QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BLETA||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR K QURESHI (instructed by The Treasury Solicitor) appeared on behalf of the DEFENDANT
MR M SUMMERS & MR A DUNKELS (instructed by the Crown Prosecution Service, Casework Directorate, London) appeared on behalf of the Government of Albania as Interested Party
Crown Copyright ©
"(1) The Secretary of State must issue a certificate under this section if he receives a valid request for the extradition to a category 2 territory of a person who is in the United Kingdom.
(3) A request for a person's extradition is valid if -
(a) it contains the statement referred to in subsection (4), and
(b) it is made in the approved way."
I pause to say that there is no issue that this request was made in the approved way. Subsection (4) reads:
"The statement is one that the person -
(a) is accused in the category 2 territory of the commission of an offence specified in the request, or
(b) is alleged to be unlawfully at large after conviction by a court in the category 2 territory of an offence specified in the request."
The request here was made pursuant to section 70(4)(b), namely on the basis that there had been a conviction and, by implication at least, that the claimant was unlawfully at large.
"CERTIFICATE ISSUED PURSUANT TO SECTION 70 OF THE EXTRADITION ACT 2003.
Under section 70 of the Extradition Act 2003, the Secretary of State hereby certifies that the request from Albania, being a territory designated for the purposes of Part 2 of that Act, for the extradition of Fatmir Bleta is valid and has been made in the approved way."
"Article 1 - The obligation to extradite
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."
Under Article 12, headed "The request of supporting documents", paragraph 1:
"The request shall be in writing and shall be addressed by the Ministry of Justice of the requesting Party to the Ministry of Justice of the requested Party..."
Then other channels of communication are referred to. Paragraph 2:
"The request shall be supported by:
a. The original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party."
There are then other requirements for documents supporting the request.
"In approaching the main issue two important principles are to be borne in mind. The first is expressed in the well known dictum of Lord Russell of Killowen CJ in In re Arton (No 2)  1 QB 509, 517 where he said:
'In my judgment these treaties ought to receive a liberal interpretation, which means no more than that they should receive their true construction according to their language, object, and intent.'
I also take the judgment in that case as good authority for the proposition that in the application of the principle the court should not, unless constrained by the language used, interpret any extradition treaty in a way which would 'hinder the working and narrow the operation of most salutary international arrangements'. The second principle is that an extradition treaty is 'a contract between two sovereign states and has to be construed as such a contract. It would be a mistake to think that it had to construed as though it were a domestic statute': Reg v Governor of Ashford Remand Centre, Ex parte Beese  1 WLR 969, 973, per Lord Widgery CJ. In applying this second principle, closely related as it is to the first, it must be remembered that the reciprocal rights and obligations which the high contracting parties confer and accept are intended to serve the purpose of bringing to justice those who are guilty of grave crimes committed in either of the contracting states. To apply to extradition treaties the strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose."
Lord Bridge was referring to a difference between the construction of extradition treaties and domestic legislation. However, in In Re Ismail  AC 320, Lord Steyn, in the House of Lords, at pages 326-327, extended that principle of a broad and generous construction of extradition treaties to extradition statutes. I fully accept, in the light of those authorities, that a purposive construction should be adopted in construing the 2003 Act.
"Ministry of Justice of the Republic of Albania, in reliance to Article 12 of European Convention on Extradition, forwards its request for extradition from the United Kingdom of the Albanian citizen Fatmir Bleta ..."
(The omitted words refer to details of his identity, but identity is not in dispute).
"Convicting the citizen Fatmir Bleta and sentencing him to 13 years imprisonment for the criminal offence of 'murder' and 'illegal weapon possession' committed on 15.09.1998."
There are then set out the documents attached, namely: the decision of the first instance court; the decision imposing the security measure "arrest in prison"; a report on the criminal offence by the district prosecutor; the birth certificate of Fatmir Bleta; and, the text of applied legal provisions. The legal provisions included simply related to the available sentences for the relevant offences.
"Complaint can be taken against this decision at the Appeal Court of Tirane, within 10 days since the following day of pronouncement of this decision.
Then there are signatures and there is a note that the document contains a seal certifying that the decision has become final. Indeed, if one looks at the document in Albanian, it is clear that, although the original order was dated 19th May 1999, they is certainly at least some kind of stamp and a hand-written date, 29th May 1999, which would be entirely consistent with the note at the bottom of the translation.
"49. In my judgment, the test of whether a conviction is for contumacy involves examining the nature of the conviction itself and the extent to which it is regarded as final in the jurisdiction of the requesting country. As is pointed out in the cases cited, there is no statutory definition of contumacy. It is a question of fact to be based on expert evidence about the law of the requesting country. The mere fact that the 'conviction' in question is recorded as a conviction until set aside is not determinative. Nor is the fact that there are procedures open to the applicant to challenge the conviction.
50. If, on the one hand, the courts of the requesting country regard the conviction as provisional, and subject to automatic revocation on the applicant's submission to the jurisdiction, or susceptible as a matter of course to successful challenge by the applicant, then, no doubt, the conviction will be regarded as 'for contumacy'. But where the law and procedures make it quite clear that the court regards its decision as final, then it will not be regarded as for contumacy; of itself, the availability of procedural rights to apply to have it set aside, or of appeal, will not alter the essence of the conviction.
51. I do not consider it helpful to adopt the two-stage approach suggested by Mr Hines. In my view the correct approach should be that already cited from the judgment of Evans LJ in In re Sarig [ COD 472], namely to examine the nature of the conviction itself.
52. On the facts of this case there is, in my view, no doubt that this conviction, although arrived at in absentia, was intended to be final. The facts relating to the trial, as described by Mr Morgenthau, make this absolutely clear. The applicant was warned that if he voluntarily absented himself he would be tried and sentenced in his absence. He did voluntarily absent himself. Nevertheless, time was allowed for him to appear; when he failed to appear, the trial went ahead but he was provided with counsel to represent him. Witnesses were called and cross-examined, counsel addressed the jury, the judge summed up, and the jury convicted.
53. On the evidence it is well established in United States law (as in recent times in the law of England and Wales: see R v Jones (Anthony)  2 WLR 524) that a trial may proceed in a defendant's absence if he has voluntarily absented himself. The evidence about United States law shows that there are established procedures to ensure fairness to a defendant in those circumstances, as already outlined. The evidence lodged on behalf of the respondents, as well as the applicant, indicates nothing to suggest that the conviction is to be regarded as anything but final. There is nothing in the relevant parts of the 1989 Act to place convictions in absentia in a special category (unlike a provision in the Fugitive Offenders Act 1967, now repealed).
54. In my view, therefore, the finding of the district judge that this was a conviction for contumacy was in error."
"The second problem is that a second duly authenticated order of enforcement was made against the applicant on 21 February 1998 ... At the end of the order in translation before us the public prosecutor at the Court of Turin orders:
'Members of the Police Forces, therefore, to ensure the identity of the one convicted and, after handing him a copy of the present order, to take him to the nearest custodial centre, there to serve the above-mentioned punishment.
26. That language may indicate that the applicant is already regarded as unlawfully at large and therefore liable to arrest which, if so, would of course support the government's case. But it may, as it seems to me, be authority to arrest him when he has been found and when he had been handed a copy of the order, which would suggest that he was not unlawfully at large until those steps had been accomplished. In the absence of expert evidence of Italian law I do not know how the magistrate could, or how we can, chose between those hypotheses.
27. In our own country the rules are clear and well understood by English lawyers. A sentence of imprisonment ordinarily takes effect when passed. It cannot be ordered to take effect at a date earlier than that on which it is passed. It cannot be ordered to take effect on any date later than that on which it is passed, unless it is ordered to be served consecutively to another sentence. Unless the defendant is released on bail, in which event there is a clear obligation to surrender to custody at a given time and place, a sentence of imprisonment takes effect immediately. It is tempting for an English lawyer to suppose that other jurisdictions follow the same rules. It is, however, notorious that they do not. The applicant, it seems, was lawfully at liberty during and after his trial in 1993 in Turin. When his conviction and sentence were confirmed in 1995 he was not present and there is no material to suggest that he was liable to immediate incarceration if he had been present. We do not know what the order of 8 May 1996 provided, but if it was in similar terms to the order of 21 February 1998 its effect is open to doubt."
"8.61. An appeal does lie to the House of Lords in extradition cases with permission. Permission must be sought from the Divisional Court [and your Lordship is sitting as a Divisional Court in the vacation] in the first instance. If permission is refused, leave must be sought from the House of Lords itself."
Your Lordship will see the footnote there: "The Divisional Court almost invariably refuses leave to appeal, leaving it to the House of Lords to decide which cases it wishes to hear".
"8.62. In judicial review cases both a certificate of general public importance and permission are required.
8.63. If the defendant succeeds before the Divisional Court and the requesting state wishes to appeal to the House of Lords, the Divisional Court has the power to detain the defendant in custody or to admit him to bail pending the appeal under section 5 of the Administration of Justice Act 1960. The Court should always be asked to exercise this power, and should do so of its own motion if no request is made by the requesting state. In Government of the United States of America v McCaffery the Divisional Court released the defendant unconditionally after he had succeeded in his application for habeas corpus. By the time the government's appeal was allowed by the House of Lords he had disappeared. The Divisional Court's failure to use its powers under section 5 was severely criticised by Lord Diplock:
'I would accordingly allow this appeal and would set aside the order of the Divisional Court of 20 October and 28 November 1983. But so far as its effect upon McCaffery is concerned, to set aside these orders is no more than a brutum fulmen. This is because the Divisional Court either overlooked or disregarded the fact that the warning given by this House in Reg v Merriman  AC 584, in relation to the Criminal Appeal Act 1968, was equally applicable to the importance of making an order under section 5 of the Administration of Justice Act 1960 (which, by section 15, is made applicable to appeals to the House of Lords in proceedings upon application for habeas corpus in criminal matters), directing that the person restrained shall not be released except on bail so long as the appeal to the House of Lords is pending.
If ever there was a case for an order of this kind instead of an unqualified order for discharge of the person awaiting surrender for an extradition crime, the instant case provides a prime example. The Divisional Court, for reasons that I have not found easy to follow in the judgments, regarded itself as entitled to decline to follow the recent judgment of another Divisional Court in the Nielsen case which not only was prima facie binding upon them but to their knowledge was under appeal to this House. To make matters worse the court made an unqualified order for McCaffery's discharge on 20 October 1983 when they announced their decision to allow the appeal, but adjourned to a later date the expression of their reasons for doing so and also the question of whether or not to grant leave to appeal to the House of Lords. The second order by which leave to appeal to this House was granted was not made until 28 November 1983. By then it was too late. By virtue of sections 5 and 15 of the Administration of Justice Act McCaffery is not liable to be detained again. The procedure which the court chose to follow in relation to McCaffery's discharge is, in my view, inapplicable."
"(1) Subject to the provisions of this section, an appeal shall lie to the House of Lords, at the instance of the defendant or the prosecutor -
(a) from any decision of the High Court in a criminal cause or matter [extradition being a criminal cause or matter] ...
(2) No appeal shall lie under this section except with the leave of the court below or of the House of Lords; and such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House."
"(1) Where the defendant in any proceedings from which an appeal lies under section one of this Act would, but for the decision of the court below, be liable to be detained, and immediately after that decision the prosecutor is granted, or gives notice that he intends to apply for, leave to appeal, the court may make an order providing for the detention of the defendant, or directing that he shall not be released except on bail (which may be granted by the court as under section 4 above), so long as any appeal under section one of this Act is pending."
The remainder of the provisions are dealing with Mental Health Act situations.