England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2007

Lord Justice Sedley :

1. This appeal raises a question of law which, though inconsequential in its immediate effect, is capable of having significant effects in other proceedings under Part 2 of the Extradition Act 2003: in deciding whether there is dual criminality, is the domestic court limited to what is set out in the foreign indictment, together with any document which it incorporates by express reference, or may it take into account any narrative or explanation tendered by the requesting state?
2. The issue arises in this way. The appellant has been indicted by a Maryland grand jury on 11 counts. In summary they are:

i. murder in the first degree of  Jackson Rodriguez

ii. attempted murder in the first degree of Tony Perry

iii. murder in the second degree of Rodriguez

iv. attempted murder in the second degree of Perry

v. assault in the first degree upon Rodriguez

vi. assault in the first degree upon Perry

vii. assault in the first degree upon Steven Broadhead

viii. assault in the second degree upon Rodriguez

ix. assault in the second degree upon Perry

x. assault in the second degree upon Broadhead

xi. using a handgun in the commission of a crime of violence.

The counts to which this appeal relates are those I have underlined, the seventh and the tenth.

3. On 16 April 2007 District Judge Tubbs, having heard argument, sent the case to the Home Secretary under s.87(3). By letter of 27 June 2007 the Home Secretary announced that he had ordered the appellant's extradition.
4. On this appeal, duly brought under s.103, Mark Summers for the appellant has formally taken the point that extradition to a jurisdiction in which the appellant may be sentenced to life imprisonment without the possibility of parole amounts to inhuman or degrading treatment in violation of art. 3 of the European Convention on Human Rights and so furnishes a further ground for discharge pursuant to s.103. He accepts, however, that this argument is precluded by the decision of the House of Lords in Lichniak [2003] 1 AC  903, and therefore concedes that we must dismiss the appeal to the extent that it stands on this ground. For the same reason he has invited us to certify a question for their Lordships' House but has accepted that the application should be refused. His remedy on this aspect of the case, if there is one, now lies elsewhere.
5. The two material assault counts in the grand jury's bill of indictment are these:
SEVENTH COUNT

…. that Joshua D. Edwards … did assault Steven Ramel Bromhead in the first degree in violation of CR 3-202, against the peace, government, and dignity of the State.

(Criminal Law Article, Section 3-202)

CJIS CODE 1 1420

TENTH COUNT

…. that Joshua D. Edwards … did assault Steven Ramel Bromhead in the second degree in violation of CR 3-203, against the peace, government, and dignity of the State.

(Criminal Law Article, Section 3-203)

CJIS CODE 1 1415

6. In order to permit extradition on them, each of these counts is required to equate to an offence known to English law and carrying a sentence of at least 12 months' imprisonment. Section 78(4)(b) provides that the judge must decide whether the offence specified in the request is an extradition offence. Section 137 then makes this provision:

(1) This section applies in relation to conduct of a person if –

(a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct

(b) …..

(2) The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied –

(a) the conduct occurs in the category 2 territory;

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;

(c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law).

7. The bald facts alleged on the face of the two material counts would amount in English law, if proved, to no more than common assault, an offence which carries less than 12 months' imprisonment. Each count, however, incorporates by express reference the statute by which the offence is constituted.
8. In the seventh count, the statutory provision is s.3-202 of the Maryland Criminal Code. The text of it, which has been included in the request for extradition, provides:

Assault in the first degree.

(d) Prohibited. –

(1) A person may not intentionally cause or attempt to cause serious physical injury to another.

(2) A person may not commit an assault with a firearm …

The penalty is imprisonment for up to 25 years.

9. In the tenth count, the statutory provision is s. 3-203 of the same code:

Assault in the second degree.

(e) Prohibited.- A person may not commit an assault.

The penalty is up to 10 years' imprisonment.

10. Thus, treating the criminalising statute as part of each count (as Mr Summers now accepts we should), to prove its case on the seventh count the State will have to prove either that serious injury was inflicted or intended, or that the assault on Broadhead was committed with a firearm. The first limb would equate to assault occasioning actual or grievous bodily harm, or an attempt to commit it, contrary to ss.47, 18 or 20 of the Offences Against the Person Act 1861, all of which carry more than 12 months' imprisonment. Since an assault does not necessarily involve more than putting someone in fear of imminent violence, the second limb, as Mr Summers accepts, equates in English law to an offence of possession of a firearm with intent to cause fear of violence, contrary to s.16A of the Firearms Act 1968, carrying a maximum sentence of 10 years' imprisonment. There is accordingly dual criminality on the seventh count. The district judge so held, and the appeal in relation to it must fail.
11. On the tenth count, by contrast, it is clear that all the State has to prove is a common assault. If in the course of doing this it chooses to prove more, that, Mr Summers submits, makes no difference. There can be no dual criminality on this count because its English equivalent is common assault, and common assault is not an extradition offence.
12. Ms Cumberland, however, submits that we are not limited to these materials. She contends that she is entitled to rely on the narrative of events contained in the deposition of Joseph S Michael, a legally qualified deputy state's attorney. His deposition shows that all the charges arise out of an altercation which occurred in the apartment of a friend of the appellant in Hagerstown, Maryland, on 23 July 2006. The altercation is alleged to have ended with the appellant leaving the building and returning with three accomplices. One of them held a visitor, Broadhead, at gunpoint in the kitchen while the appellant went into the living room and shot the two men there, killing one and gravely wounding the other.
13. If this narrative is admissible by way of further allegation, Mr Summers accepts that it will introduce into the tenth count sufficient factual material to establish offences in English law of false imprisonment and using a firearm to cause fear of violence, both of them extradition offences. Without it, Ms Cumberland accepts that the appellant will be entitled to be discharged on the tenth count because no more than an equivalent of common assault will be made out. So the single issue is whether this further material is admissible for the purposes of establishing dual criminality.
14. We have to begin with the statutory requirements of a valid Part 2 request. Section 70(3) provides:

A request for a person's extradition is valid if –

(f) it contains the statement referred to in subsection (4); and

(g) it is made in the approved way.

Subsection (4) provides:

The statement is one that a person –

(a) is accused in the category 2 territory of the commission of an offence specified in the request …

Section 78(2) requires the judge to decide whether the documents sent to him or her "consist of (or include)", among others,

(c) particulars of the offence specified in the request.

If so satisfied, the judge is then required by s. 78(4) to decide, among other things,

(b) whether the offence specified in the request is an extradition offence.

15. Nothing in the Act tells us whether these elements are not only the minimum required for a valid request but the maximum. Given the parenthetic provision that the documents are to include those specified, making it plain that more may be volunteered, it is not suggested by Mr Summers that a narrative such as that supplied by Mr Michael cannot lawfully be included with a request. But he submits that it is in law no more than background: it cannot be used to supplement or to replace the documents required by statute, from which alone the validity of the request has to be ascertained.
16. Ms Cumberland relies on two decisions of this court in support of the proposition that the statutory requirements are not exhaustive of what the court may rely on in deciding the validity of a request.
17. The first is Norris v Government of the USA [2007] EWHC 71 (Admin), [2007] 1 WLR 1730, heard by this court (Auld LJ and Field J) in October 2006, with judgment delivered on 25 January 2007. It was submitted to the Divisional Court that the US offence of price-fixing, which was what was laid in the requesting state's indictment, did not require proof of dishonesty, whereas the equivalent UK offence of conspiracy to defraud did. Having considered the decision of the House of Lords in Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, citing in particular Lord Bingham's holding at §16 that "'the conduct' in s.65 means the conduct complained of or relied on in the [European arrest] warrant", Auld LJ concluded at §126:

"In the case of the United States and part 2 offences, the analogue of the warrant is the request, whether or not it includes more than is required for prosecution of the offence indicated in the Part 2 territory, for example, here, the ingredient of dishonesty to garnish the Sherman Act offence."

18. Secondly Ms Cumberland draws attention to the decision of this court in Bentley v Government of the USA [2005] EWHC 1078 (Admin) (Sedley LJ and Beatson J), where materials supplied by the requesting state in addition to those statutorily required were examined in order to decide whether the charge laid in the US disclosed an offence known to US law. It appeared from these materials that possession of the substance charged in the indictment was not a crime at the material time. Whether this court was right to examine the legality of the requesting state's indictment may now be in doubt following the decisions of the House of Lords in   Cando Armas  and Dabas; but it may be that it was entitled to do so because the requesting state itself had invited it in making its request. It does not, I think, help directly on the present issue.
19. Mr Summers in response relies upon the decision of the House of Lords in Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6. [2007] 2 AC 31. The appeal was argued on 24-25 January 2007, and the decision of the House was delivered on 28 February. It is apparent from the report that this court's decision in Norris, which was handed down on the second day of argument in Dabas, was not drawn to their Lordships' attention.
20. Dabas concerned a European arrest warrant which contained a narrative of earlier events not forming part of the charges. At §48 Lord Hope said:

"A narrative of events prior in date to the conduct relied on will not be objectionable if it is included merely to set the scene …. Information of that kind is relevant and admissible to enable inferences to be drawn as to the nature of the offence constituted by the conduct for which extradition is sought. But it is the conduct for which extradition is sought, not any narrative that may be included in the Part 1 warrant simply by way of background, that must satisfy the test of double criminality."

21. While Dabas does not directly answer the question we have to decide, it seems to me that the element of Norris on which Ms Cumberland relies cannot stand with Lord Hope's approach, with which the rest of their Lordships concurred. The policy of the Act is to abandon the old process of examining evidence in favour of a system of more limited formalities. For the purposes of Part 1, this is the European arrest warrant system. Part 2 covers other states in relation to which the executive considers that such formalities can safely be relied upon. In relation to both, the emphasis has accordingly shifted to ensuring that requests are in proper form, that human rights are respected and that the system is not being abused.
22. Here, as in Dabas, the question is what is "the conduct" which has to amount to an extradition offence. Is it the conduct asserted in the indictment or the conduct recounted as giving rise to it? Consonantly with what Lord Hope said in terms in the last sentence of §48 of Dabas, it seems to me that the policy and objects of the 2003 Act point clearly towards the former meaning. The Act limits the requisite documentation, albeit leaving it open to requesting states to add more. But if the evaluation of the request is not confined to the required materials, there is no apparent limit to what further documentation can be introduced, and a statutory process designed to be lean and schematic will become expansive and porous.
23. It is worth observing that there are potential penalties for requesting states if more than the required documents can be relied on. A request conveying a US indictment for an offence equivalent to the UK offence of assault occasioning actual bodily harm could be expected to succeed; but if it is accompanied by a narrative which shows that the assault might well have been committed in legitimate self-defence, there is no obvious reason why, if the requesting state can rely on such a narrative to amplify its indictment, the accused should not be allowed to rely on it to negative dual criminality. While this might not be thought unfair, its effect would be to frustrate what for better or for worse is the statutory policy by shifting the forum of trial from the requesting to the extraditing state.
24. I conclude that "the conduct" referred to in s.137 is confined to the facts alleged in "the offence specified in the request", the phrase used in ss. 70 and 78. In a normal US case such as the present one this will limit the inquiry into dual criminality to, on the one hand, the indictment and any document incorporated by reference into it and, on the other, the criminal law of England and Wales. Such an inquiry in the present case, for reasons I have given, establishes dual criminality in relation to the seventh count of the Maryland indictment but not in relation to the tenth.
25. It is for these reasons that at the conclusion of the hearing we stated that the appeal would be allowed under s.104 as amended, to the extent only of discharging the appellant and quashing the order for his extradition on count 10 of the indictment.

Mr Justice Nelson:

26. I agree.
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LORD JUSTICE SEDLEY: For reasons given in writing which are now available to the public and the press, this appeal will be allowed to the extent only indicated in the judgment. The court's order will be in the form agreed by the parties which I am about to hand to the associate.

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