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In re Guisto (FC) (Appellant) (application for a writ of Habeas Corpus) (Criminal Appeal from Her Majesty's High Court of Justice)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re Guisto (FC) (Appellant) (application for a writ of Habeas Corpus) (On Appeal from a Divisional Court of the Queen's Bench Division)
THURSDAY 3 APRIL 2003
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re Guisto (FC) (Appellant) (application for a writ of Habeas Corpus) (On Appeal from a Divisional Court of the Queen's Bench Division) UKHL 19
LORD NICHOLLS OF BIRKENHEAD
1. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry. For the reasons they give I would allow this appeal.
LORD HOPE OF CRAIGHEAD
2. This is an appeal from a decision of the Administrative Court (Rose LJ and Gibbs J)  EWHC 1441 (Admin) in an application for habeas corpus. It was brought to challenge the lawfulness of the appellant's detention under a committal order made by a Designated District Judge under paragraph 7 of Schedule 1 to the Extradition Act 1989, as a request had been made for his extradition to the United States of America. The question which lies at the heart of the appeal is a question of jurisdiction. Was it within the jurisdiction of the judge to make the committal order when the facts show that the appellant is a convicted person and not, as the Secretary of State wrongly asserted and the judge wrongly assumed when she made the order, a person accused who has yet to stand trial in the United States?
3. On 8 June 1972 a new treaty for the reciprocal extradition of offenders was entered into between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America, replacing an earlier treaty of 22 December 1931 which had itself replaced earlier treaties providing for extradition between the two countries which had been in existence since 1842. The 1972 Treaty ("the Treaty") was ratified on 21 October 1976. On 15 December 1976, in the exercise of powers conferred on Her Majesty by sections 2, 17 and 21 of the Extradition Act 1870, the United States of America (Extradition) Order 1976 (SI 1976/2144) was made to bring the Treaty into force in the United Kingdom. The terms of the Treaty are set out in Schedule 1 to the 1976 Order.
4. In terms of article I of the Treaty each contracting party undertakes to extradite to the other, in the circumstances and subject to the conditions specified in the Treaty, any person found in its territory who has been accused or convicted of any offence within article III committed within the jurisdiction of the other party. The offences listed in article III include, in addition to an offence within any of the descriptions listed in the Schedule to the Treaty, an offence which 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 which constitutes a felony under the law of the United States of America. Article VII provides that a request for extradition shall be made through the diplomatic channel and that it shall be accompanied by various items of information, including a statement of the facts of the offence for which extradition is requested. Article VIII provides that in urgent cases the person sought may, in accordance with the law of the requested Party, be provisionally arrested on application through the diplomatic channel by the competent authorities of the requesting Party, but that a person arrested upon such an application shall be set at liberty upon the expiration of 45 days from the date of his arrest if a request for his extradition shall not have been received.
5. In accordance with requirements which have long been recognised as an essential part of achieving justice in extradition law, the details that have to be provided in support of a request for extradition differ according to whether the fugitive criminal is an accused person who has still to face trial or is a convicted person whose extradition is sought for the purpose of ensuring that he serves his sentence. Paragraphs (3) and (4) of article VII of the Treaty are in these terms:
6. The Extradition Act 1870 was repealed by section 37 of and Schedule 2 to the Extradition Act 1989 ("the 1989 Act"). Section 1(3) of the 1989 Act provides:
I shall have to return to the provisions of Schedule 1 in more detail later. For the time being it is sufficient to note that it sets out the procedure which must be followed by the authorities within the domestic system of the United Kingdom to give effect to this country's treaty obligations with the foreign state.
7. On 20 December 1994 the appellant Gennaro Guisto, also known as Jerry Russo, was involved in an incident in Manhattan, New York. A student named Sean Jennings was subjected to an unprovoked attack in the early hours of the morning when he was walking to the subway. He was viciously assaulted by two men with an aluminium baseball bat and sustained serious facial injuries. The appellant and his brother John Russo were subsequently arrested and charged with this assault. On 10 January 1995 the appellant was indicted for assault in the first degree by a New York County Grand Jury. This is an offence which under the law of the State of New York is punishable by a sentence of more than one year's imprisonment. On 27 January 1995 the appellant appeared before a judge of the New York Supreme Court and was admitted to bail. The judge gave him what is known as a "Parker" warning: The People v Parker, 57 NY 2d 136, 454 NYS 967, 440 NE 2d 1313 (1982). He warned the appellant that, if he intentionally absented himself, his trial could go ahead in his absence and that he could also be sentenced without being there. When he was asked whether he understood this warning the appellant answered in the affirmative.
8. On 6 July 1995 the appellant appeared before the New York Supreme Court for a hearing regarding the case. But he failed to appear for a further hearing that afternoon, and a warrant was issued for his arrest. Attempts were made to trace him, but they met with no success. On 16 October 1995, following a motion by the prosecution that as the appellant had intentionally absented himself from his trial he should be tried in his absence, a trial began in his absence in which he was charged with assaulting Sean Jennings in the first degree. On 19 October 1995 he was convicted of this charge by the jury. On 29 November 1995 the trial judge, Justice Harold Rothwax, sentenced the appellant in his absence to a term of between 5 to 15 years' imprisonment and fined him $5,000. Warrants were again issued for his arrest. But attempts to trace him were again unsuccessful.
9. On 10 October 2001 police officers who were on duty in the town centre at Hayes, Middlesex observed a man behaving in an unusual manner while seated on the floor of a bandstand. When he was asked for his name the man said that it was Gennaro Guisto and that he was from America. Further inquiries revealed that the man to whom the police were speaking was the appellant and that there was an Interpol Locate/Trace marker against his name. He was arrested and taken into custody. The Embassy of the United States of America in London was notified, and the Embassy responded immediately. In a letter dated 10 October 2001, addressed to the Secretary of State, the Ambassador of the United States of America requested the provisional arrest of the appellant under article VIII of the Treaty for the purpose of his extradition to the United States on the ground that he was wanted by the State of New York to serve a sentence on an assault charge. An assurance was given that if the appellant was provisionally arrested in response to this request the United States would submit the supporting documents required by the Treaty within the time which the Treaty specified. On 11 October 2001 a District Judge at Bow Street Magistrates' Court designated for the purposes of the Extradition Act 1989 granted a provisional warrant for the arrest of the appellant under paragraph 5(1)(b) of Schedule 1 to the 1989 Act. He did so on the ground that it had been shown that the issue of a warrant for the arrest of a person convicted of an offence in the United Kingdom would have been justified.
10. The judicial authorities in the United States then put in hand the preparation of the documents which under article VII of the Treaty were required for presentation to the Secretary of State to enable him to give effect in domestic law under paragraph 4(1) of Schedule 1 to the 1989 Act to the extradition process. On 30 November 2001 a statement verifying the history of the proceedings in New York was sworn before a New York justice by an assistant District Attorney. It concluded by requesting the appellant's return to the United States "for execution of the sentence imposed by Justice Harold Rothwax on 29 November 1995." On 6 December 2001 a requisition for the surrender of the appellant was duly made to the Secretary of State in London by a representative of the United States Embassy. Attached to it was the statement by the assistant District Attorney. This made it clear beyond any doubt that the request was being made on the ground that the appellant was a convicted person and not as an accused person who had yet to face trial.
The statutory requirements
11. Paragraph 4(1) of Schedule 1 to the 1989 Act provides that a requisition for the surrender of a fugitive criminal of any foreign state who is in the United Kingdom, shall be made to the Secretary of State by some person recognised by him as a diplomatic or consular representative of that foreign state. Paragraph 4(2) of the Schedule, as amended by section 78(2) of and Schedule 11 to the Access to Justice Act 1999, provides:
For convenience I shall use the shortened expression "the District Judge" to describe the judge to whom the order described in this paragraph is to be addressed and on whom the judicial functions which flow from it are imposed by the Schedule.
12. Paragraph 5 provides for the issue by the District Judge of a warrant for the apprehension of the fugitive criminal. This may be done either on receipt of the order of the Secretary of State made under paragraph 4(2) or, as happened in this case, by the issuing of a provisional warrant by the District Judge on the receipt of such information as would justify the issue of a warrant if the crime had been committed or the criminal convicted in the United Kingdom. Paragraph 5(2) provides that any person issuing a warrant under that paragraph without an order of the Secretary of State shall forthwith send a report of the fact of such issue to the Secretary of State. Paragraph 5(4) provides that the fugitive criminal shall be discharged unless the District Judge receives, within such reasonable time as he may fix, an order from the Secretary of State signifying that a requisition has been made for the surrender of such criminal. The next stage in the proceedings, as Woolf LJ explained in In re Naghdi  1 WLR 317, 321, is the hearing before the District Judge as to whether he should commit the fugitive to prison to await the warrant of the Secretary of State for his surrender to the requisitioning foreign state.
13. Paragraph 7 of Schedule 1 to the 1989 Act, as amended by section 158(8)(c) of the Criminal Justice and Public Order Act 1994 and by the above-mentioned provisions of the Access to Justice Act 1999, is in these terms:
In paragraph 20 of the Schedule it is provided that, 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.
14. In R v Governor of Brixton Prison, ex parte Caborn-Waterfield  2 QB 498 Salmon J summarised the effect of these provisions, under reference to section 10 of the Extradition Act 1870 from which paragraphs 7(1) and (2) of Schedule 1 to the 1989 Act are derived, in these terms at p 509:
15. As Lord Roskill observed in R v Governor of Pentonville Prison, ex parte Zezza  1 AC 46, 53F-G, the phrase "conviction for contumacy" is not defined in paragraph 20 of the Schedule. It cannot be said to have an ordinary meaning in the English language. Although the word "contumacy" indicates insubordination or disobedience in the face of the court, the concept of a "conviction for contumacy" is something with which our own law is not familiar. But we are not concerned here with the usage of the word in domestic law. The words "conviction" and "convicted" are used in the Schedule with reference to fugitive criminals whose surrender is requested by a foreign state. The purpose of the definition is to ensure that a person convicted in contumacy in a foreign court is not to be treated as a convicted person but will be included in the category of an accused person for the purpose of the procedures which the Schedule lays down. The definition assumes that there may be a conviction properly so described in some systems of foreign law that will make it necessary from time to time to draw this distinction.
16. In re Coppin (1866) LR 2 ChApp 47 was such a case. The judgment of which Coppin had been convicted by a court in Paris in his absence was a conviction "par contumace". The evidence showed that it was subject to annulment if Coppin surrendered himself to the court's jurisdiction. In that event he would be tried again for the offence with which he had been charged in exactly the same way as if no proceedings had been taken against him. It was held that Coppin had to be treated as an accused person for extradition purposes. In R v Governor of Brixton Prison, ex parte Caborn-Waterfield  2 QB 498, 510 Salmon J said that the words "for contumacy" were introduced into section 26 of the Extradition Act 1870, from which paragraph 20 of Schedule 1 to the 1989 Act is derived, to bring the statute into line with In re Coppin. Other cases show that the mere label of a conviction as for contumacy or on default will not be enough. In Caborn-Waterfield the evidence showed that the applicant's conviction in France in his absence was not one which would give rise to a re-trial on his surrender but would result in service of his sentence. In R v Governor of Pentonville Prison, ex parte Zezza  1 AC 46 the applicant had been tried and convicted in his absence in Italy under a form of procedure which was described as "in contumacia". The evidence was that there had previously been in force in Italy a procedure under which a conviction and sentence could be re-opened if the accused re-appeared. But this rule had been departed from in 1931, and if the applicant were to be extradited his conviction would be regarded as final so he had no right to a fresh trial.
17. There was no suggestion in the papers which accompanied the requisition for the appellant's extradition to the United States that his conviction in absence in the Supreme Court of the State of New York, following the Parker warning which he received when he was granted bail, would be open to reconsideration if he were to be returned to that country and to submit himself once again to the jurisdiction of that court. It had been made clear all along that his extradition was being sought as a convicted person so that he could be required to serve his sentence, and not as a person accused. But, for reasons that have not been explained, that was not the way the case was presented when the Secretary of State issued his order to proceed under paragraph 4(2) of Schedule 1 to the 1989 Act.
The proceedings in the Magistrates' Court and the Administrative Court
18. On 18 December 2001 the Secretary of State issued his order to proceed under paragraph 5(4) of the Schedule in which he signified to the Senior District Judge within the time allowed under that subparagraph that a requisition had been made for the surrender of the appellant to the United States. But, instead of saying that his extradition was being sought as a convicted person, it was stated in the recital to the order that he was 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."
19. Steps were then taken to bring the case before the District Judge for a committal hearing for the appellant's extradition on the assumption that he was an accused person to whom the provisions of paragraph 7(1) of the Schedule applied. An information was prepared on behalf of the Government of the United States in which, under the heading "Conduct of which Jerry Russo is accused," it was stated:
It should be noted that "maliciously wounding or inflicting grievous bodily harm" is one of the offences listed in the Schedule to which article III of the Treaty refers. An affidavit was prepared by the assistant District Attorney setting out various procedural options that would be open to the appellant to challenge his conviction in the United States court. It also included the evidence which was being relied upon to establish the appellant's guilt. In a supplemental affidavit he requested the appellant's return to the United States "so that whatever appropriate proceedings can be held before the Courts of the State of New York." The papers also included a certificate signed by the County Clerk and Clerk of the Supreme Court, New York County, in which it was stated that the appellant had been tried and found guilty of the crime of assault in the first degree and had been sentenced to a minimum of 5 and to a maximum of 15 years' imprisonment. They also included a copy of the warrant for the appellant's arrest as a convicted person issued by the Supreme Court of the State of New York.
20. On 11 February 2002 a committal hearing took place before the Designated District Judge, District Judge Rees, at Bow Street Magistrates' Court. It was submitted for the Government of the United States that the appellant's conviction should be treated as a conviction for contumacy and that he should be treated as a person accused as far as the request for extradition was concerned. For the appellant it was submitted that there was no prospect of his conviction being set aside and that he should be treated as a convicted person. The information which was before the District Judge on this point was meagre. In a reserved judgment which she delivered on 14 March 2002 she said that she was unable to speculate about the prospects of success or otherwise of any application that the appellant might choose to make. But she said that she was satisfied that there were a number of ways in which he might appeal against his conviction and seek a retrial. She held that his conviction was in contumacy and that he was correctly treated as an accused person. Having satisfied herself that there was ample evidence of an extraditable offence against the appellant, she committed him to await the decision of the Secretary of State as to his return. The committal order states that it was made under paragraph 7 of Schedule 1 to the 1989 Act.
21. In the Administrative Court it was submitted for the Government of the United States that the District Judge was justified in coming to the conclusion that the appellant's conviction was in contumacy. On this occasion the court had before it evidence which showed that it was well established that a trial may proceed in a defendant's absence if he had voluntarily absented himself, that there are established procedures to ensure fairness to the defendant in these circumstances and that there was nothing to suggest that a conviction which resulted from such a trial was to be regarded as anything other than final. Having examined this evidence the court held that the District Judge was wrong to hold that the appellant's conviction was a conviction in contumacy. The respondents accept the Administrative Court's finding on this matter. So the question whether under the foreign law the conviction was a conviction in contumacy is no longer in issue. In retrospect it can be seen that the suggestion that under the law of the State of New York the conviction was of that character was bound to fail.
22. But, as Gibbs J said in paragraph 55 of his judgment, the matter does not end there. The Administrative Court's finding that the District Judge was in error on this point opened up a further and more fundamental question. Was the District Judge's committal order made without jurisdiction?
23. Addressing himself to this question Gibbs J, with whom Rose LJ agreed, said that the starting point and source of the jurisdiction lay in the requisition which had been made by the United States Government, the only possible interpretation of which was that the appellant's extradition was being requested as a convicted person. So the Secretary of State's description of him in the order to proceed was an error. But Gibbs J said that in his view there was no statutory or other legal requirement for him to specify whether the requisition was for the surrender of the person in either capacity. The error did not affect the validity of the requisition itself, so it did not deprive the District Judge of the jurisdiction to commit the appellant under paragraph 7(3) of the Schedule on the basis that he was a convicted person within the scope of paragraph 7(2). Had she applied the correct legal test she would have arrived at the same conclusion. The application for habeas corpus was refused.
24. The question which is before your Lordships can be stated quite simply. It is whether the District Judge had jurisdiction to make the order of committal by which the appellant is presently being detained. It is plain that it is not the function of the District Judge to determine his own jurisdiction. He is being called upon to exercise the jurisdiction which has been given to him by paragraph 7 of the Schedule, so it is to the provisions of that paragraph that one must look in the first instance. Paragraph 7 deals with the fugitive criminals who are accused and who are alleged to have been convicted separately in the first two subparagraphs. The third subparagraph is of general application, as it directs the District Judge how the matter is to be disposed of if he commits such a criminal to prison. The question is whether the District Judge has jurisdiction to determine into which of the first two subparagraphs the case of the fugitive criminal falls, or whether he is bound to confine himself to one or other of them according to the category in which the fugitive criminal has been placed when the case is brought before him.