Re Nielsen

JurisdictionEngland & Wales
JudgeLord Diplock,Lord Keith of Kinkel,Lord Roskill,Lord Bridge of Harwich,Lord Brightman
Judgment Date12 April 1984
Judgment citation (vLex)[1984] UKHL J0412-2
Date12 April 1984
CourtHouse of Lords
In re Nielsen
(on Appeal from a Divisional Court of the Queen's Bench Division)

[1984] UKHL J0412-2

Lord Diplock

Lord Keith of Kinkel

Lord Roskill

Lord Bridge of Harwich

Lord Brightman

House of Lords

Lord Diplock

My Lords,

1

The appellant, Nielsen, is a Danish national for whose extradition from the United Kingdom requisition has been made by the government of Denmark, pursuant to the Extradition Acts 1870 to 1932.

2

The Act of 1870 prescribes the procedure to be followed when a requisition for the surrender of a fugitive criminal is made by a foreign state to which that Act has been made applicable by an order in council under section 2. Except where otherwise indicated any subsequent reference that I make to a numbered "section" should be understood as referring to that section in the Act of 1870.

3

The Extradition Acts 1870 to 1932 have been made applicable to Denmark by orders in council dated respectively 26 June 1873 and 30 April 1936, which recite the terms of arrangements made pursuant to section 2 of the Act of 1870. These take the form of treaties between the two countries providing for the extradition by each country of persons accused or convicted of crimes committed in the other country. The treaty of 1873 ("the principal treaty") was entered into before the Extradition Act 1873 had added to the list of extradition crimes listed in Schedule 1 to the Act of 1870 ("the 1870 list") any of the crimes that have been added to that list by the Schedule to the Act of 1873 or by any later Extradition Act. It is the 1870 list that is reproduced verbatim in the English language version of the principal treaty to describe the crimes for which extradition is to be granted of persons, other than British nationals, accused or convicted of having committed any of those crimes in Denmark; and it is with conduct that is alleged to constitute a crime or crimes described in the 1870 list that the instant case is concerned.

4

The treaty of 1936 ("the supplementary treaty") has the effect of adding to the 1870 list of crimes for which extradition is to be granted between the United Kingdom and Denmark; but it leaves the 1870 list in the principal treaty untouched, and such additions as it makes to extradition crimes are made in qualified terms to which it will be necessary to advert later.

5

It is, however, appropriate at this juncture to draw attention to the fact that when one is describing crimes committed in a foreign state that are regarded in the United Kingdom as serious enough to warrant extradition of an offender by whom they have been committed, one is describing the way in which human beings have conducted themselves and their state of mind at the time of such conduct. Since conduct of those kinds consists of wicked things that people do in real life it is possible to describe them either in broad generic terms and using popular language, or in varying degrees of specificity, as had been done in minute detail, nine years before the Act of 1870 itself was passed, in the five Acts that had been passed in 1861, consolidating and amending the statute law of England relating to criminal offences of larceny, malicious injuries to property, forgery, coinage and offences against the person respectively. These Acts condescended to minute detail in their descriptions of numerous distinct offences included within the broad genus of crimes with which, as their titles indicate, each Act dealt. Between them the five Acts ran into 380 sections.

6

The 1870 list uses the former technique. It describes each of the list of 19 "extradition crimes" in general terms and popular language, irrespective of whether, (as the introductory words of Schedule 1 to the Act of 1870 make clear) the conduct described is rendered criminal by common law or by statute made before or after the passing of the Act of 1870. So the 1870 list covered all offences under the five consolidating and amending Acts of 1861 that fell within any of the 19 genera of conduct described in the list; and also any criminal offence created by any subsequent statute but only if it fell within a described genus. The 1870 list would not extend to offences created by any of the Acts of 1861 which did not fall within any of those generic descriptions. The list in the Schedule to the Act of 1873 as well as adding two additional genera to the list of extradition crimes (viz. "Kidnapping and false imprisonment"; and "Perjury, and subornation of perjury, whether under common or statute law") filled these lacunae by adding to the list any indictable offence under any of the five 1861 consolidation and amending Acts (or any Act amending or substituted for the same) "which is not included in Schedule 1 to the [Act of 1870]."

7

The list in the Act of 1873 has been subsequently amended by replacing the reference to the Larceny Act by a reference to the Theft Acts 1968 and 1978, and adding references to the Criminal Damage Act 1971 and the Sexual Offences Act 1956.

8

The introductory words to both the 1870 and the later list provide that the list of crimes is to be construed according to the law existing in England at the date of the alleged crime. So in order to determine whether conduct constitutes an "extradition crime" within the meaning of the Extradition Acts 1870 to 1932, and thus a potential ground for extradition if that conduct had taken place in a foreign state, one can start by inquiring whether the conduct if it had taken place in England would have fallen within one of the 19 generic descriptions of crimes in the 1870 list. If it would have so fallen the inquiry need proceed no further where, as in the case of the principal treaty with Denmark, the extradition treaty with the foreign state demanding the surrender of a person as a fugitive criminal incorporates the whole of the 1870 list in the descriptions of crimes for which surrender may be required and makes no modification to those descriptions.

9

The conduct of which Nielsen, who is not a British subject, was accused in Denmark is stated succinctly in the judgment in the instant case delivered by Robert Goff L.J. in the Divisional Court:

"Nielsen fraudulently abused his position as controlling shareholder of a company called Gredana A/S to rescue another company under his control, called Egtofte Industri A/S, from financial difficulties. The means alleged to have been employed by him for this purpose were to cause Gredana (1) to purchase certain shares from Egtofte at an inflated price and upon onerous terms, the total purchase price being nearly 100 million kroner; and (2) to advance loans to Egtofte, without security, in a sum of about 13 million kroner. In the outcome, it is alleged, the loan has not been repaid, and Gredana has lost the whole of the capital invested in the purchase of the shares."

10

This brief description of the conduct of which Nielsen is accused is sufficient to identify the point of law that is raised by this appeal.

11

My 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 Glaisdale, of the procedure laid down in the Extradition Acts of 1870 and 1873 for the extradition of persons accused or convicted of crimes committed within the jursidiction of a foreign state with which the United Kingdom had entered into an extradition treaty. I refer to, but will not take up space by repeating, that analysis, except to draw attention to the facts: (1) that the Extradition Acts 1870 to 1932, from which alone is derived the jurisdiction of the Bow Street magistrate to make orders under section 10 committing a fugitive criminal to prison to await surrender to the person authorised to receive him on behalf of the foreign state, extend only to those foreign states which have entered into an extradition treaty with the United Kingdom to which the Acts have been made applicable by order in council; and (2) that the magistrate's jurisdiction and powers under the Acts are subject to such limitations, restrictions, conditions, exceptions and qualifications as may be provided for in the extradition treaty with the particular foreign state. The jurisdiction conferred upon the Bow Street magistrate by the Extradition Acts 1870 to 1932 is the widest that he may lawfully exercise upon applications for extradition of fugitive criminals from foreign states. His jurisdiction cannot be extended beyond that maximum but it may be limited, in the case of fugitive criminals from a particular foreign state, by the terms of the extradition treaty with that state. In re Sotiriadis involved an example of an additional limitation imposed by the relevant extradition treaty with the German Federal Republic.

12

While the Extradition Acts 1870 to 1932 apply to persons convicted, as well as those accused, of having committed an extradition crime within the jurisdiction of a foreign state, your Lordships in the present appeal are concerned only with the extradition of an accused person (which I shall call "an accusation case") and not with the extradition of a convicted person (which I shall call "a conviction case"). Your Lordships are likewise not concerned in the instant case with alleged political offences.

13

Nielsen was first arrested under a provisional warrant issued on 27 July 1981 under section 8(2) by a metropolitan magistrate in the form set out in Schedule 2 to the Act of 1870. Nielsen was stated in the provisional warrant to be suspected and accused of the commission of the crime in Denmark of "fraud by a director of a company." The provisional warrant, however, was shortly afterwards superseded by an order to proceed made by the Home Secretary under section 7, in the form set out in Schedule 2 to the Act of 1870. This described the crime of which Nielsen was accused and for which his surrender was...

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