Angelino Maria Fernandes De Canha v The Government of Portugal and Another
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE BUXTON |
| Judgment Date | 07 July 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0707-3 |
| Date | 07 July 1997 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/0769/97 |
[1997] EWCA Civ J0707-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
The Lord Chief Justice of England
(Lord Bingham of Cornhill)
and
Mr Justice Buxton
CO/0769/97
In the Matter of the Extradition Act 1989
And in the Matter of an Application For
A Writ of Habeas Corpus Ad Subjiciendum
MS HELEN MALCOLM (instructed by Messrs Reynolds Dawson, London WC2) appeared on behalf of THE APPLICANT
MR JOHN HARDY (instructed by the Crown Prosecution Service, Headquarters, Ludgate Circus) appeared on behalf of THE RESPONDENTS
Monday 7 July 1997
On 20 February 1997, a Metropolitan Stipendiary Magistrate sitting at Bow Street committed Mr De Canha, whom I shall call the applicant, under section 9(8) of the Extradition Act 1989 to await the decision of the Secretary of State whether he should be returned to Portugal to face criminal charges on the application of the Government of Portugal. The applicant challenges the lawfulness of that committal and applies for an order of habeas corpus.
On 20 March 1996 the Court of Ponta Do Sol in Portugal issued an international warrant for the arrest of the applicant. The warrant stated that, at unspecified dates during the period between January 1993 and January 1995, the suspect (the applicant), with the intention of obtaining for himself a material benefit to which he knew he was not entitled, falsified at least 14 English driving licences. For this purpose he is said to have used a typewriter with a keyboard and characteristics identical to those of the Traffic Authority in London. The warrant goes on to state that subsequently the applicant sold these driving licences to various individuals of Portuguese nationality for sums of between £330 to £660 (Sterling equivalent), the buyers later exchanging them for Portuguese driving licences. It is accordingly stated in the warrant that the applicant was accused of having wilfully committed 14 crimes of document falsification contrary to paragraphs 1(a) and 2 of Article 228 of the Penal Code.
Article 228 makes it plain that it is an offence under the Penal Code to manufacture a false document, or to falsify or alter a document. On conviction of this offence in Portugal, if the document is a significant document, a defendant is liable to imprisonment for a period of between one and four years.
The charges drawn up to reflect the application of the Government of Portugal are all in the same form. I take one as an example. It reads:
"FOR THAT HE [the applicant] on a date unknown between January 1993 and January 1995 made an instrument, namely a British driving licence, with intent to induce somebody to accept it as genuine and, by reason of so accepting it, to do or not to do some act, to his own or any other person's prejudice."
It is plain from that formulation of the charge that what is complained of is forgery with intent to deceive, rather than using or uttering a forged document, or obtaining by deception. On the charges (prepared in this country) it is said that the offences were all committed within the jurisdiction of Portugal.
A formal request for extradition was made by the Portuguese Government, and authority to proceed (required by section 7 of the Extradition Act 1989) was given on 9 November 1996.
It is said that the magistrate was wrong to find that the statute and the Convention conditions governing extradition between the United Kingdom and Portugal had been complied with by the Portuguese Government. The grounds for that complaint are two-fold: first, that the Portuguese Government failed to specify the place where the offences were alleged to have been committed; and secondly, that the Portuguese Government failed to comply with the requirements of section 26 of the Extradition Act 1989 governing the authentication of foreign documents.
It is convenient to consider the second of those points first. Section 26 of the 1989 Act provides in subsection (1):
"In extradition proceedings in relation to a person whose return has been requested by a foreign state foreign documents may be authenticated by the oath of a witness, but shall in any case be deemed duly authenticated—
(a) if they purport to be signed by a judge, magistrate or officer of the foreign state where they were issued; and …."
The warrant for the arrest of the applicant was certified by the examining magistrate and the court clerk of the issuing court. No point is taken on that. The extracts from the Portuguese Criminal Code, however, were authenticated only by the court clerk of the issuing court, and it is argued that the court clerk does not fall within the expression "judge, magistrate or officer of the foreign state" for purposes of section 26(1)(a). This poses a question of construction and it is in my judgment necessary to consider first the context, which is the authentication of legal documents relating to the extradition of a defendant said to be guilty of crime. The documents likely to be so authenticated are a list of charges, a statement of the accusation, the statutory material upon which the offence is based in the foreign country and perhaps other documents emanating from or passing through the foreign court. In my judgment it is evident that the court clerk is a suitable person to authenticate such documents. When one looks at the language of the subsection and the reference to a "judge, magistrate or officer of the foreign state where [the documents] were issued", it appears to me that that language directs attention to the legal hierarchy of the foreign court: from the judge, to the magistrate, to an officer or official. It is, as I think, difficult to see what officer of the foreign state would be intended to be covered by the expression there used if not the Registrar (where such an office exists) or the court clerk. It would be wrong to adopt too narrow and pedantic a construction of this language, as is made clear in Government of Belgium v Postlethwaite & ors [1988] AC 924, at 946H. Looking at the context and the language, it seems to me plain that a court clerk is intended to be covered.
Authority does not suggest a different conclusion. In R v Bow Street Magistrates' Court, ex parte Van Der Holst (1986) 83 Cr App R 114, a public prosecutor in the Netherlands was held to qualify. In In re Espinosa [1986] Crim LR 684 a notary public in Florida was held to qualify. More recently, in In re Kern (unreported, 25.3.97), a decision of this court given by Simon Brown LJ and Curtis J, a deputy court clerk was again held to qualify, although it is right to say that that decision was largely based on the construction of the Federal Rules of Procedure. In Ashkenazi v Director of Cowansville Penitentiary (1979) 9 CR (3d) 256, the Quebec Superior Court held that a clerk of the United States District Court for the Eastern District of New York was an officer of the foreign state requesting extradition.
The only contrary authority brought to our attention is a Bahamian decision, R v Superintendent at Her Majesty's Prison Fox Hill, ex parte Bain [1989-90] 1 LRB 156. That decision related to a deputy clerk of the United States District Court for the Southern District of Florida, and he was held not to be an officer of the state. The attention of the court does, however, appear to have been concentrated on the expression "officer of state" and not on the phrase of which that forms part. To the extent that it was indicated that 'court clerk' was not covered, I must for my part respectfully disagree with that decision. I have in the result no hesitation in rejecting this ground of challenge to the committal in this case.
I turn therefore to the other and, in my judgment, more substantial ground. It is pointed out by the applicant that in Article 12(2)(b) of The European Convention on Extradition Order 1990 (SI 1507 of 1990), which governs relations between the United Kingdom and Portugal, it is provided with regard to the request made by the requesting government as follows:
"2. The request shall be supported by:
(a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party;
(b) a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and
(c) a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality."
The point made with reference to Article 12(2)(b) is that there was nothing in the material presented by the Government of Portugal in this case to indicate the place where the alleged offences were committed. That was, as Miss Malcolm submitted in the course of her well-prepared and cogent argument, a breach of the requirements of the Convention. She submits that there was no material before the magistrate to satisfy him that an extradition crime had been committed. She points out that the satisfaction of the English court that the offence is an extradition crime is an essential condition of making an order for committal, as shown by section 9(8) of the 1989 Act which provides:
"Where an...
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