Re Burke
| Jurisdiction | England & Wales |
| Judge | LORD STEYN,LORD JAUNCEY OF TULLICHETTLE,LORD HOPE OF CRAIGHEAD,LORD HUTTON,LORD HOBHOUSE OF WOODBOROUGH |
| Judgment Date | 15 June 2000 |
| Judgment citation (vLex) | [2000] UKHL J0615-2 |
| Court | House of Lords |
| Date | 15 June 2000 |
[2000] UKHL J0615-2
HOUSE OF LORDS
Lord Steyn
Lord Jauncey of Tullichettle
Lord Hope of Craighead
Lord Hutton
Lord Hobhouse of Woodborough
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hope of Craighead. For the reasons he gives I would also dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hope of Craighead. For the reasons he gives I would also dismiss the appeal.
My Lords,
On 14 September 1992 the appellant pled guilty in the United States District Court for the Northern District of Illinois to two counts of bank theft in violation of title 18 of the United States Code, section 2113(b). The offence listed in section 2113(b) of the Code has a maximum statutory sentence of ten years imprisonment. He was sentenced to imprisonment for five years on each count to be followed by supervised release for five years on each count upon his release from imprisonment. The periods of imprisonment and of supervised release which were imposed on each count were to run concurrently. He was also fined the sum of $1,000 and ordered to make restitution to the Continental Illinois National Bank in the amount of $35,600.
On 9 July 1994 the appellant was released from prison. Allowing for time already served when he was sentenced, he had by that date served the entirety of his custodial sentence. He then began his five year period of supervised release, during which he was obliged to comply with the conditions of supervision imposed on him by the court. Among these conditions of supervision were conditions which provided that he was not to leave the judicial district without the permission of the court or his probation officer, that he was to report to the probation officer as directed by the court or probation officer and that he was to notify the probation officer within 72 hours of any change in his residence or employment. On 7 November 1994 the appellant's probation officer notified the prosecution authorities that he had not been in contact with the appellant since 23 August 1994. On 30 November 1994 a warrant was issued by the court for the arrest of the appellant for his failure to maintain contact with his probation officer. As at that date he still required to serve more than four and a half years of his supervised release term.
Information was then received that the appellant had travelled from the United States of America to the United Kingdom. He was arrested on the authority of a provisional warrant of arrest which had been issued under paragraph 5(1)(b) of Schedule 1 to the Extradition Act 1989. On 9 November 1998 the Secretary of State issued an Order to Proceed under paragraph 5(4) of Schedule 1 to that Act. His order related both to the conviction case which is the subject of this appeal and to an accusation that the appellant had committed another offence of theft in the United States. The accusation case has not been pursued and the appellant was discharged from it on 9 December 1998. On 16 December 1998 he was committed in custody on the conviction case by the metropolitan magistrate under paragraph 7(2) of Schedule 1 to await the decision of the Secretary of State as to his return to the United States of America. On 16 March 1999 the Divisional Court (Rose L.J. and Mitchell J.) dismissed his application for a writ of habeas corpus ad subjiciendum.
The issue which is before your Lordships in this appeal is whether a person whose extradition is sought by the Government of the United States of America as a person who has been convicted and sentenced for an extradition crime can be surrendered for extradition when he has served the entirety of his custodial sentence but there remains outstanding a portion of his sentence which requires him to serve a period of supervised release.
I must first provide a brief summary of the scheme which governs the surrender of persons convicted or accused of crime between the United Kingdom and the United States of America. This is to be found in Schedule 1 to the United States of America (Extradition) Order 1976 ( S.I. 1976 No. 2144). That Order, which was made under section 2 of the Extradition Act 1870, remains in force under section 1(3) of the Extradition Act 1989. One of the objects of the Extradition Act 1989 was to consolidate the extradition procedures for the return of fugitives to foreign states and Commonwealth countries, and the Extradition Act 1870 was repealed. But various bilateral extradition treaties concluded under the Act of 1870 were continued in force except to the extent that these treaties had been lawfully terminated. Among these treaties was the extradition treaty concluded between the United Kingdom and the United States on 8 June 1972 to which effect was given by the Order in Council of 1976. Section 1(3) of the Extradition Act 1989 provides that where an Order in Council under section 2 of the Act of 1870 is in force in relation to a foreign state, Schedule 1 to the Act of 1989 shall have effect in relation to that state. So the procedure for the extradition of fugitives to the United States of America is that set out in Schedule 1 to the Extradition Act 1989. Their liability for extradition is determined by the provisions of the treaty set out in Schedule 1 to the Order in Council of 1976. It is the provisions of the treaty that are determinative of the issue which has been raised in this appeal.
Article I of the treaty is in these terms:
"Each Contracting Party undertakes to extradite to the other, in the circumstances and subject to the conditions specified in this Treaty, any person found in its territory who has been accused or convicted of any offence within Article III, committed within the jurisdiction of the other Party."
The treaty sets out in Article III the provisions which define the offences for which a person is liable to be extradited. Various restrictions on that liability are then set out in Articles IV, V and VI. Article VII provides for the making of the request for extradition through the diplomatic channel and it identifies the various documents which must accompany the request. There are a number of other Articles in the treaty, but none of them has any bearing on the issues in this case. The argument was directed to the provisions of Articles III and VII of the treaty. I must now describe these provisions in more detail.
Paragraph (1) of Article III defines the conditions which an offence must satisfy to qualify as an offence for which extradition is to be granted under the treaty. It must be an offence within any of the descriptions listed in the Schedule annexed to the treaty, or any other offence if (a) it is punishable under the laws of both parties by imprisonment or other form of detention for more than one year or by the death penalty, (b) it is extraditable under the law of the United Kingdom or other territory to which the treaty applies and (c) it constitutes a felony under the law of the United States of America. Theft is one of the offences listed in the Schedule. It is not disputed that the offences of bank theft of which the appellant was convicted are offences for which he is liable under the treaty to be extradited. Paragraph (4) of Article III is in these terms:
"A person convicted of and sentenced for an offence shall not be extradited therefor unless he was sentenced to imprisonment or other form of detention for a period of four months or more or, subject to the provisions of Article IV, to the death penalty."
As the appellant was sentenced to a term of five years imprisonment for each of the two offences of which he was convicted this requirement of Article III is also satisfied.
Paragraph (1) of Article VII provides that the request for extradition is to be made through the diplomatic channel. Paragraph (2) of that Article sets out various items which must accompany the request, including a description of the person to whom the request relates, a statement of the facts of the offence for which extradition is requested and the text of the law defining the offence. There then follow these two paragraphs:
"(3) If the request relates to an accused person, it must also be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority in the territory of the requesting Party and by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offence had been committed in the territory of the requested Party, including evidence that the person requested is the person to whom the warrant of arrest refers.
(4) If the request relates to a convicted person, it must be accompanied by a certificate or the judgment of conviction imposed in the territory of the requesting Party, and by evidence that the person requested is the person to whom the conviction refers and, if the person was sentenced, by evidence of the sentence imposed and a statement showing to what extent the sentence has not been carried out."
The argument for the appellant is directed to the provisions of paragraph (4) of Article III and to the concluding words of paragraph (4) of Article VII. He points to the fact that he has served the entirety of his custodial sentence and to the fact that the only reason why his return is sought is because he is alleged to be in breach of a condition of his supervised release. Paragraph (4) of Article III provides that a person convicted and sentenced for an offence shall not be extradited unless he was sentenced to imprisonment or other form of detention for a period of four months or more. He submits that the reference in the...
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