R (Guisto) v Governor of Brixton Prison
| Jurisdiction | England & Wales |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD HOPE OF CRAIGHEAD,LORD HUTTON,LORD RODGER OF EARLSFERRY,LORD WALKER OF GESTINGHORPE |
| Judgment Date | 03 April 2003 |
| Neutral Citation | [2003] UKHL 19 |
| Date | 03 April 2003 |
| Court | House of Lords |
[2003] UKHL 19
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Hutton
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
(application for a writ of Habeas Corpus)
(On Appeal from a Divisional Court of the Queen's Bench Division)
My Lords,
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry. For the reasons they give I would allow this appeal.
My Lords,
This is an appeal from a decision of the Administrative Court (Rose LJ and Gibbs J) [2002] EWHC 1441 (Admin) in an application for habeas corpus. It was brought to challenge the lawfulness of the appellant's detention under a committal order made by a Designated District Judge under paragraph 7 of Schedule 1 to the Extradition Act 1989, as a request had been made for his extradition to the United States of America. The question which lies at the heart of the appeal is a question of jurisdiction. Was it within the jurisdiction of the judge to make the committal order when the facts show that the appellant is a convicted person and not, as the Secretary of State wrongly asserted and the judge wrongly assumed when she made the order, a person accused who has yet to stand trial in the United States?
Background
On 8 June 1972 a new treaty for the reciprocal extradition of offenders was entered into between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America, replacing an earlier treaty of 22 December 1931 which had itself replaced earlier treaties providing for extradition between the two countries which had been in existence since 1842. The 1972 Treaty ("the Treaty") was ratified on 21 October 1976. On 15 December 1976, in the exercise of powers conferred on Her Majesty by sections 2, 17 and 21 of the Extradition Act 1870, the United States of America (Extradition) Order 1976 ( SI 1976/2144) was made to bring the Treaty into force in the United Kingdom. The terms of the Treaty are set out in Schedule 1 to the 1976 Order.
In terms of article I of the Treaty each contracting party undertakes to extradite to the other, in the circumstances and subject to the conditions specified in the Treaty, any person found in its territory who has been accused or convicted of any offence within article III committed within the jurisdiction of the other party. The offences listed in article III include, in addition to an offence within any of the descriptions listed in the Schedule to the Treaty, an offence which is punishable under the laws of both parties by imprisonment or other form of detention for more than one year or by the death penalty and which constitutes a felony under the law of the United States of America. Article VII provides that a request for extradition shall be made through the diplomatic channel and that it shall be accompanied by various items of information, including a statement of the facts of the offence for which extradition is requested. Article VIII provides that in urgent cases the person sought may, in accordance with the law of the requested Party, be provisionally arrested on application through the diplomatic channel by the competent authorities of the requesting Party, but that a person arrested upon such an application shall be set at liberty upon the expiration of 45 days from the date of his arrest if a request for his extradition shall not have been received.
In accordance with requirements which have long been recognised as an essential part of achieving justice in extradition law, the details that have to be provided in support of a request for extradition differ according to whether the fugitive criminal is an accused person who has still to face trial or is a convicted person whose extradition is sought for the purpose of ensuring that he serves his sentence. Paragraphs (3) and (4) of article VII of the Treaty are in these terms:
"(3) If the request relates to an accused person, it must also be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority in the territory of the requesting Party and by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offence had been committed in the territory of the requested Party, including evidence that the person requested is the person to whom the warrant of arrest refers.
(4) If the request refers to a convicted person, it must be accompanied by a certificate or the judgment of conviction imposed in the territory of the requesting Party, and by evidence that the person requested is the person to whom the conviction refers and, if the person was sentenced, by evidence of the sentence imposed and a statement showing to what extent the sentence has not been carried out."
The Extradition Act 1870 was repealed by section 37 of and Schedule 2 to the Extradition Act 1989 ("the 1989 Act"). Section 1(3) of the 1989 Act provides:
"Where an Order in Council under section 2 of the Extradition Act 1870 is in force in relation to a foreign state, Schedule 1 to this Act (the provisions of which derive from that Act and certain associated enactments) shall have effect in relation to that state, but subject to the limitations, restrictions, conditions, exceptions and qualifications, if any, contained in the Order."
I shall have to return to the provisions of Schedule 1 in more detail later. For the time being it is sufficient to note that it sets out the procedure which must be followed by the authorities within the domestic system of the United Kingdom to give effect to this country's treaty obligations with the foreign state.
The facts
On 20 December 1994 the appellant Gennaro Guisto, also known as Jerry Russo, was involved in an incident in Manhattan, New York. A student named Sean Jennings was subjected to an unprovoked attack in the early hours of the morning when he was walking to the subway. He was viciously assaulted by two men with an aluminium baseball bat and sustained serious facial injuries. The appellant and his brother John Russo were subsequently arrested and charged with this assault. On 10 January 1995 the appellant was indicted for assault in the first degree by a New York County Grand Jury. This is an offence which under the law of the State of New York is punishable by a sentence of more than one year's imprisonment. On 27 January 1995 the appellant appeared before a judge of the New York Supreme Court and was admitted to bail. The judge gave him what is known as a "Parker" warning: The People v Parker, 57 NY 2d 136, 454 NYS 967, 440 NE 2d 1313 (1982). He warned the appellant that, if he intentionally absented himself, his trial could go ahead in his absence and that he could also be sentenced without being there. When he was asked whether he understood this warning the appellant answered in the affirmative.
On 6 July 1995 the appellant appeared before the New York Supreme Court for a hearing regarding the case. But he failed to appear for a further hearing that afternoon, and a warrant was issued for his arrest. Attempts were made to trace him, but they met with no success. On 16 October 1995, following a motion by the prosecution that as the appellant had intentionally absented himself from his trial he should be tried in his absence, a trial began in his absence in which he was charged with assaulting Sean Jennings in the first degree. On 19 October 1995 he was convicted of this charge by the jury. On 29 November 1995 the trial judge, Justice Harold Rothwax, sentenced the appellant in his absence to a term of between 5 to 15 years' imprisonment and fined him £5,000. Warrants were again issued for his arrest. But attempts to trace him were again unsuccessful.
On 10 October 2001 police officers who were on duty in the town centre at Hayes, Middlesex observed a man behaving in an unusual manner while seated on the floor of a bandstand. When he was asked for his name the man said that it was Gennaro Guisto and that he was from America. Further inquiries revealed that the man to whom the police were speaking was the appellant and that there was an Interpol Locate/Trace marker against his name. He was arrested and taken into custody. The Embassy of the United States of America in London was notified, and the Embassy responded immediately. In a letter dated 10 October 2001, addressed to the Secretary of State, the Ambassador of the United States of America requested the provisional arrest of the appellant under article VIII of the Treaty for the purpose of his extradition to the United States on the ground that he was wanted by the State of New York to serve a sentence on an assault charge. An assurance was given that if the appellant was provisionally arrested in response to this request the United States would submit the supporting documents required by the Treaty within the time which the Treaty specified. On 11 October 2001 a District Judge at Bow Street Magistrates' Court designated for the purposes of the Extradition Act 1989 granted a provisional warrant for the arrest of the appellant under paragraph 5(1)(b) of Schedule 1 to the 1989 Act. He did so on the ground that it had been shown that the issue of a warrant for the arrest of a person convicted of an offence in the United Kingdom would have been justified.
The judicial authorities in the United States then put in hand the preparation of the documents which under article VII of the Treaty were required for presentation to the Secretary of State to enable him to give effect in domestic law under paragraph 4(1) of Schedule...
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