Lees v Government of Norway
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,MR JUSTICE PENRY-DAVEY |
| Judgment Date | 13 October 2000 |
| Judgment citation (vLex) | [2000] EWHC J1013-3 |
| Docket Number | CO/1033/2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 October 2000 |
[2000] EWHC J1013-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Royal Courts of Justice
The Strand
Lord Justice Buxton
Mr Justice Penry-davey
CO/1033/2000
MISS HELEN MALCOLM (Instructed by Messrs Moss & Co, London, WC2 OLT) appeared on behalf of the Applicant.
MR JAMES LEWIS (Instructed by The Government of Norway, CPS, London, EC4) appeared on behalf of the Respondent.
This is an application for habeas corpus to challenge the decision of a Metropolitan Stipendiary Magistrate that the applicant, Mr Lees, should be returned to Norway to serve the remainder of a prison sentence imposed on him as long ago as August 1994. The application was helpfully and informedly argued by Mr Lewis on behalf of the respondent Government of Norway and Miss Malcolm on behalf of the applicant.
Mr Lees was convicted of a serious offence involving an assault in September 1992 on a lady, Miss Vorster, with whom Mr Lees had been living. The circumstances were described by the Norwegian court and findings of fact were made to the effect that Mr Lees in a public street had hit Miss Vorster in the face. She fell or crouched down. He had then returned from where he had walked slightly down the road and delivered a running kick to Miss Vorster in the side of the face.
According to the medical evidence before the court, which was found to be proved, Miss Vorster was detained in hospital with two fractures of the lower jaw and a lost tooth. She was away from work for fourteen days. She told the court that she had had several operations and still suffered pain to her face.
However, after that incident occurred, Mr Lees and Miss Vorster appear to have made up their differences and Miss Vorster wished to withdraw the charges that had been laid. The prosecution, however, determined that they should continue with the charge. Mr Lees pleaded not guilty to the offence. I shall refer to the nature of the offence in due course. He was sentenced to 120 days' imprisonment to be served, and a further 60 days suspended. The structure of that sentence is a matter of dispute in this case to which I will return.
Leave to appeal was refused in November 1994, during which period Mr Lees was effectively on bail. A court order requiring Mr Lees to attend to serve his sentence was issued by the court in Norway in December 1994. On a date thereafter in 1995 Mr Lees left Norway and returned to this country where, so far as the evidence goes, he has been ever since. He had served only two days of the sentence, that being represented by a period of remand in custody before the trial.
On 8 November 1998, nearly four years later, Interpol informed the Norwegian authorities of Mr Lees'address in London. On 5 November 1999 the Norwegian court issued an arrest warrant which was implemented in England on 16 November 1999. It was pointed out on Mr Lees'behalf that that was but two days before the limitation period under Norwegian law had expired.
Three reasons are adduced as to why Mr Lees should not be extradited. They are:
1. Because of the length of the sentence imposed on him the offence was not an extradition crime.
2. The documents supporting the request were insufficient or, alternatively, not properly authenticated.
3. It would be oppressive in terms of section 11(3) of the Extradition Act 1989 ("1989 Act") now to return Mr Lees to Norway.
I shall deal with each of these matters in turn.
WHETHER THIS CASE FALLS WITHIN THE PROVISIONS FOR EXTRADITION
By section 4(1) of the Extradition Act 1989 extradition procedures between Norway and the United Kingdom operate "subject to the limitations, restrictions, exceptions and qualifications"contained in the Convention on Extradition ("the Convention"). Article 2.1 of the Convention provides:
"Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty."
The following words are directly relevant to the present case:
"Where a conviction and prison sentence have occurred or a detention order has been made in the territory of the requesting Party, the punishment awarded must have been for a period of at least four months."
So far as the first limb of that requirement is concerned, whether the offence carried a maximum of one year or more, it is the case that the offence of which Mr Lees was convicted did so carry such a penalty under Norwegian law. Whether that point has been satisfactorily proved in this case is an issue which falls under item 2 of the points before us. We are concerned with the second limb of Article 2.1 as to whether the punishment awarded was for a period of at least four months.
Miss Malcolm points in the Convention to the distinction between the expression "prison sentence"and the expression "punishment awarded". She says that in this case the punishment is the prison sentence actually to be served, not including the suspended part of the sentence. That period actually to be served, 120 days, she argues is not a period of four months. There is a dispute between the parties on that latter point. But it does not arise in this case because I am quite unable to agree with the more general contention advanced by Miss Malcolm.
Provisions such as those in the Convention must be looked at in a broadly sensible way. Article 2.1, so far as it applies to conviction cases, is intended to provide a rule of thumb to indicate the seriousness of the actual offence committed by the requested party, as opposed to the maximum penalty for offences in that category. The reference in that sentence to a "prison sentence" in my judegment merely introduces the general nature of the conviction cases with which the article is concerned. That done, the "punishment awarded" clearly includes the suspended period of the sentence. That follows from the actual wording of Article 2.1 of the Convention and it would plainly be the view of an English court. It is also interesting to note that that was plainly the view of the Norwegian court because, when dealing with the matter of sentence, the court expressed itself as follows:
"The prosecution authority has asked for a term of imprisonment for six months, less two days for the duration of his remand.
The Court finds that it concurs as regards the length of the prison term, but considers that a mixed judgment may suitably be given, where by 120 days are to be served unconditionally (less two days for the duration of his remand) and 60 days suspended for a probationary period of two years under the provisions of Section 52 to 54 of the Penal Code."
The Norwegian court clearly considered that it had imposed a period of six months'imprisonment.
This question of construction has to be determined according to English and not Norwegian rules. I am however fortified in the view that I have reached as a matter of construction in the English mode that the same general view was taken by the court in Norway that actually had the conduct of this case.
These conclusions are also, in my view, strongly supported by the decision of House of Lords in Re Burke [2000] 3 WLR 33 where their Lordships construed the phrase "sentence imposed"in the United States Extradition Order as including a suspended period of imprisonment. There is, in my judgement, nothing in this point, carefully though it was argued by Miss Malcolm.
LACK OF PROOF SUBMITTED BY NORWAY
Section 9(8) of the 1989 Act reads as follows:
"Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any representations made in support of the extradition request or on behalf of that person, that the offence to which the authority relates is an extradition crime, and is further satisfied-
….
(b) where that person is alleged to be unlawfully at large after conviction of the offence, that he has been so convicted and appears to be so at large, the court …. shall commit him to custody…."
That is to be read with section 26 of the 1989 Act which reads:
"In extradition proceedings in relation to a person whose return has been requested by a foreign state foreign documents may be authenticated by the oath of a witness, but shall in any case be deemed duly authenticated -
(a)if they purport to be signed by a judge, magistrate or officer of the foreign state where they were issued; and
(b)if they purport to be certified by being sealed with the official seal of the Minister of Justice, or some other Minister of State, of the foreign state."
The items that have to be proved are therefore: (i) that the crime of which the applicant was convicted was an extradition crime (ie that it carried a maximum sentence of 12 months or more); (ii) that the applicant has been convicted of it; and (iii) that he is unlawfully at large.
The state of Norway set out to prove all these three points by means of documents. It is said that in each case (i) the documents were not sufficiently authenticated to be admitted, and (ii) even if they are sufficiently authenticated, they are insufficient proof in the English mode of matters that they purport to establish.
There is a substantial degree of artificiality about this dispute. In the present application Mr Lees swears an affidavit that he was indeed convicted and that he left Norway. It is true that he does not there formally admit to being unlawfully at large, but it is difficult to think that he would not...
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