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WOOLLEY v. THE UNITED KINGDOM - 28019/10 [2012] ECHR 613 (10 April 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/613.html
Cite as:
[2012] ECHR 613,
56 EHRR 15,
(2013) 56 EHRR 15
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FOURTH
SECTION
CASE OF
WOOLLEY v. THE UNITED KINGDOM
(Application
no. 28019/10)
JUDGMENT
STRASBOURG
10 April
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Woolley v. the
United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Päivi Hirvelä,
George
Nicolaou,
Ledi Bianku,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 20 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 28019/10)
against the United Kingdom of Great Britain and Northern Ireland
lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a British
national, Mr Raymond Woolley (“the applicant”), on 15
April 2010.
The
applicant was represented by Garstangs Solicitors, a firm of lawyers
based in London. The United Kingdom Government (“the
Government”) were represented by their Agent, Ms A. Sornarajah,
of the Foreign and Commonwealth Office.
3. The
applicant complained, under Articles 5 § 1 and 6 § 1, that
there had been a breach of the rule of specialty in the context of
his extradition from Switzerland to the United Kingdom and that the
subsequent enforcement of a default term of imprisonment, pursuant to
a confiscation order, and his ensuing detention were accordingly
unlawful.
On
3 January 2011 the President of
the Chamber decided to give notice of the application to the
Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1953 and is currently
detained at HMP Dovegate, Uttoxeter.
A. Background facts
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.
On
14 December 2003 the Court of Appeal dismissed the applicant’s
appeal against sentence.
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.
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. In February 2007 the full court of the Court of Appeal refused
the applicant’s renewed application for leave to appeal against
the confiscation order.
On
3 April 2007 an enforcement and receivership order was made against
the applicant in order to seek to recover the sums specified in the
compensation order, as only GBP 195,000 had been recovered by the
Official Receiver.
B. Extradition proceedings
12. 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”),
as a convicted person and as an accused person. The request was made
on the basis that the applicant had been convicted of conspiracy and
money laundering offences and was accused of an offence of escape
from lawful custody.
An accompanying witness statement by a Revenue
and Customs Prosecutor set out the offences of which the applicant
had been convicted, together with the relevant law. 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
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.”
In
diplomatic notes dated 31 March 2008 and 18 April 2008, the Swiss
Federal Office of Justice asked the British authorities for further
information relating to the acts committed by the applicant. On 1
April 2008 and 3 June 2008 the British Embassy replied to the
questions.
15. 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.
16. By
diplomatic note dated 13 August 2008, the Swiss 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.”
17. By diplomatic note of 28 August
2008 to the Swiss Federal Office of Justice, the British Embassy in
Berne enclosed the response of Her Majesty’s Revenue and
Customs Prosecution Office (“Prosecutor’s Office”). The
response 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 Mr Woolley 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 Mr Woolley. 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 was
made on 3 March 2005, the judge allowed Mr Woolley time to pay until
3 April 2006, and set a term of imprisonment in default of 4 years.
The order 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 sentence,
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 ...”
18. On
26 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.”
19. 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.”
20. 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 that the
request for extradition was not clear regarding whether it was also
requested for the offence of absconding and for non-payment of the
amount confiscated which were not punishable under Swiss law.
21. The
Federal Office of Justice ruled that since the Swiss Criminal Code
did not punish a person who absconded, the extradition would not be
granted for the act of absconding. It noted that the extradition was
not requested for the non-payment of the confiscation order and that
there was no need to ask the British authorities to give any
guarantees, as nothing suggested that they would not adhere to the
rule that a person could only be tried for the offence for which he
had been extradited.
22. 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.
23. 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 that the British Embassy had declared that
extradition was only being sought for the acts of absconding, and not
for non-payment of the confiscation order.
24. 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 that the British authorities had
expressly stated that extradition was not requested for non-payment
of the amount in the confiscation order and held that this statement
was sufficiently clear and appropriate for the purposes of removing
the applicant’s doubts.
25. 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:
“... The applicant authority had clearly waived
the right to apply for extradition for the sentence relating to
non-payment of the confiscation [order] ...”
26. On
10 March 2009 the applicant was extradited to the United Kingdom and
returned to prison to complete his sentence.
C. Enforcement proceedings
In
April 2009 the Prosecutor’s Office applied to Birmingham
Magistrates’ Court to enforce the four-year term of
imprisonment imposed on the applicant in default of payment of the
confiscation order.
28. On
5 May 2009 the head of the Swiss Federal Office of Justice sent an
email to the Prosecutor’s Office stating that this would amount
to a violation of the rule of specialty.
29. On
29 July 2009 the Prosecutor’s Office 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 Mr Woolley 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.”
30. Referring
to section 50 of the Criminal Appeal Act 1968 (see paragraph 55
below), the Prosecutor’s Office explained that the sentence for
the extradition offence was made up of more than one component, and
covered the prison sentence for 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.”
31. On
24 August 2009 the Federal Office of Justice wrote to the British
Embassy indicating that if the UK authorities intended to ask for the
extension of the extradition to include the non-payment of the
confiscation order, they would have to proceed in accordance with
Article 14 of the ECE (see paragraph 67 below).
32. On 4 September 2009 the
Prosecutor’s Office’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.
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 Prosecutor’s Office’s
application because the proceedings were an abuse of process; and an
order that the District Judge be prohibited from proceeding to
examine the Prosecutor’s Office’s application because it
constituted a breach of section 151 of the Extradition Act 2003 (“the
2003 Act” – see paragraphs 60-63
below).
On
25 September 2009 the Prosecutor’s Office 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.
35. On
5 October 2009 the High Court granted leave in respect of the
Prosecutor’s Office’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 Prosecutor’s Office’s claim.
On 19 November 2009 a hearing took place in both
claims. The court heard argument from counsel for both parties. At
the conclusion of the hearing, the High Court granted the
Prosecutor’s Office’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.
On 12 January 2010 the Magistrates’ Court
resumed the hearing of the Prosecutor’s Office’s
application. The District Judge ordered the applicant to serve the
four-year term.
On 15 January 2010 the High Court handed down its
reasoned judgment in the judicial review claims. It noted that this
was not a case where it was being suggested that there had been “a
deliberate abuse” of the extradition proceedings or that the
Swiss authorities were deliberately misled or that the extradition
proceedings were improperly manipulated.
39. The court held that it was
entirely satisfied that the default term formed part of the original
sentence, since it was an integral part of the confiscation order
which, it was common ground, was unarguably part of the original
sentence. It considered the argument that enforcement of the default
term involved proving the commission of a further separate offence to
be wholly artificial and had no hesitation in rejecting it.
40. 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, the court was again satisfied
that there was no substance in this submission, and held that the
Swiss reservation was the result of their misunderstanding of the
extent of the United Kingdom’s “clearly expressed
request”.
41. The court summarised the various
exchanges between the Swiss and British authorities prior to the
applicant’s extradition and agreed with counsel for the
Prosecutor’s Office 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. It
continued:
“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.”
It concluded 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.
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 Mr Woolley
in the circumstances of this case, notwithstanding the
misunderstanding of the position by the Swiss authorities and their
expressed reservation.”
44. It concluded that the decisions
and comments of the Swiss courts in respect of the default term for
non-payment of the confiscation order were simply not binding on the
courts of the United Kingdom and the rule of specialty had not been
infringed. For the reasons given, the court was satisfied that the
United Kingdom had not deliberately misled the Swiss authorities,
that it had always made its intentions clear and that there had been
no improper or unfair manipulation of the processes of extradition or
for the enforcement of the default term.
45. 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 against the judgment of the High Court. On
16 February 2010 the court refused the applications.
On
19 March 2010, by letter to the British Embassy, the Swiss 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.”
The
Federal Office of Justice indicated that if the British authorities
had enforced the four-year default term of imprisonment for
non-payment of the confiscation order, this would amount to a breach
of the rule of specialty.
48. 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.
On
26 June 2010 the British Embassy in Berne forwarded a Diplomatic Note
to the Swiss Government reiterating its contention that the
activation of the default term did not violate the principle of
specialty.
On
14 September 2010 the Swiss Federal Department of Justice responded
to the Note. It indicated that it disagreed with the interpretation
of the British authorities and courts of the rule of specialty and
reiterated that in its view subjecting the applicant to the default
term of imprisonment violated that rule. It requested the British
authorities either to request an extension of their extradition
request pursuant to Article 14 of the ECE (see paragraph 67
below) or to release the applicant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Confiscation orders
1. The United Kingdom
At the relevant time, section 71 of the Criminal
Justice Act 1988 (“the 1988 Act”) provided for the making
of confiscation orders. It imposed a duty on the court where the
possibility of imposing a confiscation order arose to act as follows
before sentencing:
“(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.”
The effect of section 75 of the 1988 Act and section
139 of the Powers of Criminal Courts (Sentencing) Act 2000 was that
if the Crown Court imposed a confiscation order, it could make an
order allowing time for the payment of the amount of the fine. It was
also required to make an order fixing a term of imprisonment which
the subject of the fine was to undergo if any sum which he was liable
to pay was not duly paid or recovered.
Section
75(5A) of the 1988 Act 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.”
The
provisions on confiscation orders in the 1988 Act were repealed and
replaced on 24 March 2003 by the Proceeds of Crime Act 2002. The
changes are not relevant to the present case.
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 ...”
Section 76 of the Magistrates’ Court Act 1980
gives the Magistrates’ Court the power to issue a warrant of
commitment to activate the default sentence imposed by the Crown
Court in the event of non-payment.
2. Switzerland
Under
Swiss law, an obligation on an individual to pay a certain sum of
money can arise in civil, administrative or criminal law.
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.
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 benefited 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.
B. Extradition
At the relevant time, the applicant’s
extradition was governed by section 151 of the Extradition Act 2003.
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.”
61. 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 [extraditing] ... 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
[extraditing] territory.”
62. 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.”
63. 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.
As
of 25 January 2010, section 151 of the 2003 Act was replaced by
section 151A, in similar terms.
III. THE EUROPEAN CONVENTION ON EXTRADITION
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.”
Article 2 deals with the need for dual criminality and
provides that extradition is to be granted in respect of offences
punishable under the laws of both the requesting Party and the
requested Party.
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.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained 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 relied on
Article 5 § 1 of the Convention, which reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court;
...”
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
a. The applicant
The
applicant contended at the outset that detention
in breach of the rule on specialty was capable of violating Article 5
§ 1 of the Convention. As to whether that rule had been
breached in his case, he insisted that, contrary to the findings of
the High Court, he was not only dealt with for the offences for which
he was extradited. He considered that this Court could reach its own
judgment as to whether specialty had been breached in his case,
emphasising that this Court was the final arbiter of Convention
rights and that even where there was a question of compliance with
domestic law, the Court was required to exercise a power of review.
In
particular, the applicant disputed that Phillips v. the United
Kingdom, no. 41087/98, ECHR 2001 VII, was authority for the
proposition that the enforcement of a confiscation order was part and
parcel of the original sentence imposed. He pointed out that Phillips
was concerned with the making of the confiscation order itself, and
not the proceedings to enforce the term of imprisonment in default of
payment. The applicant noted the Court’s judgment in Crowther
v. the United Kingdom, no. 53741/00, 1 February 2005, to the
effect that the entirety of the proceedings from the criminal charge
until the enforcement of the confiscation order were to be considered
as one set of proceedings for the purposes of Article 6 § 1.
However, he asked the Court to consider this finding afresh in the
context of his case.
The
applicant further argued that the United Kingdom was not permitted to
ignore the reservations expressed by the Swiss authorities when
granting the extradition request. It was clear that extradition was
granted on the basis that the default sentence could not be imposed.
The applicant did not accept that there had been any
misunderstanding. Even if there had been a genuine misunderstanding
as regards the true intent of the Prosecutor’s Office, the fact
remained that the decisions of the Swiss courts were unambiguous and
remained in force. The appropriate remedy for the Prosecutor’s
Office was to seek consent for the enforcement proceedings under
Article 14(1)(a) ECE and section 151(3)(c) of the 2003 Act.
b. The Government
The
Government emphasised that the rule of specialty set out in Article
14 ECE was given full effect in domestic law by the 2003 Act. They
argued that the applicant was only dealt with for the offence for
which he was extradited, namely conspiracy to cheat the public
revenue, and was not proceeded against or sentenced in respect of any
other offence. They maintained that the confiscation order was a
financial penalty in respect of the offence of conspiracy to cheat
the public revenue and that the custodial term in default involved no
accusation or enquiry into any other offence. Both were part of the
original sentence imposed on the applicant. They considered this
analysis to be consistent with the Court’s judgments in
Phillips, cited above, § 32, and Crowther, cited
above.
The
Government further observed that the applicant’s submissions
had been fully argued before the domestic courts and had been
rejected. The High Court had delivered a fully reasoned judgment
which had looked carefully at the relevant domestic legal provisions
and the particular facts of the applicant’s case. It found that
there had been no breach of the rule of specialty. The Government
pointed out that it was not the Court’s function to substitute
its own judgment for that of the national courts or to act as a
fourth instance appeal.
As
regards the position of the Swiss authorities, the Government made
two points. First, they considered that the High Court was correct to
hold that the Swiss authorities had misunderstood the basis of the
extradition request. Second, they argued that any difference of
understanding between the Swiss and British authorities had no
bearing on the specialty rule as it applied in the applicant’s
case. It was a matter of domestic law, involving the application of
section 151 of the 2003 Act to the facts of his case.
2. The Court’s assessment
a. General principles
Where
the “lawfulness” of detention is in issue, the Convention
refers essentially to national law but may also refer, where
appropriate, to other applicable legal standards, including those
which have their source in international law (see Medvedyev and
Others v. France [GC], no. 3394/03, § 79, ECHR 2010).
In all cases, it establishes the obligation to conform to the
substantive and procedural rules of the laws concerned (see Öcalan
v. Turkey [GC], no. 46221/99, § 83, ECHR 2005 IV;
Saadi v. the United Kingdom [GC], no. 13229/03, § 67,
ECHR 2008; and Medvedyev and Others, cited above). It is in
the first place for the national authorities, notably the courts, to
interpret and apply domestic law, even when that law refers to
international law or agreements, and it is for the Court to assess
whether the effects of such adjudication are compatible with the
Convention (Bosphorus Hava Yolları Turizm ve Ticaret Anonim
Şirketi v. Ireland [GC], no. 45036/98, § 143, ECHR
2005 VI). However, since under Article 5 § 1 failure
to comply with domestic law entails a breach of the Convention, it
follows that the Court can and should exercise a certain power to
review whether this law has been complied with (see Benham v. the
United Kingdom, 10 June 1996, § 41, Reports of Judgments
and Decisions 1996 III; Öcalan, cited above, §
84; and Schönbrod v. Germany, no. 48038/06,
§ 82, 24 November 2011).
It
is further clear that compliance with the law is not sufficient in
order for a deprivation of liberty to be considered “lawful”.
Article 5 § 1 also requires that any deprivation of liberty
should be in keeping with the purpose of protecting the individual
from arbitrariness (see Bouamar v. Belgium, 29 February
1988, § 47, Series A no. 129; Chahal v. the United Kingdom,
15 November 1996, § 118, Reports 1996 V; Saadi,
cited above, § 67; and Medvedyev and Others, cited
above, § 79). The Court has not set out an exhaustive list
of what types of conduct on the part of the authorities might
constitute arbitrariness for the purposes of Article 5 § 1, but
it has indicated that detention will be “arbitrary”
where, despite complying with the letter of national law, there has
been an element of bad faith or deception on the part of the
authorities (see Bozano v. France, 18 December 1986, §
59-60, Series A no. 111; Čonka v. Belgium, no. 51564/99,
§§ 40-42, ECHR 2002 I; and Saadi, cited above,
§ 69).
b. Application of the general principles
to the facts of the case
The
applicant’s complaint is directed at the alleged breach of the
rule of specialty following his extradition from Switzerland and its
consequences in respect of the lawfulness and freedom from
arbitrariness of the enforcement of the default term and the ensuing
detention. The Court will therefore examine whether his detention
pursuant to the default term of imprisonment fixed under the
confiscation order is compatible with Article 5 § 1 in light of
the arguments he has raised.
As
to whether the applicant’s detention pursuant to the default
term is lawful, the Court emphasises at the outset that the detention
is based on an order of the Magistrates’ Court (see paragraph
37 above). The Court further observes that
section 76 of the Magistrates’ Court Act 1980 gives the
Magistrates’ Court the power to issue a warrant to activate the
default sentence in the event of non-payment of a confiscation order
(see paragraph 56 above).
Concerning
the applicant’s specific complaint that a breach of the rule of
specialty occurred in his case, the Court notes that this rule is set
out in Article 14 of the ECE (see paragraph 67
above), the treaty pursuant to which the applicant was extradited
from Switzerland to the United Kingdom. At the relevant time, it was
reflected in domestic legislation in section 151 of the 2003 Act,
which governed extradition from Switzerland (see paragraphs 60-63
above). The Court reiterates that it was for the domestic courts in
the first instance to interpret and apply the relevant provisions of
domestic and international law, including the requirements of the
rule of specialty, subject to the review of this Court. It will
therefore turn to consider the conclusions of the High Court on the
question of compliance with the rule of specialty in the applicant’s
case, and to examine whether those conclusions were, in the
circumstances, reasonable and free from arbitrariness.
In
the context of the judicial review proceedings, the High Court
considered the compatibility of the enforcement proceedings against
the applicant with Article 14 of the ECE and section 151 of the 2003
Act. It concluded that as a matter of domestic law, the default
term of imprisonment formed part of the original sentence for the
offence of conspiracy to cheat the public revenue. It reached this
conclusion because it found the default term to be an integral part
of the confiscation order which, as was common ground between the
parties, was unarguably part of the original sentence (see paragraph
39 above). On this basis it found that the
imposition of the default term did not offend against Article 14 of
the ECE or section 151 of the 2003 Act (see paragraph 42
above).
The
Court sees no reason to disagree with the findings of the High Court
on the question of the interpretation and application of the rule of
speciality in the context of confiscation orders and, in particular,
the enforcement of default sentences of imprisonment, under sections
71 and 75 of the 1988 Act (see paragraphs 51-52
above). It observes that the applicant was legally represented in the
enforcement proceedings and had the opportunity to make oral
submissions (see paragraph 36 above). At the
conclusion of the hearing, the High Court gave detailed reasons for
its findings (see paragraphs 38-42
above). The Court notes that the finding that the default term was an
integral part of the confiscation order, which was in turn part of
the original sentence, does not appear to be unreasonable or
arbitrary, and refers in this regards to its own finding in the case
of Crowther, cited above, to the effect that the enforcement
of a confiscation order by imposition of the default term of
imprisonment did not involve the bringing of any new “criminal
charge” for the purposes of Article 6 § 1 (see §
25 of the Court’s judgment). In so far as there exists a
dispute between the two States concerned regarding whether the
specialty rule has been breached, the Court observes that the ECE
does not contain a dispute resolution mechanism and considers that it
is not for this Court to resolve what is essentially a diplomatic
dispute.
As
to the applicant’s argument that his detention was arbitrary as
a result of the failure of the courts to take into account the
reservations of the Swiss authorities, the Court emphasises that he
does not allege bad faith or an intention to deceive in respect of
the United Kingdom authorities (see paragraph 38
above). Indeed, the High Court specifically found that the United
Kingdom had not deliberately misled the Swiss authorities, that it
had always made its intentions clear and that there had been no
improper or unfair manipulation of the processes of extradition or
for the enforcement of the default term (see paragraph 44
above). At most, the applicant relies on a misunderstanding by the
Swiss authorities of the position of the United Kingdom in the
extradition proceedings. The Court considers that any such
misunderstanding did not render the applicant’s detention
arbitrary in all the circumstances of the case. It reiterates in this
regard that the applicant’s detention was based on the
provisions of the 1988 Act and on a lawful order handed down by a
court competent to make such an order. In the context of the
enforcement proceedings and, subsequently, the judicial review
proceedings, he was able to argue his case fully before the judge
(see paragraphs 32 and 36
above). The High Court concluded that the extradition request made by
the United Kingdom authorities was expressed in a clear manner (see
paragraphs 40-41 above).
In
view of the above, the Court is satisfied that the applicant’s
detention was lawful pursuant to Article 5 § 1 (a) of the
Convention.
There
has accordingly been no violation of Article 5 § 1 of the
Convention.
II. ALLEGED VIOLATIONS OF OTHER ARTICLES OF THE CONVENTION
The
applicant complained that the breach of the
specialty rule rendered the enforcement proceedings against him
unfair. He relied on Article 6 § 1 of the
Convention, which provides in so far as relevant:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law ...”
He
further complained 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. He relied on Article 18 of the Convention, which provides:
“The restrictions permitted under [the] Convention
to the said rights and freedoms shall not be applied for any purpose
other than those for which they have been prescribed.”
The
Court has accepted the finding of the High Court that the decision to
impose the default term of imprisonment did not involve a breach of
the rule of specialty. Accordingly, in the
light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds no
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols arising from these complaints. They
must therefore be declared manifestly ill-founded and therefore
inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint
concerning Article 5 § 1 of the Convention admissible and the
remainder of the application inadmissible;
Holds that there has been no violation of
Article 5 § 1 of the Convention.
Done in English, and notified in writing on 10 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech
Garlicki
Registrar President
