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Proulx v Governor Of HM Prison Brixton & Anor, Court of Appeal - Administrative Court, July 28, 2000, [2000] EWHC Admin 381


Case No.: CO/99/3802&3804
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:28 July 2000
B e f o r e :

LORD JUSTICE MANCE
and
MR JUSTICE NEWMAN


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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Michel Massih Q.C. and Mr Mark J Summers (instructed by Messrs. Lound Mulrenan) appeared for the Applicant
Mr John Hardy (instructed by The Crown Prosecution Service) for the Respondents
Bow Street Magistrates' Court were not represented
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Judgment
As Approved by the Court
Crown Copyright ©

Lord Justice Mance:

1. Introduction
During the night of 25/26th March 1995 Stacey Koehler was killed by blows struck to the head with a heavy implement in her flat in Burnaby, British Columbia, Canada. She had worked in a Kentucky Fried Chicken restaurant in New Westminster, and had been promoted to become its manager about two months before her death. The applicant worked in the same restaurant, as did Patricia Gulliford, who was his girlfriend until April 1995. The applicant and Patricia Gulliford were interviewed after Stacey Koehler's death. He told the police and Patricia Gulliford confirmed that he had been with Patricia Gulliford on the evening of 25th March 1995. According to an affidavit sworn 16th October 1998 by Patricia Gulliford, that was in fact incorrect. It is common ground that its incorrectness could give rise to no more than suspicion in relation to the applicant. He was not arrested, and he left Canada for Mexico using his own passport in or about August 1995.

2. The applicant later moved to England, where he worked at the Queen Alexander Nursing Home, Folkestone. On 28th August 1998 he was arrested on a warrant for his arrest issued by the Bow Street Magistrates Court under s.8(1)(b) of the Extradition Act 1989. On 16th October 1998 nine affidavits were sworn setting out the basis and evidence upon which the respondent Government of Canada sought his extradition to Canada to stand trial for murder of Stacey Koehler. As will appear, the evidence relied upon is evidence of confessions made on 21st and 22nd August 1998 to Scott Doran, an officer of the Royal Canadian Mounted Police ("RCMP") working as an undercover agent in collaboration with the Kent Police Force and London Metropolitan Police in an operation code-named Implore.

3. The Secretary of State gave authority to proceed under s.7(4) of the Extradition Act 1989 on 9th November 1998. The matter came before Mr Nicholas Evans, the Stipendiary Magistrate, under s.9(8) of the 1989 Act. That sub-section (as amended by the Criminal Justice and Public Order Act 1994) reads:

"9-(8) Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any representations made in support of the extradition request or on behalf of that person, that the offence to which the authority relates is an extradition crime, and is further satisfied-
where that person is accused of the offence .... that the evidence would be sufficient to make a case requiring an answer by that person if the proceedings against him were the summary trial of an information against him;
where that person is alleged to be unlawfully at large after conviction of the offence, that he has been so convicted and appears to be so at large,
the court .... shall commit him to custody or on bail-
(i) to await the Secretary of State's decision as to his return; and
(ii) if the Secretary of State decides that he shall be returned, to await his return."

4. The offence in relation to which extradition is sought is an extradition crime within the meaning of s.9(8). The issue argued before the Stipendiary Magistrate was whether the evidence before him "would be sufficient to make a case requiring an answer by [the applicant] if the proceedings against him were the summary trial of an information against him". By a ruling handed down on 2nd September 1999, the Stipendiary Magistrate answered that issue affirmatively, and in consequence made an order for committal under s.9(8).
5. Applications for habeas corpus under s.11(1) and/or (3)(b) and/or (c) of the 1989 Act and/or for judicial review were lodged on 16th September 1999. Permission to seek judicial review was granted on 11th April 2000, and the applications for habeas corpus and judicial review were consolidated. The primary ground upon which habeas corpus is sought is that the Magistrate erred in his conclusion that there was any sufficient evidence under s.9(8). This in turn depends upon submissions that the Magistrate ought - under ss.76 and/or 78 of the Police and Criminal Evidence Act 1984 ("PACE") and/or ...
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