The Canadian Government asked for the arrest of the defendant and for his return to Canada to face 78 allegations in Canada. The magistrate had determined that there was sufficient evidence in 66 cases. The detainee said that 69 offences were not ‘relevant offences’ within the Act.
Held: The allegations did not disclose relevant offences, and the magistrate’s order should be quashed. It was inappropriate for a magistrate to hear evidence to determine whether the extradite would face criminal charges for similar offences here.
Lord Lowry said: ‘The ‘act or omission constituting the offence’ cannot in my opinion mean ‘the conduct, as proved by evidence, on which the charge is grounded,’ because the evidence of such conduct could prove something more than what has been charged. In such a case the conduct proved would not be the act or omission constituting the offence of which the fugitive is accused in the Commonwealth country . . One may paraphrase the effect of section 3(1)(c) by asking: ‘what is the essence of the Commonwealth offence? And would that be an offence against the law of the United Kingdom?’ That is quite a different thing from looking at the course of conduct revealed by the evidence and asking whether that conduct (as distinct from the conduct of which the person is accused) would constitute an offence against the law of the United Kingdom.’
Lord Bridge of Harwich considered what would happen if the test was, not as he though, constructive: ‘The issue arises when the Commonwealth offence may be established by particularising and proving ingredients A, B and C, but the nearest corresponding United Kingdom offence requires that the prosecution prove ingredients A, B, C and D. It is submitted for the Government of Canada . . . that if, in a particular case, the evidence relied on to prove the Commonwealth offence would be sufficient, if accepted, to establish ingredient D in addition to ingredients A, B and C, this is sufficient to satisfy the requirements of section 3(1)(c). Whether the extra ingredient necessary to prove the United Kingdom offence, over and above the ingredients which constitute the Commonwealth offence, is a physical or mental element, the wide construction leads to startling results. Two men are accused of the identical Commonwealth offence particularised against them in identical terms. The committing magistrate must decide whether the offence with which each is charged is a ‘relevant offence’: section 7(5). If the evidence establishes ingredients A, B and C against both men but ingredient D against the first man only, the magistrate must commit the first man, but not the second, to custody to await his return to the designated Commonwealth country. Yet so much of the evidence that is relied on to establish ingredient D . . . will be irrelevant to his trial for the Commonwealth offence after his return.’
Judges:
Lord Bridge of Harwich, Lord Elwyn-Janes, Lord Griffiths, Lord Jauncey of Tullichettle, Lord Lowry
Citations:
[1990] 1 AC 579, [1989] 3 WLR 436, [1989] 2 All ER 1025, (1990) 90 Cr App R 199, [1989] UKHL 6, [1990] COD 27
Links:
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Bermingham and others v The Director of the Serious Fraud Office QBD 21-Feb-2006
Prosecution to protect defendant not available
The claimants faced extradition to the US. They said that the respondent had infringed their human rights by deciding not to prosecute them in the UK. There was no mutuality in the Act under which they were to be extradited.
Held: The Director . .
Cited – Regina v Secretary of State for Home Department ex Parte Admn 3-Mar-1997
The section imposed the conduct test as set out in Nielsen, not the narrower approach adopted in Aronson. . .
Cited – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Lists of cited by and citing cases may be incomplete.
Extradition
Updated: 05 July 2022; Ref: scu.240087