Government of the United States of America v Ilan Shlesinger
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 02 September 2013 |
| Neutral Citation | [2013] EWHC 2671 (Admin) |
| Docket Number | Case No: CO/1025/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 September 2013 |
[2013] EWHC 2671 (Admin)
President of the Queen's Bench Division
and
Mrs Justice Thirlwall
Case No: CO/1025/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John R W D Jones QC and Daniel Sternberg (instructed by CPS Extradition Unit) for the Appellant
James Lewis QC and Rachel Kapila (instructed by Quastel Midgen LLP) for the Respondent
Hearing date: 18 April 2013
Approved Judgment
This is the judgment of the Court.
Introduction
The respondent to this appeal, Mr Shlesinger, pleaded guilty to the charge of passport fraud in the United States District Court in the Southern District of Florida as long ago as 6 January 1989. Although he had been born in Israel, he had falsely claimed he had been born in the United States. On 10 March 1989 he was sentenced to three years probation. Whilst under probation supervision he committed other criminal offences. On 20 February 1991 the same court revoked the probation and sentenced him to four months imprisonment, followed by three years supervised release.
He was transferred to the custody of the US Federal Bureau of Prisons and sent to Eglin Federal Prison Camp. On 24 May 1991 the respondent left the prison camp in circumstances we shall describe. He had some days of his sentence left to serve. A warrant was issued for his arrest on a charge of escape. He was indicted for escape on 24 July 1991. It was not until 2011 that the US federal authorities discovered where he was. He was living in North London. They had located him through entries on Facebook.
On 13 March 2012 the United States Department of Justice requested his extradition for the offence of escape; they did not seek his extradition to serve the balance of his sentence. In support, the United States Government served an affidavit dated 12 March 2012 sworn by Mr Kunz, the Assistant US District Attorney for the Middle District of Florida. His request was certified by the Home Office on 27 March 2012. The respondent was arrested. An extradition hearing took place before District Judge Evans at the Westminster Magistrates' Court. In a reserved judgment given on 18 January 2013, District Judge Evans discharged the respondent. The United States Government appeals to this court. Three issues arose on the appeal.
Issue 1: Proof of an extradition offence
Amongst the matters that a judge has to decide under Part 2 of the Extradition Act 2003 (the 2003 Act), is the question under s.78(4)(b) as to whether the offence specified in the request is an extradition offence. If he decides that question in the negative, he must order the person's discharge.
For the purpose of deciding whether the offence specified in the request is an extradition offence, the test of dual criminality has to be applied in a Part 2 case. Under s.137 of the 2003 Act the court has to consider whether the conduct alleged against him as an offence in the Part 2 state also constitutes an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or more. It is clear from the decision in Norris v Government of the USA (No.1) [2008] UKHL 16, [2008] 1 AC 219 at paragraph 91 that the court must look at the conduct alleged in the documentation constituting the request to see if the conduct constitutes an offence under the law of the United Kingdom.
It is common ground that the relevant offence under the law of England and Wales is the common law offence of escape from custody. In Dhillon [2006] 1 Cr App R 15 the court set out four elements that must be proved to constitute the offence of escape.
i) The defendant was in custody.
ii) The defendant knew he was in custody.
iii) The custody was lawful.
iv) There was an intentional escape from that custody.
The conduct alleged in the affidavit dated 12 March 2012 of Mr Kunz which constituted part of the extradition request described the conduct in the following terms:
"On May 24, 1991, Shlesinger escaped from custody at the Eglin Federal Prison camp. It is unknown exactly how Shlesinger escaped, but it is suspected that he walked away from the prison. The Eglin Federal Prison Camp was a minimum-security facility in which Shlesinger was held as a prisoner in conditions in which he was not physically restrained from leaving the prison camp, but he was prohibited from leaving the prison facility at any time."
The question which arose for determination before the District Judge and on appeal was whether on the conduct described the respondent was in custody and intentionally escaped therefrom. The test as to whether a person is in custody was considered in R v Montgomery [2007] EWCA Crim 2157, [2008] 1 WLR 636. In that case the court had to decide whether a person on temporary release from prison to attend employment, but not under supervision during the employment though obliged to return to prison at night, had escaped when he did not return one night. The court determined that he was not in custody at the time he did not return from release to attend employment. The court held that a person may be in custody notwithstanding that he is not physically confined provided that he is under the direct control and under the charge of a representative of the state or detaining authority. The court approved the judgment of the Divisional Court in E v DPP [2002] Crim LR 737 where Forbes J said at paragraphs 19–20:
"19. I agree with Mr Spackman's submission that whether a person can be said to be in custody at any particular time is a question of fact to be decided by reference to the circumstances of each individual case. 'Custody' is an ordinary English word, which should be given its ordinary and natural meaning, subject, of course, to any special meaning given to it by statute. In the Shorter Oxford English Dictionary the word 'custody' is defined in the following terms, amongst others: 'confinement, imprisonment, durance.'
20. As it seems to me, for a person to be in custody, his liberty must be subject to such constraint or restriction that he can be said to be confined by another in the sense that the person's immediate freedom of movement is under the direct control of another. Whether that is so in any particular case will depend on the facts of that case."
On the basis of these authorities it was common ground before us, although it was not common ground before the District Judge, that if the respondent had been on day release from the Federal Prison Camp to do work elsewhere, he would not have been in custody, but he would be in custody, even though not physically restrained, if he was in what might be described as "open prison conditions" within the Eglin Federal Prison Camp.
It is, in our view, clear beyond any realistic argument that if regard is had solely to paragraph 8 of the affidavit of Mr Kunz and the other documents constituting the extradition request (which do not add anything material to that paragraph) the respondent was being held in custody; he was at the camp and, although not physically restrained, he was prohibited from leaving. His freedom of movement was under the direct control of the authorities. It is not necessary, as the court observed in Montgomery, that a person must be physically restrained or locked up; it is sufficient if that person is within the place of detention under the control of the authorities and he knows he must not leave it. The position is quite different, as is common ground, if he was entitled to leave on a day release or something similar.
It was submitted by Mr James Lewis QC on the respondent's behalf that, in determining whether the conduct alleged in the extradition request constituted an offence under the law of England and Wales, it was permissible for the court to consider extraneous evidence served by the requested person. He accepted that there was no authority to this effect, but contended that it must be open to the court to receive such evidence, as whether the conduct constituted an offence under the law of England and Wales would not be determined in the state to which he was returned. He submitted that the position was analogous to the position that arises when the court considers bars to extradition, such as those relating to human rights, the rule against double jeopardy, passage of time and other matters set out in the 2003 Act. In such cases the court always receives evidence from the requested person.
We cannot accept that submission. It is clear that the scheme of the Act, and such authority as there is, lead to the very clear conclusion that in determining the issue of dual criminality the court examines the documents constituting the extradition request. It determines on the basis of that material whether the conduct alleged in the documents constitutes an offence under the law of England and Wales. It is not permissible for a requested person to put in evidence contradicting what is set out in the extradition request, unless he can bring himself within the very narrow exception to which we refer at paragraphs 14 and following below. The court must proceed to determine the issue of dual criminality on what is set out in the extradition request alone.
We therefore conclude that the offence was an extradition offence. The judge came to a different conclusion, taking into account the evidence that had been put before him and to which we will shortly refer....
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