In re Guisto (FC) (Appellant) (application for a writ of Habeas Corpus) (Criminal Appeal from Her Majesty's High Court of Justice)
25. There is no doubt that the origin of the jurisdiction which is to be exercised under paragraph 7 of the Schedule lies in the order to proceed which the Secretary of State sends to the District Judge under paragraph 4(2) or paragraph 5(4), as the case may be. Therein lies the strength of the appellant's argument. Mr Hardy said that it was the Secretary of State's duty to state in his order to proceed whether the surrender of the fugitive criminal was being sought as a person who is accused or as person who is alleged to have been convicted of an extradition crime. This is, as Mr Hardy put it, a question of categorisation, and it was for the Secretary of State to place the fugitive criminal into the correct category. The order to proceed thus set the parameters, and the District Judge had no jurisdiction to deal with the case outside those parameters. He accepted that the District Judge would have been bound to commit the appellant if the order to proceed had been, as he put it, a valid order. But as it was now conceded that the appellant had been placed by the Secretary of State into the wrong category, he maintained that the Administrative Court was wrong to hold that the District Judge had jurisdiction to commit under paragraph 7(3) of the Schedule and that the relief which he sought should be given to him.
26. For the respondents Mr Lewis QC submitted that, while it was for the Secretary of State to launch the proceedings, his function was to inform the District Judge that a requisition had been made. Thereafter there was only one jurisdiction which it was for the District Judge to exercise, and this was simply to decide whether or not to commit the fugitive criminal. He accepted that it was for the Secretary of State to specify the crime or crimes for which the fugitive criminal's extradition was being requested, and that the District Judge had no jurisdiction to inquire into or receive evidence of the criminal law of the foreign state: In re Nielsen  AC 606. But it did not follow that the District Judge was confined by the way in which the case was described in the order to proceed as to the category into which the appellant's case fell. The only question was whether, on the material which was available, a reasonable District Judge would have been entitled to commit.
The Secretary of State's function
27. The arrangements between the foreign state and the United Kingdom are to be found in the treaty and not in Schedule 1 to the 1989 Act. Paragraph 2 of Schedule 1 states that an Order in Council under section 2 of the Extradition Act 1870 shall be conclusive evidence that the arrangement referred to in it complies with the Schedule and that the Schedule applies in the case of the foreign state mentioned in the Order. Paragraph 3 states that when the Schedule has effect in the case of any foreign state, every fugitive criminal of that state who is in or is suspected of being in any part of Her Majesty's dominions shall be liable to be apprehended and surrendered in a manner provided by the Schedule. But it is left to the treaty to identify the details of the arrangements between the United Kingdom and the foreign state. And it is the function of the Secretary of State to ensure that a requisition for the surrender of a fugitive criminal of the foreign state complies with the treaty and is thus one to which the United Kingdom is obliged to give effect in the manner which the Schedule lays down.
28. As Lord Diplock explained in In re Nielsen  1 AC 606, 617E-F the Extradition Acts 1870 and 1873, from whose provisions those of Schedule 1 are derived, do not themselves lay down what documents, if any, must be sent to the Secretary of State by the foreign state together with the requisition for the surrender of a foreign criminal. That is a matter that is left to be dealt with by the extradition treaty. Paragraph (1) of article III of the 1972 Treaty states that extradition shall be granted for an act or omission the facts of which disclose an offence within any of the descriptions listed in the Schedule annexed to the Treaty or any other offence of the kind stated in that paragraph. The first duty of the Secretary of State is to satisfy himself that the offence for which extradition is requested is for an act or omission of the kind which gives rise to a requirement to grant extradition in terms of the Treaty. He must also ask himself whether the offence for which extradition is requested is of a political character, as paragraph (1)(c)(i) of article V provides that extradition shall not be granted if the offence for which extradition is requested is regarded by the requested party as of that character. It is then, as Lord Diplock said at p 619E, for the Secretary of State to make up his mind what crime that act or omission would have amounted to according to the English law in force at the time it was committed if it had been committed in England. The order to proceed which he signifies to the District Judge under paragraph 4(2) of Schedule 1 specifies the crime for which the magistrate is required to issue his warrant under paragraph 5(1) for the apprehension of the fugitive criminal. He also specifies the criminal's extradition crime where, as in this case, he issues his order to proceed to the District Judge under paragraph 5(4) of the Schedule to authorise the continued detention of the fugitive criminal. The crime which he specifies is then treated for all the purposes of the Schedule as the extradition crime of which the fugitive criminal is accused or of which he is alleged to have been convicted within the jurisdiction of the foreign state.
29. Although there is much common ground between the two categories as to the arrangements which the Treaty lays down, the question whether the fugitive criminal is a person accused or is a person who has been convicted is crucial to the decisions that must be made about the documents which are to accompany the request for his extradition and to the decision which must ultimately be taken as to whether extradition is to be granted in response to the request. Article VII, which describes the various documents and other information that must accompany the request, sets out in two separate paragraphs the documents that are required when the request relates to an accused person and to a convicted person respectively: subparagraphs (3) and (4). It also lays down the tests which the evidence must satisfy in each case. The evidence which accompanies the request for the extradition of an accused person must be such as, according to the law of the requested party, would justify his committal for trial if the offence had been committed in the territory of the requested party. The evidence which accompanies the request for the extradition of a convicted person must show that the person requested is the person to whom the conviction refers. Article IX (1) states that extradition shall be granted only if the evidence of these matters is found sufficient according to the law of the requested party.
30. The effect of the Treaty is to place the responsibility on the requesting party to decide to which of these two categories the person whose extradition is requested belongs. The assumption on which it proceeds is that all the information that is needed to place him into the appropriate category is available to the requesting party. Article VII which describes the documents and other information that must accompany a request makes it plain that a decision is needed as to whether the person requested is a person accused or has been convicted. So too does article VIII, which enables the requesting party to apply for a provisional arrest in urgent cases, but likewise makes it necessary for a decision to be taken as to whether the person requested is a person accused or a person who has been convicted as the information to be included in the application differs between the two categories. It is for the requesting party to take that decision.
31. It is true that nowhere in Schedule 1 to the 1989 Act is it stated expressly that it is for the Secretary of State to say into which category the case of the fugitive criminal falls. But it is an inescapable fact that the tests that are to be applied under the Treaty according to the law of the requested party differ according to the category to which the case of the fugitive criminal belongs. It is, of course, plain that extradition may only be granted in response to a requisition for the surrender of a fugitive criminal if the person requested is an accused person or a convicted person whose offence falls within the terms of the Treaty. There is no room for equivocation on this issue. His case must fall into one or other of these two categories. The Secretary of State has to satisfy himself as to which of these categories, if any, the case falls before he signifies to the District Judge that a requisition has been received and, where paragraph 5(4) applies, authorises the continued detention of the fugitive criminal. The function of the order to proceed is to indicate to the District Judge that he is so satisfied. The recital which it contains serves therefore not only to identify the extradition offence of which the person requested is accused or has been convicted, as the case may be, but also to identify the category to which in his opinion the person requested belongs.
32. It should also be noted that it is the invariable custom and practice of the Secretary of State to narrate in the body of the order to proceed whether the fugitive criminal whose return is requested is accused or has been convicted of the crime which he has identified as the extradition crime. The form which was provided for this purpose by section 20 of and Schedule 2 to the Extradition Act 1870 provided for the person's category to be specified, as "accused [or convicted] of the commission of the crime." Section 37(4) of the 1989 Act provides that this and the other forms in that schedule may continue to be used and shall be deemed to be valid and sufficient in law for its purposes. The way in which this form was designed and is still being used is consistent with what I would take to be the duty of the Secretary of State when he is considering whether the requirements of the Treaty have been satisfied. It is his function to ensure, before he issues the order to proceed, that the request is accompanied by a warrant of arrest in the case of a person accused or by a certificate or the judgment of conviction in the case of a person convicted, as this is one of the conditions for extradition which the Treaty specifies.
The jurisdiction of the District Judge
33. The jurisdiction of the District judge is derived exclusively from the statute. It has its origin in the order to proceed which the Secretary of State issues under paragraph 4(2) or paragraph 5(4) of the Schedule. In In re Nielsen  AC 606, 619D Lord Diplock said that the magistrate had no jurisdiction under section 10 of the Extradition Act 1870 to issue his warrant for committal of the fugitive criminal for any crime other than one which the Secretary of State had specified in an order to proceed. He qualified this statement in a later passage in his speech at p 621C-F where he explained that that was because it was for crimes contained in the list of crimes annexed to the 1870 Act alone that the Secretary of State's orders to proceed in that case were made, but that it would have been otherwise if the conduct of which Nielsen was accused in Denmark had not been covered by any description of an English crime in the 1870 list but had been added to the list of extradition crimes by later Extradition Acts. In that event the magistrate would have had to hear evidence of Danish law to satisfy himself that the conduct of the accused in addition to constituting in English law an extradition crime included among those subsequently added to the 1870 list, also constituted an offence that was treated as an extradition crime in Denmark. As it was, there being no claim that any political offence was involved and no dispute as to the authenticity of the Danish warrant for Nielsen's arrest, the magistrate had no jurisdiction to enter upon any question of Danish law.
34. Lord Diplock summed the matter up in this way in In re Nielsen at pp 621F-622B:
35. Lord Diplock returned to this point in Government of the United States of America v McCaffery  1 WLR 867. In that case, as in this one, extradition was sought under the Treaty between the Government of the United Kingdom and the Government of the United States of America. As Lord Diplock explained at p 870, it fell within what he described as an "exceptional accusation case." This was because article III of the Treaty provides that, in addition to the offences listed in the Schedule, extradition shall be granted if the offence is punishable under the laws of both parties by imprisonment or other form of detention for more than one year or by the death penalty and the offence constitutes a felony under the law of the United States of America. Article VII provides that among the documents that must accompany the request for extradition are the text, if any, of the law defining the offence and prescribing the maximum punishment and, if the requesting party is the United States of America, a statement that the offence constitutes a felony under the law of the United States of America.
36. In McCaffery uncontradicted affidavit evidence by qualified lawyers was produced to the metropolitan magistrate to show that these requirements were satisfied. There was no need either in that case or in In re Nielsen  AC 606 for the House to consider whether the magistrate had jurisdiction to consider that evidence in order to decide whether the requirements of the Treaty had been satisfied. But in R v Governor of Pentonville Prison, ex parte Sinclair  2 AC 64 the House held that the magistrate's powers were confined to those specified in sections 3(1), 8, 9 and 10 of the Extradition Act 1870, from which paragraphs 4 to 7 of Schedule 1 to the 1989 Act are derived. Monitoring the provisions of the Treaty was an executive, not a magisterial, function. Lord Ackner emphasised the significance of that decision in these words at pp 91H-92A:
37. We are not concerned in this case with the question whether the requirements of the Treaty are satisfied with regard to the offence for which the request is made that the fugitive criminal be extradited. There was no room for any dispute on this point, as the extradition offence in the order to proceed was one of the offences listed in the Schedule. The question as to the jurisdiction of the District Judge in the present case relates to a different question. It relates to the category of the requested person, not to the extradition crime of which he is accused or is alleged to have been convicted. But it seems to me to be clear that the same approach must be taken to this question as that which is taken with regard to the crime or crimes which have been specified in the request. The same basic point applies. It is the function of the Secretary of State to see that the provisions of the treaty have been satisfied. It is for him to identify the category into which the requested person has been placed by the foreign state. The District Judge does not have jurisdiction to change that person's category. Paragraph 7 of the Schedule lacks any provision to that effect. He must deal with the case as it has been presented to him by the order to proceed. The case which has been presented to him must stand or fall according to the rules that apply to that category in terms of paragraph 7(1) or (2), as the case may be.
38. This is not to say that the District Judge lacks jurisdiction to examine the question whether the requested person has been placed into the correct category. That this is so can be seen from the way in which the expressions "conviction" and "convicted" are defined in paragraph 20 of Schedule 1 to the 1989 Act. The definition states that these expression do not include or refer to a conviction which "under foreign law" is a conviction for contumacy but that "accused person" includes a person so convicted for contumacy. The question whether a conviction is a conviction for contumacy under foreign law is treated as a question of fact in domestic law. It is within the jurisdiction of the District Judge, should the question be raised, to hear expert evidence so that he can determine whether or not the conviction which is alleged against the requested person is of that character. A requested person who is alleged to have been convicted of an extradition crime but who believes that his conviction is a conviction in contumacy is entitled to object to the terms in which the order to proceed has been expressed. He is entitled to do so on the ground that his case should be examined according to the test which paragraph 7(2) lays down for an accused person, and not according to the different test which paragraph 7(1) lays down for a convicted person. In R v Governor of Brixton Prison, ex parte Caborn-Waterfield  2 QB 498, 512 Salmon J said that there was no reason to suppose that the parties to the treaty which was in issue in that case intended that those who are in reality convicted persons should be dealt with otherwise than as convicted persons. That proposition, which I would respectfully endorse, applies with just as much force to persons who are in reality accused persons.
39. But the step which the Administrative Court took in this case was, in my opinion, a step too far. Having held that the appellant was in reality a convicted person, and not an accused person as he was described in the Secretary of State's order to proceed and was held to be by the District Judge, the court should have stopped there and dealt with the case as the Court of Appeal did in R v Governor of Brixton Prison v Caborn-Waterfield  2 QB 498. Salmon J concluded the judgment of the court with these words at p 512:
40. In R v Governor of Pentonville Prison, ex parte Zezza  1 AC 46, in which the magistrate held that the applicant's conviction was not a conviction for contumacy and committed him to await the directions of the Secretary of State as a convicted person, Lord Roskill said at p 56B-C that the Caborn-Waterfield case was in his view clearly correctly decided and was plain authority against the view that the English court would not look at the nature or substance of the conviction upon the basis of which the conviction was sought. That case appears to have proceeded upon the assumption that if the applicant had been committed as an accused person his committal would have been unlawful and the case would have had to be disposed of in the same way as in Caborn-Waterfield. The same approach was taken by the Divisional Court in In re Sarig 26 March 1993  COD 472, (DC). In that case, as here, the applicant's extradition was sought by the Government of the United States of America. He too had been convicted in his absence. It was contended that this was a conviction in contumacy, but it was clear from the evidence that it was not. The court held that the magistrate was right to commit him as a person who had been convicted, and not as a person accused.
41. There is no doubt that the information produced to the District Judge was sufficient to show that the applicant had been convicted of the extradition offence which was alleged against him. But it is a fundamental point of principle that any use of the procedures that exist for depriving a person of his liberty must be carefully scrutinised. Lord Atkin's declaration in Liversidge v Anderson  AC 206, 245: "that in English law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act" has lost none of the force which it had when it was delivered over sixty years ago. When, in In re Antonio Da Costa Farinha  Imm AR 174, 178 Mann LJ said that the courts must be vigilant to ensure that the extradition procedures are strictly observed, he was making precisely the same point. The importance of this principle cannot be over-emphasised. We are not dealing here with what R J Sharpe, The Law of Habeas Corpus, 2nd ed (1989), p 55 has described as a legal defect of a trivial nature which may be excused. There can be no more fundamental error in the use of the extradition procedures than the making of a decision by the court which lies outside its jurisdiction. That is what has occurred in this case.
42. In my opinion the applicant is entitled to the order which he seeks. I would allow the appeal and issue a direction that the appellant must be discharged from the committal order.LORD HUTTON
43. On 19 October 1995 in the Supreme Court of the State of New York in a trial in absentia of the appellant, Gennaro Guisto (also known as Jerry Russo), the jury found him guilty on a charge of assault in the first degree and the judge sentenced him to a term of imprisonment of five to fifteen years. Prior to the trial the appellant and his co-defendant, John Russo, had been granted bail but they had absconded. The trial, conviction and sentencing of the appellant are described as follows in an affidavit sworn on 30 November 2001 by Mr Charles E King, an Assistant District Attorney in the New York County District Attorney's Office:
44. On some date after the appellant had absconded in New York he came to England and he was arrested by the police at Hayes in Middlesex on 10 October 2001. The police then discovered that he was wanted in the United State of America, and he was detained as an illegal immigrant pending extradition proceedings.
45. The authorities in the United States then began to prepare the necessary documents to present to the Secretary of State in the United Kingdom under para 4 of Schedule 1 to the Extradition Act 1989 which provides:
46. Having regard to his conviction and sentence it is clear that the authorities in the United States regarded the appellant as a person convicted of a crime and not as a person accused of a crime. The diplomatic note from the Ambassador of the United States in London to the Secretary of State dated 10 October 2001 requesting the provisional arrest of the appellant for the purpose of extradition to the United States contained the following passage: