1994 PLP 618 (SCMR)

Your Lordships have not previously had to consider whether justices, and in particular committing justices, have the power to refuse to try or commit a case upon the grounds that it would be an abuse of process to do so. Although doubts were expressed by Viscount Dilhorne as to the existence of such a power in Reg. v. Humphrys (1977) A.C. 1, 26, there is a formidable body of authority that recognises this power in the justices. In Mills v. Cooper (1967) 2 Q.B. 459, Lord Parker, CJ. hearing an appeal from justices who had dismissed an information on the grounds that the proceedings were oppressive and an abuse of the process of the Court said, at p.467: "So far as the ground upon which they did dismiss the information was concerned, every Court has undoubtedly a right in its discretion, to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the Court." Diplock, L.J. expressed his agreement with this view, at p.470F. In Reg. v. Canterbury and St. Augustine Justices, Ex parte Klisiak (1982) Q.B. 398, 411F, Lord Lane, C.J. was prepared to assume such a jurisdiction. In Reg. v. West London Stipendiary Magistrate, Ex parte Anderson (1984) 80 CrApp.R. 143, Robert Goff, L.J., reviewing the position at that date said, at p.149: "There was at one time some doubt whether Magistrates had jurisdiction to decline to allow a criminal prosecution to proceed on the ground that it amounted to an abuse of the process of the Court: see Director of Public Prosecutions v. Humphrys (1976) 63 CrApp.R. 95, 144; (1977) A.C. 1, 19, per Viscount Dilhorne. However, a line of authority which has developed since that case has clearly established that Magistrates do indeed have such a jurisdiction: see in particular Brentford Justices, Ex parte Wong (1981) 73 CrApp.R. 67; (1981) Q.B. 445; Watford Justices, Ex parte Outrim (1982) [1983] R.T.R. 26; Grays Justices, Ex parte Graham (1982) 75 CrApp.R. 229; (1982) 3 All E.R.

653. The power has, however, been described by the Lord Chief Justice as being very strictly confined': see Oxford City Justices, Ex parte Smith (1982) 75 CrApp.R. 200, 204." The power has recently and most comprehensively been considered and affirmed by the Divisional Court by Reg. v. Telford Justices, Ex parte Badhan (1991) 2 Q.B. 78, 81: Provided it is appreciated by Magistrates that this is a power to be most sparingly exercised, of which they have received more than sufficient judicial warning (see, for example, Lord Lane, CJ. in Reg. v. Oxford City Justices, Ex parte Smith (1982) 75 CrApp.R. 200 and Ackner, LJ. in Reg. v, Horsham Justices. Ex parte Reeves (Note) (1980) 75 CrApp.R. 236) it appears to me to be a beneficial development and I am unpersuaded that there are any sufficient reasons to overrule a long line of authority developed by successive Lord Chief Justices and Judges in the Divisional Court who are daily in much closer touch with the work in the Magistrates' Court than your Lordships. Nor do I see any force in an argument developed by the respondents which sought to equate abuse of process with contempt of Court. I would accordingly affirm the power of the Magistrates, whether sitting as committing justices or exercising their summary jurisdiction, to exercise control over their proceedings through an abuse of process jurisdiction. However, in the case of Magistrates this power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of Court procedures. Although it may be convenient to label the wider supervisory jurisdiction with which we are concerned in this appeal under the head of abuse of process, it is in fact a horse of a very different colour from the narrower issues that arise when considering domestic criminal trial procedures. I adhere to the view i.e. expressed in Reg. v. Guildford Magistrates' Court, Ex parte Healy (1983) 1 W.L.R. 108 that this wider responsibility for upholding the rule of law must be that of the High Court and that if a serious question arises as to the deliberate abuse of extradition procedures a Magistrate should allow an adjournment so that an application can be made and to the Divisional Court which I regard as the proper forum in which such a decision should be taken. I would answer the certified question as follows. The High Court in the exercise of its supervisory jurisdiction has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if satisfied that it was in disregard of extradition procedures it may stay the prosecution and order the release of the accused. Accordingly I would allow this appeal and remit the case to the Divisional Court for further consideration. LORD BRIDGE OF HARWICH: ‑‑My Lords, this appeal raises an important question of principle. When a person is arrested and charged with a criminal offence, is it a valid ground of objection to the exercise of the Court's jurisdiction to try him that the prosecuting authority secured the prisoner's presence within the territorial jurisdiction of the Court by forcibly abducting him from within the jurisdiction of some other State, in violation of international law, in violation of the laws of the State from which he was abducted, in violation of whatever rights he enjoyed under the laws of that State and in disregard of available procedures to secure his lawful extradition to this country from the State where he was residing? This is to state the issue very starkly, perhaps some may think tendentiously But because this appeal has to be determined on the basis of assumed facts, your Lordships, as it seems to me, cannot avoid grappling with the issue in this stark form. In this country and in Scotland the mainstream of authority, as the careful review in the speech of my noble and learned friend, Lord Griffiths, shows, appears to give a negative answer to the question posed, holding that the Courts have no power to examine the circumstances in which a prisoner was brought within the jurisdiction. I fully recognise the cogency of the arguments which can be adduced in support of this view, sustained as they are by the public interest in the prosecution and punishment of crime. But none ‑f the previous authorities is binding on your Lordships' House and, if there is another important principle of law which ought to influence the answer to the question posed, then your Lordships are at liberty, indeed under a duty, to examine it and, if it transpires that this is an area where two valid principles of law come into conflict, it must, in my opinion, be for your Lordships to decide as a matter of principle which of the two conflicting principles of law ought to prevail. When we look to see how other jurisdictions have answered a question analogous to that before the House in terms of their own legal systems, the most striking example of an affirmative answer is the decision of the South African Court of Appeal in S. v. Ebrahim, 1991(2) SA. 553 allowing an appeal against his conviction for treason by a member of the African National Congress on the sole ground that he had been abducted from Swaziland, outside the jurisdiction of the South African Court, by persons acting as agents of the South African State. This decision as the summary in the headnote shows, resulted from the application of "several fundamental legal principles: viz. those that maintained and promoted human rights, good relations between States and the sound administration of justice: the individual had to be protected against unlawful detention and against abduction, the limits of territorial jurisdiction and the sovereignty of States had to‑be respected, the fairness of the legal process guaranteed and the abuse thereof prevented so as to protect and promote the dignity and integrity of the judicial system. The State was bound by these rules and had to come to Court with clean hands, as it were, when it was itself a party to proceedings and this requirement was clearly not satisfied when the State was involved in the abduction of persons across the country's borders." In the United States, the authorities reveal a conflict of judicial opinion. The doctrine established by Supreme Court decisions in 1886, Ker v. Illinois, 119 U.S. 436, and in 1952, Frisbie v. Collins, 342 U.S. 519, accords substantially in its effect with the doctrine of the early English authorities. But more recently this doctrine has been powerfully challenged. In United States v. Toscanino (1974) 500 F.2d 267, 268 the defendant, an Italian citizen, who had been convicted in the New York District Court of a drub conspiracy, alleged that the Court had "acquired jurisdiction over him unlawfully through the conduct of American agents who had kidnapped him in Uruguay ...tortured him and abducted him to the United States for the purpose of prosecuting him" there. The lower Court having held that these allegations were immaterial to the exercise of its jurisdiction to try him, provided he was physically present at the time of trial, he appealed to the United States Court of Appeals Second Circuit. The effect of the Court's decision is sufficiently summarised in the headnote. The Court held: "that Federal District Court's criminal process would be abused or degraded if it was executed against defendant Italian citizen, who alleged that he was brought into the United States from Uruguay after being kidnapped, and such abuse could not be tolerated without debasing the processes of justice, so that defendant was entitled to a hearing on his allegations .... Government should be denied the right to exploit its own illegal conduct, and when an accused is kidnapped and forcibly brought within the jurisdiction, Court's acquisition of power over his person represents the fruits of the government's exploitation of its own misconduct." :

The most recent decision of the United States Supreme Court in United States v. Alvarez‑Machain (1992) 119 L.Ed.2d. 441 concerned an American citizen indicted for the murder of an agent of the Drug Enforcement Administration (D.EA.). The District Court had held that other D.E.A. agents had been responsible for the defendant's abduction from Mexico; that this had been in violation of the extradition treaty between Mexico and the United States; and that the accused should be discharged and repatriated to Mexico. This decision was affirmed by the United States Court of Appeals, Ninth Circuit, but reversed by the Supreme Court by a majority of six to three. The opinions related primarily to the question whether the abduction was a breach of the treaty. The majority held that the abduction, although "shocking," involved no breach of the treaty and. relied on the earlier decisions in the cases of (Ker, 119 U.S. 436), and Frisbie, 342 U.S. 519, for the view that the abduction was irrelevant to the exercise of the Court's criminal jurisdiction. The dissenting opinion of Stevens, J., in which Blackmun and O'Connor, JJ, joined, held that the abduction was both in breach of the treaty and in violation of general principles of international law and distinguished the earlier authorities as having no application to a case where the abduction in violation of international law was carried out on the authority of the executive branch of the United States Government. The minority opinion was that this was an infringement of the rule of law which it was the Court's duty to uphold. After referring to the South African decision in S. v. Ebrahim. Stevens, J. writes in the final paragraph of his opinion, at pp. 466‑467: "The Court of Appeal of South Africa‑‑‑indeed, I suspect most Courts throughout the civilised world‑‑‑will be deeply disturbed by the `monstrous' decision the Court announces today. For every nation that has an interest in preserving the rule of law is affected, directly or indirectly, by a decision of this character:" In the common law jurisdiction closest to our own the opinion expressed by Woodhouse, J. in the New Zealand case of Reg. v. Hartley (1978) 2 N.Z.L.R. 199, in which he describes the issue as "basic to the whole concept of freedom in society". has already been cited by my noble and learned friend, Lord Griffiths, and I need not repeat it. In the later case of Moevao v. Department of Labour (1980) 1 N.Z.L.R. 464, 475‑476), Woodhouse, J. cited the relevant passage from his own judgment in Hartley and added: "It is not always easy to decide whether some injustice involves the further consequence that a prosecution associated with it should be regarded as an abuse of process. And in this regard the Courts have been careful to avoid confusing their own role with the executive responsibility for deciding upon a prosecution. In the Connelly case Lord Devlin referred to those matters and then, as I have said, he went on to speak of the importance of the Courts accepting what he described as their `inescapable duty to secure fair treatment for those who come or are brought before them'. He said that `the Courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused' (1964) A.C. 1254, 1354. Those remarks involve an important statement of Constitutional principle. They assert the independent strength of the judiciary to protect the law by protecting its own purposes and function. It is essential to keep in mind that it is `the process of law', to use Lord Devlin's phrase that is the issue. It is not something limited to the conventional practices or procedures of the Court system. It is the function and purpose of the Courts as a separate part of the Constitutional machinery that must be protected from abuse rather than the particular processes that are used within the machine. It may be that the shorthand phrase `abuse of process' by itself does not give sufficient emphasis to the principle that in this context the Court must react not so much against an abuse of the procedure that has been built up to enable the determination of a criminal charge as against the much wider and more serious abuse of the criminal jurisdiction in general. It is for reasons of this kind that I remain of the opinion that the trial Judge would have been entirely justified in the Hartley case in stopping the prosecution against the man Bennett." Whatever differences there may be between the legal systems of South Africa, the United States, New Zealand and this country, many of the basic principles to which they seek to give effect stem from common roots. There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself. When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of the laws of another State in order to secure the presence of the accused within the territorial jurisdiction of the Court, I think that respect for the rule of law demands that the Court take cognizance of that circumstance. To hold that the Court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view. Having then taken cognizance of the lawlessness it would again appear to me to be a wholly inadequate response for the Court to hold that the only remedy lies in civil proceedings at the suit of the defendant or in disciplinary or criminal proceedings against the individual officers of the law enforcement agency who were concerned iii‑ the illegal action taken. Since the prosecution could never p have been brought if the defendant had not been illegally abducted, the whole proceeding is tainted. If a resident in another country is properly extradited here, the time when the prosecution commences is the time when the authorities here set the extradition process in motion. By parity of reasoning, if the authorities, instead of proceeding by way of extradition, have resorted to abduction, that is the effective commencement of the prosecution process and is the illegal foundation on which it rests. It is apt, in my view, to describe these circumstances, in the 'language used by Woodhouse, J. in Moevao v. Department of Labour (1980) 1 N.Z.L.R. 464, 476, as an "abuse of the criminal jurisdiction in general" or indeed, in the language of Mansfield, J. in United States v. Toscanino, 500 F.2d 267, as a "degradation" of the Court's criminal process. To hold that in these circumstances the Court may decline to exercise its jurisdiction on the ground that its process has been abused may be. An extension of the doctrine of abuse of process but is in my view, a wholly proper and necessary one. For these reasons and for the reasons given in the speech of my noble and learned friend, Lord Griffiths, with which I fully agree, I would allow the appeal. LORD OLIVER OF AYLMERTON.‑‑My Lords, a citizen whose rights have been infringed by unlawful or overenthusiastic action on the part of 100 an executive functionary has a remedy by way of recourse to the Courts in civil proceedings. It may not be an ideal remedy. It may not always be a remedy which is easily available to the person injured. It may not even, certainly in his estimation, be an adequate remedy. But it is the remedy which the law provides to the citizen who chooses to invoke it. The question raised by this appeal is whether, in addition to such remedies as may be available in civil proceedings, the Court should assume the duty of overseeing, controlling and punishing an abuse of executive power leading up to properly instituted criminal proceedings not by means of the conventional remedies invoked at the instance of the person claiming to have been injured by such abuse but by restraining the further prosecution of those proceedings. The results of the assumption of such a jurisdiction are three‑fold; and they are surprising. First, the trial put in train by a charge which has been properly laid will not take place and the person charged (if guilty) will escape a just punishment; secondly, the civil remedies available to that person will remain enforceable; and thirdly, the public interest in the prosecution and punishment of crime will have been defeated not by a necessary process of penalising those responsible for executive abuse but simply for the purpose of manifesting judicial disapproval. It is, of course, axiomatic that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all. But it is also axiomatic that there is a strong public interest in the prosecution and punishment of crime. Absent any suggestion of unfairness or oppression in the trial process, an application to the Court charged with the trial of a criminal offence (to which it may be convenient to refer by the shorthand expression "a criminal Court"), whether that application be made at the trial or at earlier committal proceedings, to order the discontinuance of the prosecution and the discharge of the accused on the ground of some anterior executive activity in which the Court is in no way implicated requires to be justified by some very cogent reason. Making, as I do, every assumption in favour of the appellant as regards the veracity of the evidence which he has adduced and the implications sought to be drawn from it, I discern no such cogent reason in the instant case do not consider that, either as a matter of established law or as a matter of principle, a criminal Court should be concerned to entertain questions as to the propriety of anterior executive acts of the law enforcement agencies which have no bearing upon the fairness or propriety of the trial process or the ability of the accused to defend himself against charges properly brought against him. I have had the advantage of reading in draft the speech delivered by my noble and learned friend, Lord Griffiths, and I gratefully acknowledge and adopt his recitation of the relevant authorities and the conflict of judicial opinion which arises from them. Your Lordships have, in addition, been referred in the course of argument to a number of reports of civil cases of respectable antiquity in which persons originally unlawfully detained have been released from custody in the exercise of the Court's undoubted jurisdiction to prevent abuses of its own process. But those were cases in which parties to civil proceedings had sought to take advantage of their own wrong in securing the unlawful detention of another party by serving proceedings for civil arrest upon him whilst unlawfully detained. In the case of a person charged with the commission of a criminal offence following an allegedly irregular initial detention, there was, until Reg. v. Bow Street Magistrates, Ex parte Mackeson (1981) 75 CrApp.R. 24) an unbroken line of authority in the United Kingdom dating from the early 19th century for the proposition perhaps most pithily expressed by Lord Goddard, CJ. in Rex v. Officer Commanding Depot Battalion, RA.S.C., Colchester, Ex parte Elliott (1949) 1 All E.R. 373 that once a person is in lawful custody in this country the Court has no power and is not concerned to inquire into the circumstances in which he may have been brought here. Ex parte Mackeson and Reg. v. Guildford Magistrates' Court, Ex parte Healy (1983) 1 W.L.R. 108 which impliedly followed it, were to the contrary effect, but in a reserved judgment of the Divisional Court delivered by Stephen Brown, L.J. in Reg. v. Plymouth Justices, Ex parte Driver (1986) Q.B. 95, in which all the relevant authorities were fully reviewed, that Court followed the earlier line of authority and rejected the decision in Ex parte Mackeson as having been decided per incuriam. Ex parte Driver was follower: by the Divisional Court in the instant case in rejecting the appellant's claim that the criminal Court had jurisdiction to consider and pass judgment upon the circumstances in which he had been brought within the jurisdiction. The appellant invites this House now to say that the decision in Ex parte Mackeson is to be preferred and that a criminal Court's undoubted jurisdiction to prevent abuses of its own process should be extended, if indeed it does not already extend, to embrace a much wider jurisdiction to oversee what is referred to generally as "the administration of justice", in the broadest sense of the term, including the executive acts of law enforcement agencies occurring before the process of the Court has been invoked at all and having no bearing whatever upon the fairness of the trial. I have to say that I am firmly of the opinion that, whether such a course be properly described as legislation or merely as pushing forward the frontiers of the common law, the invitation is one which ought to be resisted. For my part, I see neither any inexorable logic calling for such an extension nor any social need for it; and it seems to me to be a course which will be productive of a good deal of inconvenience and uncertainty. I can, perhaps, best explain my reluctance to embark upon such a course by postulating and seeking to answer two questions. First, does a criminal Court have, or should it have, any general duty or any power to investigate and oversee executive abuses on the part of law enforcement officers not affecting either the fairness of the trial process or the bona fides of the charge which it is called upon to try and occurring prior to the institution of the criminal proceedings and to order the discontinuance of such proceedings and the discharge of the accused if it is satisfied that such abuses have taken place? Secondly, if there is no such general jurisdiction and if the executive abuse alleged consists of the repatriation of the accused from foreign country through acts which are unlawful in the country in which they occurred, is there some special quality in this form of executive abuse which gives rise to or which calls for the creation of such a jurisdiction in this particular case? ' So far as the first question is concerned, I know of no authority for the existence of any such general supervisory jurisdiction in a criminal Court. It is not, of course, in dispute that the Court has power to prevent the abuse of its own process and that must, I would accept, include power to investigate the bona fides of the charge which it is 'called upon to try and to decline to entertain a charge instituted in bad faith or oppressively‑‑‑for instance, if the accused's cooperation in the investigation of a crime has been secured by an executive undertaking that no prosecution will take place. Thus, I would not for a moment wish to suggest any doubt as to the correctness of a decision such as that in the recent case of Reg. v. Croydon Justices, Ex parte Dean, 19th February 1993, where the Court quashed committal proceedings instituted after an undertaking given to the accused by police officers that he would not be prosecuted. In such a case doubt is cast both upon the bona fides of the prosecution and on the fairness of the process to an accused who has been invited to prejudice his own position on the faith of the undertaking. Where, however, there is no suggestion that the charge is other than bona fide or that there is any unfairness in the trial process, the duty of the criminal Court is simply to try the case and i can see no ground upon which it can claim a discretion, or upon which it ought properly to be invited, to discontinue the proceedings and discharge an accused who is properly charged simply because of some alleged anterior excess or unlawful act on the part of the executive officers concerned with his apprehension and detention. That is not for a moment to suggest that such abuses, if they occur, are unimportant or are to be lightly accepted: but they are acts for which, if they are unlawful, the accused has the same remedies as those available to any other citizen whose legal rights have been infringed. If they are not only unlawful but are criminal as well, they are themselves remediable by criminal prosecution. That a Judge may disapprove of or even be rightly outraged by the manner in which an accused has been apprehended or by his treatment whilst in custody cannot, however, provide a ground for declining to perform the public duty of insuring that, once properly charged, he is tried fairly according to law. In Reg. v. Sang (1980) A.C. 402, 454, Lord Scarman observed: "Judges are not responsible for the bringing or abandonment of prosecutions: nor have they the right to adjudicate in away which indirectly usurps the functions of the legislature or jury." Those words were used in the context of a suggested discretion to prevent a prosecution because of judicial disapproval of the way in which admissible evidence had been obtained, but they are equally applicable to other executive acts which may incur judicial disapprobation. Experience shows that allegations of abusive use of executive power in the apprehension of those accused of criminal offences are far from rare. They may take the form of allegations of illegal entry on private premises, of damage to property, of the use of excessive force or even of ill‑treatment or violence whilst in custody. So far as there is substance in such allegations, such abuses are disgraceful and regrettable and they may, no doubt, be said to reflect very ill on the administration of justice in the broadest sense of that term. But they provide no justification nor; so far as I am aware, :s there any authority for the proposition that wrongful treatment of an accused, having no bearing upon the fairness of the trial process, entitles him to demand that he be not tried for an offence with which he has been properly charged. Indeed, any such general jurisdiction of a criminal Court to investigate and adjudicate upon antecedent executive ads would be productive of hopeless uncertainty. It clearly cannot be the case that every excessive use of executive power entitles the accused to be exonerated. But then at what point and at what degree of outrage is the criminal Court to undertake an inquiry and, if satisfied, to take upon itself the responsibility of refusing further to try the case? If, then, it be right, as I believe that it is, that there neither is nor should be any general discretion in a criminal Court to inquire into the conduct of executive officers before and leading up to the institution of criminal proceedings, the second question which I have ventured to postulate arises. Where, with the connivance or at the instigation of executive officers in this country, an accused person who has taken refuge in a foreign country is brought as a result of activity unlawful in that country within the jurisdiction of an English Court and is then lawfully detained and charged, is there some special quality attaching to the unlawful and abusive activity abroad which confers or ought to confer" on the criminal Court a discretion which it would not otherwise possess? The matter can, perhaps, best be illustrated by a hypothetical example of two terrorists, A and B, who, having detonated a bomb in London, make their way to Dover with a view to escaping abroad. A, as a result of a quarrel with a ticket inspector, is wrongfully detained by the railway police and whilst still in wrongful custody is duly arrested for the terrorist offence and subsequently charged. B, having successfully boarded a Channel ferry, is recognised as he steps ashore in Calais by two off‑duty constables returning from holiday who seize him on the quayside and take him back on board keeping him under restraint until the ferry returns to Dover where he is arrested and charged. Now nobody would, I think suggest for a moment that the trial of A should not proceed, simply because, as a result of a wrongful arrest and detention, he has been prevented from making good his escape, although he has in fact been put in the position of being charged and brought to trial only by reason of an unlawful abuse of executive power. What, then, distinguishes the case of B and confers on the criminal Court in his case a discretion to stay his trial and discharge him which the Court which does not possess in the case A? I can see only two possible justifications for the suggestion that the Court ought, in B's case, to have such a discretion. First, it may be argued that, as a matter of international comity an English Court ought to signify its disapproval of the invasion of the protective rights of a foreign State over those who come within its jurisdiction by declining to try a person who has been wrongfully removed from the protection of that State through the instrumentality of persons for whose actions the authorities of this country are responsible. I do not find this argument persuasive. An English criminal Court is not concerned nor is it in a position to investigate the legality under foreign law of acts committed on foreign soil and in any event any complaint of an invasion of the sovereignty of a foreign State is, as it seems to me, a matter which can only properly be pursued on a diplomatic level between the government of the United Kingdom and the government of that State. Secondly, it may be argued that the unlawful activity of which complaint is made, because it results in the accused being brought within a jurisdiction from which he would otherwise have escaped, is invested with a special character because it infringes some "right" of the accused in English law to be repatriated only through a process of extradition by the State under whose protection he has succeeded in placing himself. Now it is, of course, perfectly true that the Extradition Act, 1989 contains, in section 6(4), an inhibition upon extradition from the United Kingdom unless provision is made by the receiving State that the person extradited will not, without the consent of the Secretary of State, be dealt with for (in broad terms) offences other than those in respect of which his extradition has been ordered. That provision is mirrored in section 18 of the Act which provides that the person extradited to the United Kingdom from a foreign State will not be triable for (again in broad terms) offences other than those for which he has been extradited unless he has first had an opportunity of leaving the United Kingdom. Thus, a person who is returned only as a result of extradition proceedings enjoys, as a result of this statutory inhibition, an advantage over one who elects to return voluntarily or who is otherwise induced to return within the jurisdiction. But these are provisions inserted in the Act for the purpose of giving effect to reciprocal treaty arrangements for extradition. I cannot, for my part, regard them as conferring upon a person who is fortunate enough successfully to flee the jurisdiction some "right" in English law which is invaded if he is brought or induced to come back within the jurisdiction otherwise than by an extradition process, much less a right the invasion of which a criminal Court is entitled or bound to treat as vitiating the process commenced by a charge properly brought. It is not suggested for a moment that if, as a result of perhaps unlawful Police action abroad‑‑‑for instance, in securing the deportation of the accused without proper authority‑‑‑in which officers of the United Kingdom authorities are in no way involved, an accused person is found here and duly charged, the illegality of what may have occurred abroad entitled the criminal Court here to discontinue the prosecution and discharge the accused. Yet in such a case the advantage which the accused might have derived from the extradition process is likewise destroyed. No "right" of his in English law has been infringed, though he may well have some remedy in the foreign Court against those responsible for his wrongful deportation. What is said to make the critical difference is the prior involvement of officers of the executive authorities of the United Kingdom. But the arrest and detention of the accused are not part of the trial process upon which the criminal Court has the duty to embark. Of course, executive officers are subject to the jurisdiction of the Courts. If they act unlawfully, they may and should be civily liable. If they act criminally, they may and should be prosecuted. But I can see no reason why the antecedent activities, whatever the degree of outrage or affront they may occasion, should be thought to justify the assumption by a criminal Court of a jurisdiction to terminate a properly instituted criminal process which it is its duty to try. I would only add that if, contrary to my opinion, such an extended jurisdiction over executive abuse does exist, I entirely concur with what has fallen from my noble and learned friend, Lord Griffiths, with regard to the appropriate Court to exercise such jurisdiction. I would dismiss the appeal and answer the certified question in the negative. LORD LOWRY.‑‑My Lords, having had the advantage of reading in draft the speeches of your Lordships, I accept the conclusion of my noble and learned friends, Lord Griffiths and Lord Bridge of Harwich, that the Court has a discretion to stay as an abuse of process criminal proceedings brought against an accused person who has been brought before the Court by abduction in a foreign country participated in or encouraged by British authorities. Recognising, however, the clear and forceful reasoning of my noble and learned friend, Lord Oliver of Aylmerton to the contrary, I venture to contribute some observations of my own. The first essential is to define abuse of process, which in my opinion must mean abuse of the process of the Court which is to try the accused. Archbold, Criminal Pleading Evidence & Practice, 43rd Ed. (1993), para. 4‑44 calls it "a misuse or improper manipulation of the process of the Court". In Rourke v. R. (1977) 76 D.L.R. (3d) 193, Laskin C.J.C. said, at p.205, "The Court is entitled to protect its process from abuse" and also referred, at p.207, to "the danger of generalising the application of the doctrine of abuse of process". In Moevao v. Department of Labour (1980) 1 N.Z.L.R. 464, 476, Woodhouse, J. spoke approvingly of "the much wider and more serious abuse of the criminal jurisdiction in general", whereas Richmond P., giving expression to reservations about the view in which he had concurred in Reg. v. Hartley (1978) 2 N.Z.L.R. 199, referred, at p.471, to the need to establish "that the process of the Court is itself being wrongly made use of". I think that the words used by Woodhouse, J. involve a danger. that the doctrine of abuse of process will be too widely applied and I prefer the narrower definition adopted by the President. The question still remains what circumstances antecedent to the trial will produce a situation in which the process of the Court of trial will have been abused if the trial proceeds. Whether the proposed trial will be an unfair trial is not the only test of abuse of process. The proof of a previous conviction or acquittal on the same charge means that it will be unfair to try the accused but not that he is about to receive an unfair trial. Again, in Reg. v. Grays Justices, Ex pane Lore (1988) 88 Ch.App,R, 291 it was held to be an abuse of process to prosecute a summons where the accused had already been bound over and the summons had been withdrawn, while in Reg. v. Horsham Justices, Ex parte Reeves (Note) (1980) 75 CrApp.R. 236 it was held to be an abuse of process to pursue charges when the Magistrates had already found "no case to answer". It would, I submit, be generally conceded that for the‑Crown to go back on a promise of immunity given to an accomplice who is willing to give evidence against his confederates would be unacceptable to the proposed Court of trial, although the trial itself could be fairly conducted. And to proceed in respect of a non‑extraditable offence against an accused who has with the connivance of our authorities been unlawfully brought within the jurisdiction from a country with which we have an extradition treaty need not involve an unfair trial, but this consideration would not in my opinion be in answer to an application to stay the proceedings on the ground of abuse of process. This last example, though admittedly not based on authority, foreshadows my conclusion that a Court would have power to stay the present proceedings against the appellant, assuming the facts alleged to be proved, because I consider that a Court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the Court's sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a Court to try a person who is charged before it with an offence which the Court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the Court's disapproval of official conduct. Accordingly, if the prosecuting authorities have been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the Court ought not to stay the proceedings merely "pour encourager les autres". Your Lordships have comprehensively reviewed the authorities and therefore I will be content to highlight the: features which have led me to conclude in favour of the appellant. The Court in Reg. v. Bow Street Magistrates, Ex parte Mackeson (1981) 75 CrApp.R. 24, while quite clear that there was jurisdiction to try the applicant, relied on Reg. v. Hartley (1978) 2 N.Z.L.R.199 for the existence of a discretion to make an order of prohibition. Woodhouse, J. in Hartley had also recognised the jurisdiction to try Bennett, but expressed the Court's conclusion that to do so in the circumstances offended against "one of the most important principles of the rule of law". The Court's decision in Reg. v. Plymouth Justices, Ex pane Driver (1986) Q.B. 95 to the contrary effect was influenced by Ex parte Susannah Scott (1829) 9 B. & C. 446, Sinclair v. H.M. Advocate (1890) 17 R.(J.) 38 and Rex v. Officer Commanding Depot Battalion, RA.S.C., Colchester, Ex parte Elliott (1949) 1 All E.R.

373. Scott and Sinclair were decisions on jurisdiction and formed the basis of the decision in Ex parte Elliott, in which there was an application for a writ of habeas corpus, based on the allegation that the applicant was not subject to military law and that he was wrongfully held in custody. My noble and learned friend, Lord Griffiths, has described the argument advanced by the applicant and the manner in which Lord Goddard, CJ. dealt with that argument in the Court's judgment by reference to the cases of Scott and Sinclair. Then, having disposed of an argument based on provisions of the Army Act relating to arrest, the Lord Chief Justice came to "the only point in which there was any substance ... whether there has been such delay that this Court ought to interfere". p.379‑A. Neither in the discussion and rejection of this point nor anywhere else in the judgment does the question of abuse of process arise and, as the judgment put it, at p.379: "What we were asked to do in the present case, and the most we could have been asked to do, was to admit the prisoner to bail until the Court was ready to try him:" This brief review strengthens my inclination to prefer Ex parte Mackeson to Ex varte Driver and to the Divisional Court's judgment on the main point in the present case, since I consider that the true guidance is to be found not in the jurisdictional cases but in Reg. v. Hartley. My noble and learned friend, Lord Griffiths, has already pointed out that the United States authorities, in which opinion is divided, have involved a discussion of jurisdiction and the interpretation of the Fourteenth Amendment. While on the subject of due process, I might take note of a subsidiary argument by the respondent: the use by the prosecution of evidence which has been unlawfully or dishonestly obtained is regarded in the United States as a violation of due process ("the fruit of the poisoned tree"), but the preponderant American view is in favour of trying accused persons even when their presence in Court has been unlawfully obtained: therefore, a fortiori the view in this jurisdiction ought to favour trying such accused persons, having regard to the more tolerant common law attitude here to unlawfully obtained evidence, as shown by Reg. v. Sang (1980) A.C.402. My answer is that I would consider it a dangerous and question‑begging process to rely on this chain of reasoning, particularly where the Constitutional meaning of "due process" is one of the factors. As your Lordships have noted; the respondent also relied on Reg. v. Sang directly in order to support the argument that it does not matter whether the accused comes to be within the jurisdiction by fair means or foul. The philosophy which inspires the proposition that a Court may stay proceedings brought against a person who has been unlawfully abducted in a foreign country is expressed, so far as existing authority is concerned, in the passages cited by my noble and learned friend, Lord Bridge of Harwich. The view there expressed is that the Court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the Court's conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the Court's process has been abused. Therefore, although the power of the Court is rightly confined to its inherent power to protect itself against the abuse of its own process, I respectfully cannot agree that the facts relied on in cases such as the present case (as alleged) "have nothing to do with that process" just because they are not part of the process. They are the indispensable foundation for the holding of the trial. The implications for international law, as represented by extradition treaties, are significant. If a suspect is extradited from a foreign country to this country he cannot be tried for an offence which is different from that specified in the warrant and, subject always to the treaty's express provisions, cannot be tried for a political offence. But, if he is kidnapped in the foreign country and brought here, he may be charged with any offence, including a political offence, if British officialdom at any level has participated in or encouraged the kidnapping, it seems to represent a grave contravention of international law, the comity of nations and the rule of law generally if our Courts allow themselves to be used by the executive to try an offence which the Courts would not be dealing with if the rule of law had prevailed. It may be said that a guilty accused finding himself in the circumstances predicated is not deserving of much sympathy, but the principle involved goes beyond the scope of such a pragmatic observation and even beyond the rights of those victims who are or may be innocent. It affects the proper administration of justice according to the rule of law and with respect to international law. For a comparison of public and private interests in the criminal arena I refer to an observation of Lord Reading, C.J. in a different context in Rex v. Lee Kun (1916) 1 K.B. 337, 341: "the trial of a person for a criminal offence is not a contest of private interests in which the rights of parties can be waived at pleasure, The prosecution of criminals and the administration of the criminal law are matters which concern the State" If proceedings are stayed when wrongful conduct is proved, the result will not only be a sign of judicial disapproval but will discourage similar conduct in future and thus will tend to maintain the purity of the stream of justice. No "floodgates" argument applies because the executive can stop the flood at source by refraining from impropriety. I regard it as essential to the rule of law that the Court should not have to make available its process and thereby endorse (on what I am confident will be a very few occasions) unworthy conduct when it is proved against the executive or its agents, however, humble in rank. And, remembering that it is not jurisdiction which is in issue but the exercise of a discretion to stay proceedings, while speaking of "unworthy conduct", I would not expect a Court to stay the proceedings of every trial which has been preceded by a venial irregularity. If it be objected that my preferred solution replaces certainty by uncertainty, the latter quality is inseparable from judicial discretion. And, if the principles are clear and, as I trust, the cases few, the prospect is not really daunting. Nor do I consider that your Lordships ought to be deterred from deciding in favour of discretion by the difficulty, which may sometimes arise, of proving the necessary facts. I would now pose and try to answer three questions. (1) What is the position if without intervention by the British authorities a "wanted man" is wrongfully transported from a foreign country to this jurisdiction? The Court here is not concerned with irregularities abroad in which our executive (at any level) was not involved and the question of staying criminal proceedings, as proposed in a case like the present does not arise. It seems to me, however, that in practice the transporting of a wanted man to the United Kingdom from elsewhere (by whatever method) will nearly always take place in consequence of a request by the executive here. (2) Why should the Court not stay for abuse of process if the accused has been wrongfully arrested in the United Kingdom (which is not alleged to have happened in the instant case)? A person wrongfully arrested here can seek release by applying for a writ of habeas corpus but, once released, can be lawfully arrested, charged and brought to trial. His earlier wrongful arrest is not essentially connected with his proposed trial and the proceedings against him will not be stayed as an abuse of process. (3) If at common law the rule in Reg. v. Sang applies to let in admissible evidence obtained by wrongful conduct on the part of the executive, why does similar reasoning not prevail where the presence of the accused has been procured by wrongful conduct in which the executive is involved? Reg. v. Sang exemplifies a common law rule of evidence, as explained by the speeches in that case, which applied to all admissible evidence except confessions and certain evidence produced by confessions (as to which see Lam Chi‑ming v. The Queen (1991) 2 A.C.

212. The abuse of process which brings into play the discretion to stay proceedings arises from wrongful conduct by the executive in an international context. Secondly, although there is no discretion at common law to exclude evidence (except confession evidence) by reason of wrongful conduct, there is discretion to stay proceedings as an abuse of process (see Connelly v. Director of Public Prosecutions (1964) A.C. 1254) and the alleged facts of the instant case are but one example of the need for that discretion. It has been suggested that, since the executive conduct complained of invades the rights of other countries and of persons under their protection and detracts from international comity, the remedy lies not with the Courts but in the field of diplomacy. I would answer that the Court must jealously protect its own process from misuse by the executive and that this necessity gives particular point to the observation of Lord Devlin (which my noble and learned friend, Lord Griffiths, has already noted) in Connelly v. Director of Public Prosecutions, at p. 1354: "The Courts cannot contemplate for a moment the transference to the executive of the, responsibility for seeing that the process of law is not abused." I now turn to the question of procedure. The appellant, having been committed for trial, applied for an order of certiorari to quash the order for committal on the ground that the magistrates refused to adjourn the committal proceedings "to enable the point of abuse of process to be argued", presumably in the Divisional Court of the Queen's Bench Division. Although I feel obliged to consider the procedure which was followed in this case and that which must follow from the conclusion of the majority of your Lordships, I preface my remarks by saying that I agree with the answer to the certified question, and also with the order, which my noble and learned friend, Lord Griffiths, has proposed. In Ex parte Mackeson, 75 CrApp.R. 24 the applicant applied to the Divisional Court before the day fixed for the committal proceedings for an order of certiorari quashing the charges against him and an order prohibiting the Magistrates from proceeding with the committal proceedings. The Divisional Court, having held‑That there was jurisdiction to stay the proceedings as an abuse of process, granted prohibition. In Reg. v. Guildford Magistrates' Court, Ex parte Healy (1983) 1 W.L.R. 108, another case of alleged "disguised extradition", the single lay justice hearing the committal proceedings was invited to decide the abuse of process point and to stay the proceedings. After a five‑day hearing she decided the point against the accused, who then applied for an order of certiorari. I have difficulty in seeing how the Magistrate's decision on a question of fact could have been attacked by certiorari but in any event the Divisional Court rejected the application on the merits. So, the committal stood. In his judgment my noble and learned friend, then Griffiths, L.J., said, at p.112: "This Court considers that it was wrong to invite a single lay justice to consider a matter such as this. Whether or not there has been an abuse of process of the sort raised in these proceedings is a matter far more fitting to be inquired into by the Queen's Bench Divisional Court than by a single justice. If a point such as this is to be taken in future it should be taken in the form in which it was in Reg. v. Bow Street Magistrates, Ex parte Mackeson, 75 CrApp.R. 24; that is, there should be an objection to the justice hearing the committal and the matter should be pursued before the Divisional Court by way of an application for judicial review seeking an order of prohibition. That is not to say that we have any criticism whatsoever of the way in which the justice approached her task in this case. Both the defence and the prosecution asked her to decide the question; she dearly went into it with the greatest care and we are quite unable to find any fault or criticism with any of the conclusions of fact at which she arrived. In the opinion of this Court, having been asked to undertake a task which we do not think was appropriate for a single lay justice, she discharged her duties quite admirably.' And, at p.113: "Accordingly, I have come to the conclusion that there is no merit or substance in this application and it will be refused. As I say, if this question is to be raised in further cases the proper procedure is to use that in Reg. v. Bow Street Magistrates, Ex parte Mackeson, 75 CrApp.R. 24, so that the Divisional Court may be seised of the matter, and not bring it up before a lay justice on committal proceedings. However, we anticipate that cases of this nature are likely to be very rare." McCullough, J., concurring, said, at pp.113‑114: "Whether this was an application properly made to the justice or whether it was one that should properly have been made in the first place to the Divisional Court, I am in no doubt that no order of certiorari should go. Despite the admirable way in which this justice dealt with the matter, I share the concern of Griffiths, LJ. that a single lay justice should be asked to grapple with questions of this kind. It is better I think that the question should be dealt with as in Reg. v. Bow Street Magistrates, Ex parte Madceson, 75 CrApp.R. 24 even although such a course may leave one wondering precisely how a justice in such circumstances can be said to have acted in excess of jurisdiction or made an error of law." In Ex parte Driver (1986) Q.B. 95 the applicant sought prohibition in accordance with the Mackeson procedure, as recommended in Healy, but the order sought was refused on the ground that there was no jurisdiction to stay for the reasons relied on. The Driver doctrine therefore held sway when the present case came before the Magistrates with a view to committal. Accordingly, it is understandable that the Magistrates rejected the request of the accused to adjourn while he made a Mackeson application and instead proceeded to commit him for trial. My Lords, I am satisfied that, on the facts found in Mackeson, 75 CrApp.R. 24, it was both lawful and appropriate to make an order of prohibition directed to the Magistrates' Court. While that Court had jurisdiction to entertain committal proceedings, the High Court decided that to permit the criminal proceedings against the accused to continue would be an abuse of process of the Court (of trial); it would therefore be equally an abuse of process to permit proceedings in the Magistrates' Court to be conducted (or, once embarked on, continued) with a view to committing the accused to the Crown Court for trial, which would be oppressive to the accused and a waste of the Court's time. A parallel is found in the order made in Reg. v. Telford Justices, Ex parte Badhan (1991) 2 Q.B. 78, where the Divisional Court prohibited the Magistrates from further hearing committal proceedings on the ground that, by reason of the prejudice caused by delay, to proceed against the accused would amount to an abuse of process. In my view the fact that the decision and order are made by the High Court, although the Crown Court is the proposed Court of trial, makes no difference. It is the function of the High Court to exercise supervisory jurisdiction over inferior Courts, including the Magistrates' Court. It is, moreover, noteworthy that the function of directing or giving consent to preferment of a "voluntary" bill of indictment can only be performed by a High Court Judge in England and Wales (or by the direction of the Criminal Division of the Court of Appeal): see Administration of Justice (Miscellaneous Provisions) Act, 1933, section 2(2), which has continued in force unamended since the transfer of criminal jurisdiction on indictment to the Crown Court in 1971. What I have said is not of course intended to detract from the power of the Court of trial itself, as the primary forum, to stay proceedings as an abuse of process, but the convenience of staying the proceedings at an earlier stage is obvious, when that can properly be done. Short of allowing the proceedings to reach the Crown Court, the merit of having the case considered by the High Court in preference to the examining Magistrate or Magistrates is clear. In any event, notwithstanding dicta to the contrary, I would, on the authority of Grassby v. The Queen (1989) 168 C.L.R. 1, a decision of the High Court of Australia, and of cases there cited (to which I shall presently refer), not be easily persuaded that examining Magistrates have jurisdiction to stay committal proceedings for abuse of process. (I say nothing about the power of Magistrates when sitting to try a case as a Court of summary jurisdiction, as in Mills v. Cooper (1967) 2 Q.B.

459. My Lords, as I have said, the remedy sought is an order of certiorari. I prefer to consider that remedy according to the conventional, perhaps now old fashioned, principles enunciated in Rex (Martin) v. Mahony (1910) 2 I.R. 695, Liquors Ltd. (1922) 2 A.C. 128 and Rex v. Northumberland Compensation Appeal Tribunal Ex parte Shaw (1952) 1 K.B. 338, without seeking to justify the making of an order in this case by reference to more recent views, including views based on dicta uttered in this House. As I see it, the Magistrates here, understandably but erroneously relying on Ex parte Driver (1986) Q.B. 95, acted prematurely and therefore without jurisdiction when they proceeded to hear and determine the committal proceedings without first allowing the appellant to make to the Divisional Court an application which (subject to Ex parte Driver) was on its face at least worthy of consideration. Having, however, innocently, neglected an essential preliminary step (namely the adjournment decreed by Ex parte Healy (1983) 1 W.L.R. 108, the Magistrates incurred the liability to have their order of committal quashed. For an example of proceedings in which a condition precedent to jurisdiction was omitted I refer to In re McC. (A Minor) (1985) A.C.

528. I would be in favour of remitting the case to the Divisional Court to reconsider it in the light of your Lordships' opinions, since one alternative would be to refuse an order of certiorari because an application to stay the proceedings can perfectly well be made to the Court of trial, and the decision (relating to trial on indictment) would not, it seems, be reviewable: In re Ashton (1993) 2 W.L.R.

846. The other, and perhaps more convenient, course would be for the Divisional Court now to hear the application for a stay. If that were decided in favour of the appellant, the Court could make an order of certiorari and such other order, if any, as might be needed to prevent the proceedings in the Magistrates' Court from going ahead. It seems to me that, by analogy with proceedings which are terminated by reason of irregular extradition procedures, the appellant, if he succeeds, would have to be given an opportunity to "escape" but, subject to that, I can see nothing to prevent him from being properly pursued in the future, for example by ad hoc extradition under section

15. Since the resolution of the point is not essential to your Lordships decision of the appeal, I shall be brief in my discussion of whether the examining Magistrates can stay committal proceedings as an abuse of process. In Grassby v. The Queen, 168 C.L.R. 1, the accused was charged with criminal defamation and the examining Magistrate stayed the committal proceedings on the ground of abuse of process. The Crown appealed to the Court of Criminal Appeal of New South Wales, which set aside the stay. The accused sought special leave to appeal from that decision. The High Court granted special leave but dismissed the appeal (which involved another point, namely the refusal of a member of the Court of Criminal Appeal to disqualify himself). Dawson, J. delivered the leading judgment, holding that a committing Magistrate has no power to stay the proceedings as an abuse of process. All the other members of the Court, presided over by Mason, C.J., agreed except Deane, J. who considered that, if the Magistrate concluded (in the words of the Act) that "a jury would not be likely to convict" because the trial Court was likely to 'stay the proceedings for abuse of process, he should then discharge the accused. The Judge, however, agreed in the result on the facts and his dissent was based only on his interpretation of section 41(6) of the Justices Act, 1902. Dawson, J. said, at p.10, that the Magistrate's power to stay for abuse of process "has been denied upon the highest authority in the United Kingdom". He referred to Connelly v. Director of Public Prosecutions (1964) A.C. 1254 and continued: "See also Mills v. Cooper (1967) 2 Q.B. 459, 467, per Lord Parker, CJ. Whether such comments were correct in relation to inferior Courts exercising ordinary judicial functions has been doubted (see Reg. v. Humphrys (1977) A.C. 1, 26 per Viscount Dilhorne, (1977) A.C. 1, 45 46, per Lord Salmon; to the contrary Reg. v. West London Stipendiary Magistrate; Ex parte Anderson (1984) 80 CrApp.R. 143, 149, but it LS clear that they do not extend to a Magistrate hearing committal proceedings. In Atkinson v. Government of the United States of America (1971) A.C. 197, 231‑232 Lord Reid (with whom Lords MacDermott and Guest agreed) said: `The question is whether, if there is evidence sufficient to justify committal, the Magistrate can refuse to commit on any other ground such as that committal would be oppressive or contrary to natural justice. The appellant argues that every Court in England has power to refuse to allow a criminal case to proceed if it appears that justice so requires. The appellant argues that this was established, if it had been in doubt, by the decision of this House in Connelly v. Director of Public Prosecutions ... whatever may be the proper interpretation of the speeches in Connelly's case ... with regard to the extent of the power of a trial Judge to stop a case, I cannot regard this case as any Authority for the proposition that Magistrates have power to refuse to commit an accused for trial on the ground that it would be unjust or oppressive to require him to be tried. And that proposition has no support in practice or in principle. In my view once a Magistrate decides that there is sufficient evidence to justify committal he must commit the accused for trial'." In Reg. v. Governor of Pentonvilie Prison, Ex parte Sinclair (1991) 2 A.C. 64, another extradition case, Lord Ackner in his illuminating speech pointed out, at p. 78E, that Lord Reid's view of the Magistrate's power to refuse to commit for trial by reason of abuse of process was obiter. Nonetheless a view expressed by such a high authority commends respect, and Lord Reid was making his point as an integral link in his argument, to show that in extradition proceedings a Magistrate has no such power. Dawson, J. observed that it has been consistently held that committal proceedings do not constitute a judicial inquiry but are conducted in the exercise of a judicial or ministerial function. Citing seven Australian cases, he continued 168 C.L.R. 1, 11: "The explanation is largely to be found in history. A Magistrate in conducting committal proceedings is exercising the powers of a justice of the peace. Justices originally acted, in the absence of an organised police force, in the apprehension and arrest of suspected offenders. Following the Statutes of Philip and Mary of 1554 and 1555 (1 & 2 Philip & Mary c. 13; 2 & 3 Philip & Mary c. 10), they were required to act upon information and to examine both the accused and the witnesses against him. The inquiry was conducted in secret and one of its main purposes was to obtain evidence to present to a grand jury. The role of the justices was thus inquisitorial and of a purely administrative nature. It was the grand jury, not the justices, who determined whether the accused should stand trial. With the establishment of an organised police force in England in 1829, the role of the justices underwent change. The most significant factor in this change was in the Indictable Offences Act, 1848 (U.K.) (11 & 12 Vict c. 42), `Sir John Jervis's Act', which provided for witnesses appearing before the justices to be examined in the presence of the accused and to be cross‑examined by the accused or his counsel. After an interesting and valuable historical review the Judge said, at pp. 15‑16: "The fact that a Magistrate sits as a Court and is under a duty to act fairly does not, however, carry with it any inherent power. Indeed, in my view, the nature of a Magistrate's Court is such that it has no powers which might properly be described as inherent even when it is exercising judicial functions. A fortirori that must be the case when its functions are of an administrative character. In Reg. v. Forbes; Ex parte Bevan (1972) 127 C.L.R 1, 7, Menzies, J. pointed out that: `Inherent jurisdiction' is the power which a Court has simply because it is a Court of a particular description. Thus, the Courts of Common Law without the aid of any authorising provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as `inherent jurisdiction', which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have `inherent jurisdiction'." Then, having emphasised the distinction between inherent jurisdiction and jurisdiction by implication, Dawson, J. observed, at pp. 17‑18: "The fact that in the conduct of committal proceedings a Magistrate is performing a ministerial or administrative function is, of course, no bar to the existence of implied powers, if such are necessary for the effective exercise of the powers which are expressly conferred upon him. The latter are now to be found in section 41 of the Justices Act. But the scheme of that section, far from requiring the implication of a general power to stay proceedings, is such as to impose an obligation upon the Magistrate to dispose of the information which brings the defendant before him by discharging the defendant as to it or by committing him for trial." Having referred to section 41 of the Justices Act, 1902, the Judge then said, at p.18: "There is no room in the face of these statutory obligations, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided. Nor is this surprising. True it is that a person committed for trial is exposed to trial in a way in which he would otherwise not be, but the ultimate determination whether he does in fact stand trial does not rest with the Magistrate. The power to order a stay where there is an abuse of the process of the trial Court is not to be found in the committing Magistrate and the considerations which would guide the exercise of that power have little relevance to the function which the Magistrate is required to perform." It would, of course, be convenient (as well as correct, in my view) if the examining Magistrates could not stay for abuse of process, because judicial review of a decision to stay would be a most inadequate remedy if the real ground of review was simply that the Magistrates had erred in their exercise of discretion. Moreover, their decision would not bind the Court of trial, if the Attorney‑General were to prefer a voluntary bill. For the reasons already mentioned and also for the reasons given by my noble and learned friends I would allow the appeal. LORD SLYNN OF HADLEY.‑‑My Lords, I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Griffiths, Lord Bridge of Harwich and Lord Oliver of Aylmerton. Despite the powerful reasons adverted to by Lord Oliver of Aylmerton I agree with Lord Griffiths that the question should be answered in the way he proposes.‑ It does not seem to me to be right in principle that, when a person is brought within the jurisdiction in the way alleged in this case (which for present purposes must be assumed to be true) and charged, that the Court should not be competent to investigate the illegality alleged, and if satisfied as to the illegality to refuse to proceed to trial. I would accordingly allow the appeal. Appeal allowed.