Re Evans
| Jurisdiction | England & Wales |
| Judge | Lord Templeman,Lord Oliver of Aylmerton,Lord Goff of Chieveley,Lord Mustill,Lord Slynn of Hadley |
| Judgment Date | 21 July 1994 |
| Judgment citation (vLex) | [1994] UKHL J0721-3 |
| Date | 21 July 1994 |
| Court | House of Lords |
[1994] EWHC J0721-3
House of Lords
Lord Templeman
Lord Oliver of Aylmerton
Lord Goff of Chieveley
Lord Mustill
Lord Slynn of Hadley
My Lords,
Extradition agreements are designed to ensure that persons who commit crimes in one country do not escape trial or punishment by fleeing abroad. Extradition arrangements have been transformed as a result of the invention of the jet aeroplane and the mutual acceptance by means of extradition treaties by and between countries of the integrity of their different legal systems. A criminal can flee from country to country with ease in order to avoid or postpone retribution. A suspect once apprehended can be returned for prosecution with equal speed. Extradition is only available in respect of serious offences and in circumstances which are not oppressive. Extradition treaties and legislation are designed to combine speed and justice.
The United Kingdom and Sweden are signatories to the European Convention on Extradition. By Article 1:
"The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order."
By Article 2:
"1. Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty …"
Articles 3, 4 and 5 impose restrictions on extradition for political offences, military offences and fiscal offences. Article 10 provides that extradition shall not be granted when the person claimed has become immune by reason of lapse of time from prosecution or punishment. Article 12 provides as follows:
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"1. The request shall be in writing and shall be communicated through the diplomatic channel. …
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2. The request shall be supported by:
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(a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party;
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(b) a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and
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(c) a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality."
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In Schedule 4 to the Convention, the United Kingdom made reservations including the following:
"Article 12
(1) …
(2) The request must be supported by the original of the conviction and sentence or detention order, or of the warrant of arrest or other order having the same effect.
(3) The statement of the offences for which extradition is requested must contain a description of the conduct which it is alleged constitutes the offence or offences for which extradition is requested.
(4) For the purposes of proceedings in the United Kingdom, foreign documents shall be deemed duly authenticated
(a) if they purport to be signed by a judge, magistrate or officer of the State where they were issued; and
(b) if they purport to be certified by being sealed with the official seal of the Minister of Justice, or some other Minister of State, of that State."
By the Extradition Act 1989 and the European Convention on Extradition Order 1990 the United Kingdom gave legislative effect to the Convention. By section 1 of the Act of 1989:
"(1) Where extradition procedures under Part III of this Act are available as between the United Kingdom and a foreign state, a person in the United Kingdom who—
(a) is accused in that state of the commission of an extradition crime; or
(b) is alleged to be unlawfully at large after conviction of an extradition crime by a court in that state.
may be arrested and returned to that state in accordance with those procedures."
Section 2 of the Act of 1989 so far as material defines "extradition crime" as:
"(a) conduct in the territory of a foreign state, … which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of 12 months, or any greater punishment, and which, however described in the law of the foreign state, … is so punishable under that law;"
Part III of the Act of 1989 deals with extradition procedures. By section 7(1) an extradition request must be made and:
"(2) There shall be furnished with any such request—
(a) particulars of the person whose return is requested;
(b) particulars of the offence of which he is accused or was convicted (including evidence sufficient to justify the issue of a warrant for his arrest under this Act);
(c) in the case of a person accused of an offence, a warrant for his arrest issued in the foreign state …
and copies of them shall be served on the person whose return is requested before he is brought before the court of committal."
On receipt of an extradition request the Secretary of State may issue an authority to proceed under section 7(4). By section 7(5) of the Act of 1989:
"An authority to proceed shall specify the offence or offences under the law of the United Kingdom which it appears to the Secretary of State would be constituted by equivalent conduct in the United Kingdom."
The person whose return is requested may then be arrested under section 8 of the Act of 1989 and brought before the court of committal, consisting in England of a metropolitan magistrate under section 9(1) of the Act.
By article 3 of the Order of 1990:
"Where an extradition request is made by a Convention State in respect of a person accused of an offence, it shall not be necessary
(a) for that State to furnish the court of committal with evidence sufficient to warrant the trial of that person if the extradition crime had taken place within the jurisdiction of the court; or
(b) for the court of committal to be satisfied that there is evidence sufficient to warrant the trial of that person."
By section 9(8) of the Act of 1989:
"Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any representations made in support of the extradition request or on behalf of that person, that the offence to which the authority relates is an extradition crime, …"
the court shall commit him to custody or on bail to await the Secretary of State's decision as to his return. By section 9(9) the court shall issue a certificate of the offence against the law of the United Kingdom which would be constituted by his conduct.
By section 10 of the Act of 1989 if the court of committal refuses to make an order of committal the foreign state may question the proceeding on the ground that it is wrong in law by applying to the court to state a case for the opinion of the High Court. By Section 11 where a person is committed under section 9 he shall be information ordinary language of his right to make an application for habeas corpus. By section 11(3) the High Court shall order the applicant's discharge if it appears to the court in relation to the offence that:
"(a) by reason of the trivial nature of the offence; or
(b) by reason of the passage of time since he is alleged to have committed it …; or
(c) because the accusation against him is not made in good faith in the interests of justice,
it would, having regard to all the circumstances, be unjust or oppressive to return him."
By section 12 where a person is committed under section 9 and is not discharged by order of the High Court the Secretary of State may by warrant order him to be returned but the Secretary of State is not bound to make such an order. By section 13 the Secretary of State must give the person to whom an extradition order relates notice in writing that he is contemplating making the order and must afford him an opportunity to make representations before the order is carried into effect and an opportunity to apply for leave to seek judicial review of the Secretary of State's decision to make the order.
There are thus six steps in the extradition of a suspect from the United Kingdom. First, the foreign court must consider that a charge of serious crime has been properly laid against the suspect on the basis of information which justifies the issue of a warrant for his arrest. Secondly, the administration of the foreign country must consider that the charge, the law of the foreign country and the circumstances justify a request for extradition in accordance with the provisions of the Convention. Thirdly, the foreign state must identify the suspect, authenticate the foreign warrant for his arrest, give particulars of the alleged conduct which constitutes the offence and produce a translation of the relevant foreign law which establishes the offence and makes it punishable by 12 months' imprisonment or more. Fourthly, the Secretary of State must satisfy himself that the request is in order. The Secretary of State must then satisfy himself that equivalent conduct in the United Kingdom would constitute an offence under the law of the United Kingdom punishable by 12 months' imprisonment or more. The Secretary of State may then issue an authority to proceed and must identify and specify the relevant law of the United Kingdom. Fifthly, the Metropolitan magistrate sitting as a court of committal must be satisfied, after he has...
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