Jersey Unreported Judgments

[2010]JRC197

royal Court

(Samedi Division)

3^rd November 2010

Before     :		Sir Richard Tucker, Commissioner, sitting alone.
Between	Philip Eric De Figueiredo		Appellant
And	Commonwealth of Australia		Respondent

Advocate M. St. J. O'Connell for the Appellant.

Advocate M. T. Jowitt for the Respondent.

judgment

the commissioner:

1.        This is an appeal by Philip Eric De Figueiredo against the order of Her Majesty's Attorney General made on 23^rd December, 2009, that the Appellant should be extradited to Australia.  That order followed a decision of the Assistant Magistrate which I have upheld, that all legal requirements for extradition had been satisfied and that there was no bar to the Appellants extradition.  In essence it is alleged that the Appellant was an integral part of a conspiracy with a number of named Australian tax payers, to defraud the Commonwealth by being involved in the implementation and the operation of offshore arrangements, (see the affirmation of Professor George Hampel Q.C.).  The law on the subject is contained in the Extradition (Jersey) Law 2004 (the Law).  I have also been referred to numerous decisions by the English Courts which are of persuasive though not binding authority.  Since this is the first such case to come before the Royal Court I have no Jersey authorities to guide me.  The Attorney General's functions are set out in Articles 30-39 of the Law.  Under Article 30 he has to consider the case and decide whether he is prohibited under the three articles which follow from ordering the person's extradition.  The only one of those which is relevant under Article 30 (1)(b) is Article 32 relating to  Specialty; It is an important Article for the purposes of this appeal. Its material provisions are as follows:-

"32     Specialty

(1) The Attorney General shall not order a person's extradition to a designated territory if there are no specialty arrangements with that designated territory." 

Australia is specified as a designated territory of the first category, under part 1 of the first schedule to the Law.  Paragraph 3 of the Article provides:-

"(3)     There are specialty arrangements with a designated territory if (but only if) under the law of that designated territory or arrangements made between it and Jersey, a person who is extradited to the designated territory from Jersey may be dealt with in the designated territory for an offence committed before the person's extradition only where -

(a)       the offence is one to which paragraph (4) refers; or

(b)       the person is first given an opportunity to leave the designated territory."

Paragraph 4 provides so far as is material that:-

"4)      The offences to which this paragraph refers are:-

(a) the offence in respect of which the person is extradited;

(b) an extradition offence disclosed by the same facts as that offence, other than one in respect of which a sentence of death could be imposed;

(c) an extradition offence in respect of which the Attorney General consents to the person's being dealt with"

Paragraph 5 provides that:-

"5)      Arrangements made with a designated territory that is a Commonwealth country or a British overseas territory may be made -

(a) for a particular case;

(b) for a particular class or particular classes of case; or

(c) generally, in respect of all cases."

Paragraph 6 provides that:-

"6)      A certificate issued by or under the authority of the Attorney General confirming the existence of arrangements with a designated territory that is a Commonwealth country ...... and stating the terms of the arrangements is conclusive evidence of those matters."

Thus the certificate states what the terms of the arrangement are.  It is not itself the arrangement but it is evidence of the arrangement.  Advocate O'Connell, on behalf of the Appellant submits that Article 32 operates as a strait jacket and that unless the provisions of the Article have been fully complied with it is impossible to say that specialty arrangements exist in this case.  

2.        Articles 36 and 37 set a time limit for an order of extradition; in the circumstances of this case it must be made within the period of two months after the day on which the Magistrate sends the case to the Attorney General for a decision.  Article 38 sets out the information which has to be given by the Attorney General.  He must inform the person of the order and of his right of appeal to the Royal Court.  The powers of the Royal Court on appeal against an order by the Attorney General are set out in Article 46:-

"....the Royal Court may allow or dismiss the appeal."

The grounds on which the appeal may be allowed are limited to those specified at paragraphs 3 and 4 of the Article.  The Appellant confines himself to those contained in paragraph 3 which are:-

"(a)     that the Attorney General ought to have decided differently a question before the Attorney General; and

(b)       that if the Attorney General had decided the question in the way in which it ought to have been decided, the Attorney General would not have ordered the person's extradition."

The Appellant does not rely on the grounds contained in paragraph 4 and contends that the Respondent may not do so.  They are:-

"(a) that an issue is raised that was not raised when the case was being considered by the Attorney General, or information is available that was not available at that time;

(b) that the issue or information would have resulted in the Attorney General deciding differently a question before the Attorney General; and

(c) that if the Attorney General had decided the question in that way, he or she would not have ordered the person's extradition."

3.        Three grounds of appeal are pursued:-

(i)        The Attorney General is prohibited from ordering the Appellant's extradition because the specialty arrangements set out in his certificate do not comply with Article 32 of the Law;

(ii)       The order of the Attorney General does not state that he is satisfied, he is not prohibited from ordering the Appellant's extradition under Article 30 (1)(b) of the Law; and

(iii)      The decision of the Attorney General is vitiated by a lack of structural impartiality. 

4.        The first two grounds concern the principle of specialty.  This is an important rule which is intended to ensure that an extradited person is triable in the requesting State, only for conduct for which extradition was granted.  It is submitted on behalf of the Appellant that it serves a number of purposes; first to protect the judicial processes of the requested country against abuse after it has relinquished jurisdiction over the person; second, to reinforce the dual criminality rule which I had to consider in the earlier appeal against the decision of the Magistrate, and third, to protect the extradited person from having to face a charge after being sent to the requesting state of which he had no notice. 

5.        I have already referred to the relevant provisions of Article 32.  The Appellant attaches considerable importance to them and in particular to paragraph 6 referring to the conclusive evidence of the certificate.  As to the existence and terms of the arrangement it is submitted that there is no answer to it and that the strict language of the law must be complied with.  This is because as Australia is a Commonwealth country and there is no formal extradition treaty between it and Jersey, therefore so the argument runs, there must be absolute precision as to the terms of the arrangement and it is not permissible to look outside the terms of the certificate and no extrinsic evidence concerning the specialty arrangements is admissible.  I disagree with this submission; I take the view that the purpose of the certificate is to enable the Court to be satisfied that a sufficient arrangement is in place.  If a slip occurs in the wording of the certificate the Court is not prevented from looking at the reality of the situation or from receiving additional information or a further Attorney General's certificate.  The original certificate about which complaint is made was, as I have said, issued on 23^rd December, 2009, and is in these terms:-

"I, Timothy Le Cocq, QC, Her Majesty's Attorney General for Jersey, HEREBY CERTIFY that I have received from the Attorney General of the Government of Australia, a Commonwealth country an undertaking that Philip Eric De Figueiredo (the defendant), after being surrendered to Australia will not, unless he has left or had the opportunity of leaving Australia, or in the case where the defendant is surrendered to Australia for a limited period, has returned to the Bailiwick of Jersey:-

(a) be detained or tried in Australia for any offence that is alleged to have been committed, or was committed before his surrender, other than;

(i) any offence in respect of which the defendant was surrendered to any other or any other offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other depravation of liberty) of which the defendant could be convicted on proof of the conduct constituting any such offence; or,

(ii) any other offence in respect of which I consent to the defendant being detained or tried; or

b) be detained in Australia for the purposes of being surrendered to another country for trial or punishment or any offence that is alleged to have been committed, or was committed, before the surrender of the defendant to Australia, other than any offence in respect of which the Bailiwick of Jersey surrendered the defendant to Australia unless the Bailiwick of Jersey consents to the defendant being so detained and surrendered". 

It is submitted that this certificate does not follow the exact words of Article 32 and does not comply with it and that therefore the Attorney General had no power to make the order. 

6.        Advocate O'Connell sets out what are alleged to be the differences between the arrangement referred to in the certificate and the provisions of Article 32 in a helpful table at paragraph 57 of his first skeleton argument.  It is contended that there are three respects in which the arrangement is wider than the law requires and that this means that the Appellant is exposed to the risks of being dealt with other than in accordance with the obligatory specialty arrangements and to the possibility of being prosecuted in Australia for any offence not tied back to the law of Jersey.  It is submitted that this is the risk which the specialty principle is intended to prevent. Moreover the arrangement allows the possibility that the Appellant could be re-extradited to any other country for any offence not even an extradition offence. 

7.        I have already referred to the purposes and importance of the principle of specialty and to the relevant provisions of Article 32.  Advocate O'Connell emphasises the strictness of the statutory language which it is submitted reflects the absolute requirement that extradition must not be ordered in circumstances where there is anything less than total compliance with the statutory requirement.  It is submitted that in the present case there was not total compliance; that extradition cannot be ordered; that the appeal should be allowed and that the Appellant should be discharged.  I have been referred to many decisions in England of the Divisional Court and of the House of Lords which are relied upon in support of the proposition advanced by the Appellant which it is said demonstrate that the English Courts strictly observe and carefully scrutinise the technical requirements of the English Extradition Act and exercise vigilance in applying them.  See R-v-Governor of Brixton Prison ex-parte Sadri [1962] 1 WLR 1304; David Lee-v-Governor of Pentonville Prison Government of USA CO/1685/86; Re Farinha [1992] Imm. A R 174; Regina (Castillo)-v-Spain [2005] 1 WLR 1043; Regina (Guiso)-v-Governor of Brixton Prison [2004] 1 AC 101; Gomes-v-Government of Trinidad & Tobago [2009] 1 WLR 1038; Pinto-v-Brixton Prison Governor [2004] EWHC 2986 (Admin) and Carl Antonio Hall-v-The Government of Germany [2006] EWHC 462 (Admin).

8.        Advocate O'Connell submits that the decisions in these cases, some of which are recent, show that there has been no relaxation in the Court's attitude to the necessity for strict observance of the technical provisions of the relevant statutes and that the Royal Court should follow them.  I have carefully considered all these authorities and bear the judicial pronouncements which they contain well in mind. 

9.        For the Respondent, the Commonwealth of Australia, Advocate Jowitt submits that these cases cannot help because they or at least some of them, were dealing with technical requirements relating to arrest warrants and so forth.  In the present case the Court is not dealing with such matters but with the question whether adequate specialty arrangements exist in Australia.  Advocate Jowitt submits that the Attorney General was correct to order extradition and contends that as a matter of fact and law, the specialty arrangements with Australia meet the minimum requirements of Article 32.  While acknowledging that there is an error on the face of the Attorney General's certificate, it is not conceded that the certificate is thereby rendered defective.  For reasons that will become apparent, it is in my view, unnecessary for me to consider in any detail the status or validity of that certificate.  Advocate Jowitt submits that the question to be resolved is whether the Attorney General's order should be upheld and that the onus is on the Appellant to show that it should be set aside, with which I agree.  It is submitted that the attitude of the English Courts has become more relaxed in the approach to technical objections. Reliance is placed on the comment by Ouseley J with which Laws LJ agreed in the case of Welsh and another-v-Secretary of State for the Home Department and another [2007] 1 WLR 1281 at paragraph 136 where he said:-

"The recognition of important technical requirements is not the same as the erection of technical hurdles wherever ingenuity can manage it."

10.      I have to decide whether the undeniably technical objections taken on behalf of the Appellant are such as affect the validity of the order or whether they are fanciful and ingenious objections which do not affect the real purpose of the order and of which no account should be taken.  A further matter which I have to consider is whether subsequent evidence by affidavit or diplomatic note should be admitted in order to show the extent and nature of the extradition arrangements or the intention of the Attorney General when issuing his certificate.  Advocate O'Connell submits that affidavit evidence relating to specialty arrangements which the Respondent seeks to adduce is neither admissible nor relevant on the following grounds:-

First:- it is prohibited by Article 32 (6) referring to the certificate as being conclusive evidence of the existence and terms of the arrangement;

Second:- it is not relevant to the Attorney General's decision as it was not before him when he made his decision, he cannot have taken it into account;

Third:-  the Court's powers under Article 46 do not contemplate the admission of fresh evidence or information from the Respondent, to subsequently rationalise the decision to extradite.  Advocate O'Connell does not assert that the Article forbids or excludes the possibility of admitting such evidence.  Article 46 says nothing about limiting the information which can be placed before the Court.

Fourth:- it cannot form part of any arrangements referred to in Article 32 as it is not from either the State of Australia or a person who can bind Australia.

11.      The Appellant relies on two decisions of the Divisional Court in support of his contentions.  The first is R-v-Secretary of State for the Home Department, ex-parte Hill [1999] QB 886 where it was held that because of the comparable provisions of the English Extradition Act 1989 evidence is inadmissible in extradition proceedings.  The second is R-v-Governor of Pentonville Prison ex-parte Lee [1993] 3 All ER 504 where is was held that providing certain minimal requirements have been complied with, then the Court not only need not but could not look further.  The Appellant submits that these requirements had been complied with, and that there was a conclusive certificate to that effect under the comparable sections of the Act. 

12.      On the basis of these decisions it is submitted that affidavit evidence which the Respondent proposes to adduce is not admissible or relevant in the appeal.  On the other hand the Respondent cites a number of authorities where subsequent evidence has been received by the Courts.  Thus in the case of Welsh to which I have already referred at paragraph 150 Ouseley J rejected the arguments that post-decision undertakings were legally irrelevant or inadmissible.  He said he saw no reason why the English Statute should be interpreted as precluding specific undertakings as part of the arrangements to be considered or as assurances of the law of the requesting State, and in Bermingham-v-Director of Serious Fraud Office and Secretary of State for the Home Department [2006] EWHC 200 an identically constituted Court reached a similar conclusion. So too in Cokaj-v-Secretary of State for the Home Department [2007] EWHC 238 it was held that the Court can and should consider subsequent material, in that case relating to the law of Albania. 

13.      Advocate O'Connell seeks to distinguish these cases on the ground that they did not involve examination of the question whether a specialty arrangement was in place or what its terms or effect were but a different question, namely whether a foreign state, in those cases USA or Albania, would breach specialty arrangements or undertakings which already exist.  Advocate O'Connell defines the question which I have to determine in the present case as follows:-

"What was before the Attorney General, what decision did he make and did he make it on a sound basis".

14.      The complaint in the present case is that the specialty arrangement is insufficient because Article 32 is not fulfilled and that therefore no specialty arrangement exists.  I appreciate the different factual basis upon which the three cases were decided, nevertheless I am not persuaded that I should distinguish them or ignore the principles of law which were enunciated in them.  In any case the affidavits of Berdj Tchekerian and Ms Harmer contain indications or undertakings of future conduct comparable to the evidence which was ruled admissible in those cases. 

15.      Advocate Jowitt submits that there are cases where the English Courts have considered additional matters in order to determine whether the law of the requesting State or any arrangements made do fulfil specialty requirements, see for example Ex parte Launder No 2 [1998] QB 994.  The Courts have certainly taken into account contents of diplomatic notes. In Babar Ahmad, Haroon Rashid Aswat-v-Government of the United States of America [2006] EWHC 2927.  Laws LJ said:-

"State to State assurances taking the form of such notes possess a recognised status in international law. State to State assurances are commonly given in extradition matters.  For example to demonstrate the requesting state's loyalty to the specialty rule."

Advocate O'Connell concedes in his skeleton argument that undertakings by ambassadors are accepted.  Therefore I take the view that evidence by way either of affidavit or diplomatic note which explains the law and practise of the requesting state or its attitude to specialty arrangements is receivable in extradition proceedings notwithstanding that it comes after the date of the making of the order.  Accordingly in my opinion I am entitled to look at the affidavit evidence which both the Appellant and the Respondent have sought to put in, in deciding whether the specialty requirements have been complied with. 

16.      That brings me to the question of the second certificate which was issued under the authority of the Attorney General on 6^th September 2010, shortly before an adjourned hearing of the appeal on 9^th September.  The Appellant applied for and I granted an adjournment so that his representatives could enquire into and consider the position.  The hearing was resumed on 11^th October.  Advocate O'Connell informed me that he had considered and taken instructions on the second certificate.  The certificate was accompanied by a diplomatic note of the same date confirming the arrangement and giving an undertaking in relation to it.  On the face of it this second certificate would appear to meet the criticisms made of the first certificate and to cure any alleged defects.  Advocate Jowitt submits that it is a complete answer to objections which were never more than technical.  Thus in paragraph (a)(i) and (ii) for the phrases "any other offence" are substituted the words "any other extradition offence".  A similar amendment is made to the wording of paragraph (b).  In addition for the words "the Bailiwick of Jersey surrendered the defendant to Australia under the Bailiwick of Jersey consents" are substituted the words "the Attorney General of the Bailiwick of Jersey consents".  The Appellant complains because the certificate concludes with the words "the term extradition offence shall have the meaning afforded by Section 5 of the Extradition Act 1988 CTH."  The point taken is that this is an Australian definition rather than a Jersey one.

17.      Australia is a sovereign state and it can give an undertaking to Jersey whenever it chooses.  The diplomatic note confirms the terms of the specialty arrangement and in the Respondents submission puts it beyond question by an undertaking at the highest level that the Appellant will get full entitlement to that arrangement.  The Respondent relies only on the second certificate which is described as confirming the position or in a sense remedial and providing a complete answer to the Appellant's complaints.  It is submitted that I am not only entitled to have regard to it but that I should positively do so in deciding whether the Attorney General's order should be upheld. 

18.      Advocate O'Connell concedes that there is no time limit for the issue of a certificate. However he takes comprehensive objections to the second certificate.  He contends that it is inadmissible; it is not relevant; it is procedurally unfair; it does not comply with Article 32 and it is still wrong.  It is said to be inadmissible because first, there has been no new decision of the Attorney General, second the Attorney General could not lawfully make a new decision because the scheme of the law does not permit a reconsideration of the Attorney General's decision after he has made it and third, the scheme of the law does not permit two conclusive certificates of arrangements.  It is said that as the second certificate was not taken into consideration and the arrangement therein was not yet in place when the Attorney General made his decision, that the second certificate is irrelevant to his decision.  If it is admissible consideration of it is said to be procedurally unfair on a number of grounds; first because the Appellant has not had an opportunity of making representations upon it or its affect, to the Attorney General; second, because it is not known whether the Attorney General has purported to remake his decision in the light of the new certificate; third, because the Attorney General has given no reasons or explanation of what he has done with or is satisfied by the new certificate.  It is rightly submitted to me that the decision which has to be examined is that of the Attorney General not of the Court. 

19.      As to the first of these grounds of objection it is accepted that on 3rd November, 2009, before the issuing of the first certificate, the Attorney General invited representations from the Appellant's lawyers before making his order but that none were received.  Advocate O'Connell said this was because the Appellant was ignorant of the specialty arrangement which was on offer from Australia It is not for me to speculate about it and I attach no great significance to this point.  However, it is submitted that Article 30 (4) generates an entitlement to the Appellant to make representations to the Attorney General prior to any decision being made.  I do not agree that the paragraph can bear that interpretation.  Had the draftsman of the Law intended to create an entitlement he would have done so in more direct and less oblique terms than appear in the paragraph. 

20.      As to the third ground I am satisfied that no reasons need be given by the Attorney General for his decision.  I was referred to two decisions of the Divisional Court in the cases of R-v-Propend Finance Property Ltd [1996] Cr App R 26 and Chatta the Times 11th July 1996.  However I do not regard either of them as authority for Advocate O'Connell's proposition.  In Propend what the Court was considering was the obligation of a judge to give reasons for her decision in an application made to her for a warrant.  I am not prepared to equate the functions and the obligations of a judge with those of a law officer.  In Chatta the passages relied upon by the Appellant appear in an application for leave to move for judicial review.  All that Henley LJ was saying was that it was arguable that reasons are required. The Court was not deciding the point.  When it came to the substantive hearing [1996] EWHC 215 Rose LJ made it clear at paragraph 40 of his judgment that the question whether there was a duty on the Secretary of State to give reasons was of no more than academic significance and did not arise for consideration. 

21.      Advocate Jowitt observes that at the time those cases were decided the law in England was governed by the Extradition Act 1989 where the duty of deciding whether to make an order for extradition was laid solely on the Secretary of State who made his decision in private and who was given a general discretion in the matter.  Advocate Jowitt contrasts the present position under the Jersey law, where the Attorney General has no discretionary power and where certain important questions are decided by a magistrate sitting in public.

22.      I have no doubt that the second certificate is admissible in these proceedings for the purpose of clarifying and if need be, remedying the provisions of the earlier certificate.  It does not have the effect of destroying the first certificate or of nullifying the Attorney General's order For the same reason I regard it as relevant in clarifying, if that were necessary, the terms of the arrangement and removing any doubts as to its extent and applicability.  I can and should have regard to it in determining whether the order should be upheld or quashed now. 

23.      The only remaining question is whether the new certificate is wrong because of the alleged failure to comply with Article 32.  The argument is one that I have already alluded to i.e. that there is alleged to be an erroneous reference to the definition of extradition offence according to Australian law instead of to Jersey law.  It is submitted that as a result of this, the Jersey authorities have no control over what might be an extradition offence in Australia with the result that the Appellant might be tried and convicted in Australia for a non-extradition offence within the meaning of the 2004 Law.  Thus, it is said that the arrangement is inadequate and does not comply with Article 32.  It is submitted that the question is not whether the Appellant would be tried and convicted for such an offence, but whether he could be so tried and convicted.  I find this argument unattractive for the reasons outlined by  Slynn J  as he then was in ex parte Narang [1978] AC 247 at page 251 cited with approval by the Court in R-v-Secretary of State for the Home Department ex parte Hill [1999] QB 886. 

24.      Advocate O'Connell was at pains to make it clear that he was not saying that Australia would act in breach of any arrangement.  His submission did not involve impugning the good faith of Australia.  He described his argument as being black letter law while contrasting Advocate Jowitt's submissions as being extravagant and general and as being to the effect that at the heart of comity law lies a specialty theme.  I must say that for my part I found Advocate Jowitt's submissions to be helpful and objective. 

25.      In order to test compliance with Article 32 Advocate O'Connell produced what was described as a forensic example of draft Australian charge which, it is said, could be brought against the Appellant. For reason set out in his skeleton argument, and because it is asserted that the Jersey law is different from Australian law, it is submitted that the sample charge is not an extradition offence within the meaning of Article 3 of the Law.  In particular it is submitted that Article 3 (4) is not satisfied because part of the conduct referred to in the charge is deemed to have taken place in Jersey and none of it is supposed to have taken place in Australia.  Advocate O'Connell poses four questions which he says need to be addressed; I do not agree with him but I record the questions with his suggested answers to them:-

(i)        Do the facts in the sample charge arise in the facts set out in the extradition request? Answer: yes. 

(ii)       Do those facts amount to an Australian extradition offence within the meaning of section 5 of the Australian Extradition Act?  Answer; yes. 

(iii)      Could an Australian jury convict of the sample charge without being in breach of the arrangement set out in the second certificate?  Answer; yes. 

(iv)      Do the facts in the sample charge amount to an extradition offence within the 2004 law?  Answer; no. 

26.      The offences which are actually intended to be charged against the Appellant, if he is extradited to Australia, are set out in a letter dated 30^th January, 2009, to the Attorney General sent by Anastasia Harmer from the Australian Government Attorney General's Department.  This letter as subsequently corrected is annexed to an affidavit sworn by Ms Harmer.  None of the conduct giving rise to these charges is alleged to have taken place in Jersey.  I am satisfied that the conduct took place in Australia for the purposes of Article 3; in that its effect was intentionally felt there, irrespective of where the Appellant was, as indeed was conceded by the Appellant in the earlier appeal against the Magistrate's decision.  Advocate O'Connell did not criticise any of these charges as being objectionable. 

27.      In my opinion the production of the draft charge owes more to ingenuity than to merit or reality.  It creates a fanciful hurdle without substance and which does not affect the real purpose or validity of the Attorney General's order.  In any event I am satisfied on the basis of the affidavit evidence from Australia together with the diplomatic note, and by submissions made to me by Advocate Jowitt orally and in his skeleton argument, that if extradited to Australia, the Appellant will enjoy all the specialty protection which Article 32 of the Law requires and to which he is entitled.  I have read the provisions of Section 5 of the Australian Extradition Act 1988 and have compared them with the provisions of Article 3(2) of the Law; I can discern no material difference between them.  They both require that the offences must satisfy the dual criminality test and must be punishable with a minimum term of 12 months detention.  I have also read Section 42 of the Australian Act.  I am satisfied by these provisions and by the assurances contained in the affidavit of Berdj Tchekerian the solicitor employed at the Melbourne office of the Commonwealth DPP that the principles of Specialty are enshrined in Australian law and that should the Appellant be extradited to Australia, it is the intention of the Australian authorities to prosecute him only for offences which would fall within the Jersey definition. 

28.      In the affirmation which I have admitted in evidence Professor Hampel confirms that the specialty principle forms part of Australian law.  This document was affirmed on 1^st September, 2010, i.e. shortly before the issuing of the second certificate.  The Professor pointed to deficiencies which he stated existed in the first certificate such as would, in his opinion, permit the Commonwealth to charge and deal with the Appellant in Australia as accessory to offences which are not extradition offences.  Advocate Jowitt submits that this ignores the fact that Australia would have to obtain consent from Jersey. Be that as it may, I do not have any evidence or opinion from the Professor as to the effect of the second certificate and the diplomatic note. 

29.      In my judgment the contents of this note put the matter beyond any doubt.  The note confirms the making of the arrangement and gives undertakings concerning the detention and trial of the Appellant if he is surrendered to Australia and the limitations against him being surrendered to another country for trial or punishment.  In my opinion these are compliant with Article 32 of the law.  To adopt the words of Moses LJ in R-v-Arain and the Government of Germany [2006] EWHC 1702 :-

"There is not one shred of evidence that the Commonwealth of Australia will not comply with its obligations."

30.      I do not agree with or accept Advocate O'Connell's assertion that Australia has specifically carved out and reserved for itself the right to try the Appellant for non-extradition offences.  That assertion runs counter to all the information and assurances that I have been given.  In my opinion the specialty arrangement set out in the Attorney General's second certificate do comply with Article 32 of the law and he is not prohibited from ordering the Appellant's extradition. 

31.      The second ground of appeal also relates to the topic of specialty.  It is contended that the Attorney General's order does not state that he is satisfied that he is not prohibited from ordering the Appellant's extradition and that Article 30 (1)(b) of the law.  This arises out of the fact that in his order the Attorney General stated "I, Timothy Le Cocq, QC, Her Majesty's Attorney General for Jersey, being satisfied that I am not prohibited under Article 30 (1)(a) and (c) of the Extradition Law 2004 from so doing, hereby order the extradition" and so forth.  The point taken on the Appellant's behalf is that the Attorney General failed to make any reference to Article 30 (1)(b) and that he thereby failed to carry out his duty under the Article which is in these terms:-

"(1)     If the Magistrate sends a case to the Attorney General for a decision as to whether a person is to be extradited, the Attorney General shall decide whether he or she is prohibited under:-

(a) Article 31 (relating to the death penalty);

(b) Article 32 (relating to specialty); or

(c) Article 33 (relating to earlier extradition to Jersey from another territory), from ordering the person's extradition.

(2)       If the Attorney General decides that he or she is prohibited under any Article to which paragraph (1) refers from ordering the person's extradition, the Attorney General shall order..... the person to be extradited to the designated territory......"

This provision is in mandatory terms.  Advocate O'Connell submits that the Attorney General must consider each of the sub-paragraphs (a), (b) and (c) before his jurisdiction to order surrender arises.  Each sub-paragraph is said to be an individual prohibition.  Obviously no question arises under sub-paragraphs (a) or (c).  However it is submitted that the question of specialty is highly relevant, that no adequate arrangements had been made and that the apparent failure to consider whether any prohibition arises under Article 32 renders the Attorney General's warrant bad on its face.  Adopting the words of Lord Denning in a 1952 case, the submission here is that that there was a clear error on the face of the record, and that this alone means that the Attorney General's order should be set aside. 

32.      I have already referred to the contention that the arrangement offered by Australia in this case is demonstrably inadequate to guarantee the minimum rights and protection of the Appellant.  I have also referred to the purposes and importance of the specialty principle and to the relevant provisions of Article 32 to which the Appellant attaches great weight.  Under this ground of appeal also emphasis is placed on the alleged strictness of the statutory provisions.  It is submitted that there was not total compliance with the statutory requirement and that there is a bar to extradition. 

33.      On behalf of the Respondent it is submitted that the Appellant can point to no authority for these propositions and that the cases he cites are not relevant.  Advocate Jowitt submits that the position is governed by Articles 38 and 39 of the Law.  Article 38 requires certain information to be given by the Attorney General.  If, as here, he orders a persons' extradition, the Attorney General shall (a) inform the person of the order and (b) inform him of his right to appeal.  Article 39 requires that:-

"An order-

(a) under Article 30 for a person's extradition.....

shall be made in writing, and signed by the Attorney General...."

It is submitted that the Attorney General complied with these requirements and was not required to say anything more.  The fact that he did so cannot affect the validity of the order.  Therefore it is said the Appellant cannot point to any procedural rule which has been breached and in my view it cannot be claimed that there was an error on the face of the record.  In any event Advocate Jowitt submits that there is no permissible ground of appeal under Article 46.  He further submits that on the basis of judicial comment in the case of Welsh technical complaints of the type made here do not found any basis for a successful appeal.

34.      I agree with the submissions made on behalf of the Respondent. There is no merit in this ground of appeal.  The Attorney General is not obliged to refer to Article 30 (1)(b) and his failure to do so does not invalidate his order.  Moreover it is clear from the terms of the Attorney General's original certificate which in all probability preceded the making of the order, and from the contents of his letter of the same date to the Appellant in which he made express reference to Article 32, that the Attorney General was well aware of and had already considered the question of specialty.  I have no difficulty in concluding that the Attorney General had decided that he was not prohibited under Articles 30 or 32 from ordering the Appellant's extradition.  I also take the view that this complaint does not constitute a ground of appeal under Article 46. 

35.      The third ground of appeal is that the decision of the Attorney general is vitiated by reason of a lack of structural impartiality.  Advocate O'Connell did not make any further oral submissions to develop this ground but relied on the contents of his skeleton argument.  It is said that there is a problem because the Respondent, the Commonwealth of Australia, was represented and advised by the Attorney General and the Attorney General is also the ultimate decision maker as to the Appellant's extradition.  The example is cited of a letter on the Attorney General's note paper sent from the Law Officer's Department.  It is submitted that the prosecuting authority in extradition proceedings are acting as the solicitor to a requesting state.  It is not suggested that there was actual bias. However I accept that the test is whether a fair minded and informed observer would think that the decision of the Attorney General under Article 30 of the Law was impartial.  It is fairly described as a quasi judicial decision.  I have been helpfully provided with extensive references from a number of English authorities to the characteristics and possible perceptions of a fair minded and informed observer and I bear them well in mind.  I am also aware that unintentional bias may be present and I have in mind the case of Ex parte Dallagio [1994] 4 All ER 139.  Accordingly it is submitted that to avoid the appearance of partiality the Respondent should have instructed private lawyers to conduct these proceedings on their behalf.  Advocate Jowitt submits that the question of partiality is not a ground of appeal permitted under Article 46 and that, in any event, this ground has no merit.  I agree.  It would never have occurred to a fair minded and informed observer that the Attorney General's decision was partial or biased and this complaint does not give rise to a permitted ground of appeal.  I dismiss it. 

36.      In my judgment the Appellant has failed to establish any grounds on which the appeal could be allowed.  Accordingly I dismiss his appeal and uphold the Attorney General's order. 

Authorities

Extradition (Jersey) Law 2004.

R-v-Governor of Brixton Prison ex-parte Sadri [1962] 1 WLR 1304.

David Lee-v-Governor of Pentonville Prison Government of USA CO/1685/86.

Re Farinha [1992] Imm A R 174.

R (Castillo)-v-Spain [2005] 1 WLR 1043.

Regina (Guiso)-v-Governor of Brixton Prison [2004] 1 AC 101.

Gomes-v-Government of Trinidad & Tobago [2009] 1 WLR 1038.

Pinto-v-Brixton Prison Governor [2004] EWHC 2986 (Admin).

Carl Antonio Hall-v-The Government of Germany [2006] EWHC 462 (Admin).

Welsh and another-v-Secretary of State for the Home Department and another [2007] 1 WLR 1281.

R-v-Secretary of State for the Home Department, ex-parte Hill [1999] Q B 886.

R-v-Governor of Pentonville Prison ex-parte Lee [1993] 3 All E R 504.

Birmingham-v-Director of Serious Fraud Office and Secretary of State for the Home Department [2006] EWHC 200.

Cokaj-v-Secretary of State for the Home Department [2007] EWHC 238.

Ex parte Launder No 2 [1998] QB 994.

Babar Ahmad, Haroon Rashid Aswat-v-The Government of the United States of America [2006] EWHC 2927.

R-v-Propend Finance Property Ltd [1996] Cr App R 26.

Chatta.

Australian Extradition Act 1988.

R-v-Arain and the Government of Germany [2006] EWHC 1702.

Ex parte Dallagio [1994] 4 All E R 139.