United Kingdom House of Lords Decisions

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

In re Guisto (FC) (Appellant) (application for a writ of Habeas Corpus) (On Appeal from a Divisional Court of the Queen's Bench Division)

ON

THURSDAY 3 APRIL 2003

The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Hope of Craighead

Lord Hutton

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

In re Guisto (FC) (Appellant) (application for a writ of Habeas Corpus) (On Appeal from a Divisional Court of the Queen's Bench Division)

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    1. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry. For the reasons they give I would allow this appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

    2. This is an appeal from a decision of the Administrative Court (Rose LJ and Gibbs J) [2002] EWHC 1441 (Admin) in an application for habeas corpus. It was brought to challenge the lawfulness of the appellant's detention under a committal order made by a Designated District Judge under paragraph 7 of Schedule 1 to the Extradition Act 1989, as a request had been made for his extradition to the United States of America. The question which lies at the heart of the appeal is a question of jurisdiction. Was it within the jurisdiction of the judge to make the committal order when the facts show that the appellant is a convicted person and not, as the Secretary of State wrongly asserted and the judge wrongly assumed when she made the order, a person accused who has yet to stand trial in the United States?

    3. On 8 June 1972 a new treaty for the reciprocal extradition of offenders was entered into between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America, replacing an earlier treaty of 22 December 1931 which had itself replaced earlier treaties providing for extradition between the two countries which had been in existence since 1842. The 1972 Treaty ("the Treaty") was ratified on 21 October 1976. On 15 December 1976, in the exercise of powers conferred on Her Majesty by sections 2, 17 and 21 of the Extradition Act 1870, the United States of America (Extradition) Order 1976 (SI 1976/2144) was made to bring the Treaty into force in the United Kingdom. The terms of the Treaty are set out in Schedule 1 to the 1976 Order.

    4. In terms of article I of the Treaty each contracting party undertakes to extradite to the other, in the circumstances and subject to the conditions specified in the 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 offences listed in article III include, in addition to an offence within any of the descriptions listed in the Schedule to the Treaty, an offence which 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 and which constitutes a felony under the law of the United States of America. Article VII provides that a request for extradition shall be made through the diplomatic channel and that it shall be accompanied by various items of information, including a statement of the facts of the offence for which extradition is requested. Article VIII provides that in urgent cases the person sought may, in accordance with the law of the requested Party, be provisionally arrested on application through the diplomatic channel by the competent authorities of the requesting Party, but that a person arrested upon such an application shall be set at liberty upon the expiration of 45 days from the date of his arrest if a request for his extradition shall not have been received.

    5. In accordance with requirements which have long been recognised as an essential part of achieving justice in extradition law, the details that have to be provided in support of a request for extradition differ according to whether the fugitive criminal is an accused person who has still to face trial or is a convicted person whose extradition is sought for the purpose of ensuring that he serves his sentence. Paragraphs (3) and (4) of article VII of the Treaty are in these terms:

"(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 refers 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."

    6. The Extradition Act 1870 was repealed by section 37 of and Schedule 2 to the Extradition Act 1989 ("the 1989 Act"). Section 1(3) of the 1989 Act provides:

"Where an Order in Council under section 2 of the Extradition Act 1870 is in force in relation to a foreign state, Schedule 1 to this Act (the provisions of which derive from that Act and certain associated enactments) shall have effect in relation to that state, but subject to the limitations, restrictions, conditions, exceptions and qualifications, if any, contained in the Order."

I shall have to return to the provisions of Schedule 1 in more detail later. For the time being it is sufficient to note that it sets out the procedure which must be followed by the authorities within the domestic system of the United Kingdom to give effect to this country's treaty obligations with the foreign state.

    7. On 20 December 1994 the appellant Gennaro Guisto, also known as Jerry Russo, was involved in an incident in Manhattan, New York. A student named Sean Jennings was subjected to an unprovoked attack in the early hours of the morning when he was walking to the subway. He was viciously assaulted by two men with an aluminium baseball bat and sustained serious facial injuries. The appellant and his brother John Russo were subsequently arrested and charged with this assault. On 10 January 1995 the appellant was indicted for assault in the first degree by a New York County Grand Jury. This is an offence which under the law of the State of New York is punishable by a sentence of more than one year's imprisonment. On 27 January 1995 the appellant appeared before a judge of the New York Supreme Court and was admitted to bail. The judge gave him what is known as a "Parker" warning: The People v Parker, 57 NY 2d 136, 454 NYS 967, 440 NE 2d 1313 (1982). He warned the appellant that, if he intentionally absented himself, his trial could go ahead in his absence and that he could also be sentenced without being there. When he was asked whether he understood this warning the appellant answered in the affirmative.

    8. On 6 July 1995 the appellant appeared before the New York Supreme Court for a hearing regarding the case. But he failed to appear for a further hearing that afternoon, and a warrant was issued for his arrest. Attempts were made to trace him, but they met with no success. On 16 October 1995, following a motion by the prosecution that as the appellant had intentionally absented himself from his trial he should be tried in his absence, a trial began in his absence in which he was charged with assaulting Sean Jennings in the first degree. On 19 October 1995 he was convicted of this charge by the jury. On 29 November 1995 the trial judge, Justice Harold Rothwax, sentenced the appellant in his absence to a term of between 5 to 15 years' imprisonment and fined him $5,000. Warrants were again issued for his arrest. But attempts to trace him were again unsuccessful.

    9. On 10 October 2001 police officers who were on duty in the town centre at Hayes, Middlesex observed a man behaving in an unusual manner while seated on the floor of a bandstand. When he was asked for his name the man said that it was Gennaro Guisto and that he was from America. Further inquiries revealed that the man to whom the police were speaking was the appellant and that there was an Interpol Locate/Trace marker against his name. He was arrested and taken into custody. The Embassy of the United States of America in London was notified, and the Embassy responded immediately. In a letter dated 10 October 2001, addressed to the Secretary of State, the Ambassador of the United States of America requested the provisional arrest of the appellant under article VIII of the Treaty for the purpose of his extradition to the United States on the ground that he was wanted by the State of New York to serve a sentence on an assault charge. An assurance was given that if the appellant was provisionally arrested in response to this request the United States would submit the supporting documents required by the Treaty within the time which the Treaty specified. On 11 October 2001 a District Judge at Bow Street Magistrates' Court designated for the purposes of the Extradition Act 1989 granted a provisional warrant for the arrest of the appellant under paragraph 5(1)(b) of Schedule 1 to the 1989 Act. He did so on the ground that it had been shown that the issue of a warrant for the arrest of a person convicted of an offence in the United Kingdom would have been justified.

    10. The judicial authorities in the United States then put in hand the preparation of the documents which under article VII of the Treaty were required for presentation to the Secretary of State to enable him to give effect in domestic law under paragraph 4(1) of Schedule 1 to the 1989 Act to the extradition process. On 30 November 2001 a statement verifying the history of the proceedings in New York was sworn before a New York justice by an assistant District Attorney. It concluded by requesting the appellant's return to the United States "for execution of the sentence imposed by Justice Harold Rothwax on 29 November 1995." On 6 December 2001 a requisition for the surrender of the appellant was duly made to the Secretary of State in London by a representative of the United States Embassy. Attached to it was the statement by the assistant District Attorney. This made it clear beyond any doubt that the request was being made on the ground that the appellant was a convicted person and not as an accused person who had yet to face trial.

    11. Paragraph 4(1) of Schedule 1 to the 1989 Act provides that a requisition for the surrender of a fugitive criminal of any foreign state who is in the United Kingdom, shall be made to the Secretary of State by some person recognised by him as a diplomatic or consular representative of that foreign state. Paragraph 4(2) of the Schedule, as amended by section 78(2) of and Schedule 11 to the Access to Justice Act 1999, provides:

"The Secretary of State may by order signify to the Senior District Judge (Chief Magistrate) or another District Judge (Magistrates' Courts) designated by him that such a requisition has been made, and require him to issue his warrant for the apprehension of the fugitive criminal."

For convenience I shall use the shortened expression "the District Judge" to describe the judge to whom the order described in this paragraph is to be addressed and on whom the judicial functions which flow from it are imposed by the Schedule.

    12. Paragraph 5 provides for the issue by the District Judge of a warrant for the apprehension of the fugitive criminal. This may be done either on receipt of the order of the Secretary of State made under paragraph 4(2) or, as happened in this case, by the issuing of a provisional warrant by the District Judge on the receipt of such information as would justify the issue of a warrant if the crime had been committed or the criminal convicted in the United Kingdom. Paragraph 5(2) provides that any person issuing a warrant under that paragraph without an order of the Secretary of State shall forthwith send a report of the fact of such issue to the Secretary of State. Paragraph 5(4) provides that the fugitive criminal shall be discharged unless the District Judge receives, within such reasonable time as he may fix, an order from the Secretary of State signifying that a requisition has been made for the surrender of such criminal. The next stage in the proceedings, as Woolf LJ explained in In re Naghdi [1990] 1 WLR 317, 321, is the hearing before the District Judge as to whether he should commit the fugitive to prison to await the warrant of the Secretary of State for his surrender to the requisitioning foreign state.

    13. Paragraph 7 of Schedule 1 to the 1989 Act, as amended by section 158(8)(c) of the Criminal Justice and Public Order Act 1994 and by the above-mentioned provisions of the Access to Justice Act 1999, is in these terms:

"(1) 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 Schedule) would, according to the law of England and Wales, make a case requiring answer by the prisoner if the proceedings were for the trial in England and Wales of an information for the crime, the District Judge (Magistrates' Courts) shall commit him to prison, but otherwise shall order him to be discharged.

(2) In the case of a fugitive criminal alleged to have been convicted of an extradition crime, if such evidence is produced as (subject to the provisions of this Schedule) would, according to the law of England and Wales, prove that the prisoner was convicted of such crime, the District Judge (Magistrates' Courts) shall commit him to prison, but otherwise shall order him to be discharged.

(3) If he commits such criminal to prison, he shall commit him there to await the warrant of the Secretary of State for his surrender, and shall forthwith send to the Secretary of State a certificate of the committal, and such report upon the case as he may think fit."

In paragraph 20 of the Schedule it is provided that, unless the context otherwise requires, "conviction" and "convicted" do not include or refer to a conviction which under foreign law is a conviction for contumacy, but "accused person" includes a person so convicted for contumacy.

    14. In R v Governor of Brixton Prison, ex parte Caborn-Waterfield [1960] 2 QB 498 Salmon J summarised the effect of these provisions, under reference to section 10 of the Extradition Act 1870 from which paragraphs 7(1) and (2) of Schedule 1 to the 1989 Act are derived, in these terms at p 509:

"When an accused person is committed under the first paragraph of section 10 and surrendered to a foreign government he is surrendered for trial. Before that course is taken the magistrate has to be satisfied that a prima facie case is made out. When a convicted person is committed under the second paragraph of section 10 and surrendered to a foreign government he is surrendered to serve his sentence, in which case all that is necessary in the magistrates' court is to prove his conviction."

    15. As Lord Roskill observed in R v Governor of Pentonville Prison, ex parte Zezza [1983] 1 AC 46, 53F-G, the phrase "conviction for contumacy" is not defined in paragraph 20 of the Schedule. It cannot be said to have an ordinary meaning in the English language. Although the word "contumacy" indicates insubordination or disobedience in the face of the court, the concept of a "conviction for contumacy" is something with which our own law is not familiar. But we are not concerned here with the usage of the word in domestic law. The words "conviction" and "convicted" are used in the Schedule with reference to fugitive criminals whose surrender is requested by a foreign state. The purpose of the definition is to ensure that a person convicted in contumacy in a foreign court is not to be treated as a convicted person but will be included in the category of an accused person for the purpose of the procedures which the Schedule lays down. The definition assumes that there may be a conviction properly so described in some systems of foreign law that will make it necessary from time to time to draw this distinction.

    16. In re Coppin (1866) LR 2 ChApp 47 was such a case. The judgment of which Coppin had been convicted by a court in Paris in his absence was a conviction "par contumace". The evidence showed that it was subject to annulment if Coppin surrendered himself to the court's jurisdiction. In that event he would be tried again for the offence with which he had been charged in exactly the same way as if no proceedings had been taken against him. It was held that Coppin had to be treated as an accused person for extradition purposes. In R v Governor of Brixton Prison, ex parte Caborn-Waterfield [1960] 2 QB 498, 510 Salmon J said that the words "for contumacy" were introduced into section 26 of the Extradition Act 1870, from which paragraph 20 of Schedule 1 to the 1989 Act is derived, to bring the statute into line with In re Coppin. Other cases show that the mere label of a conviction as for contumacy or on default will not be enough. In Caborn-Waterfield the evidence showed that the applicant's conviction in France in his absence was not one which would give rise to a re-trial on his surrender but would result in service of his sentence. In R v Governor of Pentonville Prison, ex parte Zezza [1983] 1 AC 46 the applicant had been tried and convicted in his absence in Italy under a form of procedure which was described as "in contumacia". The evidence was that there had previously been in force in Italy a procedure under which a conviction and sentence could be re-opened if the accused re-appeared. But this rule had been departed from in 1931, and if the applicant were to be extradited his conviction would be regarded as final so he had no right to a fresh trial.

    17. There was no suggestion in the papers which accompanied the requisition for the appellant's extradition to the United States that his conviction in absence in the Supreme Court of the State of New York, following the Parker warning which he received when he was granted bail, would be open to reconsideration if he were to be returned to that country and to submit himself once again to the jurisdiction of that court. It had been made clear all along that his extradition was being sought as a convicted person so that he could be required to serve his sentence, and not as a person accused. But, for reasons that have not been explained, that was not the way the case was presented when the Secretary of State issued his order to proceed under paragraph 4(2) of Schedule 1 to the 1989 Act.

    18. On 18 December 2001 the Secretary of State issued his order to proceed under paragraph 5(4) of the Schedule in which he signified to the Senior District Judge within the time allowed under that subparagraph that a requisition had been made for the surrender of the appellant to the United States. But, instead of saying that his extradition was being sought as a convicted person, it was stated in the recital to the order that he was a person "who is accused of the commission of the crimes of causing grievous bodily harm with intent and inflicting grievous bodily harm within the jurisdiction of the United States of America."

    19. Steps were then taken to bring the case before the District Judge for a committal hearing for the appellant's extradition on the assumption that he was an accused person to whom the provisions of paragraph 7(1) of the Schedule applied. An information was prepared on behalf of the Government of the United States in which, under the heading "Conduct of which Jerry Russo is accused," it was stated:

"Jerry Russo, you are accused of crime in the United States of America that would amount to the following offence if the crime had occurred in the United Kingdom:

1. Jerry Russo on the 20th December 1994 you together with John Russo unlawfully and maliciously caused grievous bodily harm to Sean Jennings with intent to do him grievous bodily harm."

It should be noted that "maliciously wounding or inflicting grievous bodily harm" is one of the offences listed in the Schedule to which article III of the Treaty refers. An affidavit was prepared by the assistant District Attorney setting out various procedural options that would be open to the appellant to challenge his conviction in the United States court. It also included the evidence which was being relied upon to establish the appellant's guilt. In a supplemental affidavit he requested the appellant's return to the United States "so that whatever appropriate proceedings can be held before the Courts of the State of New York." The papers also included a certificate signed by the County Clerk and Clerk of the Supreme Court, New York County, in which it was stated that the appellant had been tried and found guilty of the crime of assault in the first degree and had been sentenced to a minimum of 5 and to a maximum of 15 years' imprisonment. They also included a copy of the warrant for the appellant's arrest as a convicted person issued by the Supreme Court of the State of New York.

    20. On 11 February 2002 a committal hearing took place before the Designated District Judge, District Judge Rees, at Bow Street Magistrates' Court. It was submitted for the Government of the United States that the appellant's conviction should be treated as a conviction for contumacy and that he should be treated as a person accused as far as the request for extradition was concerned. For the appellant it was submitted that there was no prospect of his conviction being set aside and that he should be treated as a convicted person. The information which was before the District Judge on this point was meagre. In a reserved judgment which she delivered on 14 March 2002 she said that she was unable to speculate about the prospects of success or otherwise of any application that the appellant might choose to make. But she said that she was satisfied that there were a number of ways in which he might appeal against his conviction and seek a retrial. She held that his conviction was in contumacy and that he was correctly treated as an accused person. Having satisfied herself that there was ample evidence of an extraditable offence against the appellant, she committed him to await the decision of the Secretary of State as to his return. The committal order states that it was made under paragraph 7 of Schedule 1 to the 1989 Act.

    21. In the Administrative Court it was submitted for the Government of the United States that the District Judge was justified in coming to the conclusion that the appellant's conviction was in contumacy. On this occasion the court had before it evidence which showed that it was well established that a trial may proceed in a defendant's absence if he had voluntarily absented himself, that there are established procedures to ensure fairness to the defendant in these circumstances and that there was nothing to suggest that a conviction which resulted from such a trial was to be regarded as anything other than final. Having examined this evidence the court held that the District Judge was wrong to hold that the appellant's conviction was a conviction in contumacy. The respondents accept the Administrative Court's finding on this matter. So the question whether under the foreign law the conviction was a conviction in contumacy is no longer in issue. In retrospect it can be seen that the suggestion that under the law of the State of New York the conviction was of that character was bound to fail.

    22. But, as Gibbs J said in paragraph 55 of his judgment, the matter does not end there. The Administrative Court's finding that the District Judge was in error on this point opened up a further and more fundamental question. Was the District Judge's committal order made without jurisdiction?

    23. Addressing himself to this question Gibbs J, with whom Rose LJ agreed, said that the starting point and source of the jurisdiction lay in the requisition which had been made by the United States Government, the only possible interpretation of which was that the appellant's extradition was being requested as a convicted person. So the Secretary of State's description of him in the order to proceed was an error. But Gibbs J said that in his view there was no statutory or other legal requirement for him to specify whether the requisition was for the surrender of the person in either capacity. The error did not affect the validity of the requisition itself, so it did not deprive the District Judge of the jurisdiction to commit the appellant under paragraph 7(3) of the Schedule on the basis that he was a convicted person within the scope of paragraph 7(2). Had she applied the correct legal test she would have arrived at the same conclusion. The application for habeas corpus was refused.

    24. The question which is before your Lordships can be stated quite simply. It is whether the District Judge had jurisdiction to make the order of committal by which the appellant is presently being detained. It is plain that it is not the function of the District Judge to determine his own jurisdiction. He is being called upon to exercise the jurisdiction which has been given to him by paragraph 7 of the Schedule, so it is to the provisions of that paragraph that one must look in the first instance. Paragraph 7 deals with the fugitive criminals who are accused and who are alleged to have been convicted separately in the first two subparagraphs. The third subparagraph is of general application, as it directs the District Judge how the matter is to be disposed of if he commits such a criminal to prison. The question is whether the District Judge has jurisdiction to determine into which of the first two subparagraphs the case of the fugitive criminal falls, or whether he is bound to confine himself to one or other of them according to the category in which the fugitive criminal has been placed when the case is brought before him.

    25. There is no doubt that the origin of the jurisdiction which is to be exercised under paragraph 7 of the Schedule lies in the order to proceed which the Secretary of State sends to the District Judge under paragraph 4(2) or paragraph 5(4), as the case may be. Therein lies the strength of the appellant's argument. Mr Hardy said that it was the Secretary of State's duty to state in his order to proceed whether the surrender of the fugitive criminal was being sought as a person who is accused or as person who is alleged to have been convicted of an extradition crime. This is, as Mr Hardy put it, a question of categorisation, and it was for the Secretary of State to place the fugitive criminal into the correct category. The order to proceed thus set the parameters, and the District Judge had no jurisdiction to deal with the case outside those parameters. He accepted that the District Judge would have been bound to commit the appellant if the order to proceed had been, as he put it, a valid order. But as it was now conceded that the appellant had been placed by the Secretary of State into the wrong category, he maintained that the Administrative Court was wrong to hold that the District Judge had jurisdiction to commit under paragraph 7(3) of the Schedule and that the relief which he sought should be given to him.

    26. For the respondents Mr Lewis QC submitted that, while it was for the Secretary of State to launch the proceedings, his function was to inform the District Judge that a requisition had been made. Thereafter there was only one jurisdiction which it was for the District Judge to exercise, and this was simply to decide whether or not to commit the fugitive criminal. He accepted that it was for the Secretary of State to specify the crime or crimes for which the fugitive criminal's extradition was being requested, and that the District Judge had no jurisdiction to inquire into or receive evidence of the criminal law of the foreign state: In re Nielsen [1984] AC 606. But it did not follow that the District Judge was confined by the way in which the case was described in the order to proceed as to the category into which the appellant's case fell. The only question was whether, on the material which was available, a reasonable District Judge would have been entitled to commit.

    27. The arrangements between the foreign state and the United Kingdom are to be found in the treaty and not in Schedule 1 to the 1989 Act. Paragraph 2 of Schedule 1 states that an Order in Council under section 2 of the Extradition Act 1870 shall be conclusive evidence that the arrangement referred to in it complies with the Schedule and that the Schedule applies in the case of the foreign state mentioned in the Order. Paragraph 3 states that when the Schedule has effect in the case of any foreign state, every fugitive criminal of that state who is in or is suspected of being in any part of Her Majesty's dominions shall be liable to be apprehended and surrendered in a manner provided by the Schedule. But it is left to the treaty to identify the details of the arrangements between the United Kingdom and the foreign state. And it is the function of the Secretary of State to ensure that a requisition for the surrender of a fugitive criminal of the foreign state complies with the treaty and is thus one to which the United Kingdom is obliged to give effect in the manner which the Schedule lays down.

    28. As Lord Diplock explained in In re Nielsen [1984] 1 AC 606, 617E-F the Extradition Acts 1870 and 1873, from whose provisions those of Schedule 1 are derived, do not themselves lay down what documents, if any, must be sent to the Secretary of State by the foreign state together with the requisition for the surrender of a foreign criminal. That is a matter that is left to be dealt with by the extradition treaty. Paragraph (1) of article III of the 1972 Treaty states that 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 the Treaty or any other offence of the kind stated in that paragraph. The first duty of the Secretary of State is to satisfy himself that the offence for which extradition is requested is for an act or omission of the kind which gives rise to a requirement to grant extradition in terms of the Treaty. He must also ask himself whether the offence for which extradition is requested is of a political character, as paragraph (1)(c)(i) of article V provides that extradition shall not be granted if the offence for which extradition is requested is regarded by the requested party as of that character. It is then, as Lord Diplock said at p 619E, for the Secretary of State to make up his mind what crime that act or omission would have amounted to according to the English law in force at the time it was committed if it had been committed in England. The order to proceed which he signifies to the District Judge under paragraph 4(2) of Schedule 1 specifies the crime for which the magistrate is required to issue his warrant under paragraph 5(1) for the apprehension of the fugitive criminal. He also specifies the criminal's extradition crime where, as in this case, he issues his order to proceed to the District Judge under paragraph 5(4) of the Schedule to authorise the continued detention of the fugitive criminal. The crime which he specifies is then treated for all the purposes of the Schedule as the extradition crime of which the fugitive criminal is accused or of which he is alleged to have been convicted within the jurisdiction of the foreign state.

    29. Although there is much common ground between the two categories as to the arrangements which the Treaty lays down, the question whether the fugitive criminal is a person accused or is a person who has been convicted is crucial to the decisions that must be made about the documents which are to accompany the request for his extradition and to the decision which must ultimately be taken as to whether extradition is to be granted in response to the request. Article VII, which describes the various documents and other information that must accompany the request, sets out in two separate paragraphs the documents that are required when the request relates to an accused person and to a convicted person respectively: subparagraphs (3) and (4). It also lays down the tests which the evidence must satisfy in each case. The evidence which accompanies the request for the extradition of an accused person must be such 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. The evidence which accompanies the request for the extradition of a convicted person must show that the person requested is the person to whom the conviction refers. Article IX (1) states that extradition shall be granted only if the evidence of these matters is found sufficient according to the law of the requested party.

    30. The effect of the Treaty is to place the responsibility on the requesting party to decide to which of these two categories the person whose extradition is requested belongs. The assumption on which it proceeds is that all the information that is needed to place him into the appropriate category is available to the requesting party. Article VII which describes the documents and other information that must accompany a request makes it plain that a decision is needed as to whether the person requested is a person accused or has been convicted. So too does article VIII, which enables the requesting party to apply for a provisional arrest in urgent cases, but likewise makes it necessary for a decision to be taken as to whether the person requested is a person accused or a person who has been convicted as the information to be included in the application differs between the two categories. It is for the requesting party to take that decision.

    31. It is true that nowhere in Schedule 1 to the 1989 Act is it stated expressly that it is for the Secretary of State to say into which category the case of the fugitive criminal falls. But it is an inescapable fact that the tests that are to be applied under the Treaty according to the law of the requested party differ according to the category to which the case of the fugitive criminal belongs. It is, of course, plain that extradition may only be granted in response to a requisition for the surrender of a fugitive criminal if the person requested is an accused person or a convicted person whose offence falls within the terms of the Treaty. There is no room for equivocation on this issue. His case must fall into one or other of these two categories. The Secretary of State has to satisfy himself as to which of these categories, if any, the case falls before he signifies to the District Judge that a requisition has been received and, where paragraph 5(4) applies, authorises the continued detention of the fugitive criminal. The function of the order to proceed is to indicate to the District Judge that he is so satisfied. The recital which it contains serves therefore not only to identify the extradition offence of which the person requested is accused or has been convicted, as the case may be, but also to identify the category to which in his opinion the person requested belongs.

    32. It should also be noted that it is the invariable custom and practice of the Secretary of State to narrate in the body of the order to proceed whether the fugitive criminal whose return is requested is accused or has been convicted of the crime which he has identified as the extradition crime. The form which was provided for this purpose by section 20 of and Schedule 2 to the Extradition Act 1870 provided for the person's category to be specified, as "accused [or convicted] of the commission of the crime." Section 37(4) of the 1989 Act provides that this and the other forms in that schedule may continue to be used and shall be deemed to be valid and sufficient in law for its purposes. The way in which this form was designed and is still being used is consistent with what I would take to be the duty of the Secretary of State when he is considering whether the requirements of the Treaty have been satisfied. It is his function to ensure, before he issues the order to proceed, that the request is accompanied by a warrant of arrest in the case of a person accused or by a certificate or the judgment of conviction in the case of a person convicted, as this is one of the conditions for extradition which the Treaty specifies.

    33. The jurisdiction of the District judge is derived exclusively from the statute. It has its origin in the order to proceed which the Secretary of State issues under paragraph 4(2) or paragraph 5(4) of the Schedule. In In re Nielsen [1984] AC 606, 619D Lord Diplock said that the magistrate had no jurisdiction under section 10 of the Extradition Act 1870 to issue his warrant for committal of the fugitive criminal for any crime other than one which the Secretary of State had specified in an order to proceed. He qualified this statement in a later passage in his speech at p 621C-F where he explained that that was because it was for crimes contained in the list of crimes annexed to the 1870 Act alone that the Secretary of State's orders to proceed in that case were made, but that it would have been otherwise if the conduct of which Nielsen was accused in Denmark had not been covered by any description of an English crime in the 1870 list but had been added to the list of extradition crimes by later Extradition Acts. In that event the magistrate would have had to hear evidence of Danish law to satisfy himself that the conduct of the accused in addition to constituting in English law an extradition crime included among those subsequently added to the 1870 list, also constituted an offence that was treated as an extradition crime in Denmark. As it was, there being no claim that any political offence was involved and no dispute as to the authenticity of the Danish warrant for Nielsen's arrest, the magistrate had no jurisdiction to enter upon any question of Danish law.

    34. Lord Diplock summed the matter up in this way in In re Nielsen at pp 621F-622B:

"Whether in an accusation case the police magistrate has any jurisdiction to make findings as to the substantive criminal law of the foreign state by which the requisition for surrender of a fugitive criminal is made will depend upon the terms of the arrangement made in the extradition treaty with that state. Some treaties may contain provisions that limit surrender to persons accused of conduct that constitutes a crime of a particular kind (for example, one that attracts specified minimum penalties) in both England and the foreign state. Accusation cases arising under extradition treaties that contain this kind of limitation I shall call 'exceptional accusation cases.' In an exceptional accusation case it will be necessary for the police magistrate to hear expert evidence of the substantive criminal law of that foreign state and make his own findings of fact about it.

In conviction cases, too, if the foreign certificates or judicial documents stating the fact of conviction issued in accordance with the procedure followed by that state do not recite the facts upon which the conviction was based but only give the name of the crime or the article of the criminal code of the foreign state of which the fugitive criminal was convicted, expert evidence of what under the law of that foreign state constitute the kinds of conduct and state of mind of a person that make him guilty of that particular offence will be admissible before the magistrate in order to enable him to decide whether that kind of conduct and state of mind would constitute in English law a crime described in the list in the Acts of 1870 to 1932 as amended."

    35. Lord Diplock returned to this point in Government of the United States of America v McCaffery [1984] 1 WLR 867. In that case, as in this one, extradition was sought under the Treaty between the Government of the United Kingdom and the Government of the United States of America. As Lord Diplock explained at p 870, it fell within what he described as an "exceptional accusation case." This was because article III of the Treaty provides that, in addition to the offences listed in the Schedule, extradition shall be granted if 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 and the offence constitutes a felony under the law of the United States of America. Article VII provides that among the documents that must accompany the request for extradition are the text, if any, of the law defining the offence and prescribing the maximum punishment and, if the requesting party is the United States of America, a statement that the offence constitutes a felony under the law of the United States of America.

    36. In McCaffery uncontradicted affidavit evidence by qualified lawyers was produced to the metropolitan magistrate to show that these requirements were satisfied. There was no need either in that case or in In re Nielsen [1984] AC 606 for the House to consider whether the magistrate had jurisdiction to consider that evidence in order to decide whether the requirements of the Treaty had been satisfied. But in R v Governor of Pentonville Prison, ex parte Sinclair [1991] 2 AC 64 the House held that the magistrate's powers were confined to those specified in sections 3(1), 8, 9 and 10 of the Extradition Act 1870, from which paragraphs 4 to 7 of Schedule 1 to the 1989 Act are derived. Monitoring the provisions of the Treaty was an executive, not a magisterial, function. Lord Ackner emphasised the significance of that decision in these words at pp 91H-92A:

"Certainly for the future, if your Lordships concur that the magistrate has no jurisdiction to decide either whether there has been an abuse of the process of the court, or whether the requirements of the Treaty have been satisfied, his powers being limited to those specified in sections 3(1), 8, 9 and 10, much time should be saved both in the magistrates' and in the Divisional Court."

    37. We are not concerned in this case with the question whether the requirements of the Treaty are satisfied with regard to the offence for which the request is made that the fugitive criminal be extradited. There was no room for any dispute on this point, as the extradition offence in the order to proceed was one of the offences listed in the Schedule. The question as to the jurisdiction of the District Judge in the present case relates to a different question. It relates to the category of the requested person, not to the extradition crime of which he is accused or is alleged to have been convicted. But it seems to me to be clear that the same approach must be taken to this question as that which is taken with regard to the crime or crimes which have been specified in the request. The same basic point applies. It is the function of the Secretary of State to see that the provisions of the treaty have been satisfied. It is for him to identify the category into which the requested person has been placed by the foreign state. The District Judge does not have jurisdiction to change that person's category. Paragraph 7 of the Schedule lacks any provision to that effect. He must deal with the case as it has been presented to him by the order to proceed. The case which has been presented to him must stand or fall according to the rules that apply to that category in terms of paragraph 7(1) or (2), as the case may be.

    38. This is not to say that the District Judge lacks jurisdiction to examine the question whether the requested person has been placed into the correct category. That this is so can be seen from the way in which the expressions "conviction" and "convicted" are defined in paragraph 20 of Schedule 1 to the 1989 Act. The definition states that these expression do not include or refer to a conviction which "under foreign law" is a conviction for contumacy but that "accused person" includes a person so convicted for contumacy. The question whether a conviction is a conviction for contumacy under foreign law is treated as a question of fact in domestic law. It is within the jurisdiction of the District Judge, should the question be raised, to hear expert evidence so that he can determine whether or not the conviction which is alleged against the requested person is of that character. A requested person who is alleged to have been convicted of an extradition crime but who believes that his conviction is a conviction in contumacy is entitled to object to the terms in which the order to proceed has been expressed. He is entitled to do so on the ground that his case should be examined according to the test which paragraph 7(2) lays down for an accused person, and not according to the different test which paragraph 7(1) lays down for a convicted person. In R v Governor of Brixton Prison, ex parte Caborn-Waterfield [1960] 2 QB 498, 512 Salmon J said that there was no reason to suppose that the parties to the treaty which was in issue in that case intended that those who are in reality convicted persons should be dealt with otherwise than as convicted persons. That proposition, which I would respectfully endorse, applies with just as much force to persons who are in reality accused persons.

    39. But the step which the Administrative Court took in this case was, in my opinion, a step too far. Having held that the appellant was in reality a convicted person, and not an accused person as he was described in the Secretary of State's order to proceed and was held to be by the District Judge, the court should have stopped there and dealt with the case as the Court of Appeal did in R v Governor of Brixton Prison v Caborn-Waterfield [1960] 2 QB 498. Salmon J concluded the judgment of the court with these words at p 512:

"There can be no doubt that upon the true construction of the statute the applicant's committal as an accused person was wrong in law. Accordingly, the application succeeds and the applicant, who has surrendered to his bail and is before this court, will be discharged."

    40. In R v Governor of Pentonville Prison, ex parte Zezza [1983] 1 AC 46, in which the magistrate held that the applicant's conviction was not a conviction for contumacy and committed him to await the directions of the Secretary of State as a convicted person, Lord Roskill said at p 56B-C that the Caborn-Waterfield case was in his view clearly correctly decided and was plain authority against the view that the English court would not look at the nature or substance of the conviction upon the basis of which the conviction was sought. That case appears to have proceeded upon the assumption that if the applicant had been committed as an accused person his committal would have been unlawful and the case would have had to be disposed of in the same way as in Caborn-Waterfield. The same approach was taken by the Divisional Court in In re Sarig 26 March 1993 [1993] COD 472, (DC). In that case, as here, the applicant's extradition was sought by the Government of the United States of America. He too had been convicted in his absence. It was contended that this was a conviction in contumacy, but it was clear from the evidence that it was not. The court held that the magistrate was right to commit him as a person who had been convicted, and not as a person accused.

    41. There is no doubt that the information produced to the District Judge was sufficient to show that the applicant had been convicted of the extradition offence which was alleged against him. But it is a fundamental point of principle that any use of the procedures that exist for depriving a person of his liberty must be carefully scrutinised. Lord Atkin's declaration in Liversidge v Anderson [1942] AC 206, 245: "that in English law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act" has lost none of the force which it had when it was delivered over sixty years ago. When, in In re Antonio Da Costa Farinha [1992] Imm AR 174, 178 Mann LJ said that the courts must be vigilant to ensure that the extradition procedures are strictly observed, he was making precisely the same point. The importance of this principle cannot be over-emphasised. We are not dealing here with what R J Sharpe, The Law of Habeas Corpus, 2nd ed (1989), p 55 has described as a legal defect of a trivial nature which may be excused. There can be no more fundamental error in the use of the extradition procedures than the making of a decision by the court which lies outside its jurisdiction. That is what has occurred in this case.

    42. In my opinion the applicant is entitled to the order which he seeks. I would allow the appeal and issue a direction that the appellant must be discharged from the committal order.

My Lords,

    43. On 19 October 1995 in the Supreme Court of the State of New York in a trial in absentia of the appellant, Gennaro Guisto (also known as Jerry Russo), the jury found him guilty on a charge of assault in the first degree and the judge sentenced him to a term of imprisonment of five to fifteen years. Prior to the trial the appellant and his co-defendant, John Russo, had been granted bail but they had absconded. The trial, conviction and sentencing of the appellant are described as follows in an affidavit sworn on 30 November 2001 by Mr Charles E King, an Assistant District Attorney in the New York County District Attorney's Office:

"13.  After diligent but unsuccessful attempts to apprehend defendants Jerry and John Russo and bring them before the court, the People requested that the case against the defendants be tried in absentia. Before ruling on this request, the court held a hearing in which the People outlined their efforts to apprehend the defendants. On October 10, 1995, at the conclusion of the hearing, Justice Rothwax determined that Jerry and John Russo had voluntarily absented themselves, and the court granted the People's request to try the case in absentia. Justice Rothwax adjourned the case until October 16, 1995, giving the defendants' attorneys six (6) days to produce the defendants for trial.

14.  On October 16, 1995, the trial in absentia of defendants Jerry and John Russo commenced. Jerry Russo and his co-defendant brother were each represented by an attorney at the trial. At the trial, a jury was selected and sworn, testimony and other evidence was introduced, the People's witnesses were subjected to cross-examination by defense counsel, closing arguments of counsel were heard, the judge charged the jury on the applicable law, and the jury deliberated on the charge. On October 19, 1995, the jury returned its verdict, finding both defendants guilty of Assault in the First Degree.

15.  On November 29, 1995, Justice Rothwax sentenced defendant Jerry Russo in absentia to an indeterminate term of incarceration in state prison of five to fifteen (5-15) years, and imposed a fine of five thousand dollars ($5,000). Justice Rothwax issued another warrant for Jerry Russo's arrest on November 29, 1995, a certified copy of which is annexed hereto as Exhibit D."

    44. On some date after the appellant had absconded in New York he came to England and he was arrested by the police at Hayes in Middlesex on 10 October 2001. The police then discovered that he was wanted in the United State of America, and he was detained as an illegal immigrant pending extradition proceedings.

    45. The authorities in the United States then began to prepare the necessary documents to present to the Secretary of State in the United Kingdom under para 4 of Schedule 1 to the Extradition Act 1989 which provides:

"4.  (1) 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 the Secretary of State by some person recognised by the Secretary of State as a diplomatic or consular representative of that foreign state.

(2) The Secretary of State may by order signify to a metropolitan magistrate that such a requisition has been made, and require him to issue his warrant for the apprehension of the fugitive criminal."

    46. Having regard to his conviction and sentence it is clear that the authorities in the United States regarded the appellant as a person convicted of a crime and not as a person accused of a crime. The diplomatic note from the Ambassador of the United States in London to the Secretary of State dated 10 October 2001 requesting the provisional arrest of the appellant for the purpose of extradition to the United States contained the following passage:

"Russo is wanted by the State of New York to serve a sentence on an assault charge. On January 24, 1995, Indictment No. 13060/94 was filed in the Supreme Court of New York County, Part 31, State of New York, charging Russo with one count of assault in the first degree in violation of New York Penal Law Section 120.10(1). A warrant for his arrest was issued on July 6, 1995 by order of Judge Harold J Rothwax of the above court. Russo did not appear for his sentencing hearing and on October 19, 1995 he was convicted in absentia to a term of imprisonment of five to fifteen years on the assault charge."

    47. The subsequent requisition made to the Secretary of State by the United States on or about 6 December 2001 for the surrender of the appellant was made on the ground that he was a convicted person, but in his order dated 18 December 2001 to the District Judge (who is regarded as a metropolitan magistrate) pursuant to para 4(2) of Schedule 1 the Secretary of State did not refer to the appellant as a person convicted of a crime but rather as a person "who is accused of the commission of the crimes of causing grievous bodily harm with intent and inflicting grievous bodily harm within the jurisdiction of the United States of America". The reason why the Secretary of State so described the appellant was not fully explained in the course of these proceedings, but it appears probable that the Secretary of State considered that the respondent had been "convicted for contumacy", a term which I shall consider at a later point in this opinion.

    48. The committal proceedings in respect of the appellant took place before the District Judge at Bow Street on 11 February 2002 and the written information furnished to the District Judge and to the appellant on behalf of the Government of the United States of America ("the respondent") was as follows:

"Conduct of which Jerry Russo is accused

Jerry Russo you are accused of crime in the United States of America that would amount to the following offence if the crime had occurred in the United Kingdom:

1.  Jerry Russo on the 20th December 1994 you together with John Russo unlawfully and maliciously caused grievous bodily harm to Sean Jennings with intent to do him grievous bodily harm.

All within the jurisdiction of the United States of America."

    49. The committal proceedings were governed by para 7 of Schedule 1 which provides:

"7.  (1) 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 Schedule) would, according to   the law of England and Wales, [make a case   requiring an answer by the prisoner if the   proceedings were for the trial in England and Wales   of an information for the crime,] the metropolitan   magistrate shall commit him to prison, but   otherwise shall order him to be discharged.

(2) In the case of a fugitive criminal alleged to have been convicted of an extradition crime, if such evidence is produced as (subject to the provisions of this Schedule) would, according to the law of England and Wales, prove that the prisoner was convicted of such crime, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged.

(3) If he commits such criminal to prison, he shall commit him there to await the warrant of the Secretary of State for his surrender, and shall forthwith send to the Secretary of State a certificate of the committal, and such report upon the case as he may think fit."

    50. It is therefore clear that para 7 relates to two different types of case. Under sub-para (1) there is the case where the requesting state claims before the District Judge that the fugitive criminal is accused of an extradition crime. Under sub-para (2) there is the case where the requesting state claims before the District Judge that the fugitive criminal has been convicted of an extradition crime.

    51. When the committal proceedings came on for hearing before the District Judge it was apparent that the appellant was not an accused person in the ordinary sense of that term, but the second-named respondent, the Government of the United States, argued that the case fell under para 7(1) and not under para 7(2) by reason of para 20 of Schedule 1 which provides:

"In this Schedule, unless the context otherwise requires—

'conviction' and 'convicted' do not include or refer to a conviction which under foreign law is a conviction for contumacy, but 'accused person' includes a person so convicted for contumacy."

    52. A conviction for contumacy is a conviction obtained in the absence of the accused which is subsequently annulled if he later surrenders or is arrested, and under Schedule 1 to the 1989 Act a person convicted for contumacy is regarded as an accused person because on his subsequent surrender or arrest his conviction is set aside and he is tried again. The second-named respondent submitted that the conviction of the appellant in New York was "a conviction for contumacy" and that accordingly he was an "accused" person so that his case was governed by para 7(1) and not by para 7(2).

    53. The District Judge accepted the respondent's submission and committed the appellant to prison. She commenced her written decision by stating:

"1.  The Government of the United States of America seeks the extradition of Jerry Guisto (also known as Jerry Russo and Gennaro Guisto). He is accused of crime in the United States that would amount to the following offence if the crime had occurred in this country:

'that he on 20th December, 1994, together with John Russo, unlawfully and maliciously caused grievous bodily harm to Sean Jennings with intent to do him grievous bodily harm'."

In para 6 she stated:

"I am however satisfied that there are a number of ways in which he may appeal against his conviction and seek retrial. Therefore I conclude that the proceedings in New York have not been finalised and his conviction was in contumacy. Accordingly, he is correctly treated as an accused person."

Therefore the District Judge purported to commit the appellant under para 7(1) and not under para 7(2).

    54. The appellant applied for a writ of habeas corpus to the Administrative Court. Before the Administrative Court the respondent submitted that the District Judge was right to rule that the conviction of the appellant was for contumacy and that accordingly he was to be treated as an accused person. The Administrative Court held that the District Judge's ruling was given in error and in his judgment (with which Rose LJ agreed) Gibbs J stated:

"53.  On the evidence it is well-established in United States law (as in recent times in the law of England and Wales: see R v Jones [2002] 2 WLR 524 HL) that a trial may proceed in a defendant's absence if he has voluntarily absented himself. The evidence about United States law shows that there are established procedures to ensure fairness to a defendant in those circumstances, as already outlined. The evidence lodged on behalf of the respondents, as well the applicant, indicates nothing to suggest that the conviction is to be regarded as anything but final. There is nothing in the relevant parts of the 1989 Act to place convictions in absentia in a special category (unlike a provision in the Fugitive Offenders Act 1967, now repealed).

54.  In my view, therefore, the finding of the District Judge that this was a conviction in contumacy was in error."

Before the House the respondent did not seek to argue that the Administrative Court was in error in holding that the conviction was not for contumacy and that accordingly the appellant was not an accused person.

    55. Gibbs J then turned to consider whether the appellant was entitled to an order of habeas corpus. He stated at paras 56-60 that the source of the District Judge's jurisdiction lay in the requisition made by the second-named respondent which was clearly a requisition for the extradition of the appellant as a convicted person, and that the error of the Secretary of State in describing the appellant in his order under para 4(2) of Schedule 1 as an "accused" did not affect the validity of the requisition made by the respondent because there is no statutory or other legal requirement for the Secretary of State to specify whether the requisition was for the surrender of a person as an accused or as a convicted person. He then stated:

"61.  The legal consequence of these findings, in summary, are as follows:

(a) The request for extradition was (or at the very least plainly included) a requisition for the surrender of the applicant as a convicted person.

(b) The evidence supplied by the United States Government satisfied the requirements of Article VII(4) of the Treaty in the case of a convicted person.

(c) The error in the recital to the Secretary of State's Order did not affect the legality and validity of the requisition and, accordingly, did not deprive the District Judge of the jurisdiction to commit the applicant under paragraph 7(3) of the Schedule on the basis that he was a convicted person within the scope of paragraph 7(2).

(d) If she had correctly interpreted the status of the applicant as a convicted person rather than accused person, she would, in my judgment, on the evidence before her, have been bound to commit him. That evidence, on any view, complied with the terms of the Treaty and the legislation incorporating it into United Kingdom law. She would have had no discretion to refuse committal.

(e) I am thus unable to accept Mr Hardy's submission that there are two separate jurisdictional routes available to the requesting state, and that it elected the wrong one.

(f) The true position in my judgment is that the District Judge had the jurisdiction and the power to commit under paragraph 7(3). She had the power to commit on one or other of the alternative bases in paragraph 7(1) and 7(2), provided that the ground was laid for it by the nature of the requisition itself and that the relevant evidential requirements were satisfied.

62.  Had she chosen the correct subparagraph of paragraph 7 she would have been bound to commit. For my part, despite Mr Hardy's submissions to the contrary, I can see no conceivable prejudice suffered by the applicant in the District Judge's choice of the wrong subparagraph as a basis for her decision to commit. Indeed, it resulted in an additional safeguard to the applicant in that the District Judge felt bound to consider the sufficiency of the evidence against the applicant, a requirement not made under subparagraph (2).

63.  For my part, therefore, despite what I have found to be an error of law in the part of the District Judge, I would refuse the relief sought. Had the District Judge applied the correct legal test she would have arrived at the same decision, namely that the applicant should be committed."

    56. My Lords, I am, with respect, unable to agree with the reasoning or the conclusion of the Administrative Court. No doubt the extradition process originates with the requisition made by the requesting state and it is clear that the District Judge has no jurisdiction to embark on a committal hearing unless the Secretary of State has issued an order under paragraph 4(2), but the powers of the District Judge to commit are defined by para 7 of Schedule 1. Para 7 makes it clear that the power of committal arises in two different types of case. One case is where the requesting state claims before the District Judge that the fugitive criminal is accused of an extradition crime, the other case is where the requesting state claims before the District Judge that the fugitive criminal has been convicted of an extradition crime. In my opinion when a requesting state brings a case before the District Judge under para 7(1) the District Judge has no power to commit under that sub-paragraph if the fugitive criminal is not an accused person but is a convicted person; and because the requesting state has not brought the case under para 7(2), the District Judge has no power to commit him as a convicted person under that sub-paragraph.

    57. This was the view taken by a powerful Divisional Court, constituted by Lord Parker CJ, Ashworth and Salmon JJ, in R v Governor of Brixton Prison ex parte Caborn-Waterfield [1960] 2 QB 498. In that case the applicant for a writ of habeas corpus had in his absence been convicted and sentenced to imprisonment by a French court. In French law that conviction was known as a "jugement par défaut" and anyone subject to such a judgment had the right at any time, on notice, to have it set aside and the case re-tried in his presence. The applicant gave the requisite notice, but at the re-hearing he again failed to appear, and the court, in accordance with French law, confirmed the conviction and sentence by a "jugement itératif défaut", which judgment, unless notice of appeal was given within ten days, became final and conclusive. No such notice of appeal was given. The French government sought to extradite the applicant from England on the ground that he was a person accused of a crime and a magistrate committed him for extradition on that basis. The applicant applied for a writ of habeas corpus on the ground that he was not an accused person but a convicted person.

    58. The argument of the applicant's counsel, Mr F H Lawton QC, is reported as follows at page 502f:

"The magistrate's order is bad on its face. First, it states 'on the ground of his being accused,' whereas the applicant is not in fact accused, but has been convicted and his extradition is sought, not that he should answer the accusation but that he should begin to serve the sentence passed on him for the offence. Both the application for extradition and the order, therefore, were made on a false basis of fact. The Extradition Act, 1870, distinguishes between an accused and a convicted person, and under section 10 the conditions which must be satisfied before an order is made are different. The 'jugement itératif défaut" of the French court was a 'conviction' and not a 'conviction for contumacy' within the meaning of section 26 of the Act."

Section 10 of the Extradition Act 1870 was in similar terms to para 7 of Schedule 1 and provided:

"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 trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged.

In the case of a fugitive criminal alleged to have been convicted of an extradition crime, if such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, prove that the prisoner was convicted of such crime, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged.

If he commits such criminal to prison, he shall commit him to the Middlesex House of Detention, or to some other prison in Middlesex, there to await the warrant of a Secretary of State for his surrender, and shall forthwith send to a Secretary of State a certificate of the committal, and such report upon the case as he may think fit."

In section 26 of the 1870 Act the definition of "conviction" and convicted" was similar to the definition in para 20 of Schedule 1 to the 1989 Act.

    59. The Divisional Court held in its judgment delivered by Salmon J that the applicant's conviction was not a conviction for contumacy and stated at p 511:

"Looking at the realities of the situation he is, in the fullest sense of the words, a convicted person and in no sense an accused person."

The judgment then concluded at p 512:

"We have, accordingly, come to the clear conclusion that Mr Lawton's first point is a good one. We have reached this conclusion with considerable reluctance for the applicant appears to be entirely devoid of merit. Had he been proceeded against and committed as a convicted person it is difficult to see in the circumstances of this case how he could have succeeded in this court. The point raised before us on the construction of the statute is, however, of some importance, and, as the Attorney-General has said, goes far beyond the scope of this particular case. There can be no doubt that upon the true construction of the statute the applicant's committal as an accused person was wrong in law. Accordingly, the application succeeds and the applicant, who has surrendered to his bail and is before this court, will be discharged."

    That decision was approved by this House in R v Governor of Pentonville Prison ex parte Zezza [1983] 1 AC 46 and referring to it Lord Roskill stated at page 56a:

"The court distinguished between a conviction "par contumace" and "par défaut" on the one hand and a conviction by "jugement itératif défaut" on the other and concluded that the procedure in question prevented the reopening of the case upon any surrender by Caborn-Waterfield. Accordingly, Caborn-Waterfield had not been convicted "par contumace" and could not be extradited as an accused person.

The Caborn-Waterfield case was in my view clearly correctly decided and is plain authority against the view that the English court will not look at the nature or substance of the conviction upon the basis of which extradition is sought."

    60. In paragraph 58 of his judgment Gibbs J sought to distinguish Caborn-Waterfield on the ground that in it the French government had requested the extradition of the fugitive as an "accused" person, whereas in the present case the American Government had requested the extradition of the appellant as a "convicted" person. In my opinion this is not a valid ground of distinction. In Caborn-Waterfield the Divisional Court did not base its decision on the description of the fugitive in the requisition made by the French government but on the ground that it was unlawful for the magistrate to commit a fugitive as an accused person when he was not an accused person but a convicted person.

    61. I consider that the Divisional Court also erred in holding that the power of the District Judge to commit arose under para 7(3). The power arose under para 7(1) or para 7(2) depending on whether the fugitive was an accused person or a convicted person. Para 7(3) commences with the words "If he commits such criminal to prison", and therefore para 7(3) does not give power to commit to prison; it provides what the District Judge is to do if he or she exercises the power to commit given by para 7(1) or para 7(2).

    62. In his submissions on behalf of the respondent Mr Lewis QC laid stress on the point that the appellant was applying for habeas corpus and not for judicial review, and that the function of the High Court on an application for habeas corpus was narrower than on an application for judicial review. He cited the following passage in the judgment of Lord Donaldson of Lymington MR in R v Home Secretary ex parte Cheblak [1991] 1 WLR 890, 894d:

"Although, as I have said, the two forms of relief which the applicant seeks are interrelated on the facts of his case, they are essentially different: A writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so is unlawful. The remedy of judicial review is available where the decision or action sought to be impugned is within the powers of the person taking it but, due to procedural error, a misappreciation of the law, a failure to take account of relevant matters, a taking account of irrelevant matters or the fundamental unreasonableness of the decision or action, it should never have been taken. In such a case the decision or action is lawful, unless and until it is set aside by a court of competent jurisdiction. In the case of detention, if the warrant, or the underlying decision to deport, were set aside but the detention continued, a writ of habeas corpus would issue."

    63. Mr Lewis submitted that the decision of the District Judge to commit the appellant as an accused person was due to a misappreciation of the law but was within her powers, and therefore habeas corpus should not issue. For the reasons which I have given I reject that submission because I am satisfied that the District Judge had no power under para 7(1) to commit a person who had been convicted of an extradition crime.

    64. Therefore I would allow the appeal and would hold that the appellant is entitled to the order which he seeks. Like the Divisional Court in Caborn-Waterfield I have come to this conclusion with considerable reluctance, because if the Secretary of State's order had referred to the appellant as a convicted person and the application before the District Judge to commit had been brought under para 7(2) on that basis, the application was bound to have succeeded, but as Mann LJ observed in In re Farinha [1992] Imm AR 174, 178, the Courts must be vigilant to ensure that the extradition procedures are strictly observed.

LORD RODGER OF EARLSFERRY

My Lords,

    65. Quite early on the morning of 10 October 2001 police officers in Hayes arrested the appellant in relation to a matter which is not material for present purposes. When the officers checked with the police national computer, they found that Interpol had put out a Locate/Trace or "red notice" in relation to him. This was because in 1995, in his absence, the Supreme Court of New York had convicted the appellant of assault and had sentenced him to a period of between 5 and 15 years' imprisonment. The Supreme Court had issued a warrant for his arrest. The police therefore alerted the American Embassy. Later the same day, in a diplomatic note to the Secretary of State, a representative of the United States asked for a provisional warrant for the appellant's arrest to be issued with a view to his extradition.

    66. Extradition between this country and the United States is regulated by a treaty to which effect is given by The United States of America (Extradition) Order 1976 made under section 2 of the Extradition Act 1870.

    67. The day after the embassy contacted the Secretary of State, an application was made to the district judge at Bow Street under paragraph 5(1)(b) of the first schedule to the Extradition Act 1989 ("the schedule"). The judge granted the provisional warrant authorising the appellant's detention. In terms of paragraph 5(2) it was then the duty of the judge to send a report to the Secretary of State. If the Secretary of State had thought that the extradition should definitely not go ahead, he could have ordered the warrant to be cancelled and the appellant to be discharged. In this case, however, the Secretary of State did not so order and the appellant remained in custody by virtue of the warrant.

    68. The warrant was not authority for detaining the appellant indefinitely. Paragraph 5(4) of the schedule provides:

"A fugitive criminal apprehended on a warrant issued without the order of the Secretary of State shall be discharged by the district judge (magistrates' courts) unless he, within such reasonable time as, with reference to the circumstances of the case, he may fix, receives from the Secretary of State an order signifying that a requisition has been made for the surrender of such criminal."

By reason of that provision unless, within such reasonable time as the judge fixed, the judge received from the Secretary of State an order signifying that a requisition had been made for the appellant's surrender, the district judge would have required to discharge him. Whether the judge fixed such a period in this case does not emerge from the papers available to the House, but nothing turns on it.

    69. On about 6 December 2001 the United States sent a diplomatic note, or "requisition", to the Foreign Secretary requesting the appellant's return to the United States to serve the sentence imposed on him by the New York court following his conviction on a charge of assault. Having considered that request, on 18 December the Secretary of State issued an order to the district judge. The order began by narrating the relevant provisions of the 1989 Act and the Orders in Council which have effect in relation to the United States. The order continued:

"And whereas, in pursuance of the said Schedule 1 (as it so has effect), a requisition has been made to the Secretary of State by His Excellency Mr William S Farish, a diplomatic representative of the United States of America, for the surrender of Jerry Russo (also known as Gennaro Raymond Guisto, Gennaro Onesto and Jerry Guisto) who is in the United Kingdom and who is accused of the commission of the crimes of causing grievous bodily harm with intent and inflicting grievous bodily harm within the jurisdiction of the United States of America:

Now the Secretary of State, by this Order, signifies to you that such requisition has been made."

The operative part of the order came at the very end where, under reference to the preceding narrative, the Secretary of State signified to the district judge that the United States had made a requisition for the surrender of the appellant who was "accused of the commission of the crimes" specified in the order. The district judge was thereby absolved from any duty to discharge the appellant in terms of paragraph 5(4). Instead, his detention was authorised until the committal hearing in terms of paragraph 6.

    70. Schedule 2 to the 1870 Act contains a number of forms which remain valid: section 37(4) of the 1989 Act. But that schedule does not in fact contain a form specifically designed for the kind of order that is issued for the purposes of paragraph 5(4) in provisional warrant cases. The practice of the Secretary of State is to modify the first of the forms in the second schedule by omitting the superfluous requirement for the district judge to issue an arrest warrant. An order in terms of the form when so modified furnishes the necessary declaration, for the purposes of paragraph 5(4), that the requisition has been made: In re Naghdi [1990] 1 WLR 317, 320-321 per Woolf LJ. The statutory form recites that a requisition has been made to the Secretary of State for the surrender of the person concerned "accused [or convicted] of the commission of the crime of…." Then comes a blank where the details of the crime are to be inserted. After that the Secretary of State signifies that a requisition to that effect has been made for the surrender of the person specified in the order. It is this declaration, with its reference back to the brief narrative of the content of the requisition, that authorises the continued detention of the prisoner, in terms of paragraph 5(4) of the schedule, pending the committal hearing.

    71. In the Administrative Court Gibbs J, with whom Rose LJ agreed, said, [2003] 2 WLR 157, 166, at para 59, that there was no statutory or other legal requirement for the Secretary of State to specify whether the requisition was for the surrender of the person as an accused or as a convicted person. This, he said, was to be contrasted with the requirement to specify the extradition offences themselves in the order. I see no basis for drawing that distinction. Just as the form leaves a blank for the details of the crime, so it also contains the words "accused [or convicted]". These words show that the Secretary of State is to say whether the person concerned is accused or convicted of the crime, just as surely as the blank indicates that he is to say what the crime is. In effect the order is a declaration by the Secretary of State either (1) that the foreign state has made a requisition for the surrender of the prisoner as having been accused of the crime in question or (2) that the foreign state has made a requisition for the surrender of the prisoner as being alleged to have been convicted of the crime in question. In either event the order is concerned with the prisoner's liberty. It is only to be expected, therefore, that it should explain to the district judge, as clearly as the circumstances permit, why he should not release the prisoner and for what purpose the prisoner is to remain in custody. The order fulfils that function only if, as the statutory form indicates should be the case, it signifies the basic terms of the requisition on which the Secretary of State is acting in authorising the prisoner's continued detention to await the committal hearing.

    72. It is now common ground that in this case the requisition submitted by the United States was for the appellant's surrender on the ground that he had been finally convicted of the assault in question. Due to a misunderstanding on the part of the Secretary of State about the status of this conviction under the law of New York, however, at the time when he was considering the terms of his order the Secretary of State thought that the appellant's conviction was a "conviction for contumacy" under the law of New York. The significance of this conclusion is that a person who is convicted for contumacy is treated, for the purposes of extradition, as a person accused of a crime rather than as a person convicted of a crime. Having formed this mistaken view, the Secretary of State drew up his order so as to signify that the United States had requested the surrender of the appellant as someone accused, rather than as someone convicted, of the crimes in question. The case is not, therefore, one where the Secretary of State made a clerical error in drawing up the order. Rather, the Secretary of State quite deliberately issued his order to proceed in these terms and so set in motion the chain of events which has brought the parties to your Lordships' House.

    73. Acting on the basis of this order, the district judge did not order the appellant's discharge and he accordingly remained in custody until the committal hearing on 11 February 2002. The Secretary of State's order was the authority for the appellant's continued detention and for the committal hearing that followed. The two elements are necessarily interrelated. By issuing the order the Secretary of State authorised the appellant's continued detention, pending a committal hearing, as a person accused of crime. Equally, he indicated that a hearing should be held for his committal on the same basis.

    74. In In re Nielsen [1984] AC 606, 624E Lord Diplock referred to the equivalent provisions of the 1870 Act and said:

"The jurisdiction of the magistrate is derived exclusively from the statute. It arises when a person who is accused of conduct in a foreign state, which if he had committed it in England would be one described in the 1870 list (as added to and amended by later Extradition Acts), has been apprehended and brought before the magistrate under a warrant issued pursuant to an order made by the Secretary of State under section 7 [now para 4(2) of the schedule] or confirmed by him under the last paragraph of section 8 [now para 5(4)]."

Although Lord Diplock was dealing with an accusation case, the same analysis applies in a conviction case. Where, as here, a provisional arrest warrant has been issued, the district judge's jurisdiction derives and arises from the order of the Secretary of State under paragraph 5(4). It follows in my view that here the jurisdiction of the district judge at the committal hearing was in respect of the appellant as a person accused of crime for whose return to the United States a requisition had been made.

    75. The requisition and the Secretary of State's order are distinct and must be kept so. The requisition which the diplomatic representative of the United States addressed to the Secretary of State gave rise to certain obligations under the extradition treaty between the United Kingdom and the United States. Those duties were owed between the two states in international law. In English law, by contrast, the requisition had no effect unless and until the Secretary of State decided to act upon it in the circumstances of this case by issuing an order to the judge under paragraph 5(4) signifying that the requisition had been made. Despite this, in the Administrative Court, [2003] 2 WLR 157, 166, at para 57, Gibbs J held that:

"The starting point, and in my judgment the source of the jurisdiction, lies in the requisition or request made by the United States Government."

On that basis, he went on to say, at para 61(c):

"The error in the recital to the Secretary of State's order did not affect the legality and validity of the requisition and, accordingly, did not deprive the district judge of the jurisdiction to commit the applicant under paragraph 7(3) of the Schedule on the basis that he was a convicted person within the scope of paragraph 7(2)."

Traces of the same line of thinking are to be discerned in paras 59 and 61(f) of the judgment. The reasoning is mistaken. The district judge is not concerned with the requisition: Government of the United States of America v Bowe [1990] 1 AC 500, 527D-E per Lord Lowry. More particularly, since a requisition has no effect in English law except as the basis for the Secretary of State's order under paragraph 4(2) or 5(4) of the schedule, as the case may be, the requisition itself cannot constitute a basis for the jurisdiction of the district judge if that jurisdiction cannot be derived from the Secretary of State's order. In the present case either the order under paragraph 5(4) gave the district judge the necessary jurisdiction or else she lacked it: there is no middle way based on the requisition. Indeed the irrelevance of the requisition in this regard is shown by the fact that no copy of it is provided to the district judge who proceeds instead on the basis of the Secretary of State's order. All that the district judge knows or needs to know of the terms of the requisition is to be found set out there. In certain cases the original terms of the requisition could indeed be misleading if, for example, the Secretary of State had decided that some of the offences included in it were not extradition crimes or were political. Somewhat unhappily, therefore, the Administrative Court purported to base the district judge's jurisdiction on the requisition, a document which they had not themselves seen and the thrust of whose terms they could only glean from other documents.

    76. Paragraph 6 of the schedule deals with the committal hearing but says little about what is to happen. This is because, for the most part, the rules as to the kinds of evidence etc to be presented are found in the individual extradition treaties which, to some extent, tailor the requirements to the practices and procedures in the requesting state. For what it is worth, however, paragraph 6(2) specifically authorises the district judge to receive any evidence tendered to show that the crime "of which the prisoner is accused or alleged to have been convicted" is of a political nature or is not an extradition crime. The distinction is maintained.

    77. Paragraph 7 is at the heart of the issue in the present case. It provides:

"1. 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 schedule) would, according to the law of England and Wales, make a case requiring an answer by the prisoner if the proceedings were for the trial in England and Wales of an information for the crime, the district judge (magistrates' courts) shall commit him to prison, but otherwise shall order him to be discharged.

2. In the case of a fugitive criminal alleged to have been convicted of an extradition crime, if such evidence is produced as (subject to the provisions of this schedule) would, according to the law of England and Wales, prove that the prisoner was convicted of such crime, the district judge (magistrates' courts) shall commit him to prison, but otherwise shall order him to be discharged.

3. If he commits such criminal to prison, he shall commit him there to await the warrant of the Secretary of State for his surrender, and shall forthwith send to the Secretary of State a certificate of the committal, and such report upon the case as he may think fit."

The scheme of the paragraph reflects the scheme of the preceding provisions which I have analysed. In particular paragraph 7(1) explains what is to happen "in the case of a fugitive criminal accused of an extradition crime" while paragraph 7(2) says what is to happen "in the case of a fugitive criminal alleged to have been convicted of an extradition crime". The two cases are treated separately and there is no cross-over between them. For instance, sub-paragraph (1) does not begin "subject to the following sub-paragraph" or vice versa. This is a further indication that the judge is concerned either with a fugitive criminal who is accused of an extradition crime or with a fugitive criminal who is alleged to have been convicted of an extradition crime. In any given case the judge knows which is the position from the terms of the order to proceed. In practice the judge will also know it from the document which the representative of the requesting state provides setting out the extradition crime of which the prisoner is accused or of which it is alleged that he has been convicted.

    78. In the appellant's case that document was headed "Conduct of which Jerry Russo is accused". It stated:

"Jerry Russo you are accused of crime in the United States of America that would amount to the following offence if the crime had occurred in the United Kingdom:

1. Jerry Russo on the 20th December 1994 you together with John Russo unlawfully and maliciously caused grievous bodily harm to Sean Jennings with intent to do him grievous bodily harm.

All within the jurisdiction of the United States of America."

This document, addressed to the appellant, spelled out what the issue at the committal hearing was to be. Counsel for the United States set out, accordingly, to satisfy the judge that the appellant was accused of the crime described in the document. He succeeded: as her written decision indicates, the judge held that the appellant was correctly treated as an accused person and that there was sufficient evidence of the extradition offence against him. On that basis, on 14 March 2002, in terms of paragraph 7(3), she committed the appellant to await the decision of the Secretary of State as to his return to the United States. She also sent a certificate of committal to the Secretary of State. While no issue arises as to the certificate, it has to be said that, in this particular case at least, it is a singularly uninformative document.

    79. The appellant applied to the Administrative Court for habeas corpus. He relied in part on the statement of a New York attorney, a Mr Murray, which had been obtained after the committal hearing. Counsel for the United States continued to maintain that the district judge had been entitled to treat the appellant's conviction as one for contumacy and that she had therefore been entitled to treat the appellant as being accused of crime rather than as being allegedly convicted of crime. On the basis of the new evidence the Administrative Court rejected that contention and held that the district judge's finding that the appellant's conviction had been for contumacy was in error. Gibbs J went on, however, to hold, [2003] 2 WLR 157, 167, at para 61(f), that the district judge had had jurisdiction to commit the appellant under paragraph 7(3):

"The true position in my judgment is that the district judge had the jurisdiction and the power to commit under paragraph 7(3). She had the power to commit on one or other of the alternative bases in paragraph 7(1) and (2), provided that the ground was laid for it by the nature of the requisition itself and that the relevant evidential requirements were satisfied."

    80. I have already explained that the terms of the requisition cannot help with the judge's jurisdiction. Paragraph 7(3) is equally irrelevant since it simply defines for what purpose the fugitive criminal is to be committed if the judge decides to commit him under paragraph 7(1) or (2). Its effect is reflected in the form of the relevant statutory warrant of committal set out in the second schedule to the 1870 Act.

    81. The position therefore is that the appellant was brought before the district judge as a fugitive criminal accused of an extradition crime and was dealt with accordingly. It is now recognised that he was not in fact such a person and that the Secretary of State's order was erroneous. That order was, however, the only basis for the committal hearing. In my view it was therefore not open to the Administrative Court to say that the district judge would have had jurisdiction to treat the appellant as a fugitive criminal alleged to have been convicted of the same crime. Unfortunately, due to the Secretary of State's mistake, she would have had no such jurisdiction. It follows that the Administrative Court should have granted habeas corpus.

    82. I reach this conclusion with very moderate enthusiasm since, as counsel for the appellant acknowledged, if the Secretary of State's order had been correct and the appellant had appeared at a hearing to deal with him as a fugitive criminal alleged to have been convicted of the assault in question, on the evidence before her the district judge would have been bound to commit him in terms of paragraph 7(2) and (3). On the other hand, since the liberty of the appellant is involved, I am mindful of Mann LJ's admonition that the courts must be vigilant to ensure that the extradition procedures are strictly observed: In re Farinha [1992] Imm AR 174, 178.

    83. I am further confirmed in my conclusion by the equally reluctant decision of the Divisional Court in R v Governor of Brixton Prison ex parte Caborn-Waterfield [1960] 2 QB 498. In that case there had been proceedings against the applicant in France in relation to the theft of two large sums of money from someone living in Antibes. The applicant had not attended those proceedings although he had been represented. The applicant was subsequently arrested in London on a warrant issued by leave of the chief magistrate. The warrant stated that requisition had been made to the Secretary of State for the surrender of the applicant "suspected and accused of the commission of the crime of larceny within the jurisdiction of the Government of France". The words "or convicted" had been struck out from the text of the statutory form of the arrest warrant. At the committal hearing the applicant argued that no order for his committal should be made because he was not a person "accused of an extradition crime" within the meaning of section 10 of the 1870 Act (the equivalent of paragraph 7 of the schedule), inasmuch as he had already been convicted of the crime in respect of which his extradition was sought. In that case also the issue turned on whether the conviction in the French court was properly to be regarded as being for contumacy. Having considered the relevant evidence, the Divisional Court sustained the applicant's argument on this point. Salmon J said, at p 512:

"We have reached this conclusion with considerable reluctance for the applicant appears to be entirely devoid of merit. Had he been proceeded against and committed as a convicted person it is difficult to see in the circumstances of this case how he could have succeeded in this court. The point raised before us on the construction of the statute is, however, of some importance, and, as the Attorney-General has said, goes far beyond the scope of this particular case. There can be no doubt that upon the true construction of the statute the applicant's committal as an accused person was wrong in law. Accordingly, the application succeeds and the applicant, who has surrendered to his bail and is before this court, will be discharged."

In R v Governor of Pentonville Prison ex parte Zezza [1983] 1 AC 46, 55F-56D, Lord Roskill, with whose speech all the other members of the committee concurred, said that the Caborn-Waterfield case was clearly correctly decided. I see no basis for distinguishing or departing from the settled law on this point.

    84. In the circumstances it is unnecessary to explore whether, and if so how, the Secretary of State might have cured the problem in the present case by issuing a further order to proceed in the correct terms.

    85. For these reasons, as well as for those given by my noble and learned friend, Lord Hope of Craighead, I would allow the appeal.