[HOUSE OF LORDS]

AND

Extradition - Treaty - Construction - Fugitive criminal "found" within the territory - Conviction for non-extraditable offence - Escape from prison - subsequent charges of extraditable offences - Whether treaty applicable.

Extradition - Habeas corpus - Oppression - Inherent jurisdiction of court to prevent abuse of process - Whether applicable - Conviction for non-extraditable offence - Preferment of fresh charges by requesting authority - Whether oppressive - Suggestion that foreign state might act in breach of treaty - Whether matter for court or Secretary of State - Extradition Act, 1870 (33 & 34 Vict. c. 52), s. 10.

Extradition - Appeal - Case stated - Divisional Court - Magistrate's refusal to commit - Whether appeal lies by case stated - "Magistrates' Court" - Whether foreign state aggrieved by "order, determination or other proceeding of the court" - Magistrates' Courts Act, 1952 (15 & 16 Geo. 6 & 1 Eliz. 2, c. 55), ss. 87 (1), 124.

Nemo Debet Bis Vexari - Conviction - Extradition - Conviction in U.S.A. of attempted armed robbery - Escape to England - Subsequent charge of aggravated burglary on same facts - Whether plea of autrefois convict available.

Justices - Case stated - Extradition proceedings - Magistrate's refusal to commit - Whether jurisdiction to state case - Magistrates' Courts Act, 1952, ss. 87 (1), 124.

In October, 1968, the appellant, armed with a revolver, gained entry by means of a trick into the house of a woman in New orleans, Louisiana, U.S.A., and tried to rob her of jewellery. Shots were fired both at her and at policemen who gave chase. The appellant was arrested and charged with armed robbery and attempted murder. Before the trial there was a meeting between the defence attorney and the prosecutor as a result of which the charge of armed robbery was reduced to attempted armed robbery. The appellant agreed to plead guilty to that charge and the charges of attempted murder were dropped. It was alleged by the appellant that this amounted to a bargain or undertaking by the prosecutor that if the appellant so pleaded no further action would be taken on the charges of attempted murder. At his trial the appellant pleaded guilty to attempted armed robbery and was sentenced to 18 years' imprisonment.

In December, 1968, the appellant escaped from prison and made his way to Manchester, England, where on March 9, 1969, he was arrested on a provisional warrant which incorrectly alleged that he had been convicted on charges of robbery with violence and attempted murder. Neither attempted armed robbery nor escaping from prison were extradition crimes. Thereupon, the authorities in Louisiana revived the charges of attempted murder and, in addition, a charge of aggravated burglary.

At the hearing of the extradition proceedings¹ before the Chief Metropolitan Magistrate the appellant was committed to prison on the charges of attempted murder but the magistrate refused to commit on the charge of aggravated burglary.

On appeals to the Divisional Court by way of habeas corpus on the attempted murder charges and by way of case stated on the charge of aggravated burglary the Divisional Court dismissed the appellant's application for a writ of habeas corpus but allowed the respondent's appeal and remitted to the magistrate with a direction to commit on the charge of aggravated burglary.

The appellant appealed in respect of both decisions to the House of Lords contending, inter alia, (i) that it would be oppressive in the circumstances for him to be returned to the United States. (ii) that notwithstanding the wide terms of section 87 of the Magistrates' Courts Act, 1952,² an appeal did not lie

1 Extradition Act, 1870, s. 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 ... 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. ..."

S. 10: "In the case of a fugitive criminal accused of an extradition crime, if ... a such evidence is produced as ... 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. ... If he commits such criminal 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.

2 Magistrates' Courts Act, 1952, s. 87 (1): "Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved ..."

S. 124: "(1) In this Act the expression 'magistrates' court 'means any justice or

by way of case stated from the decision of a magistrate in extradition proceedings:-

Held, dismissing the first appeal, (1) that once a magistrate decided that there was sufficient evidence to justify committal for trial the accused must be so committed and that there was no provision in the Extradition Act, 1870, giving a magistrate any wider power in extradition proceedings than in ordinary domestic proceedings for committal for trial (post, pp. 232D-E,235F-G, 238H - 239A, 246G - 247A, 247E-G).

(2) That by virtue of section 10 of the Extradition Act, 1870, 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 (post, pp. 232G - 233B, 235F-G, 239A, 247B-C, 247E-G).

Connelly v. Director of Public Prosecutions [1964] A.C. 1254; [1964] 2 W.L.R. 1145; [1964] 2 All E.R. 401, H.L.(E.) considered.

Per Lord Morris of Borth-y-Gest and Lord Guest. The word "found" in article 1 of the Extradition Treaty between the United Kingdom and the United States of America, 1931,³ means no more than that the fugitive must be present in the United Kingdom when the extradition charges are preferred (post, pp. 237G-H, 245B-D).

Decision of the Divisional Court (post, p. 201F), sub nom. Reg. v. Brixton Prison Governor, Ex parte Atkinson [1969] 2 All E.R. 1146, D.C. affirmed.

Held, allowing the second appeal (Lord Morris of Borth-y-Gest dissenting) that it was settled law that before the enactment of the Magistrates' Courts Act, 1952, examining magistrates had no power to state a case, and that since that Act was a consolidation statute there was a strong presumption that it did not alter the pre-existing law. That, accordingly, section 87 of that Act was to be construed as confined to final proceedings, and that, therefore, since committal proceedings did not lead to any final decision the Chief Magistrate had no power to state a case (post, pp. 234F - 235F, 244F - 245A, 249D-G).

Boulter v. Kent Justices [1897] A.C. 556, H.L.(E.) considered.

Decision of the Divisional Court (post, p. 208B), sub nom. United States Government v. Atkinson [1969] 2 All E.R. 1151, D.C. reversed.

The following cases are referred to in their Lordships' opinions:

Arton (No. 1), In re [1896] 1 Q.B. 108, D.C.

justices of the peace acting under any enactment or by virtue of his or their commission or under the common law."

3 Extradition Treaty between the United Kingdom and United States of America 1931, art. 1: "The high contracting parties engage to deliver up to each other, under certain circumstances and conditions stated in the present treaty, those persons who, being accused or convicted of any of the crimes or offences enumerated in article 3 committed within the jurisdiction of the one party, shall be found within the territory of the other party."

Art. 7: "A person surrendered can in no case be kept in custody or be brought to trial in the territories of the high contracting party to whom the surrender has been made for any other crime or offence, or on account of any other matters, than those for which the extradition shall have taken place, until he has been restored, or has had an opportunity of returning, to the territories of the high contracting party by whom he has been surrendered. This stipulation does not apply to crimes of offences committed after the extradition."

Beswick v. Beswick [1968] A.C. 58; [1967] 3 W.L.R. 932; [1967] 2 All E.R. 1197, H.L.(E.).

Boulter v. Kent Justices [1897] A.C. 556, H.L.(E.).

Card v. Salmon [1953] 1 Q.B. 392; [1953] 2 W.L.R. 301; [1953] 1 All E.R. 324, D.C.

Connelly v. Director of Public Prosecutions [1964] A.C. 1254; [1964] 2 W.L.R. 1145; [1964] 2 All E.R. 401, H.L.(E.).

Foss v. Best [1906] 2 K.B. 105, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556; [1962] 3 W.L.R. 1013; [1962] 3 All E.R. 529, H.L.(E.).

The following additional cases were cited in argument:

Athanassiadis v. Government of Greece (Note) (post, p. 282); [1969] 3 W.L.R. 544n; [1969] 3 All E.R. 293, H.L.(E.).

Barker v. Edger [1898] A.C. 748, P.C.

Burke v. Copper [1962] 1 W.L.R. 700; [1962] 2 All E.R. 14, D.C.

Ferens v. O'Brien (1883) 11 Q.B.D. 21.

Food Controller v. Cork [1923] A.C. 647, H.L.(E.).

Fourth City Mutual Building Society v. East Ham (Churchwardens and Overseers) [1892] 1 Q.B. 661, D.C.

Galwey, In re [1896] 1 Q.B. 230, D.C.

Guerin, In re (1888) 58 L.J.M.C. 42.

H. v. H. [1966] 3 All E.R. 560.

Jeffrey v. Evans [1964] 1 W.L.R. 505; [1964] 1 All E.R. 536, D.C.

Kutner v. Phillips [1891] 2 Q.B. 267, D.C.

Lancashire Asylums Board v. Manchester Corporation [1900] 1 Q.B. 458, C.A.

Pratt v. A.A. Sites Ltd. [1938] 2 All E.R. 371, D.C.

Reg. v. East Riding of Yorkshire Quarter Sessions, Ex parte Newton [1968] 1 Q.B. 32; [1967] 3 W.L.R. 1098; [1967] 3 All E.R. 118, C.A.

Reg. v. Glamorganshire Justices [1892] 1 Q.B. 621, C.A.

Reg. v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192; [1966] 3 W.L.R. 828; [1966] 3 All E.R. 177, H.L.(E.).

Reg. v. Governor of Brixton Prison, Ex parte Caborn-Waterfield [1960] 2 Q.B. 498; [1960] 2 W.L.R. 792; [1960] 2 All E.R. 178, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Kolczynski [1955] 1 Q.B. 540; [1955] 2 W.L.R. 116; [1955] 1 All E.R. 31, D.C.

Reg. v. Hopkins [1893] 1 Q.B. 621, D.C.

Reg. v. Keepers of Peace and Justices of County of London (1890) 25 Q.B.D. 357, D.C.

Reg. v. Lord Mayor of London (1867) L.R. 2 Q.B. 292.

Reg. v. Riebold [1967] 1 W.L.R. 674; [1965] 1 All E.R. 653.

Reg. (Blakeney) v. Roscommon Justices [1894] 2 I.R. 158.

Rex v. Galway County Justices (1909) 43 I.L.T. 185.

Rex v. London Quarter Sessions, Ex parte Westminster Corporation [1951] 2 K.B. 508; [1951] 1 All E.R. 1032, D.C.

Rex v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128, P.C.

Rex v. Newport (Salop) Justices, Ex parte Wright [1929] 2 K.B. 416, D.C.

Rex v. Northumberland Compensation Tribunal, Ex parte Shaw [1951] 1 K.B. 711; [1951] 1 All E.R. 268, D.C.

Seward v. "Vera Cruz" (1884) 10 App.Cas. 59, H.L.(E.).

Stokes v. Mitcheson [1902] 1 K.B. 857, D.C.

Zacharia v. Republic of Cyprus [1963] A.C. 634; [1962] 2 W.L.R. 1163; [1962] 2 All E.R. 438, H.L.(E.).

APPEALS from the Divisional Court (Lord Parker C.J., Melford Stevenson and Bridge JJ.).

These were two appeals by leave of the Divisional Court of the Queen's Bench Division by the appellant, Arthur Atkinson, from decisions of the Divisional Court dated respectively June 25, 1969, and June 26, 1969, dismissing the appellant's application for a writ of habeas corpus ad subjiciendum in extradition proceedings brought against him by the respondent, the Government of the United States of America, and allowing the respondent's appeal by way of case stated from the decision of the Chief Metropolitan Magistrate that in respect of one charge for which the appellant's extradition was sought "autrefois acquit" was a good plea in bar thereto.

The facts relating to the habeas corpus application may be shortly stated as follows: The appellant was detained in Brixton Prison pursuant to an order made on May 2, 1969, by the Chief Metropolitan Magistrate under section 10 of the Extradition Act, 1870, to await return to the United States on charges of attempted murder. He applied for a writ of habeas corpus, on the grounds (1) that he was not a person to whom article 1 of the Extradition Treaty between the United Kingdom and the United States of America applied because at the time he was "found" in the United Kingdom he was not a person who had either been accused or convicted of an extradition crime; (2) that the conduct of the United States authorities was oppressive in that none of the charges for which he was being extradited would have been preferred if he had not escaped from prison, neither the offence for which he had been convicted nor escaping from prison being extradition crimes; and (3) that in direct contravention of article 7 of the Extradition Treaty the New Orleans District Attorney had sworn in an affidavit that the appellant would serve the prison sentence originally imposed upon him.

John Hazan Q.C. and Nicholas Freeman for the appellant.

David Calcutt and Jeremy Griggs for the Government of the United States of America.

Michael Corkery for the Governor of Brixton Prison.

LORD PARKER C.J. In these proceedings Mr. Hazan moves on behalf of the applicant [the appellant], Arthur Atkinson, who is now detained in Her Majesty's Prison at Brixton pursuant to the warrant of the chief magistrate at Bow Street of May 2, pending extradition to the United States of America. The application is for a writ of habeas corpus.

The matter arises in this way. It is admitted that in New Orleans, in the State of Louisiana, the applicant saw an advertisement which had been put in a local paper by a Mrs. Pita, advertising the sale of jewellery. It is admitted that the applicant, together with another man, got in touch with her on the telephone and arranged to go round to see her that evening. That evening the two men went round there; the other man made some excuse to go to the bathroom, while the applicant remained in the main part of the dwelling where there was Mrs. Pita, her sister and brother-in-law, I think, and a nephew. The other man in due course came out of the bathroom with a towel round his face brandishing a firearm, and ordered all except Mrs. Pita to go into the bathroom. They quite clearly said this was a holdup and they wanted the jewellery. In some way Mrs. Pita kept her head

and all the occupants of the flat succeeded in getting out through the back into the street. They were pursued by the two men, the applicant, so it is said, firing his revolver towards Mrs. Pita. Police officers came onto the scene and two police officers chased the two men, and in the course of the chase it is said that the applicant fired at the two police officers, the suggestion being that that was with intent to murder.

In due course they were stopped and were arrested, and undoubtedly arrested for armed robbery. For that the applicant came before the court in New Orleans, and having pleaded guilty to attempted armed robbery, as opposed to the full offence, was sentenced to 18 years' imprisonment. That sentence was imposed on November 20, 1968. On December 22 the applicant succeeded in escaping from prison, and in due course made his way back to Manchester in this country. He was in fact arrested here in March and the matter came before the chief magistrate at Bow Street on May 2.

Extradition could not be sought for the offence of breaking prison, nor on the ground that the applicant was a convicted person, because the original offence of attempted armed robbery was not an extradition offence, nor was prison breaking. The offences on which extradition was sought were attempted murder of Mrs. Pita, attempted murder of a police officer called Nick, and another police officer called Roth, and in addition on a charge of what is called aggravated burglary. It is quite clear that all those charges which it is now sought to bring arise out of the same incident, if I may call it that, looking at it quite generally. The real basis of this application, and one must come in a moment to the details of how it is put, is that these charges have only been laid with a view to getting the applicant back within the jurisdiction of the United States, and charging him and sentencing him for an offence which is in essence the offence of breaking prison, which is not an extraditable offence.

The specific grounds are as follows: it is said in the first place that the applicant is not a person to whom article 1 of the treaty between this country and the United States applies in that at the time when he was arrested in this country he was under a provisional warrant dated March 8, 1969, and was not then an accused person. The foundation of this is to be found in the fact that at the time when the provisional warrant was issued, and at the time of his arrest here, he had in fact never been charged with these offences for which extradition is now sought. What had happened is by no means clear to me, but there is no doubt that whether as a result of a bargain or not, the district attorney in New Orleans decided that he would not prefer any other charges than the charge of armed robbery for which he was in fact convicted. What other charges he had in mind I do not know, except that it is said that he was "booked," as it was put originally, that is, I suppose, after arrest, for other charges, including these three charges of attempted murder. At any rate those were not proceeded with, and whether as the result of a bargain it matters not, the bargain suggested being, if you will plead guilty to armed robbery or attempted armed robbery we will not proceed with the other charges. It may be that there was no such bargain, that the prosecuting authorities quite rightly rejected the idea of bringing a multiplicity of charges and took the sensible course of choosing the gravest crime and proceeding in effect on that, the armed robbery, and that the bargain that took place, I know not, may have been merely at a

later stage to the effect that the prosecution would be prepared to accept a plea to the attempted armed robbery rather than to the full offence.

At any rate, for one reason or another, when he was in fact arrested in this country, these charges had not been preferred. Mr. Hazan refers the court to article 1 of the treaty in question, which was a treaty of December 22, 1931, which provides:

"The high contracting parties engage to deliver up to each other, under certain circumstances and conditions stated in the present treaty, those persons who, being accused or convicted of any of the crimes or offences enumerated in article 3, committed within the jurisdiction of the one party, shall be found within the territory of the other party."

Mr. Hazan says very attractively: when he was found here, which was on March 8 of this year, he was not an accused person. Accordingly he does not come within article 1, and these proceedings are not applicable. I am quite clear in my own mind that there is, as it were, no magic in the word "found"; provided he is an accused person and is in this country at the time when the requisition is made and the matter is dealt with, that is sufficient.

The second point which arises is really the main point, which can be put quite generally, as I have already said, on the basis that this conduct on the part of the United States authorities was oppressive. No steps, he said, would have been taken but for this escape, and that, indeed, the other charges were deliberately abandoned. This application is only made, and these charges are only brought because he has escaped and the escaping is not an extraditable offence.

Strong reliance is placed upon what was said by their Lordships in Connelly v. Director of Public Prosecutions [1964] A.C. 1254. It is unnecessary to refer in detail to this well-known case, but it was emphasised over and over again that the courts have an inherent jurisdiction to protect defendants against oppression and against any abuse by the prosecuting authorities of their functions. The only passage that it is just worth citing is that which occurs in the speech of Lord Devlin. He summarises his views, at p. 1359:

"The result of this will, I think, be as follows. As a general rule a judge should stay an indictment (that is, order that it remain on the file not to be proceeded with) when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried, or form or are a part of a series of offences of the same or a similar character as the offences charged in the previous indictment."

Pausing there, Mr. Hazan says that that exactly covers the circumstances of this case. But Lord Devlin goes on, at p. 1360:

"He will do this because as a general rule it is oppressive to an accused for the prosecution not to use rule 3 where it can properly be used. But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of the particular case,

exercise his discretion as to whether or not he applies the general rule."

Fully accepting what is said there, I for myself am by no means satisfied that the making of these charges and this requisition for extradition is oppressive within that principle. It may well be that it would be perfectly proper, having regard to the changed circumstances caused by the escape. Be that as it may, for my part I find it impossible to see how the magistrate dealing with this matter by way of committal proceedings can exercise that discretion, which is really the discretion of the High Court. It is not for him to exercise the discretion referred to by Lord Devlin, or to decide how the judge of trial will exercise that discretion. So far as this court is concerned, it seems to me that we have no jurisdiction on an application for habeas corpus to consider matters of that sort unless Parliament has given us power to do so. Matters of oppression are specifically dealt with in both the old Fugitive Offenders Act, 1881, and the more recent Act of 1967, which by section 8 (3) specifically provides a power which I understand the court would not have but for that provision, namely, that a court on an application for habeas corpus can consider matters of oppression.

In my judgment the magistrate, and in turn this court, on an application for habeas corpus, is only concerned to see whether there is a prima facie case, and is not concerned to investigate whether the court of trial might view the matter as oppressive.

The third point raised is really a very minor point. Mr. Hazan draws the court's attention to the fact that in an early affidavit in these proceedings Mr. Garrison, who was the district attorney of the parish of Orleans in the State of Louisiana, says:

"That if Arthur Atkinson should be extradited to the State of Louisiana, United States of America, his prosecution would be limited exclusively to those crimes for which his extradition is specifically requested," so far so good, and then it goes on "and to serve his term of 18 years in the Louisiana State Penitentiary at Angola, Louisiana, for the crime of attempted armed robbery, said sentence imposed on November 20, 1968."

Undoubtedly if that were to be done it would be a breach of the treaty between this country and the United States. For my part I am by no means satisfied that the United States has any such intention. It may well be that Mr. Garrison's attention has not been drawn to this matter, and for my part I proceed on the basis that a friendly state with whom we are under treaty obligations the one with the other will observe the conditions of the treaty. I have no reason to think, even if it is a matter which concerns this court, as opposed to the Home Secretary, that the United States intend to break the treaty. For these reasons I would dismiss these applications.

MELFORD STEVENSON J. I agree and do not wish to add anything.

BRIDGE J. I fully agree with Lord Parker C.J. that the discretion which Mr. Hazan invites this court to exercise is not one open either to the

committing magistrate or to this court in relation to proceedings under the Extradition Act, 1870. I would only add that for my part, even if we had such a discretion, I can see nothing in the conduct of the prosecuting authorities in the United States, and more particularly in the State of Louisiana, which could lead us to the conclusion that this was an oppressive course of conduct. In the circumstances which have arisen the resort to extradition for the offences with which the applicant is now charged is the only means whereby the prosecuting authorities can secure that the applicant is brought to justice and properly punished for his offences, if indeed he committed them. I entirely agree that this application should be dismissed.

The facts relating to the appeal by the United States Government against the refusal of the Chief Metropolitan Magistrate to extradite the appellant on one charge are set out in the case stated by the magistrate, which was as follows:

On May 2, 1969, the Chief Metropolitan Magistrate, having received an order from the Secretary of State, under section 7 of the Extradition Act, 1870, signifying to him that a requisition had been made by the diplomatic representative of the United States of America for the surrender of the respondent, Arthur Atkinson, accused of having committed, inter alia, the crime of burglary in the United States, and requiring him to proceed in conformity with the Extradition Acts, 1870 to 1935, proceeded to a hearing and determination.

The magistrate found the following facts: (a) Mrs. Alegria Pita, of 122 Sixteenth Street, New Orleans, Louisiana, instructed the Times-Picayune Publishing Co., New Orleans, Louisiana, to print the following advertisement in the classified section of the daily newspaper on October 5, 6 and 7, 1968: "Dinner Ring, 8 karat pure Opal surrounded by 2½ karat pure white diamonds, matching pendant. Make offer. 482-8155." On October 5, 1968, this advertisement appeared in the Times-Picayune paper. On October 5, 1968, at about 6 p.m., Mrs. Pita received a telephone call with regard to the advertisement and she gave her address as 122 Sixteenth Street, and the calling party advised her that he would be at her home some time between 8.30 p.m. and 9.30 p.m. that night. A Mr. Harold Neitzschman lives in the upstairs apartment at 122 Sixteenth Street, having adjoining doorbells and sharing a common corridor and doorway with Mrs. Pita. On October 5, 1968, at about 9 p.m., Mrs. Pita heard Mr. Neitzschman's doorbell ring and she overheard a man ask Mr. Neitzschman to direct him to 126 Sixteenth Street. After a few minutes, Mrs. Pita heard Mr. Neitzschman return to his apartment. Shortly after this, at approximately 9.20 p.m., Mrs. Pita heard a noise outside and went to investigate and at this time she saw the respondent [the appellant] and one Raymond Wagner. They asked Mrs. Pita if she knew where 126 Sixteenth Street was and she told them that there was no such address. At this time, Wagner said that they were from out of town and asked Mrs. Pita if he could use her bathroom and she replied affirmatively. Both Wagner and the respondent went into Mrs. Pita's apartment with her at

that time. Wagner went into the bathroom and the respondent stayed in the living room. When Wagner came from the bathroom he had a towel over his face and a gun in his hand and he said "This is a stick-up. All of you get into the bathroom." At this time the respondent pulled out a gun and said "Yes, all of you get into the bathroom except you," referring to Mrs. Pita. Then the respondent said "Where is the jewellery?" At this time Mrs. Pita followed her brother, sister-in-law and nephew into the hallway leading towards the bathroom and instructed them in Arabic to go through the kitchen out of the back door which they did. At this time the brother, sister-in-law and nephew crossed over the street. Mrs. Pita remained on the front lawn of her neighbour's house and they all yelled "Help! Help! Police!" The respondent and Wagner came out of the front door and at this time the respondent turned to where Mrs. Pita was standing, pointed his revolver and fired a shot at her. Wagner and the respondent ran to their car and fled.

(b) On October 22, 1968, an information was laid in the State of Louisiana charging the respondent with the armed robbery of Alegria Pita. The charge was based upon the facts set out in sub-paragraph (a) above. No other charge was filed on the respondent at that time. More particularly, no charge of burglary (or aggravated burglary) was filed or was before the court.

(c) On November 15, 1968, a charge of attempted armed robbery of Alegria Pita was substituted for the charge of armed robbery. The respondent entered a plea of guilty to the charge of attempted armed robbery and was sentenced to serve a term of 18 years' hard labour in the Louisiana State Penitentiary.

(d) On or about December 22 or 23, 1968, the respondent escaped from prison. The respondent had not served the sentence of the court and had received no parole or pardon.

(e) On March 9, 1969, the respondent was arrested in Manchester by Detective-Sergeant Barnes. Whilst travelling on the train to London, the respondent said to Detective-Sergeant Barnes "Look Mr. Barnes, I know I had a gun with me when we went to the old lady's but it didn't frighten her. We were supposed to get some jewellery, but we didn't."

(f) On March 14, 1969, an information was laid in the State of Louisiana charging the respondent with aggravated burglary of 122 Sixteenth Street, Lower Apt., New Orleans, where a person was present, namely Alegria Pita, with the intent to commit a theft therein, while armed with a dangerous weapon, namely a pistol. On March 14, 1969, a warrant was issued in the State of Louisiana for the arrest of the respondent on the charge of aggravated burglary. The charge was based on the facts set out in sub-paragraph (a) above.

(g) By article 64 of Title 14 of the Louisiana Criminal Code, armed robbery is defined as follows:

"Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation while armed with a dangerous weapon."

(h) By article 60 of Title 14 of the Louisiana Criminal Code, aggravated burglary is defined as follows:

"Aggravated burglary is the unauthorised entering of any inhabited dwelling or of any structure, watercraft or moveable where a person is present, with intent to commit a felony or any theft therein if the offender (1) is armed with a dangerous weapon, or (2) after entering arms himself with a dangerous weapon, or (3) commits a battery upon any person while in such place or in entering or leaving such place."

No evidence was produced before the magistrate to show that on the charge of attempted armed robery the respondent had been in peril, under the law of Louisiana, of being convicted of burglary (or aggravated burglary).

It was submitted on behalf of the respondent that the respondent was entitled to rely on the plea autrefois convict. It was submitted that the facts upon which the appellant sought to rely to support the charge of burglary (or aggravated burglary) were the same or substantially the same as those relied upon to support the conviction for attempted armed robbery; that the offence of attempted armed robbery was in this case in effect the same offence as that of burglary (or aggravated burglary); and that the appellant only sought an order of committal on a charge of burglary because attempted armed robbery was not an offence for which extradition could be granted under the treaty.

It was submitted on behalf of the Government of the United States that the respondent was not entitled to rely on the plea autrefois convict. It was submitted that the evidence necessary to support the charge of burglary (or aggravated burglary) would not have been sufficient to procure a legal conviction on the charge of attempted armed robbery; that the offence of burglary (or aggravated burglary) was an offence which was different in quality, with different factual and legal characteristics, from the offence of attempted armed robbery; that they were not the same offences or offences which were in effect the same or substantially the same; and that it was not material if the facts being examined on the charge of burglary were the same as those which had supported the charge of attempted armed robbery. The charge of armed robbery had alone been brought initially because it was the gravest of the charges which could have been brought and because it carried the greatest penalty. The reason why other charges had not been brought was in order to avoid a multiplicity of charges. It was submitted that the appellant's motives in bringing the charge of aggravated burglary were immaterial, and that if the appellant could bring itself within the requirements of the law it was entitled to an order of committal.

The magistrate was of the opinion that the facts relied upon to support the offence of burglary were substantially the same as those which related to the offence of attempted armed robbery, and that the offence of attempted armed robbery, in the circumstances set forth in the evidence, was in effect the same offence as that of aggravated burglary, upon which the appellant sought to prosecute the respondent. Accordingly he held that the plea of autrefois convict succeeded, and therefore refused to make an order committing the respondent to prison in respect of the charge of burglary.

The Government of the United States appealed, and the question for the opinion of the High Court was whether, in accepting a plea of autrefois

convict and in refusing to make an order committing the respondent on the charge of burglary, the magistrate came to a correct decision in law.

David Calcutt for the Government of the United States of America.

John Hazan Q.C. and Nicholas Freeman for the respondent (the appellant).

LORD PARKER C.J. This is an appeal by way of case stated from a decision of the Chief Metropolitan Magistrate on May 2, 1969, whereby he refused to make an order under section 10 of the Extradition Act, 1870, committing the respondent [the appellant] to prison with a view to his extradition to the United States of America for an alleged offence of aggravated burglary. The history of this matter and the facts giving rise to the extradition proceedings have already been dealt with by this court in an application by the respondent for a writ of habeas corpus. But it is, I think, convenient to summarise them in so far as they are relevant to the present proceedings. They are, indeed, fully set out in the case stated and are not in dispute.

Quite shortly, on October 5, 1968, a Mrs. Pita of New Orleans, in the State of Louisiana, caused an advertisement to appear in the local paper advertising certain jewellery. She had a telephone call that evening from someone, who arranged to come round later in the evening to see her. In due course the respondent and a man called Wagner came to her door and, on an excuse that Wagner wanted to go to the bathroom, they both came in. A time came when Wagner came out of the bathroom with a towel round his face, brandishing a firearm, and ordered Mrs. Pita's relations who were in the house to go into the bathroom. The respondent also produced a firearm and threatened Mrs. Pita. In fact Mrs. Pita and the others succeeded in getting out of the house, followed by the two men, and the respondent, it is said, fired his revolver at Mrs. Pita. As a result of that on October 22, 1968, information was preferred in the State of Louisiana charging the respondent with the armed robbery of Mrs. Pita. That was the only information laid at that stage.

On November 15, a plea of guilty to attempted armed robbery was accepted and he was sentenced to a term of 18 years' hard labour in the local penitentiary. On December 22 or 23, however, he succeeded in escaping from prison and made his way back to this country, where on March 9, 1969 he was arrested at Manchester. Neither the crime of attempted armed robbery nor the crime of prison breaking are extraditable offences, and it was no doubt for that reason that on March 14, 1969, an information was laid in the State of Louisiana charging the respondent, inter alia, with what is called aggravated burglary, and a warrant for his arrest was issued on the basis of which extradition proceedings were sought.

It is important to realise what the offences of armed robbery and aggravated robbery consist of under the law of Louisiana. Armed robbery is defined as

"The theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation while armed with a dangerous weapon."

Aggravated burglary is defined as

"The unauthorised entering of any inhabited dwelling ... where a person is present, with intent to commit a felony or any theft therein if the offender is armed with a dangerous weapon."

The magistrate expressed his opinion in this form:

"I was of the opinion that the facts relied upon to support the offence of burglary were substantially the same as those which related to the offence of attempted armed robbery, and that the offence of attempted armed robbery, in the circumstances set forth in the evidence, was in effect the same offence as that of aggravated burglary, upon which the appellant now sought to prosecute the respondent. I accordingly held that the plea of autrefois convict succeeded, and I therefore refused to make an order committing the respondent to prison in respect of the charge of burglary."

The question falling for the opinion of the court is whether, in accepting a plea of autrefois convict and in refusing to make an order committing the respondent on the charge of burglary, the magistrate came to a correct decision in law.

Before dealing with the point upon which the opinion of the court is sought, it is necessary to determine a preliminary objection which has been taken on behalf of the respondent that these proceedings by way of appeal are misconceived in that there is no power in the prosecution to appeal by way of case stated from such a refusal to commit, and no jurisdiction in the chief magistrate to state a case. It is, indeed, a novel point; no attempt to appeal by way of case stated ever having, as far as I know, been made in regard to a refusal to commit under the Extradition Act or, indeed, in regard to a refusal to commit by examining justices for an alleged offence committed in this country. At first sight indeed it seems surprising that in such proceedings an appeal by the prosecution by way of case stated should lie. Prior, at any rate, to 1952 it was, to say the least, doubtful whether it would lie, the only right of appeal being from a court of summary jurisdiction.

In this connection, it is to be observed that it was held in Boulter v. Kent Justices [1897] A.C. 556 that licensing justices were not a court of summary jurisdiction. By analogy it would appear that a magistrate conducting committal proceedings under the Extradition Act would likewise not be a court of summary jurisdiction.

However, in 1952 the Magistrates' Courts Act, 1952, was passed, under which the power to state a case is to be found in section 87 (1). It provides as follows:

"Any person who was a party to any proceedings before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved."

"Magistrates' court," which was an expression new in this field, was defined by section 124 (1) in these terms:

"In this Act the expression 'magistrates' court' means any justice or justices of the peace under any enactment or by virtue of his or their commission or under the common law."

Here the chief magistrate was clearly acting under an enactment, namely, the Extradition Act, 1870, and the words used in section 87 (1) "aggrieved by the ... order, determination or other proceeding of the court" are extremely wide, and would appear to cover a refusal, as in this case, to commit.

Moreover, in Jeffrey v. Evans [1964] 1 W.L.R. 505, this court held that, at any rate since 1952, an appeal lay by way of case stated from a decision of licensing justices, and that case was cited with approval by the Court of Appeal in Reg. v. East Riding of Yorkshire Quarter Sessions, Ex parte Newton [1968] 1 Q.B. 32 holding there that an appeal also lay to quarter sessions from licensing justices acting under the Public Health Acts.

Surprising, therefore, as it may at first sight seem, I think that such an appeal does lie, and accordingly I would reject the preliminary objection and hold that the chief magistrate had jurisdiction, as he himself must have thought, to state a case.

Accordingly I turn to the point raised for the opinion of this court. The chief magistrate, as I have already said, expressed his opinion in these terms, and I will read it again:

"I was of the opinion that the facts relied upon to support the offence of burglary were substantially the same as those which related to the offence of attempted armed robbery, and that the offence of attempted armed robbery, in the circumstances set forth in the evidence, was in effect the same offence as that of aggravated burglary, upon which the appellant now sought to prosecute the respondent. I accordingly held that the plea of autrefois convict succeeded."

In arriving at that opinion and that conclusion, the chief magistrate was undoubtedly seeking to apply the law as laid down in Connelly v. Director of Public Prosecutions [1964] A.C. 1254. In my judgment, however, he has not properly applied the true test there laid down. The true test is, I think, succinctly put by Lord Morris of Borth-y-Gest. He said, at p. 1309:

"It matters not that incidents and occasions being examined on the trial of the second indictment are precisely the same as those which were examined on the trial of the first. The court is concerned with charges of offences or crimes. The test is, therefore, whether such proof as is necessary to convict of the second offence would establish guilt of the first offence or of an offence for which on the first charge there could be a conviction. Applying to the present case the law as laid down, the question is whether proof that there was robbery with aggravation would support a charge of murder or manslaughter. It seems to me quite clear that it would not. The crimes are distinct. There can be robbery without killing. There can be killing without robbery. Evidence of robbery does not prove murder or manslaughter. Conviction of robbery cannot involve conviction of murder or manslaughter. Nor does an acquittal of murder or manslaughter

necessarily involve an acquittal of robbery. Nor on a charge of murder or manslaughter could a man be convicted of robbery. That the facts in the two trials have much in common is not a true test of the availability of the plea of autrefois acquit. Nor is it of itself relevant that two separate crimes were committed at the same time so that in recounting the one there may be mention of the other."

In other words as it seems to me, the question is not a question whether the actual facts examined on the trial of each of the offences are the same, but whether the facts necessary to support a conviction for each offence are the same.

To the same effect is Lord Hodson, and this is the only further passage I desire to quote. He said, at p. 1333:

"The two offences, murder or manslaughter, on the one hand, and armed robbery, on the other, are not the same, and the second charge could be proved without reference to the death of the murdered man who met his death on the occasion of the robbery. Even if the same evidence is given to prove separate offences it is well settled that whether or not the facts are the same in both trials is not the true test; the test is whether the acquittal on the first charge necessarily involved an acquittal on the second ..."

Here, as it seems to me, it is clear that there can be an attempted armed robbery without there being an aggravated burglary, and there can be an aggravated burglary without there being an attempted armed robbery. Indeed, to me the pleas of autrefois convict and autrefois acquit being pleas in bar which are decided before the evidence in the later case is known, the validity of the pleas depends upon the legal characteristics of the two offences in question, namely, whether the facts necessary to support a conviction in each case are the same, and do not depend on whether the actual facts thereafter given in evidence are the same. In the result, I would allow this appeal and send the case back with a direction to the magistrate to commit on the charge of armed burglary.

MELFORD STEVENSON J. I agree.

BRIDGE J. I also agree on both points of jurisdiction and autrefois convict, and I add only a short word on the second point out of respect to the chief magistrate from whom we are differing, and in deference to the argument of Mr. Hazan.

In his speech in Connelly's case [1964] A.C. 1254, Lord Morris of Borth-y-Gest examined very fully the authorities dealing with the principle of autrefois acquit and autrefois convict; he enunciates five propositions which he states are established by principle and authority. Mr. Hazan's argument, and no doubt the conclusion reached by the magistrate, were founded largely on the third and fourth of those propositions which are stated in these terms, at p. 1305:

"(3) that the same rule" - namely, that a man cannot be tried for a crime of which he has previously been convicted - "applies if the crime in respect of which he is being charged is in effect the same, or is substantially the same, as either the principal or a different crime

in respect of which he has been acquitted or could have been convicted or has been convicted; (4) that one test as to whether the rule applies is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second offence, would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which, on the indictment, the accused could have been found guilty;"

Taken in isolation and read out of their context, those two propositions might be understood as lending support to the argument of Mr. Hazan and the conclusion reached by the chief magistrate. They are, of course, clarified and explained by the later passages in the speech of Lord Morris himself, one of which has already been cited by Lord Parker C.J. and which I need not read again.

The whole matter seems to me the most succinctly put in a short passage from the speech of Lord Devlin, where he said, at pp. 1339-1340:

"For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that with which he is then charged. The word 'offence' embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law. Robbery is not in law the same offence as murder (or as manslaughter, of which the accused could also have been convicted on the first indictment) and so the doctrine does not apply in the present case. I would add one further comment. My noble and learned friend in his statement of the law, accepting what is suggested in some dicta in the authorities, extends the doctrine to cover offences which are in effect the same or substantially the same. I entirely agree with my noble and learned friend that these dicta refer to the legal characteristics of an offence and not to the facts on which it is based ..."

Applying the language of Lord Devlin mutatis mutandis to the facts of the present case, attempted armed robbery is not in law the same offence as aggravated burglary, and so the doctrine does not apply in the present case.

John Hazan Q.C. and Nicholas Freeman for the appellant. These are two appeals which the House is invited to hear together since they arise out of the same set of circumstances.

The first appeal is against the refusal of the Divisional Court to grant the appellant a writ of habeas corpus. The second appeal is against the decision of the Divisional Court allowing the appeal of the respondent government against the refusal of the Chief Metropolitan Magistrate to commit the appellant on the charge of aggravated burglary.

Under this treaty the only offences of attempt that are extraditable are attempted murder and attempted unlawful carnal knowledge and that prison breaking is not an extraditable offence.

If the decision of the Divisional Court be right it would follow that if a British subject were convicted and sentenced to a term of imprisonment by the courts of a foreign state for a contravention of its laws, and upon serving his sentence returned to the United Kingdom and thereupon the authorities of that state decided that the sentence that had been imposed was inadequate, they could take steps to have him returned to stand trial for another offence arising out of the same set of circumstances, and if the new charge was in respect of an extraditable offence neither the Bow Street magistrate nor the Divisional Court would have any option but to return him, and the offender's only remedy would be to make application to the Secretary of State. It might well be, however, that for political reasons the government of the day wishing to maintain good relations with the requisitioning government would deem it expedient to return the offender. This cannot be the law of England. It offends common sense and all notions of natural justice. The Extradition Act, 1870, unlike the Fugitive Offenders Act, 1881, has no provision enabling a court to refuse the return of an offender on the grounds that it would be "unjust or oppressive" so to do.

Reliance is placed on the following propositions which cover both appeals:

1. The appellant is not a person to whom article 1 of the treaty applies in that he was not accused or convicted of a crime enumerated in article 3 thereof when he was found within the territory of the United Kingdom.

2. It is unlawful to return a fugitive criminal under the provisions of the Extradition Act, 1870, to a foreign country for offences there charged against him and later refused by the prosecuting authority of that country when the fugitive has been convicted and sentenced in that country for a non-extraditable offence arising out of the same circumstances, the refused offences being reinstated as the only way of securing his return.

3. Alternatively, there is a discretion in the court which if properly exercised in the circumstances of this case would result in the extradition being refused.

4. No appeal lies at the instance of a foreign state in proceedings under the Extradition Act, 1870, by way of case stated to the Divisional Court of the Queen's Bench Division against the decision of the police magistrate discharging the fugitive criminal in respect of an extradition crime.

On 1, the position is that (i) the appellant has not been convicted of a crime enumerated in article 3; (ii) he was not accused of a crime enumerated in article 3 until March 14, 1969, because the original accusation had

been withdrawn or refused in October, 1968. March 14, 1969, however, was not the date when he was "found" but it was March 9, 1969, when he had been arrested on a provisional warrant, albeit it was defective. "Found" within the meaning of the treaty means "found by the apprehending officer," that is, it connotes being apprehended.

On 2, this proposition is entirely novel on the authorities for it would appear to be the first time that such a situation has arisen.

No plea in law avails because there has been no judicial determination and no question of autrefois acquit or of res judicata arises.

There is no authority directly in point. The nearest analogous case is Reg. v. Governor of Brixton Prison, Ex parte Caborn-Waterfield [1960] 2 Q.B. 498, where the question was raised but no opinion was expressed whether a court could go behind a foreign judgment and inquire whether it offends against English notions of substantial justice.

The whole circumstances here contravene English notions of natural justice and under section 9 the magistrate is enjoined to determine the case as though the fugitive were charged with an indictable offence committed in England. A police magistrate before whom a fugitive was brought in oppressive circumstances would refuse to return the offender on the grounds that it would be an abuse of the process of the court if the requisition is contrary to the rules of natural justice.

In domestic proceedings in England and in extradition proceedings it is the function of the magistrate to consider the evidence and if it raises a prima facie case against the offender it is his duty to commit: see Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556, 579, 585, 596. It is not the function of the superior courts on an appeal from the magistrate in extradition proceedings to retry the case but to see that the fugitive was lawfully detained by his gaoler, lawfully detained, that is, in every sense of those words.

The appellant escaped from prison and made his way to the United Kingdom. The appellant was serving a term of imprisonment for attempted armed robbery, which is not an extraditable offence under the treaty. Prison breaking is not an extraditable offence. This may well be the appellant's good fortune. If it is considered that persons in the position of the appellant should be extradited the proper course for the American authorities is to seek to have the treaty amended and not to abuse the terms of the present treaty.

It would be oppressive to return the appellant since (i) it would constitute a breach of the prosecuting authority's undertaking; (ii) if he were tried for attempted murder and aggravated burglary and acquitted on these charges the Louisiana authorities would be in the embarrassing position that he would have to be given the opportunity of returning to the United Kingdom; (iii) if he were convicted he would have to receive a sentence concurrent with or consecutive to the 18-years term of imprisonment which he was serving. If concurrent, it would mean, in effect, that the appellant was being sentenced for attempted armed robbery, which is not an extraditable offence and would be a method of circumventing the terms of the treaty. If consecutive, it would be consecutive to a sentence for a non-extraditable offence and he would in those circumstances, in effect, be sentenced for prison breaking.

On 3, if a prosecuting authority in a foreign country chooses not to prosecute an alleged offender in respect of certain of the charges laid against him and the offender is subsequently found in the United Kingdom, and the foreign power thereupon attempts to obtain the return of the offender to stand trial in respect of the other offences arising on the same facts, these circumstances are so similar to those arising under the doctrine of autrefois convict that, although no sentence had been passed in respect of them, the English court would refuse to return the offender for it lies within the inherent jurisdiction of the magistrate so to act. The only language on which the above submission can be based is that to be found in section 9 of the Act of 1870. Contrast the language of the Fugitive offenders Act, 1967, ss. 4 and 8 (3), which has specific safeguards written into the Act.

Although the crimes of attempted armed robbery and attempted murder have different ingredients the facts relating to both offences are here almost identical and therefore albeit the present case is not strictly one of autrefois convict it comes within the ambit of that doctrine as adumbrated in Connelly v. Director of Public Prosecutions [1964] A.C. 1254. See Reg. v. Riebold [1967] 1 W.L.R. 674 for an example of the application of Lord Devlin's observations (at p. 1359) in that case.

As a magistrate in committal proceedings exercises the same functions as a trial judge in respect of the evidence it follows that in extradition proceedings the magistrate under section 9 is the only judicial person who considers the evidence and therefore if it transpires that the prosecution propose to take a course, as here, which in English law would not be allowed but was allowable under the law of the foreign power seeking extradition then the magistrate should refuse to commit the offender.

On 4, if when a defendant is brought before an English court upon a summons or warrant the examining magistrate refuses to commit him for trial on a specific charge there are two expeditious courses open to the prosecution: (a) to include a specific charge in the indictment; or (b) to apply to a High Court judge for a voluntary bill.

Two questions arise on this issue: (1) Is the Bow Street magistrate in exercising his powers under the Extradition Act, 1870, a "magistrates' court" within the meaning of section 124 of the Magistrates' Court Act, 1952? (2) If the answer be yes, are the proceedings under the Extradition Act, 1870, within the ambit of section 87 of the Magistrates' Courts Act, 1952? This entails consideration of the expression "any proceedings" in that section. The short answer to the second question is that those words mean "any proceedings of English municipal law" and that they do not embrace the specific statutory built-in code provided in the Extradition Act. As to (1), before the passing of the Magistrates' Courts Act, 1952, there were two statutes which dealt with cases stated from magistrates: the Summary Jurisdiction Act, 1857, s. 2, and the Summary Jurisdiction Act, 1879, s. 33. By the former it was provided that after the determination by justices of any information or complaint which they had power to determine in a summary way either party could apply to the justices to state a case. The latter provided that any person aggrieved who desired to question "a conviction, order, determination or other

proceeding" of a court of summary jurisdiction on the ground that it was erroneous in point of law might apply for a stated case.

The relevant statutes prior to the Magistrates' Courts Act, 1952, used the expression "court of summary jurisdiction" but in that Act it was changed to "magistrates' court." Section 2 of the Act of 1857 and section 33 of the Act of 1879 between them embrace every final order of a court of summary jurisdiction. The extended definition of a court of summary jurisdiction contained in section 7 of the Summary Jurisdiction Act, 1884, is wide enough to include a magistrate hearing extradition proceedings but it is plain on the authorities that the power to state a case is confined to justices exercising summary jurisdiction as such and does not extend to committal proceedings: see Boulter v. Kent Justices [1897] A.C. 556; Reg. v. Keepers of Peace and Justices of County of London. (1890) 25 Q.B.D. 357; Stokes v. Mitcheson [1902] 1 K.B. 857; Foss v. Best [1906] 2 K.B. 105; Rex v. Newport (Salop) Justices, Ex parte Wright [1929] 2 K.B. 416 and Card v. Salmon [1953] 1 Q.B. 392.

Whereas section 124 of the Magistrates' Courts Act, 1952, provides that "any justice or justices of the peace acting under any enactment or by virtue of his or their commission or under the common law" come within the expression "magistrates' court" for the purposes of that Act, the Extradition Act, 1970, specifies a limited category of justices who can hear extradition matters. See also the Metropolitan Police Act, 1839, ss. 1 and 3.

In conjunction with section 124 of the Act of 1952 it is section 87 (1) which gives the right to a case stated. The present case was not a "proceeding" to which section 87 applies for that provision is confined to proceedings of English municipal law.

In the light of decisions of this House the duty of the superior court on the hearing of an application for a writ of habeas corpus in extradition proceedings has been limited to questions of jurisdiction, for example, whether the offence came within the particular treaty or whether the magistrate was right in coming to the conclusion that there was a case to answer. But if the decision of the Divisional Court here be right it removes the speed and efficacy, one of the main objects, of this type of proceeding and, furthermore, if it is possible for the defence as well as the prosecution to appeal by way of case stated practical difficulties concerning time arise. Thus, an application for a case to be stated has to be made within 14 days of the magistrate's decision, and unless the magistrate considers the application to be frivolous he will state a case. The other party has to be served and there is then a period of three months within which the appeal has to be brought.

In the case of the prosecution wishing to appeal, if the magistrate considers that the evidence does not justify the committal of the fugitive criminal, section 10 of the Act of 1870 provides for the discharge of the prisoner and there is no provision empowering the magistrate to keep him in prison pending the lodging of an appeal. Moreover even if there were a right to appeal by the extraditing power by way of case stated there is no machinery available for securing the return into custody of the fugitive in the event of such an appeal succeeding. This demonstrates the great administrative difficulties that would arise if the decision of the Divisional Court

on this issue be correct. It would be tantamount to introducing into the criminal law a form of interlocutory proceedings akin to those found in civil proceedings. The only right of appeal is that provided by section 11.

There have been two important decisions relating to the powers of magistrates' courts since the passing of the Magistrates' Courts Act, 1952: Jeffrey v. Evans [1964] 1 W L.R. 505 and Reg. v. East Riding of Yorkshire Quarter Sessions, Ex parte Newton [1968] 1 Q.B. 32. Even if those decisions be right in relation to English municipal law they do not derogate from the above submission on the Extradition Act.

As to section 3 (2) of the Act of 1870, the courts, and not merely the Executive, must take cognisance of this provision. There must be evidence before the magistrate that the law of the foreign states corresponds to that of English law or that there is an arrangement that applies to the case in question. It is too late now for the respondent government to adduce further evidence that it is not the intention of the Louisiana Government to require the appellant to serve the remainder of his 18 years' sentence if he is returned, for fresh evidence is only admissible which goes to the question of jurisdiction.

[Reference was also made to section 22 of the Extradition Act, 1870; and to Athanassiadis v. Government of Greece (Note), post, p. 282; Rex v. London Quarter Sessions, Ex p. Westminster Corporation [1951] 2 K.B. 508.]

David Calcutt and Jeremy Griggs for the respondent.

On March 14, 1969, it was the opinion of the Louisiana authorities that attempted armed robbery and prison breaking were offences that came within the terms of the treaty. On a fair reading of the documents in these proceedings there was a mistake in respect of the offences for which the appellant was convicted or accused. It is plain that there was a mistake contained in the warrant and also in respect of the offences which come within the treaty. Where on the documents it is stated that the appellant will be dealt with "according to law" and that proceedings were brought to "serve the ends of justice" these expressions are to be construed in the light of the facts known at the date of the documents. The authorities have since taken steps to rectify any error and their actions should not be taken as manifesting any intention to evade the terms of the treaty.

As to section 3 (2) of the Extradition Act, 1870: (i) where there is a reference to the expression "foreign state" the reference in the present connection is not to the law of Louisiana but to the law of the United States of America; (ii) the word "arrangement" is to be construed as "treaty."

On (i), there are several references to "state" in the Act: see ss. 2, 4, 5, 7, 11, 14, 19 and 25, and the Second Schedule. See also the Extradition Act, 1873, ss. 4 and 7. Having regard to section 5 of the Act of 1870 and the existence of the United States Extradition Order in Council (1935 S.I. No. 754) the provisions of section 3 (2) have been complied with.

On (ii), the word "arrangement" has no reference bo private arrangements but to the treaty made between the British Government and the foreign power in question. The material provisions of the present treaty are contained in articles 2 and 7 thereof: see in particular article 7 which concerns "the arrangement" referred to in section 3 (2) of the Act of 1870.

To summarise this part of the argument: having regard to the publication of the Order in Council the arrangement is deemed to comply with

the provisions of section 3 (2). See section 4 (2) and section 5. Alternatively, in view of article 7 of the treaty it must be taken that section 3 (2) has been complied with. For the relevant authorities see In re Arton (No. 1) [1896] 1 Q.B. 108, 112, 114; Reg. v. Governor of Brixton Prison, Ex parte Kolczynski [1955] 1 Q.B. 540 and Zacharia v. Republic of Cyprus [1963] A.C. 634.

If the above be rejected then reliance is placed on the affidavit of A. Edward Gottesman dated July 23, 1969, which states, inter alia, that by virtue of Article VI of the Constitution of the United States of America the judges in every state are bound to act in accordance with treaties made by the Federal Government.

The appellant has put forward four propositions.

[LORD REID intimated that their Lordships only desired bo hear argument on the issues of the existence of a discretion and the power to state a case.]

Discretion

It has been contended that there is an inherent discretion in the magistrate or in the Divisional Court and therefore in this House bo refuse to grant an order for extradition on the ground that it was sought for reasons that were unjust, oppressive or unfair.

The respondent concedes that under English law a trial court has a general inherent discretion to stop a prosecution which it regards as oppressive: Connelly v. Director of Public Prosecutions [1964] A.C. 1254, 1295, 1301, 1334, 1343, 1345, 1347, 1362. But if the appellant were tried in England for the offences of attempted murder and aggravated robbery the trial court would not in the present circumstances stop the case from going to the jury. All the references in Connelly on this issue are confined to the nature of the indictment, the prosecution's conduct of the case and the duties of the judge at the trial. It follows that there is no such overriding discretion in the magistrate as has been contended for.

It is only on the basis of a strict plea in bar that a defendant to extradition proceedings could prevent himself from being returned.

Where there is no evidence of the foreign law English law applies, and therefore unless evidence is brought before the magistrate that the foreign law in the circumstances entitles the prisoner to raise a plea in bar the magistrate has to rely on English law. Here there is no evidence in the case stated to suggest that a plea in bar would succeed.

In extradition proceedings the court has no power to apply the rules of natural justice. This proposition follows from the authorities, which contrast the provisions of the Fugitive Offenders Act, 1881, with those of the Extradition Act, 1870, and from the fact that the Extradition Act only comes into operation in consequence of a treaty made between the United Kingdom Government and the foreign government. To hold that there is such a power would amount to contravening the terms of the treaty. The Act and the treaty govern the return of criminals and set restrictions on the circumstances in which they may be returned. Those restrictions that were intended to be applicable are to be found in section 3 of the Act.

The suggestion that there is a general judicial discretion to refuse extradition when it would seem that the rules of natural justice have not

been complied with is akin to what Lord Goddard C.J. did in Reg. v. Governor of Brixton Prison, Ex parte Caborn-Waterfield [1960] 2 Q.B. 498 and which was disapproved of by this House in Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556.

At no time has the legislature considered it necessary to put in an Extradition Act or in Acts concerning extraditable offences any provision similar to section 10 of the Fugitive Offenders Act, 1881: see Extradition Act, 1870, Extradition Act, 1873, Slave Trade Act, 1873, Extradition Act, 1895, Extradition Act, 1906, Extradition Act, 1932, Counterfeit Currency Act, 1935, Tokyo Convention Act, 1967, Criminal Law Act, 1967, Theft Act, 1968.

Further, there has recently been enacted in 1967 a new Fugitive offenders Act, but to date Parliament has not deemed it necessary to enact a new Extradition Act containing any such discretion as has been contended for by the appellant. For references to the conferment of particular discretions in the Act of 1870, see sections 7, 8, 11 and 12 and 17 (2).

In conclusion, the present matter falls fairly and squarely within section 10 of the Act and reliance is placed on the following authorities: In re Arton (No. 1) [1896] 1 Q.B. 108; In re Galwey [1896] 1 Q.B. 230, 235, 236; Zacharia v. Republic of Cyprus [1963] A.C. 634, 665, 680; Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556, 579; Reg. v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192, 227, 251G-252, 259.

If the House is of the opinion that there is a discretion of the kind for which the appellant contends then it should not be exercised in the appellant's favour. It was part of the bargain with the appellant that if he agreed to plead guilty to attempted armed robbery and was prepared to serve any sentence of imprisonment passed on him that the other charges against him would be dropped. But the appellant escaped from prison, and therefore if the appellant cannot be extradited for the offence charged it is right in the circumstances that the other charges should be preferred to enable extradition to take place.

Power to state a case

On their plain terms sections 87 and 88 of the Magistrates' Courts Act, 1952, are wide enough to enable a state seeking extradition to appeal on a point of law by way of case stated. The United States Government is a "person" and an extradition application is a "proceeding" within the meaning of section 87 (1). Further, by virtue of section 124 (1) the expression "magistrates' court" includes proceedings before a magistrate under the Extradition Act, 1870.

Is a state a "party" to a proceeding? A prosecutor has been held to be a party to a proceeding for the purposes of a case stated: Stokes v. Mitcheson [1902] 1 K.B. 857. It follows that the foreign state is a party before the Bow Street Magistrate for the Extradition Act, 1870 (ss. 7 and 9), lays down an accusatorial system. The proceedings do not come before the magistrate unless an accusation is made; it is not an inquisitorial procedure. See the language of section 10: "In the case of a fugitive criminal accused of an extradition crime. ..." In Reg. v. Governor of Brixton Prison, Ex

parte Kolczyniski [1955] 1 Q.B. 540, 550, Lord Goddard C.J. in the Divisional Court commented adversely on the absence of the Polish Government in that case. In practice the foreign state has always been treated as party to the proceedings. It is plain from the terms of section 9 that what is contemplated will take place before the magistrate is a hearing as similar as possible to that of a person charged with an indictable offence on an ordinary committal for trial. Even if extradition proceedings can take place without the presence of the prosecutor, nevertheless if the foreign state chooses to intervene it may take over the proceedings, for in respect of any criminal proceedings relating to a municipal crime the two parties are the Crown and the accused.

[Reference was made to In re Guerin (1888) 58 L.J.M.C. 42.]

On the true construction of section 87 (1) of the Magistrates' Courts Act, 1952, the expression "proceeding" in the first limb of the subsection is intended to have the widest possible import whilst the phrase "or other proceeding" in the second limb is a sweeping-up provision and it follows, therefore, that section 87 (1) is wide enough in its terms to include proceedings taken before a magistrate under sections 9 and 10 of the Act of 1870 by way of extradition. The above contention is reinforced by the very wide language of section 124 of the Magistrates' Courts Act, 1952.

It is plain from section 26 of the Act of 1870 that all the magistrates who sit at Bow Street are qualified to hear extradition matters: see also the Extradition Act, 1895. There is no suggestion in the Acts of 1870 and 1895 that jurisdiction should be vested in one person or confined to one place: see section 16 of the former Act. The Act contemplates that proceedings are normally taken before a police magistrate, but in order that a warrant may be expeditiously obtained jurisdiction is extended to all justices of the peace, but it does not follow that because a justice of the peace is mentioned in section 8 (2) that a police magistrate is not a justice of the peace: see the form of warrant of committal appended to the Act of 1870; and the Metropolitan Police Act, 1829, s. 2; Metropolitan Police Courts Act, 1839, ss. 1, 2, 9 and 15; Indictable Offences Act, 1848, s. 31. Where it has been considered necessary to confer a special jurisdiction on, or to limit the jurisdiction of, metropolitan magistrates the legislature has expressly so provided: Pawnbrokers Act, 1872, s. 40; Pilotage Act, 1913, s. 28; Children and Young Persons Act, 1933, s. 25 (1), (8); Adoption Act, 1950, s. 41; Administration of Justice Act, 1964, s. 9 (3). Strong reliance is placed on section 124 of the Magistrates' Courts Act, 1952, read in the light of Part 1 of that Act. The Chief Metropolitan Magistrate hearing extradition proceedings is a "... justice ... of the peace acting under [an] enactment. ..."

It was said that if the magistrate was not satisfied that the evidence warranted committal and therefore discharged the fugitive great practical difficulties would arise if it became necessary to re-arrest the prisoner. A power to re-arrest is to be read into section 88 of the Act of 1952. It is to be observed that this is a difficulty which arises under the Act of 1952 as a whole and is not confined to extradition matters: see, e.g., section 13 (2). If a court dismisses the only information against the prisoner there is no power to hold him further.

The Magistrates' Courts Act, 1952, makes it plain beyond peradventure by the terms of sections 87, 88 and 124 thereof that a magistrate hearing extradition proceedings has the power to state a case on a point of law whereas before that Act the existence of that power may be said to be doubtful.

Since 1952 a magistrate derives his authority and power from the provisions of the Magistrates' Courts Act, 1952. For examples of the powers conferred on magistrates see sections 61, 62, 77, 78, 105, 106 which replace corresponding provisions in the Indictable offences Act, 1848, which was repealed. Further, section 122 of the Act of 1952 prescribes certain miscellaneous rules relating to practice and procedure which are applicable to extradition proceedings.

As to the relevant statutory provisions and authorities prior to 1952, it is conceded that section 2 of the Summary Jurisdiction Act, 1857, gave no right to an examining magistrate to state a case but a right was given to both parties in the circumstances there mentioned to apply for a case to be stated. Then by section 33 of the Summary Jurisdiction Act, 1879, it was provided that any person aggrieved who desired to question "a conviction, order, determination or other proceeding" of a court of summary jurisdiction on the ground that it was erroneous in point of law or was in excess of jurisdiction might apply to the court to state a special case. By section 50 of that Act a court of summary jurisdiction meant any justice or justices of the peace or other magistrate, by whatever name called, to whom jurisdiction was given by or who was or were authorised to act under the Summary Jurisdiction Acts or any of such Acts. Section 7 of the Summary Jurisdiction Act, 1884, clarified the definition of court of summary jurisdiction contained in section 50 of the Act of 1879 and the Interpretation Act, 1889, be it noted a consolidating statute, by section 13 (11) substituted the definition: "The expression 'court of summary jurisdiction' shall mean any justice or justices of the peace, or other magistrate, by whatever name called, to whom jurisdiction is given by, or who is authorised to act under, the Summary Jurisdiction Acts ... and whether acting under the Summary Jurisdiction Acts or any of them, or under any other Act. ..." The italicised words also occur in section 7 of the Act of 1884. The expression "any other Act" would appear wide enough to include examining magistrates.

Turning to the authorities, Fourth City Mutual Building Society v. East Ham (Churchwardens and Overseers) [1892] 1 Q.B. 661 shows that there is a right to state a case under "other Acts," but having regard to the decision in Reg. v. Glamorganshire Justices [1892] 1 Q.B. 621 it is doubtful whether there was a right of appeal by way of case stated under section 33 of the Summary Jurisdiction Act, 1879. Licensing justices, however, in refusing a licence were not making a conviction or order. Boulter v. Kent Justices [1897] A.C. 556 is the principal authority on which the appellant relies. The respondent has three submissions in respect of it: (i) The ratio decidendi is that an appeal from licensing justices to a court of quarter sessions is not an appeal from a conviction or order of a court of summary jurisdiction under section 31 of the Act of 1879. (ii) Lord Halsbury L.C. appears to have based the reason for his decision on the premise

that licensing justices were not a court. But it does not follow that thereby examining justices or a magistrate hearing an extradition matter are not a court. (iii) Indeed, Lord Halsbury seems to suggest that examining justices may be a court of summary jurisdiction. If that be right, then a magistrate hearing an extradition matter may likewise be a court of summary jurisdiction.

Foss v. Best [1906] 2 K.B. 105, 110 does not support the respondent's contention, but it is not part of the respondent's argument that if in 1906 a prosecutor was not a "party aggrieved" he would have been entitled to obtain a case stated, for in those circumstances he would not have brought himself within the terms of section 33 of the Act of 1879.

Card v. Salmon [1953] 1 Q.B. 392 was decided before the Act of 1952 came into force. In view of section 7 of the Act of 1884 and section 13 (11) of the Act of 1889 and the decisions in the East Ham case [1892] 1 Q.B. 661 and the Glamorganshire Justices case [1892] 1 Q.B. 621 Lord Goddard C.J.'s statement of the law on this question is too narrow.

The position existing immediately before the passing of the Act of 1952 may be summarised as follows: the matter was controlled by section 2 of the Act of 1857 and by section 33 of the Act of 1879 and the definition of "court of summary jurisdiction" contained in section 13 (11) of the Act of 1889.

Licensing justices were a court of summary jurisdiction for the purposes of section 33 of the Act of 1879 for the Pontypool case [1892] 1 Q.B. 621 had not been overruled. On the other hand, in Boulter v. Kent Justices [1897] A.C. 556 (a decision on section 31) there were strong dicta to the contrary.

A doubt existed whether examining justices had power to state a case. It is plain that Lord Goddard C.J. in Card v. Salmon [1953] 1 Q.B. 392 was of opinion that they had no such power since they do not come to a final decision. But this opinion is bo be set against that of Lord Halsbury L.C. in Boulter v. Kent Justices [1897] A.C. 556.

There was no indication in case law of what was the position in relation to extradition. It may be that a magistrate sitting as an examining magistrate in extradition proceedings was in a different position from that of examining justices.

The Magistrates' Courts Act, 1952, is expressed to be a consolidating statute: nevertheless the canon of construction applicable is that applicable to any other Act, namely, that it must be construed according to its plain terms, and if it appears that Parliament has changed the pre-existing law the courts must give effect to the change: see Food Controller v. Cork [1923] A.C. 647, 668 and H. v. H. [1966] 3 All E.R. 560, 566. A court is not entitled to peruse memoranda which were the basis for the provisions of a statute as an aid bo its construction.

There are two different judicial views of the expression "magistrates' court" as found in the Act of 1952. In Jeffrey v. Evans [1964] 1 W.L.R. 505 the Divisional Court was of the opinion that the expression "magistrates' court" as used in the Act is an entirely new legal concept whilst the Court of Appeal in Reg. v. East Riding of Yorkshire Quarter Sessions, Ex parte Newton [1968] 1 Q.B. 32 took the view that the expression was

to be equated with that of "court of summary jurisdiction." The view of the Divisional Court is to be preferred. The Interpretation Act, 1889, s. 13 (11) was not repealed and the expression "court of summary jurisdiction" continued to be used in statutes. Thus it is to be found in the Costs in Criminal Cases Act, 1952, which came into force on January 1, 1953. Further, the definition of "magistrates' court" given in section 17 of that Act is narrower than the definition of that expression given in section 124 of the Magistrates' Courts Act itself.

Section 87 (1) of the Magistrates' Courts Act, 1952, refers in both limbs of the subsection to a magistrates' court. Section 2 of the Summary Jurisdiction Act, 1857, related to summary proceedings and is markedly different in language from the first limb of section 87 (1) which is couched in the widest possible terms. The second limb of section 87 (1) is derived from the Act of 1879.

To the contention that the existence of a right of appeal by way of case stated would lead to delays and could lead to abuse of process the answer is that if the Act of 1952 gives such a right "per incuriam" its abrogation is solely a matter for Parliament. If there was abuse of the right doubtless Parliament would interfere as it did in 1694 to prevent abuse arising in relation to persons committed for trial applying for a writ of certiorari.

Section 87 (1) is plain in its terms and there is no warrant for reading into it the words "related to summary jurisdiction" immediately after the words "any proceeding" and "other proceeding" so as to limit the ambit of the subsection. Further, the expression "magistrates' court" in section 124 (1) cannot be limited to that of magistrates acting as a court of summary jurisdiction in view of sections 5 to 10 of the Act.

If it be held that the enlarged jurisdiction contended for was enacted "per incuriam" then it is for Parliament to amend the Act of 1952.

In Reg. v. East Riding of Yorkshire Quarter Sessions, Ex parte Newton [1968] 1 Q.B. 32, it was recognised that there is a right of appeal by way of case stated from the decision of licensing justices.

If a limitation is read into the language of section 87 (1) of the Act of 1952 thus confining its ambit to proceedings related to summary jurisdiction it would deprive licensing justices of the power to state a case. Further, there would be no power to state a case in those matters given to justices under section 10 of the Gaming Act, 1845, the Betting, Gaming and Lotteries Act, 1963, the Private Places Entertainments Act, 1967, the Countryside Act, 1968, and under the Public Health Acts.

If the decision in Reg. v. Pontypool Justices [1892] 1 Q.B. 621 be right it has been the law since 1884.

Under the Act of 1952 there is a general right to a case stated by way of appeal from both criminal and civil proceedings before justices.

The word "proceeding" in section 87 (1) is to be construed in the same way throughout the subsection for that word when it occurs on the second occasion in the first limb must bear the same meaning as it does when it first occurs and the use of the word in the second limb is plainly in the sense of the first occurrence of it in the first limb.

The Magistrates' Courts Act, 1952, taken as a whole, is a code which purports to set out the powers of, and the procedure to be followed before,

magistrates, comprehensively. Part V (save in so far as it provides to the contrary) is of general application and applies to the whole of the Act: contrast the language and scape of sections 83 and 87 respectively. Section 83 limits the right of appeal to quarter sessions to a person convicted: there is no general right of appeal. By contrast, under section 87 there is no limitation on the right of appeal to the High Court by way of case stated apart from the one important proviso there specified. Parliament there specifically avowed its intention of what matters were to be excluded from the scope of the section and, therefore, it is to be inferred that all other matters coming before magistrates are within its ambit. The proviso was new and placed certain restrictions not appertaining hitherto. Thus, its effect is to prevent any appeal by way of case stated under section 28 of the Pilotage Act, 1913, and section 4 of the Maintenance Orders (Facilities for Enforcement) Act, 1920.

As to the construction of a consolidating Act, see now Beswick v. Beswick [1968] A.C. 58, 79, 84, 104, 105, which reiterates the principle that whilst the presumption is that a consolidating Act is not intended to alter the law, the presumption must yield to plain words to the contrary.

As to whether a foreign state can be said to be "a party to proceedings," reliance is placed on the reasoning in the judgment of the Divisional Court in Burke v. Copper [1962] 1 W.L.R. 700, 704 in support of the respondent's contention.

Finally, even if it be held that the respondent is not "a party to any proceeding" nevertheless the respondent government is a "person ... aggrieved" within the meaning of section 87 (1). Reliance is placed on the judgment of Lord Parker C.J. (ante, p. 210A-B).

[Reference was also made to Reg. v. Lord Mayor of London (1867) L.R. 2 Q.B. 292; Ferens v. O'Brien (1883) 11 Q.B.D. 21.]

John Buzzard for the Governor of Brixton Prison.

[Lord Reid intimated that their Lordships desired only to hear argument on the question of the case stated.]

A case stated does not lie from the decision of examining magistrates. If it did lie it would greatly hamper the administration of the criminal law and would lead to enormous delays in the criminal process.

Before 1952 the decision in Boulter v. Kent Justices [1897] A.C. 556 was clear authority for the proposition that a "court of summary jurisdiction" as defined in section 13 (11) of the Interpretation Act, 1889, was confined to justices exercising summary jurisdiction whether criminal or civil. This was not obiter. The majority of the House decided the question at issue on the construction of section 13 (11) of the Act of 1889. Although section 31 of the Summary Jurisdiction Act, 1879, was in issue, section 33 of that Act is comparable and therefore the decision is applicable to both section 31 and section 33 and it is implicit that Reg. v. Pontypool Justices [1892] 1 Q.B. 621 was overruled.

Summary jurisdiction connotes finally determining a matter summarily whilst examining justices are sometimes described as justices conducting a preliminary investigation.

In 1933, by section 1 of the Summary Jurisdiction (Appeals) Act, 1933, a new section was substituted for section 31 of the Summary Jurisdiction

Act, 1879, the effect of which was to extend the limitation on the right of appeal imposed by section 31. But section 33 was left unaltered. Here was an opportunity for Parliament to change the law if it so desired.

It is perfectly plain that the definition of "magistrates' court" in the Magistrates' Courts Act, 1952, is far wider than the comparable definition of "court of summary jurisdiction" contained in section 13 (11) of the Interpretation Act, 1889. A magistrates' court can comprise a court of summary jurisdiction but not vice versa. But in support of the contention that a limited construction is to be placed on the word "proceeding" in section 87 (1) of the Act of 1952 reliance is placed on the judgment of Lord Goddard C.J. in Card v. Salmon [1953] 1 Q.B. 392, 394, 395. See also Pratt v. A. A. Sites Ltd. [1938] 2 All E.R. 371 where it was held that where justices decide that they have no jurisdiction to hear a case brought before them, no appeal lies by way of case stated.

It is highly relevant to observe that there is no reported decision before 1952 where a case stated from examining justices has been allowed to proceed.

In the alternative, assuming that it is doubtful whether the Act of 1952 confers the power contended for a perusal of the Lord Chancellor's Memorandum relating to the Magistrates' Courts Act, 1952, makes it perfectly plain that there was no intention of changing the existing statutory law and that no express provision was made for removing any doubt on the present question.

The provisions of the Interpretation Act, 1889, were not intended to alter the law as laid down respectively in the Summary Jurisdiction Acts, 1857 and 1884.

There must be some limitation placed upon the expression "other proceeding" in section 87 (1) of the Act of 1952. It must be construed ejusdem generis with "conviction, order, determination" and means "final decision."

Parliament cannot have intended that there should be a right to a case stated in committal proceedings. A magistrate hearing such proceedings might well have to rule on six points of law. It cannot have been envisaged that in those circumstances there could be six separate cases stated in respect of the six points.

The dismissal of a charge by a magistrate at a preliminary investigation on the ground of no case to answer does not amount to a final decision: see Archbold's Criminal Pleading, Evidence and Practice, 37th ed. (1969), art. 445.

An analysis of section 87 (1) confirms that the word "proceeding" when it first occurs means "litigation" and that the third time it appears it connotes "final determination."

Subsections (2) and (3) of section 87 support the above contention. In connection with section 87 (2), see section 10. This provision is quite inapplicable to examining justices. Subsection (4) exemplifies the fact that the Act is careful to provide against a conflict of jurisdiction. If the Lord Chancellor's Memorandum is looked at it will be seen that the reason for the insertion of the proviso to section 87 (1) was to alleviate any doubts on this score. Section 88 underlines the meaning of "other proceeding"

in section 87 (1); it is analogous to a "conviction, order, determination." See also section 89 (1) (b). So for a case to be stated from justices there must have been a final determination by them. The only question, therefore, is whether the House is constrained to hold that a decision to commit for trial is a "final determination." There are good grounds for holding to the contrary.

Until 1848 the sole method of appeal from proceedings tried summarily was by certiorari. That method worked because the record up to 1848 contained the evidence: see Rex v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128, 159, per Lord Sumner. Thereafter upon the passing of the Summary Jurisdiction Act, 1848, certiorari fell into disuse: see Rex v. Northumberland Compensation Tribunal, Ex parte Shaw [1951] 1 K.B. 711, 715, 716, per Lord Goddard C.J.

By the Summary Jurisdiction Act, 1857, Parliament provided a remedy by case stated comparable to that which had hitherto been given by certiorari before 1848. The note to the Act in Halsbury's Statutes, 2nd ed., Vol. 14, p. 817, does not state that it replaced any earlier statute. [Reference was made to section 10 of the Act of 1857.] This provision was no doubt introduced because on an appeal from quarter sessions a case had been used where necessary to supplement the record and explain the facts: see Halsbury's Laws of England, 3rd ed., Vol. 11 (1955), p. 133, note (h). Thereafter, with certain exceptions, the procedure by way of case stated replaced certiorari as a method of appeal from courts of summary jurisdiction.

That a case stated does not lie from the decision of examining justices is supported by two Irish cases which are authority for the proposition that certiorari will not lie from the decision of examining justices to commit for trial. Reliance is placed on the observations of O'Brien J. in Reg. v. Roscommon Justices [1894] 2 I.R. 158, 174. This decision was approved of by Palles C.B. in Rex v. Galway County Justices (1909) 43 I.L.T. 185.

It is open to this House to take the view so far as English law is concerned that a preliminary hearing before examining justices in a criminal matter is not one which leads to a final decision binding on the prosecutor. Strong reliance is placed on Lord Goddard C.J.'s observations in Card v. Salmon [1953] 1 Q.B. 392. The subsequent subsections of section 87 following subsection (1) and the subsequent sections of the Act of 1952 strongly support Lord Goddard's opinion.

The word "determination" connotes putting an end to proceedings. once a wide definition of "magistrates' court" is accepted, unless a restricted meaning is given to "proceeding" in section 87 (1) absurd results could follow. Theoretically a case stated could apply to the swearing-in of a special constable.

Further, even if in general a committing magistrate has power to state a case nevertheless this does not apply to a magistrate hearing an extradition matter in view of the language of section 9 of the Extradition Act, 1870. Section 9 is concerned with the manner in which the magistrate shall conduct the proceedings and a case stated is a quite inappropriate procedure for a party dissatisfied with the conduct of the hearing before the magistrate.

Finally, it is necessary to consider the definition of "magistrates'

court" in section 124 (1) of the Act of 1952, which must mean acting qua justice of the peace and not in some other capacity. A magistrate sitting pursuant to the powers conferred on him under the Extradition Act, 1870, is acting as a police magistrate who may or may not be a justice of the peace. See section 16 of the Act, for in Scotland the hearing may be before a sheriff-substitute, who is not a justice of the peace. Further, the Magistrates' Courts Act, 1952, does not extend to Scotland.

Calcutt in reply to Mr. Buzzard's argument. It was suggested that both the Pontypool Justices and Glamorganshire Justices cases [1892] 1 Q.B. 621 were overruled by the decision of this House in Boulter v. Kent Justices [1897] A.C. 556. But in Reg. v. East Riding of Yorkshire Quarter Sessions, Ex parte Newton [1968] 1 Q.B. 32, 52, Lord Denning M.R. held that there was a distinction to be drawn between section 31 and section 33 of the Summary Jurisdiction Act, 1833, and that Boulter v. Kent Justices depended entirely on the true application to it of section 31 and that that decision did not overrule the Pontypool Justices case [1892] 1 Q.B. 621, which was concerned with section 33.

As to the true interpretation of section 87 (1) of the Magistrates' Courts Act, 1952, the word "proceeding" is wide enough to cover extradition proceedings. The contrary argument is obliged to give the word different meanings in the same subsection. The crucial word for present purposes in section 87 (1) is the word "was." It is no part of the respondent's contentions that a prisoner can hold up proceedings by applying for a case stated. That is the importance of the tense distinctions between the use of "was" and "is." A person cannot be aggrieved until the magistrate has determined the matter before him. "Was" in the subsection is referable to any matter before the magistrate which he has concluded and once therefore a matter lies in the past then the first limb of section 87 (1) operates and the prisoner "was a party to" that "proceeding" before the magistrate.

In so far as domestic proceedings are concerned, once the magistrate has discharged his functions under the Act of 1952 either by committing or discharging the defendant either party may test his decision by a case stated to the High Court.

It was then said that the Act of 1952 did not apply in view of section 9 of the Extradition Act, 1870, but section 9 is wide enough in its terms to comprehend the procedural law from time to time in force. In any event the respondent does not have to rely on section 9. The present question can be disposed of simply under sections 87 and 124 of the Magistrates' Courts Act, 1952. A foreign state is a party to any proceeding in a magistrates' court.

As to section 16 of the Extradition Act, 1870, it is a false point if it is suggested that because an extradition matter might come before a sheriff-substitute in Scotland therefore extradition proceedings brought in England do not come within the ambit of the Magistrates' Courts Act, 1952.

Hazan Q.C. in reply. In view or the affidavit tendered by the respondent the argument based on section 3 (2) of the Extradition Act, 1870, is not pursued.

Habeas corpus

In re Arton (No. 1) [1896] 1 Q.B. 108; Reg. v. Governor of Brixton Prison, Ex parte Kolczynski [1955] 1 Q.B. 540 and Zacharia v. Republic of Cyprus [1963] A.C. 634 were all decided before Connelly v. Director of Public Prosecutions [1964] A.C. 1254.

The issue here is whether there is any relief by way of habeas corpus where the principles of natural justice have been offended not by reason of the contemplated hardship to the offender but because of the very nature of the proceedings themselves.

It was said that the appellant could only succeed if he could rely on a strict plea in bar. This depends on the ambit of the decision in Connelly.

The House is invited bo adopt the course taken by Barry J. in Reg. v. Riebold [1967] 1 W.L.R. 674. Alternatively, this is one of those instances where it is necessary to graft words onto a statute in order to serve the ends of natural justice.

It was said that if there be any discretion it is to be found in the Act of 1870. It is. Reliance is placed on sections 9 and 10. But was also said that in any event the executive has a residuary discretion. But the question whether proceedings taken against a fugitive are consonant with English notions of natural justice is pre-eminently a judicial and not a political matter. The judges have for centuries been the guardians of the law and justice.

If only a strict plea in bar be available then a very strange situation arises for it would mean that if an English subject, convicted and sentenced abroad in circumstances where the foreign judge took another offence into consideration, returned to this country on serving his sentence and thereupon the foreign state sought his extradition for that other offence, the English courts would be in no position to intervene to prevent his return.

Reliance is placed on Connelly [1964] A.C. 1254, 1296, 1301, 1334, 1347, 1361, where this House was unanimous that the court had an inherent right to prevent an abuse of its own process.

The nature of the relief sought here would only arise in a very limited set of circumstances: (a) the present type of case; (b) where the foreign state sought extradition in respect of an offence taken into consideration; (c) where the conviction abroad contravened English notions of natural justice, for example, the defendant convicted without being heard or forced into making a confession; (d) where a strict plea in bar just fails.

In extradition proceedings the relief must be exercised by the magistrate because he is the only person in the position so to do. The Divisional Court have erred in interpreting Connelly's case as though the discretion can only be exercised by the High Court. In that case of course it was the High Court because it was a trial on indictment, but see per Lord Pearce ([1964] A.C. 1254, 1361) who refers to "the court" having power to protect its process from abuse; that must mean the "appropriate court."

The whole doctrine of autrefois acquit is manifestly a part of the concept of natural justice. There is nothing in the speeches in Zacharia v. Republic of Cyprus [1963] A.C. 634 which is conclusive against the above submission.

Finally, if this appellant were to be returned it would be an extradition without precedent in English law. A limit has to be drawn somewhere and it would be quite wrong to return him in the circumstances pertaining here.

Case stated

Before 1952 it was clear law that a case stated would not lie from committal proceedings. Certainly this was so since Card v. Salmon [1953] 1 Q.B. 392. For a case stated to lie there must have been a final determination and committal proceedings do not come within that category.

The Magistrates' Courts Act, 1952, is a consolidating statute. A consolidating statute is deemed not to change the law unless it evinces an express intention so to do. The preamble to the Act of 1952 does not envisage such a revolutionary change as that for which the respondent contends, section 124 being in much the same terms as section 13 (11) of the Interpretation Act, 1889, in relation to the Summary Jurisdiction Acts, 1879 and 1884.

The maxim generalia specialibus non derogant applies, that is, a general later law does not abrogate an earlier special one by mere implication: Seward v. "Vera Cruz" (1884) 10 App.Cas. 59, 68; Kutner v. Phillips [1891] 2 Q.B. 267, 271, 276; Reg. v. Hopkins [1893] 1 Q.B. 621, 626; Barker v. Edger [1898] A.C. 748, 754, and Lancashire Asylums Board v. Manchester Corporation [1900] 1 Q.B. 458, 468, 470, 471.

The absence of any mention in the Lord Chancellor's Memorandum relating to this matter is an indication that no such charge as that contended for by the respondent was contemplated.

The word "proceeding" in section 87 (1) of the Act of 1952 must be read ejusdem generis with the words "conviction, order, determination" and must mean on the authorities a final determination.

Mr. Buzzard's argument is adopted.

The House is invited to give a construction to the Act of 1952 which will avoid a manifest difficulty. If the respondent's construction were to be adopted it would lead to grave dislocation or even chaos in the administration of the criminal law. A period of three months is allowed for stating a case after application therefor: see rule 63, Magistrates' Courts Rules, 1952 (1952 S.I. No. 2190).

Finally, as regards extradition proceedings, there are indications in the Extradition Act, 1870, and in the Magistrates' Courts Act, 1952, that the latter Act does not apply to extradition: (i) because a police magistrate does not sit to hear an extradition matter qua his office as a justice of the peace. It so happens that most judicial persons hearing such matters are justices of the peace, but not all, e.g., sheriff-substitutes. (ii) By virtue of section 16 of the Act of 1870 and section 124 of the Act of 1952 there could easily arise a situation under section 16 where persons were clearly entitled to exercise their powers as police magistrates but who were not sitting as a magistrates' court. (iii) A police magistrate has all the power he requires to conduct extradition proceedings under the Extradition Act, 1870, without recourse to the machinery under the Magistrates' Courts Act, 1952.

July 30, 1969. Their Lordships, for reasons to be given later, dismissed the first appeal and allowed the second appeal.

November 5, 1969. LORD REID. My Lords, on October 5, 1968, the appellant, who carried a revolver, and another man went to the home of a Mrs. Pita in New Orleans. They pretended they had come in answer to an advertisement and gained entry. Then they attempted robbery, but some occupants of the house had escaped and summoned the police. Then some shots were fired and the appellant and the other man fled. Then some more shots were fired before they were arrested. They were then charged with armed robbery and attempted murder of Mrs. Pita and of two policemen.

On October 8, the appellant obtained legal aid. Apparently it is customary in Louisiana for defence counsel to meet the prosecutor at that stage. Such a meeting took place. It is not very clear just what happened but the result was that the charge of armed robbery was reduced to attempted armed robbery. The appellant agreed to plead guilty to that charge, and the charges of attempted murder were dropped. It is alleged by the appellant that this amounted to a bargain or an undertaking by the prosecutor that if the appellant pleaded guilty to attempted armed robbery no further action would be taken on the charges of attempted murder. Some days later the appellant appeared in court. He pleaded guilty to attempted armed robbery and was sentenced to 18 years' imprisonment.

On or about December 22, 1968, the appellant escaped from prison. Somehow he made his way to England. The police in Louisiana discovered this and sent a request for extradition to Scotland Yard. Unfortunately the information which was sent was inaccurate and a warrant was obtained at Bow Street on the ground that the appellant had been convicted of robbery with violence and attempted murder. He was arrested on this warrant in Manchester on March 9, 1969. Then it was realised that he had only been convicted of attempted armed robbery and that that is not an extradition crime. No offence of attempt is extradictable except attempted murder and, I think, one other. So the authorities in Louisiana revived the charges of attempted murder and in addition a charge of aggravated burglary was preferred.

When the case came before the Chief Metropolitan Magistrate on May 2, he had to decide whether to commit the appellant to prison on the charges of attempted murder and of aggravated burglary. He decided to commit on the former charges but not on the latter. Then the respondent asked for a stated case on the matter of aggravated burglary. On appeals to the Divisional Court by way of habeas corpus on the attempted murder charges and by way of the stated case on the aggravated burglary that court dismissed the application for a writ of habeas corpus and remitted to the magistrate with a direction to commit on the charge of aggravated burglary. The latter question raises quite separate issues and I shall first consider the matter of the charges of attempted murder. But before doing so there is another matter to which I must advert.

It is clear from affidavits sworn by, inter alios, the Governor of the State of Louisiana that, originally at least, the main object of seeking extradition was to make the appellant serve the remainder of his 18

years' sentence for attempted armed robbery. But prison-breaking is not an extradition crime, nor is attempted armed robbery, and article 7 of the Extradition Treaty with the United States of 1931 (Cmd. 4928) provides:

"A person surrendered can in no case be kept in custody or be brought to trial in the territories of the High Contracting Party to whom the surrender has been made for any other crime or offence, or on account of any other matters, than those for which the extradition shall have taken place, until he has been restored, or has had an opportunity of returning, to the territories of the High Contracting Party by whom he has been surrendered.

"This stipulation does not apply to crimes or offences committed after the extradition."

This is in line with section 3 (2) of the Extradition Act, 1870. As your Lordships expressed some concern about this, the respondent produced an affidavit of a well-qualified American lawyer to the effect that by Article VI of the Constitution of the United States the judges in every state are bound to act in accordance with treaties made by the United States. So, if the appellant is surrendered, it would be contrary to the law of Louisiana to require the appellant to serve the remainder of his 18 years' sentence until he has had an opportunity of returning to the United Kingdom.

The appellant 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 April 25. 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.

The appellant argues that this was established, if it had been in doubt, by the decision of this House in Connelly v. Director of Public Prosecutions

[1964] A.C. 1254 H.L.(E.). That was a case where there were indictments for murder and robbery arising out of the same facts. In accordance with the practice which then existed the murder charge was tried alone. The accused was convicted but the conviction was quashed by reason of misdirection. Then the accused was tried and convicted on the robbery charge and this House dismissed his appeal. There was discussion about the right of a trial judge to stop a case from proceeding but I do not find it 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.

Whatever may be the proper interpretation of the speeches in Connelly's case [1964] A.C. 1254 with regard to the extent of the power of a trial judge to stop a case, I cannot regard this case as any authority for the proposition that magistrates have power to refuse to commit an accused for trial on the ground that it would be unjust or oppressive to require him to be tried. And that proposition has no support in practice or in principle. In my view once a magistrate decides that there is sufficient evidence to justify committal he must commit the accused for trial. And there is no provision in the 1870 Act giving a magistrate any wider power in extradition proceedings than he has when he is committing for trial in England.

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 1870 Act 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 1870 Act 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. Some reference was made to the Fugitive offenders Act, 1881, where the provisions are very different from those of the Extradition Act, 1870. But it would not be right to use the later Act as an aid to the construction of the earlier Act. I would therefore dismiss the appeal as regards habeas corpus.

The question whether the appellant should also be committed on the charge of aggravated burglary depends on whether the magistrate's decision not to commit on this charge was final or whether he had any power to state a case. If he had no such power then the Divisional Court had no jurisdiction to deal with the case which he in fact stated, and its decision is therefore a nullity.

Whether or not the magistrate had power to state a case depends on the proper interpretation of sections 87 and 124 of the Magistrates' Courts Act, 1952. If one confines one's attention to the terms of that Act then it may well be that going by the natural or ordinary meaning of its terms a case could be stated in any committal proceedings. But the 1952 Act was a consolidation Act. And if before 1952 there was no power to state a case in such proceedings then there is a very strong presumption that a consolidating Act does not alter the law. It is true that the 1952 Act was passed under the procedure enacted by the Consolidation of Enactments (Procedure) Act, 1949. But that Act only permits "corrections and minor improvements" and the definition of this phrase in section 2 would certainly not include the inclusion of a new power to state a case. I need not repeat what was said about consolidation Acts in Beswick v. Beswick [1968] A.C. 58.

It is therefore necessary to examine the history of the power to state a case in summary proceedings. After the use of certiorari became impracticable there appears to have been no general right of appeal of any kind until 1857. Then section 2 of the Summary Jurisdiction Act, 1857, provided that, after the determination by justices of any information or complaint which they had power to determine in a summary way, either party could apply to the justices to state a case for the opinion of one of the superior courts of law. That clearly had no application to committal proceedings. Then by section 33 of the Summary Jurisdiction Act, 1879, it was provided that any person aggrieved who desired to question a conviction, order, determination or other proceeding of a court of summary jurisdiction on the ground that it was erroneous in point of law might apply for a stated case. Then the definition of a court of summary jurisdiction was widened by section 7 of the Summary Jurisdiction Act, 1884. And finally section 13 (11) of the Interpretation Act, 1889, provided:

"The expression 'court of summary jurisdiction' shall mean any justice or justices of the peace, or other magistrate, by whatever name called, to whom jurisdiction is given by, or who is authorised to act under, the Summary Jurisdiction Acts, whether in England, Wales or Ireland, and whether acting under the Summary Jurisdiction Acts or any of them, or under any other Act, or by virtue of his commission, or under the common law."

That definition might seem wide enough to include committal proceedings but there appears to be nothing in any authority or textbook, at least until 1952, to indicate that any prosecutor or accused ever applied or was ever thought to have any right to apply for a stated case in committal proceedings. The reason for that may, perhaps, be found in the speeches in this House in Boulter v. Kent justices [1897] A.C. 556. That was a case dealing with licensing justices but Lord Herschell (with whom Lord Watson and Lord Shand concurred) and Lord Davey expressed opinions which would negative any right to have a case stated in committal proceedings. Lord Herschell, at p. 571, thought that the right arose "in all matters pertaining to the exercise of summary jurisdiction by magistrates" and Lord Davey, at p. 573, held that the relevant section did "not apply to justices except when sitting as a court and exercising summary jurisdiction." In Foss v. Best [1906] 2 K.B. 105, 110, Channell J. expressed the opinion that

"justices who are taking depositions for the purpose of committing a prisoner for trial have not this power to state a case, as they are not exercising summary jurisdiction."

In Card v. Salmon [1953] 1 Q.B. 392 the accused elected to be tried by jury and then asked the justices to state a case. Lord Goddard C.J. said that examining justices had no power to state a case. The reason he gave was that they do not come to any final decision but only come to a conclusion whether or not a prima facie case has been made out to send for trial, and that they were sitting under the Indictable Offences Act, 1848, and not under the Summary Jurisdiction Act, 1879.

I am of opinion that before the Magistrates' Courts Act, 1952, was enacted it was settled law that examining justices had no power to state a case. So the question is whether the relevant parts of the 1952 Act are reasonably capable of a construction which accords with the law as it was when that Act was passed. If they are, then that Construction must be adopted: if they are not, then it must be held that Parliament has altered the law per incuriam.

Section 124 of the Act of 1952 defines "magistrates' court" as meaning "any justice or justices of the peace acting under any enactment or by virtue of his or their commission or under the common law" and examining justices are dealt with in section 4 et seq. So, when the chief magistrate decided not to commit the appellant on the charge of aggravated burglary, he was certainly sitting as a magistrates' court. The difficulty arises under section 87 of the 1952 Act. Subsection (1) provides:

"Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other

proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved."

This subsection is obviously intended to combine the provisions of the Acts of 1857 and 1879 to which I have already referred. But the drafting is not ideal. The word "proceeding" where it first occurs must mean litigation or proceedings - something to which there are parties. But where it is next used it must mean adjudication or decision and where it is used for the third time it must also have that meaning. So the case for the respondents is that they were parties to the litigation in the magistrates' court and are therefore entitled to question the decision of the court by applying for a stated case. If this subsection is to have a limited meaning it must be because "conviction, order, determination or other proceeding" has a limited meaning. I think it must be limited at least to this extent: it frequently happens that a court has to make a decision in the course of the proceedings - e.g., whether certain evidence is admissible - but it cannot have been intended that the proceedings should be held up while a case on such a matter is stated and determined by the superior court. So application for a case can only be made when the litigation or "proceeding" is at an end. But, as Lord Goddard pointed out in Card v. Salmon [1953] 1 Q.B. 392, 396, examining magistrates do not come to a final decision. If they decide to commit for trial the case goes on, and if they decide not to commit that is not a ground for a plea of autrefois acquit.

I find this to be a question of difficulty. But in order to avoid having to hold that this Consolidating Act did something which Parliament cannot possibly have intended to do, I think that it is possible to hold that section 87 has no application to committal proceedings because such proceedings do not lead to any final decision. I would therefore hold that the chief magistrate had no power to state a case, that the Divisional Court had no jurisdiction to deal with the case which he stated, and that therefore the order of that court on the case stated must be set aside and the order of the chief magistrate restored.

LORD MACDERMOTT. My Lords, I have had the advantage of reading the opinion of my noble and learned friend, Lord Reid, with which I agree.

LORD MORRIS OF BORTH-Y-GEST. My Lords, on May 2, 1969, the Chief Metropolitan Stipendiary Magistrate committed the appellant to the custody of the Governor of Brixton Prison to be kept "until he is thence delivered" pursuant to the provisions of the Extradition Act, 1870. The appellant was so committed on the ground of his being accused of three crimes of attempted murder. The charges were that on October 5, 1968, in the Parish of Orleans in the State of Louisiana he attempted to murder (1) Edward Nick, (2) William Roth and (3) Alegria Pita. The appellant by motion applied to the High Court for an order that a writ of habeas corpus should be issued. His application was dismissed. He was granted leave to appeal to this House.

The chief magistrate had a further charge against the appellant to

consider. That was a charge of burglary. A requisition had been made to the Secretary of State by the diplomatic representative of the United States of America for the surrender of the appellant in respect of that charge. The chief magistrate refused to make an order committing the appellant to prison in respect of that charge. He so refused because he held that a plea of autrefois convict succeeded. He stated a case for the opinion of the High Court as to whether his decision was correct in law. The High Court held that it was not and remitted the case to the chief magistrate with a direction to commit the appellant on the further charge of aggravated burglary.

On behalf of the appellant it is no longer contended that the decision of the chief magistrate was correct. It is acknowledged that the plea of autrefois convict ought not to have succeeded. But it has been contended that the erroneous decision of the chief magistrate could not be corrected. It is contended that he had no power to state a case and, accordingly, that the High Court had no power to entertain it. In rejecting this contention the High Court certified that a point of law of general public importance was involved and granted leave to appeal. The certified point was thus expressed:

"Whether, in proceedings for the return of a fugitive criminal under the Extradition Act, 1870, an appeal lies at the instance of the foreign state by way of case stated to the Divisional Court of the Queen's Bench Division against the decision of the police magistrate discharging the said criminal in respect of any extradition crime adjudicated upon in the said proceedings."

In the present case if the appeal now made in respect of the habeas corpus proceedings is unsuccessful the practical question will be whether the appellant is to be committed on three charges or on four. The question of legal importance, however, is whether if a foreign state asks for committal on one charge and if the magistrate by an admitted error of law refuses to commit, the foreign state is powerless to ask for correction of the error by means of the procedure of a case stated.

Quite separate considerations arise in regard to the habeas corpus proceedings. Stated generally, it is urged that the chief magistrate had a discretion as to whether to commit on the three charges of attempted murder and that in the special circumstances of the case he should have declined to commit.

In the initial stages in the extradition proceedings there were undoubtedly certain wrong assumptions and certain mistakes. It was erroneously represented to one of the magistrates at Bow Street that the appellant had been convicted of robbery with violence and of attempted murder. He had not. It was on that basis that the magistrate on March 8, 1969, signed a warrant for the arrest of the appellant. His arrest took place the following day. Not only had he not at that date been convicted as above stated but the informations in Louisiana and the warrants there for the arrest of the appellant on the three charges of attempted murder and the charge of aggravated burglary had not then been laid or granted. They were only dated March 14, 1969. Thereafter (on March 17, 1969),

the charges of attempted murder were preferred against the appellant when he appeared at Bow Street.

The conviction of the appellant in Louisiana had been of attempted robbery with violence. To that crime he had pleaded guilty on November 15, 1968. On November 20, he was sentenced to serve a term of 18 years' hard labour. On December 22, 1968, he escaped from prison.

The documents show that when on April 2, 1969, the district attorney of the parish of Orleans requested the Governor of the State of Louisiana to issue a requisition to the American Secretary of State for the apprehension and rendition of the appellant it was on the basis of his conviction of the crime of attempted armed robbery and so that he should stand his trial on the three charges of attempted murder, and on the charge of aggravated burglary, and on the charge of escaping from custody. There was a deposition that if the appellant were extradited his prosecution would be limited exclusively to those crimes but further that he would have to serve the term of 18 years.

At that stage there was misapprehension. The appellant could not be extradited on the basis of his conviction of attempted robbery with violence. It was not an extraditable crime. Nor was escape an extraditable offence. Furthermore, by reason of the operation of article 7 of the Treaty (and see section 3 (2) of the Extradition Act, 1870), the appellant could not after extradition be made to serve the 18 years.

When the misapprehensions were removed there was a correction and the district attorney deposed on April 22, 1969, that if the appellant were extradited his prosecution would be limited to the three charges of attempted murder and the charge of aggravated burglary. In a document of April 25, 1969, the Governor of the State of Louisiana has stated clearly that if extradited the appellant will only be held in custody or be tried or be punished for the crimes for which, by treaty, extradition could be granted. Furthermore, the order of the Secretary of State in England (dated April 25, 1969) to the chief magistrate recites a requisition for the surrender of the appellant on the charges of attempted murder and burglary. Accordingly, it was made clear before and at the date when the chief magistrate made his order (i.e., on May 2, 1969), that the treaty terms were being and would be honoured.

It was contended that under article 1 of the Extradition Treaty dated December 22, 1931 (between His Majesty in respect of the United Kingdom and the President of the United States of America), the obligation was only to deliver those persons who, being accused or convicted of any extraditable crime or offence should "be found within the territory of the other Party." It was contended that it was when the appellant was arrested (which was on March 9, 1969), that he was "found" within the United Kingdom and that at such date he had neither been accused nor convicted of any extraditable crime or offence. While it is correct that on March 9, he had not been accused of the offences for which extradition is sought he had been so accused before the date when, after several appearances, the magistrate made his order (May 2, 1969), and at such date the appellant was certainly "found" within the territory.

A much more arguable contention related to the events in the month

of November, 1968. The appellant (together with another man), was arrested in Louisiana on October 6, 1968, in respect of the events that had taken place on October 5. The arrest register records that the arrest was for armed robbery and that shots were fired during the ensuing chase. The three charges of attempted murder were "booked." But the armed robbery charge was considered to be the gravest charge. It carried the severest penalty. For that reason the district attorney decided to proceed on that charge and not on the charges of attempted murder: that was apparently in accordance with policy and practice: the decision was apparently made in order to avoid filing multiple charges. The appellant was given legal aid. There was a preliminary hearing on November 6: the hearing was to be on November 15. What is alleged by the appellant is that a meeting took place between him and his lawyer and the assistant district attorney and that he was told that if he would enter a plea of guilty to one charge of attempted armed robbery then the assistant district attorney would drop all the other charges and so save the State the cost of five trials. It is clear that at the hearing on November 15 the State did amend the bill of information to one of attempted armed robbery and that the appellant and also his co-accused withdrew their former pleas of not guilty and entered pleas of guilty. The accused were remanded for sentence until November 20, and on that date each one was sentenced to 18 years' hard labour.

What the appellant contends, therefore, is that the prosecution in effect agreed that nothing more would be heard of the other charges if the appellant decided to plead guilty to attempted armed robbery. It is contended that in the circumstances the English court should decline to make an order which could lead (subject always to the decision of the Home Secretary) to extradition in respect of those other charges.

If the appellant was extradited the court in Louisiana would doubtless investigate the facts relating to any discussions that took place when the plea of guilty to attempted armed robbery was accepted and would consider any effect or significance that they might have in relation to the charges now made.

Had the appellant not escaped doubtless nothing more would in fact ever have been heard of the other charges. It does seem also to be reasonably certain that if the conviction of the appellant had been, as was originally thought, of a crime which, under the treaty, warranted extradition, the charges now preferred would never have been revived or brought forward. So, also, if escaping had been an offence for which there could be extradition and if, as was originally thought, the appellant on being extradited could be made to serve his sentence, it seems probable that the authorities in Louisiana would have been content to receive back the appellant and not to prefer the charges of attempted murder and aggravated burglary.

Though the situation is unusual and has perplexing features, I consider that pursuant to section 10 of the Extradition Act, 1870, the learned magistrate was correct in deciding to commit the appellant once he had decided in the manner directed by the section that the evidence in regard to the charges was sufficient to warrant committal. In regard to the

existence of or the exercise of a judicial discretion in this country I do not wish to add to what I said in Connelly v. Director of Public Prosecutions [1964] A.C. 1254. There is, however, a complete discretion in extradition cases in the Secretary of State and it will be for him to decide whether in all the circumstances the appellant should or should not be surrendered.

For these reasons I would dismiss the appeal relating to the application for a writ of habeas corpus.

The remaining part of the appeal raises a short but highly technical point. If pursuant to treaty one high contracting power has engaged to deliver up to another power someone who is accused of an extraditable offence and if, owing to an error of law, the police magistrate declines to commit, is the foreign state unable to appeal by way of case stated? There would seem to be a most lamentable gap in our system if this is so. If a treaty obligation is only not being honoured by reason of a mistake of law it would be regrettable if the procedure calculated to correct mistakes of law is not available.

By section 2 of the Summary Jurisdiction Act, 1857, there was a right to apply for a case stated on a point of law after the hearing and determination by a justice or by justices of the peace of any "information or complaint" which he or they had power to determine in a summary way. Then by section 33 of the Summary Jurisdiction Act, 1879, it was provided that any person aggrieved who desired to question "a conviction, order, determination or other proceeding" of a court of summary jurisdiction on the ground that it was erroneous in point of law or was in excess of jurisdiction might apply to the court to state a special case. By section 50 of that Act a court of summary jurisdiction meant any justice or justices of the peace or other magistrate, by whatever name called, to whom jurisdiction was given by or who was or were authorised to act under the Summary Jurisdiction Acts or any of such Acts. Then by section 7 of the Summary Jurisdiction Act, 1884, it was enacted as follows:

"Whereas by section 50 of the Summary Jurisdiction Act, 1879, it is enacted that the expression 'court of summary jurisdiction' shall in that Act and any future Act mean 'any justice or justices of the peace or other magistrate by whatever name called to whom jurisdiction is given by or who is or are authorised to act under the Summary Jurisdiction Acts or any of such Acts.' And whereas doubts have arisen as to whether the said section extends to such justice, justices, or magistrate when acting under some Act other than the Summary Jurisdiction Acts, and it is expedient to remove such doubts: Be it therefore enacted as follows: It is hereby declared that the above recited definition of court of summary jurisdiction in section 50 of the Summary Jurisdiction Act, 1879, includes such justice, justices, or magistrate as therein mentioned, whether acting under the Summary Jurisdiction Acts, or any of them, or under any other Act, or by virtue of his or their commission or by the common law."

By section 13 (11) of the Interpretation Act, 1889 (a consolidating Act) the following was the substituted definition:

"The expression 'court of summary jurisdiction' shall mean any

justice or justices of the peace, or other magistrate, by whatever name called, to whom jurisdiction is given by, or who is authorised to act under, the Summary Jurisdiction Acts, whether in England, Wales, or Ireland, and whether acting under the Summary Jurisdiction Acts or any of them, or under any other Act, or by virtue of his commission, or under the common law."

My Lords, I can imagine no words more clear or more comprehensive. If they were applied to the present case it seems to me that the chief magistrate was a justice of the peace or other magistrate and that he was one to whom jurisdiction was given by or who was authorised to act under the Summary Jurisdiction Acts, and that he was acting under the Extradition Act, 1870 (which comes within the words "any other Act"), and that he made a determination. In my view, the Government of the United States were aggrieved by it and desired to question it. I have referred first to the now superseded Acts of 1879 and 1884 because the Act now in force (the Magistrates' Courts Act, 1952), is a consolidating Act. If sections 87 and 124 of that Act are applied to the present case the relevant words are, in my view, equally and abundantly clear. I can see no reason why a government which fails in an extradition application should not be regarded as a person aggrieved. Alternatively a government is a party within section 87 of the Act of 1952.

Why, then, is it contended that these various comprehensive words are of no application here? Reliance is placed upon some observations in Boulter v. Kent Justices [1897] A.C. 556. Boulter, as an objector, appeared at licensing sessions and opposed the renewal of a licence. Justices refused to renew it. On appeal to quarter sessions, where Boulter did not appear, the licence was renewed. Boulter was ordered to pay the costs of the appeal. The only question that arose was whether there was jurisdiction to make such an order as to costs and whether the appeal was made under and was regulated by section 31 of the Summary Jurisdiction Act, 1879. Under that section there was a power to make an order as to costs

"Where any person is authorised by this Act or by any future Act to appeal from the conviction or order of a court of summary jurisdiction to a court of general or quarter sessions. ..."

This House allowed an appeal from the Court of Appeal which court had affirmed a decision of the Queen's Bench Division discharging a rule for a certiorari to quash the order as to costs. It may be that decision could have been based on a conclusion that there was no "conviction or order" which made section 31 applicable but consideration was also given to the question whether licensing justices came within the description of a court of summary jurisdiction. Though no question as to a case stated arose and though it was section 31 and not section 33 that was being considered observations were made in regard to section 50 of the Act of 1879 and section 7 of the Act of 1884. It is to be observed that the words in section 31 were the words "conviction or order," whereas the right to apply under section 33 for a case stated was given to a person aggrieved who desired to question "a conviction, order, determination or

other proceeding." Prefacing his observations by saying that it was not necessary to decide the point, Lord Herschell expressed the view, at p. 571, that the enactments defining a court of summary jurisdiction ought to be construed as meaning that a justice is only a court of summary jurisdiction within the meaning of the Act of 1879 (or any other law relating to summary jurisdiction) in matters pertaining to the exercise of summary jurisdiction. Lord Davey expressed the view, at p. 573, that the word "acting" in section 7 of the Act of 1884 should be given the restricted meaning of "exercising summary jurisdiction." He further expressed the view that the words in section 13 (11) of the Interpretation Act, 1889, should be construed as applying only to justices when exercising summary jurisdiction.

From this it was contended that there cannot be a case stated unless a justice or a "court of summary jurisdiction" is exercising summary jurisdiction or is dealing with a matter summarily or is engaged in some proceeding which is of a final character or which leads to a final decision. The position of magistrates acting summarily was contrasted with the position of magistrates when acting as committing magistrates.

It may be acknowledged that it would be unlikely that a request would today be made to committing (or examining) magistrates to state a case. In practice there would be no need for one. All that such magistrates are deciding is that there is a case for trial. If they so decide - trial is likely soon to follow. All questions can then be decided. Apart from questions relating to guilt or innocence, there may be questions relating to the admissibility of evidence and questions arising on a plea in bar. If committing magistrates decline to commit, then those who consider that there are valid reasons for prosecuting are not without means of procedure which can easily be followed. I doubt, however. whether it is correct to say that committing magistrates have no "power" to state a case (see Card v. Salmon [1953] 1 Q.B. 392). If committing magistrates decide that the evidence in a case is sufficient to warrant a committal for trial, I can see no reason why that is not a "determination." The legislation does not have the expression "final determination." But if the word "final" is read in, then it seems to me that the decision of the magistrates on the issue before them, i.e., whether there is sufficient evidence to warrant a committal, is a final decision in the sense that it is their definite and final conclusion having operative effect.

Extradition procedure is something special and it is not precisely comparable with and it cannot be equated with purely domestic procedure. It is procedure relating to "fugitive criminals." They may be persons who have already been convicted or they may be persons who are accused. The procedure is designed to assist foreign states. When a fugitive criminal is brought before the police magistrate the magistrate must hear the case in the same manner (and he has 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. But though the magistrate has those powers he is certainly not acting as a committing magistrate in England. Thus, committing magistrates in England are not called upon to deal with persons who have already been convicted. If the magistrate is dealing with a person who is accused of a crime and if he hears evidence

which according to English law would justify committal for trial he does not commit for trial in England: he commits the person to prison and thereafter, subject only to the discretion and decision of the Secretary of State, the accused person is sent out of the jurisdiction and is surrendered to a foreign state. The accused is told that he may apply for a writ of habeas corpus. Matters which, if the proceedings had been committal proceedings in England, would have been dealt with at the trial can therefore be dealt with in the habeas corpus proceedings. Such matters would not after committal proceedings in England be dealt with by habeas corpus proceedings.

If, as in the present case, some point of law is raised and if by reason of a wrong ruling upon it a person is released, is the foreign state powerless to ask the court to correct the error? If the foreign state seeks to start again, an application for a warrant for the arrest of the released man would surely be met by the answer that the competent court had given its decision.

Even if the limitations expressed in Boulter v. Kent Justices [1897] A.C. 556 are introduced and if what is being looked for is some proceeding having a final character or involving some final determination, then the decision of the magistrate would be a decision in such a proceeding. It would mark the conclusion of the special and somewhat limited extradition proceedings. Subject only to habeas corpus proceedings and case stated proceedings, final decision would have been given on the legal matters arising within the jurisdiction and it would have been given by the legal authority and the only legal authority specially designated to deal with them. It seems to me, therefore, that any attempted equation of the position of the police magistrate with the position of committing magistrates dealing with an accused person in England breaks down. No one can correct the erroneous decision in the present case unless there can be a case stated.

It is said that in some cases there might be difficulty in re-arresting someone who, as decided in case stated proceedings, ought not to have been released. This consideration, even if it has any practical validity, cannot affect the question whether there is jurisdiction to state a case.

The contentions advanced on behalf of the appellant illustrate a difficulty that may arise if a word that is not in an Act of Parliament is read into it. The difficulty is that the word that is introduced may itself need definition. It is said in the present case that the word "final" must be introduced and that a decision (or determination) must be a final one before a case stated can be requested, and it is said that where magistrates deal with a matter in a summary way they reach a final decision but that they do not do so when acting as investigating or committing magistrates. But in either case magistrates come to a decision when they have finished their task. If they are dealing with a case summarily they reach a decision: so far as they are concerned it is final: but it may not in another sense be final because there may be an appeal which may result in the reversal of their decision. So their decision will not have been final. Indeed, the proviso to section 87 (1) of the Magistrates' Courts Act, 1952, shows that if a decision is really final there cannot be a case stated. The proviso is:

"that a person shall not make an application under this section in

respect of a decision against which he has a right of appeal to the High Court or which by virtue of any enactment passed after December 31, 1879, is final."

If magistrates act as examining magistrates and if they decide that there is evidence which warrants a committal for trial, then they will have concluded their task and they will have come to a final decision. They will finally have decided the only issue which it was for them to determine. The ultimate or final decision in the case (i.e., as to guilt or innocence) would not ex hypothesi have been an issue for them at all.

It seems to me, therefore, that the function of the police magistrate in extradition proceedings cannot be regarded as being either that of deciding a case itself in a summary way or that of deciding whether a case should go forward for trial within the jurisdiction. But his function does involve reaching a decision which, subject only to any appeal procedure, will finally determine either in relation to a convicted person or in relation to an accused person (who may or may not be a British subject) all the legal matters affecting the question whether such person is or is not to be sent out of the jurisdiction for trial or detention in another country. It is true that in the case of an accused person there is no final decision as to guilt. But no such final decision is a requisite in the extradition proceedings. In regard, however, to the legal matters which are involved in extradition proceedings the police magistrate is the person who is designated to deal with them: he deals with them summarily and he reaches a decision which, subject only to the discretion of the Secretary of State and to whatever appeal procedure there is, will finally determine whether a person is to be released or is to be handed over to a foreign state. If an error of law leads to a decision adverse to the person concerned there can be correction in habeas corpus proceedings. As such proceedings are available there would be no need to ask for a stated case. If an error of law leads to a decision adverse to a foreign state, then, in my view, the magistrate has a discretion in a proper case to do what on request the magistrate did in this instance, i.e., to state a case.

In my view, the Divisional Court came to a correct conclusion in both appeals. I would dismiss the appeals.

LORD GUEST. My Lords, the incidents out of which these appeals arise occurred on October 5, 1968. On that date there took place what can only be described as an armed hold-up in the house of Mrs. Alegria Pita in New Orleans, Louisiana, U.S.A. The appellant, who is a British subject, and his accomplice, named Wagner, entered Mrs. Pita's house upon some pretext. His accomplice, having made some excuse to go to the bathroom, while the appellant remained in the room, emerged from the bathroom armed with a revolver with which he threatened Mrs. Pita and her family, demanding her jewellery. The occupants of the house, including Mrs. Pita, escaped through a back entrance. They were pursued into the streets by these two robbers who fired shots at Mrs. Pita and at two police officers who were summoned. The appellant, along with his accomplice, was subsequently arrested for armed robbery. Three charges of attempted murder, one against Mrs. Pita and one against each of the

police officers were preferred. The events following the arrest are not very clear but it would appear from the documents that the charge of armed robbery was proceeded with, while the three charges of attempted murder were "refused." The appellant alleges that a bargain was made between the district attorney and his attorney whereby on his agreeing to plead guilty to attempted robbery the charges of attempted murder would be dropped. Upon the view which I take of the case it is unnecessary to resolve these doubts. Subsequently a plea of guilty to attempted armed robbery was accepted by the district attorney and the appellant was sentenced by the Criminal District Court of New Orleans to serve a period of 18 years' imprisonment with hard labour.

On December 22, 1968, the appellant escaped and ultimately made his way to Manchester, England, where on March 9, 1969, he was arrested upon a provisional warrant under the Extradition Acts, issued by the chief magistrate at Bow Street, on the ground that he had been convicted of robbery with violence and attempted murder. It was subsequently discovered by the American authorities that this was not accurate. On March 17, 1969, he was charged in New Orleans with three offences of attempted murder and one of aggravated burglary, all of which are extraditable offences.

At this stage it is necessary to deal separately with the charge of aggravated burglary and the charges of attempted murder. Upon a hearing before the chief magistrate at Bow Street on May 2, 1969, the charge of aggravated burglary was dismissed upon a plea of autrefois convict and a case which was stated from the chief magistrate to the Divisional Court succeeded.

In regard to the three charges of attempted murder the chief magistrate committed the appellant to Brixton Prison. Subsequent proceedings for habeas corpus failed before the Divisional Court and it is against this decision that the appellant appeals to your Lordships' House.

I propose, first, to take the decision regarding the stated case upon the aggravated burglary charge. I am content to express my agreement with the majority of your Lordships that an appeal by stated case upon extradition proceedings is incompetent for the reasons given. It is unnecessary for me to say more than that, before the Magistrates' Courts Act, 1952, it was never suggested that an appeal by way of stated case under the Extradition Act, 1870, was competent and as the Magistrates' Court Act, 1952, was a consolidating Act I am not prepared to accept that the terms of section 87 of that Act have created such a novel departure in the law of procedure. The respondent, in order to succeed upon this branch of the case, would have to show that before 1952 in committal proceedings generally there must have been a right of appeal by stated case for the prosecution or for the defence upon a question of law. This departure, which is entirely novel, would create practical difficulties which I am not prepared to assume were intended by the consolidation Act of 1952. Mr. Buzzard, as amicus curiae, gave the complete answer, in my view, when he said that a stated case was only competent for a final determination. This conclusion was reached by an examination of section 87 where "other proceeding" had to be interpreted ejusdem generis with the words "conviction, order or determination" which are final proceedings. As

the decision of committing magistrates or the chief magistrate under the Extradition Acts was not a final determination, a stated case was incompetent.

I pass now to the appeal on the habeas corpus proceedings. Mr. Hazan, for the appellant, takes three points on this appeal. In the first place, he argues that as the appellant had not in fact been convicted on the charges upon which he was originally arrested in this country, namely, robbery with violence and attempted murder, article 1 of the treaty does not apply. This article provides for the handing over by one contracting party to the other of persons accused or convicted of extraditable offences when "found" within the territory of the other state. Mr. Hazan argued that in order to comply with article 1 of the treaty the person must be accused of an extraditable offence when he is arrested in this country. I am not, however, prepared to give such a restrictive meaning to the word "found" in article 1. It means no more, in my view, than that the person in question must be present in this country when the extraditable charges are preferred. Upon this interpretation of article 1 the appellant was present in this country when the charges of attempted murder were preferred in New Orleans. These are extraditable offences. This argument, in my view, therefore fails.

The second point which Mr. Hazan takes relates to section 3 (2) of the Extradition Act, 1870, which is in the following terms:

"A fugitive criminal shall not be surrendered to a foreign state unless provision is made by the law of that state, or by arrangement, that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to Her Majesty's dominions, be detained or tried in that foreign state for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded;"

He contends that as the State of Louisiana is not a party to the treaty, there is no evidence that according to Louisiana law the appellant shall not, until he has been returned to this country, be detained or tried in the United States of America for any offence committed by him prior to his extradition other than those upon which he has been extradited: and that there is no evidence of any "arrangement" made between the United Kingdom and the State of Louisiana to that effect. This matter, however, has now been cleared up completely by the affidavit sworn by Mr. Gottesman, a member of the Bar of the State of New York and the United States Federal District Court for the Southern District of New York, and produced for your Lordships without objection by the appellant. The affiant states his opinion that under Article VI of the Constitution of the United States of America the judges of every state are bound to act in accordance with the treaties made under the authority of the United States of America. Paragraph 5 of the affidavit is in the following terms:

"In my opinion it would be unlawful for a judge in Louisiana to cause a person surrendered in accordance with the provisions of the said treaty to be kept in custody or brought to trial in the State of Louisiana (or elsewhere in the United States of America) for any other crime or offence, or on account of any other matters, than those

for which the extradition shall have taken place, until the person had been restored or had had an opportunity of returning to the territories of the United Kingdom, except for crimes or offences committed after the extradition."

The terms of sections 2 and 4 of the Extradition Act, 1870, make it plain that the treaty is the "arrangement," and article 7 of the treaty complies with section 3 (2). In these circumstances it is clear that the terms of section 3 (2) are therefore satisfied.

The third and final point taken by Mr. Hazan is more difficult. He concedes that it was not open to his client to plead before the magistrate either autrefois convict or autrefois acquit in regard to the charges of attempted murder upon which extradition is sought because there was no judicial determination in New Orleans on these charges. He contends, however, that in the whole circumstances it would be oppressive and contrary to natural justice for the appellant to be returned to America upon these charges and that the magistrate had a discretion to refuse to do so. He says that it is clear that as the appellant cannot in fact be extradited for the offences of prison breaking or attempted armed robbery, the American authorities, upon the pretext of charging him with attempted murder, seek his return in order that he may serve the rest of his 18 years' sentence. No charge of bad faith is made against the American authorities which, indeed, would be a question for the Home Secretary to consider and not the courts (In re Arton (No. 1) [1896] 1 Q.B. 108). But Mr. Hazan stoutly maintains that this discretion to dismiss the charges can and should be exercised by the magistrate in his favour. He admits that there is no authority in point. The argument proceeds on these lines. A committal order without proper jurisdiction is unlawful. In order that the court may have jurisdiction the offender must be "lawfully detained by his gaoler": see Viscount Radcliffe in Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556, 585.

Section 9 of the Extradition Act, 1870, provides that the police magistrate shall have the same jurisdiction and powers as near as may be as if the prisoner were brought before him charged with an indictable offence according to the law of England. By section 10, in the case of a fugitive criminal accused of an extraditable offence, if such evidence is produced as (subject to the provisions of the 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. The test is, therefore, the committal of a prisoner in England by the magistrates for trial.

The foundation of Mr. Hazan's argument is contained in certain passages from Connelly v. Director of Public Prosecutions [1964] A.C. 1254 which state that a residual discretion rests in the High Court to stay proceedings where the preferring of certain charges would be oppressive and contrary to the principles of natural justice. But there is no case in which this discretion has been stated to exist in magistrates at committal proceedings. If such a plea is available it can be raised at the subsequent stages when the case reaches the High Court. It has never been suggested that examining magistrates

at committal proceedings have a discretion to refuse to commit on the ground that although a prima facie case has been made out, to do so would be contrary to natural justice. I therefore consider that the magistrate under the Extradition Act, 1870, has no discretion to refuse to commit on the ground that the principles of natural justice have not been complied with.

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.

In the whole circumstances my view is that the appellant's appeal must fail upon this point also.

I would therefore dismiss the appeal upon the habeas corpus proceedings and sustain the appeal in regard to the stated case by the chief magistrate upon the aggravated burglary charge and restore the decision of the chief magistrate.

LORD UPJOHN. My Lords, there are two appeals before your Lordships, both by the appellant Atkinson. The first appeal is against the order of the Divisional Court refusing his application for a writ of habeas corpus from the order of the Chief Metropolitan Magistrate who committed him to prison under section 10 of the Extradition Act, 1870. The ground of his appeal is that the committing magistrate has a discretion whether or not to commit if it would be wrong and oppressive to do so, and on the facts of this case he submits that it would be wrong to commit. I can see no such discretion vested in the committing magistrate; the words of section 10 are mandatory and I see no room for the implication in the Act of such a discretion. But, my Lords, I do not pursue this matter further for I have had an opportunity of reading the speech of my noble and learned friend, Lord Reid, on this appeal with which I entirely agree and to which I cannot usefully add anything. For the reasons he gives I would dismiss the first appeal.

My Lords, the second appeal by the appellant arises in these circumstances. In addition to the grounds for extradition relevant to the first appeal the Government of the United States also sought the extradition of the appellant upon the charge of aggravated burglary. The Chief Metropolitan Magistrate held that upon this charge the appellant's plea in bar of autrefois convict succeeded, but at the request of the United States Government he stated a case for the opinion of the Divisional Court. It is common ground that the magistrate was wrong to uphold the plea in bar and the Divisional Court on the case stated remitted the matter to the magistrate with a direction to commit. The whole question is whether the magistrate had power to state a case on committal proceedings. If he had not, then

the Divisional Court had no power to remit and the magistrate's order, though wrong, must stand.

One thing seems clear, that if committing magistrates in general have no power to state a case for committal, there is nothing in the Extradition Act which gives the magistrate acting under that Act any special power to do so.

The question, therefore, which is of some general importance, is whether magistrates when committing an accused for trial have power to state a case.

This depends upon section 87 of the Magistrates' Courts Act, 1952 (the Act). The majority of your Lordships disagree with the judgment of the Divisional Court in this respect and are of opinion that there is no such power, and I agree, but in these circumstances I propose to add some observations of my own upon the matter.

Section 87 of the Act is in these terms:

"(1) Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved. ..."

I can omit the proviso to this subsection.

"(2) An application under the preceding subsection shall be made within fourteen days after the day on which the decision of the magistrates' court was given. (3) For the purpose of the last preceding subsection, the day on which the decision of the magistrates' court is given shall, where the court has adjourned the trial of an information after conviction, be the day on which the court sentences or otherwise deals with the offender. (4) On the making of an application under this section in respect of a decision any right of the applicant to appeal against the decision to a court of quarter sessions shall cease."

It cannot be doubted that the chief magistrate when sitting as a committing magistrate was sitting as a magistrates' court. See sections 4 and 124 of the Act.

The case for the United States Government supporting the decision of the Divisional Court is attractively simple. Their counsel argues that the word "proceeding" which appears three times in the first four lines of subsection (1) has the same meaning throughout and that the United States is a party to the proceeding; then, he says, this is a proceeding and as the magistrate has finally decided the matter by committing the appellant he can state a case.

I cannot, however, accept the argument that the word "proceeding" has the same meaning throughout. In the first line it means merely "litigation." Where it secondly appears "proceeding" must be read ejusdem generis with "conviction, order, determination" and really means "decision." In parenthesis I may add that the word "proceeding" had to be used, for in fact section 33 of the Summary Jurisdiction Act, 1879, used that word and that section was being consolidated.

Where it thirdly appears the word "proceeding" is used plainly as an omnibus phrase to cover "conviction, order or determination."

Upon that analysis of the subsection I think it most doubtful whether

upon its true construction the subsection, taken even by itself, confers a power upon committing magistrates to state a case. Of course, in a most literal sense, in making an order of committal the magistrates are making a judicial order or determination; it is a judicial proceeding and it is an order or determination in the sense that in the result the accused then stands his trial. But I do not myself think that the subsection is aimed at that. In my opinion, it is aimed at an adjudication not necessarily in a summary matter, for the magistrates may be exercising their jurisdiction under other Acts, e.g., with regard to affiliation orders or matrimonial proceedings. But here there is no judicial determination of the rights of the parties in that sense, no "rights" are decided. All that the committing magistrates have "decided" or "determined" is that there is a prima facie case which should go before the adjudicating tribunal; they are acting judicially but they are not truly an adjudicating body at this stage, they are merely carrying out a step in the complex of proceedings which by our law precedes the trial of an indictable offence. This view is supported by subsections (2) (3) and (4) which seem to me quite plainly to be drafted upon the footing that the case stated under subsection (1) is dealing only with a final adjudication (subject to appeal where appropriate) of the rights of the parties and not merely the taking of a step in the action such as a committal.

But, my Lords, the Magistrates' Courts Act is a consolidation statute, so that the strong presumption arises that no alteration in the existing statutory law was thereby enacted. But the long title tells us that it was enacted with corrections and improvements under the Consolidation of Enactments (Procedure) Act, 1949. So your Lordships looked at the Lord Chancellor's Memorandum, which is an essential feature of the procedure under that Act, to see whether the relevant enacting words in the Act were introduced under the 1949 Act, and it is quite clear that no relevant alterations to the existing statutory law were thereby introduced; so the presumption stands unaffected in any way.

My noble and learned friend, Lord Reid, in his speech has traced in detail the statutory and judge-made law upon this matter and has shown that it was settled law before 1952 that examining or committing justices had no power to state a case. I entirely agree with that opinion and cannot usefully add anything thereto.

In this state of affairs, even if I had reached the conclusion that upon the true construction of the Act alone it did create a power in examining or committing magistrates to state a case, I feel no doubt that the presumption applies and that section 87 most certainly is not clear enough in its express wording to displace the presumption and alter the previous clearly accepted law.

My Lords, I am glad to be able to reach this conclusion for if committing magistrates could be required to state a case it would, to put it mildly, be productive of highly inconvenient results.

For these reasons I would allow the second appeal.

Solicitors: V. J. Lissack; Rowe & Maw; Treasury Solicitor.

J. A. G.