R (Bleta) v Secretary of State for the Home Department

Monday, 9th August 2004

In these proceedings the claimant seeks to quash a certificate issued by the Secretary of State pursuant to section 70 of the Extradition Act 2003. On 19th July Harrison J directed an oral hearing of the application for permission. Then, on 27th July, a Divisional Court granted permission subject to the amendment of the claim form to raise the present issue, which is the only remaining issue. This is the hearing of the application for judicial review.

The request for permission by the Government of Albania arises under Part 2 of the 2003 Act. It is common ground that Albania is a category 2 territory. The scheme of section 70 is that there should be an extradition request and then a certificate issued by the Secretary of State. Section 70 reads, as far as is relevant, as follows:

"(1) The Secretary of State must issue a certificate under this section if he receives a valid request for the extradition to a category 2 territory of a person who is in the United Kingdom.

…

(3) A request for a person's extradition is valid if -

(a) it contains the statement referred to in subsection (4), and

(b) it is made in the approved way."

I pause to say that there is no issue that this request was made in the approved way. Subsection (4) reads:

"The statement is one that the person -

(a) is accused in the category 2 territory of the commission of an offence specified in the request, or

(b) is alleged to be unlawfully at large after conviction by a court in the category 2 territory of an offence specified in the request."

The request here was made pursuant to section 70(4)(b), namely on the basis that there had been a conviction and, by implication at least, that the claimant was unlawfully at large.

The certificate issued read as follows:

"CERTIFICATE ISSUED PURSUANT TO SECTION 70 OF THE EXTRADITION ACT 2003.

Under section 70 of the Extradition Act 2003, the Secretary of State hereby certifies that the request from Albania, being a territory designated for the purposes of Part 2 of that Act, for the extradition of Fatmir Bleta is valid and has been made in the approved way."

If one goes to the request, it is common ground that there is no explicit statement in that request that the claimant was unlawfully at large.

Some reliance has been placed, at least in the skeleton arguments, on the legislative history of Part 2 of the 2003 Act. Under the previous Act, the Extradition Act 1989, it was a requirement, if there was to be extradition on the present basis, that the claimant should be, following conviction, unlawfully at large. The difference was that there was no requirement in the 1989 Act for a statement to that effect.

I have been referred to the Convention which underlies the 2003 Act. That is the European Convention on Extradition, which is to be found in the European Convention on Extradition Order 2001. Under Schedule 1 to the Order, the Convention is set out. So far as is relevant, it reads as follows:

"Article 1 —The obligation to extradite

The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order."

Under Article 12, headed "The request of supporting documents", paragraph 1:

"The request shall be in writing and shall be addressed by the Ministry of Justice of the requesting Party to the Ministry of Justice of the requested Party…"

Then other channels of communication are referred to. Paragraph 2:

"The request shall be supported by:

a. The original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party."

There are then other requirements for documents supporting the request.

The Convention basis for this limb of the obligation to extradite is to be found, first of all, in Article 1 in the words "wanted by the said authorities for the carrying out of a sentence" and in the wording of Article 12, referring to "a conviction and sentence or detention order immediately enforceable".

As is pointed out on behalf of both the Secretary of State and the Republic of Albania, there is no provision in the Convention for a statement specifically confirming that the relevant person is unlawfully at large.

There were some submissions in the skeleton argument provided on behalf of the Secretary of State that the requirement of a statement in Part 2 of the 2003 Act was, in effect, a drafting error. That submission has not been pursued, or at least emphasised, and I accept the submission of Mr Pearse-Wheatley, on behalf of the claimant, that that insertion must be assumed to be deliberate; indeed, it has a clear purpose, namely to simplify the process of extradition, and, if such a statement is included, to remove the need for the Secretary of State to inquire further into the law of the requesting state. That is particularly relevant since the Secretary of State is under an obligation to issue a certificate if certain requirements are fulfilled.

I have been helpfully referred to two authorities on the proper approach to the construction of extradition treaties and legislation giving effect to such treaties. In R v Governor of Ashford Remand Centre, ex parte Postlethwaite [1988] AC 924, Lord Bridge of Harwich, at pages 946–947, said this:

"In approaching the main issue two important principles are to be borne in mind. The first is expressed in the well known dictum of Lord Russell of Killowen CJ in In re Arton (No 2) [1896] 1 QB 509, 517 where he said:

'In my judgment these treaties ought to receive a liberal interpretation, which means no more than that they should receive their true construction according to their language, object, and intent.'

I also take the judgment in that case as good authority for the proposition that in the application of the principle the court should not, unless constrained by the language used, interpret any extradition treaty in a way which would 'hinder the working and narrow the operation of most salutary international arrangements'. The second principle is that an extradition treaty is 'a contract between two sovereign states and has to be construed as such a contract. It would be a mistake to think that it had to construed as though it were a domestic statute': Reg v Governor of Ashford Remand Centre, Ex parte Beese [1973] 1 WLR 969, 973, per Lord Widgery CJ. In applying this second principle, closely related as it is to the first, it must be remembered that the reciprocal rights and obligations which the high contracting parties confer and accept are intended to serve the purpose of bringing to justice those who are guilty of grave crimes committed in either of the contracting states. To apply to extradition treaties the strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose."

Lord Bridge was referring to a difference between the construction of extradition treaties and domestic legislation. However, in In Re Ismail [1999] AC 320, Lord Steyn, in the House of Lords, at pages 326–327, extended principle of a broad and generous construction of extradition treaties to extradition statutes. I fully accept, in the light of those authorities, that a purposive construction should be adopted in construing the 2003 Act.

I turn to the wording of the 2003 Act section 70. The first question is whether a specific statement in the actual words of the Act is required. Mr Pearse-Wheatley, in my view correctly, conceded at an early stage that the actual words of the Act were not required. If there was an equivalent expression indicating a liability to immediate arrest following the relevant conviction, that would, he concedes, be sufficient. However, he submits that if there is no such statement or equivalent statement, then the request cannot be valid.

In response to a question whether, in the circumstances of this case, to which I shall return later, there were any realistic possibilities other than the claimant being unlawfully at large, he listed various possibilities: firstly, that there might have been an amnesty; secondly, there might have been a withdrawal of the complaint by the family of the victim of the murder of which the claimant was convicted; thirdly, that there might have been, despite the description of the conviction as becoming final, the possibility of an appeal, or at least a request for reconsideration, bearing in mind that the conviction was in the claimant's absence; fourthly, that there might be some statute of limitations; fifthly, there might be some provision for early release, which might in some way operate even if the claimant had not been in custody, and one might...