22 Oct 2016, 49 mins ago

On 5 November 2014 the Supreme Court delivered its judgment in the case of VB; CU; CM and EN (Appellants) v Westminster Magistrates’ Court; The Government of Rwanda; The Crown Prosecution Service (Respondents) and CMK (Interested Party) [2014] UKSC 59. The case stems from a second attempt by Rwanda to extradite the requested persons in connection with allegations of genocide, related inchoate crimes, crimes against humanity and public order and murder.

In the extradition proceedings before Westminster Magistrates’ Court, the Appellants have argued that their extradition risked exposing them to a flagrantly unfair trial (contrary to Article 6 of the ECHR) and even torture or mistreatment (contrary to Article 3 of the ECHR). Crucial evidence on which they sought to rely came from witnesses who were unwilling to reveal their identity to the Rwandan Government and the Appellants argued that the judge should consider this evidence without being disclosed to the Rwandan Government or the CPS (who acted on its behalf).

The District Judge found that she could not consider evidence in a closed hearing. The Administrative Court dismissed the challenge to the District Judge’s decision not to order a closed hearing in which evidence was called in the absence of the Rwandan Government and its representatives but commented that, in their view, s.87 Coroners and Justice Act 2009 enabled witness anonymity orders to be made in extradition proceedings.

The Supreme Court dismissed the appeal by a 4-1 majority (Lord Toulson dissenting), finding that:

  • The judge had no power to order a closed material hearing or otherwise limit disclosure and was right not to do so.
  • The judge had no power to order disclosure to the CPS on the condition that further disclosure to the Rwandan Government was prohibited and was right not to do so.
  • s.87 Coroners and Justice Act 2009 has no application in extradition proceedings.

In sensitive and high profile cases there are often witnesses who can give compelling evidence which could result in a person’s discharge from extradition proceedings but who are unwilling to give evidence for fear of repercussions against themselves or their loved ones.

Requested persons who are not UK nationals often have potential asylum claims stemming from persecutory extradition requests. In asylum proceedings evidence can be given without fear that it will be transmitted back to the state in question and indeed, in certain circumstances, anonymously. This ruling means that frequently the only forum in which this sensitive evidence can be called is in asylum proceedings. This has serious implications in terms of the strength of case that can be presented in extradition proceedings and in addition raises tactical considerations regarding the careful management of parallel proceedings.

Gherson has extensive experience in managing complex asylum claims in conjunction with extradition proceedings both here in the UK and abroad. It is one of the only firms with the capability and experience to run both sets of proceedings under one roof and has successfully dealt with these issues involving extremely sensitive evidence in many cases. If you wish to discuss the implications of the Supreme Court ruling further please do not hesitate to contact a member of our team.

6 November 2014