R (Guisto) v Governor of Brixton Prison

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLORD JUSTICE ROSE,MR JUSTICE GIBBS
Judgment Date01 July 2002
Neutral Citation[2002] EWHC 1441 (Admin)
Docket NumberNO: CO/1751/02
Date01 July 2002

[2002] EWHC 1441 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Before

Lord Justice Rose and

Mr Justice Gibbs

NO: CO/1751/02

Gennaro Guisto
and
Governor of Hmp Brixton and the Government of the United States of America

MR J HARDY (MR N YEO for judgment) (instructed by Saunders & Co, 71 Kingsway, London WC2B 6ST) appeared on behalf of the Claimant

MR J HINES (instructed by Treasury Solicitor) appeared on behalf of the Defendant

LORD JUSTICE ROSE
1

Gibbs J will give the first judgment.

MR JUSTICE GIBBS
2

The applicant, Gennaro Guisto, challenges the lawfulness of his detention under a committal order made by a Designated District Judge at Bow Street Magistrates' Court on 14th March 2002 on a request for extradition to the United States of America.

3

On 20th December 1994, in the early hours of the morning in Manhattan, it is alleged that the applicant, then using the name Gerry Russo, together with his brother, took part in a serious assault on a man named Jennings. There was no lawful reason for the attack, which was carried out by the applicant with his fists and feet, and by his brother with a baseball bat. The victim sustained serious injuries, including fractures to his jaw, nose and other facial bones. He required plastic surgery and the insertion of permanent plating to help fix the fractured bones.

4

On 10th January 1995 an indictment was filed in New York charging against the applicant an offence described as "first degree assault", which under New York State law carries more than one year's imprisonment and thus qualifies for extradition under the relevant statutory provisions which govern extradition to the United Kingdom.

5

On 27th January 1995 the applicant appeared before Judge Shea at the Supreme Court of the State of New York—a court of first instance for serious crime. After the appearance, the applicant was admitted to bail. The judge administered a warning to the applicant, known as a "Parker" warning, named after a 1982 New York Court of Appeals case called People v Parker. The substance of the warning was:

"If I determine that you intentionally absented yourself the trial can go ahead without you and you can be sentenced without being here. Do you understand that?"

6

The applicant answered "yes".

7

On 6th July before the same judge, and in the presence of the applicant, submissions were made that certain evidence against him and his co-defendant should not be admitted. The judge rejected the submissions and directed the applicant and his brother to appear at 2.15pm in front of another judge, Judge Rothwax, in the same building. Both defendants absconded and failed to appear. Bench warrants were issued.

8

Substantial efforts then followed to find the applicant, but these were unsuccessful. On 10th October 1995 there was a further hearing at which the prosecution sought a trial of the defendants in their absence and outlined efforts which had been made to find them. Judge Rothwax decided that they had voluntarily absented themselves and granted the prosecution's application for a trial in their absence.

9

The trial was fixed for 16th October, the defendants' lawyers being given the intervening six days to produce them. The trial then took place. The procedure adopted was as follows. The applicant and his brother were each represented by an attorney. A jury was selected and sworn. Testimony and other evidence were introduced. The people's witnesses were subjected to cross-examination by defence counsel. Closing arguments of counsel were heard. The judge charged the jury on the applicable law, and the jury deliberated on the charge.

10

On 19th October 1995 the jury returned its verdict, finding both defendants guilty of "assault in the first degree".

11

On 29th November 1995 Judge Rothwax sentenced the applicant in absentia to an indeterminate sentence of 5 to 15 years and imposed a fine of $5,000.

12

On the same day, he issued another warrant for the applicant's arrest, which ultimately led to the present proceedings.

13

On 10th October 2001 the applicant was arrested by the English police in Hayes. They discovered that he was wanted in the United States, and he was detained as an illegal immigrant pending extradition proceedings.

14

The judicial authorities in the United States then began to prepare the necessary documents to present to the Secretary of State in the United Kingdom under Schedule 1 paragraph 4(1) of the Extradition Act 1989, (it being common ground that these extradition proceedings are governed by that Schedule.)

15

On 30th November 2001 there was signed and sworn before a New York Justice a statement from Mr Morgenthau, District Attorney, essentially verifying the history of the New York proceedings as previously recited, and concluding:

"We respectfully request that Jerry Russo [another name for the applicant] be returned to the United States for execution of the sentence imposed by Judge Harold Rothwax on 29th November 1995."

16

On or about 6th December 2001 a representative of the United States embassy in London requisitioned the surrender of the applicant. (This date appears on the certificate of the United States Consul at page 3 of the committal bundle.)

17

On 18th December 2001 the Secretary of State by Order signified (under paragraph 4(2) of the Schedule) to the Senior District Judge that the requisition had been made. The terms of the order included recitals of the applicable statutory provisions and further recited that a requisition had been made for the surrender of the applicant "who is accused [my emphasis] of the commission of the crimes of causing grievous bodily harm with intent and inflicting grievous bodily harm within the jurisdiction of the United States of America."

18

Following the recitals, the Order provided:

"Now the Secretary of State, by this Order, signifies to you that such a requisition has been made."

19

On 20th December 2001 a further statement was sworn by Mr Morgenthau, which amplified the earlier statement in the following material respects:

(a) it set out a number of procedural options which would be open to the applicant to challenge his conviction, either by way of appeal, motion to vacate, habeas corpus in the United States court, or pardon, either by President or the State Governor; however, no opinion as to the merits of any of these options was given.

(b) It enclosed evidence to establish the guilt of the applicant on the extradition charges. The statement concluded:

"We respectfully request that Jerry Russo be returned to the United States so that whatever appropriate proceedings can be held before the Courts of New York."

20

The committal hearing took place on 11th February 2002 before District Judge Rees at Bow Street. Two points were taken on the applicant's behalf. The first was that he was not properly extraditable as an "accused person" and had not been properly so described in the Secretary of State's Order. As a convicted person, he could not be dealt with as an accused person unless his conviction was a "conviction for contumacy". (See paragraph 20 of the Schedule, the interpretation paragraph). The facts disclosed by the United States judicial authorities did not support the view that there had been "a conviction for contumacy". Accordingly, the applicant could not be committed as an accused person under paragraph 7(1) of the Schedule, as the United States were suggesting, but only under paragraph 7(2) which enabled the committal of persons convicted of an extradition crime.

21

The second and alternative point taken, as to the adequacy of the evidence of guilt, is not pursued before this court.

22

The District Judge, in a reserved judgment dated 14th March 2002, rejected both the applicant's arguments and ordered his committal. She decided that in the light of the procedures open to the applicant in the United States to challenge his conviction, that conviction is properly described as a "conviction in contumacy" and the accused was, therefore, correctly dealt with under paragraph 7(1). This decision is the matter challenged in the present application.

THE STATUTORY FRAMEWORK

23

The Treaty governing these extradition proceedings was concluded on 18th June 1972, ratified on 21st October 1976 and incorporated into United Kingdom law by the United States of America (Extradition) (Order) 1976. The articles of the Treaty as recited in the Order set out, inter alia, the conditions for the grant of extradition, certain exclusions, and also the formal requirements by way of evidence in support of a request for extradition. No point is taken in this case on any deficiency in formal requirements.

24

Articles VII(3) and (4) are however relevant. Article VII(3) sets out the evidential requirements in the case of a request relating to an accused person. It requires production of the warrant of arrest, and such evidence as, according to the law of the requested party, would justify his committal for trial in its jurisdiction, including evidence of identity. Article VII(4) sets out the requirements in the case of a convicted person. It requires production of the certificate of conviction, evidence of identity and, if sentence has been imposed, evidence of the sentence imposed and to what extent it has not been carried out.

25

It is to be noted that, in the present case, there was, in the documents supplied by the respondent, undoubtedly sufficient to comply with both these requirements in the Treaty, whether the applicant was treated as a convicted or an accused person. The contrary is not, indeed cannot be, argued.

26

Schedule 1 paragraphs...

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    ...regard to the final nature of the French judgment ultimately passed upon him, have been treated as a convicted person. In R (Guisto) v Governor of Brixton Prison [2003] UKHL19, [2004] 1 AC 101 it was held that the applicant could not be extradited as a convicted person on a warrant descri......
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