A district judge had no power to order a closed material hearing or make a witness anonymity order in a case involving an extradition request by Rwanda, in the absence of any statutory power.
Dismissing the appeal by a 4-1 majority, the Supreme Court held that the judge had no such powers in common law, and no power to order disclosure to the Crown Prosecution Service on the condition that further disclosure to the Rwandan government was prohibited, in VB & Ors v Westminster Magistrates [2014] UKSC 59.
The appellant was wanted by Rwanda to stand trial for war crimes, but argued that extradition would expose them to a flagrantly unfair trial and torture or mistreatment. Their evidence came from witnesses who did not want their identity revealed to the Rwandan government. The appellant therefore argued the evidence should be considered without being disclosed to either the Rwandan government or the CPS, which acted on Rwanda’s behalf. The district judge found she could not consider evidence in a closed hearing or make the anonymity orders.
Lord Mance, giving the lead judgment, found the court was constrained by the exceptional circumstances recognised in Al Rawi v Security Service [2011] UKSC 34 and that “it would not be in the interests of justice to allow further departure from the normal principle of open justice, as the relevance, truthfulness and persuasiveness of the evidence could not be tested in a closed material hearing”.
However, Lord Toulson dissented on the basis it would be wrong to assume (in effect) that the evidence was untrue merely because its veracity could not be tested in a closed material hearing, and that an exception to the principle of open justice could be made where, as here, it would otherwise facilitate a foreseeable and potentially serious breach of human rights.
Thomas Garner, solicitor at Gherson, says: “The issues that arose in this case are rare in the generality of extradition cases but are certainly not unique.
“In sensitive, often politically motivated, cases there are often witnesses who may have powerful evidence to give but who are unwilling to do so through fear. The refusal of the court to extend closed material procedures to extradition proceedings was not surprising but places these defendants and others like them in very difficult position.
“They may have cogent evidence to demonstrate a substantial risk of them facing a flagrantly unfair trial but they will be unable to rely upon this evidence in the extradition proceedings. There is a common law power to admit anonymous evidence in limited circumstances but this will be of little assistance if a witness would be easily identifiable by the nature of the evidence they would give.
“Some, but not all, of the defendants in this case may be able to claim asylum and seek to deploy the evidence in that forum. The case highlights the difficult interplay between extradition and asylum in complex cases.”
