Judgments - In Re Burke (A.P.)

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    The argument advanced on behalf of the appellant by Mr. Hardy is, in essence, that where a person has been convicted of an extradition crime he cannot be extradited unless he has been sentenced to imprisonment or detention for a period of four months or more and part of that sentence of imprisonment or detention still remains to be carried out. Mr. Perry, for the respondent, argues, in essence, that Article III (4) lays down a threshold requirement, which is that a sentence of imprisonment or other form of detention for a period of four months or more must have been imposed, but once that threshold requirement has been satisfied the convicted person can be extradited, notwithstanding that he has served his sentence of imprisonment or detention in full, provided only that some other part of the sentence of the court, such as a term of supervised release, or the payment of a fine, or the making of restitution, has not been fully carried out. This argument was accepted by the Divisional Court.

    My Lords, I am of opinion that the argument on behalf of the appellant should prevail. When Article III (4) speaks of a "sentence" it is speaking of a sentence of imprisonment or detention. Article III (4) is a substantive provision which provides that extradition shall not take place in respect of a convicted person unless a term of imprisonment or detention is imposed for a period of four months or more. Article VII (4) is a provision relating to the procedure to be followed by the requesting state. It refers only to the "sentence" without specifying that the sentence is one of imprisonment or detention, but as a valid request cannot be made for the extradition of a convicted person unless that person has been sentenced to imprisonment or detention, I consider that when Article VII (4) requires the request to be accompanied by evidence of "the sentence imposed" it is implicit that "the sentence imposed" is a sentence of imprisonment or detention and therefore the requirement for "a statement showing to what extent the sentence has not been carried out" must also relate to a sentence of imprisonment or detention.

    I consider that this construction is in conformity with the intent of the relevant provisions of the treaty. It is clear that if a convicted person has been sentenced in the United States to undergo supervised release or to pay a fine (no matter how large) or to make restitution (no matter how large) he cannot be extradited unless he has been sentenced to imprisonment or detention for a period of four months or more. It is also clear that if the only sentence which has been imposed upon a convicted person has been a sentence of imprisonment or detention for a period of four months or more and he has fully served that term he cannot be extradited as a convicted person. It therefore appears to me that where a convicted person has served the full term of imprisonment for which he was sentenced and has been released from prison and is subject only to forms of correction or punishment in respect of which he could not have been extradited, it is not the intent of the treaty that he should be extradited because those other forms of correction or punishment have not been fully carried out.

    Although the treaty between this country and the United States does not use the term "unlawfully at large" in respect of a convicted person whose extradition is sought, the requirement that a convicted person should not be extradited unless he is "unlawfully at large" is contained in a number of provisions not related to the United States contained in extradition statutes (see, for example, section 1 of the Fugitive Offenders Act 1967 and sections 1(1)(b) and 9(8)(b) of the Extradition Act 1989) and I consider that the construction of Article VII (4) contended for by the appellant is in conformity with the general intendment of an extradition statute or treaty, namely that a convicted person should be extradited when he is unlawfully at large.

    Mr. Perry submitted that to give to Article VII (4) the interpretation contended for by the appellant would be contrary to the principle that an extradition treaty should be given a liberal interpretation. I am unable to accept that submission. In In re Arton (No. 2) [1896 ] 1 Q.B. 509, 517 Lord Russell of Killowen C.J. said:

    "In my judgment these treaties ought to receive a liberal interpretation, which means no more than that they should receive their true construction according to their language, object, and intent."

    In my opinion to give to the treaty the construction contended for by the respondent, so that a convicted person who had served his sentence of imprisonment would be extradited, would be contrary to the language, object and intent of the treaty.

    I would observe that there is a factor in this case which I consider gives support to the conclusion that it is not appropriate to extradite the appellant on the ground that the sentence of supervised release was not fully carried out. The Assistant United States Attorney for the Northern District of Illinois in her affidavit refers in some detail to the power of the United States court to send the appellant back to prison for an additional term of two years for violation of a condition of his supervised release. She states:

    "9. Title 18, United States Code, Section 3583(e)(3) provides in pertinent part that the court may, after considering appropriate factors, among other things, 'revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on postrelease supervision, if the court, pursuant to Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds by a preponderance of the evidence that the defendant violated a condition of supervised release . . . .' Section 3583(e)(3) further provides that, in connection with a Class C felony, 'a defendant whose term [of supervised release] is revoked …. may not be required to serve . . . . more than two years in prison….'

    10. Pursuant to Title 18, United States Code, Section 3583(e)(3), defendant Burke could be sentenced to an additional term of imprisonment of at most two years if Judge Lindberg, or another judge sitting in his stead, determined that defendant Burke had violated the conditions of his supervised release and revoked defendant Burke's supervised release. In addition to a period of incarceration, Judge Lindberg could also order that defendant Burke serve an additional period of supervised release following release from any such incarceration imposed.

    11. On or about July 9, 1994, when defendant Burke began his five period of supervised release, defendant Burke's period of supervised release was scheduled to expire on or about July 8, 1999. Title 18, United States Code, Section 3583(I), however, provides in pertinent part that '[t]he power of the court to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a term of imprisonment. . . . extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of such a violation.' Judge Lindberg issued the Warrant for defendant Burke's arrest prior to the expiration of defendant Burke's term of supervised release and, as a result, Judge Lindberg or another judge sitting in his stead will retain authority to revoke defendant Burke's term of supervisory release even if defendant Burke returns to the Northern District of Illinois after the original date defendant Burke's term of supervised release was scheduled to expire."

    These paragraphs give rise to the inference that the United States seeks the extradition of the appellant not for the purpose of ensuring that he completes the term of supervised release to which he was originally sentenced but so that a judge may consider whether the term of supervised release should be revoked for violation of a condition of his supervised release (which violation is not an offence for which the appellant could be extradited) and the appellant sentenced to an additional term of imprisonment.

    Accordingly, I would allow this appeal and would order that a writ of habeas corpus ad subjiciendum should issue.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

    I agree with my noble and learned friend Lord Hutton that this appeal should be allowed for the reasons which he has given.

 
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