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Cite as: [1990] 1 AC 579, [1989] 3 WLR 436, (1990) 90 Cr App R 199, [1989] 2 All ER 1025, [1989] UKHL 6, [1990] COD 27, [1990] AC 579

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HOUSE OF LORDS

[1989] UKHL 6

Date: 20 July 1989

	DIRECTOR OF PUBLIC PROSECUTIONS	(APPELLANT)
	v.
	ARONSON	(RESPONDENT)
	(APPLICATION FOR A WRIT OF HABEAS CORPUS)
	(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)

Lord Bridge of Harwich
Lord Elwyn-Janes
Lord Griffiths
Lord Jauncey of Tullichettle
Lord Lowry

LORD BRIDGE OF HARWICH

My Lords,

This appeal turns upon the construction of section 3(1)(c) of the Fugitive Offenders Act 1967. When a designated Commonwealth country seeks the return from the United Kingdom of a person who is accused or has been convicted of an offence against the law of that country ("a Commonwealth offeence that offence is only a "relevant offence" if

"the act or omission constituting the offence .... would constitute an offence against the law of the United Kingdom if it took place within the United Kingdom."

What does this phrase mean? Does it mean that the ingredients of the Commonwealth offence, as disclosed by the particulars of the offence in the charge, would, if proved, establish guilt of a corresponding United Kingdom offence ("the narrow construction")? Or does it mean that that totality of the evidence relied upon to prove the Commonwealth offence would, if accepted, prove guilt of a corresponding United Kingdom offence ("the wide construction")? I have reached the clear conclusion that the narrow construction is to be preferred.

The issue arises when the Commonwealth offence may be established by particularising and proving ingredients A, B and C, but the nearest corresponding United Kingdom offence requires that the prosecution prove ingredients A, B, C and D it is submitted for the Government of Canada and the Governor of Her Majesty's Prison Pentonville ("the appellants") that: it is a particular case, the evidence relied on to prove the Commonwealth offence would be sufficient, if accepted, to establish ingredient D in addition to ingredients A, B and C, this is sufficient to satisfy the requirements of section 3(1)(c). Whether the extra ingredient necessary to prove the United Kingdom offence, over and above the ingredients which constitute the Commonwealth offence, is a physical or mental element, the wide construction leads to startling results. Two men are accused of the identical Commonwealth offence particularised against them in identical terms. The committing magistrate must decide whether the offence with which each is charged is a "relevant offence:" section 7(5). If the evidence establishes ingredients A, B and C against both men but ingredient D against the first man only, the magistrate must commit the first man, but not the second, to custody to await his return to the designated Commonwealth country. Yet so much of the evidence that is relied on to establish ingredient D, or any inference drawn from the evidence to establish ingredient D, will be irrelevant to his trial for the Commonwealth offence after his return. The anomaly is even more striking in relation to a fugitive whose return is sought as a convicted offender. Neither the jury's verdict of guilty nor his own plea of guilty to the Commonwealth offence as charged will be sufficient to resolve the question whether the Commonwealth offence of which he was convicted was a "relevant offence." The committing magistrate will have to go behind the verdict or the plea and the convicted offender's liability to return will presumably depend on the magistrate's own view as to whether the evidence establishes all the ingredients of the corresponding United Kingdom offence. I do not think the language of the statute fairly admits of the wide construction. The short answer is that neither the additional ingredient, nor the evidence which is said to establish that ingredient, forms any part of the material "constituting" the Commonwealth offence. But, if the language is ambiguous, the narrow construction is to be preferred in a criminal statute as the construction more favourable to the liberty of the subject.

The basic fallacy in the appellants' argument, as set out in paragraphs 1 to 5 under the heading "Question 1" in their written case, lies in the attempt to assimilate the requirements of the Act of 1967 to the requirements of the Extradition Act 1870. The attempt fails because the structure and machinery of the two Acts are entirely disparate. An "extradition crime" under the Act of 1870 is one of the specific English crimes set out in the "List of Crimes" in Schedule 1. The introductory paragraph reads:

"The following list of crimes is to be construed according to the law existing in England, or in a British possession (as the case may be), at the date of the alleged crime, whether by common law or by statute made before or after the passing of this Act . . . ."

Nowhere in the Act of 1S70 is there any provision which has the effect of imposing a double-criminality rule, though such a rule may be introduced into the extradition machinery by the provisions of particular treaties. By contrast, Schedule 1 to the Act of 1967 sets out a list of returnable offences described in broad categories and reproducing in terms the list found in Annex 1 to the Scheme relating to the Rendition of Fugitive Offenders within the Commonwealth (1966) (Cmnd. 3008) agreed between Commonwealth Law Ministers in 1966. Legislating to give effect to the Scheme, it was necessary to provide that a returnable offence should both fall within one of those broad categories and satisfy the "double-criminality rule" laid down in clause 10 of the Scheme. That explains why the definition of "relevant offence" in section 3(1) requires that, in relation to a designated Commonwealth country, both paragraphs (a) and (c) should be satisfied.

For these reasons, and for those given by my noble and learned friend Lord Lowry, with whose speech I fully agree, I would dismiss the appeal.

LORD ELWYN-JONES

My Lords,

This appeal involves construction of section 3(1)(c) of the Fugitive Offenders Act 1967, which created a stricter "and more demanding scheme of extradition than its predecessor the Fugitive Offenders Act 1881. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bridge of Harwich and Lord Lowry. I agree with them and with "the narrow construction" of the words in the section. To the extent that the section is ambiguous, as the Act of 1967 imposes criminal liability, it should, in my opinion, be construed in the narrow sense in favour of the liberty of the subject. I would dismiss the appeal.

LORD GRIFFITHS

My Lords,

The Canadian Government wish to extradite the applicant to stand trial in Canada on a large number of offences of dishonesty which he is alleged to have committed in Canada between 19S3 and 1986. The Chief Metropolitan Stipendiary Magistrate was satisfied by evidence produced by the Canadian Government that the offences were relevant offences within the meaning of section 3 of the Fugitive Offenders Act 1967 and that the evidence was sufficient to warrant the trial of the applicant for those offences if he had committed them in England. The magistrate therefore committed applicant to custody to await his return to Canada to stand trial on 77 offences.

The applicant applied for habeas corpus and before the Divisional Court submitted that he had been wrongly committed on 69 of the offences. The Divisional Court if they had felt free to do so would have upheld the magistrate; however, they felt constrained by authority to apply a construction of the Act of 1967 which they clearly considered incorrect and which forced them to quash the committal in respect of 69 of the offences. In my opinion the Divisional Court's preferred construction of the Act of 1967 is correct and the applicant should be committed on all 77 charges. Furthermore, I do not think that the earlier authorities cited by the Divisional Court in fact compelled them to adopt a construction of the Act which they did not believe to be right.

The Act of 1967 was introduced to give effect to a Scheme relating to the Rendition of Fugitive Offenders within the Commonwealth (Cmnd. 3008) presented to Parliament by the Secretary of State for the Home Department by command of Her Majesty in May 1966. It is, I think, worth setting out the foreword to the Scheme:

"At the meeting of Commonwealth Law Ministers, held at Marlborough House, London, from 26 April to 3 May 1966, the arrangements for the extradition of fugitive offenders within the Commonwealth were reviewed in the light of the constitutional changes which have taken place since the passing of the Fugitive Offenders Act 1881.

"The following extract from the communique issued at the conclusion of the meeting explains the purpose of the Scheme, the text of which is reproduced at pages 1-8:

'The meeting considered that Commonwealth extradition arrangements should be based upon reciprocity and substantially uniform legislation incorporating certain features commonly found in extradition treaties, e.g. a list of returnable offences, the establishment of a prima facie case before return, and restrictions on the return of political offenders.

'The meeting accordingly formulated a Scheme setting out principles which could form the basis of legislation within the Commonwealth and recommended that effect should be given to the Scheme in each Commonwealth country. The Scheme does not apply to Southern Rhodesia."'

This was a radically different scheme from that which had previously applied to the extradition of fugitive offenders under the Fugitive Offenders Act 1881. Under that Act a fugitive was returnable if he had committed any crime in a part of Her Majesty's dominions punishable with imprisonment for more than 12 months regardless of whether or not his conduct amounted to a crime in that part of Her Majesty's dominions where he was arrested. The new scheme proposed that a fugitive should only be returned for a returnable offence and proposed the introduction of what it described as the double criminality rule. The relevant paragraphs read as follows:

"Returnable Offences

"2-(l) A fugitive will only be returned for a returnable offence.

"(2) For the purposes of this Scheme a returnable offence is an offence described in Annex 1 (whatever the name of the offence under the law of the countries and territories concerned, and whether or not it is described in that law by reference to some special intent or any special circumstances of aggravation), being an offence which is punishable by a competent court in the country or territory to which return is requested by imprisonment for 12 months or a greater penalty."

"Double-criminality rule

"10. The return of a fugitive offender will either be precluded by law or be subject to refusal by the competent executive authority if the facts on which the request for his return is grounded do not constitute an offence under the law of the country or territory in which he is found."

The definition of a relevant offence in section 3 of the Act of 1967 provides:

"(1) For the purposes of this Act an offence of which a person is accused or has been convicted in a designated Commonwealth country or United Kingdom dependency is a relevant offence if -

"(a) in the case of an offence against the law of a designated Commonwealth country, it is an offence which, however described in that law, falls within any of the descriptions set out in Schedule 1 to this Act, and is punishable under that law with imprisonment for a term of 12 months or any greater punishment;

"(b) in the case of an offence against the law of a United Kingdom dependency, it is punishable under that law, on conviction by or before a superior court, with imprisonment for a term of 12 months or any greater punishment; and

"(c) in any case, the act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of the United Kingdom if it took place within the United Kingdom or, in the case of an extra-territorial offence, in corresponding circumstances outside the United Kingdom.

"(2) In determining for the purposes of this section whether an offence against the law of a designated Commonwealth country falls within a description set out in the said Schedule 1, any special intent or state of mind or special circumstances of aggravation which may be necessary to constitute that offence under the law shall be disregarded.

"(3) The descriptions set out in the said Schedule 1 include in each case offences of attempting or conspiring to commit, of assisting, counselling or procuring the commission of or being accessory before or after the fact to the offences therein described, and of impeding the apprehension or prosecution of persons guilty of those offences.

"(4) References in this section to the law of any country (including the United Kingdom) include references to the law of any part of that country."

Sections 3(1)(a) and (b) and (2) of the Act correspond to clause 2 of the Scheme. The Schedule of the Act is identical to Annex 1(A) of the Scheme and section 3(3) of the Act to Annex 1(B) of the Scheme. Section 3(1)(c) enacts the double criminality rule contained in clause 10 of the Scheme.

This introduction brings me to the short point of construction raised by this appeal. For convenience I set out again section 3(1)(c):

"in any case, the act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of the United Kingdom if it took place within the United Kingdom or, in the case of an extra-territorial offence, in corresponding circumstances outside the United Kingdom."

The question is what is meant by the words "the act or omission constituting the offence." Do these words refer to the conduct of the accused so that section 3(1)(c) is satisfied if what he did would constitute a crime if committed in this country? Or do the words refer to the ingredients of the Canadian offence so that section 3(1)(c) is only satisfied if the definition of the offence in the Canadian Criminal Code contains all the ingredients in the definition of a corresponding English offence. The Divisional Court would have adopted the former construction but reluctantly felt constrained by the decision of the Divisional Court in Reg. v. Governor of Pentonville Prison, Ex parte Myers (unreported) 6 December 1972 to adopt the latter construction with the result that the man against whom there is evidence that he committed 69 offences of dishonesty for which he could be tried in this country cannot be tried in Canada on any of them.

I have no hesitation in construing the words "act or omission constituting the offence" as a reference to the conduct of the accused. I cannot reconcile the alternative construction with section 3(1)(a) which by its language shows that what is required is broad similarity, not exact correspondence, of offence: a factor emphasised by section 3(2) which directs that questions of special intent or state of mind or aggravating circumstances shall be disregarded when considering whether an offence in a Commonwealth country is within a description of crime contained in Schedule 1. To adopt the alternative construction is to look for exact correspondence between the definition of the crimes in the two countries and no scheme of extradition based on such a premise will ever be workable as has been recognised since the early days of the operation of extradition laws.

We should, so far as we are able, construe this Act to give effect to the Commonwealth Scheme upon which it was founded. The double-criminality rule in clause 10 of the Scheme is clear enough: a fugitive is not to be returned if "the facts on which the request for his return is grounded do not constitute an offence" in this country. The facts can only be a reference to the facts established by evidence which comprise the conduct of the accused. If the evidence is that the accused has committed crimes which are in the broad description contained in Schedule 1 - and in this case it is not disputed that that is so - I can see no injustice in returning him to Canada if what he is alleged to have done would also have been criminal in this country, which is also not disputed in this case. This was the intention of the Scheme and I can see no reason why Parliament should not have wished to implement it.

I can find no support in the authorities to which the Divisional Court referred for the construction that the Divisional Court felt compelled to place upon section 3(1)(c). As I understand their judgment, the Divisional Court held that the court should look at the Canadian offence as framed in the Canadian code and that, if that offence lacked any ingredient of the corresponding English offence, then the fugitive could not be extradited regardless of the fact that the particulars of the charge revealed conduct that constituted the English offence. This the Divisional Court believed to be the effect of Reg. v. Governor of Brixton Prison, Ex parte Gardner [1968] 2 Q.B. 399 and Reg. v. Governor of Pentonville Prison Ex parte Myers. But as I read these authorities they were concerned not with the construction of section 3(1)(c) but with the way in which the particulars of the offence should be established for the purposes of the committal proceedings. It is axiomatic that a person charged with a crime is entitled to know not only the offence with which he is charged, be it a statutory or common law crime, but also to have particulars of the conduct which it is alleged constituted the offence. The difficulty that confronted the New Zealand Government in Ex parte Gardner was that the only particulars of the offence for which extradition was requested were those contained in the New Zealand warrant attached to the authority to proceed, and, that they alleged a false pretence as to a future event, which is not a crime under English law. It was therefore clear that it was the intention of the New Zealand Government to prosecute the accused for conduct which did not amount to a crime in this country. This offended against the double-criminality rule and it was for this reason that extradition was refused. There was no discussion of alternate constructions of section 3(1)(c) and the case appears to me to have proceeded upon the assumption that section 3(1)(c) required the courts to examine the conduct alleged against the accused.

In Ex parte Myers, the court faced the same problem in that the only particulars of the offence were those contained in the Canadian warrant and that from the wording of the Canadian charge it appeared that it might be the intention to prosecute the accused in Canada for conduct that would not be criminal in this country. Again, there is no discussion of alternate constructions of section 3(1)(c). Lord Widgery C.J. said:

"The problem as it seems to me throughout this case has been: how is one to identify the act or omission constituting the offence charged against the law of Canada . . . ?"

There then follows a long discussion of the construction that should be put upon the wording of the charge, i.e. the particulars of the offence. This is, of course, necessary if one is attempting to discover the conduct alleged against the accused but is wholly unnecessary if one is comparing the definitions of the Canadian and the English crimes. I read this authority as proceeding upon the construction of section 3(1)(c) preferred by the Divisional Court and not, as they thought, as support for the alternative construction they felt compelled to adopt.

In Ex parte Gardner Edmund Davies L.J. recognised that it might in some cases be necessary to look at the evidence in the depositions to determine whether the particulars disclosed a relevant offence. Despite the difficulties of construction with which the court was faced in Ex parte Myers Lord Widgery CJ. decided not to look at the evidence as an aid to the construction of the charge in the Canadian warrant. In my view if any difficulty arises in determining "the acts or omissions" on which the requesting country relies the magistrate should look at the evidence in the depositions and, if necessary, allow amendment to the particulars in the charge to make it quite clear that he is committing on a relevant offence, i.e. one that would be a criminal offence in this country. If, of course, the depositions show that the acts or omissions would not constitute criminal behaviour in this country, the magistrate will not commit on that charge.

There was some discussion before your Lordships as to whether the magistrate commits for the Canadian or the English offence. In my view neither formulation is correct. The magistrate commits if he is satisfied that the authority to proceed discloses a relevant offence and that the evidence discloses a prima facie case: see section 7(5)(a). It is important that the warrant of committal should contain clear particulars of each relevant offence to ensure that the accused will only be tried in the requesting country for a criminal offence founded on the acts or omissions identified in the particulars, in order to comply with the requirements of section 4(3):

"A person shall not be returned under this Act to any country, or committed to or kept in custody for the purposes of such return, unless provision is made by the law of that country, or by an arrangement made with that country, for securing that he will not, unless he has first been restored or had an opportunity of returning to the United Kingdom, be dealt with in that country for or in respect of any offence committed before his return under this Act other than -

"(a) the offence in respect of which his return under this Act is requested;

"(b) any lesser offence proved by the facts proved before the court of committal} and

"(c) any other offence being a relevant offence in respect of which the Secretary of State may consent to his being so dealt with."

I read "offence" in this subsection as a reference to the offence as particularised in the magistrate's warrant of committal, and this protects the accused from trial for any alleged criminal action other than that for which he has been returned.

It was submitted that this construction of section 3(1)(c) would lead to difficulty when a request was made for the return of a prisoner who had escaped after conviction because of the difficulty of knowing upon what finding of fact a jury might have convicted him I believe that in the vast majority of cases there would be no difficulty in showing whether or not the crime for which the accused was convicted was founded on facts that constitute an English crime. I can conceive of the very rare case where there might be some doubt upon which of two alternate bases a jury convicted where one view of the facts showed the commission of a crime under English law and the other did not. I accept that in such a case the accused could not be returned to finish his sentence. I believe such a situation to be more hypothetical than real, and one hopes that not many requests for return will be necessary because the authorities in the requesting country have allowed the prisoner to escape: by far the most common situation is a request for the return of a criminal who has fled the country before arrest. I prefer to accept the very limited difficulty that may arise in such cases to the alternative of adopting a construction of the Act that will make it nigh unworkable.

I would allow the appeal and restore the order of the Magistrate.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Griffiths. Subject to one minor qualification, to which I shall refer later, I entirely agree with his reasonings and conclusion and I, also, would allow the appeal. I only wish to add a few observations of my own to those of my noble and learned friend.

I, too, have no hesitation in construing the words "act or omission constituting the offence" as a reference to the conduct of the accused. An offence against the law of a designated Commonwealth country is a relevant offence for the purposes of the Act of 1967 if it satisfies the requirements of paragraphs (a) and (c) of section 3(1). Paragraph (a) refers to "an offence" and requires that such offence falls within any of the descriptions set out in Schedule 1. It requires not identity of offence but rather broad similarity, no doubt recognising that conduct of a similar type will not necessarily be given an identical label in every Commonwealth country. Paragraph (c), on the other hand, refers to "the act or omission constituting the offence" which words it is reasonable to assume were intended to have a different meaning to "the offence" or "an offence." If those words were intended to refer to such conduct as would in the law of the designated Commonwealth country constitute an offence without regard to the actual conduct of the accused it would be a pointless exercise first to bring the Commonwealth offence under the broad umbrella of similarity in paragraph (a) and then go on to see whether it was also covered by the parasol of identity of ingredients in paragraph (c). Such a result could have been achieved by one paragraph which provided that an offence was a relevant offence if the ingredients required to constitute it in the designated Commonwealth country also constituted an offence in the United Kingdom. The fact that the two paragraphs rather than one were included in the subsection suggests, almost irresistibly, that Parliament intended that the second paragraph should apply to the actual conduct of the accused and not to the ingredients required by the law of the designated Commonwealth country to constitute the offence. In the Divisional Court, Bingham L.J. said that if the matter were free from authority he would have concluded:

"that the task of an English court of committal in determining whether an offence was a relevant offence under section 3 was:

"(a) to determine whether or not the designated Commonwealth country offence (with or without additional ingredients) fell within any of the descriptions set out in the schedule;

"(b) to determine whether or not the designated Commonwealth country offence was punishable under the law of the designated Commonwealth country with 12 months' imprisonment or more; and

"(c) to determine whether the accused person's conduct, relied on as constituting an offence under the law of the designated Commonwealth country, would be criminal in England if the conduct had occurred here. In performing task (c) I would expect the court to review the evidence adduced by the designated Commonwealth country in support of its application for the return of the accused person in order to decide whether, and to what extent, the accused person's conduct disclosed in the evidence would found criminal charges in England. I would therefore expect an inquiry into the accused person's conduct and an analysis of it in terms of English criminal law, not the comparison of legal definitions. If, of course, the designated

Commonwealth country and English crimes were identical the only inquiry (subject to section 3(1)(a), would be as to the sufficiency of the evidence."

I would endorse this approach to the application of section 3.

I turn to consider the authorities by which the Divisional Court considers themselves to be bound. Reg. v. Governor of Brixton Prison. Ex parte Gardner [1968] 2 Q.B. 399 did not, in my view, preclude the Divisional Court from adopting their preferred construction of section 3. In that case it was apparent from the terms of the New Zealand warrant that the offences with which the applicant was charged would not constitute offences in English law. Lord Parker C.J.. said, at p. 416:

"If one then looks at the offences set out and considers them in the light of section 3(1)(c), it seems to me perfectly clear that the acts complained of in the offences with which the applicant was charged would not constitute offences under the law of this country."

When the Lord Chief Justice used the words "acts complained of in that sentence, he was, in my view, referring to the actual conduct relied upon in the charges and not to the ingredients required by the law of New Zealand to constitute the offences. In these circumstances Lord Parker found it unnecessary to consider further the details of the case. However, Edmund Davies L.J., after rejecting a submission that section 7(5) obliged the committing magistrates in every case to consider the contents of the depositions, said, at p. 417:

"Such a task may, indeed, be necessary for the removal of doubts as to whether the offence to which the authority relates is a relevant offence. But if, as in the present case, the other 'evidence tendered in support of the request' makes it clear that that offence is not a relevant offence, nothing contained in the depositions can cure that fatal flaw, and their consideration therefore becomes otiose."

Ex parte Gardner did not decide, as a matter of principle and indeed did not require to decide, that the act or omission constituting the offence in section 3(1)(c) must be determined solely by reference to the ingredients required in the laws of the designated Commonwealth country to constitute the offence.

Bingham L.J. described the effect of the decision in Reg. v. Governor of Pentonville Prison Ex parte Myers (unreported), 6 December 1972 as being:

"that in deciding whether an offence is a relevant offence the court of committal should not look at the conduct alleged against the accused person and ask if that would be criminal if done here but should rather look at the charge formulated by the designated Commonwealth country under its own law and ask whether it would permit the accused person to be convicted here."

In that case, as in the present case, the Divisional Court had to consider whether an offence charged under section 338(1) of the Criminal Code of Canada was a relevant offence for the purposes of section 3 of the Act of 1967. Lord Widgery C.J., after mentioning that section 338(1) was wider in scope than section 15 of the Theft Act 1968, said:

"one really is driven to the conclusion that if this man is sent back to Canada to be tried on charge 1 of the authority to proceed, he may very well find himself faced with a charge within the scope of paragraph 338, but outside the scope of section 15 of the Theft Act. In other words, it seems to me that the act or omission constituting the offence, so far as that act or omission can be discovered in the terms of the charge, is too wide to satisfy section 3(1)(c). Whether that deficiency would be in any way made good by looking at the depositions, I do not feel disposed to say. For my part I think one ought to follow the Gardner principle here, and taking the view that I do, that on its face illuminated by the paragraph of the Criminal Code to which I have referred, charge 1 does rely on acts or omissions as constituting the offence which acts or omissions one cannot positively say are within the scope of the English criminal law. It seems to me, therefore, that Mr. Blom-Cooper [leading counsel for the applicant] succeeds in regard to the first charge on that issue which has been the one which has given us the most difficulty."

If I understand Lord Widgery correctly, he was saying that because Myers might ultimately be convicted in Canada under section 338(1) upon facts which would not found a conviction in England under section 15 of the Act of 1968, the requirements of section 3(1)(c) were not satisfied. I do not find the reference to the Ex parte Gardner principle easy to understand. If any principle is to be deduced from that case it can only be that where it appears ex facie of a Commonwealth warrant that the acts complained of in the offences charged would not constitute offences in England, the requirements of section 3(1)(c) are not satisfied.

In Ex parte Myers, however, the facts outlined by Lord Widgery would almost certainly have constituted an offence under section 15 of the Act of 1968. The difficulty was created not by the character of the acts relied upon by the Canadian authorities but by the terms of the relevant Canadian section. To such a situation I do not consider that Ex parte Gardner has any application. I therefore conclude that Lord Widgery was in error, both as to his understanding of what the Ex parte Gardner principle was and also as to his application thereof to the case before him. It follows that Ex parte Myers was wrongly decided. It is to this extent alone that I differ from the views expressed by my noble and learned friend, Lord Griffiths.

LORD LOWRY

My Lords,

This is an appeal on the part of the Government of Canada and the Governor of Her Majesty's Prison at Pentonville by leave of the Divisional Court of the Queen's Bench Division (Bingham L.J. and Leggatt J.), The Times, 24 December 1988, from an order made by that court on 20 December 1988 whereby it was ordered that a magistrate's order committing the respondent to prison under section 7 of the Fugitive Offenders Act 1967 ("the Act") in respect of 77 offences listed in a schedule to that order to await his return to Canada under the Act should be quashed in respect of 69 of those offences, on the ground that they were not "relevant offences" within the meaning of section 3(1) of the Act. The Divisional Court at the same time ordered that the respondent should remain in custody in respect of the remaining eight offences pending a decision by the Secretary of State under section 9(1) of the Act whether to return him to Canada or not, and no question arises as to those eight offences, which are admitted to be relevant offences.

In the case which is now before your Lordships the Government of Canada, which is a designated Commonwealth country for the purposes of the Act, made a request to the Secretary of State for the return of the respondent to that country.

On 22 October 1987 a provisional warrant for the arrest of the respondent, who was then serving a prison sentence, was issued, and on 15 January 1988, having completed his sentence, he was arrested in Manchester. On 23 March 1988 the Secretary of State issued an authority to proceed which was addressed to the Chief Metropolitan Stipendiary Magistrate in the following terms:

"A request having been made to the Secretary of State on behalf of the Government of Canada for the return to that country of Richard Allen Aronson, also known as Richard Soderlind and Aaron Rubens, who is accused of the offences of obtaining property by deception, attempting to obtain property by deception, theft, forgery, using false instruments and having articles designed or adapted for making false instruments, as set out in the attached schedule:

The Secretary of State hereby orders that a metropolitan stipendiary magistrate proceed with the case in accordance with the Fugitive Offenders Act 1967."

The schedule contained details of 78 offences said to have been committed in Canada, each in contravention of a specified section of the Criminal Code of Canada.

On 11 May 1988, a magistrate heard preliminary argument on the question whether the offences of which the; respondent was accused were "relevant offences" as defined by section 3(1) of the Act, the importance of that point being that, as provided by section 1, the liability to be returned to the requesting country affects only a person found in the United Kingdom who is accused of a relevant offence in that country. The magistrate ruled that the offences in the schedule to the authority to proceed were relevant offences, and on 1 and 2 August 1988 the Chief Metropolitan Stipendiary Magistrate heard evidence to determine whether there was sufficient evidence to commit the respondent. He held that there was such evidence, except in regard to the offence numbered 75 (about which no further argument arises), and issued a warrant of commitment in respect of the other 77 offences. The question now for your Lordships is whether the 69 offences in respect of which the Divisional Court (the members of which regarded themselves as bound by authority) quashed the magistrate's order are in point of law relevant offences or not. If they are, it is conceded by the respondent that the evidence for committal on each of them was sufficient. It is common ground that the answer depends on the true interpretation of section 3(1) of the Act, which reads as follows:

"For the purposes of this Act an offence of which a person is accused or has been convicted in a designated Commonwealth country or United Kingdom dependency is a relevant offence if-

(a) in the case of an offence against the law of a designated Commonwealth country, it is an offence which, however described in that law, falls within any of the descriptions set out in Schedule 1 to this Act, and is punishable under that law with imprisonment for a term of twelve months or any greater punishment;

(b) in the case of an offence against the law of a United Kingdom dependency, it is punishable under that law, on conviction by or before a superior court, with imprisonment for a term of twelve months or any greater punishment; and

(c) in any case, the act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of the United Kingdom if it took place within the United Kingdom or, in the case of an extra-territorial offence, in corresponding circumstances outside the United Kingdom."

This subsection will have to be considered in its statutory context and also against the historical background. I mention it now for the purpose of identifying the question which falls to be decided by your Lordships. What is meant by the words "the act or omission constituting the offence"? The Government of Canada and the Governor of Her Majesty's Prison Pentonville ("the appellants") the appellants contend that the words mean the criminal conduct of the fugitive constituting an offence against the law of the United Kingdom, as demonstrated by the evidence before the magistrate, even if the ingredients which go to make up that criminal conduct do not always correspond with the ingredients of the criminal conduct alleged in the Commonwealth country's warrant. The respondent, on the other hand, says that "the offence" means the offence of which the fugitive is accused in the Commonwealth country and accordingly that "the act or omission constituting the offence" means the criminal conduct specifically alleged against him in the Commonwealth country's warrant. Thus, he argues, the magistrate cannot commit the fugitive unless the Commonwealth offence charged against him would also constitute an offence against the law of the United Kingdom and (by reference to section 7(5) of the Act) unless the evidence before the magistrate would be sufficient to warrant the fugitive's trial for that offence if it had been committed within the jurisdiction of the court.

I take as an illustration the facts of Reg v. Governor of Brixton Prison. Ex parte Gardner [1968] 2 Q.B. 399, by which the Divisional Court, albeit with reluctance, felt itself constrained to decide the present case in favour of the respondent. Warrants were issued in New Zealand for the arrest of Gardner on charges which alleged that he had obtained money by false pretences with regard to the future (an offence in New Zealand but not one then recognised by English law). The Secretary of State issued an authority to proceed which stated inter alia that Gardner was accused of offences of obtaining money by false pretences. The magistrate considered the authority to proceed, found that it related to offences of obtaining money by false pretences and, having read the evidence in the form of New Zealand depositions, found a prima facie case of false pretences as to the present, contrary to the law of the United Kingdom, and committed the fugitive under section 7 to await his return to New Zealand. On the fugitive's application for a writ of habeas corpus the Divisional Court (Lord Parker C.J., Edmund Davies L.J. and Widgery 3.) held that the words "act or omission constituting the offence" meant the act or omission constituting the offence of which the person was accused in the Commonwealth country and that the Secretary of State's authority to proceed related to that offence - in the instant case to tine offences of which the fugitive was accused in New Zealand, as disclosed in the warrants: accordingly, since the acts constituting those offences as so disclosed would not, if they took place within the United Kingdom, constitute offences against the law of the United Kingdom, the authority to proceed did not relate to "relevant offences".

Before turning to the problem of construction, it will be helpful to look at the basis on which, if Ex parte Gardner is applied, the disputed 69 offences fall to be treated as not relevant. Bingham L.J. has precisely and clearly analysed this point in his judgment, dividing the charges into six groups.

Group 1 consists of 32 offences against section 338(1) of the Criminal Code of Canada, which provides:

"Everyone who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public this ... is guilty of an indictable offence."

As to this Bingham L.J. observed:

"It is apparent that under this provision, contrary to the law here, a defendant could be convicted even if he had perpetrated no deception and in the absence of an intention to deprive the victim permanently of the goods or money obtained. Thus the Canadian offence not only has ingredients additional to those required here but lacks ingredients which the English criminal law treats as essential. If a conviction were obtained in this country on a charge so framed it would plainly have to be quashed. The same result must in my view follow so far as the committal on these counts is concerned.

It is pointed out that some of these charges, although not all, do allege false representations (as by giving false information or by passing worthless cheques) and that the facts show a clear intention permanently to deprive. The authorities to which I have referred in my view preclude us from giving effect to these submissions. The Canadian law would permit conviction even if no false representation and no intention to deprive permanently were established. The Canadian offence is one of "fraud", which here gives rise to no criminal liability of itself in the absence of conspiracy.

I feel bound to quash the committal on these counts."

Group 2 consists of six offences under section 320(1) of the Code, which provides: "Everyone commits an offence who (a) by a false pretence . . . obtains anything in respect of which . . . theft may be committed . . . ." The Canadian offence, however, does not require proof of an intention permanently to deprive, which is an essential ingredient in England, and therefore the respondent could be convicted in Canada on facts which would not support a conviction in this jurisdiction.

Group 3 consists of 19 charges under section 326(1)(a) of the Code, which provides:

"Everyone who, knowing that a document is forged, (a) uses, deals with, or acts upon it ... as if the document were genuine, is guilty of an indictable offence."

But, to convict under section 3 of the Forgery and Counterfeiting Act 1981, it is necessary to prove that the defendant used the false instrument

"with the intention of inducing somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice."

These ingredients need not be alleged or proved in order to convict under the Canadian provision.

Group 4 consists of six offences under section 326(1)(b) of the Code, which provides:

"Everyone who, knowing that a document is forged ...(b) causes or attempts to cause any person to use, deal with, or act upon it, as if the document were genuine, is guilty of an indictable offence."

The Canadian offence does not require proof of an intention that the person induced to accept the document as genuine should do so to his own or another's prejudice, but this is an essential ingredient under English law.

Group 5 contains two charges under section 361(a) of the Code, which provides:

"Everyone who fraudulently personates any person, living or dead, (a) with intent to gain advantage for himself or another" . . is guilty of an indictable offence."

Here again it is clear that the Canadian offence does not require proof of the intention to cause prejudice needed by section 3 of the Act of 1981 or the intention permanently to deprive demanded by section 15 of the Theft Act 1968.

Group 6 consists of four offences under section 361(b) of the Code, which provides:

"Everyone who fraudulently personates any person living or dead ...(b) with intent to obtain any property or an interest in any property ... is guilty of an indictable offence . . . . "

But the Canadian offence does not require proof of the intent necessary under section 2 of the Act of 1981 or the intention permanently to deprive needed by section 15 of the Act of 1968.

Before the Act came into force (on 1 September 1967) the return of fugitive offenders within Her Majesty's dominions was governed by the Fugitive Offenders Act 1881. I would draw your Lordships' attention to sections 2, 5 and 9:

"2. Where a person accused of having committed an offence (to which this Part of this Act applies) in one part of Her Majesty's dominions has left that part, such person (in this Act referred to as a fugitive from that part) if found in another part of Her Majesty's dominions, shall be liable to be apprehended and returned in manner provided by this Act to the part from which he is a fugitive.

A fugitive may be so apprehended under an endorsed warrant or a provisional warrant".

"5. A fugitive when apprehended shall be brought before a magistrate, who (subject to the provisions of this Act) shall hear the case in the same manner and have the same jurisdiction and powers, as near as may be (including the power to remand and admit to bail), as if the fugitive were charged with an offence committed within his jurisdiction.

If the endorsed warrant for the apprehension of the fugitive is duly authenticated, and such evidence is produced as (subject to the provisions of this Act) according to the law ordinarily administered by the magistrate, raises a strong or probable presumption that the fugitive committed the offence mentioned in the warrant, and that the offence is one to which this Part of this Act applies, the magistrate shall commit the fugitive to prison to await his return, and shall forthwith send a certificate of the committal and such report of the case as he may think fit, if in the United Kingdom to a Secretary of State, and if in a British possession to the governor of that possession.

Where the magistrate commits the fugitive to prison he shall inform the fugitive that he will not be surrendered until after the expiration of fifteen days, and that he has a right to apply for a writ of habeas corpus, or other like process.

A fugitive apprehended on a provisional warrant may be from time to time remanded for such reasonable time not exceeding seven days at any one time as under the circumstances seems requisite for the production of an endorsed warrant".

. . . . . . . .

"9. This Part of this Act shall apply to the following offences, namely, to treason and piracy, and to every offence, whether called felony, misdemeanour, crime, or by any other name, which is for the time being punishable in the part of Her Majesty's dominions in which it was committed, either on indictment or information, by imprisonment with hard labour for a term of twelve months or more, or by any greater punishment; and for the purposes of this section, rigorous imprisonment, and any confinement in a prison combined with labour, by whatever name it is called, shall be deemed to be imprisonment with hard labour.

This Part of this Act shall apply to an offence notwithstanding that by the law of the part of Her Majesty's dominions in or on his way to which the fugitive is or is suspected of being it is not an offence, or not an offence to which this Part of this Act applies; and all the provisions of this Part of this Act, including those relating to a provisional warrant and to a committal to prison, shall be construed as if the offence were in such last-mentioned part of Her Majesty's dominions an offence to which this Part of this Act applies."

The magistrate's duty under section 5 was to decide whether the evidence raised a strong or probable presumption that the fugitive had committed the offence mentioned in the warrant, and by section 9 the Act applied to an offence notwithstanding that by the law of the place where the fugitive was it was not an offence to which the Act applied: therefore in discharging his duty the magistrate was concerned only with the substantive criminal law of the place where the charge was laid and not with that of his own jurisdiction. This scheme contrasted with that of the Extradition Act 1870 ("the Extradition Act"), as amended by the Extradition Act 1S73, which governed and, as further amended, still governs the extradition of foreign criminals to a foreign state, where an arrangement has been made and an Order in Council has applied the Act. Section 3 of the Extradition Act prohibits surrender if (0 the offence in respect of which surrender is demanded is of a political character or the purpose of the requisition is to try or punish the fugitive for such an offence or (2) the fugitive can be detained or tried for any offence other than the extradition crime proved by the facts on which the surrender is grounded. Section 10 (as amended by the Administration of Justice Act 1964, s. 39(2) and Sch. 3, para. 9) provides:

"10. In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged.

In the case of a fugitive criminal alleged to have been convicted of an extradition crime, if such evidence is produced as (subject to the provisions of this Act) would,, according to the law of England, prove that the prisoner was convicted of such crime, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged.

If he commits such criminal to prison, he shall commit him, there to await the warrant of a Secretary of State for his surrender, and shall forthwith send to a Secretary of State a certificate of the committal, and such report upon the case as he may think fit."

It deals with the extradition of persons convicted, as well as those accused, of an "extradition crime", which is defined in section 26 as "a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in the first schedule to this Act."

The legislation I have described formed the historical background to a meeting of Commonwealth Law Ministers which was held in London from 26 April to 3 May 1966 avowedly to review the arrangements for the extradition of fugitive offenders within the Commonwealth in the light of the constitutional changes which had taken place since the passing of the Act of 1881 and at which a "Scheme relating to the Rendition of Fugitive Offenders within the Commonwealth" was formulated. The purpose was explained in the foreword:

"The meeting considered that Commonwealth extradition arrangements should be based upon reciprocity and substantially uniform legislation incorporating certain features commonly found in extradition treaties, e.g. a list of returnable offences, the establishment of a prima facie case before return, and restrictions on the return of political offenders.

The meeting accordingly formulated a Scheme setting out principles which could form the basis of legislation within the Commonwealth and recommended that effect should be given to the Scheme in each Commonwealth country. The Scheme does not apply to Southern Rhodesia."

The terms of the Act when passed clearly show that it was intended to follow very closely the principles of the Scheme, as might indeed be expected of legislation giving effect to a scheme which represented an agreed recommendation. On the authority of Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. [1975] AC 591 (recently applied in your Lordships' House in Attorney-General's Reference (No. 1 of 1988) [1989] 2 W.L.R. 729, 734-735), it is permissible to look at circumstances preceding the legislation in order to see what was considered to be the mischief in need of a remedy and (I would add) the steps proposed to effectuate the remedy. I consider that the Scheme is of more than usual assistance for this purpose and would refer in particular to the following paragraphs:

"Returnable offences

2.-(l) A fugitive will only be returned for a returnable offence.

(2) For the purposes of this Scheme a returnable offence is an offence described in Annex 1 (whatever the name of the offence under the law of the countries and territories concerned, and whether or not it is described in that law by reference to some special intent or any special circumstances of aggravation), being an offence which is punishable by a competent court in the country or territory to which return is requested by imprisonment for twelve months or a greater penalty.

"Warrants, other than provisional warrants

3.-(l) A fugitive offender will ony be returned if a warrant for his arrest has been issued in that part of the Commonwealth to which his return is requested and either-

(a) that warrant is endorsed by a competent judicial authority in the part in which he is found (in which case, the endorsed warrant will be sufficient authority for his arrest), or

(b) a further warrant for his arrest is issued by the competent judicial authority in the part in which he is found, not being a provisional warrant issued as mentioned in clause 4

5.-(4) Where a warrant has been endorsed or issued as mentioned in clause 3(1) the competent judicial authority may commit the fugitive to prison to await his return if-

(a) such evidence is produced as establishes a prima facie case that he committed the offence of which he is accused, and

(b) his return is not precluded by law,but, otherwise, will order him to be discharged".

"Double-criminality rule

10. The return of a fugitive offender will either be precluded by law or be subject to refusal by the competent executive authority if the facts on which the request for his return is grounded do not constitute an offence under the law of the country or territory in which he is found".

"Return of escaped prisoners 14.-(1) In the case of a person who-

(a) has been convicted of a returnable offence by a court in any part of the Commonwealth and is unlawfully at large before the expiry of his sentence for that offence, and

(b) is found in some other part of the Commonwealth, the provisions set out in this Scheme, as applied for the purposes of this clause by paragraph (2), will govern his return to the part of the Commonwealth in which he was convicted.

(2) For the purposes of this clause this Scheme shall be construed, subject to any necessary adaptations or modifications, as though the person unlawfully at large were accused of the offence of which he was convicted and, in particular-

(a) any reference to a fugitive offender shall be construed as including a reference to such a person as is mentioned in paragraph (1), and

(b) the reference in clause 5(4) to such evidence as establishes a prima facie case that he committed the offence of which he is accused shall be construed as a reference to such evidence as establishes that he has been convicted.

(3) The references in this clause to a person unlawfully at large shall be construed as including references to a person at large in breach of a condition of a licence to be at large."

The Act, quite clearly, was intended to give effect to the Scheme. Its most important provisions for present purposes are sections 3, 4(3), 5, 6(1) and (2) and 7(5):

"3(1) For the purposes of this Act an offence of which a person is accused or has been convicted in a designated Commonwealth country or United Kingdom dependency is a relevant offence if

(a) in the case of an offence against the law of a designated Commonwealth country, it is an offence which, however described in that law, falls within any of the descriptions set out in Schedule 1 to this Act, and is punishable under that law with imprisonment for a term of twelve months or any greater punishment;

(b) in the case of an offence against the law of a United Kingdom dependency, it is punishable under that law, on conviction by or before a superior court, with imprisonment for a term of twelve months or any greater punishment; and

(c) in any case, the act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of the United Kingdom if it took place within the United Kingdom or, in the case of an extra-territorial offence, in corresponding circumstances outside the United Kingdom.

(2) In determining for the purposes of this section whether an offence against the law of a designated Commonwealth country falls within a description set out in the said Schedule 1, any special intent or state of mind or special circumstances of aggravation which may be necessary to constitute that offence under the law shall be disregarded.

(3) The descriptions set out in the said Schedule 1 include in each case offences of attempting or conspiring to commit, of assisting, counselling or procuring the commission of or being accessory before or after the fact to the offences therein described, and of impeding the apprehension or prosecution of persons guilty of those offences.

(4) References in this section to the law of any country (including the United Kingdom) include references to the law of any part of that country.

"4(3) A person shall not be returned under this Act to any country, or committed to or kept in custody for the purposes of such return, unless provision is made by the law of that country, or by an arrangement made with that country, for securing that he will not, unless he has first been restored or had an opportunity of returning to the United Kingdom, be dealt with in that country for or in respect of any offence committed before his return under this Act other than-

(a) the offence in respect of which his return under this Act is requested;

(b) any lesser offence proved by the facts proved before the court of committal; or

(c) any other offence being a relevant offence in respect of which the Secretary of State may consent to his being so dealt with.

"3(1) Subject to the provisions of this Act relating to provisional warrants, a person shall not be dealt with thereunder except in pursuance of an order of the Secretary of State (in this Act referred to as an authority to proceed), issued in pursuance of a request made to the Secretary of State by or on behalf of the government of the designated Commonwealth country, or the governor of the United Kingdom dependency, in which the person to be returned is accused or was convicted.

(2) There shall be furnished with any request made for the purposes of this section on behalf of any country-(a) in the case of a person accused of an offence, a warrant for his arrest issued in that country;

(b) in the case of a person unlawfully at large after conviction of an offence, a certificate of the conviction and sentence in that country, and a statement of the amount if any of that sentence which has been served,

together (in each case) with particulars of the person whose return is requested and of the facts upon which and the law under which he is accused or was convicted, and evidence sufficient to justify the issue of a warrant for his arrest under section 6 of this Act.

(3) On receipt of such a request the Secretary of State may issue an authority to proceed unless It appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act.

"6(1) A warrant for the arrest of a person accused of a relevant offence, or alleged to be unlawfully at large after conviction of such an offence, may be issued -

(a) on the receipt of an authority to proceed, by a metropolitan stipendiary magistrate or by the sheriff or sheriff-substitute of the Lothians and Peebles;

(b) without such an authority, by a metropolitan stipendiary magistrate or a justice of the peace in any part of the United Kingdom, upon information that the said person is or is believed to be in or on his way to the United Kingdom;

and any warrant issued by virtue of paragraph (b) above is in this Act referred to as a provisional warrant.

(2) A warrant of arrest under this section may be issued upon such evidence as would, in the opinion of the magistrate or justice, authorise the issue of a warrant for the arrest of a person accused of committing a corresponding offence or, as the case may be, of a person alleged to be unlawfully at large after conviction of an offence, within the jurisdiction of the magistrate or justice.

'7(5) Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence to which the authority relates is a relevant offence and is further satisfied-

(a) where that person is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the court;

(b) where that person is alleged to be unlawfully at large after conviction of the offence, that he has been so convicted and appears to be so at large,

the court shall, unless his committal is prohibited by any other provision of this Act, commit him to custody to await his return thereunder; but if the court is not so satisfied or if the committal of that person is so prohibited, the court shall discharge him from custody."

I have said that the crucial provision is section 3(1), and in particular paragraph (c); "the offence" in the phrase "the act or omission constituting the offence" must be the offence (in the case of a designated Commonwealth country) mentioned in paragraph (a), that is, the offence of which the fugitive is accused in that country. This conclusion seems unavoidable when one also has regard to sections 4(3)(a) (to which I will return) and 5(2) and to the opening words of section 6(1). Similarly, in section 7(5) the offence to which the Secretary of State's authority to proceed relates (as to which see section 5(3)) must be the offence of which the fugitive is accused in the Commonwealth country because the court of committal needs to be "satisfied . . . that the offence to which the authority relates is a relevant offence" (see section 3(1)) and

"further satisfied - (a) where that person is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the court; (b) where that person is alleged to be unlawfully at large after conviction of the offence, that he has been so convicted and appears to be so at large."

The "act or omission constituting the offence" cannot in my opinion mean "the conduct, as proved by evidence, on which the charge is grounded", because the evidence of such conduct could prove something more than what has been charged. In such a case the conduct proved would not be the act or omission constituting the offence of which the fugitive is accused in the Commonwealth country; and that, if I may venture to remind your Lordships, is the "relevant offence", the offence described in section 3(1). For example, in Reg. v. Governor of Brixton Prison. Ex parte Gardner [1968] 2 Q.B. 399, the act constituting the offence of which the fugitive was accused was a false pretence as to the future. Therefore it would not have helped the Crown to show the magistrate that Gardner's conduct had also involved a false pretence as to the present. The words "constituting the offence" must be read as "constituting the offence of which the person is accused".

If a further clue to the meaning of these words is needed, I suggest that it is found in section 3(2). Again we are dealing with "an offence against the law of a designated Commonwealth country" and the subsection provides that

"any special intent or state of mind or special circumstances of aggravation which may be necessary to constitute that offence under the law shall be disregarded."

The subsection contains the only express exception from the need to have regard to the ingredients of the relevant Commonwealth offence and it also shows what is meant by "constitute" and "constituting". One may paraphrase the effect of section 3(1)(c) by asking, "what is the essence of the Commonwealth offence? And would that be an offence against the law of the United Kingdom?" That is quite a different thing from looking at the course of conduct revealed by the evidence and asking whether that conduct (as distinct from the conduct of which the person is accused) would constitute an offence against the law of the United Kingdom.

Contrary to what was submitted in argument, I see no difficulty in the use of the word "necessary" in section 3(2). The difference in language between that subsection and subsection 3(1)(c) arises because in the latter the situation is actual and section 3(2) is dealing with a requirement. The word "necessary" does not alter the meaning of the word "constitute".

While the singular includes the plural, in speaking of "the act or omission" one is not describing a course of conduct; one is speaking of the essential ingredients of an offence. This is not the same thing as the facts relied on to prove the offence but, even on this basis, one must deal with what proves the Commonwealth offence and not with the evidence generally from which one might deduce the commission of an English offence. The question must be, "If the accused person did in England what it is alleged he did in Canada, would the evidence be sufficient to warrant his trial in England for that offence?"

The forms authorised for use in connection with extradition are found in the second schedule to the Extradition Act. Those for use in connection with the return of fugitive offenders are contained in the Schedule to the Fugitive Offenders (Forms) Regulations 1967 (S.I 1967 No. 1257) which came into operation on the same day as the Act. Having regard to what was said in Hanlon v. The Law Society [1981] A.C. 124, 193-194, it may be permissible to derive some slight assistance from the latter, although they are not part of the Act. Form 2, the warrant of arrest under section 6(1)(a), recites that the magistrate has received from the Secretary of State an order to proceed and that there is evidence that the offence is a relevant offence as defined in section 3 and contains the following further recital:

"And there being in my opinion such evidence as would justify the issue of a warrant for the arrest of a person accused of committing [a] corresponding offence[s] . . . . "

The words "corresponding offence" reflect the same words in section 6(2).

I refer also to form 4, the warrant of commitment under section 7(5), which contains a recital that the magistrate is satisfied

"that the following offence[s] of which the defendant is accused in [name of Commonwealth country], namely [ ] being [an] offence[s] to which the authority to proceed relates is/are [a] relevant offence[s] as defined in section 3 of that Act . . . ."

These forms are also adapted for use in conviction cases.

The continual reference to "relevant offences" ensures that the magistrate's attention is directed to the requirements of section 3 and contrasts with the wording of the forms under the Extradition Act.

Section 5(2) is important not merely as an aid for the interpretation of the word "offence". The warrant issued in the Commonwealth country must be accompanied by particulars of the person whose return is requested and of the facts upon which and the law under which he is accused or was convicted and evidence sufficient to justify the issue of a warrant for his arrest under section 6. It can be seen from this subsection that, in contrast to the treaty list of offences for the purpose of the Extradition Act (Schedule 1), the description of the relevant offence required by section 5(2) must be specific as to the Commonwealth law as well as the facts. And, although the Act is silent on this point, it seems clear to me that the Secretary of State, when issuing an authority to proceed, must give the magistrate enough information to decide whether the Commonwealth offence is a relevant offence and whether there is enough evidence to commit for trial on the Commonwealth offence in accordance with section 7(5)(a).

To return the fugitive on the Commonwealth charge involves the magistrate in finding a prima facie case on that charge, just as was required under section 9 of the Act of 1881, with the added requirement of double criminality that the evidence would be sufficient to warrant the fugitive's trial for that offence if it had been committed within the jurisdiction of the court (see section 7(5)). Therefore, knowledge of the constituent elements of the relevant offence is requisite.

I would further suggest that consideration of the case of a person unlawfully at large after conviction of an offence provides a strong argument for the narrower and more definite construction of section 3(1)(c). The court is not there dealing with prima facie evidence of a United Kingdom offence, but is asking whether a person convicted of a Commonwealth offence has been convicted of a relevant offence. Assuming that the act or omission constituting that offence would not constitute an offence in the United Kingdom, it would be pointless to rake over the evidence given at the trial, assuming that this was practicable, in order to find material which, if proved, would constitute an offence against the law of the United Kingdom. It would be impossible to amend the particulars of the Commonwealth offence of which the fugitive had been convicted or to predicate what facts the jury had found against the accused beyond the facts necessary to convict him of the Commonwealth offence with which he had been charged. There will, of course, be many cases, no doubt the vast majority, in which the difficulty which I have mentioned will not arise; but I am of the opinion that the probable rarity of the situation which I envisage (and to which no ready solution was presented in argument) does not justify a construction of the words "relevant offence" which could be applied successfully to accusation cases but which admittedly could not be applied to a proportion of conviction cases which may have involved Commonwealth offences of exactly the same kind.

The mention of double criminality brings me back to the Ministers' Scheme of 1966 which, I may say, appeared to be quite strongly relied on by the appellants on the ground, as they contended, that it replaced the Act of 1881 criterion by a test in conformity with the Extradition Act, as explained in In re Nielsen [1984] A.C 606. Clause 2 of the Scheme dealt with "returnable offences" and was reflected by sections 1 and 3(1)(a) and (b) and (2) of the Act. Clause 5(4), in which I draw attention to the words "the offence of which he is accused", is reflected in section 7(5), and clause 10, headed "Double-criminality rule", is reflected in section 3(1)(c). I would particularly stress in this paragraph the words

"if the facts on which the request for his return is grounded do not constitute an offence under the law of the country or territory in which he is found."

Clause 14 of the Scheme also repays study. It is reflected in the provisions of the Act which deal with the return of convicted persons.

In my opinion the words to which I have drawn special attention in clauses 5(4) and 10 of the Scheme serve to emphasise that sections 3(1)(c) and 7(5) (which must be intended to give effect to those clauses have the meaning which I have ascribed to them. They have nothing in common with the scheme of the Extradition Act and they require the magistrate to ask himself whether the evidence before him is sufficient to warrant the fugitive's trial in the United Kingdom for what he is alleged by the requesting country to have done wrong and not just for what he appears to have done wrong according to the English law.

The question of double criminality is discussed in an instructive judgment by Griffiths J. (as my noble and learned friend then was) in Reg. v. Governor of Pentonville Prison, Ex parte Budlong [1980] 1 W.L.R. 1110, an Extradition Act case, but before coming to it I must go back to Reg. v. Governor of Brixton Prison. Ex parte Gardner, [1968] 2 Q.B. 399 the main authority against the appellants.

In that case the particulars in the New Zealand warrants, which were before the magistrate, described the false pretences as representations concerning the future, and the point taken on behalf of the fugitive was that the charges did not disclose an offence known to English law. Lord Parker CJ. said, at p. 412:

"this provision is going further than the similar provisions in the Extradition Act of 1870, and is providing that not only to be a relevant offence must the offence fall within the general description of the words in Schedule 1, but the act or omission constituting the offence must constitute an offence against the law of the United Kingdom."

The Lord Chief Justice then referred to the relevant provisions of the Act and at pp. 414-415 to the arguments on either side. He then continued, at pp. 415-416:

"In my judgment Mr. Dunn's argument [for the Crown in New Zealand] gives really no effect to the provisions of section 3(1)(c). It seems to me that what is clearly contemplated here is that a request coming forward to the Secretary of State must set out in some form, and no doubt the most usual form is the warrant or warrants for arrest, the offence or offences of which the fugitive is accused in this case in New Zealand. Not only must it supply a general description which will fulfil the provisions of section 3(1)(a) but it must condescend to sufficient detail to enable the matter to be considered under section 3(1)(c). Similarly, as it seems to me, it is contemplated that the" Secretary of State in giving his authority to proceed under section 5(1) should again set out the offences to which his authority is to relate in sufficient detail for the matter to be considered again not only under paragraph (a) but also under paragraph (c) of section 3(1).

But it seems to me perfectly plain that this authority to proceed, albeit in general terms, must be taken as relating to the offences of which this applicant was accused in New Zealand, and upon which the request was made for his return.

That being so, one asks oneself: what were the offences of which he was accused in New Zealand? In the absence of any indication in the authority to proceed, it seems to me that one must assume what is only natural in these cases, that the offences of which he was accused in New Zealand were those set out in the warrants which accompanied the request to the Secretary of State.

If one then looks at the offences and considers them in the light of section 3(1)(c), it seems to me perfectly clear that the acts complained of in the offences with which the applicant was charged would not constitute offences under the law of this country."

Edmund Davies LJ. referred to section 3(1)(c) and said at pp. 416-417:

"'The offence' there referred to must mean the offence charged in New Zealand, and 'the act or omission' refers to the manner or means whereby the offence so charged in New Zealand was committed. This involved examination of the particulars of the offence charged in New Zealand and in the present case that examination in turn necessitates consideration of the New Zealand warrants.

It is conceded that those warrants particularise the offences laid in words which, were they incorporated in an information or indictment in this country, would allege no contravention of our criminal law. Section 7(5) requires to be demonstrated that the offence to which the authority to proceed relates is a relevant offence, and it is true that for that purpose the court of committal has to consider 'any evidence tendered in support of the request for the return' of the arrested person. But, as at present advised, I do not accept the submission of counsel for the New Zealand Government that this obliges the committing magistrate in every case to consider the contents of the depositions. Such a task may, indeed, be necessary for the removal of doubts as to whether the offence to which the authority relates is a relevant offence. But if, as in the present case, the other 'evidence tendered in support of the request' makes it clear that that offence is not a relevant offence, nothing contained in the depositions can cure that fatal flaw, and their consideration becomes otiose."

Ex parte Gardner does not appear to say that a magistrate would never be justified in committing a fugitive under section 7(5)(a) to face trial on a New Zealand charge of false pretences just "because a person could be convicted under New Zealand law by reason of a false pretence as to the future, whereas it would in 1968 have required proof of a false pretence as to the present in order to justify conviction in England. It concentrates attention on what is charged in the warrant. I conceive that, if the particulars of the offence given in or annexed to the warrant had alleged a false pretence as to the present, the magistrate could then properly have committed the fugitive to await his return to New Zealand, since the charge specified in the warrant and the particulars given therein or annexed thereto constitute the offence in respect of which the fugitive's return is requested. By virtue of section 4(3), the fugitive would be protected against the risk of being convicted after his return by virtue of a false pretence as to the future. If this were not so, the particulars could be altered in any case after the fugitive's return, perhaps to allege the murder of a different victim on a different date and at a different place from those originally alleged.

In Reg. v. Governor of Pentonville Prison, Ex parte Myers (unreported), 6 December 1972) the fugitive was accused in Canada of having advertised a bogus electrical slimming treatment. The actual charges were "obtaining property by deception and conspiracy to obtain property by deception, as set out in the attached schedule." The offence, like the 32 offences in group 1 in the present case, was laid under section 338(1) of the Criminal Code of Canada. In the course of his judgment Lord Widgery CJ. said:

"Now one comes to the difficulty. The problem as it seems to me throughout this case has been: how is one to identify the act or omission constituting the offence charged against the law of Canada," (my emphasis) "because . . . only if the act or omission constituting that offence is itself a criminal offence in England does the offence become a relevant offence under section 3."

After referring to Ex parte Gardner, he continued:

"Much of the difficulty in this case, I feel bound to say, is that the first charge has been drafted in a form which is wholly foreign to English practice. Of course, the Canadian Government and those responsible for the administration of [the] criminal law in Canada obviously have their own rules about these matters, but if they seek to obtain the return of a fugitive from England under the Act of 1967, it seems to me that the first duty upon them in practice is to see that their charge is framed in a manner which would suit not only the laws of Canada but also is susceptible of being looked at by an English lawyer to see what is the act or omission upon which it is based."

This passage appears to give countenance to my observation that the particulars of the false pretences charge in Ex parte Gardner might have been framed so as to satisfy section 3(1)(c), but in the case now before your Lordships the situation is different. As appears from the analysis of Bingham L.J., the substance of ail 69 charges, however one expresses the particulars, lacks a vital element without which section 3(1)(c) cannot be satisfied. With regard to the offences in Group 1, it would be of no avail to allege a false pretence, if that course were warranted by the evidence, since the intention permanently to deprive would be missing in any event.

Bingham L.J. commented on Ex parte Myers as follows:

"The effect of this decision is, I think inescapably, that in deciding whether an offence is a relevant offence the court of committal should not look at the conduct alleged against the arrested person and ask if that would be criminal if done here, but should rather look at the charge formulated by the designated Commonwealth country under its own law and ask whether it would permit the arrested person to be convicted here. The facts outlined by Lord Widgery CJ. would, I think without doubt, have supported a conviction under section 15 of the Theft Act 1962 [for obtaining by deception]; but the committal was quashed."

As to this, I must point out that there was no means of alleging in the Canadian charge under section 338(1) an intention permanently to deprive.

On the construction of section 3(1)(c) I think it is also worth noting that in Reg. v. Governor of Pentonville Prison, Ex parte Tarling (1980) Cr. App. R. 77 Lord Wilberforce, while making it clear, at p. 110, that his observation would be obiter, said, at p. 111:

"None of this, in my opinion, amounts to a case of the convoluted conspiracy to defraud which is alleged and (see again Reg. v. Governor of Brixton, Ex parte Gardner) it is not possible for the Government of Singapore to go outside the particulars of the alleged offence which, as it is required to do, it provided; and which were included in the authority to proceed."

I have referred to Reg, v. Governor of Pentonville Prison, Ex parte Budlone [1980] 1 W.L.R. 1110 in connection with double criminality. But I would first note that in that case the applicants for habeas corpus had tried to rely on Ex parte Gardner and Ex parte Myers, Griffiths J. commented, at p. 1117:

"I can see no reason why these decisions should be applied to proceedings under the Extradition Act 1870. They turn upon the construction of the Fugitive Offenders Act 1967, the shape and provisions of which are not in any way on all fours with the, Extradition Act 1870. However, the applicants submit that because article III of the Treaty [Extradition Treaty made between the Government of the United Kingdom and the Government of the United 5tates of America] requires similar information to be submitted to the Secretary of State by the country requesting extradition to that required to be submitted by a Commonwealth country under section 3 of the Fugitive Offenders Act 1967 Act, it follows that the Secretary of State's order under the Extradition Act 1879 shall contain the same particulars as, pursuant to Gardner's case, are required to be set out in the authority to proceed under the Fugitives Offenders Act 1967. I cannot see why that result should necessarily follow, but the conclusive answer to the submission is to be found in the terms of section 20 of the Extradition Act 1870 which expressly provides that the order shall be valid if it follows the form prescribed in Schedule 2, which form does not require the order to do other than state the general description of the crime for which extradition is asked."

I most respectfully agree with those observations of my noble and learned friend. He then observed, at p. 1118:

"Because, In my view, Gardner's case and Myers's case do not support the applicants' argument, it is not necessary to consider if they were correctly decided. But I would not wish anything I have said to be taken as expressing my own endorsement of the decisions. It seems to me that they lead to the surprising conclusion that the success or failure of a Commonwealth country to extradite a criminal who has offended against their laws may depend on the drafting of particulars in a document, namely, the authority to proceed, for which they are not responsible."

As to that point, I would venture to suggest, having regard to what Lord Widgery C.J.. said in Ex Parte Myers, that the relevant drafting of particulars of the offence ought to be that undertaken by the Commonwealth country's lawyers when preparing their own warrant for dispatch under section 5(2).

The principle of double criminality is instructively discussed between pp. 1118C and 1123A. What is said to be required is not identity of definition but correspondence of substance. It was pointed out, at p. 1118B, that the law of extradition depends not on any common law principles but on statute, and I would take the opportunity of emphasising the differences between the Act and the Extradition Act. There is a reference, at p. 1120, to "the actual facts of the offence which are all important rather than the definition of the crime in the foreign law." I would adapt this phrase to a fugitive offender situation by substituting the words "the actual facts of the offence charged in the Commonwealth country." The discussion concluded thus, at pp. 1122-1123:

'I therefore summarise by saying that double criminality in our law of extradition is satisfied if it is shown: (1) that the crime for which extradition is demanded would be recognised as substantially similar in both countries; (2) that there is a prima facie case that the conduct of the accused amounted to the commission of the crime according to English law."

Again I would adopt this statement but, in view of section 3(1)(c), would substitute for "the conduct of the accused" in (2) the words "the offence of which the person is accused in the Commonwealth country".

My Lords, there is just one further case I must consider. That is In re Nielsen [1984] A.C 606. Just as the applicants in Ex parte Budlong wrongly (and in vain) relied on Ex parte Gardner and Ex parte Myers, so the appellants here seem to me to have represented to your Lordships the paramount position of In re Nielsen, not only in relation to extradition, concerning which it is of course the leading authority, but also in regard to the return of fugitive offenders. I need not trouble your Lordships with the facts. For present purposes the importance of the case lies in the emphatic statement by Lord Diplock (affirming the judgment of Robert Goff L.J. in the Divisional Court (1983) 79 Cr. App. R. I, 10-11) that the committing magistrate is concerned only with the law of his own jurisdiction and not with that of the foreign state, even to the limited extent which might theretofore have been inferred from such cases as In re Bellencontre [1891] 2 QB 122, In re Arton (No. 2) [1896] 1 QB 509 and Ex parte Budlong. He pointed out, at p. 619 that "the crime of which he is accused" in section 10 of the Extradition Act means the crime specified in the Secretary of State's order to the magistrate. He continued:

"Under the principal treaty, the documents accompanying the requisition for the surrender of a fugitive criminal in an accusation case will state the 'acts' on account of which the fugitive is demanded by the Danish government. It is for the Secretary of State to make up his mind what crime those acts would have amounted to according to the English law in force at the time they were committed if they had been committed in England."

Lord Diplock said, at pp. 624-625:

"At the hearing, sections 9 and 10 [of the Extradition Act] require that the magistrate must first be satisfied that a foreign warrant (within the definition in section 26 that I have already cited) has been issued for the accused person's arrest and is duly authenticated in a manner for which section 15 provides. Except where there is a claim that the arrest was for a political offence or the case is an exceptional accusation case, the magistrate is not concerned with what provision of foreign criminal law (if any) is stated in the warrant to be the offence which the person was suspected of having committed and in respect of which his arrest was ordered in the foreign state.

The magistrate must then hear such evidence, including evidence made admissible by sections 14 and 15, as may be produced on behalf of the requisitioning foreign government, and by the accused if he wishes to do so; and at the conclusion of the evidence the magistrate must decide whether such evidence would, according to the law of England, justify the committal for trial of the accused for an offence that is described in the 1870 list (as added to or amended by subsequent Extradition Acts) provided that such offence is also included in the extraditable crimes listed in the English language version of the extradition treaty. In making this decision it is English law alone that is relevant. The requirement that he shall make it does not give him any jurisdiction to inquire into or receive evidence of the substantive criminal law of the foreign state in which the conduct was in fact committed."

My Lords, I hope I have said enough to show that, according to the wording of sections 3(1)(c), 5(2) and 7(5) of the Act, such an approach could not validly be adopted in a fugitive offender's case.

Another contrast with the procedure under section 5(2) of the Act is that in an Extradition Act case the treaty with the foreign state does not require the warrant of arrest to specify the particular provision of that state's criminal code which is alleged to have been infringed (In re Nielsen, at p. 6 18C). The accusation is general and not specific.

The Scheme of 1966 was formulated against a long-standing background of concern with the foreign state's law based on the practice followed in In re Bellencontre and In re Arton (No. 2), which seems to me to reinforce the interpretation of the Act which I prefer. Moreover, one of the objects of the Scheme was reciprocity, which must be easier to achieve if a specific, as distinct from a general, approach to the Commonwealth offence is adopted.

I come back to the judgment appealed from. Bingham L.J. said:

"Section 3(1)(c) is intended to ensure that an arrested person ('A.P.') will not be returned to a designated Commonwealth country ('D.C.C.') if the conduct of which he is accused" (my emphasis) "would not have been an offence against the law of England if it had taken place here.

. . . . . . . . .

"Were the matter free from authority I should conclude that the task of an English court of committal in determining whether an offence was a relevant offence under section 3 was:

(a) to determine whether or not the D.C.C. offence (with or without additional ingredients) fell within any of the descriptions set out in [Schedule l];

(b) to determine whether or not the D.C.C. offence was punishable under the law of the D.C.C. with 12 months' imprisonment or more; and

(c) to determine whether the A.P.'s conduct, relied on as constituting an offence under the law of the D.C.C., would be criminal if the conduct had occurred here. In performing task (c) I would expect the court to review the evidence adduced by the D.C.C. in support of its application for the return of the A.P. in order to decide whether, and to what extent, the AP's conduct disclosed in the evidence would found criminal charges in England. I would therefore expect an enquiry into the A.P.'s conduct and an analysis of it in terms of English criminal law, not the comparison of legal definitions. If, of course, the D.C.C. and English crimes were identical the only inquiry (subject to section 3(1)(a)) would be as to the sufficiency of the evidence."

My respectful comment on this reasoning is the same as that of Lord Parker C.J.. on counsel's argument in Reg. v. Governor of Brixton Prison, Ex parte Gardner [1968] 2 Q.B. 399, namely, that it appears to me to give no effect to the provisions of section 3(1)(c) (to which no provision of the Extradition Act corresponds). "(a)" and "(b)" above correspond to section 3(l)(a) of the Act, but "(c)" is a reflection not of section 3(1)(c), but of section 10 of the Extradition Act.

Finally, while I regard the meaning of section 3(1)(c) as reasonably clear, the very most that the appellants could in my opinion hope to say is that it is genuinely ambiguous, in which case the point would have to be decided in favour of the subject.

My Lords, for the reasons which I have given, I would dismiss the appeal.