United States of America (Government of the) v McCaffery

JurisdictionEngland & Wales
JudgeLord Diplock,Lord Fraser of Tullybelton,Lord Roskill,Lord Bridge of Harwich,Lord Brandon of Oakbrook
Judgment Date14 June 1984
Judgment citation (vLex)[1984] UKHL J0614-1
Date14 June 1984
CourtHouse of Lords

[1984] UKHL J0614-1

House of Lords

Lord Diplock

Lord Fraser of Tullybelton

Lord Roskill

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Government of the United States of America and Others
(Appellants)
and
McCaffery
(Respondent)
(on Appeal from a Divisional Court of the Queen's Bench Division)
Lord Diplock

My Lords,

1

This appeal is an extradition case in which the state requesting the surrender of a fugitive criminal accused of an extradition crime is the United States of America. The appeal follows hot-foot upon the decision of this House in another extradition case, In re Nielsen [1984] 2 W.L.R. 737 in which this House upheld the judgment delivered on 12 May 1983, by a Divisional Court composed of Robert Goff L.J. and Mann J. It was known to the differently constituted Divisional Court which heard the instant case (McNeill and McCullough J.J.) that the Nielsen case, which they declined to follow, was the subject of an appeal then pending to this House.

2

What the Divisional Court had held in the Nielsen case, which had come before that court in the form of an application for judicial review of a magistrate's order discharging Nielsen from custody, was that upon the true construction of the Extradition Acts 1870 to 1932, and in particular the principal Act of 1870, the test whether a person in respect of whom a warrant for his arrest had been issued in a foreign state for an offence alleged to have been committed in that state was liable to be surrendered as a fugitive criminal, was not: whether the offence specified in the foreign warrant of arrest as that for which it had been issued was substantially similar to a crime under English law falling within the list of offences described in the Schedule to the Extradition Act 1870, as currently amended (i.e., the so-called "double criminality" test). The right test, as stated by the Divisional Court in the Nielsen case, was: whether the conduct of the accused, if it had been committed in England would have constituted a crime falling within one or more of the descriptions included in that list.

3

The judgment of the Divisional Court in the Nielsen case, which had been given by Robert Goff L.J., has received the express approval of this House upon appeal [1984] 2 W.L.R. 737. In my own speech, with which the four other members of the Appellate Committee expressed their agreement, occasion was taken to point out that when surrender of a fugitive criminal was sought under the principal extradition treaty with Denmark or under extradition treaties with other States that followed a similar form, evidence of the foreign law that defined the particular offence for which the warrant of arrest had been issued in that State was irrelevant to any question that fell to be considered by the magistrate or by the Divisional Court on any subsequent application for habeas corpus. Accordingly, the practice that appeared to have been followed since the turn of the century at Bow Street of adducing such evidence of foreign law in all cases of persons accused of an extradition crime, was mistaken. It was pointed out, however, in my speech that in what, for convenient brevity, I called "exceptional accusation cases," an extradition treaty with a particular state might contain provisions that would make it necessary for evidence on some matter of foreign law to be adduced on the part of the requesting case in extradition proceedings. The precise matter upon which evidence of foreign law would be necessary would depend upon the terms of the particular extradition treaty.

4

The extradition treaty with the United States concluded on 8 June 1972 and scheduled to the United States of America (Extradition) Order 1976 ( S.I. 1976 No. 3144) made under section 2 of the Extradition Act 1870, does contain, in Article III, a provision of this kind which brings extradition proceedings for the surrender of a fugitive criminal from the U.S.A. into the category of exceptional accusation cases. Article III reads:

"(1) Extradition shall be granted for an act or omission the facts of which disclose an offence within any of the descriptions listed in the Schedule annexed to this Treaty, which is an integral part of the Treaty, or any other offence, if: ( a) the offence 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) the offence is extraditable under the relevant law, being the law of the United Kingdom or other territory to which this Treaty applies by virtue of sub-paragraph (1) ( a) of Article II; and ( c) the offence constitutes a felony under the law of the United States of America. (2) Extradition shall also be granted for any attempt or conspiracy to commit an offence within paragraph (1) of this Article if such attempt or conspiracy is one for which extradition may be granted under the laws of both Parties and 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. (3) Extradition shall also be granted for the offence of impeding the arrest or prosecution of a person who has committed an offence for which extradition may be granted under this Article and which is punishable under the laws of both Parties by imprisonment or other form of detention for a period of five years or more. (4) 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."

5

As was held by this House in Reg. v. Governor of Holloway Prison Ex parte Jennings [1983] 1 A.C. 624, 639, upon the true construction of this Article, the requirements of paragraphs ( a) and ( c) must be satisfied as respects offences of the descriptions listed in the schedule to the treaty as well as respects any other offence. By virtue of section 2 of the Extradition Act of 1870, this imposes a restriction upon the operation of the Act as respects extradition to the U.S.A. So evidence is required that under the criminal law in force in that part of the U.S.A. where the conduct took place...

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43 cases
  • R v Hollinshead
    • United Kingdom
    • House of Lords
    • 20 June 1985
    ...Diplock, at p. 606. Those observations were repeated in stronger terms by my noble and learned friend, Lord Diplock, in Government of the United States v. McCaffery [1984] 1 W.L.R. 867, 873. McCaffery's case was decided in this House several months before the present cases came before the ......
  • United States v Delisser
    • Cayman Islands
    • Summary Court (Cayman Islands)
    • 15 December 1989
    ...(3) R. v. Pentonville Prison Governor, ex p. Herbage (No. 3)UNK(1986), 84 Cr. App. R. 149, followed. (4) U.S. v. McCaffery, [1984] 1 W.L.R. 867, followed. Legislation construed: Extradition Act 1870 (33 & 34 Vict., c.52), s.10: The relevant terms of this section are set out at page 537, lin......
  • Mathias Ortmann v United States of America
    • New Zealand
    • Supreme Court
    • 4 November 2020
    ...[1991] 2 AC 64 (HL) at 83–86. See, for example, Nielsen, above n 99, at 615; Government of the United States of America v McCaffery [1984] 1 WLR 867 (HL) at 869–870; and Sotiriadis, above n 99, at 22 and 24 per Lord McVey, above n 60, at 519. United States of America v Dynar [1997] 2 SCR 46......
  • Mathias Ortmann v United States of America
    • New Zealand
    • Supreme Court
    • 4 November 2020
    ...[1991] 2 AC 64 (HL) at 83–86. See, for example, Nielsen, above n 99, at 615; Government of the United States of America v McCaffery [1984] 1 WLR 867 (HL) at 869–870; and Sotiriadis, above n 99, at 22 and 24 per Lord McVey, above n 60, at 519. United States of America v Dynar [1997] 2 SCR 46......
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1 books & journal articles
  • House of Lords
    • United Kingdom
    • Sage Journal of Criminal Law, The No. 49-1, February 1985
    • 1 February 1985
    ...that additional fact to be proved.TheDivisional Court inNielsen's case had applied the correct test;butin U.S. Governmentv. McCaffery [1984] 1 W.L.R. 867 a differently constitutedDivisional Courthaddeclined to follow Nielsen. Although the latercourt knew that an appeal was pending in the Ni......

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