|
| |||||||
|
[HOUSE OF LORDS] |
REGINA v. GOVERNOR OF PENTONVILLE PRISON, |
Ex parte SINCLAIR |
|
Extradition - Committal proceedings - Convicted fugitive - Applicant convicted in U.S.A. - Sentence of imprisonment passed - Applicant leaving U.S.A. without serving sentence - Proceedings for extradition brought 10 years later - Whether extradition to serve sentence part of prosecution process - Whether extradition barred by lapse of time - Whether proceedings open to challenge as abuse of process - Extradition Act 1870 (33 & 34 Vict. c. 52), ss. 3(1), 8, 9, 101 - United States of America (Extradition) Order 1976 (S.I. 1976 No. 2144), Sch. 1, art. V(1)(b)2 |
The applicant, a national of Trinidad and Tobago, was convicted of four offences in the United States in 1976 and was sentenced to concurrent terms of four years' imprisonment in April 1977. He was ordered to report to the Attorney-General on 6 March 1978 in order to begin to serve his sentence. In February 1978 he went to Trinidad. He did not thereafter return to the United States. A bench warrant was issued in the United States on 29 April 1978 for the applicant's arrest, but efforts to secure his return there were not pursued. The applicant remained in Trinidad until 1983, when he came to London. In September 1983 the United States Justice Department decided to seek the applicant's extradition. Nothing further happened until 1987, when a formal request for extradition was made to the United Kingdom Government. On 5 February 1988 the applicant was arrested and brought before the Bow Street stipendiary magistrate in pursuance of the extradition proceedings. The magistrate held that article V(1)(b) of the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America contained in Schedule 1 to the United States of America (Extradition) Order 1976, under which extradition was not to be granted if the prosecution for the offence for which extradition was requested had become barred by lapse of time, did not apply to a case in which extradition was sought on the ground of conviction for an offence in the requesting state, and that the doctrine of abuse of process had no application to extradition cases. He committed the applicant to prison to await extradition. The Divisional Court of the Queen's Bench Division dismissed the applicant's application for a writ of habeas corpus. |
On appeal by the applicant:- |
1 Extradition Act 1870, s. 3(1): see post, p. 75C-D. |
S. 9: see post, p. 75G-H. |
S. 10: see post, p. 76A-C. |
2 United States of America (Extradition) Order 1976, Sch. 1, art. V(1)(b): see post, p. 92B. |
|
| ||||||||||
|
|
Held, dismissing the appeal, that sections 9 and 10 of the Extradition Act 1870 did not give the magistrate power in extradition proceedings to examine the question whether those proceedings might be an abuse of the process of the court; but that, on the Secretary of State's order under section 7 of the Act for the apprehension of a fugitive criminal, the magistrate's functions were limited to those specified in sections 3(1), 9 and 10; that in a conviction case, provided it was not of a political nature, the magistrate had to determine only the questions whether the conviction had been properly proved, whether it was of an "extradition crime" within the Act of 1870 and whether the defendant was identified as the person convicted; that a "prosecution" within article V(1)(b) of the Treaty encompassed only the initiation of criminal proceedings and did not extend to the commencement of the service of any term of imprisonment that might be imposed; and that, accordingly, the provisions of the article were not applicable and the application had been rightly refused (post, pp. 71B-C, 81A-D, 82D-E, 92D-E, 93A). |
Atkinson v. United States of America Government [1971] A.C. 197, H.L.(E.) and In re Nielsen [1984] A.C. 606, H.L.(E.) applied. |
Decision of the Divisional Court of the Queen's Bench Division [1990] 2 Q.B. 112; [1990] 2 W.L.R. 1248; [1990] 2 All E.R. 789 affirmed. |
The following cases are referred in the opinion of Lord Ackner: |
Athanassiadis v. Government of Greece (Note) [1971] A.C. 282; [1969] 3 W.L.R. 544; [1969] 3 All E.R. 293, H.L.(E.) |
Atkinson v. United States of America Government [1971] A.C. 197; [1969] 3 W.L.R. 1074; [1969] 3 All E.R. 1317, H.L.(E.) |
Kossekechatko v. Attorney-General for Trinidad [1932] A.C. 78, P.C. |
Nielsen, In re, sub nom. Reg. v. Chief Metropolitan Magistrate, Ex parte Government of Denmark (1983) 79 Cr.App.R. 1, D.C.; [1984] A.C. 606; [1984] 2 W.L.R. 737; [1984] 2 All E.R. 81, H.L.(E.) |
Reg. v. Governor of Ashford Remand Centre, Ex parte Postlethwaite [1988] A.C. 924; [1987] 3 W.L.R. 365; [1987] 2 All E.R. 985, H.L.(E.) |
Reg. v. Governor of Brixton Prison, Ex parte Kotronis [1971] A.C. 250; [1969] 3 W.L.R. 1107; [1969] 3 All E.R. 1337, H.L.(E.) |
Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1963] 1 Q.B. 55; [1962] 2 W.L.R. 976; [1962] 2 All E.R. 176, D.C.; [1964] A.C. 556; [1962] 3 W.L.R. 1013; [1962] 3 All E.R. 529, H.L.(E.) |
Reg. v. Governor of Pentonville Prison, Ex parte Sotiriadis [1975] A.C. 1; [1974] 2 W.L.R. 253; [1974] 1 All E.R. 692, H.L.(E.) |
United States of America (Government of the) v. McCaffery [1984] 1 W.L.R. 867; [1984] 2 All E.R. 570, H.L.(E.) |
The following additional cases were cited in argument: |
Bell v. Director of Public Prosecutions [1985] A.C. 937; [1985] 3 W.L.R. 73; [1985] 2 All E.R. 585, P.C. |
Connelly v. Director of Public Prosecutions [1964] A.C. 1254; [1964] 2 W.L.R. 1145; [1964] 2 All E.R. 401; 48 Cr.App.R. 183, H.L.(E.) |
|
| ||||||||||
|
|
Council of Civil Service Unions v. Minister for Civil Service [1985] A.C. 374; [1984] 3 W.L.R. 1174; [1984] 3 All E.R. 935, H.L.(E.) |
Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529; [1981] 3 W.L.R. 906; [1981] 3 All E.R. 727, H.L.(E.) |
Lupton v. Chase National Bank of City of New York (1950) 89 F.Supp. 393 |
Mills v. Cooper [1967] 2 Q.B. 459; [1967] 2 W.L.R. 1343; [1967] 2 All E.R. 100, D.C. |
O'Reilly v. Mackman [1983] 2 A.C. 237; [1982] 3 W.L.R. 1096; [1982] 3 All E.R. 1124, H.L.(E.) |
Reg. v. Bow Street Magistrates' Court, Ex parte Van der Holst (1985) 83 Cr.App.R. 114, D.C. |
Reg. v. Brentford Justices, Ex parte Wong [1981] Q.B. 445; [1981] 2 W.L.R. 203; [1981] 1 All E.R. 884, D.C. |
Reg. v. Derby Crown Court, Ex parte Brooks (1984) 80 Cr.App.R. 164, D.C. |
Reg. v. Governor of Holloway Prison, Ex parte Jennings [1983] 1 A.C. 624; [1982] 3 W.L.R. 450; [1982] 3 All E.R. 104; 75 Cr.App.R. 367, H.L.(E.) |
Reg. v. Grays Justices, Ex parte Graham (1982) 75 Cr.App.R. 229, D.C. |
Reg. v. Humphrys [1977] A.C. 1; [1976] 2 W.L.R. 857; [1976] 2 All E.R. 497, H.L.(E.) |
Reg. v. Oxford City Justices, Ex parte Smith (D.K.B.) (1982) 75 Cr.App.R. 200, D.C. |
APPEAL from the Divisional Court of the Queen's Bench Division. |
This was an appeal by the applicant, Phillipe Andre Sinclair, against the respondents, the Director of Public Prosecutions, on behalf of the Government of the United States of America, and the Governor of Pentonville Prison, by leave of the Divisional Court (Watkins L.J. and Nolan J.) [1990] 2 Q.B. 112 from their decision dated 19 February 1990 dismissing the application for a writ of habeas corpus ad subjiciendum against the Governor of Pentonville Prison and the Secretary of State for the Home Department on behalf of the United States of America Government. |
On 5 February 1988 the applicant was arrested in London on an extradition warrant on a request to the Secretary of State by the United States of America Government for his extradition for the purpose of enforcing a sentence of four years' imprisonment imposed on 29 April 1977. On 18 February 1989 he was committed to Pentonville prison by Mr. Ronald Bartle, the Bow Street Metropolitan Stipendiary Magistrate, to await the direction of the Secretary of State. On 21 February 1989 the applicant applied for a writ of habeas corpus on the grounds that the magistrate had wrongly ruled (i) that the proceedings were not time-barred under article V(1)(b) of the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America, contained in Schedule 1 to the United States of America (Extradition) Order 1976 (S.I. 1976 No. 2144), and (ii) that the proceedings were an abuse of the process of the court. |
The facts are stated in the opinion of Lord Ackner. |
|
| ||||||||||
|
|
|
| ||||||||||
|
|
The third question relates to whether article V(1)(b) of the Treaty, which prohibits extradition where a prosecution is barred by lapse of time, only applies to specific limitation periods imposed by the laws of the requesting or requested states for the bringing of a case to trial and whether the word "prosecution" in the article is restricted in its meaning to the carrying on of a criminal case to conviction and not further. |
R. Alun Jones Q.C. and Philip Singer for the respondents. The Divisional Court was correct in ruling that the applicant's extradition to the United States was not forbidden by article V(1)(b) of the Treaty. The court was also correct in upholding the magistrate's decision that he had no jurisdiction to consider whether the proceedings under section 10 of the Act of 1870 were an abuse of the process of the court. |
Before the Divisional Court the point was expressly reserved that the magistrate has no powers under the Act to determine whether various aspects of the Treaty have been complied with. The only powers conferred on the magistrate are contained in sections 3(1), 8, 9 and 10 of the Act and these sections do not include, expressly or by implication, any power to monitor or enforce the Treaty arrangements. This question is to be determined by the Secretary of State. Article VII(2) envisages |
|
| ||||||||||
|
|
that a request from a requesting state under the Act should contain sufficient material to enable the Secretary of State to decide whether articles III (relating to the territory to which the treaty applies) and V (grounds on which extradition is to be refused) are satisfied, and whether extradition proceedings under section 7 can commence. It is at this stage that the Secretary of State has to determine whether, on the material before him, the Treaty has been complied with. |
|
| ||||||||||
|
|
|
| ||||||||||
|
|
Cassel Q.C. in reply. No submissions are made regarding the magistrate's powers under the Act of 1870 to determine whether the Treaty has been complied with because the point is not relevant to the appeal. |
Their Lordships took time for consideration. |
11 April. LORD BRIDGE OF HARWICH. My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Ackner. I agree with it and for the reasons he gives I would dismiss the appeal. |
LORD TEMPLEMAN. My Lords, for the reasons given by my noble and learned friend, Lord Ackner, I would dismiss the appeal. |
LORD GRIFFITHS. My Lords, I have had the opportunity of reading in draft the speech prepared by my noble and learned friend, Lord Ackner. I agree with it, and for the reasons which he gives I, too, would dismiss the appeal. |
LORD ACKNER. My Lords, this is an appeal against the dismissal on 19 February 1990 by the Divisional Court of the Queen's Bench Division [1990] 2 Q.B. 112 of a motion for a writ of habeas corpus. It raises two important issues as to the jurisdiction in extradition proceedings of the police magistrate and a short point of construction as to the meaning of the word "prosecution" in article V(1)(b) of the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America contained in Schedule 1 to the United States of America (Extradition) Order 1976. |
The facts |
These are set out by Watkins L.J. in his judgment with characteristic lucidity, at pp. 114-117. They may be shortly summarised as follows. The applicant was born in Trinidad, of which country he is a national. On 18 October 1976 he was convicted by a jury of three offences of mail fraud, one of interstate transportation and one of conspiracy. On 22 April 1977 Judge Murray Schwartz granted a judgment of acquittal on one of the mail fraud counts. On 29 April 1977 the applicant was sentenced by Judge Schwartz to concurrent terms of four years' imprisonment and on 3 February 1978 the applicant was ordered to report to the custody of the United States Attorney-General on 6 March. |
At that hearing the judge was told by the applicant that he intended to travel to Trinidad to find a place for his wife and family to reside, whilst he served his prison term and on 22 February 1978 he flew to Trinidad. He had, he maintains, been allowed by the court to keep his passport in order to join his wife. However, according to his account when he applied for a visa to re-enter the United States his application was refused because, so he was informed, as a convicted felon he was ineligible for re-entry. He maintains that he kept his lawyer in the |
|
| ||||||||||
|
|
|
United States informed of the reason why he did not or could not return to serve his sentence. |
The applicant's account receives strong support from James Garvin, who at the material time was the United States Attorney for the District of Delaware. In a newspaper article in the Wilmington Delaware News Journal of 8 March 1978 he is quoted as saying that, having checked with the Justice Department in Washington, the applicant's excuse was "legitimate" viz. that as a convicted felon he would be prevented from returning to the United States Mr. Garvin is further quoted as saying that the government could extradite the applicant and then deport him after he had served his jail sentence, or the government could do nothing, leaving the applicant without any legal means of re-entering the United States. In the same article a spokesman in Mr. Garvin's office is said to have confirmed that the applicant's lawyer informed them of the applicant's inability to obtain a visa and the reason for this. In an affidavit sworn by Mr. Garvin on 13 October 1988 he states that, while he has no present recollection of the statements that the article attributed to him and his office, he has no reason to believe that they were not accurate. |
On 29 April 1978 Mr. Garvin obtained a bench warrant relating to the applicant but it appears that no further action was taken. It seems apparent that Mr. Garvin had come to the conclusion that exile from the United States was a worse punishment than serving the sentence. Attempts to extradite the applicant were not pursued, although in the autumn of 1978 the appropriate authority in the United States was aware of the applicant's address in Trinidad. There is documentary evidence to the effect that in about September the applicant's name was removed from the "fugitive index." |
The applicant lived and worked in Trinidad until 1983 when he and his family came to London where they have lived ever since. In that year Interpol, for reasons which have not been disclosed, became interested in the applicant and communicated their interest through another agency to a United States authority. Consequently, the Justice Department decided in September 1983 to seek the extradition of the applicant. In the words of Watkins L.J., at p. 116: |
"That process, as revealed to us, bears the appearance of meandering along from 1983 to October 1987 when a formal request for extradition was made to the United Kingdom Government. We know not why such delay occurred nor why the decision to seek extradition was taken when the matter had lain dormant for so long." |
On 5 February 1988 the applicant was arrested in London upon an extradition warrant and subsequently came before the stipendiary magistrate at Bow Street in extradition proceedings, from which arose the subsequent application for habeas corpus. |
The proceedings before the stipendiary magistrate at Bow Street |
These took some 19 days, the main contentions being: (1) the magistrate had jurisdiction to stay the proceedings on the ground that |
|
| ||||||||||
|
|
|
they were an abuse of the process of the court; (2) that the facts justified his exercising that jurisdiction; (3) that the "prosecution" for the offences for which extradition was requested had become barred by a lapse of time and accordingly under article V(1)(b) of the Treaty there was no power to grant extradition. |
Extensive evidence was given to the magistrate. The applicant was called to establish the basic facts which I have recited. He of course dealt in detail with his attempts to return to the United States to serve his sentence and the circumstances in which he lived in Trinidad following the refusal of a visa, in order to demonstrate how easy it would have been for the United States authorities to have made contact with him, if they had wished to apply for his extradition or otherwise achieve his return to the United States. He dealt similarly with the circumstances in which he lived during the four years from 1983 to 1987, when the formal request for his extradition was made, again with a view to demonstrating his availability and accessibility. He also produced a tape of a lengthy telephone conversation with Mr. Garvin on 3 October 1988, which tended to show that Mr. Garvin was not in favour of his extradition, taking the view that the applicant had exiled himself and that this had resulted in a worse punishment. |
The applicant's evidence as to the open manner in which he was living in Trinidad was supported by that of Mr. Dunning. An affidavit was provided by Rhonda Janes Bump of California, an employee of the United States Internal Revenue Service, who had visited the applicant and his wife in Trinidad, stayed at their home for two weeks and in 1979 or 1980, had informed the Internal Revenue Service of his address. Affidavits were also provided from Morton Richard Kimmel, the lawyer who represented the applicant in the criminal proceedings. He stated, inter alia, that in October 1978 he had provided the United States Attorney's office with the applicant's address in Trinidad. Thereafter he had never been contacted regarding the applicant. Mr. Poppiti, an attorney practising in the State of Delaware, had personally known the applicant for 30 years and Mr. James Garvin for about 15 years. He deposed that he had never been approached to inquire about the applicant's whereabouts, which he would readily have stated. |
Extensive evidence of United States law was given by Mr. Buckley Junior, a highly qualified attorney practising in Washington D.C. This evidence was directed to two main issues. These were: |
1. The meaning of the word "prosecution" under United States law. It was his contention, supported by American case law, that a prosecution is not completed in a criminal cause until the defendant begins to serve his sentence. Accordingly since the applicant had not begun to serve his sentence, the United States Government's prosecution of him is still continuing and includes the present attempt to obtain the remedy of his incarceration. |
2. The prosecution of the applicant had become barred by lapse of time by virtue of the doctrine of credit for time at liberty and the doctrine of waiver. Under the doctrine of credit for time at liberty, a convicted person is entitled to credit against his sentence for the time he was erroneously at liberty, provided there is negligence on behalf of the |
|
| ||||||||||
|
|
|
government and the delay in the execution of the sentence was through no fault of the convicted person. Under this doctrine the applicant would be entitled to credit for the period of almost 10 years when he was at liberty. |
Under the doctrine of waiver a defendant may not be required to serve an otherwise legal sentence after a lapse of time, |
"if the government's action or inaction is so affirmatively wrong or grossly negligent that service of the sentence would be inconsistent with 'fundamental principles of liberty and justice.'" |
Support for the United States Government's request for extradition, was provided in the affidavit of Linda Candler. She is currently employed as a trial attorney with the Office of International Affairs, Criminal Division, United States Department of Justice. She submitted that issues of waiver and credit for time at liberty are issues which, if relevant, should be raised by the applicant in a motion to reduce or vacate sentence, once he was returned to the United States. She further contended that both doctrines were inapplicable because the applicant had been at liberty, not because of any negligence on the government's part, but because he fled the country instead of reporting to prison. She maintained that United States records show that the applicant offered to return to the United States only if he would be guaranteed a new trial. |
Richard G. Andrews, employed as First Assistant, United States Attorney for the District of Delaware, also swore an affidavit producing various documents and stating that although he did not know whether the applicant had tried to come back to the United States and was denied entry, he believed that for four reasons his allegation was false. First, that while generally the United States Department of State and the United States Immigration and Naturalisation Service would refuse admittance to the United States of convicted felons, it was also true that a convicted felon who made it clear that he was coming back to the United States to serve a prison sentence would be admitted for that purpose. Secondly, there is a memorandum in the United States Attorney's office written by the Assistant United States Attorney in charge of the case at the time, relating a conversation on 19 July 1978 with Mr. Kimmel that the applicant would only surrender if certain pre-conditions to which he was not entitled were met. Thirdly, in May 1978 the applicant had refused to allow Mr. Kimmel to provide his exact address and, lastly, the American Embassy in Trinidad had no record of a visa application by the applicant. |
|
| ||||||||||
|
|
|
The Divisional Court |
After a hearing lasting four days the Divisional Court concluded: 1. that if the applicant had been merely accused of having committed an extraditable offence or offences, the magistrate would have had jurisdiction to consider whether or not there had been an abuse of the process of the court. However, he had no such jurisdiction in a case where extradition was sought in relation to a person who had been convicted of an extraditable offence or offences. 2. A prosecution ends when the sentence is passed and not when the defendant begins to serve the sentence. Accordingly article V(1)(b) has had no application. |
My Lords I propose to deal with the two important questions as to jurisdiction and then finally the question of the true construction of the word "prosecution" in article V of the Treaty. |
1. Has the magistrate in extradition proceedings jurisdiction to consider whether such proceedings may be an abuse of the process of the court? |
In order to follow the scheme of the Extradition Act 1870, it is necessary to set out the material sections or their relevant parts. |
"3. The following restrictions shall be observed with respect to the surrender of fugitive criminals: (1) A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character, or if he prove to the satisfaction of the police magistrate or the court before whom he is brought on habeas corpus, or to the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character . . ." |
"7. A requisition for the surrender of a fugitive criminal of any foreign state, who is in or suspected of being in the United Kingdom, shall be made to a Secretary of State by some person recognised by the Secretary of State as a diplomatic representative of that foreign state. A Secretary of State may, by order under his hand and seal, signify to a police magistrate that such requisition has been made, and require him to issue his warrant for the apprehension of the fugitive criminal. . . . |
"8. A warrant for the apprehension of a fugitive criminal, whether accused or convicted of crime, who is in or suspected of being in the United Kingdom, may be issued - 1. by a police magistrate on the receipt of the said order of the Secretary of State, and on such evidence as would in his opinion justify the issue of the warrant if the crime had been committed or the criminal convicted in England; . . . |
"9. When a fugitive criminal is brought before the police magistrate, the police magistrate shall hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence committed in England. The police magistrate shall receive any evidence which may be tendered to show that the crime of which the prisoner is accused or alleged to have been convicted is an offence of a political character or is not an extradition crime. |
|
| ||||||||||
|
|
|
"10. In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged. In the case of a fugitive criminal alleged to have been convicted of an extradition crime, if such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, prove that the prisoner was convicted of such crime, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged. If he commits such criminal to prison, he shall commit him to the Middlesex House of Detention, or to some other prison in Middlesex, there to await the warrant of a Secretary of State for his surrender, and shall forthwith send to a Secretary of State a certificate of the committal, and such report upon the case as he may think fit. |
"11. If the police magistrate commits a fugitive criminal to prison, he shall inform such criminal that he will not be surrendered until after the expiration of 15 days, and that he has a right to apply for a writ of habeas corpus. Upon the expiration of the said 15 days, or, if a writ of habeas corpus is issued, after the decision of the court upon the return to the writ, as the case may be, or after such further period as may be allowed in either case by a Secretary of State, it shall be lawful for a Secretary of State, by warrant under his hand and seal, to order the fugitive criminal (if not delivered on the decision of the court) to be surrendered to such person as may in his opinion be duly authorised to receive the fugitive criminal by the foreign state from which the requisition for the surrender proceeded, and such fugitive criminal shall be surrendered accordingly. . . ." |
The facts of the case were particularly striking. In October 1968 the applicant armed with a revolver gained entry by means of a trick into the house of a woman in New Orleans, Louisiana, United States of America, and attempted to rob her of jewellery. Shots were fired both at her and at policemen who gave chase. He was arrested and charged both with armed robbery and attempted murder. There appears to have been a plea bargain, as a result of which the charge of armed robbery was reduced to attempted robbery, to which the applicant agreed to plead guilty. The charge of attempted murder was then dropped. For the charge of attempted armed robbery he was sentenced to 18 months. |
|
| ||||||||||
|
|
|
Some two months later he escaped from prison and was arrested in Manchester, England. As neither attempted armed robbery nor escaping from prison were extradition crimes, the authorities in Louisiana revived the charges of attempted murder and aggravated burglary. The Chief Metropolitan Magistrate, on the hearing of the extradition proceedings, committed the applicant to prison on the charges of attempted murder, but refused to commit him on the charge of aggravated burglary. Your Lordships held that the question whether it would be wrong, unjust, or oppressive to surrender the fugitive, was not one for the courts but for the Secretary of State who was answerable to Parliament, but not to the courts, for any decision he might make. |
Lord Reid in his speech observed, at pp. 231-233: |
"The applicant does not deny that there was before the Chief Magistrate sufficient evidence to justify committal on charges of attempted murder. His case is that, in view of the way in which these charges were dropped when he agreed to plead guilty to attempted armed robbery, it would be wrong and oppressive to revive them now. We do not know whether he can now be tried on these charges by the law of Louisiana. The appellant's case is that by the law of England our courts are entitled to refuse to commit to prison if natural justice requires such refusal, and that in this case it would be oppressive and contrary to natural justice to commit him to prison with a view to extradition. |
"It is therefore necessary to examine the Extradition Act 1870. The matter comes before the police magistrate after a requisition has been made by the foreign country to the Secretary of State and the Secretary of State requires the magistrate to proceed. In this case the Secretary of State sent such a requirement to the Chief Metropolitan Magistrate on 25 April. Then the Act provides by section 9 that the magistrate 'shall hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence committed in England.' It is not disputed that at that stage the magistrate can deal with a plea in bar of autrefois acquit or autrefois convict. 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. |
|
| ||||||||||
|
|
|
necessary to determine its result. I must, however, correct a misapprehension which has been expressed about what I said. At p. 1296 I said that 'there must always be a residual discretion to prevent anything which savours of abuse of process.' I expressed no opinion as to whether a judge has any wider discretion than that, nor did I express any general concurrence with any other of my noble and learned friends. But I did deal with a particular matter - whether the practice of not combining other charges with a charge of murder should be altered - and with regard to that matter I expressed agreement with the speeches of Lord Devlin and Lord Pearce. I think it is clear from the context that my concurrence went no farther than that. |
"But that is not the end of the matter. It is now well recognised that the court has power to expand procedure laid down by statute if that is necessary to prevent infringement of natural justice and is not plainly contrary to the intention of Parliament. There can be cases where it would clearly be contrary to natural justice to surrender a man although there is sufficient evidence to justify committal. Extradition may be either because the man is accused of an extradition crime or because he has been convicted in the foreign country of an extradition crime. It is not unknown for convictions to be obtained in a few foreign countries by improper means, and it would be intolerable if a man so convicted had to be surrendered. Parliament can never have so intended when the Act of 1870 was passed. |
|
| ||||||||||
|
|
|
"But the Act does provide a safeguard. The Secretary of State always has power to refuse to surrender a man committed to prison by the magistrate. It appears to me that Parliament must have intended the Secretary of State to use that power whenever in his view it would be wrong, unjust or oppressive to surrender the man. Section 10 of the Act of 1870 provides that when a magistrate commits a man to prison 'he shall forthwith send to a Secretary of State a certificate of the committal, and such report upon the case as he may think fit.' So the magistrate will report to the Secretary of State anything which has come to light in the course of proceedings before him showing or alleged to show that it would be in any way improper to surrender the man. Then the Secretary of State is answerable to Parliament, but not to the courts, for any decision he may make. |
"If I had thought that Parliament did not intend this safeguard to be used in this way, then I would think it necessary to infer that the magistrate has power to refuse to commit if he finds that it would be contrary to natural justice to surrender the man. But in my judgment Parliament by providing this safeguard has excluded the jurisdiction of the courts." |
In his speech Lord Morris dealt with the matter quite shortly, at pp. 238-239, by saying: |
Lord Guest expressed his concurrence with the observations of Lord Reid in these terms, at p. 247: |
"There is a further reason why the discretion to dismiss the charges in extradition proceedings on the ground of oppression or breach of the principles of natural justice should not be exercised by the magistrate. Under section 11 of the Act, after the magistrate has under section 10 committed the prisoner to prison the Secretary of State is given a complete discretion after a certain time limit to order the fugitive criminal to be surrendered to the foreign state. He can, if necessary, at that stage decide questions of oppression or breach of the principles of natural justice. I respectfully adopt the observations of my noble and learned friend, Lord Reid, on this point. In my view, it is clear in regard to extradition proceedings at any rate that no discretion resides in the magistrate to refuse to commit on the grounds Mr. Hazan suggests." |
|
| ||||||||||
|
|
|
Lord Upjohn said that the words of section 10 were mandatory, that there was no room for the implication in the Act of the discretion to stay the proceedings for abuse of the process of the court and that he entirely agreed with Lord Reid. |
"It is important, I think, to observe that the function of the magistrate is one which is defined by statute. He has a highly important but yet limited part to play in the procedure which may - or which may not - lead to the result that the requisition made to the Secretary of State will meet with compliance. But the magistrate is not called upon to make any decision as to whether the 'fugitive criminal' will in fact be surrendered. That is for the Secretary of State. The duty of the magistrate is laid down by section 10. If he is dealing with the case of a fugitive criminal who is alleged to have been convicted of an extradition crime he must commit the fugitive criminal to prison 'if such evidence is produced as' (subject to the provisions of the Extradition Act 1870) 'would, according to the law of England prove that the prisoner was convicted of such crime . . .' If such evidence is not produced the magistrate must order the prisoner to be discharged. If the magistrate finds that the prisoner was convicted of an extradition crime, then, having committed him to prison (in accordance with a precise statutory direction), the magistrate is under a statutory duty forthwith to send to the Secretary of State a certificate of the committal." |
"11(1) Where a person is committed under section 9 above, the court shall inform him in ordinary language of his right to make an application for habeas corpus, and shall forthwith give notice of the committal to the Secretary of State. . . . (3) Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that - (a) by reason of the trivial nature of the offence; or (b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or (c) because the accusation against him in not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him. . . ." |
By this section a radical alteration has been made by giving to the High Court, in part at least, the same kind of discretion, as to whether or not |
|
| ||||||||||
|
|
|
to discharge an applicant, as the Secretary of State has in deciding whether or not to order a fugitive criminal to be returned to a requesting state. It is the clearest possible recognition by the legislature that hitherto no such discretion existed in the courts and in particular in the magistrate's court. |
I therefore conclude that in extradition proceedings the magistrate has no jurisdiction to consider whether such proceedings may be an abuse of the process of the court. |
2. Has the magistrate jurisdiction to consider whether or not the extradition treaty relied upon has been complied with? |
This question was not decided by the Divisional Court. It was however expressly reserved by the respondents but not developed in the light of certain authorities to which I will make reference hereafter. Mr. Alun Jones, in his most careful and detailed argument, submitted that the magistrate has no powers except those conferred by sections 3(1), 8, 9 and 10. They do not include, expressly or by implication, any monitoring or enforcing power in relation to the operation of the Treaty. It is for the Secretary of State to decide whether, pursuant to a request, to launch proceedings under section 7 of the Act. Both article III (the territory to which the Treaty applies) and article V (grounds on which extradition is to be refused) begin with the words "Extradition shall not be granted if . . ." It is for the Secretary of State to determine at this stage whether, upon the material which has been submitted to him, the Treaty has been complied with. Accordingly any challenge to his order under section 7 requiring the magistrate to issue his warrant for the apprehension of the fugitive criminal, on the ground that the Treaty has not been complied with, must be made to the Divisional Court in habeas corpus or, if appropriate, judicial review proceedings. This need involve no delay since the writ for habeas corpus can be issued immediately after the fugitive is arrested. Mr. Jones submits that the whole scheme of the Act envisages that before the issue of the order to proceed under section 7, the Secretary of State will have satisfied himself that he has been provided with the appropriate material as required by article VII of the Treaty. This provides: |
"(1) The request for extradition shall be made through the diplomatic channel, except as otherwise provided in article XV. (2) The request shall be accompanied by: (a) a description of the person sought, his nationality, if known, and any other information which would help to establish his identity; (b) a statement of the facts of the offence for which extradition is requested; (c) the text, if any, of the law (i) defining that offence; (ii) prescribing the maximum punishment for that offence; and (iii) imposing any time limit on the institution of proceedings for that offence; and (d) (i) where the requesting party is the United Kingdom, a statement of the legal provisions which establish the extraditable character of the offence for which extradition is requested under the relevant law, being the law of the United Kingdom or other territory to which this Treaty applies by virtue of sub-paragraph (1)(a) of article II; (ii) where the requesting party is the United |
|
| ||||||||||
|
|
|
States of America, a statement that the offence for which extradition is requested, constitutes a felony under the law of the United States of America. (3) If the request relates to an accused person, it must also be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority in the territory of the requesting party and by such evidence as, according to the law of the requested party, would justify his committal for trial if the offence had been committed in the territory of the requested party, including evidence that the person requested is the person to whom the warrant of arrest refers. (4) If the request relates to a convicted person, it must be accompanied by a certificate or the judgment of conviction imposed in the territory of the requesting party, and by evidence that the person requested is the person to whom the conviction refers and, if the person was sentenced, by evidence of the sentence imposed and a statement showing to what extent the sentence has not been carried out. . . ." |
It will thus be seen that article VII(2) envisages that the request should contain sufficient information for the Secretary of State to decide whether articles III and V are satisfied. Articles VII(3) and (4) deal separately with the question of evidence required for proceedings before the magistrate but they do no more than reflect the provisions of the Act. |
Following the receipt of the Secretary of State's order to proceed under section 7 of the Act of 1870 the magistrate, except in an allegedly "political" case (see section 3(1)) has important but very limited functions to perform as provided for in sections 9 and 10. This case being a conviction and not an accusation case he had to determine only three matters: (1) whether the conviction had been properly proved; (2) whether the conviction is of an "extradition crime" as defined in section 26 of the Act; (3) whether the defendant is identified as the person convicted. |
Assuming he is satisfied of all these three matters, the magistrate commits the fugitive to prison, there to await the warrant of the Secretary of State for his surrender. Under section 10 the magistrate is required to send to the Secretary of State a certificate of the committal and "such report upon the case as he may think fit." |
It is at this stage that the Secretary of State, so to speak, re-appears on the stage in order to make the decision whether or not to order the fugitive criminal to be surrendered. Before making such a decision it will of course be his duty to consider such report, if any, made to him by the magistrate and any representations which may have been made to him for or on behalf of the fugitive. If he acts outside his jurisdiction, his decision can of course be effectively challenged by writ of habeas corpus or, where appropriate, by judicial review. |
|
| ||||||||||
|
|
|
evidence of Danish criminal law which he considered failed to establish that the offence of which the appellant was accused was not only an offence under Danish law, but was also a crime substantially similar in concept to one or more of the offences set out in Schedule 1 to the Extradition Act 1870. The ratio of the Divisional Court's decision, as subsequently upheld in your Lordships' House, quashing the magistrate's order and ordering him to continue the hearing of the proceedings, was that on the true construction of the Extradition Act 1870, the test of whether a person, in respect of whom a warrant for his arrest had been issued in a foreign state for the offence alleged to have been committed in that state, was liable to be surrendered as a fugitive criminal, was not whether the offencespecified in the foreign warrant of arrest as that for which it had been issued was substantially similar to a crime under English law falling within the list of offences described in Schedule 1 to the Act of 1870, as amended; but whether the conduct of the appellant, if it had been committed in England would have constituted a crime falling within one or more of the descriptions included in that list. Accordingly the magistrate did not have to consider any question of Danish law at all. Robert Goff L.J. stated, at pp. 11-12: |
"Now it is important to observe that the legal proceedings in this country depend entirely upon the Secretary of State issuing his order to proceed. It is true that, without such an order, a provisional warrant may be issued for the arrest of the fugitive under section 8(2). But if the Secretary of State decides not to issue an order to proceed, he may cancel that warrant and order the fugitive to be discharged from custody (under section 8). The Secretary of State has a discretion whether to issue an order to proceed, and the question whether the offence is of a political character is only one of the matters which he may take into account in considering the exercise of his discretion. But since, as we have already observed, the Act which confers his powers upon the Secretary of State only applies subject to the limitations, etc., if any, contained in the Order in Council (which incorporates the Treaty), he can only act within that framework. Accordingly he has to consider, before issuing an order to proceed, whether the requisition and the documents presented with it comply with the terms of the Treaty. If he satisfies himself that this is so, then (subject to any question of the offence being of a political character) he issues his order to proceed. |
"Once he does so, however, the effect of the order to proceed is that proceedings are launched before the police magistrate in this country. As we read the statute, these proceedings are not only proceedings under English law; but they do not involve any consideration of foreign law at all, unless such evidence forms part of evidence tendered to show that the relevant crime is an offence of a political character. The first step in those proceedings is the issue by the magistrate of a warrant for the apprehension of the fugitive criminal. In the case of a full warrant, all that is required of the magistrate is (1) that he should have received the order to proceed, and (2) that he should be sufficiently satisfied on the |
|
| ||||||||||
|
|
|
evidence that the issue of the warrant will be justified if the crime had been committed, or the criminal convicted, in England. For this purpose, the magistrate is not concerned with foreign law at all. Consistent with that, the order to proceed issued by the Secretary of State refers only to an offence identified in terms of English law, which is selected by him with reference to the crime of which the fugitive is accused or convicted by the foreign law. In the case of an accused person, the magistrate is concerned only with the question whether the evidence reveals conduct which would justify the issue of the warrant if the acts had been done in England, and will as a matter of practice consider that question with reference to the English crime or crimes specified in the order to proceed. |
"So also with the hearing before the magistrate, if the warrant for the fugitive's apprehension is issued and he is apprehended. The same English procedure is still continuing, launched pursuant to the order to proceed. The evidence which the magistrate shall receive is, in the case of an accused person, that which may be tendered to show that the crime of which the prisoner is accused is (1) an offence of a political character, or (2) is not an extradition crime. The definition of extradition crime in section 26 of the Act is 'a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in the first schedule to the Act,' which are of course all offences by English law. In our judgment, it is plain from this definition that the word 'crime' in it must refer to conduct of the fugitive which is complained of, and cannot relate to the foreign offence. So all that the magistrate is concerned with (apart from the question of a political offence) is evidence tendered to show that the conduct complained of is not an offence by English law. In practice, the relevant offence or offences are those specified in the order to proceed. He is not authorised to receive any evidence of foreign law, unless such evidence is relevant to the question whether the offence is one of a political character. Exactly the same construction must, we consider, be placed on the words of the opening paragraph of section 10, which we have already quoted. Under that paragraph, in the case of an accused person, apart from considering whether the foreign warrant is duly authenticated, the magistrate has only to consider whether the evidence would justify the committal for trial of the prisoner if the crime of which he is accused, i.e. the conduct complained of, had been committed in England. There is, in our judgment, no warrant in section 10 of the Act for the magistrate to consider any question of foreign law. Indeed, if the magistrate decides to commit the fugitive to prison, the form of committal warrant authorised by the Act refers only to the fugitive having been accused of the commission of crime by recital of the crime or crimes specified by the Secretary of State in his order to proceed. |
"If, however, the fugitive is committed to prison, the Act contemplates that he may seek to challenge that warrant by habeas corpus proceedings. In such proceedings, the prisoner may challenge the lawfulness of his committal to prison on any ground open to |
|
| ||||||||||
|
|
|
him. Those grounds are not restricted to matters arising out of the proceedings before the magistrate. For the lawfulness of his committal to prison depends not only upon the magistrate having acted lawfully, but also upon the Secretary of State having done so in issuing his order to proceed. Accordingly, at that stage the prisoner may contend that the Secretary of State has not acted lawfully in issuing his order to proceed, for example, by not paying due regard to the provision of the relevant Order in Council (including the terms of the Treaty incorporated into it). |
"This, as we read it, is the statutory scheme for extradition of an accused person from this country, as set out in the Extradition Act 1870. The scheme is entirely sensible in that it leaves the question of compliance with the Treaty to the Secretary of State, subject only to consideration (so far as permissible) by the High Court in habeas corpus proceedings; and leaves to the magistrate matters appropriate to his consideration in accordance with ordinary English law and procedure. Of course, questions of foreign law must arise for consideration by the Secretary of State, and may arise for consideration by the High Court in habeas corpus proceedings. This is because, under the relevant Treaty, no fugitive can be extradited unless he has committed a crime specified in the Treaty." |
In his speech in your Lordships' House [1984] A.C. 606 Lord Diplock, in his obiter dicta, qualified the analysis of the Divisional Court. He said, at pp. 621-622: |
"In the principal treaty with Denmark, the list of crimes in respect of which surrender of fugitive criminals will be granted is confined to those contained in the 1870 list, and it was for crimes within this list alone that the Secretary of State's orders to proceed in the instant case were made. That is the reason why the magistrate had not, in my view, any jurisdiction in the instant case to make any findings of fact as to Danish substantive criminal law or to hear expert evidence about it. |
"It would have been otherwise if the conduct of which Nielsen was accused in Denmark had not been covered by any description of an English crime in the 1870 list but had been added to the list of extradition crimes by later Extradition Acts. For, in that event, it would only have been brought into the list of extradition crimes applicable to fugitive criminals from Denmark by the supplementary treaty of 1936 of which the relevant provision is the addition to article 1 of the principal treaty of the words: 'Extradition may also be granted at the discretion of the High Contracting Party applied to in respect of any other crime or offence for which, according to the laws of both [my emphasis] of the High Contracting Parties for the time being in force, the grant may be made.' Had it been necessary for the Danish Government to rely upon the supplementary treaty it would have been necessary for the magistrate to hear evidence of Danish law in order to satisfy himself that the conduct of the accused in addition to constituting in English law an extradition crime included among those subsequently added to the |
|
| ||||||||||
|
|
|
1870 list, also constituted an offence that was treated as an extradition crime in Denmark. |
"Whether in an accusation case the police magistrate has any jurisdiction to make findings as to the substantive criminal law of the foreign state by which the requisition for surrender of a fugitive criminal is made will depend upon the terms of the arrangement made in the extradition treaty with that state. Some treaties may contain provisions that limit surrender to persons accused of conduct that constitutes a crime of a particular kind (for example, one that attracts specified minimum penalties) in both England and the foreign state. Accusation cases arising under extradition treaties that contain this kind of limitation I shall call 'exceptional accusation cases'. In an exceptional accusation case it will be necessary for the police magistrate to hear expert evidence of the substantive criminal law of that foreign state and make his own findings of fact about it. |
"In conviction cases, too, if the foreign certificates or judicial documents stating the fact of conviction issued in accordance with the procedure followed by that state do not recite the facts upon which the conviction was based but only give the name of the crime or the article of the criminal code of the foreign state of which the fugitive criminal was convicted, expert evidence of what under the law of that foreign state constitute the kinds of conduct and state of mind of a person that make him guilty of that particular offence will be admissible before the magistrate in order to enable him to decide whether that kind of conduct and state of mind would constitute in English law a crime described in the list in the Acts of 1870 to 1932 as amended." |
The four other members of your Lordships' Appellate Committee express their agreement with Lord Diplock's speech. |
|
| ||||||||||
|
|
|
was required to be put before the magistrate. All that was required was that the request for extradition be accompanied by the text of the law defining the offence and prescribing the maximum punishment for that offence see: article VII(2)(c) set out above. |
"those persons who, being accused or convicted of any of the crimes or offences enumerated in article II, committed in the territory of the one party, shall be found within the territory of the other party." |
It was submitted on behalf of the appellant that it had not been established that the crime of which he had been convicted had been committed in Greek territory and so he could not be extradited. There are to be found dicta of Viscount Dilhorne, at p. 294D-F, suggesting that the magistrate might hear evidence as to whether the crime was committed within the territory of the requesting state. He said: |
The point was not, however, argued nor was the decision in your Lordships' House of Reg. v. Governor of Brixton Prison, Ex parte |
|
| ||||||||||
|
|
|
"It is true that the British Government does not recognise the sovereignty of Israel in Jerusalem but it does recognise that the Government of Israel exercises de facto authority in the part of the city which it occupies. In my judgment neither the Extradition Act 1870, nor the Order to which I have referred is concerned with sovereignty; they are concerned with territory in which territorial jurisdiction is exercised. In addition to other reasons which have been given or which will be given by your Lordships I would refer to article 2 of the agreement between the British Government and the Government of Israel which is incorporated in the Order. This article draws no distinction between territories over which Her Majesty exercises sovereignty and Protectorates and other territories where Her Majesty is not sovereign but where her authority is exercised. There is no question of these latter being merely deemed to be 'territories' for certain purposes. I find nothing in the Extradition Acts or in this Order to indicate that territory is used in any sense which would exclude from the 'territory' of Israel that part of Jerusalem in regard to which the British Government recognises the de facto authority of the Government of Israel on the ground that that Government is not recognised as sovereign there." |
Thus in the view of Lord Reid the construction of the word "territory" in the Treaty involved the same exercise as construing the territorial extent of the Act itself. None of the other speeches, nor the judgment of Lord Parker C.J. in the same case in the Divisional Court [1963] 1 Q.B. 55 supports the proposition that the magistrate must construe and determine compliance with the terms of the Treaty. |
|
| ||||||||||
|
|
|
applicant was further remanded in custody pursuant to the Secretary of State's order. Additional evidence to justify committal reached the Foreign Office on 4 June and was forwarded to the magistrates' court on 6 June. On 29 June an extradition warrant was issued. The applicant sought an order of habeas corpus on the ground that sufficient evidence against him had not been produced within the two months of his arrest contrary to article XII |
In his speech Lord Wilberforce said, at pp. 18-19: |
"There are sound practical reasons, no doubt, for holding that production means production to the court which has, under the treaty, to decide upon the sufficiency of what is produced. But the scheme of the treaty appears to me to favour the other view, that production means production by the requesting government to the government requested - that is, the date of the receipt by the normal government channel, called, in the treaty, the diplomatic agents, through whom the requisition has to be made. I do not think that it can have been intended that where, as between governments, the necessary evidence has been delivered within the treaty period, the requesting government is to lose its treaty rights on account of delay in transmission to the requested state's courts, and it does not logically follow from the fact that it is the courts which have to pronounce on the sufficiency of the evidence that the date of production is to be the date of production to the court. If therefore, the evidence produced to the Foreign Office is, in the result, held to be sufficient, and if it was produced within two months from the apprehension, I would hold that it was in time." |
Mr. Jones is thus supported in his contention that monitoring the provisions of the Treaty is an executive, and not a magisterial, function. |
So much for recent decisions which reflect on this problem. |
"if the conditions of the treaty have not been complied with the Secretary of State might have refused to order a magistrate to |
|
| ||||||||||
|
|
|
proceed; but these conditions are not in the Act of Parliament; and the Secretary of State having made an order, and the magistrate having acted under it, all we have to do is to look at the Act to see whether he had justification under it." |
This submission was rejected. Ridley J. in his judgment quoted with approval the obiter of Blackburn J. which he considered was directly in point. He said, at p. 87: |
"the prisoner is admittedly a person to whom the Act applies, and the offence with which he is charged is one within the Act, and the only objection to his being dealt with under the Act is that there has been an irregularity in the procedure preliminary to the making of the Secretary of State's order. That in my opinion is not enough to take away the magistrate's jurisdiction." |
Darling J. was of the same opinion. Channell J., without referring to the observations of Blackburn J., said that the object of requiring that the deposition should be sent together with the requisition was simply to give information to the Secretary of State, to assist him to act upon it and to enable this country to do what by the Treaty it had undertaken to do, namely, to find the offender and when found to surrender him. If the Secretary of State has obtained the information from other sources, and, without having received the depositions mentioned in article VII of the Treaty, sends his order to the magistrate to issue his warrant and the magistrate acts upon it, there is no ground for the man being discharged from custody. In his view the provisions of article VII of the Treaty were mere machinery, and that non-compliance with them did not affect the jurisdiction of the magistrate to order either the arrest or the detention of the offender. |
|
| ||||||||||
|
|
|
Your Lordships are concerned with the construction of an Act passed over a hundred years ago. I cannot accept that the legislature intended that it was to be part of the function of the police magistrate to preside over lengthy proceedings occupying weeks, and on occasions months, of his time hearing heavily contested evidence of foreign law directed to whether there had been due compliance with the many and varied obligations of the relevant Treaty. The inconvenience of such a procedure is well demonstrated by the current litigation. Had the challenges which the applicant wished to make been ventilated initially before the Divisional Court in habeas corpus proceedings, it is unlikely that the court would have permitted the lengthy oral evidence which the magistrate, as matters stood, felt himself obliged to hear. Certainly for the future, if your Lordships concur that the magistrate has no jurisdiction to decide either whether there has been an abuse of the process of the court, or whether the requirements of the Treaty have been satisfied, his powers being limited to those specified in sections |
|
| ||||||||||
|
|
|
3(1), 8, 9 and 10, much time should be saved both in the magistrates' and in the Divisional Court. |
3. Was extradition of the appellant to the United States prohibited by reason of article V(1)(b) of the Treaty between the United Kingdom and the United States of America? |
Article V(1)(b) reads as follows: |
"(1) Extradition shall not be granted if: . . . (b) the prosecution for the offence for which extradition is requested has become barred by lapse of time according to the law of the requesting or requested party . . ." |
Mr. Cassel for the applicant, in his clear and attractive argument has, as stated above, submitted, relying upon the evidence of Mr. Buckley and the cases he cited, that it is clear that under United States law a prosecution is not completed in a criminal case until the defendant begins to serve his sentence. Mr. Cassel, however, concedes that what has to be decided is the true meaning of "prosecution" in the context of the Treaty. |
Unlike the English common law there is under section 3282 of Title 18 of the United States Code a time limit, viz. five years, on the institution of proceedings. Hence the provision in article VII(1)(c)(iii) set out above that the request for extradition be accompanied by the text, if any, of the law imposing any time limit on the institution of proceedings for that offence. This is a clear indication that "prosecution" in article V(1)(b) is intended to encompass only the initiation of criminal proceedings and not the commencement of the service of any term of imprisonment that may be imposed. |
It was of course open to the framers of the statute to include not only the term "prosecution" but also the term "punishment." Indeed Mr. Jones informed your Lordships that the American Treaty was exceptional in not so doing and your Lordships' attention was invited to a number of treaties including article V of the Treaty of 14 May 1872 between the United Kingdom and Germany as amended by the agreement of 23 February 1960. This provided that extradition shall not take place, if subsequent to the commission of the crime or the institution of the penal prosecution or the conviction thereon, exemption from prosecution or punishment has been acquired by lapse of time, according to the laws of the state applied to. A similar provision is to be found in the treaties with Denmark, Argentine, Israel and Sweden. Significantly there was no time bar in the 1890 Treaty with the United States but article V of the 1935 Treaty provided that extradition shall not take place, if subsequent to the commission of the crime or offence or the institution of the penal prosecution or the conviction thereon, exemption from prosecution or punishment has been acquired by lapse of time, according to the laws of the High Contracting Party applying or applied to, a provision similar to those found in the treaties referred to above. However, in the 1972 Treaty there is no mention of punishment. |
|
| ||||||||||
|
|
|
Accordingly, both the magistrate and the Divisional Court were correct in concluding that the prohibition contained in article V(1)(b) had no application. |
I would dismiss this appeal. |
LORD GOFF OF CHIEVELEY. My Lords, for the reasons given by my noble and learned friend, Lord Ackner, I would dismiss the appeal. |
|
Solicitors: The Halpin Jarman Partnership, Sittingbourne; Crown Prosecution Service Headquarters. |
A. R. |