R v Governor of Pentonville Prison ex parte Sotiriadis
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Lord Diplock,Lord Simon of Glaisdale,Lord Cross of Chelsea,Lord Kilbrandon |
| Judgment Date | 30 January 1974 |
| Judgment citation (vLex) | [1974] UKHL J0130-2 |
| Date | 30 January 1974 |
| Court | House of Lords |
and
[1974] UKHL J0130-2
Lord Wilberforce
Lord Diplock
Lord Simon of Glaisdale
Lord Cross of Chelsea
Lord Kilbrandon
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Government of the Federal Republic of Germany against Sotiriadis and another (on Appeal from a Divisional Court of the Queen's Bench Division), that the Committee had heard Counsel as well on Tuesday the 11th, as on Wednesday the 12th and Monday the 17th, days of December last, upon the Petition and Appeal of the Government of the Federal Republic of Germany praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 7th of November 1973, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of Ioannis Sotiriadis and the Governor of Her Majesty's Prison at Pentonville, the Respondents to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 7th day of November 1973, complained of in the said Appeal, be, and the same is hereby Set Aside except in so far as it Ordered that the costs of the said first Respondent in that Court be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949: And it is further Ordered, That the Costs incurred by the First Respondent in respect of the said Appeal to this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960, the amount of such Costs to be certified by the Clerk of the Parliaments.
My Lords,
On 7th November, 1973, the Divisional Court directed that a writ of habeas corpus be issued to obtain the release of the Respondent, Ioannis Sotiriadis, from prison where he was awaiting extradition to the Federal Republic of Germany. The Federal Republic appeals to this House.
Apart from a contention that there was not sufficient evidence to support the magistrate's order, which is without substance, the appeal turns entirely upon a matter of dales. Those relevant are as follows:
( a) 5th April, 1973. Respondent arrested on provisional warrant under section 8(2) of the Extradition Act, 1870. Offence charged was forgery.
( b)On various dates thereafter. Respondent remanded in custody until 1st June, 1973.
( c) 1st June, 1973. Respondent remanded in custody until 4th June, 1973.
( d) 2nd June, 1973. Order of Secretary of State dated 1st June, 1973, stating that a requisition had been made for the extradition of the Respondent on account of crimes of forgery and obtaining property by deception.
( e) 4th June, 1973. Depositions duly authenticated in accordance with section 15 of Extradition Act, 1870, received from the German Government at the Foreign Office.
( f) 4th June, 1973. English translations of documents referred to above handed to magistrate at Bow Street. Respondent again remanded in custody.
( g) 6th June, 1973. Authenticated documents forwarded from Foreign Office to Bow Street.
( h) 29th June, 1973. Warrant issued under section 10 of Extradition Act, 1870, committing Respondent to prison to await surrender.
Article XII of the Extradition Treaty with Germany has to be applied to these dates. It reads:
"XII. If sufficient evidence for the extradition be not produced within two months of the date of apprehension of the fugitive he shall be set at liberty."
The critical words here are "apprehension" and "produced". It was first claimed for the Respondent and so held by the Divisional Court, that "apprehension" includes arrest on provisional warrant. If this is right, the two months' period started to run on 5th April, and expired on 5th June, 1973. Secondly it was claimed and held that "produced" refers to production not to the Foreign Office, but to the Magistrates' Court at Bow Street. If this is right, assuming that the Respondent succeeds on the first point, the production, on 6th June, 1973, was too late. If the Appellant Government is right on either point, the appeal must succeed.
My Lords, on the first point there is obviously much attraction in an argument which seeks to prevent individuals from being detained in prison for more than two months after the initiation of extradition proceedings. Apprehension, it may be justly said, is the same in effect whatever the procedure under which it was brought about: from the arrested person's point of view, it seems an irrelevance, when he has been in prison continuously for over two months, to make a distinction between a period during which he was held on a provisional warrant and a period during which he was held on an order, after requisition, from a Secretary of State. Moreover, it may be said that those who framed the Treaty with Germany, which dates from 1872, must have been aware of the procedure of arrest by provisional warrant and must have used the word "apprehension" so as to include it. But I have come to the conclusion that this argument should not be accepted. In the first place, the Extradition Act, 1870, itself contains its own separate safeguard against undue detention under provisional warrant, for (i) section 8 requires the authority issuing a provisional warrant of arrest to report it forthwith to the Secretary of State, who may order it to be cancelled, (ii) the magistrate, before whom the arrested person must be brought, must discharge the arrested person unless within a reasonable time to be fixed by him he receives an order from the Secretary of State stating that a requisition has been made for the prisoner's surrender. The existence of these specific safeguards thus diminishes the force of the argument for bringing the period of detention under provisional warrant within the two months. Secondly, the procedure of arrest by way of provisional warrant does not, in important respects, fit in to the scheme agreed in the Treaty. The warrant does not have to be applied for by the foreign government concerned, or by anyone on its behalf. The foreign government may know nothing about it. The charges on which it is based may not be those on which the foreign government ultimately requests surrender: in the present case, the provisional warrant specified forgery, whereas the requisition was based on forgery and, additionally, on obtaining property by deception. Where the situation is of this nature, it would seem to be contrary to the intention of the Treaty and unworkable, that the two months' period should run from a date, which the foreign government may have had no part in selecting and on which the charges relied on by the foreign government had not been established. I think, therefore, that a comparison of the Treaty with the Act points to the conclusion that the apprehension referred to in the Treaty means apprehension in accordance with the Treaty i.e., following the procedure laid down in Article VIII and does not refer to apprehension effected under our domestic legislation. I should add two points: first that such relevant authority as there is though perhaps assuming that the relevant date is that of arrest on provisional warrant leaves this particular point open— R. v Bluhm [1901] 1 K.B. 764 and In re Beese [1973] I W.L.R. 969, and, secondly, that on the Appellant's argument there is no difficulty as regards fixing the date of apprehension in a case such as the present where the person charged is already under detention, see R v. Weil [1882] 9 Q.B.D. 701, Athanassiadis v. Government of Greece [1971] A.C. 282. The supposed existence of a difficulty of this kind obviously influenced the Divisional Court to decide in favour of the provisional arrest date: but, following these authorities the date can, and should, be fixed as 4th June, 1973.
The second point, as to production, is one which I find difficult. There are sound practical reasons, no doubt, for holding that production means production to the court which has, under the Treaty, to decide upon the sufficiency of what is produced. But the scheme of the Treaty appears to me to favour the other view, that production means production by the requesting government to the government requested—i.e., the date of receipt by the normal government channel, called, in the Treaty, the Diplomatic agents, through whom the requisition has to be made. I do not think that it can have been intended that where as between governments, the necessary evidence has been delivered within the Treaty period, the requesting government is to lose its Treaty rights on account of delay in transmission to the requested State's courts: and it does not logically follow from the fact that it is the courts which have to pronounce on the sufficiency of the evidence, that the date of production is to be the date of production to the court. If, therefore, the evidence produced to the Foreign Office is, in the result, held to be sufficient, and if it was produced within two months from the apprehension I would hold that it was in time. In the present case, sufficient evidence was produced on June 4th, 1973, so that on this point also the Appellant is entitled to succeeed.
I desire only to add that as to the correct procedure which ought to...
To continue reading
Request your trial
-
Deuss v Attorney General
...1870 Act were intended to work in practice received the detailed attention of Lord Diplock in two appeals. The first, R v Governor of Pentonville Prison Exp Sotiriadis [1975] AC 1, concerned the effect of a provision in the Federal Republic of Germ any (Extradition) Order 1960 ( SI 1960/13......
-
Re Nielsen
...is accused is sufficient to identify the point of law that is raised by this appeal. 11My Lords, in my speech in Reg v. Governor of Pentonville Prison, Ex parte Sotiriadis [1975] A.C. 1, I undertook an analysis, which received the express approval of Lord Wilberforce and Lord Simon of Glai......
-
R v Governor of Ashford Remand Centre, ex parte Postlethwaite
...for the respondents that we are bound by the authority of this House in Government of the Federal Republic of Germany v. Sotiriadis [1975] A.C. 1 to construe the word "evidence" in article V as meaning nothing less than legally admissible evidence. That case turned on a provision in the tr......
-
Re Campuzano
... ... Rep.) (Government) v. Sotiriadis , [1975] A.C. 1 ; [1974] 1 All E.R. 692 , applied ... fugitive criminal to prison to await surrender to the govern- ... ...