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JOHN ANTHONY FOY v. GOVERNOR OF H.M. PRISON BRIXTON and GOVERNMENT OF FRANCE [2000] EWHC Admin 329 (14th April, 2000)
Case No: CO/3969/1999
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (QUEEN'S BENCH DIVISION)
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 14th April 2000
B e f o r e :
LORD JUSTICE KENNEDY
and
MR JUSTICE BUTTERFIELD
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JOHN
ANTHONY FOY
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and -
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THE
GOVERNOR OF H.M. PRISON BRIXTON
and
THE GOVERNMENT OF FRANCE
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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John Hardy (instructed by Kingsley Napley for the applicant)
James Hines (instructed by C.P.S. for the Government of France)
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Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE KENNEDY:
1. This is an application for a writ of Habaeas Corpus directed to the
Governor of the prison where the applicant is held pursuant to the decision of
Mr Nicholas Evans, a Metropolitan Stipendiary Magistrate, to await the decision
of the Secretary of State as to the applicant's return to France.
2. Facts
The relevant facts are set out in the judgment of the magistrate and are not
in dispute. On 11th February 1996 the applicant and another man were driving a
car which was stopped by French Customs Officers at Villefranche sur Saone.
The car was searched and £162,330 was found concealed in wrappers. The
wrappers and the applicant's hands tested positive for cocaine. The obvious
inference was that the money was related to drugs.
On 12th June 1996 the applicant was released on bail. He then failed to
answer a summons from the examining magistrate, and a warrant for his arrest
was issued on 28th January 1997.
On 29th September 1998 the applicant, in his absence, was convicted by the
Court of First Jurisdiction of Villefranche sur Saone of three offences arising
out of the events of 11th February 1996 - handling the proceeds of drugs
trafficking, and money laundering. He was sentenced to eight years
imprisonment. An appeal was lodged by a lawyer acting of behalf of the
applicant, but was held to be inadmissible.
The applicant having made his way to England, the Government of France sought
his extradition as a person accused, not as someone who had been convicted.
The requisition states -
"If John Foy is handed over to the French authorities, the warrant of arrest
will be enforced. The judgment of the Court of First Jurisdiction of
Villefranche sur Saone will be notified to him, he will have the possibility of
opposing it. If he opposes it, he will appear prisoner within a maximum
time-limit of eight days to be tried again before the Court of First
Jurisdiction of Villefranche, assisted by a lawyer. If he is again sentenced
he will be able to lodge an appeal to the decision of the Court of First
Jurisdiction before the Court of Appeals of Lyon."
On 22nd July 1999 the Secretary of State gave the magistrate authority to
proceed in accordance with section 9(8)(a) of the Extradition Act 1989. At the
hearing before the magistrate on 10th September 1999 Mr Hardy, for the
applicant, put forward a plea in bar, namely autrefois convict, but, as the
Magistrate pointed out when he gave his decision, he could not entertain what
amounted to a challenge to the authority to proceed, which was the source of
his jurisdiction. The magistrate went on to explain why, in his judgment, the
applicant's submission should also be rejected on its merits.
3. Issue
Section 6 of the 1989 Act, so far as relevant, provides -
(2) a person who is alleged to be unlawfully at large after conviction of an
extradition crime shall not be returned to a foreign state .... or committed or
kept in custody for the purposes of return to a foreign state ...... if it
appears to an appropriate authority -
(a) that the conviction was obtained in his absence; and
(b) that it would not be in the interests of justice to return him on the
ground of that conviction.
(3) A person accused of an offence shall not be returned, or committed or kept
in custody for the purposes of return, if it appears to an appropriate
authority that if charged with that offence in the United Kingdom he would be
entitled to be discharged under any rule of law relating to previous acquittal
or conviction.
It is common ground that the offences in the warrant before the magistrate are
the same as those of which the applicant was convicted at Villefranche sur
Saone in September 1998, and Mr Hardy, in reliance on section 6(3), submits
that if charged with those offences or any of them in the United Kingdom the
applicant would be entitled to be discharged. He reminded us that in
Connelly v DPP [1964] AC 1254 Lord Morris said at 1305 "a man cannot be
tried for a crime in respect of which he has previously been acquitted or
convicted." Mr Hardy accepts that as a bar to subsequent proceedings a
conviction is incomplete until sentence is imposed (see Richards v R
[1992] 4 All ER 807) but a sentence was imposed in this case. Mr Hines, for
the Government of France, submits that there would be no right to be discharged
in the United Kingdom because the 1998 conviction lacks the requisite degree of
finality. If, as in this case, a conviction recorded against a defendant will
be set aside at his option when he is brought before the court by which that
conviction was recorded then, Mr Hines submits, the defendant is rightly
regarded not only as a person accused, but also as one who can derive no
benefit from section 6(3).
4. Prior to 1989
How to categorise fugitives who have been convicted in their absence, but who
can if returned apply to have their convictions set aside, is an old problem.
As long ago as 1866 it was held by Lord Chelmsford L.C. in Re Coppin LR
2 Chancery Appeals 47 that a person condemned par contumace (i.e. tried in his
absence) in France continues to be an accused person liable to be delivered
under the Extradition Acts.
In section 26 (the definitions section) of the Extradition Act 1870 it was
stated that -
"The terms `conviction' and `convicted' do not include or refer to a conviction
which under foreign law is a conviction for contumacy, but the term `accused
person' includes a person so convicted for contumacy:"
Similarly in the Fugitive Offenders Act 1967 (which deals primarily with
Commonwealth countries) section 19(2) states -
"For the purposes of this Act a person convicted of an offence in his absence
shall be treated as a person accused of that offence."
Section 4(2) of the same Act reads -
"A person accused of an offence shall not be returned under this Act to any
country, or committed to or kept in custody for the purposes of such return, if
it appears as aforesaid that if charged with that offence in the United Kingdom
he would be entitled to be discharged under any rule of law relating to
previous acquittal or conviction."
That, as Mr Hardy points out, is the provision now to be found in section 6(3)
of the 1989 Act, and what he submits is significant is that when the request
comes from a European Convention country, such as France, there is no
definitions section or deeming provision (c.f. section 35(2) and paragraph 20
of schedule I, which apply in relation to certain other requesting states). Mr
Hardy concedes that prior to 1989 this applicant had to be treated as a person
accused. The statutory provisions so indicated, and so did decisions such as
re Coppin (supra), ex parte Cayborn-Waterfield [1960] 2 QB 498
and ex parte Zezza [1983] AC 46. But, as Mr Hines submits, a perusal of
those authorities shows that when deciding whether or not someone had been
convicted abroad what the English courts were concerned with was the finality
of the process. In Zezza Lord Roskill, having referred to
Coppin, said at 55E -
"The English court must inform itself by expert evidence, where the application
for extradition asserts that the person whose extradition is sought is a
convicted person, whether the demand is founded upon a sentence `in
contumacia'. That evidence will show whether or not the conviction upon which
the demand is founded bears the characteristics of a conviction or sentence `in
contumacy', so that the whole matter can be re-opened in the event of
subsequent surrender and appearance. If it can, then the person concerned must
not be treated as a convicted person but as an accused person."
Lord Roskill then went on to consider Cayborn-Waterfield, where the
Divisional Court "concluded that the procedure in question prevented the
re-opening of the case upon any surrender by Cayborn-Waterfield. Accordingly,
Cayborn-Waterfield had not been convicted `par contumace' and could not be
extradited as an accused person". That line of reasoning, Mr Hines submits,
remains unaffected by the 1989 Act.
5. The 1989 Act
As Mr Hardy submits, the 1989 Act was intended to simplify the procedure where
the request for extradition emanated from another Convention state, and so, he
submits, the hybrid category of someone convicted in contumacy was swept away.
If a person was convicted in his absence his return should be sought as a
person convicted, and he can then if he wishes pray in aid section 6(2). But,
as Mr Hardy recognises, section 6(2) was never intended to give additional
relief to a convicted fugitive who if extradited would be entitled to have his
conviction set aside. Such a person did not need further protection. The
fifteenth recommendation of an inter-departmental working party was
incorporated in annex B to the Green Paper on Extradition in 1985, and it reads
-
"there should be new provision for dealing with applications in respect of
persons convicted in absentia. If the requesting State gave an assurance that
the fugitive would if returned be tried again for the offence in his presence
or that his case would be passed through a review or appeals procedure which
amounted to a re-trial, the fugitive should be re-treated as if he were an
accused person. If the requesting State did not give this assurance, the
United Kingdom should require details of the proceedings which led to the
conviction in absentia together with relevant statutory provisions. If it
appeared from this information that it would not be in the interests of justice
to surrender the fugitive - for example if he had been denied adequate rights
of defence at his trial - extradition could be refused. This should be a
matter reserved for the consideration of the Divisional Court on Habaeas Corpus
and the Secretary of State. Prima facie evidence should also be required in
these cases if it continues to be required for accused persons."
That was the genesis of section 6(2), and as can be seen from the terms of the
recommendation, it was never intended to apply to those in the position of this
applicant.
6. After 1989
Prior to 1989 courts in this country examined the finality of proceedings
abroad to see if a fugitive should be regarded as a person convicted or
accused, and that process has continued. In re Sarig 26th March 1993
unreported, where the request came from the United States, the conviction of
the fugitive in his absence was treated as final because if he were returned
the court would have a discretion whether or not to set that conviction aside.
As Evans LJ put it at 25E -
"The question is, does the applicant have a right to trial of the alleged or
admitted extradition crime, notwithstanding the conviction which has been
recorded?"
The same approach was adopted by the House of Lords in re Ismail [1999] 1 AC 320 where Lord Steyn said that "accused" in section 1 of the 1989 Act is
not a term of art. It is a question of fact in each case whether the person
passes the threshold test of being an "accused" person.
We were shown other decisions is extradition cases to which I find it
unnecessary to refer because in my judgment the pattern is clear. I should
however mention the decision of the Court of Appeal Criminal Division in R v
Thomas [1985] 1 QB 604. There the appellant, working in Italy,
fraudulently transferred his employer's money to an account in England. He
returned to England, and drew the money. In Italy he was convicted in his
absence of aggravated fraud and sentenced to imprisonment and to a fine. He
was then charged in England with theft of the money he had drawn, and pleaded
autrefois convict. There was evidence that he could not be extradited to
Italy, and his plea was rejected. Macpherson J, giving the judgment of the
court, said at 612A -
"Unless the relevant conviction has or can reasonably have some effect, as of
course it would have if the accused were in reach of the court which tried him,
we believe that the principles set out in Connelly's case simply do not
bite."
In my judgment Mr Hardy is right in his submission that Thomas can be
distinguished from this case on the basis that in the case of Thomas it
was not possible for the fugitive to be extradited to serve his sentence, but
that can be of little comfort to this applicant because, in my judgment, for
the reasons I have set out, he is rightly regarded for the purposes of section
6(3) of the 1989 Act as a person accused. That is because if returned to
France he is entitled to have his conviction at Villefranche set aside. It
follows that if charged in the United Kingdom he would not be entitled to be
discharged under any rule of law relating to previous convictions. The fact
that until he applies to have his conviction set aside he can properly be
described as a person "unlawfully at large after conviction" is not
determinative.
7. Conclusion
I would therefore dismiss this application.
MR JUSTICE BUTTERFIELD : I agree.
© 2000 Crown Copyright
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