England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th June 2002

Mr Justice Nelson :

1. The Applicant, who is a British national, is the subject of an extradition request made by the Government of the Netherlands. He has been tried, convicted and sentenced in his absence in the Netherlands on 30th November 1999 in respect of offences involving the smuggling of large consignments of cannabis.
2. The Applicant was arrested on a vessel in Southampton on the 17th January 2001, and a formal extradition request was made on the 25th January 2001. On the 8th March 2001 Authority to Proceed was granted by the Secretary of State pursuant to section 7 of the Extradition Act 1989, and on the 4th May 2001 the Applicant was committed on conditional bail under section 9(8)(a) of the Act in respect of some of the committal charges bought against him, whilst others were discharged.
3. He challenges his detention on conditional bail seeking a Writ of Habeas Corpus ad Subjiciendum.

The Charges.

4. The committal charges allege conduct which, had it occurred within the jurisdiction of the United Kingdom, would have constituted the offences set out in those same committal charges. There are four charges in relation to each of four consignments. Each group of four alleges a) conspiracy with others fraudulently to evade the prohibition on the importation of a controlled drug of Class B; b) being knowingly concerned in a fraudulent evasion or attempt to evade the prohibition on the importation of a controlled drug of Class B; c) possessing a controlled drug of Class B with intent to supply to another; and d) possession of a controlled drug of Class B. There is in addition an ‘over-arching’ conspiracy charge alleging a conspiracy to commit the offences set out in charges 1 - 16.
5. The first group of charges relates to an attempt to import 19,188 kg of hashish into the Netherlands from Morocco on board two vessels, namely the ‘Canute’ and the ‘Onderneming’. The Applicant is alleged to have been concerned in purchasing the vessel ‘Canute’, recruiting the crew, organising the transport from Morocco to the Netherlands, and transferring the drugs from the ‘Canute’ onto the ‘Onderneming’. The vessels were intercepted in the North Sea by the Dutch authorities on the 23rd December 1998 when the Applicant, along with eleven others, was arrested on board. Charges 1, 2, 3 and 4 relate to this consignment.
6. Charges 5, 6, 7 and 8, relate to an attempt to import 13,000 kg of hashish into the Netherlands from Morocco on board the vessel ‘Guerrero’. The Applicant’s involvement in this consignment was again alleged to have been substantial. The vessel ran into a storm and was rescued off the Spanish coast by a Dutch Navy vessel. The crew of that vessel were prosecuted and sentenced in Spain. The Applicant, who had not been on board, was prosecuted in the Netherlands, but on this group of charges he was acquitted.
7. Charges 9, 10, 11 and 12, were concerned with a successful importation of an unknown quantity of hashish into the Netherlands from Morocco on board the vessel ‘Judith’. That vessel was not intercepted and the drugs never recovered. The evidence as to the importation and the Applicant’s involvement in this consignment was proved by the statements of his co-conspirators.
8. Charges 13, 14, 15 and 16, concerned another successful importation of an unknown quantity of hashish into the Netherlands from Morocco on board the vessel ‘Blue Spirit’. Like the importation in the third consignment, this vessel was not intercepted and the drugs never recovered but the Applicant’s co-conspirators made statements to the fact of importation and the Applicant’s involvement.

Proceedings in the Netherlands.

9. The matter was heard in the Applicant’s absence in November 1999 because he had failed to answer to his bail either on the due date or on the adjourned hearing.
10. The appeal both on behalf of the Applicant against his convictions, and the Dutch prosecuting authorities against the acquittals on charges 5 - 8 was listed before the Dutch Court of Appeal on the 25th January 2001, but due to a defect in the service of the Notice of Summons and Accusation, the Notice was invalidated and the hearing not effective. A new appeal date has yet to be scheduled. The appeal to the Court of Appeal in the Netherlands, involves a full reconsideration of the facts.

The proceedings before the District Judge at Bow Street Magistrates Court.

11. The Applicant contended that there was no jurisdiction in relation to charges 1 - 4 (the interception in the North Sea of the ‘Canute’ and the ‘Onderneming’) and 5 - 8 (the rescue of the ‘Guerrero’ off the Spanish Coast). Lack of jurisdiction was not alleged in relation to charges 9 - 16 as these related to the ‘Judith’ and ‘Blue Spirit’ importations both of which successfully reached the Netherlands and hence no challenge to jurisdiction could arise. A challenge to those charges was to be made but submissions were reserved on the basis that the decision in Foy -v- the Governor of HM Prison Brixton and the Government of France Transcript 14th April 2000 was binding on the lower court.
12. The essence of the Applicant’s submissions at committal was that the Authority to Proceed (ATP) alleged intra-territorial conduct, whereas the only conduct under the 1989 Act was extra-territorial conduct. It would not therefore, when transposed, have been justiciable in the UK. There was no evidence to show that the ships flew the Dutch flag or that they were seized in Dutch territorial waters and hence there was no evidence of ‘conduct in the territory of a foreign state..’ under section 2(1)(a) of the Extradition Act 1989. Since the conduct occurred at sea the provisions of section 281 of the Merchant Shipping Act 1995, or some other provision of statute or common law, had to be satisfied to confer intra-territorial jurisdiction.
13. There was however no basis for finding intra-territorial jurisdiction. It was not averred that the Applicant was a Dutch national or on board a Dutch ship; indeed in respect of charges 5 - 8 the Dutch court acknowledged that the Applicant was a British national and that he was, in respect of those charges, on a British ship. The Dutch District Court therefore declined jurisdiction.
14. The District Judge accepted these submissions in relation to those charges which related to the possession of cannabis with intent to supply and simple possession, holding that he was not satisfied that the two vessels were flying the Dutch flag and that when the transposition exercise was applied to the conduct alleged, the Merchant Shipping Act 1995 would not give jurisdiction to the British courts where it could not be established that either were British vessels. He discharged charges 3 and 4 and 7, and the Dutch Government conceded that 8 should be discharged.
15. The Applicant contended that the same arguments held good for the conspiracy and attempt charges as they too were extra-territorial. The agreement, which is the ‘conduct’ under the Act for a conspiracy, took place outside the jurisdiction and it mattered not that the consequences of the conspiracy would occur within the jurisdiction. The attempts were also extra-territorial conduct and hence the same argument applied. The fact that under English law it is an offence to conspire outside the jurisdiction to commit an offence within it (Somchai Liangsiriprasert -v- Government of the United States of America [1991] 1 AC 225) or that an attempt to fraudulently evade the prohibition on the importation from outside the jurisdiction may be justiciable within it (R -v- Wall 59 Cr. App R 58) does not alter the fact that both the conspiracies and the attempts were extra-territorial and hence had to be the subject of an extra-territorial ATP.
16. The District Judge rejected the arguments in relation to the inchoate offences, the conspiracies and the attempts, on the grounds that those offences could be said to be intra-territorial without the need to prove the flags under which the ships were sailing. He therefore rejected the contentions in relation to charges 1, 2, 5 and 6 and committed the Applicant upon those charges.
17. As indicated earlier the District Judge, bound by the case of Foy committed the Applicant in respect of charges 9 - 16 inclusive and also in respect of the over-arching conspiracy charge 17.

The submissions to the Divisional Court.

18. The Applicant renewed his submission that there was no jurisdiction in relation to the conspiracy and attempt charges relating to the consignments which had either been in the vessels intercepted, or the vessel which had foundered off the Spanish coast, (1, 2, 5 and 6). The District Judge should have applied the same reasoning when considering conspiracy and attempt as he applied to possession with intent to supply and possession. The Court had to look at the conduct itself not at the intended consequences of such conduct. In the case of both the conspiracies and the attempts the relevant conduct was extra-territorial and hence there was no jurisdiction.
19. Insofar as charges 9 - 16 are concerned the Applicant reserved his right to contend that Foy was wrongly decided without seeking to contend that this Court should declare it to be so. The Applicant has therefore left open the argument deployed in Foy and based on the fact that the 1989 Act did not retain the deeming provision which had existed under the Extradition Act 1870 and the Fugitive Offenders Act 1967. These had provided that a person convicted in his absence was to be deemed a person accused, and as the 1989 Act made no such provision in respect of European Convention states, whereas it expressly did so in relation to the Commonwealth and Colonies scheme and the bi-lateral arrangements with e.g. the USA, such a deeming provision could no longer be said to exist in relation to European Convention states.
20. If the submissions made as to jurisdiction in respect of charges 1, 2, 5 and 6 failed, the Applicant’s submissions in relation to charges 9 - 16 would apply equally to charges 1 and 2, and indeed to charges 5 and 6 if those two charges were successfully appealed by the Dutch Government.
21. In relation to charge 17, the over-arching conspiracy, it was contended that if the Applicant succeeded in his arguments in respect of some but not all of the committal charges, charge 17 would inevitably offend the rule of specialty under section 6(4) of the Act, and hence should be discharged. Were that not to be the case the Applicant would be tried for an offence or offences within the over-arching conspiracy for which he had not been extradited.
22. The Respondents submit that the Applicant’s contentions are ill-founded and that jurisdiction is made out in relation to charges 1 and 2 and 5 and 6 for any or all of five alternative reasons. Firstly, the only inference to be drawn from the Dutch District Court’s findings is that the vessel ‘Onderneming’ must have been flying a Dutch flag and that when the facts are transposed British intra-territorial jurisdiction was established. Secondly a conspiracy entered into abroad to commit a crime in England is triable in the English courts (Re: Somchai and R -v- Sansom [1991] 92 Crim. App R 115 ) and such a conspiracy, to import cannabis into the UK, is intra-territorial. Thirdly in relation to attempts, jurisdiction is expressly provided by section 1(4) of the Criminal Attempts Act 1981 and the offences are intra-territorial. Fourthly under section 22(6) of the 1989 Act charges 1, 2, 5 and 6 are deemed to have been committed within the territory of the Netherlands and are therefore intra-territorial. Fifthly sections 2(1)(a) and (b) of the Act are alternative rather than mutually exclusive so that if only extra-territorial jurisdiction exists under section 2(1)(b) the court is not bound by the terms of the ATP to consider only section 2(1)(a) (R -v- Bow Street Metropolitan Stipendary Magistrates ex-parte Pinochet Ugarte (No 3) [2001] 1 AC 147.
23. In the course of argument Mr John Hardy on behalf of the Applicant accepted that the Respondents points in relation to the inchoate offences of conspiracy and attempt, and in relation to the deeming provisions of section 22(6) of the Act, were the severest obstacles to his application. I am of the clear view that these points are in fact insuperable to the Applicant and provide the relevant jurisdiction.

1. Inference as to the flag of origin.

24. It is submitted that Dutch jurisdiction had to be based either upon the vessel flying the Dutch flag or the Defendant being of Dutch nationality. In the case of the ‘Guerrero’ the court ruled that the Netherlands did not have jurisdiction as that vessel was sailing under the British flag and Mr Goatley was of British nationality. It must follow, the Respondents submit, that the Dutch Court found that it did have jurisdiction in relation to the ‘Onderneming’ because it was flying the Dutch flag. That is the only possible inference and under section 9(8)(a) provides sufficient information to justify a prima facie case. Such inferential reasoning is permitted by Athanassiadis -v- the Government of Greece (note) [1967] 1971 AC 282.
25. Furthermore there was no evidence from the Applicant to say that jurisdiction could have been founded upon anything other than the Dutch flag.
26. The Applicant responds that here there is no evidence as to where the ship was at sea nor under whose flag it was flying. It is not possible to draw a positive inference from that negative state of the facts. There may be other reasons why there was no jurisdictional bar of which this Court is simply unaware.
27. In view of my conclusion in respect of the second, third and fourth points it is not necessary for me to decide this point though, for my part, I would be reluctant to draw the inference for which the Respondent contends on the information available when the actual basis upon which jurisdiction was accepted is simply not known, and could have been readily obtained.

2. The Conspiracy was intra-territorial.

28. Whether the conspiracy is contrary to common law, or, as here, the Criminal Law Act 1977, an inchoate crime committed abroad which is intended to result in the commission of criminal offences in England is justiciable in England. (Re: Somchai and R -v- Sansom see also DPP -v- Stonehouse [1978] AC 55 and Treacy -v- DPP [1971] AC 573.)
29. The Applicant submits that Re: Somchai, which was decided after the 1989 Act, may extend intra-territorial domestic jurisdiction but the question which must be asked is what is the relevant ‘conduct’ under section 2 of the Act. In conspiracy the conduct is the agreement, not its intended consequence. Furthermore the conduct is fixed by its location and has to be ‘in the territory’ under section 2. It is therefore the conduct alone which is the extradictable crime.
30. Mr Summers, on behalf of the Respondent, submits that Re: Somchai and R -v- Sansom and R (Al Fawwaz & others) -v- Governor of Brixton Prison & others [2002] 2WLR 101 para 72 and 111 - 112 are, in so far as they can be viewed as extending UK jurisdiction, all examples of intra-territorial jurisdiction. There may be cases where the offence to which the conspiracy relates is itself extra-territorial and hence the conspiracy to do that offence would also be extra-territorial. Here, however, one is dealing with the importation of cannabis under section 170(2) of the Customs and Excise Management Act 1979, which is itself an intra-territorial offence. It follows therefore that a conspiracy to import cannabis under section 1 of the Criminal Law Act 1977 remains intra-territorial. Thus this is a section 2(1)(a) case.
31. I am satisfied that the Respondent’s submissions are correct. There can in my judgment be no answer to the proposition that the importing of cannabis is an intra-territorial offence, as is a conspiracy to commit that offence. (See R -v- Wall [1974] 59 Crim App R 58.)

3. The attempts.

32. The Respondents submit that the principle in Re: Somchai applies equally to attempt as to conspiracy as they are both inchoate offences. Provided the offence, if completed, is to take effect in the United Kingdom jurisdiction will exist. Section 1(4) of the Criminal Attempts Act 1981 refers to any offence ‘which if it were completed would be triable in England and Wales..’. This indicates that attempt is a ‘result’ crime, to which the principles in Re: Somchai apply.
33. The same arguments, in essence, are made by each side in relation to the attempts as to the conspiracy charges. I conclude that the attempts to evade the prohibition on the importation of the drug are also intra-territorial offences and accept the Respondents submissions.

4. Section 22(6) of the 1989 Act.

34. The Respondents submit that even if the facts do not fall within the principles of intra-territorial jurisdiction, the provisions of section 22(6) of the Act deem the offences to be intra-territorial for the purposes of these proceedings.
35. The heading of section 22 is:-

“Extension of purposes of extradition for offences under Acts giving effect to International Conventions”. The section provides that:-

“.. for the purposes of general extradition procedures under Part III of this Act, in their application.. as between the United Kingdom and any other state, any act or omission, wherever it takes place, which constitutes (a) an offence mentioned in this section and (b) an offence against the law of that state shall be deemed to be an offence committed within the territory of that state..”.

36. Drug trafficking offences under the Drug Trafficking Act 1994 are specifically included as relevant offences under section 24(4)(h), being offences contrary to the Vienna Convention.
37. It is not disputed that charges 1 and 2 and 5 and 6 are drug trafficking offences within the section. The Respondents argue that wherever such offences take place they are deemed to be offences within the territory of the Netherlands and equally when transposition takes place intra-territorial offences in the UK. Re: Pinochet demonstrates that if section 22(6) applies, the fiction is assumed, and then transposed under section 2(1)(a) in order to see if jurisdiction under that section is present. It is, the Respondents submits, plainly present here.
38. The Applicant submits that the Respondents give too wide an effect to section 22(6). Its sole effect is to remove any issue in extradition proceedings relating to the jurisdiction of the foreign state. The fiction should not be stretched further, as the facts still have to be transposed, and the conduct assessed. Section 22(6) does not make conduct take place in a place other than where it in fact occurred. The conduct here is extra-territorial and section 22(6) does not alter that.
39. Furthermore when looking at these matters as a whole the Acts should not be given a purposive interpretation but a literal interpretation so as to ensure that the protection of the subject of extradition proceedings is not unduly diminished. The purposive interpretation of the Treaty should not therefore be given the stronger balance.
40. On this latter submission the Respondents relies upon the dictum of Lord Justice Brooke in R -v- The Governor of Brixton Prison, ex-parte Lodhi [2001] unreported March 3 in which he said:-

“As the preamble to the Vienna Convention shows, the states which were parties to it recognised that illicit traffic in narcotic drugs was an international criminal activity, the suppression of which demanded urgent attention and the highest priority. They expressed deep concern about the magnitude of the illicit production of such drugs, which ‘pose a serious threat to the health and welfare of human beings and adversely effect the economic, cultural and political foundations of society’, and recognised ‘the importance of strengthening and enhancing effective legal means for international co-operation in criminal matters for suppressing the international criminal activities of illicit traffic’.. Article 6(7) contains an undertaking by the parties to the convention ‘to simplify evidentiary requirements relating (to extradition procedures) in respect of any offence to which this article applied’..”

41. Again I am satisfied that the Respondents submissions are correct. Where section 22(6) applies, which on its face it does here, the offences are deemed to be committed within the territory of the foreign state, and that fiction is continued when the matter is transposed for consideration under section 2(1)(a). Section 18 of the Criminal Justice (International Co-operation) Act 1990 provides that anything which will constitute a drug trafficking offence, if done on land in any part of the United Kingdom, shall constitute that offence if done on a British ship. The purpose of both that section and the Vienna Convention is to facilitate jurisdiction in order to deal with the evils of drug trafficking. Section 22(6) should be construed in accordance with that purpose and I see no reason why such a construction should be said to wrongfully diminish the rights of the subject of extradition proceedings.
42. Under this provision as well therefore it is my view that there is jurisdiction.

5. Section 2(1)(b).

43. It is unnecessary for me, in view of the findings I have already made, to determine whether or not sections 2(1)(a) and 2(1)(b) are alternatives rather than mutually exclusive.

Conclusion.

44. I conclude that there is therefore jurisdiction in relation to charges 1, 2, 5 and 6 to which this application relates and that the application for habeas corpus therefore fails.
- - - - - - - - - - - - -

LORD JUSTICE KENNEDY: For the reasons set out in the judgments which have been handed down this application for Habeas Corpus fails. Yes, Mr Hardy.PRIVATE 

MR HARDY: May I apologise for the fact that I sent through rather late in handwritten form the faxed observation that according to my reading of my Lord Nelson J's judgment in paragraph 25 it was that there was no evidence from the respondent to this application.

LORD JUSTICE KENNEDY: I think for the reasons he will explain for you -- we have had a word about this--

MR HARDY: I am very grateful.

LORD JUSTICE KENNEDY:--that is not saying quite what you think it is. I will leave it to him rather than to me because it is his wording.

MR HARDY: I will take it from my Lord, Kennedy LJ, without further ado.

MR JUSTICE NELSON: Mr Hardy, I have in fact checked my note as well as my recollection and that does accurately express what was submitted by the respondent. It does not deal--

MR HARDY: Yes.

MR JUSTICE NELSON: --with the reference that you made in relation to--

MR HARDY: Yes.

MR JUSTICE NELSON: --there might have been a case stated in respect of the Dutch decision. It refers to another parallel submission, but in fact made by the respondent, of which I have an expressed note.

MR HARDY: My Lord, I am very grateful and my correction stands corrected itself. My Lords, I have two applications. The first is for leave to appeal. I make that application solely on the ground that I have left open, that is to say the so-called Foy point.

LORD JUSTICE KENNEDY: Yes.

MR HARDY: I am very conscious that it is the practice of this court not to burden their Lordships unnecessarily. I can only make this submission that it is a point, in our respectful submission, of some substance and the issue of what affect section 6(2) of the Act had and how the scheme was altered is, in my respectful submission, an issue worthy of consideration by their Lordships. I cannot put the matter any more strongly than that.

LORD JUSTICE KENNEDY: Thank you very much. I think we have to leave it to their Lordship's House to decide. You have made the necessary application here.

MR HARDY: I am very grateful and, lastly, my Lord, legal aid assessment.

LORD JUSTICE KENNEDY: You may have that.

MR HARDY: I am grateful.

LORD JUSTICE KENNEDY: Thank you very much.