review on the grounds that
the maker of the request did not have authority to make it; that there was no
genuine investigation or criminal prosecution in respect of any drugs offence;
that the evidence requested was of a nature that could have no relevance to any
investigation or prosecution for drugs offences and was being sought for some
other purpose, namely, corruption; that the matter was politically motivated,
any investigation or proceeding being in respect of an offence of a political
nature; and lastly, that the Applicant was entitled to disclosure of the Letter
of Request or of its contents. Latham, J. (as he then was) granted leave on
the last ground only. On 12th February 1998 he stayed the proceedings in the
Magistrates' Court pending a hearing of the application on 11th March.
10. In the event the Government of Pakistan consented to the substance of the
Letter of Request being revealed. This was done by the Secretary of State on
2nd March so that the entire basis of the application for Judicial Review
disappeared. The Applicant's then Solicitors were given the information by
letter dated 2nd March 1998. It included the list of property and accounts in
the Letter of Request.
"The allegations that have been made against your client in this regard will
be apparent from the FIR, but in summary it is said that Mr Zardari has on a
number of occasions received, either directly or indirectly, considerable sums
of money in consideration of his facilitating the export of narcotics from
Pakistan and that he has acquired assets derived from such payments. Charges
are said to be anticipated under sections 12(a) and 14 of the Control of
Narcotic Substances Act 1997. A copy of that legislation is annexed to the
request and I enclose a copy herewith.
It is against this background that the authorities in Pakistan seek to trace
the proceeds of the alleged criminal activity carried on by your client and
seek evidence in respect of property and bank accounts located in England which
they suspect your client may have funded, at least in part, from the proceeds
of narcotics related crime. Thus, they seek evidence as to the beneficial
ownership and funding of such property and bank accounts.
It is said that certain information which, it is alleged, links your client
with property and bank accounts in England came to light in the course of
investigations into allegations of corruption against your client. It also
appears that your client may have funded the relevant property and accounts, at
least in part, from the proceeds of corruption, but no request to assist in the
obtaining of evidence in that regard has been received by the Secretary of
State. It is the view of the Secretary of State that the potential relevance
of the evidence sought to other investigations does not mean that the
assistance that is sought can have no relevance to the matter to which the
present request does relate; indeed he is satisfied that the assistance sought
is relevant to the matter to which the request relates.
The specific property and accounts of which evidence is sought are:
(a) Rockwood Estate, Haslemere Road, Brook, Surrey and the contents of that
property;
(b) Flat 6, 11 Queensgate Terrace, London SW7;
(c) 26 Palace Mansions, Hammersmith Road, London W14;
(d) 27 Pont Street, London SW1;
(e) 20 Wilton Crescent, London SW1;
(f) Barclays Bank, Kensington & Chelsea Branch, account number 90991473
believed to be held in the name of Mr Zardari;
(g) National Westminster Bank, Aldwych Branch, account number 96832320
believed to be held in the name of A Ali;
(h) Harrods Bank Limited, account number 11309063 believed to be held in the
name of Farida Ataullah, an associate of Mr Zardari;
(i) Midland Bank, Pall Mall Branch, account number unknown but believed to be
held in the name of the parents of Mr Zardari;
(j) National Westminster Bank, Barking Branch, account number 28559899,
believed to be held in the name of Mr Badr, an associate of Mr Zardari;
(k) National Westminster Bank, High Road Wembley Branch, account number and
name in which it is held unknown but believed to have been used to make
payments in relation to the refurbishment of Rockwood House on the Rockwood
Estate;
(l) National Westminster Bank, Cromwell Road Branch, accounts numbered 3894373
and 38943751 and believed to be held in the name of Mr Zardari, and
(m) Coutts & Co, London, account number unknown but believed to be held in
the name of Mr Zardari.
By reason of section 4(2) of the Criminal Justice (International Co-operation)
Act 1990 it will be for the nominated court to decide precisely what evidence
is appropriate for the purpose of giving effect to the request, but the
authorities in Pakistan have provided details of suggested witnesses and
questions in that regard and these details have been transmitted to the court
at Bow Street. If you are permitted by that court to participate in the
process by which the evidence is taken you will now, as a result of the
information provided above, be able to make informed submissions as to the
relevance of any particular piece of evidence and will be able to question any
witnesses with knowledge of the purpose for which the evidence is being
taken."
11. There was a hearing to determine who should bear the costs of the
application for Judicial Review. In giving judgement, Lord Bingham, C.J.
observed:-
"It is, however, quite plain that the process envisaged by S.4 is not a trial:
it is a process of gathering evidence. The use to be made of the evidence so
gathered is a matter for the requesting state. If the evidence taken in an
English court is to be used as primary evidence in the requesting state, then
one would ordinarily expect, if the requesting state's legal system is at all
analogous to our own, that the requesting state would recognise the need for
the suspect to have a full and fair opportunity to contest the evidence either
here or in its own court. If the evidence taken in England were not to be used
as evidence in the requesting state then the need for a full and fair
opportunity to contest that evidence in this country would be much less and
might not exist at all. It seems to me entirely appropriate for the UK,
requested to act by a foreign state, to pay regard to the wishes of that state
when responding to a request by someone in the position of the applicant for
details of the case against him."
12. The proceedings for Judicial Review having been exhausted, the Applicant
then took the point before the Metropolitan Magistrate that there was an abuse
of process; that the Magistrate was not bound by the sub-section (4)
Certificate and could hear evidence and entertain argument tending to show that
there were no proceedings in Pakistan, that the State was not acting in good
faith and was in fact acting with an ulterior political motive. These
arguments were, on 22nd April 1998, rejected, and the Magistrate proceeded to
receive the evidence. The Applicant then applied for Judicial Review of the
Magistrate's decision. On the same day as the Magistrate made his decision,
the Secretary of State declined to hear representations from the Applicant on
abuse of process; the Applicant applied for Judicial Review of that decision
also. On 7th May 1998 Latham, J. granted permission to apply for Judicial
Review of the decision of the Secretary of State but on 29th July the
application was withdrawn by consent as the process of evidence gathering was
complete. The Applicant now applies for permission to challenge the Secretary
of State's decision to transmit the evidence received at Bow Street pursuant to
paragraph 5 of Schedule 1 of the Act. Unlike the Secretary of State's power to
nominate a court under sub-section (2) which confers a wide discretion, "may if
he thinks fit"; paragraph 5 only provides that the evidence "shall be furnished
to the Secretary of State .... for transmission."
EVENTS IN PAKISTAN
13. Between 29th July 1998 and 5th October 2000 when the present proceedings
were commenced, the Applicant and his legal representatives continued to press
his case. On 11th October 1999 the Secretary of State sent the first decision
letter to the Applicant's London Solicitors informing them that he had decided
to transmit to the Attorney-General of Pakistan the evidence furnished to him
by Bow Street Magistrates' Court. However, on the following day, the military
coup took place in Pakistan, followed by the proclamation of a state of
emergency on 14th October. On the same day, the Secretary of State was asked
to withdraw the decision pending the restoration of democracy and on 22nd
October he informed the Applicant's Solicitors that he would delay
implementation of the decision until he had investigated whether the request
was still being pursued, and if it was, to consider the implications of recent
events. Further representations were invited by 6th December; these were made
on 2nd December.
14. In March 1998 the Applicant petitioned the High Court in Pakistan to quash
the FIR on a variety of grounds including the fact that it was not signed by
the complainant and was accordingly a nullity. The petition was dismissed as
being premature but the Court ordered the Investigation Agency to enquire,
within one month, into the Applicant's allegations and indicated that he was at
liberty to present a further petition if he wished to do so. This he did on
30th April. Apparently this petition has never been listed although in 1999 he
presented a further petition challenging the jurisdiction of the Anti-Narcotics
Court. This was dismissed; the Applicant appealed, and on 29th October the
Supreme Court remitted the petition to the High Court to be tried within 3
months with the second petition. The Applicant is at present being tried on
corruption charges and for a drugs offence based on the October 1997 FIR. That
trial began in June last year. The other trials have proceeded even more
slowly.
15. On 25th January 2000, by virtue of the Oaths of Office (Judges) Order, the
Pakistan judiciary were required to be faithful to and abide by the provisions
of the Proclamation of Emergency of 14th October 1999 and the Provisional
Constitution Order No.1 which, by the terms of the Order, were not open to any
form of challenge. The relevant parts of the Order provided:-
"2.
(1) Notwithstanding the abeyance of the provisions of the Constitution of
the Islamic Republic of Pakistan, hereinafter referred to as the Constitution,
Pakistan shall, subject to this Order and any other Orders made by the Chief
Executive, be governed, as nearly as may be, in accordance with the
Constitution.
(2) Subject as aforesaid, all courts in existence immediately before the
Commencement of this Order shall continue to function and to exercise their
respective powers and jurisdiction:
Provided that the Supreme Courts or High Courts and any other court shall
not have the powers to make any order against the Chief Executive or any
person exercising powers or jurisdiction under his authority.
(3) The Fundamental rights conferred by Chapter 1 of Part II of the
Constitution, not in conflict with the Proclamation of Emergency or any Order
made thereunder from time to time shall continue to be in force.
......
4.
(1) No Court, tribunal or other authority shall call or permit to be called
in question the Proclamation of Emergency of 14th day of October 1999 or any
Order made in pursuance thereof.
(2) No judgement, decree, writ, order or process whatsoever shall be made or
issued by any court or tribunal against the Chief Executive or any authority
designated by the Chief Executive.
5. Notwithstanding the abeyance of the provisions of the Constitution, but
subject to the Orders of the Chief Executive all laws other than the
Constitution, all Ordinances, Orders, Rules, By laws, Regulations,
Notifications and other legal instruments in force in any part of Pakistan
whether made by the president or the Governor of a Province, shall be inserted
and shall be deemed to have always been so inserted, shall continue in force
until altered, amended or repealed by the Chief Executive or any authority
designate by him."
FURTHER REPRESENTATIONS
16. On 29th January 2000, in response to the Secretary of State's enquiry, the
new Attorney-General reaffirmed the request for assistance; and assured the
Secretary of State that all previous undertakings remained valid. These
were:-
(1) That all evidence procured through mutual legal assistance would not be
used for any purpose other than that for which it was originally requested
without the consent of the Government of the UK.
(2) That the Applicant would not be subject to the death penalty provided for
under S.9(c) of the Control of Narcotic Substances Act 1997.
(3) That the change of Government on 12th October 1999 did not result in any
interference with the working of the Courts.
(4) that all actions would be strictly in accordance with law.
The Supreme Court, in a lengthy judgement given in May, declared the regime
lawful pending a general election within a specified period. It also declared
that the Courts would continue to exercise the power to administer justice
impartially among persons, and between persons and the State.
17. The Applicant expressed concern about the independence of the judiciary,
and on 7th August 2000, in response to a further enquiry, the Secretary of
State was informed that the EC was investigating corruption "across the board,
across the spectrum and across the country irrespective and without
consideration of political affiliations or any other factor". He was also
informed that the judicial oath was not an "oath of allegiance" to the new
regime and that only 6 out of 105 superior Judges had resigned; in addition, it
was asserted that the judiciary "has never been more free and independent over
the past 20 years than it is today" and had given judgements and orders against
the Government. The Secretary of State made further enquiries of the
International Bar Association.
18. On 9th August, the Applicant made further representations to the Secretary
of State including:-
i) That the former Interior Minister in the Nawaz Sharif Government had
admitted that the narcotics case against the Applicant was bogus;
ii) That Major General Mushtaq Hussain of the Anti-Narcotics Force had refused
to register the case and described it as bogus. As a result he had been
transferred at the behest of Saifur Rehman.
On 25th August the Secretary of State received unequivocal confirmation of the
earlier assurances and undertakings together with a denial that the proceedings
against the Applicant were bogus. On 21st September the Secretary of State
sent the second Decision Letter which has given rise to this application.
THE ISSUES
19. Mr Bromley-Martin sought to take a number of points on the Secretary of
State's powers and duties during and after the evidence gathering process, and
Mr Turner QC accepted, for the purposes of this case, that while the
sub-section (4) certificate was conclusive at the nomination stage, at the
transmission stage the fact that the certificate may have been fraudulently
obtained is part of the relevant circumstances which the Secretary of State
could take into account when deciding whether or not he should transmit the
evidence to the requesting state. Mr Turner QC accepted that the Secretary of
State had a discretion; the evidence might no longer be required for a variety
of reasons, or circumstances may have changed fundamentally, but it was a
discretion to be challenged only on Wednesbury principles. Mr Bromley-Martin
makes that challenge on the basis that the Secretary of State has never
addressed the question of whether the transmission would be in good faith and
in the interests of justice because, in summary:-
(1) The proceedings were not initiated in good faith - the Letter of Request
was based on an assertion of an investigation into drugs-related offences when
in truth the evidence was being sought to found proceedings for corruption.
(2) Evidence to support the drugs allegation was improperly obtained.
(3) The sub-section (4) certificate was false.
(4) The prosecution for drugs offences was bogus.
(5) It would be unfair to transmit evidence to the new (and illegal)
military government and that the Applicant would not receive a fair trial from
an independent judiciary or otherwise be able to contest the admissibility of
the evidence.
(6) Had the Secretary of State made the contents of the Letter of Request
available to the Applicant earlier, obvious errors and deceptions could have
been exposed at the nomination stage.
BASES OF THE REPRESENTATIONS
20. The Applicant's case is that the drugs allegations were fabricated so that
the authorities could use drug trafficking powers to obtain restraint or
forfeiture orders when in truth they were proceeding against the Applicant for
corruption. To that end they arrested and tortured two men involved in
smuggling and drug trafficking, Arif Baluch and Shourang Khan. There was
evidence of their torture not only in their subsequent petitions to the High
Court but also in reports by Court officials. These events, it was said,
occurred non-coincidentally shortly after the visit by Home Office officials in
September 1997. Both men allegedly made statements implicating the Applicant;
these were incorporated in the FIR of 19th October 1997 but were not signed,
and the FIR was defective in other respects in that it was signed by a Police
Officer not an ANF Officer and sealed, something for which no provision is made
in Pakistani law. In addition, the copy attached to the sub-section (4)
Certificate and certified to be a true copy had been mistranslated in an
attempt to conceal its defective nature. Also on 19th October the EC directed
the ANF to register the FIR against the Applicant. Major General Mushtaq
Hussain objected and spoke to the Minister of the Interior and Narcotics
Control, Chaudry Shuja't Hussain because the statement of Arif Baluch "does not
appear to have been made at his free will and [he] may resile at any time"; in
any event neither Baluch nor Shourang Khan were credible witnesses. The
conversation was recorded in a memorandum in which the Major General observes,
"The ANF since its inception has strictly followed law and filed cases without
fear or favour displaying impartiality thereby establishing credibility with
the locals, foreign community, judiciary and other law enforcement agencies.
ANF's effort has been to stay out of any political tug of war which has
definitely established a position of neutrality and integrity". According to a
newspaper interview given by the then former Minister in July 2000, the Major
General's resistance resulted in Nawaz Sharif having him transferred to other
duties although he was later reinstated. There is hearsay evidence that the
former Minister and the Police Inspector responsible for producing the FIR have
said that it was not a genuine document and was produced in order to use a
purported drugs investigation to obtain evidence of corruption.
21. Mr Bromley-Martin submitted that the Secretary of State was misled as to
whether or not the ANF had exclusive powers of investigation under the Control
of Narcotics Act because the Attorney-General had referred to the wrong SRO.
Other matters advanced were that all material from Pakistan has come from the
EC not the ANF; that "observers" who attended at Bow Street were EC
representatives; that the Pakistani Bar Council say that their judiciary is far
from independent and that the delay in hearing the petitions challenging the
FIRs shows a lack of independence. The Representations of 15th March 1999
included allegations that the Chief Justice of Sindh, who was conducting the
trial for the murder of Benazir Bhutto's brother, was related by marriage to
the brother's wife; that the Judge who dismissed the first petition as
premature was Nawaz Sharif's nominee and a member of the Court which sentenced
Benazir Bhutto's father to death; and that other Judges conducting proceedings
involving the Applicant were either provisional appointees or, in one case, a
Muslim fundamentalist. There was also an assertion of trickery:-
"Following strong objections to the constitution of the Benches in Lahore, the
Supreme Court ordered the transfer of the relevant cases to the Rawalpindi
Bench. Instead of the intended result ...... the Chief Justice took the
expedient step of nominating to the Rawalpindi Bench the same Judges who had
been due to hear the cases in Lahore, thereby emasculating the order of the
Supreme Court."
22. The Court was invited to look at a witness statement of the Applicant's
Pakistani advocate, Farooq Naek made on 8th March of this year and also at the
witness statement made on 16th March of Mian Muhammad Jahangir, an advocate, in
which they state that the former Attorney-General had told them that he was
required by Nawaz Sharif to sign the sub-section (4) Certificate which he had
neither drafted nor read and that he had become aware that the narcotics
charges were fabricated in order to obtain evidence of corruption. Quite apart
from being hearsay, this material was not before the Secretary of State. Mr
Turner QC asked rhetorically, was the Secretary of State expected to interview
the former Attorney-General?
23. Mr Bromley-Martin's arguments were:-
1. That in deciding whether to transmit, the Secretary of State had to take the
same decision as at the nomination stage and ask himself whether or not there
was a bona fide trial or investigation;
2. That the Secretary of State had not considered whether the proceedings were
fraudulent. If he had, he could only have concluded that they were fraudulent.
Fraud vitiates all. He referred to Nadeem Aktar Saifi v. The Governor of
Brixton Prison and Union of India - CO/4176/1999 (Rose, L.J. and Newman, J.)
as an example of a finding of bad faith where evidence was shown to have
been extracted under duress;
3. That once fraud is in issue, the Secretary of State cannot rely on the law
and Courts of a foreign state, the more so when there is evidence that those
Courts will not list a challenge to their jurisdiction, the validity of the
criminal proceedings or were prepared to indulge in tricks such as transferring
Judges to defeat a Supreme Court ruling. He referred to First American
Corp and Another v. Sheikh Zayed Al-Nahyan and Others; Clifford and Others v.
First American Corp and Others [1998] 4 AER 440 for the proposition
that the Secretary of State should not rely on the workings of foreign courts
if considerations of natural justice point the other way;
4. That in the circumstances the Secretary of State should have applied the
"extradition test" of good faith and the interests of justice, having regard to
the safeguards of fairness available in English law in relation to persons
required to supply evidence which may otherwise be subject to confidentiality
or claims of privilege. This could have led him to only one conclusion and his
failure to do so was Wednesbury unreasonable.
THE RESPONDENT'S CASE
24. Mr Turner QC posed the question: given the many issues between the
Applicant and the Government of Pakistan, how, realistically, is the Secretary
of State to make a decision other than within a broad band of possible
conclusions? Corruption is many-faceted and Baluch in his statement alleges
that the Applicant used his official position to facilitate the transmission of
narcotics from Baluchistan to destinations in the West. The Government had
always shown an interest in evidence relating to narcotics offences and there
was no reason why, if they wished to do so, they could not have made a Request
in relation to an investigation into alleged corruption. He pointed out that
no application for a restraint or forfeiture order had been made in England and
Wales. We were informed, after the conclusion of the hearing, that such an
application had been made in the Isle of Man in relation to assets held by Isle
of Man companies and listed in the letter of 2nd March 1998. Both Counsel have
provided us with written submissions in relation to that information, and Mr
Bromley-Martin has asked that we should reconvene to hear further argument.
We do not consider it necessary to do so. The Isle of Man exercises a
jurisdiction independent of that of England and Wales, Scotland and Northern
Ireland and the 1990 Act has no application in the Island. In any event, if
the evidence was capable of supporting allegations of corruption, the
Government was entitled, in accordance with the first assurance, to seek the
Secretary of State's consent for its use for that purpose.
25. The Secretary of State was not required to enquire into a dispute about
Police powers and whether a particular Police Officer had the necessary
authority to sign a FIR. He had made careful enquiries and the Pakistani
Government had given the undertakings subsequently reaffirmed by the new
regime; he had made further extensive enquiries into the possible consequences
of the replacement of the Sharif Government including consideration of the
judgement of the Supreme Court as to the legality of the new regime; the
Proclamation of Emergency, the Provisional Constitution Order No 1 of 1999, the
Oaths of Office (Judges) Order and the Oath itself. He had also canvassed the
views of the International Bar Association and had investigated the Applicant's
representations of 7th August 2000 obtaining the unequivocal assurance that the
new regime would abide by the terms of the undertakings given by the Sharif
Government. Neither the Secretary of State nor this Court, Mr Turner
submitted, can embark on a detailed enquiry as to whether or not the drug
trafficking case now proceeding is well founded, or commenced and pursued in
bad faith. The Secretary of State cannot be expected, on the evidence
available, realistically to decide whether the proceedings were brought or
continued in bad faith.
26. He submitted that the statutory scheme of the 1990 Act is that the
Secretary of State nominates a Court; the evidence is collected and can then
be tested before the Magistrate (now the District Judge) before transmission.
The Applicant was in fact represented at Bow St Magistrates Court. Sub-section
(4) of Section 4 excuses the Secretary of State from having to make decisions
under sub-sections (2)(a) and (b); at best an attack on the validity of the
Certificate may be a relevant circumstance to be taken into account at the
transmission stage. The scheme is very far from being analogous to extradition
involving liberty of the person where Section 11(3)(c) of the 1989 Act
expressly requires consideration of good faith and the interests of justice.
27. In one respect the scheme is similar to extradition in that there is no
statutory requirement for consultation. Fairness may require it in the
circumstances of a particular case; R. v. SSHD ex parte Doody [1994] AC 531 @ 560, but it is not to be expected that there will be a lengthy
course of representations, responses and counter-representations; R. v.
SSHD ex parte McGuire [1995] 10 Admin LR 534 @ 537H-538A. The Secretary
of State had made enquiries and considered the Government's responses to the
Applicant's representatives with great care; he was faced with complex and
conflicting accounts; he had set these out in the Decision Letter and given the
reason for his decision in considerable detail. It would be irrational for him
to conclude that the proceedings were being pursued in bad faith or that the
relevant issues could not be resolved fairly by a sufficiently independent
judiciary.
THE SECRETARY OF STATE'S DECISIONS
28. The Decision Letter sets out the history of the matter up to the sending of
the first letter and then summarises the Applicant's representations made on
2nd December 1999 after the military coup and the response of the
Attorney-General on 29th January 2000; the further representations on 15th
February 2000 and the response of 7th August 2000, and the final
representations on 9th August 2000.
29. The actual decision of 21st September 2000 can be summarised as follows:-
i) The representations of the Pakistani Government had not been taken at face
value; consideration had been given to the original documents as set out in
paragraph 24 above and, in addition, the International Bar Association had been
consulted.
ii) Although there was some concern as to the independence of the judiciary,
there was nothing to indicate interference with criminal proceedings or with
the right of an accused person to be acquitted.
iii) Reliance was placed on information received from the International Bar
Association following a visit in July 2000, in particular that Judges had made
findings which were a setback for the Government's objectives such as the
acquittal of all the co-accused in the trial of Nawaz Sharif in connection with
events that led to the military coup. The Accountability Courts had acquitted
two prominent defendants of corruption charges. Further, the Government played
no part in judicial appointments.
iv) Although there was corruption, and standards were low among the more junior
levels of the judiciary, the Applicant's case was unlikely to be tried by a
Judge tainted by corruption or imcompetence. The case had been allocated to a
Judge who was very experienced and enjoyed an excellent reputation.
v) The present regime had not initiated the proceedings but merely continued
them; this appeared to weigh against the assertion that they were politically
motivated. The letter continues:-
"In any event the relevant allegations against your client are not allegations
of a political offence and the fact that political capital may be made out of a
successful prosecution is not in itself a bar to refusing to provide assistance
to the prosecuting authority."
vi) There was little likelihood that proceedings would be affected or
influenced by executive interference or political considerations.
vii) The assurances about the use of the evidence and the non-use of the death
penalty were accepted.
30. In my judgement, Mr Turner QC is correct in his submissions. The Secretary
of State was bound, at the nomination stage, by the Certificate. If it can now
be shown that the proceedings are not brought in good faith and that the
Certificate is, or may be, false, these are matters that the Secretary of State
can take into account in deciding whether or not to transmit. His discretion
is not defined by statute, nor is he under any statutory obligation to receive
representations, although fairness may require that he should; see
Doody. There is no proper analogy with extradition proceedings,
particularly to those matters to be taken into account on an application for
habeas corpus.
31. It is apparent from the Decision Letter and the earlier one of 11th October
1999 that the Secretary of State undertook careful and extensive enquiries
which included consideration of the documents referred to; he has considered
all the matters advanced by the Applicant in his representations and has
arrived at a decision on all the material before him. It is said that he
failed to apply a test of "in good faith and in the interests of justice", by
analogy to extradition. This, in my judgement, is not warranted either by the
scheme or by the words of the 1990 Act. The Secretary of State has not been
shown to have failed to take into account any material that he should have
considered or that he has relied on matters that he should not have taken into
account. He has not misunderstood his powers or duties. His decisions as to
good faith, whether or not the proceedings are well-founded, the judiciary
sufficiently independent and finally, whether he should transmit the evidence,
fall well within the range of decisions at which he could reasonably have
arrived after proper consideration of the relevant material.
32. I would dismiss the application.
LORD JUSTICE KENNEDY: I agree.
*********************
MR TURNER: My Lord, before your Lordships delivers judgment in this
matter, may I raise a matter with the Court?
LORD JUSTICE KENNEDY: Yes.
MR TURNER: The Claimant today is represented by Mr Jones leading Mr
Bromley-Martin. Mr Jones comes into to matter for the first time. Your
Lordships may have seen a note which has been sent over by Mr Jones and Mr
Bromley-Martin.
LORD JUSTICE KENNEDY: We have seen it.
MR JUSTICE TURNER: In paragraph 6(1) of that note, my friends raise a
point that I disclosed to them over the telephone this morning. I would like to
explain to your Lordships how that has come about and the significance or lack
of significance that we contend in respect of that one matter. I do not
propose to deal with the rest of my friends' note.
LORD JUSTICE KENNEDY: Insofar as there is any lack of clarity which, for
my part, I do not think there is, it may assist if I say now that we, in the
judgments which we propose to hand down, refuse a renewed application for
permission to seek judicial review. We do not give a substantive judgment.
MR JUSTICE TURNER: My Lord, that is certainly as we had understood it.
I am only going to address those matters if, and in so far as your lordships
felt the need to, but since it seems that I, looking back at my original
skeleton argument misled the Court on that factual matter in 6(1), I ought to
explain what the actual situation is as I have done for my friends this
morning.
Your Lordships were told at the end of last hearing by Mr Bromley-Martin, that
in any event a further judicial review application was to be launched arising
out of the two affidavits that we looked at during the course of our hearing.
Those affidavits contained hearsay material as to what the Attorney General,
under the former regime in Pakistan, is alleged to have admitted to other
people as to the signing of a certificate. Looking at that with a view to
knowing that my friends today would be seeking interlocutory relief in relation
to that, concentrated my mind on the exact form of the certificate. What I
should say is that contrary to impressions that may have been given, the
certificate is not a freestanding document, it is part and parcel of the Letter
of Request, but, he said, I hereby certify that.
Historically, in the first judicial review proceedings, the issue that was
being addressed (and I have gone back and looked at the papers in relation to
that) was whether there were proceedings in being. In that regard, the
Secretary of State disclosed that there had been a certificate. I know your
Lordships have seen attached to my previous note the gist letter, as I will
call it, which disclosed the existence of the certificate in relation to the
question of whether there were proceedings in being.
The question of section 4(2)(a), that matter was not raised in those original
proceedings and not addressed.
It is also apparent from that gist letter that there was clearly information
before the Secretary of State which at that time would have been more than
sufficient to satisfy him in relation to section 4(2)(a) because there was a
certified translation of the ballot (?) FIR. That is no doubt the reason why
no issue was raised or persuade in relation to section 4(2)(a).
Following that first set of judicial review proceedings, various pieces of
information were provided, representations made one way or the other, as your
Lordships know, as to whether the proceedings were brought in good faith and
generally well-founded. Then the decision letter of 11th October where specific
reference is made to -- in paragraph 10 specific reference is made to the
certification in relation to the section 4(2)(b) matter and then there is the
subsequent decision letter of 21st September 2000 in which no reference is made
to certification at all.
Indeed, in the present proceedings, I argued the case from the outset before
your Lordships, on the basis that the Secretary of State was not bound at the
transmission stage by whatever certificates there may have been, so in a
sense----
LORD JUSTICE KENNEDY: We have never been dealing with the transmission
stage.
MR TURNER: For the purposes of my argument, the question of, what if any
certificates were in existence was irrelevant, because I accepted that one had
to look at it at the transmission stage without being bound by any
certification. Because I have argued the case on that basis, the Secretary of
State is not bound by any certificate at this stage, the failure to make clear,
indeed to mislead, I think I have to accept in paragraph 23 of my original
skeleton argument, which seems to me on reflection to suggest that there was a
certification under section 4(2)(a), and I am afraid my error in that regard
was through not actually having the decision letter in front of me at the time
in thinking that it involved an historic amendment (?) of the matter rather
than investigating but, unfortunately, I did not remember it as accurately as I
thought I had and I can only apologise for that. As I say, once it became
apparent to me, I notified my friends this morning of the situation. What I had
said in paragraph 23 was:
"As to whether the Secretary of State was entitled to be satisfied within
the meaning of section 4(2)(b) [that should be 4(2)(a) in any event] of the
1990 Act was an act that had been committed, although reasonable grounds for
suspecting that such an offence had been committed and whether he should have
regarded the certificate given in that regard to be vitiated by fraud."
There was no certificate given in that regard. There was the FIR and the
information contained in that and the overt certificate in relation to the
4(2)(b) matter, but I go on to say that it can only be judged by reference to
the state of affairs known to the Secretary of State at the time when he made
his nomination under section 4(2) which I stand by, because there was nothing
before the Secretary of State at that stage of the subsequent material that was
supplied by the claimant. I then go on to argue the point that it is all
irrelevant in any event.
My Lord, that remains my contention, that on the basis of the argument that I
have put before the Court, the question of whether or not there was a
certificate under section 4(2)(a) is no more relevant than whether there was a
certificate under section 4(2)(b). Whatever basis the Secretary of State's
original decision was taken on is water under the bridge. He has new
discretion to exercise now and the question is whether, at the transmission
stage, in the light of conflicting information as to whether proceedings that
undoubtedly exist are pursued in good faith, or well-founded, is he entitled to
leave that matter in the circumstances to the courts in Pakistan. That is the
why in which I put the case and the way in which I will continue to put it
despite that omission and indeed that misleading comment in paragraph 23 of my
skeleton for which I apologise again.
MR JONES: My Lord, I wonder if I might set out at certainly no greater length
why it is that we are concerned about developments since the last hearing
before your Lordships and we do so in support of different applications as your
Lordships knows from our skeleton argument.
My Lord, it appears from what my learned friend has indicated to us this
morning and to your Lordships now, that there are three new pieces of important
and it might even be thought critical evidential material which has come to
light since the last hearing.
My Lord, the first of those matters is, that whereas at the last occasion, as I
have been told, great weight was attached to the fact that the Pakistani
authorities had not sought to make any freezing order of a kind permitted to
them under the legislation relating to drug trafficking offences. It was
suggested in argument to my learned friend Mr Bromley-Martin last time, that
there had been no search order, therefore it might be posed rhetorically what
was all the fuss about? It now does appear----
LORD JUSTICE KENNEDY: We have read all of this.
MR JONES: Yes, that there had been this application made to the Isle of
Man. My Lord, the second matter is -- and that matter made to the Isle of Man
which one would have expected and certainly knowable to the Secretary of State,
though obviously he did not know about it.
My Lord, the second important matter is that whereas your Lordships were given
to understand on the last occasion that no application had been had made for a
freezing order, it now turns out from my learned friend's note, further to the
hearing which was put in on 2nd April, it now turns out in fact that the Letter
of Request, to which reference has been made but which has never been supplied
to the Applicant - only a copy of the gist - it now does turn out that that
letter of request, contained a request that steps be taken to restrain dealings
in respect of those accounts, which were the subject matter of the request for
assistance.
My Lord, your Lordships I am sure would appreciate how from the Applicant's
point of view----
LORD JUSTICE KENNEDY: We have read this too.
MR JONES: --- he is entitled to regard it as disturbing, but that matter
was disclosed in the Letter of Request, but yet your Lordships were told the
contrary on the last occasion.
LORD JUSTICE KENNEDY: What is the next point.
MR JONES: My Lord, the final matter is the matter which was put forward
this morning about the misunderstanding about the certificate. My Lord, there
are therefore those three important matters going to the discretion of the
Secretary of State, going to the matters that we say he ought to have taken
into consideration which were not made known to the Court on that occasion. My
Lord, the way we put it in our skeleton argument is this: if the matter was
still open and your Lordships had not finally decided this, my Lord, we would
have submitted that your Lordships might perhaps have granted permission, but
refused for the reasons given which would at least allow the questions which
may not be disputed by the Secretary of State to raise matters of general
public importance that could perhaps be certified so the House of Lords does
have an opportunity of looking, not only at these matters of general principle,
but a much more complete body of facts than were before the court. My Lord,
alternatively, we submit, that if that course did not appeal to your Lordship,
we do submit that these new matters, none of which has incidentally been
formally proved in evidence, do make it very important, we say, to conduct a
further evidential examination at the very least, to have produced in evidence
the Letter of Request which contains these facts which only now have been made
known to us.
My Lord, that is the way we put it. We do say they are important. There are
three of them. We would respectfully request that permission be granted so
that you could at least certify this question or, alternatively, that judgment
be not delivered so that the evidential matters can properly be explored in
evidence in the light of what we say are disturbing and worrying sights.
LORD JUSTICE KENNEDY: Thank you very much.
MR TURNER: Do your Lordships wish me to respond?
LORD JUSTICE KENNEDY: Not at the moment (pause).
We have listened to the submissions made, but we are not satisfied that
there is any appropriate course at this stage other than the course which we
propose to take, which is to say that for the reasons set out in the judgment
which has been handed down, this renewed application to apply for judicial
review of the decision by the Secretary of State is dismissed.
We were conscious, of course, of the material that was set out in the
documentary papers put before us after we had heard the oral submissions and we
have taken them into account. As regards the validity of the certificate under
section 4, that was simply not an issue.
Before us during the course of either of the documentation or, for that matter,
the oral submissions that were made to us, if it is to be made an issue in the
course of some separate proceedings, that is a matter for those who are
advising this Applicant, but it is not a matter which we can possibly take
cognisance of at this stage.
What the Secretary of State may do in relation to further submissions or in
relation for that matter to any further applications that may be made, it is a
matter for the Secretary of State and we do not propose to seek or press for
any undertaking in the context of these proceedings.
It is a matter for another day.
MR JONES: My Lord, I wonder if I might just invite my learned friend to
say what his position is because there is an application for permission
pending. My Lord, these new matters which have come to light obviously justify,
we submit, fresh submissions including, I think as your Lordship has just said,
on what we have been told this morning. My Lord, our position is that the
Secretary of State is declining to give an undertaking even that he will defer
transmission of the material until the question of permission for that new
application is granted.
My Lord, in my respectful submission, bearing in mind that two matters have now
come to light and have been put forward by my learned friend correctly as
matters which have not been brought to his attention before. In my respectful
submission, it would be quite wrong in principle for my learned friend to say,
in the light of those new disclosures, that were going to transmit material,
though we know a fresh application for judicial review is pending. I would
respectfully invite him, my Lord, and would respectfully submit that your
Lordship might express a view about this, that it would not be right to do this
before permission can be considered on this third application which could be
done in a very short time. I say that particularly in the light of the fact
that these are matters arising from the letter of request which we have never
seen and there are now two matters put forward by my learned friend which he
regrets he did not put forward before and these new facts made known about the
Isle of Man. I would invite him to make that undertaking.
MR TURNER: My Lord, let me deal with that. The new judicial review
application has indeed been served, following the last hearing. At present, the
application is really a repetition of the last application including, one might
add, at least one paragraph which is factually incorrect as it transpired, but
I make no point about that. The addition is the fact of the two new affidavits
that were looked at during our judicial review application.
The Secretary of State has been asked if he will continue the undertaking that
has been extant for some years now, not to transmit the material pending a
determination of the fresh judicial review application. The stance that has
been taken is that unless the court indicated that it felt that interlocutory
relief was appropriate, the Secretary of State is not minded to proffer such an
undertaking. The reasons for it are these, and I take account also of the two
new matters that have been disclosed since the hearing, perhaps I can deal with
those first. The first of those matters, the question of whether an application
had been made in this jurisdiction for freezing orders. I do not think anything
I said----
LORD JUSTICE KENNEDY: Mr Turner, personally I am not disposed, and I do
not speak for my Lord, to get involved in extracting undertakings, making
recommendations in other proceedings of which, although we know something of
one, but which we do not know very much and of which we are not seized. If it
is thought appropriate to seek an order either from this Court or from someone
else in relation to such proceedings, the relevant papers need to be put before
the court and the relevant order sought.
MR TURNER: I think my Lord the point Mr Jones would make is that this
Court is much more aware of the background that any other court is going to be
at this stage, and that if the Secretary of State is not proffering an
undertaking then the matter is one of some urgency from his perspective.
LORD JUSTICE KENNEDY: I understand the problem to this extent, that if
the new proceeding are to encompass, I know not whether they will, the
information that you revealed to Mr Jones and as you revealed to us when you
put it before us this afternoon, that which is another dimension and I doubt
whether that is going to be part of the new proceedings or not?
MR TURNER: We take account of that and our stance is in relation to
that, but although we have mentioned it and disclosed it to correct the record,
as it were, we certainly do not accept that it has any significance to the
outcome of the present or indeed any fresh judicial review application, because
the question is what is the Secretary of State entitled to do or what must he
do at the transmission stage in relation to proceedings that have been pursued
by a new regime.
My Lord, it is really a question of practicalities and I quite understand from
my friend's side----
LORD JUSTICE KENNEDY: I understand that too.
MR TURNER: He needs to get the question of an injunction resolved or any
indication that it will be resolved if the Secretary of State is not to
prepared to proffer an undertaking.
LORD JUSTICE KENNEDY: I can understand that in reality it might be
sensible if the Secretary of State was prepared to give some sort of insurance,
but it is not a matter for the Court.
MR TURNER: No. The problem is that these proceedings have been hanging
about for quite a length of time and the Secretary of State is anxious that
they should be resolved swiftly, that all outstanding matters be resolved
swiftly once and for all, unless the court indicates that they think there is
potentially something in the matter that it is now wished to pursue, the
Secretary of State does not want to hold the matter up any further.
LORD JUSTICE KENNEDY: In the light of the last 24 hours developments, it
might be reasonable, and I only to put it forward on this basis, if the
Secretary of State were to indicate that he would take no action to transmit
the evidence until say the end of the week commencing 23rd April, which would
take us over the Easter holiday.
MR TURNER: My Lord, we will clearly give consideration to that.
LORD JUSTICE KENNEDY: You can do no more than give an undertaking as to
what seems to me, would give everyone a chance to take stock of their
position.
MR TURNER: What we are anxious I emphasise to do, is, of course, not to
bulldoze things through, but to ensure that things are dealt with expeditiously
and that matters are not raised as red herrings.
MR JONES: My Lord, I am prepared to indicate that we would complete
those amended grounds by tomorrow morning at
10 o'clock and if no undertaking is given----
LORD JUSTICE KENNEDY: Mr Jones, I understand your position. The
difficulty there is, that if everyone does things in enormous great haste then
they may or may not be as well done as they ought to be.
MR JONES: My Lord, precisely, but the alternative to the giving of an
undertaking is, my now going back to chambers and knocking on the Crown
Office's door at 7 o'clock tonight, that is the reality which can be avoided
obviously.
MR TURNER: My Lord, I am going to have to take instructions on the
matter. As I say it is a question of getting the thing before a court
expeditiously to resolve----
LORD JUSTICE KENNEDY: We are sitting for a time this afternoon. How
long would it take you to take instructions, would it take longer than that?
MR TURNER: No, it will not take me longer than that to get
instructions.
LORD JUSTICE KENNEDY: It would be sensible to deal with it while
everyone is around.
MR TURNER: If the Secretary of State was prepared to give a short term
undertaking, it is a question of whether we would be able to get the matter
before a court and seized of the issues expeditiously thereafter.
LORD JUSTICE KENNEDY: That is why I made the suggestion I did.
Effectively, we are sitting for another two days this week, and then there will
be courts available from 24th, 25th April onwards.
MR TURNER: Clearly, the advantage of your Lordships, or one or both of
your Lordships is that you have a background knowledge of it and one is not
going to have to spend a day going through the history, because there is a mass
of material for any judge coming afresh to it to take in.
LORD JUSTICE KENNEDY: How long do you need?
MR TURNER: My Lord, if I could have half an hour to take instructions I
would be most grateful.
LORD JUSTICE KENNEDY: If you would like to come back to us when a
convenient opportunity arises. I am sorry if this inconveniences you Mr Jones,
but some time in about half an hour's time, thank you.
(Short adjournment)
LORD JUSTICE KENNEDY: Mr Jones, is there anything you want to say?
MR JONES: My Lord, we are grateful to you for giving us that
opportunity. My learned friend is proposing my Lord to undertake not to
transmit the material until Thursday evening of this week. My Lord, I was
therefore proposing to draft additional grounds by 11 o'clock tomorrow morning
and I hope we can prevail upon the Crown Office to list the matter for a short,
I imagine no more than 20 or 25 minutes application for a stay before a
convenient court by, I think close of term is Wednesday, is it not?
LORD JUSTICE KENNEDY: Very well, thank you very much.
MR TURNER: My Lord, that is right. It is really a question of what
convenient court is going to mean.
LORD JUSTICE KENNEDY: Probably my Lord and I will do it. I am not going
to direct the Listing Officer who may have other views.
MR TURNER: It would certainly avoid the setting out in detail of the
background history of the matter, but we are instructed to give that
undertaking until the close of business on Thursday or any earlier
determination of the application.
LORD JUSTICE KENNEDY: Thank you both very much.
MR TURNER: My Lord, I do not know if your Lordships have actually
formally handed down the judgment?
LORD JUSTICE KENNEDY: We did, as it were, during the course of what I
said earlier, but if anything more is required, you have now said it, thank
you.
MR TURNER: My Lord, the only other matter that arises is that of costs
for that application and those proceedings. I seek costs on behalf of the
Secretary of State.
LORD JUSTICE KENNEDY: It would be very difficult for you to resist.
MR JONES: Yes, my Lord.
LORD JUSTICE KENNEDY: Very well, there will be an order accordingly.
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