House of Lords
| DOI | 10.1177/002201839105500404 |
| Published date | 01 November 1991 |
| Date | 01 November 1991 |
HOUSE
OF
LORDS
MAGISTRATE'S
FUNCfIONS
IN EXTRADITION PROCEEDINGS
RVGovernor
of
Penton ville Prison, ex pSinclair
In Sinclair's case
[1990]
2 QB 112 (and see 54 JCL 406), the
Divisional Court held that the provision in a treaty and in an order
made under it to the effect that extradition is not to be granted if
prosecution for the relevant offence has become barred by lapse
of time does not apply to a case in which the extradition is sought
not for the purpose of prosecuting the fugitive, but for the purpose
of his serving the prison sentence already imposed on him in
respect of the offence in question. An appeal from that decision
gave the House of Lords the opportunity to pronounce upon what
Lord Ackner called 'two important issues' as to the jurisdiction in
extradition proceedings of the magistrate, as well as the 'short
point' of the proper construction to be put upon the word
'prosecution' in the order. In dealing with that 'short point', it was
urged upon the House that in US law a prosecution may not be
regarded as completed until the offender begins to serve his
sentence. What is relevant, however, is what is in the treaty
and the subsequent order, and here the treaty refers only to
prosecution, and not to punishment (as do some treaties). The
House concluded that this was a 'clear indication' that the term
'prosecution' encompasses only the initiation of criminal proceed-
ings and does not extend to the commencement of the serving of
asentence imposed in the criminal proceedings. The magistrate
and the Divisional Court were therefore right in saying that in
English law and in the order aprosecution ends when sentence is
passed.
Has a magistrate jurisdiction to consider whether extradition
proceedings brought before him are an abuse of the process of the
court? Here it was submitted that the House of Lords had
established in Connelly v
DPP
[1964] AC 1254 and repeated in
Atkinson vGovernment
of
USA
[1971]
AC 197, that every court
in England has the power to refuse to allow a criminal case to
488
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