Deuss v Attorney General
| Jurisdiction | UK Non-devolved |
| Judge | LORD PHILLIPS |
| Judgment Date | 04 November 2009 |
| Neutral Citation | [2009] UKPC 38 |
| Court | Privy Council |
| Docket Number | Appeal No 0015 of 2009 |
| Date | 04 November 2009 |
[2009] UKPC 38
Lord Phillips
Lord Scott
Lord Brown
Lord Mance
Lord Neuberger
Privy Council
Appellant
Claire Montgomery QC
Instructed by (Peters and Peters)
Barrie
Respondent
Rory Field
McKay
Howard Stevens
Instructed by (Charles Russell LLP on behalf of DPP Bermuda)
Introduction
The appellant is a Dutchman who maintains a number of residences in Bermuda. He is the sole shareholder and chairman of the supervisory board of the First Curacao International Bank ("the Bank"). In the latter part of 2005 the Dutch fiscal investigatory authority carried out an investigation into the activities of the Bank. This led the Dutch Public Prosecutor to issue a warrant for the arrest of the appellant, a copy of which together with a translation was placed before their Lords hips. This records that on 5 September 2006 the Public Prosecutor ordered the arrest of the appellant on suspicion of having committed three offences under the law of the Netherlands:
i) "deliberately handling stolen property" contrary to article 416 of the Criminal Code between 19.10.2000 and 14.12.2001;
ii) "deliberately/habitually laundering" contrary to article 420 of the Criminal Code between 14.12. 2001 and 5.9.2006;
iii) "being in charge of a criminal organisation" contrary to article 140 of the Criminal Code between 19.10.2000 and 5.9.2006.
The warrant included a list of "incriminating evidence". From this it appears that the case against the appellant is that he was complicit in the use of the Bank by criminals engaged in carousel VAT fraud to receive and launder the proceeds of their fraud.
On 28 September 2006 Crown Counsel in Bermuda presented to Mr Khamisi Tokunbo, a Magistrate, an information headed "Information for a Extradictable Offence". This recited that the appellant had been accused in the Netherlands of the offences set out above and attached in support of the information the warrant and its translation, together with a letter from the Governor of Bermuda and a letter from the Dutch Ministry of Justice. The latter two documents are not before their Lordships.
Acting on this information the Magistrate, on 28 September 2006, issued a warrant for the arrest of the appellant ("the provisional war rant"). This provided as follows:
"WHEREAS it has been shown to the undersigned, one of Her Majesty's Magistrates that JOHANNES CHRISTIAAN MART INUS AUGUSTINUS MARIA DEUSS is accused of the Extradition Crimes of Handling Stolen Property, Delibe rate/Habitual Laundering, and Being in Charge of Criminal Organisation within the jurisdiction of The Kingdom of the Netherlands
AND WHEREAS Information has been presented to me which would in my opinion, authorise the issue of a warrant for the arrest of a person accused of committing a corresponding offence within the jurisdiction of Bermuda
AND WHE REAS there is information that the said JOHANNES CHRISTIAAN MARTINUS AUGUSTINUS MARIA DEUSS is or is believed to be in or on his way to Bermuda:
THIS IS THEREFORE to command you forthwith, in Her Majesty's Name, to arrest the said JOHANNE S CHRISTIAAN MART INUS AUGUSTINUS MARIA DEUSS and bring him before one of her Majesty's Magistrates sitting at the Magistrates' Court in the City of Hamilton to be further dealt with according to law, for which THIS SHALL BE YOUR WARRANT"
The appellant was arrested on this warrant on 13 October 2006. He was released on bail three days later, upon signing a consent to being extradited without formal extradition proceedings. On 19 October 20 06 he voluntarily surrendered himself to the authorities in the Netherlands. On 29 December 2006 he was released on bail in the Netherlands and has since returned to Bermuda. His trial in the Netherlands has not yet taken place.
The appellant commenced proceedings in Bermuda for judicial review of the issue of the provisional warrant, seeking among other relief an order that the provisional warrant be quashed. The originating documentation has not been included in the Record of Proceedings. Miss Montgomery QC, who appeared on the judicial review proceedings and before their Lords hips explained that the object of the proceedings was not to prevent the appellant's extradition or trial in the Netherlands but to vindicate his case that his arrest was unlawful. In these circumstances their Lordships find it surprising that the respondents do not appear to have resisted the appellant's application for judicial review on the ground that the issues that he sought to raise were academic.
The first point taken on behalf of the appellant in the judicial review proceedings before Wade-Miller J was that there was no longer in place between the United Kingdom and the Netherlands any arrangement under which extradition proceedings, including the issue of a provisional warrant of arrest, could lawfully be pursued with a view to extraditing a person from Bermuda to the Netherlands. Wade-Miller J dismissed this submission in a judgment delivered on 8 December 2006. She ruled that extradition from Bermuda to the Netherlands remained governed by the Extradition Act of 1870 ("the 1870 Act") as extended to the Netherlands by an Order in Council in 1899 and preserved in force by the Extradition Act 1989 ("the 1989 Act"). The Court of Appeal of Bermuda (Zacca P, Evans and Stuart-Smith JJA) dismissed the appellant's appeal against this ruling in the first part of its judgment of 25 April 2008. No appeal is brought against that part of the Court of Appeal's judgment.
Having failed on this first point, Miss Montgomery advanced further grounds of objection to the provisional warrant which can be summarised at this stage as being that the crimes referred to in the warrant were crimes under Dutch law that fell outside the scope of the extradition arrangements that were effective as between Bermuda and the Netherlands so that not merely was the warrant itself defective but no jurisdiction existed to issue a provisional warrant in respect of those offences. It was, from the outset, conceded by the respondents that the second and third offences of which the appellant was accused in the Netherlands did not render the appellants susceptible to extradition proceedings. The issue was whether the same was true of the first offence, namely "handling stolen property".
In a judgment delivered on 20 July 2007 Wade-Miller J held that the provisional warrant was lawfully issued in respect of this offence and, in the second half of its judgment of 25 April 2008, the Court of Appeal upheld her decision. The Appellant appealed to their Lordships pursuant to final leave granted by the Court of Appeal on 19 September 2008.
Their Lordships will briefly describe the central issue raised by Miss Montgomery on behalf of the appellant. The jurisdiction of the Magistrate to issue a provisional warrant was conferred by the 1989 Act, which preserved in large measure the provisions of the 1870 Act. Miss Montgomery submitted that, on the true construction of this legislation, the Magistrate only had jurisdiction to issue a provisional warrant in respect of a person accused of an "extradition crime" as defined by the legislation. The relevant crime of which the appellant stands accused in the Netherlands, namely "handling stolen goods" does not, so Miss Montgomery submits, constitute an "extradition crime" under the law of Bermuda. Accordingly, the Magistrate acted without jurisdiction.
As will become apparent, this submission raises an issue of some difficulty as to the manner in which the statutory definition of an "extradition crime" operates in relation to a British possession. This issue is said to be one of general importance, insofar as the extradition regime under the 1870 Act, as adapted by the 1989 Act, remains in force in relation to some British Colonies. Nonetheless it seems that this is the first occasion, nearly 140 years after the 1870 Act was passed, that the central issue has arisen for judicial determination. In these circumstances their Lords hips decided that it was appropriate to entertain the appeal, albeit that it was academic.
The appeal was heard in Nassau and the argument lasted no more than a day. It has since appeared to their Lordships that this case has proceeded on the false premise that the jurisdiction of the Magistrate to issue a provisional warrant only existed if the appellant was, in fact, accused of an "extradition crime". Their Lordships consider it desirable to explain why they have concluded that this premise is false, albeit that this will require a detailed analysis of the relevant jurisprudence.
The 1870 Act was, on its face, a fairly simple statute but it has given rise over the years to great uncertainty. Within three years it had proved necessary to pass a further Act, the Extradition Act 1873 ("the 1873 Act"), one of whose objects was to address doubts that had arisen as to the ambit of operation of the 1870 Act. Between that day and this, the Act and its amendments have given rise to problems of interpretation that have, on a large number of occasions, received consideration by the House of Lords.
Under English law a treaty entered into by the United Kingdom has no effect on domestic law unless incorporated by Parliament. The normal sequence of events is first the treaty and then the Act to give effect to it. The 1870 Act sought to reverse this process. It provided a code under which it would be lawful in both the United Kingdom and British possessions to give effect to treaties under which the United Kingdom agreed to secure the extradition of "fugitive criminals". Thus section 2 provided:
"Where an arrangement has been made with any foreign state with respect to the surrender to such...
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