In re Guisto (FC) (Appellant) (application for a writ of Habeas Corpus) (Criminal Appeal from Her Majesty's High Court of Justice)
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:
49. The committal proceedings were governed by para 7 of Schedule 1 which provides:
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:
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:
In para 6 she stated:
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:
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:
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  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:
Section 10 of the Extradition Act 1870 was in similar terms to para 7 of Schedule 1 and provided:
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:
The judgment then concluded at p 512:
That decision was approved by this House in R v Governor of Pentonville Prison ex parte Zezza  1 AC 46 and referring to it Lord Roskill stated at page 56a:
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  1 WLR 890, 894d:
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  Imm AR 174, 178, the Courts must be vigilant to ensure that the extradition procedures are strictly observed.
LORD RODGER OF EARLSFERRY
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:
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:
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  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,  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.