Crown Prosecution Service v Roderick Fraser Beaumont
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis |
| Judgment Date | 08 April 2022 |
| Neutral Citation | [2022] EWHC 849 (Admin) |
| Docket Number | Case No: CO/2323/2021C |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 849 (Admin)
Lord Justice Lewis
Mr Justice Bennathan
Case No: CO/2323/2021C
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Perry Q.C. and Rosemary Davidson (instructed by the Crown Prosecution) for the Claimant
David Josse Q.C. and John Crawford (instructed by Taylor Rose) for the Defendant
The Interested parties did not appear and were not represented
Hearing date: 1 April 2022
Approved Judgment
Lord Justice Lewis handed down the following judgment of the court:
Introduction
This is the judgment of the Court, to which we have both contributed. This is a claim for a declaration as to the meaning and effect of section 152 of the Extradition Act 2003 (“the 2003 Act”).
Facts
The defendant was born on 3 December 1955. He has three convictions for sexual offences. In 1984 he was convicted and imprisoned for some months for three offences, one of which was an indecent assault. The two later convictions of more direct relevance to these proceedings were as follows:
(1) On 25 October 2016 at Airdrie Sheriff's Court, he pleaded guilty to an offence of intentionally sending a sexual communication to an older child, contrary to section 34 of the Sexual Offences (Scotland) Act 2009 (“the Scottish offence”). The offence had been committed in December 2015. Sentence was adjourned, whereupon the defendant absconded, and, on 5 December 2016, the court issued a warrant for his arrest.
(2) Shortly before the guilty plea to the Scottish offence, the defendant had appeared at Warwick Crown Court on 6 October 2016 and pleaded not guilty to two offences of indecent assault, contrary to section 15(1) of the Sexual Offences Act 1956 (“the Warwick offences”). These were allegations of historic sexual abuse between 1979 and 1981 when the defendant had been a teacher at the complainant's primary school. On 23 January 2017 the defendant failed to appear, and a warrant was issued. In September 2017 he was tried in his absence and convicted and in November of the same year sentenced to an extended sentence of 9 years, under section 226A of the Criminal Justice Act 2003, made up of 4 years custody followed by 5 years on extended licence.
The defendant was located in Mexico. On 16 August 2018 the Lord Advocate issued a request to the Mexican authorities for the extradition of the defendant for the Scottish offence and for an offence of failing to appear in the Scottish court.
The West Midlands police responsible for investigating the Warwick offences were aware that extradition proceedings had begun. The Scottish authorities also notified the Crown Prosecution Service (“CPS”) that the defendant had been located and extradition proceedings had started. The CPS did not take steps to seek the extradition of the defendant for the Warwick offences. The CPS lawyer with responsibility for this matter has explained that she was unaware of the specialty rule in extradition which provides that a person may not be dealt with for convictions for offences that predate, and do not form the basis of, the request for extradition. It seems that it was assumed that the defendant could be dealt with for the Warwick offences after he had been dealt with in Scotland. We understand that errors occur and we do not attribute blame to any specific individual (particularly when we have no knowledge of matters such as the training or support that the police and CPS are given with regard to extradition). Whatever the precise cause, however, we agree with the view expressed by Holroyde LJ (in interim proceedings in this case that we will describe shortly) that the failure to appreciate there would be a problem with specialty was “ a significant and serious error”.
In the event, the defendant was only extradited for the Scottish offence and the offence of failure to attend the court in Scotland. He was dealt with by the Sheriff's Court. He was sentenced to 12 months' imprisonment to be served concurrently for each matter. The Judge indicated that a sentence of 16 months' imprisonment would have been appropriate but he reduced that sentence by 4 months to 12 months to reflect some of the time that the defendant had spent in custody in Mexico. Under the applicable provisions this gave a release date of 14 July 2021.
There were a series of hearings at Warwick Crown Court between February and May 2021. In the course of those hearings, it was realised that the 2003 Act may not permit an extradited person to be dealt with for matters that predate, and were not the basis for, the person's extradition. At one hearing the defendant entered a guilty plea to the offence of failing to surrender under the Bail Act 1976, but that was vacated at the Judge's direction at a later date. The CPS then brought these proceedings to determine the proper interpretation of section 152 of the 2003 Act and also sought the consent of the Mexican authorities for the execution of the sentence imposed for the Warwick offences and to prosecute the defendant for his failure to surrender to bail.
There was an interim application in this Court to prevent the defendant's release before the issue of the interpretation of section 152 was resolved. On 13 July 2021 William Davis J (as he then was) granted an ex parte injunction requiring the relevant prison governor to keep the Defendant in custody, with a return date for an inter partes hearing 3 days later. At the hearing on 16 July before Holroyde LJ and May J, the Defendant was present but not legally represented, the Divisional Court determined that the balance of convenience favoured the continuation of the injunction ideally for as short a time as possible to permit the merits of the claim to be considered. Directions for a hearing were given. Holroyde LJ expressed the view that it was important that the defendant be granted legal aid to obtain legal representation. The judgment of the Divisional Court is reported at [2021] EWHC 2050 (Admin). The defendant remains in prison pursuant to the terms of that injunction.
In the event there was a degree of confusion and significant delay with regard to legal aid but those matters were resolved in February of this year and the matter was listed for hearing on Friday 1 April 2022 with both the claimant and defendant represented by leading and junior counsel. We are grateful to counsel for the claimant and the defendant for their full and helpful written and oral submissions. The interested parties had notified the court that they did not seek to play any part in this litigation and have not done so.
The final matter of significance in the history of these events is that the Mexican authorities have now granted their consent for the execution of the sentence imposed for the Warwick offences and for the prosecution of the defendant for the failure to surrender to bail.
Preliminary issue – the jurisdiction to grant a declaration
Section 19 of the Senior Courts Act 1981 and CPR 40.20 confer jurisdiction on the High Court to grant declarations. That includes declarations as to the meaning of statutory provisions such as section 152 of the 2003 Act. We are satisfied that this is an appropriate case for the court to consider whether or not to grant such a declaration particularly having regard to the guidance given as to when the Court may appropriately exercise this discretion by Leggatt LJ, as he then was, in the Divisional Court in R (Bus and Coach Association Limited) v Secretary of State for Transport [2019] EWHC 3319 (Admin). The issue raised is one of statutory interpretation to be considered against an established factual background. The declaration will be binding on the defendant, the claimant, and the interested parties including the Governor of the prison where the defendant is currently being held. There has been full argument on both sides as to the meaning of the statutory provision. The declaration does not involve any ruling on whether or not the conduct of the defendant is criminal (that was determined by the Crown Court at Warwick some years ago) and concerns only the question of whether the sentence imposed for that conduct is to be treated as served or remains to be served. We note that, by the end of the hearing before us, there was no argument made that the case was not an appropriate one for considering the grant of declaratory relief.
THE LEGAL FRAMEWORK
Extradition
Specialty is a long standing principle in extradition law. In essence it prevents a requesting state from securing the return of an individual for one offence, then prosecuting or imprisoning them for another offence that predated the extradition. The rationale was explained by the Court of Appeal in R v Seddon [2009] 1 W.L.R. 2342 [5].
“Historically, extradition was generally achieved through separate bilateral treaties between states. Commonly the power of the requested state to refuse extradition in some circumstances was preserved by the terms of such treaties. To give effect to that practice, the principle evolved that if A requested a prisoner from B, A would identify the offence for which the prisoner was wanted, so that B could decide whether there was a sufficient reason to refuse to surrender him. With that went the practice that if surrendered the prisoner could only be dealt with for the offence for which he had been sought, otherwise plainly the surrendering state's power to refuse would be circumvented. That principle is called specialty. It has been recognised in this country by successive statutes dealing with our local rules for extradition both inward and outward. The rationale for it may...
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