European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Raymond WOOLLEY v the United Kingdom - 28019/10 [2011] ECHR 103 (13 January 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/103.html
Cite as: [2011] ECHR 103
[New search] [Contents list] [Printable RTF version] [Help]
12 January 2011
FOURTH SECTION
Application no.
28019/10
by Raymond WOOLLEY
against the United Kingdom
lodged
on 15 April 2010
STATEMENT OF FACTS
THE FACTS
1. The applicant, Mr Raymond Woolley, is a British national who was born in 1953 and is currently detained at HMP Dovegate, Uttoxeter. He is represented before the Court by Mr A. Harris, a lawyer practising in London.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background facts
3. On 19 December 2002 the applicant was convicted at Birmingham Crown Court of an offence of conspiracy to cheat the public revenue. On 20 December 2002 he pleaded guilty to two offences of concealing proceeds of criminal conduct to retain them or to avoid prosecution; and removing property from the jurisdiction to retain proceeds of criminal conduct or to avoid prosecution. On the same date, he was sentenced to nine years’ imprisonment in respect of the conspiracy offence, with no separate penalty imposed for the other two offences.
4. On 14 December 2003 the Court of Appeal dismissed the applicant’s appeal against sentence.
5. On 23 February 2005 the applicant walked out of HMP Sudbury, an open prison, and fled to Switzerland. At that time he had served 41 months and 12 days of the sentence. A total of 66 months and 18 days remained to be served. On 3 March 2005 a warrant for the applicant’s arrest in respect of the offence of escape from lawful custody was issued by Birmingham Magistrates’ Court.
6. Also on 3 March 2005, Birmingham Crown Court made a confiscation order in respect of the applicant’s conviction for conspiracy to cheat the public revenue in the sum of GBP 9,497,784.02. The amount specified in the order was to be paid by the applicant by 3 April 2006, with four years’ imprisonment to be served in default of payment, consecutively to the nine-year term of imprisonment already imposed. Although the applicant was not present, he was represented by senior counsel. On 4 April 2005 the applicant was refused leave to appeal against the confiscation order.
7. By 3 April 2006 the applicant had not made full payment as required by the confiscation order. Only GBP 195,000 had been realised by the Official Receiver.
8. On 1 February 2007 the full court of the Court of Appeal refused the applicant’s renewed application for leave to appeal the confiscation order. The confiscation order accordingly became final and fell to be enforced.
2. Extradition proceedings
9. On 6 February 2008, the United Kingdom Government issued a request to the Swiss Government for the applicant’s extradition, pursuant to the European Convention on Extradition 1957 (“the ECE”). An accompanying witness statement by a Revenue and Customs Prosecutor set out the offences of which the applicant had been convicted, with the relevant law set out in an annex. It noted that the applicant’s return was sought in order to serve the remainder of the sentence of nine years’ imprisonment imposed on him. It further indicated that the applicant was accused of an offence of escape from lawful custody. Finally, it referred to the confiscation order and concluded:
“... It is established law that a default sentence so imposed constitutes part of the overall penalty. [The applicant’s] return to the United Kingdom is therefore sought in respect of any activation of the default sentence which may become necessary.”
10. In a diplomatic note of 31 March 2008 sent to the British Embassy, the Federal Office of Justice asked the British authorities for further information relating to the acts committed by the applicant. On 1 April 2008 the British Embassy replied to the questions.
11. By diplomatic note dated 18 April 2008 to the British Embassy, the Swiss Federal Office of Justice requested clarification of the responses provided. On 3 June 2008 the British Embassy provided the clarifications requested.
12. On 12 June 2008 an arrest warrant was issued by the examining magistrate in Vaud Canton, Switzerland. The applicant was arrested pursuant to that warrant on 19 June 2008.
13. By diplomatic note dated 13 August 2008, the Federal Office of Justice asked the following question of the United Kingdom authorities:
“... whether the extradition of the [applicant] is also being requested for charges of evasion and for non-payment of the confiscation sum ordered by Birmingham Crown Court on 3 March 2005.”
14. By diplomatic note of 28 August 2008 to the Federal Office of Justice, the British Embassy in Berne enclosed the response of Her Majesty’s Revenue and Customs Prosecution Office (“RCPO”) in relation to the request for the applicant’s extradition. The response of the RCPO was in the following terms:
“It is important to make clear that there is no charge, in existence or proposed, for evasion or non-payment of the order. The extradition of [the applicant] is not sought in respect of non-payment of the confiscation order which was made against him; it is sought in respect of one charge of escape from lawful custody and to finish serving the term of imprisonment passed on him in respect of the offence of conspiracy to cheat.
The confiscation order was part of the sentence passed on [the applicant]. The effect of the relevant legislation is that such orders are treated in the same way as fines. When a Crown Court imposes a fine on any person, they may allow that person time to pay the fine but they must make an order fixing a term of imprisonment which that person must serve as a last resort if the sum they owe has not been paid or recovered. The confiscation order in this case ... remains outstanding and this office has been taking steps to enforce it.
Activation of a default sentence is one of the many means available to the court to enforce outstanding orders. The court can initiate activation of its own volition or the prosecutor can invite the court to do so. Before activating the default duty, judges are under a duty to enquire into the defendant’s proposals for payment and to determine whether any of the other methods of enforcement might be effective. [The applicant] would have the opportunity to make representations throughout this process. [The applicant] still has the option to pay the confiscation order at any time and if his assets are insufficient to meet the confiscation order he may apply to the High Court for a certificate of inadequacy. If one is granted he may then apply to the Crown Court to reduce the amount of the confiscation order ...”
15. On 25 September 2008 the Swiss Federal Office of Justice issued its decision on extradition. The decision noted:
“1. On 21 April 2005, Interpol London requested the arrest and extradition of the party concerned to serve the remainder of a prison sentence of nine years handed down by Birmingham Crown Court on 20 December 2002 for fraud and money laundering.
2. In a diplomatic note of 6 February 2008, the British Embassy in Bern requested the extradition of the party concerned.”
16. It continued:
“13. In a diplomatic note of 28 August 2008, the British Embassy informed the FOJ [Federal Office of Justice] that the extradition of the party concerned was not being requested for non-payment of the amount of the confiscation ordered by way of the decision of 3 March 2005 of Birmingham Crown Court, but was being requested for the absconding.”
17. The decision noted that for extradition to be ordered, the offence for which it was sought had to be an offence in both countries. As regards the offence for which the nine-year sentence was imposed, the Federal Office of Justice considered in some detail the facts behind the offence. It noted the applicant’s objection to the extradition, on the basis that:
“The request for extradition is not clear regarding the question of whether it is also requested for the offence of absconding and for non-payment of the amount confiscated. If such were the case, the condition [of] dual criminality would not be met as neither the non-payment of the amount payable by the party concerned nor the absconding are punishable under Swiss law. If the extradition were granted for VAT fraud, the FOJ will have to grant it by formulating express conditions or reservations that the extradition must not allow the British authorities to sentence the party concerned to a term of imprisonment for absconding on 23 February 2005 and to sentence him to and make him serve four years imprisonment as provided for, for non-payment of the amount fixed by the confiscation order of 3 March 2005.”
18. The Federal Justice Office ruled:
“(a) The Swiss Criminal Code does not punish a person who absconds, The extradition will not be granted for the act of absconding. The English authorities will be informed of this. The extradition is not requested for the non-payment of the amount fixed in the Order of Birmingham Crown Court on 3 March 2005. There is no need to ask the British authorities to give any guarantees, as nothing suggests that they will not adhere to the rule that a person may only be tried for the offence for which he has been extradited.”
19. It granted the extradition:
“... for the acts described in the extradition request of the British Embassy of 6 February 2008 and its additional documents of 1 April and 3 June 2008, excluding the acts of absconding.”
20. On 29 October 2008 the applicant appealed to the Swiss Federal Criminal Court. On 5 February 2009 the Federal Criminal Court upheld the decision of the Federal Office of Justice. It summarised the facts of the case, and noted the following:
“Invited by the FOJ to indicate whether the extradition of the party concerned was also being prosecuted ... for the facts of absconding and non-payment of the confiscated amount individual[ly], on 28 August 2008, the British Embassy declared that as regards both of these penalties, extradition was only being prosecuted individual[ly] for the acts of absconding ...”
21. In response to the applicant’s criticism of the decision of the Federal Office of Justice for failing to exclude extradition for the purpose of initiating proceedings regarding the non-payment of the confiscation order, the court noted:
“To the specific question formulated by the FOJ as to whether extradition was also being requested for non-payment of the amount referred to in the confiscation order of 3 March 2005 ..., the requesting authority expressly replied that extradition ‘is not requested for non-payment of the amount in the confiscation order issued against him’. However, it is ‘requested on a charge of absconding (...) so that he can serve the remainder of the prison sentence given to him for the offence of conspiracy to defraud the Inland Revenue’ ... This statement is sufficiently clear and appropriate for the purposes of removing the appellant’s doubts. In addition, the decision appealed against takes care to mention ... that the FOJ, in the event of extradition, will indicate in the form of conditions or reservations for the attention of the requesting authority that the extradited person may not be sentenced to the term of four years imprisonment of which question in judgment of 3 March 2003, or for absconding of 23 February 2005.”
22. On 10 February 2009 the applicant appealed to the Swiss Federal Supreme Court. On 26 February 2009 the Federal Supreme Court ruled that the appeal was inadmissible. In its judgment, it summarised the findings of the Federal Criminal Court regarding the confiscation order:
“... The applicant authority had clearly waived the right to apply for extradition for the sentence relating to non-payment of the confiscation [order] ...”
23. On 10 March 2009 the applicant was extradited to the United Kingdom and returned to prison to complete his sentence.
3. Enforcement proceedings
24. In April 2009 the RCPO applied to Birmingham Magistrates’ Court to enforce the four-year terms of imprisonment imposed on the applicant in default of payment of the confiscation order.
25. On 5 May 2009 the head of the Swiss Federal Office of Justice sent an email to the RCPO stating that:
“With regard to the question of speciality I have however to point out that from our standpoint it would [already] be a violation of this principle if he would be subject to an ongoing proceedings as a present person (the Convention says: shall not be proceeded against!)”
26. On
29 July 2009 the RCPO wrote to the Swiss authorities indicating that
it intended to proceed with an application to enforce the four-year
term of imprisonment. It noted that the extradition request concerned
the offence of conspiracy to cheat the public revenue (“the
extradition offence”), of which the applicant had been
convicted, and the offence of escape from lawful custody, of which
the applicant was accused. The request for extradition in respect of
the latter offence was refused. As regards the
non-payment of the
confiscation order, the letter indicated:
“While the extradition request was under consideration, a question was put by the Swiss authorities ... as to whether [the applicant’s] ‘extradition is also being requested for charges of evasion and for non-payment of the confiscation sum ordered by Birmingham Crown Court on 3 March 2005’.
In our response we sought to explain that there were no charges for the non-payment of the order, the order was part of the sentence for the extradition offence and if the order were not to be satisfied this would result in the activation of the default sentence.
As the sentence for non payment was part and parcel of the sentence imposed for the extradition offence, it was not possible, or necessary, to seek his extradition in relation to it; as part of the sentence for the extradition offence it was covered by the terms of the extradition request.
It appears from the documentation that we have had sight of that [the applicant] was returned on the basis that the default sentence referred to above may not be imposed. This decision appears to be made on a misunderstanding of the requesting State’s position as is set out in the documents provided to the Federal Office of Justice in support of the extradition request.”
27. Referring to section 50 of the Criminal Appeal Act 1968 (see below), the RCPO explained that the sentence for the extradition offence was made up of more than one component, and covered the prison sentence from the wrongdoing, the financial penalty in the confiscation order and the custodial penalty that flowed from the non-payment. The letter concluded:
“I take this opportunity to assure the Government of the Swiss Confederation that the UK is committed to its international obligations and has no intention of dishonouring the principle of specialty.
However, for reasons which I trust are apparent from what is set out herein, imposition of the default sentence in these circumstances cannot be considered to be a breach of the UK’s specialty obligations, either as set out in the Convention or in UK domestic legislation.”
28. On 24 August 2009 the Federal Office of Justice wrote to the British Embassy in the following terms:
“In a letter dated 29 July 2009, the Revenue and Prosecutions Office informed this office that the extradition of [the applicant] was also for the non-payment of the confiscation order ...
However, in a diplomatic note dated 13 August 2008, the
Embassy sent us a letter from the UK authorities stating that the
extradition was not required for non-payment of the confiscation
order. In accordance with this letter, this aspect was removed from
the extradition procedure and was not dealt with in the decision.
Extradition was not therefore granted for non-payment of the
confiscation order. In view of this, if the UK authorities intend to
ask for the extension of the extradition to include the
non-payment
of the confiscation order, they will have to proceed in accordance
with Art. 14 of the European Convention on Extradition.”
29. On 4 September 2009 the RCPO’s application to enforce the default term came before the Magistrates’ Court. The applicant argued that the proceedings were barred by the rule of specialty, which restricts prosecution or punishment of an extradited person to the offence for which extradition was granted. The District Judge considered the applicant’s claim to be arguable but was of the view that only the High Court had jurisdiction to consider an abuse of process argument. He therefore adjourned the proceedings to allow the parties to bring judicial review proceedings.
30. On 18 September 2009 the applicant lodged a claim for judicial review seeking an order that the District Judge be prohibited from proceeding to examine the RCPO’s application because the proceedings were an abuse of process; and an order that the District Judge be prohibited from proceeding to examine the RCPO’s application because it constituted a breach of section 151 of the Extradition Act 2003 (“the 2003 Act”).
31. On 25 September 2009 the RCPO lodged a claim for judicial review seeking, inter alia, a declaration that the application to enforce the default term did not constitute an abuse of process and a declaration that the application to enforce the default term did not constitute a breach of section 151 of the 2003 Act.
32. On 5 October 2009 the High Court granted leave in respect of the RCPO’s application. The two claims were later joined and consideration of the applicant’s request for leave was adjourned for consideration by the full court at the substantive hearing in the RCPO’s claim.
33. On 19 November 2009 a hearing took place in both claims. At the conclusion of the hearing, the High Court granted the RCPO’s application for judicial review, refused the applicant’s application for permission to apply for judicial review and indicated that it would hand down a reasoned judgment in due course.
34. On 12 January 2010 the Magistrates’ Court resumed the hearing of the RCPO’s application. The District Judge ordered the applicant to serve the four-year term.
35. On 15 January 2010 the High Court handed down its reasoned judgment in the judicial review claims. Lord Justice Laws, delivering the judgment of the court, considered first an argument as to the jurisdiction of the District Judge and noted in that context:
“18. As Mr Perry [for the RCPO] pointed out, this is not a case where it is being suggested that there has been ‘a deliberate abuse’ of the extradition proceedings. Contrary to the way in which the district judge characterised the abuse allegation, there is no suggestion in any of the written skeleton arguments prepared on behalf of [the applicant] or in any of Mr Summers’ [for the applicant] oral submissions to this court that the Swiss authorities were either deliberately misled or that the extradition proceedings were improperly manipulated (by deceiving the Swiss as to the RCPO’s true intention upon [the applicant’s] return) so as to ensure that [the applicant] was returned to the United Kingdom. As Mr Perry observed, the most serious allegation appears to be that the response given in the 28th August 2008 diplomatic note ... was ambiguous and unintentionally misled the Swiss, who treated it as a promise not to proceed in respect of the default term and hence the United Kingdom/RCPO should be bound by it.”
36. He summarised the parties’ arguments in respect of the rule of specialty as follows:
“22. Mr Perry submitted that the default term for non-payment of the confiscation order unarguably forms part of the sentence imposed on [the applicant] for the convictions/offences for which he was extradited. It was therefore his submission that, in proceeding to impose the default term for non-payment of the confiscation order, the Magistrates’ Court would only be dealing with [the applicant] for the particular convictions/offences for which he was extradited and that there was thus no infringement of the rule of specialty, nor was there any abuse of process involved in taking any such proceedings. As we explain below, we agree with that submission.
23. For his part, Mr Summers accepted that the confiscation order did form part of the sentence imposed on [the applicant] for the material offences. However, his primary submission was to the effect that enforcement of the default term did not actually form part of the original sentence and, thus, not part of either of the relevant offences. He submitted that the essential characteristics of the enforcement proceedings, in which the failure to pay the confiscation order has to be strictly proved before the default term can be imposed, demonstrate that enforcement of the default term is in respect of another and separate offence (i.e. presumably, failure to pay the confiscation order) from the offence in respect of which the confiscation order had been imposed.
37. He continued:
“24. Other than to argue that the setting of the default term as part of the original sentence is meaningless until there is a breach (i.e. by commission of the separate offence of failing to pay the order within the time prescribed), Mr Summers was quite unable to refer us to any authority or statutory provision that supported his novel submissions on this point. This is not surprising since, in our view, it is plainly wrong. We are entirely satisfied that the default term (which the court is obliged to impose as a matter of law in such circumstances as part of the process of sentencing) forms part of the original sentence, since it is an integral part of the confiscation order which, it is common ground, is unarguably part of the original sentence. To argue that enforcement of the default term involves proving the commission of a further separate offence of (for example) failing to pay within the prescribed time is, in our view, wholly artificial in the absence of any statutory provision (or other authority) to that effect. We therefore have no hesitation in rejecting it.”
38. As to the applicant’s alternative argument that if the default term did form part of the original sentence and proceedings to enforce it were a process in which the applicant would be dealt with for the original offences, then there should be a mechanism for dealing with the express reservation of the Swiss authorities, Laws LJ noted:
“27. Again, we are satisfied that there is no substance in the submission that there must be a mechanism for giving effect to the Swiss reservation. As we will make clear, that reservation was the result of their misunderstanding of the extent of the United Kingdom’s clearly expressed request ...”
39. Laws LJ summarised the various exchanges between the Swiss and British authorities prior to the applicant’s extradition and agreed with counsel for the RCPO that the British diplomatic note of 28 August 2008, read as a whole:
“... made it perfectly clear that extradition was not required in respect of any charge of non-payment of the confiscation order, since there was no such actual or proposed charge because the order in question formed part of the sentence imposed for the offences of which [the applicant] had been convicted and in respect of which his extradition was being sought. In other words, it was not necessary to seek extradition specifically for the non-payment because the confiscation order was merely part of the sentence for the offences for which he was to be extradited and was not a separate charge in its own right.”
40. He concluded:
“It was therefore Mr Perry’s contention that the imposition of the default term would offend neither the rule of specialty in section 151 of the 2003 Act nor under Article 14 of the ECE. We agree and we reject Mr Summers’ submissions to the contrary effect. Mr Perry then went on to submit that the rule of specialty is thus no bar to the imposition of the default term for the non-payment of the confiscation order in this case and that [the applicant] has been returned to the United Kingdom for those convictions/offences for which he is now to be dealt with in the proposed enforcement proceedings. Again, we agree and again we reject Mr Summers’ opposing submissions.”
41. As to the argument that the enforcement of the default term constituted an abuse of process, the court found:
“33. ... In the light of our decision that there is no infringement of the rule of specialty in this case, we have come to the firm conclusion that there is no abuse of process involved in proceeding to enforce the default term against [the applicant] in the circumstances of this case, notwithstanding the misunderstanding of the position by the Swiss authorities and their expressed reservation.”
42. Referring to the decision of the Court of Appeal in R v. Davidson (see below), Laws LJ said:
“35. In our view, and as Mr Perry observed, the
effect of the decision in Davidson in [the applicant’s]
case is clear. For the reasons already given, there is no
infringement of the rule of specialty in this case. Accordingly, it
is still possible to proceed against [the applicant] because this is
permitted by section 151 of the 2003 Act, notwithstanding the
observations and reservations expressed by the Swiss courts. The
decisions and comments of the Swiss courts in respect of the default
term for
non-payment of the confiscation order are simply not
binding on the courts of the United Kingdom and the rule of specialty
has not been infringed. For the reasons already given, we are
satisfied that the United Kingdom did not deliberately mislead the
Swiss authorities, that it always made its intentions clear and that
there has been no improper or unfair manipulation of the processes of
extradition or for the enforcement of the default term.
Accordingly, in the premises we are satisfied that there is no abuse of process involved in proceeding to enforce the default term against [the applicant] and we reject Mr Summers’ submissions to the contrary effect.”
43. On 4 February 2010 the applicant applied to the High Court for certification of points of law of general public importance and for leave to appeal the judgment of the High Court in respect of the RCPO judicial review claim. On 16 February 2010 the court refused the applications.
44. On 19 March 2010, by letter to the British Embassy, the Federal Office of Justice reiterated:
“By means of the diplomatic note dated 28 August 2008, the Embassy sent the DFJP [Swiss Federal Department of Justice and Police] a letter from the British authorities showing that extradition was not required for the non-payment of the confiscation order. In accordance with this letter, this aspect has been withdrawn from the extradition proceedings and has not been dealt with in the decision. Therefore, extradition has not been granted for the non-payment of the confiscation order.”
45. The Federal Office of Justice referred to letters from the applicant’s solicitors advising it that the British authorities had enforced the four-year default term of imprisonment for non-payment of the confiscation order. It continued:
“According to Article 14 of the [ECE], the person who will have been handed over will be neither pursued, nor judged, nor detained with a view to serving a sentence or as a security measure, nor subjected to any other restriction on his personal freedom ... other than that which brought about the extradition ...
Therefore, it emerges from [the applicant’s] letters, that the British authorities would be breaking the rule of speciality. If [the applicant’s] allegations are deemed to be well-founded, the Federal Office of Justice draws the attention of the British authorities to the fact that [the applicant’s] serving of an additional four year sentence for the non-payment of the confiscation order breaks the rule of speciality and invites them to withdraw it. The Office reminds the British authorities that they have the possibility of requesting the extension of the extradition to Switzerland according to Article 14 [ECE].”
46. In April 2010, as a result of early release provisions, the applicant reached his release date in respect of the nine-year term of imprisonment imposed for the extradition offence. He is currently in detention pursuant to the default term of imprisonment imposed in respect of the non-payment of the confiscation order.
B. Relevant domestic law and practice
1. Confiscation orders
a. The United Kingdom
47. At the relevant time, section 71 of the Criminal Justice Act 1988 (“the 1988 Act”) provided that:
“(1) Where an offender is convicted, in any proceedings before the Crown Court ... of an offence of a relevant description, it shall be the duty of the court–
(a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section ...
To act as follows before sentencing of otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.
(1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct.
(1B) ... if the court determines that the offender has benefited from any relevant criminal conduct, it shall then–
(a) determine ... the amount to be recovered in his case by virtue of this section, and
(b) make an order under this section ordering the offender to pay that amount.”
48. Under section 75 of the 1988 Act, where a confiscation order was made, section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”) had effect as though it were a fine. Section 139 the 2000 Act provides that if the Crown Court imposes a fine, it may make an order allowing time for the payment of the amount of the fine. It further provides that the court shall make an order fixing a term of imprisonment which the subject of the fine is to undergo if any sum which he is liable to pay is not duly paid or recovered.
49. Section 75(5A) provided:
“Where the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect, so far as any other method of enforcement is concerned.”
50. The above provisions were repealed and replaced on 24 March 2003 by the Proceeds of Crime Act 2002.
51. Section 50 of the Criminal Appeal Act 1968 (as amended) deals with the meaning of “sentence”. It provides:
“(1) In this Act ‘sentence’, in relation to an offence, includes any order made by a court when dealing with an offender including, in particular–
...
(e) a confiscation order under Part VI of the Criminal Justice Act 1988 ...”
b. Switzerland
52. Under Swiss law, an obligation on an individual to pay a certain sum of money can arise in civil, administrative or criminal law.
53. In the context of such obligations arising under civil or administrative law, no penalty can be imposed on a debtor in default other than ordinary enforcement proceedings to obtain the forced sale of the debtor’s assets in order to extinguish the debt and any applicable interest.
54. In the context of criminal law, a person may be required to pay a sum of money by way of a fine following conviction for a criminal offence. If the fine is unpaid, the party in default will receive an equivalent prison sentence, which extinguishes the fine. If a convicted person has financially benefitted from a criminal offence, a compensatory claim equivalent to the benefit can be imposed. In case of default, the relevant sum is recoverable under Swiss law on debt enforcement and bankruptcy. There is no provision for a term of imprisonment to be served in default.
2. Extradition
a. The Extradition Act 2003
55. At the relevant time, the matter was governed by section 151 of the 2003 Act. Section 151 applied if a person was extradited to the United Kingdom from certain States (including Switzerland). Section 151(2) provided:
“The person may be dealt with in the United Kingdom for an offence committed before his extradition only if–
(a) the offence is one falling within subsection (3), or
(b) the condition in subsection (4) is satisfied.”
56. Subsection (3) defined relevant offences as:
“(a) the offence in respect of which the person is extradited;
(b) an offence disclosed by the information provided to the category 2 territory in respect of that offence;
(c) an offence in respect of which consent to the person being dealt with is given on behalf of the territory.”
57. The condition set out in subsection (4) was that:
“(a) the person has returned to the territory from which he was extradited, or
(b) the person has been given an opportunity to leave the United Kingdom.”
58. Section 151(5) clarified that a person is “dealt with” in the United Kingdom for an offence if he is tried there for it or he is detained with a view to trial there for it.
59. As of 25 January 2010, section 151 of the 2003 Act was replaced by section 151A, in similar terms.
b. Case-law
60. In R v. Davidson (1977) 64 Cr. App. R. 209, the Court of Appeal considered the scope of any prosecution following extradition and noted:
“So far as English law is concerned on this subject the authority which constitutes the Court’s charter in the field of extradition of aliens is the Extradition Act 1870... [The Act] is relevant in regard to extradition into this country in one respect only, and that is that it contains in section 19 provisions intended to satisfy a common clause in extradition treaties whereby the high contracting parties normally agree not to have extradited persons charged with offences different in substance from those for which they were extradited.
So far as extradition into this country is concerned, section 19 contains in our judgment the only restriction on the kind of offences for which the extradited person can be subsequently tried, and it says this: ‘Where, in pursuance of any arrangement with a foreign state, any person accused or convicted of any crime, which, if committed in England, would be one of the crimes described in the first Schedule to this Act is surrendered by that foreign state, such person shall not, until he has been restored or had an opportunity of returning to such foreign state, be triable or tried for any offence committed prior to the surrender in any part of Her Majesty’s dominions other than such of the said crimes as may be proved by the facts on which the surrender is grounded.’
In our opinion when the question which arises in this case is to be faced by an English Court, in other words when an English Court has to decide whether the accused appearing before it following upon extradition can or cannot be prosecuted in view of the manner in which the extradition was conducted, the Court is not concerned with the treaty between this country and the country from which the fugitive is to come, and is even less concerned with any decision of the exporting Court ordering the return of the fugitive under the extradition law. If a British subject is in England charged with an offence alleged to have been committed in England, then the normal principle that he can be charged, the matter being within our jurisdiction, is to be applied without regard to external documents but subject only to section 19.”
C. The European Convention on Extradition
61. The European Convention on Extradition 1957 (“the ECE”) governs extradition between Switzerland and the United Kingdom. Under Article 1 of the Convention:
“The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.”
62. Article 2 deals with the need for dual criminality:
“1. Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty. Where a conviction and prison sentence have occurred or a detention order has been made in the territory of the requesting Party, the punishment awarded must have been for a period of at least four months.
2. If the request for extradition includes several separate offences each of which is punishable under the laws of the requesting Party and the requested Party by deprivation of liberty or under a detention order, but of which some do not fulfil the condition with regard to the amount of punishment which may be awarded, the requested Party shall also have the right to grant extradition for the latter offences.”
63. Article 14 deals with the principle of specialty:
“1. A person who has been extradited shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited, nor shall he be for any other reason restricted in his personal freedom, except in the following cases:
a. when the Party which surrendered him consents. A request for consent shall be submitted, accompanied by the documents mentioned in Article 12 and a legal record of any statement made by the extradited person in respect of the offence concerned. Consent shall be given when the offence for which it is requested is itself subject to extradition in accordance with the provisions of this Convention;
b. when that person, having had an opportunity to leave the territory of the Party to which he has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it.
...”
COMPLAINTS
The applicant complains under Article 5 § 1 of the Convention that the imposition of the four-year term of imprisonment in default of payment of the confiscation order was not lawful as it was in breach of the rule of specialty and was arbitrary as the District Judge acted beyond his powers in ordering the enforcement of the default term.
He complains under Article 6 § 1 that the breach of the specialty rule rendered the enforcement proceedings against him unfair.
Finally he complains under Article 18 that it was wholly unfair and arbitrary for a State having obtained personal jurisdiction over an individual by means of extradition on one ground to seek to use it for another purpose.
QUESTIONS TO THE PARTIES
(a) has there been a breach of the rule of specialty in the applicant’s case?
(b) was the decision to enforce the default term of imprisonment arbitrary, having regard in particular to the terms of the European Convention on Extradition 1957 and the misunderstanding between the British and Swiss authorities in the context of the extradition proceedings?
