In re Guisto (FC) (Appellant) (application for a writ of Habeas Corpus) (Criminal Appeal from Her Majesty's High Court of Justice)
72. It is now common ground that in this case the requisition submitted by the United States was for the appellant's surrender on the ground that he had been finally convicted of the assault in question. Due to a misunderstanding on the part of the Secretary of State about the status of this conviction under the law of New York, however, at the time when he was considering the terms of his order the Secretary of State thought that the appellant's conviction was a "conviction for contumacy" under the law of New York. The significance of this conclusion is that a person who is convicted for contumacy is treated, for the purposes of extradition, as a person accused of a crime rather than as a person convicted of a crime. Having formed this mistaken view, the Secretary of State drew up his order so as to signify that the United States had requested the surrender of the appellant as someone accused, rather than as someone convicted, of the crimes in question. The case is not, therefore, one where the Secretary of State made a clerical error in drawing up the order. Rather, the Secretary of State quite deliberately issued his order to proceed in these terms and so set in motion the chain of events which has brought the parties to your Lordships' House.
73. Acting on the basis of this order, the district judge did not order the appellant's discharge and he accordingly remained in custody until the committal hearing on 11 February 2002. The Secretary of State's order was the authority for the appellant's continued detention and for the committal hearing that followed. The two elements are necessarily interrelated. By issuing the order the Secretary of State authorised the appellant's continued detention, pending a committal hearing, as a person accused of crime. Equally, he indicated that a hearing should be held for his committal on the same basis.
74. In In re Nielsen  AC 606, 624E Lord Diplock referred to the equivalent provisions of the 1870 Act and said:
Although Lord Diplock was dealing with an accusation case, the same analysis applies in a conviction case. Where, as here, a provisional arrest warrant has been issued, the district judge's jurisdiction derives and arises from the order of the Secretary of State under paragraph 5(4). It follows in my view that here the jurisdiction of the district judge at the committal hearing was in respect of the appellant as a person accused of crime for whose return to the United States a requisition had been made.
75. The requisition and the Secretary of State's order are distinct and must be kept so. The requisition which the diplomatic representative of the United States addressed to the Secretary of State gave rise to certain obligations under the extradition treaty between the United Kingdom and the United States. Those duties were owed between the two states in international law. In English law, by contrast, the requisition had no effect unless and until the Secretary of State decided to act upon it in the circumstances of this case by issuing an order to the judge under paragraph 5(4) signifying that the requisition had been made. Despite this, in the Administrative Court,  2 WLR 157, 166, at para 57, Gibbs J held that:
On that basis, he went on to say, at para 61(c):
Traces of the same line of thinking are to be discerned in paras 59 and 61(f) of the judgment. The reasoning is mistaken. The district judge is not concerned with the requisition: Government of the United States of America v Bowe  1 AC 500, 527D-E per Lord Lowry. More particularly, since a requisition has no effect in English law except as the basis for the Secretary of State's order under paragraph 4(2) or 5(4) of the schedule, as the case may be, the requisition itself cannot constitute a basis for the jurisdiction of the district judge if that jurisdiction cannot be derived from the Secretary of State's order. In the present case either the order under paragraph 5(4) gave the district judge the necessary jurisdiction or else she lacked it: there is no middle way based on the requisition. Indeed the irrelevance of the requisition in this regard is shown by the fact that no copy of it is provided to the district judge who proceeds instead on the basis of the Secretary of State's order. All that the district judge knows or needs to know of the terms of the requisition is to be found set out there. In certain cases the original terms of the requisition could indeed be misleading if, for example, the Secretary of State had decided that some of the offences included in it were not extradition crimes or were political. Somewhat unhappily, therefore, the Administrative Court purported to base the district judge's jurisdiction on the requisition, a document which they had not themselves seen and the thrust of whose terms they could only glean from other documents.
76. Paragraph 6 of the schedule deals with the committal hearing but says little about what is to happen. This is because, for the most part, the rules as to the kinds of evidence etc to be presented are found in the individual extradition treaties which, to some extent, tailor the requirements to the practices and procedures in the requesting state. For what it is worth, however, paragraph 6(2) specifically authorises the district judge to receive any evidence tendered to show that the crime "of which the prisoner is accused or alleged to have been convicted" is of a political nature or is not an extradition crime. The distinction is maintained.
77. Paragraph 7 is at the heart of the issue in the present case. It provides:
The scheme of the paragraph reflects the scheme of the preceding provisions which I have analysed. In particular paragraph 7(1) explains what is to happen "in the case of a fugitive criminal accused of an extradition crime" while paragraph 7(2) says what is to happen "in the case of a fugitive criminal alleged to have been convicted of an extradition crime". The two cases are treated separately and there is no cross-over between them. For instance, sub-paragraph (1) does not begin "subject to the following sub-paragraph" or vice versa. This is a further indication that the judge is concerned either with a fugitive criminal who is accused of an extradition crime or with a fugitive criminal who is alleged to have been convicted of an extradition crime. In any given case the judge knows which is the position from the terms of the order to proceed. In practice the judge will also know it from the document which the representative of the requesting state provides setting out the extradition crime of which the prisoner is accused or of which it is alleged that he has been convicted.
78. In the appellant's case that document was headed "Conduct of which Jerry Russo is accused". It stated:
This document, addressed to the appellant, spelled out what the issue at the committal hearing was to be. Counsel for the United States set out, accordingly, to satisfy the judge that the appellant was accused of the crime described in the document. He succeeded: as her written decision indicates, the judge held that the appellant was correctly treated as an accused person and that there was sufficient evidence of the extradition offence against him. On that basis, on 14 March 2002, in terms of paragraph 7(3), she committed the appellant to await the decision of the Secretary of State as to his return to the United States. She also sent a certificate of committal to the Secretary of State. While no issue arises as to the certificate, it has to be said that, in this particular case at least, it is a singularly uninformative document.
79. The appellant applied to the Administrative Court for habeas corpus. He relied in part on the statement of a New York attorney, a Mr Murray, which had been obtained after the committal hearing. Counsel for the United States continued to maintain that the district judge had been entitled to treat the appellant's conviction as one for contumacy and that she had therefore been entitled to treat the appellant as being accused of crime rather than as being allegedly convicted of crime. On the basis of the new evidence the Administrative Court rejected that contention and held that the district judge's finding that the appellant's conviction had been for contumacy was in error. Gibbs J went on, however, to hold,  2 WLR 157, 167, at para 61(f), that the district judge had had jurisdiction to commit the appellant under paragraph 7(3):
80. I have already explained that the terms of the requisition cannot help with the judge's jurisdiction. Paragraph 7(3) is equally irrelevant since it simply defines for what purpose the fugitive criminal is to be committed if the judge decides to commit him under paragraph 7(1) or (2). Its effect is reflected in the form of the relevant statutory warrant of committal set out in the second schedule to the 1870 Act.
81. The position therefore is that the appellant was brought before the district judge as a fugitive criminal accused of an extradition crime and was dealt with accordingly. It is now recognised that he was not in fact such a person and that the Secretary of State's order was erroneous. That order was, however, the only basis for the committal hearing. In my view it was therefore not open to the Administrative Court to say that the district judge would have had jurisdiction to treat the appellant as a fugitive criminal alleged to have been convicted of the same crime. Unfortunately, due to the Secretary of State's mistake, she would have had no such jurisdiction. It follows that the Administrative Court should have granted habeas corpus.
82. I reach this conclusion with very moderate enthusiasm since, as counsel for the appellant acknowledged, if the Secretary of State's order had been correct and the appellant had appeared at a hearing to deal with him as a fugitive criminal alleged to have been convicted of the assault in question, on the evidence before her the district judge would have been bound to commit him in terms of paragraph 7(2) and (3). On the other hand, since the liberty of the appellant is involved, I am mindful of Mann LJ's admonition that the courts must be vigilant to ensure that the extradition procedures are strictly observed: In re Farinha  Imm AR 174, 178.
83. I am further confirmed in my conclusion by the equally reluctant decision of the Divisional Court in R v Governor of Brixton Prison ex parte Caborn-Waterfield  2 QB 498. In that case there had been proceedings against the applicant in France in relation to the theft of two large sums of money from someone living in Antibes. The applicant had not attended those proceedings although he had been represented. The applicant was subsequently arrested in London on a warrant issued by leave of the chief magistrate. The warrant stated that requisition had been made to the Secretary of State for the surrender of the applicant "suspected and accused of the commission of the crime of larceny within the jurisdiction of the Government of France". The words "or convicted" had been struck out from the text of the statutory form of the arrest warrant. At the committal hearing the applicant argued that no order for his committal should be made because he was not a person "accused of an extradition crime" within the meaning of section 10 of the 1870 Act (the equivalent of paragraph 7 of the schedule), inasmuch as he had already been convicted of the crime in respect of which his extradition was sought. In that case also the issue turned on whether the conviction in the French court was properly to be regarded as being for contumacy. Having considered the relevant evidence, the Divisional Court sustained the applicant's argument on this point. Salmon J said, at p 512:
In R v Governor of Pentonville Prison ex parte Zezza  1 AC 46, 55F-56D, Lord Roskill, with whose speech all the other members of the committee concurred, said that the Caborn-Waterfield case was clearly correctly decided. I see no basis for distinguishing or departing from the settled law on this point.
84. In the circumstances it is unnecessary to explore whether, and if so how, the Secretary of State might have cured the problem in the present case by issuing a further order to proceed in the correct terms.
85. For these reasons, as well as for those given by my noble and learned friend, Lord Hope of Craighead, I would allow the appeal.LORD WALKER OF GESTINGHORPE My Lords,