Judgments - In re Guisto (FC) (Appellant) (application for a writ of Habeas Corpus) (Criminal Appeal from Her Majesty's High Court of Justice)

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    47. The subsequent requisition made to the Secretary of State by the United States on or about 6 December 2001 for the surrender of the appellant was made on the ground that he was a convicted person, but in his order dated 18 December 2001 to the District Judge (who is regarded as a metropolitan magistrate) pursuant to para 4(2) of Schedule 1 the Secretary of State did not refer to the appellant as a person convicted of a crime but rather as a person "who is accused of the commission of the crimes of causing grievous bodily harm with intent and inflicting grievous bodily harm within the jurisdiction of the United States of America". The reason why the Secretary of State so described the appellant was not fully explained in the course of these proceedings, but it appears probable that the Secretary of State considered that the respondent had been "convicted for contumacy", a term which I shall consider at a later point in this opinion.

    48. The committal proceedings in respect of the appellant took place before the District Judge at Bow Street on 11 February 2002 and the written information furnished to the District Judge and to the appellant on behalf of the Government of the United States of America ("the respondent") was as follows:

    "Conduct of which Jerry Russo is accused

    Jerry Russo you are accused of crime in the United States of America that would amount to the following offence if the crime had occurred in the United Kingdom:

    1.  Jerry Russo on the 20th December 1994 you together with John Russo unlawfully and maliciously caused grievous bodily harm to Sean Jennings with intent to do him grievous bodily harm.

    All within the jurisdiction of the United States of America."

    49. The committal proceedings were governed by para 7 of Schedule 1 which provides:

    "7.  (1) In the case of a fugitive criminal accused of an   extradition crime, if the foreign warrant authorising   the arrest of such criminal is duly authenticated,   and such evidence is produced as (subject to the   provisions of this Schedule) would, according to   the law of England and Wales, [make a case   requiring an answer by the prisoner if the   proceedings were for the trial in England and Wales   of an information for the crime,] the metropolitan   magistrate shall commit him to prison, but   otherwise shall order him to be discharged.

    (2) In the case of a fugitive criminal alleged to have been convicted of an extradition crime, if such evidence is produced as (subject to the provisions of this Schedule) would, according to the law of England and Wales, prove that the prisoner was convicted of such crime, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged.

    (3) If he commits such criminal to prison, he shall commit him there to await the warrant of the Secretary of State for his surrender, and shall forthwith send to the Secretary of State a certificate of the committal, and such report upon the case as he may think fit."

    50. It is therefore clear that para 7 relates to two different types of case. Under sub-para (1) there is the case where the requesting state claims before the District Judge that the fugitive criminal is accused of an extradition crime. Under sub-para (2) there is the case where the requesting state claims before the District Judge that the fugitive criminal has been convicted of an extradition crime.

    51. When the committal proceedings came on for hearing before the District Judge it was apparent that the appellant was not an accused person in the ordinary sense of that term, but the second-named respondent, the Government of the United States, argued that the case fell under para 7(1) and not under para 7(2) by reason of para 20 of Schedule 1 which provides:

    "In this Schedule, unless the context otherwise requires—

    'conviction' and 'convicted' do not include or refer to a conviction which under foreign law is a conviction for contumacy, but 'accused person' includes a person so convicted for contumacy."

    52. A conviction for contumacy is a conviction obtained in the absence of the accused which is subsequently annulled if he later surrenders or is arrested, and under Schedule 1 to the 1989 Act a person convicted for contumacy is regarded as an accused person because on his subsequent surrender or arrest his conviction is set aside and he is tried again. The second-named respondent submitted that the conviction of the appellant in New York was "a conviction for contumacy" and that accordingly he was an "accused" person so that his case was governed by para 7(1) and not by para 7(2).

    53. The District Judge accepted the respondent's submission and committed the appellant to prison. She commenced her written decision by stating:

    "1.  The Government of the United States of America seeks the extradition of Jerry Guisto (also known as Jerry Russo and Gennaro Guisto). He is accused of crime in the United States that would amount to the following offence if the crime had occurred in this country:

    'that he on 20th December, 1994, together with John Russo, unlawfully and maliciously caused grievous bodily harm to Sean Jennings with intent to do him grievous bodily harm'."

In para 6 she stated:

    "I am however satisfied that there are a number of ways in which he may appeal against his conviction and seek retrial. Therefore I conclude that the proceedings in New York have not been finalised and his conviction was in contumacy. Accordingly, he is correctly treated as an accused person."

Therefore the District Judge purported to commit the appellant under para 7(1) and not under para 7(2).

    54. The appellant applied for a writ of habeas corpus to the Administrative Court. Before the Administrative Court the respondent submitted that the District Judge was right to rule that the conviction of the appellant was for contumacy and that accordingly he was to be treated as an accused person. The Administrative Court held that the District Judge's ruling was given in error and in his judgment (with which Rose LJ agreed) Gibbs J stated:

    "53.  On the evidence it is well-established in United States law (as in recent times in the law of England and Wales: see R v Jones [2002] 2 WLR 524 HL) that a trial may proceed in a defendant's absence if he has voluntarily absented himself. The evidence about United States law shows that there are established procedures to ensure fairness to a defendant in those circumstances, as already outlined. The evidence lodged on behalf of the respondents, as well the applicant, indicates nothing to suggest that the conviction is to be regarded as anything but final. There is nothing in the relevant parts of the 1989 Act to place convictions in absentia in a special category (unlike a provision in the Fugitive Offenders Act 1967, now repealed).

    54.  In my view, therefore, the finding of the District Judge that this was a conviction in contumacy was in error."

Before the House the respondent did not seek to argue that the Administrative Court was in error in holding that the conviction was not for contumacy and that accordingly the appellant was not an accused person.

    55. Gibbs J then turned to consider whether the appellant was entitled to an order of habeas corpus. He stated at paras 56-60 that the source of the District Judge's jurisdiction lay in the requisition made by the second-named respondent which was clearly a requisition for the extradition of the appellant as a convicted person, and that the error of the Secretary of State in describing the appellant in his order under para 4(2) of Schedule 1 as an "accused" did not affect the validity of the requisition made by the respondent because there is no statutory or other legal requirement for the Secretary of State to specify whether the requisition was for the surrender of a person as an accused or as a convicted person. He then stated:

    "61.  The legal consequence of these findings, in summary, are as follows:

    (a) The request for extradition was (or at the very least plainly included) a requisition for the surrender of the applicant as a convicted person.

    (b) The evidence supplied by the United States Government satisfied the requirements of Article VII(4) of the Treaty in the case of a convicted person.

    (c) The error in the recital to the Secretary of State's Order did not affect the legality and validity of the requisition and, accordingly, did not deprive the District Judge of the jurisdiction to commit the applicant under paragraph 7(3) of the Schedule on the basis that he was a convicted person within the scope of paragraph 7(2).

    (d) If she had correctly interpreted the status of the applicant as a convicted person rather than accused person, she would, in my judgment, on the evidence before her, have been bound to commit him. That evidence, on any view, complied with the terms of the Treaty and the legislation incorporating it into United Kingdom law. She would have had no discretion to refuse committal.

    (e) I am thus unable to accept Mr Hardy's submission that there are two separate jurisdictional routes available to the requesting state, and that it elected the wrong one.

    (f) The true position in my judgment is that the District Judge had the jurisdiction and the power to commit under paragraph 7(3). She had the power to commit on one or other of the alternative bases in paragraph 7(1) and 7(2), provided that the ground was laid for it by the nature of the requisition itself and that the relevant evidential requirements were satisfied.

    62.  Had she chosen the correct subparagraph of paragraph 7 she would have been bound to commit. For my part, despite Mr Hardy's submissions to the contrary, I can see no conceivable prejudice suffered by the applicant in the District Judge's choice of the wrong subparagraph as a basis for her decision to commit. Indeed, it resulted in an additional safeguard to the applicant in that the District Judge felt bound to consider the sufficiency of the evidence against the applicant, a requirement not made under subparagraph (2).

    63.  For my part, therefore, despite what I have found to be an error of law in the part of the District Judge, I would refuse the relief sought. Had the District Judge applied the correct legal test she would have arrived at the same decision, namely that the applicant should be committed."

    56. My Lords, I am, with respect, unable to agree with the reasoning or the conclusion of the Administrative Court. No doubt the extradition process originates with the requisition made by the requesting state and it is clear that the District Judge has no jurisdiction to embark on a committal hearing unless the Secretary of State has issued an order under paragraph 4(2), but the powers of the District Judge to commit are defined by para 7 of Schedule 1. Para 7 makes it clear that the power of committal arises in two different types of case. One case is where the requesting state claims before the District Judge that the fugitive criminal is accused of an extradition crime, the other case is where the requesting state claims before the District Judge that the fugitive criminal has been convicted of an extradition crime. In my opinion when a requesting state brings a case before the District Judge under para 7(1) the District Judge has no power to commit under that sub-paragraph if the fugitive criminal is not an accused person but is a convicted person; and because the requesting state has not brought the case under para 7(2), the District Judge has no power to commit him as a convicted person under that sub-paragraph.

    57. This was the view taken by a powerful Divisional Court, constituted by Lord Parker CJ, Ashworth and Salmon JJ, in R v Governor of Brixton Prison ex parte Caborn-Waterfield [1960] 2 QB 498. In that case the applicant for a writ of habeas corpus had in his absence been convicted and sentenced to imprisonment by a French court. In French law that conviction was known as a "jugement par défaut" and anyone subject to such a judgment had the right at any time, on notice, to have it set aside and the case re-tried in his presence. The applicant gave the requisite notice, but at the re-hearing he again failed to appear, and the court, in accordance with French law, confirmed the conviction and sentence by a "jugement itératif défaut", which judgment, unless notice of appeal was given within ten days, became final and conclusive. No such notice of appeal was given. The French government sought to extradite the applicant from England on the ground that he was a person accused of a crime and a magistrate committed him for extradition on that basis. The applicant applied for a writ of habeas corpus on the ground that he was not an accused person but a convicted person.

    58. The argument of the applicant's counsel, Mr F H Lawton QC, is reported as follows at page 502f:

    "The magistrate's order is bad on its face. First, it states 'on the ground of his being accused,' whereas the applicant is not in fact accused, but has been convicted and his extradition is sought, not that he should answer the accusation but that he should begin to serve the sentence passed on him for the offence. Both the application for extradition and the order, therefore, were made on a false basis of fact. The Extradition Act, 1870, distinguishes between an accused and a convicted person, and under section 10 the conditions which must be satisfied before an order is made are different. The 'jugement itératif défaut" of the French court was a 'conviction' and not a 'conviction for contumacy' within the meaning of section 26 of the Act."

Section 10 of the Extradition Act 1870 was in similar terms to para 7 of Schedule 1 and provided:

    "In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged.

    In the case of a fugitive criminal alleged to have been convicted of an extradition crime, if such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, prove that the prisoner was convicted of such crime, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged.

    If he commits such criminal to prison, he shall commit him to the Middlesex House of Detention, or to some other prison in Middlesex, there to await the warrant of a Secretary of State for his surrender, and shall forthwith send to a Secretary of State a certificate of the committal, and such report upon the case as he may think fit."

In section 26 of the 1870 Act the definition of "conviction" and convicted" was similar to the definition in para 20 of Schedule 1 to the 1989 Act.

    59. The Divisional Court held in its judgment delivered by Salmon J that the applicant's conviction was not a conviction for contumacy and stated at p 511:

    "Looking at the realities of the situation he is, in the fullest sense of the words, a convicted person and in no sense an accused person."

The judgment then concluded at p 512:

    "We have, accordingly, come to the clear conclusion that Mr Lawton's first point is a good one. We have reached this conclusion with considerable reluctance for the applicant appears to be entirely devoid of merit. Had he been proceeded against and committed as a convicted person it is difficult to see in the circumstances of this case how he could have succeeded in this court. The point raised before us on the construction of the statute is, however, of some importance, and, as the Attorney-General has said, goes far beyond the scope of this particular case. There can be no doubt that upon the true construction of the statute the applicant's committal as an accused person was wrong in law. Accordingly, the application succeeds and the applicant, who has surrendered to his bail and is before this court, will be discharged."

    That decision was approved by this House in R v Governor of Pentonville Prison ex parte Zezza [1983] 1 AC 46 and referring to it Lord Roskill stated at page 56a:

    "The court distinguished between a conviction "par contumace" and "par défaut" on the one hand and a conviction by "jugement itératif défaut" on the other and concluded that the procedure in question prevented the reopening of the case upon any surrender by Caborn-Waterfield. Accordingly, Caborn-Waterfield had not been convicted "par contumace" and could not be extradited as an accused person.

    The Caborn-Waterfield case was in my view clearly correctly decided and is plain authority against the view that the English court will not look at the nature or substance of the conviction upon the basis of which extradition is sought."

    60. In paragraph 58 of his judgment Gibbs J sought to distinguish Caborn-Waterfield on the ground that in it the French government had requested the extradition of the fugitive as an "accused" person, whereas in the present case the American Government had requested the extradition of the appellant as a "convicted" person. In my opinion this is not a valid ground of distinction. In Caborn-Waterfield the Divisional Court did not base its decision on the description of the fugitive in the requisition made by the French government but on the ground that it was unlawful for the magistrate to commit a fugitive as an accused person when he was not an accused person but a convicted person.

    61. I consider that the Divisional Court also erred in holding that the power of the District Judge to commit arose under para 7(3). The power arose under para 7(1) or para 7(2) depending on whether the fugitive was an accused person or a convicted person. Para 7(3) commences with the words "If he commits such criminal to prison", and therefore para 7(3) does not give power to commit to prison; it provides what the District Judge is to do if he or she exercises the power to commit given by para 7(1) or para 7(2).

    62. In his submissions on behalf of the respondent Mr Lewis QC laid stress on the point that the appellant was applying for habeas corpus and not for judicial review, and that the function of the High Court on an application for habeas corpus was narrower than on an application for judicial review. He cited the following passage in the judgment of Lord Donaldson of Lymington MR in R v Home Secretary ex parte Cheblak [1991] 1 WLR 890, 894d:

    "Although, as I have said, the two forms of relief which the applicant seeks are interrelated on the facts of his case, they are essentially different: A writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so is unlawful. The remedy of judicial review is available where the decision or action sought to be impugned is within the powers of the person taking it but, due to procedural error, a misappreciation of the law, a failure to take account of relevant matters, a taking account of irrelevant matters or the fundamental unreasonableness of the decision or action, it should never have been taken. In such a case the decision or action is lawful, unless and until it is set aside by a court of competent jurisdiction. In the case of detention, if the warrant, or the underlying decision to deport, were set aside but the detention continued, a writ of habeas corpus would issue."

    63. Mr Lewis submitted that the decision of the District Judge to commit the appellant as an accused person was due to a misappreciation of the law but was within her powers, and therefore habeas corpus should not issue. For the reasons which I have given I reject that submission because I am satisfied that the District Judge had no power under para 7(1) to commit a person who had been convicted of an extradition crime.

    64. Therefore I would allow the appeal and would hold that the appellant is entitled to the order which he seeks. Like the Divisional Court in Caborn-Waterfield I have come to this conclusion with considerable reluctance, because if the Secretary of State's order had referred to the appellant as a convicted person and the application before the District Judge to commit had been brought under para 7(2) on that basis, the application was bound to have succeeded, but as Mann LJ observed in In re Farinha [1992] Imm AR 174, 178, the Courts must be vigilant to ensure that the extradition procedures are strictly observed.

LORD RODGER OF EARLSFERRY

My Lords,

    65. Quite early on the morning of 10 October 2001 police officers in Hayes arrested the appellant in relation to a matter which is not material for present purposes. When the officers checked with the police national computer, they found that Interpol had put out a Locate/Trace or "red notice" in relation to him. This was because in 1995, in his absence, the Supreme Court of New York had convicted the appellant of assault and had sentenced him to a period of between 5 and 15 years' imprisonment. The Supreme Court had issued a warrant for his arrest. The police therefore alerted the American Embassy. Later the same day, in a diplomatic note to the Secretary of State, a representative of the United States asked for a provisional warrant for the appellant's arrest to be issued with a view to his extradition.

    66. Extradition between this country and the United States is regulated by a treaty to which effect is given by The United States of America (Extradition) Order 1976 made under section 2 of the Extradition Act 1870.

    67. The day after the embassy contacted the Secretary of State, an application was made to the district judge at Bow Street under paragraph 5(1)(b) of the first schedule to the Extradition Act 1989 ("the schedule"). The judge granted the provisional warrant authorising the appellant's detention. In terms of paragraph 5(2) it was then the duty of the judge to send a report to the Secretary of State. If the Secretary of State had thought that the extradition should definitely not go ahead, he could have ordered the warrant to be cancelled and the appellant to be discharged. In this case, however, the Secretary of State did not so order and the appellant remained in custody by virtue of the warrant.

    68. The warrant was not authority for detaining the appellant indefinitely. Paragraph 5(4) of the schedule provides:

    "A fugitive criminal apprehended on a warrant issued without the order of the Secretary of State shall be discharged by the district judge (magistrates' courts) unless he, within such reasonable time as, with reference to the circumstances of the case, he may fix, receives from the Secretary of State an order signifying that a requisition has been made for the surrender of such criminal."

By reason of that provision unless, within such reasonable time as the judge fixed, the judge received from the Secretary of State an order signifying that a requisition had been made for the appellant's surrender, the district judge would have required to discharge him. Whether the judge fixed such a period in this case does not emerge from the papers available to the House, but nothing turns on it.

    69. On about 6 December 2001 the United States sent a diplomatic note, or "requisition", to the Foreign Secretary requesting the appellant's return to the United States to serve the sentence imposed on him by the New York court following his conviction on a charge of assault. Having considered that request, on 18 December the Secretary of State issued an order to the district judge. The order began by narrating the relevant provisions of the 1989 Act and the Orders in Council which have effect in relation to the United States. The order continued:

    "And whereas, in pursuance of the said Schedule 1 (as it so has effect), a requisition has been made to the Secretary of State by His Excellency Mr William S Farish, a diplomatic representative of the United States of America, for the surrender of Jerry Russo (also known as Gennaro Raymond Guisto, Gennaro Onesto and Jerry Guisto) who is in the United Kingdom and who is accused of the commission of the crimes of causing grievous bodily harm with intent and inflicting grievous bodily harm within the jurisdiction of the United States of America:

    Now the Secretary of State, by this Order, signifies to you that such requisition has been made."

The operative part of the order came at the very end where, under reference to the preceding narrative, the Secretary of State signified to the district judge that the United States had made a requisition for the surrender of the appellant who was "accused of the commission of the crimes" specified in the order. The district judge was thereby absolved from any duty to discharge the appellant in terms of paragraph 5(4). Instead, his detention was authorised until the committal hearing in terms of paragraph 6.

    70. Schedule 2 to the 1870 Act contains a number of forms which remain valid: section 37(4) of the 1989 Act. But that schedule does not in fact contain a form specifically designed for the kind of order that is issued for the purposes of paragraph 5(4) in provisional warrant cases. The practice of the Secretary of State is to modify the first of the forms in the second schedule by omitting the superfluous requirement for the district judge to issue an arrest warrant. An order in terms of the form when so modified furnishes the necessary declaration, for the purposes of paragraph 5(4), that the requisition has been made: In re Naghdi [1990] 1 WLR 317, 320-321 per Woolf LJ. The statutory form recites that a requisition has been made to the Secretary of State for the surrender of the person concerned "accused [or convicted] of the commission of the crime of…." Then comes a blank where the details of the crime are to be inserted. After that the Secretary of State signifies that a requisition to that effect has been made for the surrender of the person specified in the order. It is this declaration, with its reference back to the brief narrative of the content of the requisition, that authorises the continued detention of the prisoner, in terms of paragraph 5(4) of the schedule, pending the committal hearing.

    71. In the Administrative Court Gibbs J, with whom Rose LJ agreed, said, [2003] 2 WLR 157, 166, at para 59, that there was no statutory or other legal requirement for the Secretary of State to specify whether the requisition was for the surrender of the person as an accused or as a convicted person. This, he said, was to be contrasted with the requirement to specify the extradition offences themselves in the order. I see no basis for drawing that distinction. Just as the form leaves a blank for the details of the crime, so it also contains the words "accused [or convicted]". These words show that the Secretary of State is to say whether the person concerned is accused or convicted of the crime, just as surely as the blank indicates that he is to say what the crime is. In effect the order is a declaration by the Secretary of State either (1) that the foreign state has made a requisition for the surrender of the prisoner as having been accused of the crime in question or (2) that the foreign state has made a requisition for the surrender of the prisoner as being alleged to have been convicted of the crime in question. In either event the order is concerned with the prisoner's liberty. It is only to be expected, therefore, that it should explain to the district judge, as clearly as the circumstances permit, why he should not release the prisoner and for what purpose the prisoner is to remain in custody. The order fulfils that function only if, as the statutory form indicates should be the case, it signifies the basic terms of the requisition on which the Secretary of State is acting in authorising the prisoner's continued detention to await the committal hearing.

 
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