Case: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223
Outcome: followed
Although this Court does not have jurisdiction to consider the merits of the Minister's decision, there is a reviewable error if the only material on which the Minister's decision is based does not provide a factual basis for, and prevents the reasonable formation of, the requisite opinion. Such a decision would be perverse in the Wednesbury sense; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 at 230. The point was made by Cooper J in Foster v Attorney-General of the Commonwealth of Australia (1997) 97 A Crim R 560 at 573-4 where his Honour, in expressing the view that the Act did not, either expressly or by implication, exclude the rules of natural justice or the requirement of procedural fairness in relation to the exercise of the power under s 16, said: 'The nature of the decision under s 16 does not of itself indicate an intention to exclude the rules. The decision to issue a notice under s 16 is not reviewable by a magistrate under s 19, and, subject to the limited avenues available for control by the courts, is final ... The decision operates as a necessary precondition to allow the next stage of the extradition process to occur. Although the extradition process involves a number of steps or stages before a final decision to surrender the person for extradition is made, each step is self-contained. The decision at each stage takes effect to either terminate the process or constitute the condition precedent required for the next stage to occur. Further, the issues at each stage are not the same, although there may be some overlap, eg, the existence or possible existence of extradition objections.' 21 In Foster , as in this case, it was accepted that the relevant Minister had considered only a departmental minute and its annexures. From the extract of this minute in Cooper J's judgment, it appears to have been very similar in form to the advice provided to the Minister in this case. The applicant in Foster submitted that, in reaching the opinion required by s 16(2)(a)(ii), the Minister was required personally to consider the conduct of the person who was the subject of the extradition request. It was submitted that, since the conduct of the applicant in Foster was not described in any of the documents provided to him, the Minister could not have given personal consideration to this conduct. Cooper J rejected this submission and noted at 568: 'Section 16(2)(a)(ii) only requires that the Attorney-General hold the relevant opinion. The notice issued by the respondent under s 16 of the Act and signed by him expressly states that he held the requisite opinion. In order to avoid the consequence of the respondent in fact holding the opinion, the applicant must demonstrate that no person in the position of the respondent on 27 May 1997, having the material which was available to the respondent, could reasonably have held the opinion. That is, the applicant must show that the opinion was perverse: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 at 228.' 22 His Honour found that the Minister was entitled to have the investigation and consideration done by departmental officers and was entitled to rely on departmental submissions in reaching the s 16(2)(a)(ii) opinion. 23 I respectfully agree with his Honour that the applicant in this case must establish that the first respondent's determination was unreasonable or perverse in the Wednesbury sense. If the decision was based on factual material which was so materially deficient that it could not reasonably form the basis for the requisite opinion, then it would be unreasonable in the Wednesbury sense.