R and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE BELL |
| Judgment Date | 21 May 2001 |
| Neutral Citation | [2001] EWHC 370 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 May 2001 |
| Docket Number | CO/1133/2001 |
[2001] EWHC 370 (Admin)
THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
The Lord Chief Justice of England And Wales
(The Lord Woolf of Barnes) and
Mr Justice Bell
CO/1133/2001
MR C HARDING (instructed by Messrs Janes, Solicitors, London W1X 3PH) appeared on behalf of THE CLAIMANT
MR DANIEL STILITZ (instructed by the Treasury Solicitor) appeared on behalf of THE RESPONDENT
Monday 21 May 2001
: This is an application for judicial review of a decision of the Secretary of State for the Home Department dated 30 November 2000, to order the return to the custody of the United States Government of America of the claimant for the purposes of extradition. The claimant was committed into custody in respect of three charges at Bow Street Magistrates' Court on 12 November 1999. The first and second charges related to convictions in the United States for which the claimant had been sentenced to terms of imprisonment and periods of post-release supervision. In the case of the third offence he had not yet been sentenced, although he had been convicted of the relevant offence.
At the outset of this judgment I would like to compliment both Mr Harding, who has appeared on behalf of the claimant, and Mr Stilitz, who has appeared on behalf of the Secretary of State for the Home Department, for the admirable manner in which they have put forward their arguments.
In order to understands the arguments that have been advanced, it is necessary in the first instance to consider the Treaty which sets out the basis for extraditing offenders from this jurisdiction to the United States. The relevant Treaty appears in a Schedule to the United States of America (Extradition) Order 1976. Article 1 of the Extradition Treaty contained in the Schedule provides as follows:
"Each Contracting party undertakes to extradite to the other, in the circumstances and subject to the conditions specified in this Treaty, any person found in its territory who has been accused or convicted of any offence [my emphasis] within Article III, committed within the jurisdiction of the other Party."
Article III provides so far as relevant:
"(1) Extradition shall be granted for an act or omission, the facts of which disclose an offence within any of the descriptions listed in the Schedule annexed to this Treaty, which is an integral part of the Treaty, or any other offence, if:
(a) the offence is punishable under the laws of both Parties by imprisonment or other forms of detention for more than one year or by the death penalty;
(b) the offence is extraditable under the relevant law, being the law of the United Kingdom or other territory to which this Treaty applies by virtue of subparagraph (1)(a) of Article II; and
(c) the offence constitutes a felony under the law of the United States of America.
….
(4) A person convicted of and sentenced for an offence shall not be extradited therefor unless he was sentenced to imprisonment or other form of detention for a period of four months or more or, subject to the provisions of Article IV, to the death penalty."
Article XII provides:
"(1) A person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offence other than an extraditable offence established by the facts in respect of which his extradition has been granted, or on account of any other matters, nor be extradited by that Party to a third State —
(a) until after he has returned to the territory of the requested Party; or
(b) until the expiration of thirty days after he has been free to return to the territory of the requested Party.
(2) The provisions of paragraph (1) of this Article shall not apply to offences committed, or matters arising, after the extradition."
Set out in the Schedule to the Treaty are the lists of offences referred to in Article III.
The factual background to the application can be shortly summarised as follows. The extradition concerns three convictions. The first conviction relates to two offences of mail fraud committed by the claimant in the United States of America in April 1988. The claimant pleaded guilty to the two offences on 10 January 1989, and was sentenced by the appropriate United States court to ten months' imprisonment, followed by three years' supervised release.
The second conviction related to a further offence of mail fraud committed in the United States of America between January 1990 and March 1990, whilst the claimant was still on supervised release in relation to the first conviction, but after the claimant had completed the custodial part of the first sentence. The claimant pleaded guilty to this offence on 22 May 1990, and was sentenced by the United States court on 18 October 1990 to eight months' imprisonment, followed by three years' supervised release.
The third conviction relates to an offence of bank fraud committed by the claimant in the United States of America in June 1990 during his period of supervised release in relation to the second conviction. The claimant pleaded guilty to this offence on 9 October 1991 and was released on bail by the United States authorities pending sentence. The claimant failed to attend his sentence hearing and instead fled to the United Kingdom where he has been ever since.
It will be noted that both the first and second convictions resulted in the claimant not only being sentenced to a period of custody but also a period of supervised release. According to the evidence which is contained in the affidavits of Mr Bibas which are before us, supervised release is a category of post-imprisonment monitoring which is different from the period of licence or parole which occurs in this jurisdiction after a person has served part of his custodial sentence. It was a requirement of the claimant's period of supervised release that, first, he committed no more offences; second, that he did not leave the judicial district without the permission of the court or his probation officer; and third, that he reported regularly to his probation officer. A defendant who violates the term of his supervised release faces a judicial hearing. At such a hearing the court may revoke the defendant's supervised release and sentence him to a further term of imprisonment, which in the present case could amount to up to four years' imprisonment. Whether it does so is a matter for the sentencing court.
There is no dispute in this case that the offences of which the claimant was convicted, namely mail fraud and bank fraud, were offences in relation to which he could be extradited. The first argument which arises on the submissions made by Mr Harding are concerned with the power of the American court, if the claimant is returned to the United States, to sentence him to imprisonment for his non-compliance with the requirements of supervised release. Clearly on the facts that have been set out, he has contravened those terms. Mr Harding submits that it is wrong for him to be returned to the United States by the Secretary of State because if he is returned, unless some condition is imposed upon, or some undertaking is given by, the United States, the claimant could be sentenced for the breach of the requirements of his supervised release. Far from the United States offering any undertaking with regard to not proceeding against the claimant for his non-compliance with supervised release, the United States Government make it clear that they leave open the question of the claimant being proceeded against by the relevant authorities for the contravention of the terms of his supervised release. Mr Harding submits that this constitutes a contravention of Article XII of the Treaty. If it does not constitute a contravention of Article XII of the Treaty, it is a matter which the Secretary of State should have taken into account when exercising his discretion whether to order the return of the claimant. He submits that it is contrary to the intent of the Treaty that a person in the claimant's position should be sent back to face proceedings for breach of the requirements of supervised release which, it is argued, are proceedings which are of a separate and distinct nature from those in respect of the offences in relation to which the claimant was convicted.
From the language he used, according to the evidence filed in these proceedings, it appears that Judge Mukasey of the District Court for the Southern District of New York considered that a person who infringed the requirements of supervised release would be proceeded against in the same manner as a person charged with a new offence. Important to the consideration of the issues which are before us is whether Judge Mukasey had expressed himself inappropriately or infelicitously in using the language which he did. In considering that issue it is convenient, first, to go to the recent decision of the House of Lords in In re Burke [2000] 3 WLR 33. It is important to bear in mind that that case dealt with a situation which is quite distinct from that which is directly in issue here. However, in my judgment, it throws considerable light, indirectly, on the issues with which we are concerned. In re Burke was concerned with a sentence of the United States District Court which involved two ingredients: first, a custodial sentence; and secondly, the subsequent supervised release. The issue with which the House of Lord was concerned in that case was whether, after the offender had served the custodial portion of his sentence, it was right to make an extradition order if he was only subject to the...
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