R v Bow Street Metropolitan Stipendiary Magistrates, ex parte Government of the United States of America (pet. all.)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kennedy,Mr Justice Blofeld,LORD JUSTICE KENNEDY |
| Judgment Date | 13 May 1998 |
| Judgment citation (vLex) | [1998] EWHC J0513-5 |
| Docket Number | CO/2232/97, CO/2946/97 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 May 1998 |
In the Matter of Adeniyi Momodu Allison and in the Matter of an Application for a Writ of Habeas Corpus Ad Subjiciendum and in the Matter of the Extradition Act
and
[1998] EWHC J0513-5
Lord Justice Kennedy
(Vice President of the Queen's Bench Division)
-and-
Mr Justice Blofeld
CO/2232/97, CO/2946/97
CO/3187/97
(CO/2232/97, CO/2946/97)
CO/3187/97
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Royal Courts of Justice
The Strand
MS C MONTGOMERY QC and MS H MALCOLM (Instructed by Burton Copeland, London WC2A 3LZ) appeared on behalf of the Applicant.
MR J LEWIS (Instructed by the Crown Prosecution Service, Central Casework, International, Civil & Appellate Branch, London) appeared on behalf of the Respondent.
MR J LEWIS (Instructed by the Crown Prosecution Service, Central Casework, International, Civil & Appellate Branch) appeared on behalf fo the Applicant.
THE FIRST RESPONDENT did not appear and was unrepresented.
MS C MONTGOMERY QC and MS H MALCOLM (Instructed by Burton Copeland, London WC2A 3LZ) appeared on behalf of the Second Respondent.
Wednesday, 13th May 1998
1. History of Proceedings
On 18th June 1996 at the request of the government of the United States of America Adeniyi Allison was arrested on a provisional warrant in respect of offences of conspiracy which also involved a woman named Joan Ojomo, a credit analyst employed by American Express (Amex) at their office at Plantation, Florida. An application for Habeas Corpus arising out of the arrest was dismissed by this court, and on 15th May 1997 the Secretary of State authorised the Magistrate to proceed. The three offences on which committal was sought all alleged that Allison between 1st January 1996 and 18th June 1996, within the jurisdiction of the USA conspired with Joan Ojomo and others —
(1) To secure unauthorised access to the American Express Computer system with intent to commit theft.
(2) To secure unauthorised access to the American Express Computer system with intent to commit forgery.
(3) To cause an unauthorised modification of the contents of the American Express Computer system.
On 11th June 1997 the Magistrate gave reasons in writing for his decision to commit only in respect of the third offence. A few days earlier, on 6th June 1997, the Secretary of State authorised the magistrate to proceed in relation to other offences connected with the State of Maryland. Allison was arrested for those offences on 11th June 1997, and on 1st August 1997 he was committed by a different magistrate to await the decision of the Secretary of State in respect of four Maryland offences which alleged that he —
(1) On or about 25th July 1994 conspired with Christopher Omotunde and others to be concerned in an arrangement whereby the retention or control of US$ 30,000 on behalf of Sunday Awoyemi being the proceeds of drug trafficking, was facilitated by concealment, removal from the United States of America, transfer to nominees or otherwise.
(2) Between 1st January 1993 and 1st January 1995 conspired with Christopher Omotunde and others to acquire or possess the proceeds of drug trafficking.
(3) Between 1st January 1988 and 1st January 1994 conspired with Bobby Bashorun and others to acquire or possess the proceeds of drug trafficking.
(4) On a date unknown handled stolen goods, namely the proceeds of US $ 10,000 for Christopher Omotunde, knowing or believing the same to represent the proceeds of credit card fraud.
There was a fifth Maryland charge alleging conspiracy to supply heroin. That charge was dismissed on the basis that there was no sufficient evidence to support it, and before us there has been no attempt to revive that fifth charge.
2. These Proceedings
The Government of the United States and the DPP now challenge by Judicial Review the decision of the Magistrate on 11th June 1997 not to commit in respect of the first two Florida Amex charges, and Allison by proceedings for Habeas Corpus invites us to set aside both committals.
3. Florida Amex offences—Factual Background
The case for the Government of the United States in relation to the Florida Amex offences was and is that Joan Ojomo, as a credit card analyst was authorised to access computer records of those who owed money to Amex. She was instructed as to which accounts she should work on, but she had the ability to access other accounts, and that is what she did. She then supplied account information to her external co-conspirators, including Allison. Armed with that information the external conspirator could then obtain a personal identification number or a replacement PIN from Amex, encode a credit card, and draw large sums of money from Automatic Teller Machines (ATM). When Allison was arrested in England he had two forged Amex cards in his possession, and had recently (on 24th May 1996) been photgraphed using one such card to obtain money from a ATM.
4. Florida Amex Offences—Extradition Crimes?
The three Florida offences alleged contraventions of sections 2 and 3 of the Computer Misuse Act 1990, and the first point taken by Miss Montgomery, QC., for Allison is that in the case of a request for extradition made by the United States Government such contraventions are not extradition crimes. This submission involves an examination of some provisions of the Extradition Act 1989, which in turn refers to the Extradition Act 1870 and a relevant Order in Council.
The 1989 Act, as the long title makes clear, is not simply a consolidating statute, and section 1(3) provides that where an Order in Council under section 2 of the 1870 Act is in force in relation to a foreign state (and that is agreed to be the position in relation to the United States) Schedule I to the 1989 Act 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 turn therefore to Schedule I, which sets out certain provisions deriving from the 1870 Act and associated enactments, and paragraph 20 of the Schedule provides that in the Schedule, unless the context otherwise requires, "extradition crime" in relation to any foreign state —
"is to be construed by reference to the Order in Council under section 2 of the Extradition Act 1870 applying to that state as it had effect immediately before coming into force of this Act and to any amendments thereafter made to that Order."
The next step therefore is to look at the Order in Council, the United States of America (Extradition) Order 1976 (SI No 2144) which gave effect to the 1972 bilateral Extradition Treaty. The text of the Treaty is to be found in Schedule I to the Order and Article 3, so far as relevant, provides: —
"(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:
(2) the offence is punishable under the laws of both Parties by imprisonment or other form of detention for more than 1 year ……
(3) the offence is extraditable under the relevant law, being the law of the United Kingdom ……… and the offence constitutes a felony under the law of the United States of America.
Extradition shall also be granted for any attempt or conspiracy to commit an offence within paragraph (1) of this Article ……."
The Schedule to which Article 3 refers does not contain any express reference to offences contrary to the Computer Misuse Act 1990 but it does list seventeen categories of offence to one of which (concerning drugs) I must refer later in this judgment. Mr James Lewis for the United States Government accepts that prior to the passing of the 1989 Extradition Act if an offence was to be regarded as an extradition crime it had to feature in the list in Schedule I of the 1870 Extradition Act (as amended) and it had to be an offence within the Order in Council which incorporated the relevant treaty. But Mr Lewis submits and I accept (despite what was said by this court in R v Secretary of State for the Home Department ex parte Gilmore (1998) 1 All E R 264) that, having regard to the wording of the 1989 Act, the two stage approach is no longer necessary. All that is necessary is to look at Schedule I to the 1989 Act and the relevant Order in Council which can if necessary be amended (see section 37(3) of the 1989 Act). Mr Lewis submits that in this case there is a relevant amendment to be found in section 15 of the Computer Misuse Act 1990 under the heading "Extradition where Schedule I to the Extradition Act 1989 applies". The section itself, so far as is relevant, reads: —
"The offences to which an Order in Council under section 2 of the Extradition Act 1870 can apply shall include —
(a) offences under section 2 or 3 above;
(b) any conspiracy to commit such an offence……"
Miss Montgomery submits that the use of the word "can" makes it clear that the section is only an enabling provision, not itself making any amendment to any particular Order in Council. But, as Mr Lewis points out, the statute could not amend the Treaty, so what it does is to make use of the Treaty's reference to "any other offence" to extend the provisions of the Order to embrace the 1990 Act. In my judgment that is the right approach to adopt in relation to section 15. Furthermore, if, as Miss Montgomery contends, it were still necessary in this type of case to look at the list to be found in Schedule I to the 1870 Act (as amended) it is difficult to see why section 15 of the Computer Misuse Act 1990 does not provide...
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