Jurisdiction of the Divisional Court to Vary Sentence
| DOI | http://doi.org/10.1177/002201839906300505 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
The
Journal
of
Criminal
Law
Secondly, the provision in Article 14( 1) that the extraditedperson is
not
'for
any
other reason [to be] restricted in his personal freedom' is limited
to a reason connected with an offence in respect of which he might be
proceeded against in the requesting state's courts. Moreover, the pro-
vision in Article 14(2) that the requesting state may take
'any
means
necessary to remove him from its territory' (by deportation) are wide
enough to cover removal by way of re-extradition to a third state. With
regard to
the
obtaining of the consent of the surrendering state of such
re-extradition, the court laid it down that the Convention did not
provide any rule as to the time at which that consent had to be obtained
other
than
that it should precede the return of the accused (see Article
15). Here, the 'diplomatic note' procedure was followed before the
extradition. The court also rejected the applicant's claim that the Home
Secretary was bound to make inquiries as to
whether
the
accused would
receive legal aid in Australia. The court was prepared to accept his
assumption that this was so as sufficient ground for finding that there
was no breach of Article 6(3) (c) of the European Convention on Human
Rights. Although the courts have
not
always accepted the assumptions
made by the executive, it is to be remarked that no breach of the
Convention could be said to have taken place before there has been a
failure to provide representation. The Home Secretary was therefore
held to have approached the provisions of Article 6(3)(c) correctly. The
relief sought by the applicant was therefore refused.
Jurisdiction of the Divisional Court to
Vary
Sentence
RvSt
Helen's
JJ,
exp
Jones
and
others
[1999] 2 All ER 73
It
was. found that in the cases of six applicants
who
had in separate
proceedings been committed into custody for failing to pay fines
imposed on them by various magistrates' courts, had been committed
on warrants which contained deficiencies. The justices agreed,
when
the deficiencies came to light, that the orders should be quashed. The
applicants therefore applied to the High Court for consent orders to
quash
the
orders imposed by the justices. They asked that in 'place of
those orders there should be substituted fresh orders imposing terms of
custody which, in each case, would represent the period which in fact
had been served so far under the original order of commitment.
Where aperson
who
has been sentenced by the magistrates' court
applies to the High Court for the removal of the proceedings to the High
Court, then, if the High Court is of the opinion that the magistrates'
court had no power to pass that sentence, Hmay, instead of quashing the
sentence, amend it by substituting any sentence which the magistrates'
court
had
By s 43(3), it is further provided that where an order is made on, but
does nor form part of, a conviction of an offender, it applies as if it were
part of a conviction and sentence.
398
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