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Cite as: [2000] EWHC Admin 329

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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
	- and -
	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.