Canada (Government of) v Aronson
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Elwyn-Jones,Lord Griffiths,Lord Jauncey of Tullichettle,Lord Lowry |
| Judgment Date | 20 July 1989 |
| Judgment citation (vLex) | [1989] UKHL J0720-1 |
| Date | 20 July 1989 |
| Court | House of Lords |
[1989] UKHL J0720-1
House of Lords
Lord Bridge of Harwich
Lord Elwyn-Jones
Lord Griffiths
Lord Jauncey of Tullichettle
Lord Lowry
My Lords,
This appeal turns upon the construction of section 3(1)( c) of the Fugitive Offenders Act 1967. When a designated Commonwealth country seeks the return from the United Kingdom of a person who is accused or has been convicted of an offence against the law of that country ("a Commonwealth offence"), that offence is only a "relevant offence" if
"the act or omission constituting the offence … would constitute an offence against the law of the United Kingdom if it took place within the United Kingdom."
What does this phrase mean? Does it mean that the ingredients of the Commonwealth offence, as disclosed by the particulars of the offence in the charge, would, if proved, establish guilt of a corresponding United Kingdom offence ("the narrow construction")? Or does it mean that that totality of the evidence relied upon to prove the Commonwealth offence would, if accepted, prove guilt of a corresponding United Kingdom offence ("the wide construction")? I have reached the clear conclusion that the narrow construction is to be preferred.
The issue arises when the Commonwealth offence may be established by particularising and proving ingredients A, B and C, but the nearest corresponding United Kingdom offence requires that the prosecution prove ingredients A, B, C and D. It is submitted for the Government of Canada and the Governor of Her Majesty's Prison Pentonville ("the appellants") that if, in a particular case, the evidence relied on to prove the Commonwealth offence would be sufficient, if accepted, to establish ingredient D in addition to ingredients A, B and C, this is sufficient to satisfy the requirements of section 3(1)( c). Whether the extra ingredient necessary to prove the United Kingdom offence, over and above the ingredients which constitute the Commonwealth offence, is a physical or mental element, the wide construction leads to startling results. Two men are accused of the identical Commonwealth offence particularised against them in identical terms. The committing magistrate must decide whether the offence with which each is charged is a "relevant offence:" section 7(5). If the evidence establishes ingredients A, B and C against both men but ingredient D against the first man only, the magistrate must commit the first man, but not the second, to custody to await his return to the designated Commonwealth country. Yet so much of the evidence that is relied on to establish ingredient D, or any inference drawn from the evidence to establish ingredient D, will be irrelevant to his trial for the Commonwealth offence after his return. The anomaly is even more striking in relation to a fugitive whose return is sought as a convicted offender. Neither the jury's verdict of guilty nor his own plea of guilty to the Commonwealth offence as charged will be sufficient to resolve the question whether the Commonwealth offence of which he was convicted was a "relevant offence." The committing magistrate will have to go behind the verdict or the plea and the convicted offender's liability to return will presumably depend on the magistrate's own view as to whether the evidence establishes all the ingredients of the corresponding United Kingdom offence. I do not think the language of the statute fairly admits of the wide construction. The short answer is that neither the additional ingredient, nor the evidence which is said to establish that ingredient, forms any part of the material " constituting" the Commonwealth offence. But, if the language is ambiguous, the narrow construction is to be preferred in a criminal statute as the construction more favourable to the liberty of the subject.
The basic fallacy in the appellants' argument, as set out in paragraphs 1 to 5 under the heading "Question 1" in their written case, lies in the attempt to assimilate the requirements of the Act of 1967 to the requirements of the Extradition Act 1870. The attempt fails because the structure and machinery of the two Acts are entirely disparate. An "extradition crime" under the Act of 1870 is one of the specific English crimes set out in the "List of Crimes" in Schedule 1. The introductory paragraph reads:
"The following list of crimes is to be construed according to the law existing in England, or in a British possession (as the case may be), at the date of the alleged crime, whether by common law or by statute made before or after the passing of this Act … ."
Nowhere in the Act of 1870 is there any provision which has the effect of imposing a double-criminality rule, though such a rule may be introduced into the extradition machinery by the provisions of particular treaties. By contrast, Schedule 1 to the Act of 1967 sets out a list of returnable offences described in broad categories and reproducing in terms the list found in Annex 1 to the Scheme relating to the Rendition of Fugitive Offenders within the Commonwealth (1966) (Cmnd. 3008) agreed between Commonwealth Law Ministers in 1966. Legislating to give effect to the Scheme, it was necessary to provide that a returnable offence should both fall within one of those broad categories and satisfy the "double-criminality rule" laid down in clause 10 of the Scheme. That explains why the definition of "relevant offence" in section 3(1) requires that, in relation to a designated Commonwealth country, both paragraphs ( a) and ( c) should be satisfied.
For these reasons, and for those given by my noble and learned friend Lord Lowry, with whose speech I fully agree, I would dismiss the appeal.
My Lords,
This appeal involves construction of section 3(1)( c) of the Fugitive Offenders Act 1967, which created a stricter and more demanding scheme of extradition than its predecessor the Fugitive Offenders Act 1881. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bridge of Harwich and Lord Lowry. I agree with them and with "the narrow construction" of the words in the section. To the extent that the section is ambiguous, as the Act of 1967 imposes criminal liability, it should, in my opinion, be construed in the narrow sense in favour of the liberty of the subject. I would dismiss the appeal.
My Lords,
The Canadian Government wish to extradite the applicant to stand trial in Canada on a large number of offences of dishonesty which he is alleged to have committed in Canada between 1983 and 1986. The Chief Metropolitan Stipendiary Magistrate was satisfied by evidence produced by the Canadian Government that the offences were relevant offences within the meaning of section 3 of the Fugitive Offenders Act 1967 and that the evidence was sufficient to warrant the trial of the applicant for those offences if he had committed them in England. The magistrate therefore committed applicant to custody to await his return to Canada to stand trial on 77 offences.
The applicant applied for habeas corpus and before the Divisional Court submitted that he had been wrongly committed on 69 of the offences. The Divisional Court if they had felt free to do so would have upheld the magistrate; however, they felt constrained by authority to apply a construction of the Act of 1967 which they clearly considered incorrect and which forced them to quash the committal in respect of 69 of the offences. In my opinion the Divisional Court's preferred construction of the Act of 1967 is correct and the applicant should be committed on all 77 charges. Furthermore, I do not think that the earlier authorities cited by the Divisional Court in fact compelled them to adopt a construction of the Act which they did not believe to be right.
The Act of 1967 was introduced to give effect to a Scheme relating to the Rendition of Fugitive Offenders within the Commonwealth (Cmnd. 3008) presented to Parliament by the Secretary of State for the Home Department by command of Her Majesty in May 1966. It is, I think, worth setting out the foreword to the Scheme:
"At the meeting of Commonwealth Law Ministers, held at Marlborough House, London, from 26 April to 3 May 1966, the arrangements for the extradition of fugitive offenders within the Commonwealth were reviewed in the light of the constitutional changes which have taken place since the passing of the Fugitive Offenders Act 1881.
The following extract from the communique issued at the conclusion of the meeting explains the purpose of the Scheme, the text of which is reproduced at pages 1-8:
'The meeting considered that Commonwealth extradition arrangements should be based upon reciprocity and substantially uniform legislation incorporating certain features commonly found in extradition treaties, e.g. a list of returnable offences, the establishment of a prima facie case before return, and restrictions on the return of political offenders.
The meeting accordingly formulated a Scheme setting out principles which could form the basis of legislation within the Commonwealth and recommended that effect should be given to the Scheme in each Commonwealth country. The Scheme does not apply to Southern Rhodesia.'"
This was a radically different scheme from that which had previously applied to the extradition of fugitive offenders under the Fugitive Offenders Act 1881. Under that Act a fugitive was returnable if he had committed any crime in a part of Her Majesty's dominions punishable with imprisonment for more than 12 months regardless of whether or not his conduct amounted to a crime in that part of Her Majesty's dominions where he was arrested. The new scheme proposed that...
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