Consent to further prosecution following extradition found to breach International Covenant on Civil and Political Rights

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The United Nations Human Rights Committee has ruled in Saxena v. Canada (Communication no. 2118/2011, 3 November 2016) that the consent by Canada to the prosecution of Mr Rakesh Saxena for two offences after his extradition to Thailand to face criminal charges for conspiracy to embezzle money from the Bangkok Bank of Commerce had resulted in a violation of Article 13 of the International Covenant on Civil and Political Rights. Article 13 requires that any alien lawfully present in a State Party’s territory be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

Mr Saxena had been extradited to face criminal charges for conspiracy to embezzle money from the Bangkok Bank of Commerce but the two offences to which Canada subsequently gave its consent to his prosecution had not been listed in the original extradition request and surrender order.

The finding of a violation of Article 13 arose from the fact that Mr Saxena had been deprived of the possibility to comment on the request to waive the specialty rule and that the possibility for him to seek a review of such request by the courts had been foreclosed.In reaching this conclusion the Committee noted that:

  • during the extradition proceedings, Mr Saxena had raised concerns that he could be charged, prosecuted and tried for offences other than those for which he was surrendered;
  • Canada had not denied that it would not have granted the waiver of specialty had it known that he would be charged for other offences committed prior to issuing the extradition order which had not been covered by the surrender order;
  • the waiver was granted notwithstanding the repeated and emphatic assurances by Canada’s judicial and administrative authorities that there would be no breach of the specialty rule, i.e. that Mr Saxena would not be tried in Thailand for offences other than those for which he was extradited;
  • Mr Saxena had not been given the opportunity to challenge the decision on granting consent to the waiver of specialty, thereby depriving him of the due process guarantees he was entitled to in compliance with Article 13 of the Covenant, and that, as a consequence of the procedure, he might have been exposed to a much longer detention and imprisonment; and
  • during the proceedings related to the request by Thailand for granting consent to a waiver of specialty Mr Saxena had remained within the jurisdiction of Canada.

In the view of the Committee, Canada was now obliged, inter alia, to revise and amend its extradition legislation by including a procedure for consent to a waiver of specialty, in full compliance with its obligations under the Covenant and the finding in this case.

Mr Saxena was represented before the Committee by Jeremy McBride.

To view the Committee’s Views, please click here.

Monckton’s WTO experts provide insight into the UK’s trade landscape post a “Hard Brexit”

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Leading trade barristers, David Unterhalter SC and Tom Sebastian recently facilitated a round table discussion to an audience of Chambers clientele focussing on the UK’s trade relationships after a ‘Hard Brexit’. Four core issues were discussed: (1) what are the political and legal uncertainties surrounding the UK’s WTO Membership; (2) how is WTO law enforced and what sort of role is the UK likely to play in the WTO dispute settlement system; (3) how will a ‘Hard Brexit’ affect existing free trade agreements between the EU and third countries;  and (4) how can WTO law assist in contingency planning.

The lively and interactive presentations provided considerable insight and thought for our clients as they prepare for the post-Brexit trading landscape.

David Unterhalter SC

David is the former Chair of the Appellate Body of the World Trade Organisation (WTO), its permanent adjudicative branch. It determines appeals by member countries of the WTO concerning their rights and obligations in trade disputes. In addition, he has appeared in many trade remedy cases before the domestic authorities in South Africa: the Board of Tariffs and Trade and its successor, the International Trade Commission. David also serves on the International Court of Arbitration of the ICC. He is one of South Africa’s foremost barristers and joined Monckton Chambers in 2009. He has a leading practice in competition law, trade law, public and commercial law and is renowned for his superb trial advocacy before a host of domestic and international courts and arbitral tribunals.

Tom Sebastian

Tom is a public international law specialist with particular experience of WTO law and investment treaty law. He joined Monckton Chambers in 2012 following 10 years of practice at the Advisory Centre on WTO Law (an international organisation which represents States in WTO disputes) in Geneva and within the international arbitration group of a magic circle law firm in London. He has acted in over 20 treaty cases and has in-depth understanding of the commercial, regulatory and political factors that give rise to international trade and investment disputes. He has appeared before WTO panels, the WTO’s Appellate body and before tribunals established under bilateral investment treaties. He has also has experience of acting in inter-state mediation proceedings.

Legal 500 recently commented that ‘He combines astute and sound advice with an invaluable “bigger picture” strategy’ and as ‘One of the few juniors with a proper understanding of public international law matters’

European Court of Justice rules that licence application fees charged to sex shop were unlawful

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The Court of Justice of the EU today ruled (here) that fees charged by Westminster City Council to an applicant for a licence to operate as a sex shop were unlawful.

Mr Hemming, trading as “Simply Pleasure Ltd”, challenged the application fees he had to pay to Westminster for a licence to operate a sex shop.  Those fees amounted to over £29,000.  The fees broke down into two parts: about £2,500 covered the cost of processing the application, while the remaining £26,500 odd covered Westminster’s costs of policing compliance with licensing requirements and tackling unlicensed operators.  That latter amount was refundable if the licence was refused.

Mr Hemming relied on Article 13(2) of the Services Directive (Parliament and Council Directive 2006/123/EC), implemented into UK law by regulation 18(4) of the Provision of Services Regulations 2009.  That provision requires that charges which an applicant may incur from its application shall not exceed the cost of the procedures (and must also be proportionate and reasonable).

In a judgment given in May 2015 ([2015] UKSC 25), the Supreme Court agreed that Article 13(2) excluded costs of enforcement, such as tackling unlicensed operators, from the scope of costs for which an application charge could be made.  But it held that Article 13(2) did not prevent a body which was successful in its application from then being charged a further fee to cover enforcement costs: such a fee was not a charged incurred from the application but, rather, a fee incurred for the possession of a licence.  However, the Supreme Court considered that there was doubt as to whether a fee charged at the time of application but which was refundable if the application was unsuccessful – which was the position in the case before it – amounted to a charge, and referred that question to the Court of Justice.

The Court of Justice has today ruled that an application fee payable at the time of submitting an application is a “charge” under Article 13(2) even if it is refundable if the application fails.  It remained a “financial obligation” that must be discharged before an application could be considered.

The Supreme Court judgment sharply distinguished between an application fee and a fee payable once the application is successful.  The Court of Justice did not deal with that distinction.  However, it may be noted that in his Opinion (here), Advocate General Wathelet stated that if, having succeeded in its application, the successful applicant’s permission to operate was then made conditional on payment of a fee designed to cover enforcement costs, then in reality that further fee should be regarded as a charge falling under Article 13(2).  He also expressed doubts that a fee designed to cover enforcement costs – which he described as a “fee enabling members to benefit from the certainty that membership of the ‘club’ will remain restricted” – could ever be reasonable or proportionate.  The Court of Justice, however, did not express a view on those points.

The case has implications going beyond the sex shop industry: indeed, a number of professional bodies that charge fees for authorisation to practise (including the Law Society and the Bar Council) intervened before the Supreme Court, as did HM Treasury.

George Peretz QC appeared in the Supreme Court for HM Treasury.

Chambers Bar UK 2017 – Monckton is Band One Set in six areas with 46 members ranked as “leading” individuals

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The recently launched  Chambers Bar UK 2017 ranks 46 individual barristers across17 practice areas with many appearing in multiple categories.

Monckton Chambers is one of the most highly ranked sets in the UK as it has been recommended in ten practice areas; in six of these, Monckton is recognised as a “Band One” leading set:

  • Competition
  • European Law
  • Telecommunications
  • Public Procurement
  • Indirect Tax
  • Community Care

The Set has also been ranked in a further 4 areas:

  • Administrative and Public Law
  • Data Protection
  • Sports Law
  • Environment

Individual members were also recognised as “Leading Individuals” in further seven categories:

  • Aviation
  • Civil liberties and Human Rights
  • Construction
  • Education
  • Immigration
  • Local Government
  • Police Law

Client comments include “They are at the top of their game, they are responsive and they are very good communicators“, “an outstanding array of barristers” and a “dynamic set is lauded for its impressive track record”.

Client service has been praised with feedback such as “This is an incredibly professional and slick outfit, and it is always reassuring to speak to one of the clerks there,”  and  “The clerking has been absolutely perfect. I think head clerk David Hockney runs a very sharp operation there”.

For further details visit the Chambers & Partners website.

Monckton Chambers – “biggest mover at the commercial bar this year”, confirms The Lawyer

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Analysis conducted by The Lawyer magazine for its annual UK 200 report has Monckton Chambers  leading the table of “Top 10 chambers by fee income growth”.  The research concluded: “The most impressive growth overall this year was in the middle of the table. Monckton Chambers climbed eight places in the rankings, making it the biggest mover at the commercial bar this year. It posted a 34 per cent rise in fee income to £34m despite its static member headcount. This continues a run of good financial years for the competition-focused set, which also boosted fee income by 7 per cent in 2014/15.”Read Tabby Kinder’s full article here.

Government Wins Article 50 Challenge In High Court Of Northern Ireland

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In a judgment released this morning the High Court of Northern Ireland (Maguire J) rejected various challenges brought under Northern Ireland law to the Government’s position that it can invoke Article 50 TEU under the Royal Prerogative.

The challenges that were decided by the Court were all based on aspects of the constitutional settlement in Northern Ireland.  The Court did not consider the more general issues that have been raised before the High Court in England and Wales (where judgment is awaited).

The first challenge was based on an argument that the Northern Ireland Act 1998 and the Good Friday Agreement displaced the Royal Prerogative in relation to Article 50.  The Court rejected that argument: Article 50 set in train a process that might lead in a number of directions, and any change in domestic law would have to be made by Parliament.  Although continuing membership by the UK of the EU was assumed at the time of the Good Friday Agreement, membership could not be described as a “constitutional bulwark” of those arrangements.

The second challenge was an argument that any legislation passed in order to trigger Art.50 would need the consent of the Northern Ireland Assembly.  Given the answer to the first question, that issue was academic: but the judge did not consider that consent was a legally enforceable requirement.

The third challenge was an argument that, by reference to Northern Ireland legislation, the Government gave undue weight to the referendum result in taking the decision to invoke Article 50: the judge however considered that the decision to invoke Article 50 was of high policy and not justiciable.

The fourth argument was based on a claimed failure by the Northern Ireland Office to follow Northern Ireland equality legislation: the judge however held that the decision to invoke Article 50 could not be said to be carrying out a function relating to Northern Ireland and was outside the scope of that legislation.

The fifth argument was that the consent of the people of Northern Ireland was needed for Article 50 to be invoked: the judge found no basis for that argument.

The Northern Ireland case is likely to be joined, in the UK Supreme Court, with the (inevitable) appeal against the judgment of the English High Court.  The judgment deals only with points that are distinct to Northern Ireland and generally gives little clue as to how the English case may be decided.  That said, it is worth noting (a) that the Judge approached the question as a matter of statutory construction (which accords with the thrust of the Government’s submissions to the English High Court and (b) that the Judge seems to have proceeded on the basis that a notification under Article 50 was the start of a process rather than, of itself, producing changes in domestic law.  Readers of this blog will remember that, in the English cases, both parties proceeded on the basis that Article 50 was irreversible.  The litigation, on both sides of the Irish Sea, may well end up turning on precisely how the Article 50 process is characterised – although, for reasons I set out here I still consider it highly unlikely that the Supreme Court will need to make a reference to the Court of Justice of the EU on the question of whether an Article 50 notification can be withdrawn by the Member State concerned.

Chambers Bar Awards 2016 – Monckton Chambers Competition Success and Paul Lasok QC receives Lifetime Achievement award

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Monckton Chambers won the award for Competition Set of the Year at last night’s Chambers Bar Awards. In addition, Paul Lasok QC, former Head of Chambers, was recognised with a Lifetime Achievement award.The Chambers Bar Awards are based on research for the 2017 edition of Chambers UK Bar and reflect pre-eminence of sets of chambers and individual members in key practice areas. They also reflect notable achievements over the past 12 months including outstanding work, impressive strategic growth and excellence in client service.