R v Governor of Pentonville Prison, ex parte Budlong; R v Governor of Holloway Prison, ex parte Kember

JurisdictionEngland & Wales
Judgment Date30 November 1979
Date30 November 1979
CourtQueen's Bench Division (Administrative Court)
England, Divisional Court, Queen's Bench Division.

(Lord Widgery CJ and Griffiths J)

R
and
Governor of Pentonville Prison, ex parte Budlong
R
and
Governor of Holloway Prison, ex parte Kember

Extradition — Double criminality — Requirement that conduct constitutes an offence under laws of both requested and requesting State — Whether requirement satisfied by corresponding substantive elements of offence — Requirement of trespass for English offence of burglary not required under laws of District of Columbia, United States — Burglary allegedly committed in District of Columbia on instructions of applicants in United Kingdom — Evidence required to establish double criminality

Extradition — Political offence exception — Allegation by applicants that offences committed to alter United States Government policy towards religious sect — Whether offences of a political nature — Onus on applicants to establish that offence political

Extradition — Rights of suspect — Whether extradition of United Kingdom national contrary to Article 48 of Treaty establishing the European Economic Community

Relationship of international law and municipal law — Enforcement of foreign public laws — Contrary to international law — Whether extradition would result in enforcement of foreign public law — United States Freedom of Information Act — Whether extradition sought to punish for violation of foreign statute and not for the offence of burglary — The law of England

Summary: The facts:—Members of the Church of Scientology had unlawfully entered the buildings of the United States Internal Revenue Service and the United States Department of Justice in the District of Columbia, where they had copied confidential files relating to the Church of Scientology and its members. On being arrested, they had admitted that they had been acting on the instructions of the applicants who resided in the United Kingdom. The United States sought to extradite the applicants on charges of burglary under the United Kingdom-United States Extradition Treaty (‘the Extradition Treaty’).

The applicants applied for habeas corpus. They claimed that the double criminality requirement was not satisfied in this case because under English law burglary required that the accused enter the building as a trespasser, while there was no such requirement under the law of the District of Columbia. The applicants asserted that there had been insufficient evidence of the nature of the offence charged in the United States to satisfy the criteria for double criminality. They also contended that their offence was of a political nature, within the provisions of Section 3(1) of the Extradition Act 1870.1 The applicants maintained that their extradition would result in the indirect enforcement of a foreign public law, the United States Freedom of Information Act. Finally, one applicant, who was a United Kingdom national, alleged that extradition would violate her right under Article 48 of the European Economic Community Treaty, 1957,2 to move freely within the European Communities. It was claimed that extradition was analogous to deportation and that a reference should be made to the European Court of Justice for a ruling.

Held:—The applications were refused.

(1) Under the Extradition Treaty the only formal documents required by the magistrate were the Secretary of State's order to the police magistrate for the issue of a warrant and the foreign warrant authorizing the arrest of the fugitive criminal (pp. 74–6).

(2) Article III of the Extradition Treaty3 provided that the requirement of double criminality was satisfied by corresponding substantive aspects of the offence. It was not necessary to show that the precise definition of the offence was identical in both States (pp. 79–84).

(3) The offences were not of a political character. They were committed to further the interests of the Church of Scientology and its members (pp. 84–7).

(4) The claim that extradition was in reality being sought to enforce a United States public law implied bad faith on the part of the United States Government and was rejected (p. 87).

(5) Article 48 of the European Economic Community Treaty did not apply in cases of extradition to the United States and no reference to the European Court of Justice was required (pp. 88–90).

The following is the text of the judgment of the Court:

Lord Widgery C.J. I will ask Griffiths J. to read the judgment of the court.

Griffths J. In these proceedings the applicants move for writs of habeas corpus on the ground that the extradition warrants issued by the metropolitan magistrate, Mr. Robins, dated May 25, 1979, and upon which they are held pending extradition to the United States of America are unlawful.

The Government of the United States seeks the extradition of the applicants to face 10 charges of burglary committed between January and May 1976 and for which they were indicted by a grand jury on

August 15, 1978. The evidence placed before the magistrate revealed the following facts. Between January and May 1976 members of the Church of Scientology unlawfully as trespassers entered various offices of the United States Internal Revenue Service and the United States Department of Justice in the District of Columbia and therein, making use of government property, took photocopies of the contents of confidential government files relating to the affairs of the Church of Scientology and its adherents. They replaced the original documents in the files but stole the photocopies. Eventually the actual burglars were caught red-handed and they then revealed that they were acting on the written instructions of the applicants who are senior members in the hierarchy of the Church of Scientology residing in this country.

The magistrate, being satisfied that the facts revealed a prima facie case of burglary against the applicants, both according to the relevant law of the United States, namely, sections 1801 (b) and 105 of Title 22, District of Columbia Code, and according to English law, and that burglary was an extraditable crime within the Extradition Treaty made between the Government of the United Kingdom and the Government of the United States of America, he issued warrants committing the applicants to prison to await extradition. They have in fact both since been allowed bail pending the outcome of these proceedings.

In this court the magistrate's warrants have been attacked on a variety of grounds, but there has been no suggestion that the evidence before the magistrate did not establish a prima facie case of burglary against the applicants both according to American and English law.

The pleading point

The first ground of attack was conveniently described by counsel for the applicants as the pleading point. His complaint is that there was no formal document before the magistrate that contained sufficient particulars of the applicants' offence to show that it constituted the crime of burglary according to English law. It is submitted that before the magistrate can begin to consider the evidence in support of the application for an extradition warrant he must have all the necessary ingredients to establish the English offence formally set out in some document; and, as there was no formal document in this case that alleged the burglars entered ‘as trespassers,’ the magistrate should have refused to consider the matter further because trespass is an essential element of the English crime of burglary: see Theft Act 1968.

In order to examine this submission it is necessary to consider the steps by which extradition is obtained to see what formal documents are required to be placed before the magistrate. The first step is the request for extradition. This is made through the diplomatic channel and the material that must accompany the request is set out in article VII of the Extradition Treaty between the two governments: see Schedule 1 to the United States of America (Extradition) Order 1976. This is the material upon which the legal advisers in the Home Office will consider whether they should advise the Secretary of State to take the next step in the extradition procedure which is to refer the request to a metropolitan magistrate pursuant to section 7 of the Extradition Act 1870 which provides:

‘A requisition for the surrender of a fugitive criminal of any foreign state, who is in or suspected of being in the United Kingdom, shall be made to a Secretary of State by some person recognised by the Secretary of State as a diplomatic representative of that foreign state. A Secretary of State may, by order under his hand and seal, signify to a police magistrate that such a requisition has been made, and require him to issue his warrant for the apprehension of the fugitive criminal.

‘If the Secretary of State is of opinion that the offence is one of a political character, he may, if he think fit, refuse to send any such order, and may also at any time order a fugitive criminal accused or convicted of such offence to be discharged from custody.’

When the magistrate receives the order from the Secretary of State it is his duty to inquire into the evidence and, if sufficient, to issue his warrant, as plainly appears from the terms of sections 8 and 10. Section 8 provides:

‘A warrant for the apprehension of a fugitive criminal, whether accused or convicted of crime, who is in or suspected of being in the United Kingdom, may be issued—1. by a police magistrate on the receipt of the said order of the Secretary of State, and on such evidence as would in his opinion justify the issue of the warrant if the crime had been committed or the criminal convicted in England; …’

Section 10 provides:

‘In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, justify the committal for...

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    • United Kingdom
    • House of Lords
    • 12 April 1984
    ...extradition cases since In re Arton (No.2), was first given the sobriquet of "double criminality" by Griffiths J. in Reg. v. Governor of Pentonville Prison, Ex parte Budlong [1980] 1 W.L.R. 1110. After discussion of the cases in which the practice had been followed, Griffiths J. summarised......
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    ...justify such a restriction on his fundamental rights under European Union law. 84In Regina v. Governors of Pentonville Prison, Ex parte Budlong; Reg. v. Governor of Holloway Prison, Ex parte Kember [1979] 1 W.L.R. 1110 the applicant, Kember, was a UK national who had been charged with burgl......
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    ...of Germany, App. 1, No. 6242/73, C.D. 46, 202, 210, refd to. [para. 19]. R. v. Governor of Pentonville Prison; Ex parte Budlong, [1980] 1 All E.R. 701, refd to. [para. 19]. Federal Republic of Germany and Rauca, Re (1983), 4 C.C.C.(3d) 385, consd. [paras. 22, 24, 38, 40, 48, 80, 81, 82]. Sc......
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    ...Ex parte Littlejohn [1975] 1 W.L.R. 893; [1975] 3 A4.E.R. 108; [1975]. 19 R. v. Governor of Pentonville Prison, Ex parte Budlong [1980] 1 W. L. R. 1110; [1980] 1 A11.E.R. 701. 20 Burns v. The Attorney General (unrep. High Court 4th February, 1974, 21 Hanlon v. Fleming [1981] I.R. 489; [1982......
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1 books & journal articles
  • The Bombs in Omagh and their Aftermath: The Criminal Justice (Terrorism and Conspiracy) Act 1998
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    • The Modern Law Review No. 62-6, November 1999
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    ...1A(14)(a)).106 See C. Walker, ‘Internal cross-border policing’ (1997) 56 CLJ 114.107 See RvGovernor of Pentonville Prison, ex p Budlong [1980] 1 WLR 1110; G. Gilbert, TransnationalFugitive Offenders in International Law (The Hague: Martinus Nijhoff, 1998) 104–116.The Modern Law Review [Vol.......

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