R v Governor of Pentonville Prison, ex parte Sinclair
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Templeman,Lord Griffiths,Lord Ackner,Lord Goff of Chieveley |
| Judgment Date | 11 April 1991 |
| Judgment citation (vLex) | [1991] UKHL J0411-1 |
| Date | 11 April 1991 |
| Court | House of Lords |
[1991] UKHL J0411-1
Lord Bridge of Harwich
Lord Templeman
Lord Griffiths
Lord Ackner
Lord Goff of Chieveley
House of Lords
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Ackner. I agree with it and for the reasons he gives I would dismiss the appeal.
My Lords,
For the reasons given by my noble and learned friend, Lord Ackner, I would dismiss the appeal.
My Lords,
I have had the opportunity of reading in draft the speech prepared by my noble and learned friend Lord Ackner. I agree with it, and for the reasons which he gives I, too, would dismiss the appeal.
My Lords,
This is an appeal against the dismissal on 19 February 1990 by the Divisional Court of the Queen's Bench Division of a motion for a writ of habeas corpus [1990] 2 Q.B. 112. It raises two important issues as to the jurisdiction in extradition proceedings of the police magistrate and a short point of construction as to the meaning of the word "prosecution" in Article V (1)( b) of the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America contained in Schedule 1 to the United States of America (Extradition) Order 1976 ( S.I. 1976 No. 2144).
The facts
These are set out by Watkins L.J. in his judgment with characteristic lucidity, at pp. 114-117. They may be shortly summarised as follows. The appellant was born in Trinidad, of which country he is a national. On 18 October 1976 he was convicted by a jury of three offences of mail fraud, one of interstate transportation and one of conspiracy. On 22 April 1977 Judge Murray Schwartz granted a judgment of acquittal on one of the mail fraud counts. On 29 April 1977 the appellant was sentenced by Judge Schwartz to concurrent terms of four years imprisonment and on 3 February 1978 the appellant was ordered to report to the custody of the United States Attorney-General on 6 March 1978.
At that hearing the judge was told by the appellant that he intended to travel to Trinidad to find a place for his wife and family to reside, whilst he served his prison term and on 22 February 1978 he flew to Trinidad. He had, he maintains, been allowed by the court to keep his passport in order to join his wife. However, according to his account when he applied for a visa to re-enter the U.S. his application was refused because, so he was informed, as a convicted felon he was ineligible for re-entry. He maintains that he kept his lawyer in the U.S. informed of the reason why he did not or could not return to serve his sentence.
The appellant's account receives strong support from James Garvin, who at the material time was the United States Attorney for the District of Delaware. In a newspaper article in the Wilmington Delaware News Journal of 8 March 1978 he is quoted as saying that, having checked with the Justice Department in Washington, the appellant's excuse was "legitimate" viz. that as a convicted felon he would be prevented from returning to the U.S. Mr. Garvin is further quoted as saying that the government could extradite the appellant and then deport him after he had served his jail sentence, or the government could do nothing, leaving the appellant without any legal means of re-entering the United States. In the same article a spokesman in Mr. Garvin's office is said to have confirmed that the appellant's lawyer informed them of the appellant's inability to obtain a visa and the reason for this. In an affidavit sworn by Mr. Garvin on 13 October 1988 he states that, while he has no present recollection of the statements that the article attributed to him and his office, he has no reason to believe that they were not accurate.
On 29 April 1978 Mr. Garvin obtained a bench warrant relating to the appellant but it appears that no further action was taken. It seems apparent that Mr. Garvin had come to the conclusion that exile from the U.S. was a worse punishment than serving the sentence. Attempts to extradite the appellant were not pursued, although in the autumn of 1978 the appropriate authority in the U.S. was aware of the appellant's address in Trinidad. There is documentary evidence to the effect that in about September the appellant's name was removed from the "fugitive index".
The appellant lived and worked in Trinidad until 1983 when he and his family came to London where they have lived ever since. In that year Interpol, for reasons which have not been disclosed, became interested in the appellant and communicated their interest through another agency to a U.S. authority. Consequently, the Justice Department decided in September 1983 to seek the extradition of the appellant. In the words of Watkins L.J, at p. 116:
"That process, as revealed to us, bears the appearance of meandering along from 1983 to October 1987 when a formal request for extradition was made to the United Kingdom Government. We know not why such delay occurred nor why the decision to seek extradition was taken when the matter had lain dormant for so long."
On 5 February 1988 the appellant was arrested in London upon an extradition warrant and subsequently came before the learned stipendary magistrate at Bow Street in extradition proceedings, from which arose the subsequent application for habeas corpus.
The proceedings before the Stipendary Magistrate at Bow Street
These took some 19 days, the main contentions being:
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1. The magistrate had jurisdiction to stay the proceedings on the ground that they were an abuse of the process of the court.
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2. That the facts justified his exercising that jurisdiction.
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3. That the "prosecution" for the offences for which extradition was requested had become barred by a lapse of time and accordingly under Article V (1)( b) of the Treaty there was no power to grant extradition.
Extensive evidence was given to the magistrate. The appellant was called to establish the basic facts which I have recited. He of course dealt in detail with his attempts to return to the United States to serve his sentence and the circumstances in which he lived in Trinidad following the refusal of a visa, in order to demonstrate how easy it would have been for the United States authorities to have made contact with him, if they had wished to apply for his extradition or otherwise achieve his return to the United States. He dealt similarly with the circumstances in which he lived during the four years from 1983 to 1987, when the formal request for his extradition was made, again with a view to demonstrating his availability and accessibility. He also produced a tape of a lengthy telephone conversation with Mr. Garvin on 3 October 1988, which tended to show that Mr. Garvin was not in favour of his extradition, taking the view that the appellant had exiled himself and that this had resulted in a worse punishment.
The appellant's evidence as to the open manner in which he was living in Trinidad was supported by that of Mr. Dunning. An affidavit was provided by Rhonda Janes Bump of California, an employee of the U.S. Internal Revenue Service, who had visited the appellant and his wife in Trinidad, stayed at their home for two weeks and in 1979 or 1980, and had informed the Internal Revenue Service of his address. Affidavits were also provided from Morton Richard Kimmel, the lawyer who represented the appellant in the criminal proceedings. He stated, inter alia, that in October 1978 he had provided the U.S. Attorney's office with the appellant's address in Trinidad. Thereafter he had never been contacted regarding the appellant. Mr. Poppiti, an attorney practising in the State of Delaware, had personally known the appellant for 30 years and Mr. James Garvin for about 15 years. He deposed that he had never been approached to enquire about the appellant's whereabouts, which he would readily have stated.
Extensive evidence of United States law was given by Mr. Buckley Junior, a highly qualified attorney practising in Washington D.C. This evidence was directed to two main issues. These were:
1. The meaning of the word "prosecution" under United States law. It was his contention, supported by American case law, that a prosecution is not completed in a criminal cause until the defendant begins to serve his sentence. Accordingly since the appellant had not begun to serve his sentence, the United States Government's prosecution of him is still continuing and includes the present attempt to obtain the remedy of his incarceration.
2. The prosecution of the appellant had become barred by lapse of time by virtue of the doctrine of credit for time at liberty and the doctrine of waiver. Under the doctrine of credit for time at liberty, a convicted person is entitled to credit against his sentence for the time he was erroneously at liberty, provided there is negligence on behalf of the government and the delay in the execution of the sentence was through no fault of the convicted person. Under this doctrine the appellant would be entitled to credit for the period of almost 10 years when he was at liberty.
Under the doctrine of waiver a defendant may not be required to serve an otherwise legal sentence after a lapse of time, "if the government's action or inaction is so affirmatively wrong or grossly negligent that service of the sentence would be inconsistent with 'fundamental principles of liberty and justice'".
Support for the United States Government's request for extradition, was provided in the affidavit of Linda Candler. She is currently employed as a Trial Attorney with the Office of...
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