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[1969] 3 All ER 1317

Atkinson v United States Government and Others

HOUSE OF LORDS

LORD REID, LORD MACDERMOTT, LORD MORRIS OF BORTH-Y-GEST, LORD GUEST AND LORD UPJOHN


22, 23, 24, 28, 29, 30 JULY, 5 NOVEMBER 1969



Extradition - Natural justice - Fugitive charged with crime based on same facts as previous conviction - Natural justice not a relevant question for committing magistrate - Power of Secretary of State to refuse to surrender fugitive - Procedure - Extradition Act 1870 (33 & 34 Vict c 52), s 10, s 11.

Case Stated - Magistrates' courts - Refusal to commit - Whether appeal by way of case stated - Extradition proceedings - Magistrates' Courts Act 1952 (15 & 16 Geo 6 & 1 Eliz 2 c 55), s 87(1).

Extradition - Charge - Time for charge - Fugitive not charged with offence for which extradition sought at time of arrest - Charge preferred before committal - Whether a person being accused who was "found" within United Kingdom - United States of America (Extradition) Order in Council 1935 (SR & O 1935 No 574), art 1.

The appellant, accompanied by another, attempted to rob Mrs P at her home in New Orleans, Louisiana, on 5 October 1968. The police were called and some shots were fired. Later the appellant and his colleague were arrested and charged with armed robbery and with the attempted murder of Mrs P and two policemen. The appellant obtained legal aid and he subsequently alleged that, as a result of a meeting between the defence and the prosecutor, it was agreed that he should plead guilty to a charge of attempted armed robbery and that the charge of armed robbery and the three charges of attempted murder would be dropped. On 15 November at the hearing the bill of information was amended to one of attempted armed robbery and the appellant and his co-accused withdrew their pleas of not guilty and entered pleas of guilty. They were remanded for sentence and on 20 November each was sentenced to 18 years' imprisonment.

[1969] 3 All ER 1317 at 1318

In December the appellant escaped from prison and subsequently made his way to England. His extradition was requested and on 9 March 1969 he was arrested on a provisional warrant charging that he had been convicted of the offences of robbery with violence and attempted murder. The error relating to the appellant's conviction was realised and (attempted armed robbery not being an extraditable offence) three charges of attempted murder and one of aggravated burglary (all extraditable offences and all charges relating to the events of 5 October 1968) were preferred against the appellant in New Orleans on 14 March 1969. On 2 May 1969, after several appearances, the magistrate committed the appellant to custody on the charges of attempted murder but, accepting a plea of autrefois convict, refused to make an order committing the appellant in respect of the charge of aggravated burglary. Application was made to the Divisional Court for a writ of habeas corpus and this was refused^a. The US government appealed against the refusal of a committal order in respect of the charge of aggravated burglary by way of case stated. The Divisional Court^b, ruling that the magistrate had power to state a case, allowed the appeal and remitted to the magistrate with a direction to commit. Before the House of Lords it was conceded by the appellant that the magistrate's acceptance of the plea of autrefois convict could not be supported but he contended that the decision of the magistrate, although erroneous, could not be corrected.

^a     See R v Brixton Prison Governor, Ex p Atkinson [1969] 2 All ER 1146

^b     See United States Government v Atkinson [1969] 2 All ER 1151

Held - (i) The appeal in relation to the application for a writ of habeas corpus would be dismissed, because there was no authority for the proposition that a magistrate had power to refuse to commit an accused for trial on the ground that it would be unjust or oppressive to require him to be tried; once a magistrate had decided that there was sufficient evidence to justify committal he must commit the accused for trial and a magistrate had no wider powers under the Extradition Act 1870 than he had when committing for trial in this country (see p 1322, letters d and e, p 1325, letter b, p 1327, letter h, p 1334, letter e, and p 1334, letter i, to p 1335, letter a, post).

Connelly v Director of Public Prosecutions ([1964] 2 All ER 401) considered.

Per Curiam: the Secretary of State has power under the Extradition Act 1870 (see s 11) to refuse to surrender a man committed to prison by a magistrate and this power could be exercised whenever it would be wrong, unjust or oppressive to surrender the man; the committing magistrate might advise the Secretary of State of any such relevant matters by report sent to the Secretary of State with the certificate of committal under s 10 of the Act of 1870 (see p 1322, letters g to i, p 1325, letter b, p 1327, letter i, p 1334, letter f, and p 1334, letter i, to p 1335, letter a, post);

Decision of the Queen's Bench Division (sub nom R v Brixton Prison Governor, Ex p Atkinson [1969] 2 All ER 1146) affirmed.

(ii) (Lord Morris of Borth-Y-Gest dissenting) the appeal in relation to whether the appellant should also be committed on the charge of aggravated burglary would be allowed and the order of the magistrate restored, because--

(a) before the Magistrates' Courts Act 1952 (a consolidating Act) was enacted it had been settled law that examining justices had no power to state a case (see p 1324, letter c, p 1325, letter b, p 1332, letter e, and p 1336, letter g, post);

(b) despite the ambiguous use of the term "proceeding" in s 87(1)^c of the Act of 1952 it could not be said that the strong presumption against the introduction by a consolidating Act of substantive changes in the law had been rebutted; accordingly, s 87 (which applied only to a final determination) had no application to committal proceedings and the magistrate

^c     Section 87(1) is set out at p 1324, letter f, post

[1969] 3 All ER 1317 at 1319

had no power to state a case (see p 1324, letter i, to p 1325, letters a and b, p 1332, letters f and h, and p 1336, letters e and f, post).

Decision of the Queen's Bench Division (sub nom United States Government v Atkinson [1969] 2 All ER 1151) reversed.

Under art 1^d of the extradition treaty^e dated 22 December 1931 between the United Kingdom and the United States of America, the obligation was to deliver those persons who, being accused or convicted of any extraditable crime or offence should "be found within the territory of the other party". It was contended for the appellant that he was found within the United Kingdom when he was arrested on 9 March 1969 and tht on that date he had been neither accused nor convicted of any extraditable crime or offence.

^d     Article 1 provides: "The High Contracting Parties engage to deliver up to each other, under certain circumstances and conditions stated in the present Treaty, those persons who, being accused or convicted of any of the crimes or offences enumerated in Article 3, committed within the jurisdiction of the one Party, shall be found within the territory of the other Party."

^e     The treaty is the United States of America (Extradition) Order in Council 1935 (SR & O 1935 No 574)

Per Lord Morris of Borth-Y-Gest: while it is correct that on 9 March the appellant had not been accused of the offences for which extradition is sought he had been so accused before the date when, after several appearances, the magistrate made his order (2 May 1969) and at that date the appellant was certainly "found" within the territory (see p 1326, letter i, post).

Per Lord Guest: the word "found" in art 1 of the treaty, means no more than that the person in question must be present in this country when the extraditable charges were preferred; ie, on 14 March 1969 when the charges of attempted murder were preferred in New Orleans (see p 1332, letter i, post).

Notes

As to extradition offences generally, see 16 Halsbury's Laws (3rd Edn) 560-564, paras 1149-1153; ibid, 566, 567, para 1159; as to who may be surrendered, see ibid, pp 564, 565, paras 1155, 1157; and for cases on the application of the Extradition Acts to persons, see 24 Digest (Repl) 988-990, 5-20.

As to appeals by way of case stated from a magistrates' court, see 25 Halsbury's Laws (3rd Edn) 250, 251, para 468.

For the Extradition Act 1870, s 10 and s 11, see 13 Halsbury's Statutes (3rd Edn) 257, 258. For the Magistrates' Courts Act 1952, s 87, see 32 Halsbury's Statutes (2nd Edn) 488.

Cases referred to in opinions

Arton (No 1), Re [1896] 1 QB 108, 65 LJMC 23, 73 LT 687, 24 Digest (Repl) 995, 43.

Beswick v Beswick [1967] 2 All ER 1197, [1968] AC 58, [1967] 3 WLR 932, Digest (Repl) Supp.

Boulter v Kent Justices [1897] AC 556, 66 LJQB 787, 77 LT 288, 61 JP 532, 30 Digest (Repl) 75, 579.

Card v Salmon [1953] 1 All ER 324, [1953] 1 QB 392, [1953] 2 WLR 301, 117 JP 110, 33 Digest (Repl) 310, 1348.

Connelly v Director of Public Prosecutions [1964] 2 All ER 401, [1964] AC 1254, [1964] 2 WLR 1145, 128 JP 418, 48 Cr App Rep 183, Digest (Cont Vol B) 250, 472a.

Foss v Best [1906] 2 KB 105, 75 LJKB 575, 95 LT 127, 70 JP 383, 33 Digest (Repl) 310, 1344.

Schtraks v Government of Israel [1962] 3 All ER 529, [1964] AC 556, [1962] 3 WLR 1013, Digest (Cont Vol A) 575, 4a.

[1969] 3 All ER 1317 at 1320

Appeal

This was an appeal by Arthur Atkinson against: (i) the decision of the Divisional Court of the Queen's Bench Division (Lord Parker CJ, Melford Stevenson and Bridge JJ) dated 25 June 1969 and reported (sub nom R v Brixton Prison Governor, Ex p Atkinson) [1969] 2 All ER 1146, refusing an application for a writ of habeas corpus; and (ii) the decision of the Divisional Court of the Queen's Bench Division (Lord Parker CJ, Melford Stevenson and Bridge JJ) dated 26 June 1969 and reported (sub nom United States Government v Atkinson) [1969] 2 All ER 1151, holding that an appeal by way of case stated lay from a magistrate's refusal to commit under the Extradition Act 1870, and remitting the case to the magistrate with a direction to commit in respect of a charge of aggravated burglary. The first respondent to the appeal was the United States government. The governor of Brixton Prison and the Secretary of State for Home Affairs were the second and third respondents, respectively. The facts are set out in the headnote.

J B R Hazan QC and N H Freeman for the appellant.

D C Calcutt and J D Griggs for the first respondent.

J H Buzzard for the second and third respondents.

Their Lordships took time for consideration

5 November 1969. The following opinions were delivered.



LORD REID:

My Lords, on 5 October 1968 the appellant, who carried a revolver, and another man went to the home of a Mrs Pita in New Orleans. They pretended that they had come in answer to an advertisement and gained entry. Then they attempted robbery, but some occupants of the house had escaped and summoned the police. Then some shots were fired and the appellant and the other man fled. Then some more shots were fired before they were arrested. They were then charged with armed robbery and attempted murder of Mrs Pita and of two policemen. On 8 October the appellant obtained legal aid. Apparently it is customary in Louisiana for defence counsel to meet the prosecutor at that stage. Such a meeting took place. It is not very clear just what happened but the result was that the charge of armed robbery was reduced to attempted armed robbery. The appellant agreed to plead guilty to that charge, and the charges of attempted murder were dropped. It is alleged by the appellant that this amounted to a bargain or an undertaking by the prosecutor that if the appellant pleaded guilty to attempted armed robbery no further action would be taken on the charges of attempted murder. Some days later the appellant appeared in court. He pleaded guilty to attempted armed robbery and was sentenced to 18 years' imprisonment.

On or about 22 December the appellant escaped from prison. Somehow he made his way to England. The police in Louisiana discovered this and sent a request for extradition to New Scotland Yard. Unfortunately the information which was sent was inaccurate and a warrant was obtained at Bow Street on the ground that the appellant has been convicted of robbery with violence and attempted murder. He was arrested on this warrant in Manchester on 9 March 1969. Then it was realised that he had only been convicted of attempted armed robbery and that that is not an extradition crime. No offence of attempt is extraditable except attempted murder and, I think, one other. So the authorities in Louisiana revived the charges of attempted murder and in addition a charge of aggravated burglary was preferred.

When the case came before the chief metropolitan magistrate on 2 May, he had to decide whether to commit the appellant to prison on the charges of attempted murder and of aggravated burglary. He decided to commit on the former charge but not on the latter. Then the first respondent asked for a stated case on the matter of aggravated burglary. On appeals to the Divisional Court^f

^f     See R v Brixton Prison Governor, Ex p Atkinson [1969] 2 All ER 1146

[1969] 3 All ER 1317 at 1321

by way of habeas corpus on the attempted murder charges and by way of the stated case on the aggravated burglary^g that court dismissed the application for a writ of habeas corpus and remitted to the magistrate with a direction to commit on the charge of aggravated burglary. The latter question raises quite separate issues and I shall first consider the matter of the charges of attempted murder. But before doing so there is another matter to which I must advert.

^g     See United States Government v Atkinson [1969] 2 All ER 1151

It is clear from affidavits sworn by, inter alios, the Governor of the State of Louisiana that, originally at least, the main object of seeking extradition was to make the appellant serve the remainder of his 18 years' sentence for attempted armed robbery. But prisonbreaking is not an extradition crime nor is attempted armed robbery and art 7 of the extradition treaty with the United States of 1931^h provides:

^h     Cmd 4928. The treaty came into operation on 24 June 1935: see the United States of America (Extradition) Order in Council 1935 (SR & O 1935 No 574)

"A person surrendered can in no case be kept in custody or be brought to trial in the territories of the High Contracting Party to whom the surrender has been made for any other crime or offence, or on account of any other matters, than those for which the extradition shall have taken place, until he has been restored, or has had an opportunity of returning, to the territories of the High Contracting Party by whom he has been surrendered.

"This stipulation does not apply to crimes or offences committed after the extradition."

This is in line with s 3(2) of the Extradition Act 1870. As your Lordships expressed some concern about this, the first respondent produced an affidavit of a well-qualified American lawyer to the effect that by art vi of the Constitution of the United States the judges in every State are bound to act in accordance with treaties made by the United States. So, if the appellant is surrendered, it would be contrary to the law of Louisiana to require the appellant to serve the remainder of his 18 years' sentence until he has had an opportunity of returning to the United Kingdom.

The appellant does not deny that there was before the chief metropolitan magistrate sufficient evidence to justify committal on charges of attempted murder. His case is that, in view of the way in which these charges were dropped when he agreed to plead guilty to attempted armed robbery, it would be wrong and oppressive to revive them now. We do not know whether he can now be tried on these charges by the law of Louisiana. The appellant's case is that by the law of England our courts are entitled to refuse to commit to prison if natural justice requires such refusal, and that in this case it would be oppressive and contrary to natural justice to commit him to prison with a view to extradition.

It is therefore necessary to examine the Extradition Act 1870. The matter comes before the police magistrate after a requisition has been made by the foreign country to the Secretary of State and the Secretary of State requires the magistrate to proceed. In this case the Secretary of State sent such a requirement to the chief metropolitan magistrate on 25 April. Then the Act provides by s 9 that the magistrate--

"... shall hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence committed in England."

It is not disputed that at that stage the magistrate can deal with a plea in bar of autrefois acquit or autrefois convict. The question is whether, if there is evidence sufficient to justify committal, the magistrate can refuse to commit on any other ground such as that committal would be oppressive or contrary to natural justice. The appellant argues that every court in England has power to refuse to allow a criminal case to proceed if it appears that justice so requires.

The appellant argues that this was established, if it had been in doubt, by

[1969] 3 All ER 1317 at 1322

the decision of this House in Connelly v Director of Public Prosecutions. That was a case where there were indictments for murder and robbery arising out of the same facts. In accordance with the practice which then existed the murder charge was tried alone. The accused was convicted but the conviction was quashed by reason of misdirection. Then the accused was tried and convicted on the robbery charge and this House dismissed his appeal. There was discussion about the right of a trial judge to stop a case from proceeding but I do not find it necessary to determine its result. I must however correct a misapprehension which has been expressed about what I said. I said ([1964] 2 All ER at p 406; [1964] AC at p 1296) "... that there must always be a residual discretion to prevent anything which savours of abuse of process". I expressed no opinion whether a judge has any wider discretion than that, nor did I express any general concurrence with any other of my noble and learned friends. But I did deal with a particular matter--whether the practice of not combining other charges with a charge of murder should be altered--and with regard to that matter I expressed agreement with the speeches of Lord Devlin and Lord Pearce. I think that it is clear from the context that my concurrence went no farther than that.

Whatever may be the proper interpretation of the speeches in Connelly's case with regard to the extent of the power of a trial judge to stop a case, I cannot regard this case as any authority for the proposition that magistrates have power to refuse to commit an accused for trial on the ground that it would be unjust or oppressive to require him to be tried. And that proposition has no support in practice or in principle. In my view once a magistrate decides that there is sufficient evidence to justify committal he must commit the accused for trial. And there is no provision in the Act of 1870 giving a magistrate any wider power in extradition proceedings than he has when he is committing for trial in England.

But that is not the end of the matter. It is now well recognised that the court has power to expand procedure laid down by statute if that is necessary to prevent infringement of natural justice and is not plainly contrary to the intention of Parliament. There can be cases where it would clearly be contrary to natural justice to surrender a man although there is sufficient evidence to justify committal. Extradition may be either because the man is accused of an extradition crime or because he has been convicted in the foreign country of an extradition crime. It is not unknown for convictions to be obtained in a few foreign countries by improper means, and it would be intolerable if a man so convicted had to be surrendered. Parliament can never have so intended when the Act of 1870 was passed. But the Act does provide a safeguard. The Secretary of State always has power to refuse to surrender a man committed to prison by the magistrate. It appears to me that Parliament must have intended the Secretary of State to use that power whenever in his view it would be wrong, unjust or oppressive to surrender the man. Section 10 of the Act of 1870 provides that when a magistrate commits a man to prison--

"... he shall forthwith send to a Secretary of State a certificate of the committal and such report upon the case as he may think fit."

So the magistrate will report to the Secretary of State anything which has come to light in the course of proceedings before him showing or alleged to show that it would be in any way improper to surrender the man. Then the Secretary of State is answerable to Parliament, but not to the courts, for any decision he may make.

If I had thought that Parliament did not intend this safeguard to be used in this way, then I would think it necessary to infer that the magistrate has power to refuse to commit if he finds that it would be contrary to natural justice to

[1969] 3 All ER 1317 at 1323

surrender the man. But in my judgment Parliament by providing this safeguard has excluded the jurisdiction of the courts. Some reference was made to the Fugitive Offenders Act 1881 where the provisions are very different from those of the Extradition Act 1870. But it would not be right to use the later Act as an aid to the construction of the earlier Act. I would therefore dismiss the appeal as regards habeas corpus.

The question whether the appellant should also be committed on the charge of aggravated burglary depends on whether the magistrate's decision not to commit on this charge was final or whether he had any power to state a case. If he had no such power then the Divisional Court had no jurisdiction to deal with the case which he in fact stated, and its decision is therefore a nullity.

Whether or not the magistrate had power to state a case depends on the proper interpretation of s 87 and s 124 of the Magistrates' Courts Act 1952. If one confines one's attention to the terms of that Act then it may well be that going by the natural or ordinary meaning of its terms a case could be stated in any committal proceedings. But the Act of 1952 was a consolidation Act. And if before 1952 there was no power to state a case in such proceedings then there is a very strong presumption that a consolidating Act does not alter the law. It is true that the Act of 1952 was passed under the procedure enacted by the Consolidation of Enactments (Procedure) Act 1949. But that Act only permits "corrections and minor improvements" and the definition of this phrase in s 2 would certainly not include the inclusion of a new power to state a case. I need not repeat what was said about consolidation Acts in Beswick v Beswick.

It is therefore necessary to examine the history of the power to state a case in summary proceedings. After the use of certiorari became impracticable there appears to have been no general right of appeal of any kind until 1857. Then s 2 of the Summary Jurisdiction Act 1857 provided that, after the determination by justices of any information or complaint which they had power to determine in a summary way, either party could apply to the justices to state a case for the opinion of one of the superior courts of law. That clearly had no application to committal proceedings. Then by s 33 of the Summary Jurisdiction Act 1879 it was provided that any person aggrieved who desired to question a conviction, order, determination or other proceeding of a court of summary jurisdiction on the ground that it was erroneous in point of law might apply for a stated case. Then the definition of a court of summary jurisdiction was widened by s 7 of the Summary Jurisdiction Act 1884. And finally s 13(11) of the Interpretation Act 1889 provided:

"The expression 'court of summary jurisdiction' shall mean any justice or justices of the peace, or other magistrate, by whatever name called, to whom jurisdiction is given by, or who is authorised to act under, the Summary Jurisdiction Acts, whether in England, Wales, or Ireland, and whether acting under the Summary Jurisdiction Acts of any of them, or under any other Act, or by virtue of his commission, or under the common law."

That definition might seem wide enough to include committal proceedings but there appears to be nothing in any authority or textbook, at least until 1952, to indicate that any prosecutor or accused ever applied or was ever thought to have any right to apply for a stated case in committal proceedings. The reason for that may perhaps be found in the speeches in this House in Boulter v Kent Justices. That was a case dealing with licensing justices but Lord Herschell (with whom Lord Watson and Lord Shand concurred) and Lord Davy expressed opinions which would negative any right to have a case stated in committal proceedings. Lord Herschell thought ([1897] AC at p 571) that the right arose

[1969] 3 All ER 1317 at 1324

"in all matters pertaining to the exercise of summary jurisdiction by magistrates" and Lord Davey held ([1897] AC at p 573) that the relevant section did not "apply to justices except when sitting as a court and exercising summary jurisdiction". In Foss v Best ([1906] 2 KB 105 at p 110) Channell J expressed the opinion that--

"... justices who are taking depositions for the purpose of committing a prisoner for trial have not this power to state a case as they are not exercising summary jurisdiction."

In Card v Salmon the accused elected to be tried by jury and then asked the justices to state a case. Lord Goddard CJ said ([1953] 1 All ER at p 326; [1953] 1 QB at p 396) that examining justices had no power to state a case. The reason he gave was that they do not come to any final decision but only come to a conclusion whether or not a prima facie case has been made out to send for trial, and that they were sitting under the Indictable Offences Act 1848 and not under the Summary Jurisdiction Act 1879.

I am of opinion that before the Magistrates' Courts Act 1952 was enacted it was settled law that examining justices had no power to state a case. So the question is whether the relevant parts of the Act of 1952 are reasonably capable of a construction which accords with the law as it was when that Act was passed. If they are then that construction must be adopted; if they are not then it must be held that Parliament has altered the law per incuriam.

Section 124(1) of the Act of 1952 defines magistrates' courts as meaning--

"... any justice or justices of the peace acting under any enactment or by virtue of his or their commission or under the common law"

and examining justices are dealt with in ss 4, et seq. So, when the chief metropolitan magistrate decided not to commit the appellant on the charge of aggravated burglary, he was certainly sitting as a magistrates' court. The difficulty arises under s 87 of the Act of 1952. Subsection (1) provides:

"Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved ... "

This subsection is obviously intended to combine the provisions of the Acts of 1857 and 1879 to which I have already referred. But the drafting is not ideal. The word "proceeding" where it first occurs must mean litigation or proceedings--something to which there are parties. But where it is next used it must mean adjudication or decision and where it is used for the third time it must also have that meaning. So the case for the respondents is that they were parties to the litigation in the magistrates' court and are therefore entitled to question the decision of the court by applying for a stated case. If this subsection is to have a limited meaning it must be because "conviction, order, determination or other proceeding" has a limited meaning. I think it must be limited at least to this extent: it frequently happens that a court has to make a decision in the course of the proceedings--eg, whether certain evidence is admissible--but it cannot have been intended that the proceedings should be held up while a case on such a matter is stated and determined by the superior court. So application for a case can only be made when the litigation or "proceeding" is at an end. But, as Lord Goddard CJ pointed out in Card v Salmon ([1953] 1 All ER at p 326; [1953] 1 QB at p 396), examining magistrates do not come to a final decision. If they decide to commit for trial the case goes on, and if they decide not to commit that is not a ground for a plea of autrefois acquit.

I find this to be a question of difficulty. But, in order to avoid having to hold

[1969] 3 All ER 1317 at 1325

that this consolidating Act did something which Parliament cannot possibly have intended to do, I think that it is possible to hold that s 87 has no application to committal proceedings because such proceedings do not lead to any final decision. I would therefore hold that the chief metropolitan magistrate had no power to state a case, that the Divisional Court had no jurisdiction to deal with the case which he stated, and that therefore the order of that court on the case stated must be set aside and the order of the chief metropolitan magistrate restored.



LORD MACDERMOTT:

My Lords, I have had the advantage of reading the opinion of my noble and learned friend, Lord Reid, with which I agree.



LORD MORRIS OF BORTH-Y-GEST:

My Lords, on 2 May 1969 the chief metropolitan magistrate committed the appellant to the custody of the governor of Brixton Prison to be kept "until he is thence delivered" pursuant to the provisions of the Extradition Act 1870. The appellant was so committed on the ground of his being accused of three crimes of attempted murder. The charges were that on 5 October 1968 in the parish of Orleans in the State of Louisiana he attempted to murder: (i) Edward Nick; (ii) William Roth; and (iii) Alegria Pita. The appellant by motion applied to the High Court for an order that a writ of habeas corpus should be issued. His application was dismissed. He was granted leave to appeal to this House.

The chief metropolitan magistrate had a further charge against the appellant to consider. That was a charge of burglary. A requisition had been made to the Secretary of State by the diplomatic representative of the United States of America for the surrender of the appellant in respect of that charge. The chief metropolitan magistrate refused to make an order committing the appellant to prison in respect of that charge. He so refused because he held that a plea of autrefois convict succeeded. He stated a case for the opinion of the High Court whether his decision was correct in law. The High Court held that it was not and remitted the case to the chief metropolitan magistrate with a direction to commit the appellant on the further charge of aggravated burglary.

On behalf of the appellant it is no longer contended that the decision of the chief metropolitan magistrate was correct. It is acknowledged that the plea of autrefois convict ought not to have succeeded. But it has been contended that the erroneous decision of the chief metropolitan magistrate could not be corrected. It is contended that he had no power to state a case and accordingly that the High Court had no power to entertain it. In rejecting this contention the High Court certified that a point of law of general public importance was involved and granted leave to appeal. The certified point was thus expressed ([1969] 2 All ER at p 1158):

"Whether in proceedings for the return of a fugitive criminal under the Extradition Act 1870, an appeal lies at the instance of the foreign state by way of Case Stated to the Divisional Court of the Queen's Bench Division against the decision of the police magistrate discharging the said criminal in respect of any extradition crime adjudicated on in the said proceedings."

In the present case if the appeal now made in respect of the habeas corpus proceedings is unsuccessful the practical question will be whether the appellant is to be committed on three charges or on four. The question of legal importance, however, is whether, if a foreign State asks for committal on one charge and if the magistrate by an admitted error of law refuses to commit, the foreign State is powerless to ask for correction of the error by means of the procedure of a case stated.

Quite separate considerations arise in regard to the habeas corpus proceedings.

[1969] 3 All ER 1317 at 1326

Stated generally it is urged that the chief metropolitan magistrate had a discretion whether to commit on the three charges of attempted murder and that in the special circumstances of the case he should have declined to commit.

In the initial stages in the extradition proceedings there were undoubtedly certain wrong assumptions and certain mistakes. It was erroneously represented to one of the magistrates at Bow Street that the appellant had been convicted of robbery with violence and of attempted murder. He had not. It was on that basis that the magistrate on 8 March 1969 signed a warrant for the arrest of the appellant. His arrest took place the following day. Not only had he not at that date been convicted as above stated but the informations in Louisiana and the warrants there for the arrest of the appellant on the three charges of attempted murder and the charge of aggravated burglary had not then been laid or granted. They were only dated 14 March 1969. Thereafter (on 17 March 1969) the charges of attempted murder were preferred against the appellant when he appeared at Bow Street. The conviction of the appellant in Louisiana had been of attempted robbery with violence. To that crime he had pleaded guilty on 15 November 1968. On 20 November he was sentenced to serve a term of 18 years' hard labour. On 22 December 1968 he escaped from prison.

The documents show that when on 2 April 1969 the district attorney of the parish of Orleans requested the Governor of the State of Louisiana to issue a requisition to the American Secretary of State for the apprehension and rendition of the appellant it was on the basis of his conviction of the crime of attempted armed robbery and so that he should stand his trial on the three charges of attempted murder, and on the charge of aggravated burglary, and on the charge of escaping from custody. There was a deposition that if the appellant were extradited his prosecution would be limited exclusively to those crimes but further that he would have to serve the term of 18 years. At that stage there was misapprehension. The appellant could not be extradited on the basis of his conviction of attempted robbery with violence. It was not an extraditable crime. Nor was escape an extraditable offence. Furthermore, by reason of the operation of art 7 of the treaty (and see s 3(2) of the Extradition Act 1870) the appellant could not after extradition be made to serve the 18 years.

When the misapprehensions were removed there was a correction and the district attorney deposed on 22 April 1969 that if the appellant were extradited his prosecution would be limited to the three charges of attempted murder and the charge of aggravated burglary. In a document of 25 April 1969 the Governor of the State of Louisiana has stated clearly that if extradited the appellant will only be held in custody or be tried or be punished for the crimes for which, by treaty, extradition could be granted. Furthermore, the order of the Secretary of State in England (dated 25 April 1969) to the chief metropolitan magistrate recites a requisition for the surrender of the appellant on the charges of attempted murder and burglary. Accordingly, it was made clear before and at the date when the chief metropolitan magistrate made his order (ie, on 2 May 1969) that the treaty terms were being and would be honoured.

It was contended that under art 1 of the extradition treaty dated 22 December 1931 (between His Majesty in respect of the United Kingdom and the President of the United States of America) the obligation was only to deliver those persons who, being accused or convicted of any extraditable crime or offence should "be found within the territory of the other Party". It was contended that it was when the appellant was arrested (which was on 9 March 1969) that he was "found" within the United Kingdom and that at such date he had neither been accused nor convicted of any extraditable crime or offence. While it is correct that on 9 March he had not been accused of the offences for which extradition is sought he had been so accused before the date when, after several appearances, the magistrate made his order (2 May 1969) and at such date the appellant was certainly "found" within the territory.

A much more arguable contention related to the events in the month of

[1969] 3 All ER 1317 at 1327

November 1968. The appellant (together with another man) was arrested in Louisiana on 6 October 1968 in respect of the events that had taken place on 5 October. The arrest register records that the arrest was for armed robbery and that shots were fired during the ensuing chase. The three charges of attempted murder were "booked". But the armed robbery charge was considered to be the gravest charge. It carried the severest penalty. For that reason the district attorney decided to proceed on that charge and not on the charges of attempted murder; that was apparently in accordance with policy and practice; the decision was apparently made in order to avoid filing multiple charges. The appellant was given legal aid. There was a preliminary hearing on 6 November; the hearing was to be on 15 November. What is alleged by the appellant is that a meeting took place between him and his lawyer and the assistant district attorney and that he was told that if he would enter a plea of guilty to one charge of attempted armed robbery then the assistant district attorney would drop all the other charges and so save the State the cost of five trials. It is clear that at the hearing on 15 November the State did amend the bill of information to one of attempted armed robbery and that the appellant and also his co-accused withdrew their former pleas of not guilty and entered pleas of guilty. The accused were remanded for sentence until 20 November and on that date each one was sentenced to 18 years' hard labour. What the appellant contends, therefore, is that the prosecution in effect agreed that nothing more would be heard of the other charges if the appellant decided to plead guilty to attempted armed robbery. It is contended that in the circumstances the English court should decline to make an order which could lead (subject always to the decision of the Secretary of State) to extradition in respect of those other charges.

If the appellant were extradited the court in Louisiana would doubtless investigate the facts relating to any discussions that took place when the plea of guilty to attempted armed robbery was accepted and would consider any effect or significance that they might have in relation to the charges now made. Had the appellant not escaped doubtless nothing more would in fact ever have been heard of the other charges. It does seem also to be reasonably certain that if the conviction of the appellant had been, as was originally thought, of a crime which, under the treaty, warranted extradition, the charges now preferred would never have been revived or brought forward. So also if escaping had been an offence for which there could be extradition and if, as was originally thought, the appellant on being extradited could be made to serve his sentence, it seems probable that the authorities in Louisiana would have been content to receive back the appellant and not to prefer the charges of attempted murder and aggravated burglary.

Although the situation is unusual and has perplexing features I consider that, pursuant to s 10 of the Extradition Act 1870, the learned magistrate was correct in deciding to commit the appellant once he had decided in the manner directed by the section that the evidence in regard to the charges was sufficient to warrant committal. In regard to the existence of or the exercise of a judicial discretion in this country I do not wish to add to what I said in Connelly v Director of Public Prosecutions. There is, however, a complete discretion in extradition cases in the Secretary of State and it will be for him to decide whether in all the circumstances the appellant should or should not be surrendered.

For these reasons I would dismiss the appeal relating to the application for a writ of habeas corpus.

The remaining part of the appeal raises a short but highly technical point. If pursuant to treaty one high contracting power has engaged to deliver up to another power someone who is accused of an extraditable offence and if owing to an error of law the police magistrate declines to commit, is the foreign State unable to appeal by way of case stated? There would seem to be a most lamentable gap in our system if this is so. If a treaty obligation is only not being

[1969] 3 All ER 1317 at 1328

honoured by reason of a mistake of law it would be regrettale if the procedure calculated to correct mistakes of law is not available.

By s 2 of the Summary Jurisdiction Act 1857 there was a right to apply for a case stated on a point of law after the hearing and determination by a justice or by justices of the peace of any "information or complaint" which he or they had power to determine in a summary way. Then by s 33(1) of the Summary Jurisdiction Act 1879 it was provided that any person aggrieved who desired to question "a conviction, order, determination or other proceeding" of a court of summary jurisdiction on the ground that it was erroneous in point of law or was in excess of jurisdiction might apply to the court to state a special case. By s 50 of that Act a court of summary jurisdiction meant any justice or justices of the peace or other magistrate by whatever name called to whom jurisdiction was given by or who was or were authorised to act under the Summary Jurisdiction Act or any of such Acts. Then by s 7 of the Summary Jurisdiction Act 1884, it was enacted as follows:

"Whereas by section fifty of the Summary Jurisdiction Act, 1879, it is enacted that the expression 'court of summary jurisdiction' shall in that Act and any future Act mean 'any justice or justices of the peace or other magistrate by whatever name called to whom jurisdiction is given by or who is or are authorised to act under the Summary Jurisdiction Acts or any of such Acts'. And whereas doubts have arisen as to whether the said section extends to such justice, justices, or magistrate when acting under some Act other than the Summary Jurisdiction Acts, and it is expedient to remove such doubts: Be it therefore enacted as follows: It is hereby declared that the above recited definition of court of summary jurisdiction in section fifty of the Summary Jurisdiction Act, 1879, includes such justice, justices, or magistrate as therein mentioned, whether acting under the Summary Jurisdiction Acts, or any of them, or under any other Act, or by virtue of his or their commission or by the common law."

By s 13(11) of the Interpretation Act 1889 (a consolidating Act) the following was the substituted definition:

"The expression 'court of summary jurisdiction' shall mean any justice or justices of the peace, or other magistrate, by whatever name called, to whom jurisdiction is given by, or who is authorised to act under, the Summary Jurisdiction Acts, whether in England, Wales, or Ireland, and whether acting under the Summary Jurisdiction Acts or any of them, or under any other Act, or by virtue of his commission, or under the common law."

My Lords, I can imagine no words more clear or more comprehensive. If they were applied to the present case it seems to me that the chief metropolitan magistrate was a justice of the peace or other magistrate and that he was one to whom jurisdiction was given by or who was authorised to act under the Summary Jurisdiction Acts and that he was acting under the Extradition Act 1870 (which comes within the words "any other Act") and that he made a determination. In my view, the first respondent was aggrieved by it and desired to question it. I have referred first to the now superseded Acts of 1879 and 1884 because the Act now in force (the Magistrates' Courts Act 1952) is a consolidating Act. If s 87 and s 124 of that Act are applied to the present case the relevant words are, in my view, equally and abundantly clear. I can see no reason why a government which fails in an extradition application should not be regarded as a person aggrieved. Alternatively a government is a party within s 87 of the Act of 1952.

Why, then, is it contended that these various comprehensive words are of no application here? Reliance is placed on some observations in Boulter v Kent Justices. Boulter, as an objector, appeared at licensing sessions and opposed

[1969] 3 All ER 1317 at 1329

the renewal of a licence. Justices refused to renew it. On appeal to quarter sessions, where Boulter did not appear, the licence was renewed. Boulter was ordered to pay the costs of the appeal. The only question that arose was whether there was jurisdiction to make such an order as to costs and whether the appeal was made under and was regulated by s 31 of the Summary Jurisdiction Act 1879. Under that section there was a power to make an order as to costs--

"Where any person is authorised by this Act or by any future Act to appeal from the conviction or order of a court of summary jurisdiction to a court of general or quarter sessions ... "

This House allowed an appeal from the Court of Appeal which court had affirmed a decision of the Queen's Bench Division discharging a rule for a certiorari to quash the order as to costs. It may be that decision could have been based on a conclusion that there was no "conviction or order" which made s 31 applicable but consideration was also given to the question whether licensing justices came within the description of a court of summary jurisdiction. Although no question as to a case stated arose and although it was s 31 and not s 33 that was being considered observations were made in regard to s 50 of the Act of 1879 and s 7 of the Act of 1884. It is to be observed that the words in s 31 were the words "conviction or order" whereas the right to apply under s 33 for a case stated was given to a person aggrieved who desired to question "a conviction, order, determination or other proceeding". Prefacing his observations by saying that it was not necessary to decide the point, Lord Herschell expressed the view ([1897] AC at p 571) that the enactments defining a court of summary jurisdiction ought to be construed as meaning that a justice is only a court of summary jurisdiction within the meaning of the Act of 1879 (or any other law relating to summary jurisdiction) in matters pertaining to the exercise of summary jurisdiction. Lord Davey expressed the view ([1897] AC at p 573) that the word "acting" in s 7 of the Act of 1884 should be given the restricted meaning of "exercising summary jurisdiction". He further expressed the view that the words in s 13(11) of the Interpretation Act 1889 should be construed as applying only to justices when exercising summary jurisdiction.

From this it was contended that there cannot be a case stated unless a justice or a "court of summary jurisdiction" is exercising summary jurisdiction or is dealing with a matter summarily or is engaged in some proceeding which is of a final character or which leads to a final decision. The position of magistrates acting summarily was contrasted with the position of magistrates when acting as committing magistrates.

It may be acknowledged that it would be unlikely that a request would today be made to committing (or examining) magistrates to state a case. In practice there would be no need for one. All that such magistrates are deciding is that there is a case for trial. If they so decide--trial is likely soon to follow. All questions can then be decided. Apart from questions relating to guilt or innocence there may be questions relating to the admissibility of evidence and questions arising on a plea in bar. If committing magistrates decline to commit then those who consider that there are valid reasons for prosecuting are not without means of procedure which can easily be followed. I doubt, however, whether it is correct to say that committing magistrates have no "power" to state a case (see Card v Salmon). If committing magistrates decide that the evidence in a case is sufficient to warrant a committal for trial, I can see no reason why that is not a "determination". The legislation does not have the expression "final determination". But if the word "final" is read in then it seems to me that the decision of the magistrates on the issue before them, ie, whether there is sufficience evidence to warrant a committal, is a final decision in the sense that it is their definite and final conclusion having operative effect.

[1969] 3 All ER 1317 at 1330

Extradition procedure is something special and it is not precisely comparable with and it cannot be equated with purely domestic procedure. It is procedure relating to "fugitive criminals". They may be persons who have already been convicted or they may be persons who are accused. The procedure is designed to assist foreign States. When a fugitive criminal is brought before the police magistrate the magistrate must hear the case in the same manner (and he has the same jurisdiction and powers as near as may be) as if the prisoner were brought before him charged with an indictable offence committed in England. But although the magistrate has those powers he is certainly not acting as a committing magistrate in England. Thus, committing magistrates in England are not called on to deal with persons who have already been convicted. If the magistrate is dealing with a person who is accused of a crime and if he hears evidence which according to English law would justify committal for trial he does not commit for trial in England; he commits the person to prison and thereafter subject only to the discretion and decision of the Secretary of State the accused person is sent out of the jurisdiction and is surrendered to a foreign State. The accused it told that he may apply for a writ of habeas corpus. Matters which if the proceedings had been committal proceedings in England would have been dealt with at the trial can therefore be dealt with in the habeas corpus proceedings. Such matters would not after committal proceedings in England be dealt with by habeas corpus proceedings.

If, as in the present case, some point of law is raised and if by reason of a wrong ruling on it a person is released, is the foreign State powerless to ask the court to correct the error? If the foreign State seeks to start again, an application for a warrant for the arrest of the released man would surely be met by the answer that the competent court had given its decision. Even if the limitations expressed in Boulter v Kent Justices are introduced and if what is being looked for is some proceeding having a final character or involving some final determination then the decision of the magistrate would be a decision in such a proceeding. It would mark the conclusion of the special and somewhat limited extradition proceedings. Subject only to habeas corpus proceedings and case stated proceedings, final decision would have been given on the legal matters arising within the jurisdiction and it would have been given by the legal authority and the only legal authority specially designated to deal with them. It seems to me, therefore, that any attempted equation of the position of the police magistrate with the position of committing magistrates dealing with an accused person in England breaks down. No one can correct the erroneous decision in the present case unless there can be a case stated.

It is said that in some cases there might be difficulty in rearresting someone who, as decided in case stated proceedings, ought not to have been released. This consideration, even if it has any practical validity, cannot affect the question whether there is jurisdiction to state a case.

The contentions advanced on behalf of the appellant illustrate a difficulty that may arise if a word that is not in an Act of Parliament is read into it. The difficulty is that the word that is introduced may itself need definition. It is said in the present case that the word "final" must be introduced and that a decision (or determination) must be a final one before a case stated can be requested and it is said that where magistrates deal with a matter in a summary way they reach a final decision but that they do not do so when acting as investigating or committing magistrates. But in either case magistrates come to a decision when they have finished their task. If they are dealing with a case summarily they reach a decision; so far as they are concerned it is final; but it may not in another sense be final because there may be an appeal which may result in the reversal of their decision. So their decision will not have been final.

[1969] 3 All ER 1317 at 1331

Indeed, the proviso to s 87 of the Magistrates Courts Act 1952 shows that if a decision is really final there cannot be a case stated. The proviso is:

"... that a person shall not make an application under this section in respect of a decision against which he has a right of appeal to the High Court or which by virtue of any enactment passed after the thirty-first day of December eighteen hundred and seventy-nine, is final."

If magistrates act as examining magistrates and if they decide that there is evidence which warrants a committal for trial then they will have concluded their task and they will have come to a final decision. They will finally have decided the only issue which it was for them to determine. The ultimate or final decision in the case (ie, as to guilt or innocence) would not ex hypothesi have been an issue for them at all.

It seems to me, therefore, that the function of the police magistrate in extradition proceedings cannot be regarded as being either that of deciding a case itself in a summary way or that of deciding whether a case should go forward for trial within the jurisdiction. But his function does involve reaching a decision which subject only to any appeal procedure will finally determine either in relation to a convicted person or in relation to an accused person (who may or may not be a British subject) all the legal matters affecting the question whether such person is or is not to be sent out of the jurisdiction for trial or detention in another country. It is true that in the case of an accused person there is no final decision as to guilt. But no such final decision is a requisite in the extradition proceedings. In regard, however, to the legal matters which are involved in extradition proceedings the police magistrate is the person who is designated to deal with them; he deals with them summarily and he reaches a decision which, subject only to the discretion of the Secretary of State and to whatever appeal procedure there is, will finally determine whether a person is to be released or is to be handed over to a foreign State. If an error of law leads to a decision adverse to the person concerned there can be correction in habeas corpus proceedings. As such proceedings are available there would be no need to ask for a stated case. If an error of law leads to a decision adverse to a foreign State then, in my view, the magistrate has a discretion in a proper case to do what on request the magistrate did in this instance, ie, to state a case.

In my view, the Divisional Court came to a correct conclusion in both appeals. I would dismiss the appeals.



LORD GUEST:

My Lords, the incidents out of which these appeals arise occurred on 5 October 1968. On that date there took place what can only be described as an armed hold-up in the house of Mrs Alegria Pita in New Orleans, Louisiana, USA. The appellant, who is a British subject, and his accomplice, named Wagner, entered Mrs Pita's house on some pretext. His accomplice, having made some excuse to go to the bathroom, while the appellant remained in the room, emerged from the bathroom armed with a revolver with which he threatened Mrs Pita and her family, demanding her jewellery. The occupants of the house, including Mrs Pita, escaped through a back entrance. They were pursued into the streets by these two robbers who fired shots at Mrs Pita and at two police officers who were summoned. The appellant, along with his accomplice, was subsequently arrested for armed robbery. Three charges of attempted murder, one against Mrs Pita and one against each of the police officers were preferred. The events following the arrest are not very clear but it would appear from the documents that the charge of armed robbery was proceeded with, while the three charges of attempted murder were "refused". The appellant alleges that a bargain was made between the district attorney and his attorney whereby on his agreeing to plead guilty to attempted robbery the charge of attempted murder would be dropped. On the view which I take of the

[1969] 3 All ER 1317 at 1332

case it is unnecessary to resolve these doubts. Subsequently a plea of guilty to attempted armed robbery was accepted by the district attorney and the appellant was sentenced by the criminal district court of New Orleans to serve a period of 18 years' imprisonment with hard labour.

On 22 December 1968 the appellant escaped and ultimately made his way to Manchester, England, where on 9 March 1969 he was arrested on a provisional warrant under the Extradition Acts 1870 to 1935, issued by the chief metropolitan magistrate at Bow Street, on the ground that he had been convicted of robbery with violence and attempted murder. It was subsequently discovered by the American authorities that this was not accurate. On 14 March 1969 he was charged in New Orleans with three offences of attempted murder and one of aggravated burglary, all of which are extraditable offences.

At this stage it is necessary to deal separately with the charges of aggravated burglary and the charges of attempted murder. On a hearing before the chief metropolitan magistrate at Bow Street on 2 May 1969 the charge of aggravated burglary was dismissed on a plea of autrefois convict and a case which was stated from the chief magistrate to the Divisional Court succeeded.

In regard to the three charges of attempted murder the chief magistrate committed the appellant to Brixton prison. Subsequent proceedings for habeas corpus failed before the Divisional Court and it is against this decision that the appellant appeals to your Lordships' House.

I propose, first, to take the decision regarding the stated case on the aggravated burglary charge. I am content to express my agreement with the majority of your Lordships that an appeal by stated case on extradition proceedings is incompetent for the reasons given. It is unnecessary for me to say more than that, before the Magistrates' Court Act 1952, it was never suggested that an appeal by way of stated case under the Extradition Act 1870 was competent and as the Magistrates' Court Act 1952, was a consolidating Act I am not prepared to accept that the terms of s 87 of that Act have created such a novel departure in the law of procedure. The first respondent, in order to succeed on this branch of the case, would have to show that before 1952 in committal proceedings generally there must have been a right of appeal by stated case for the prosecution or for the defence on a question of law. This departure, which is entirely novel, would create practical difficulties which I am not prepared to assume were intended by the consolidating Act of 1952. Counsel for the second and third respondents, as amicus curiae, gave the complete answer, in my view, when he said that a stated case was only competent for a final determination. This conclusion was reached by an examination of s 87 where "other proceeding" had to be interpreted ejusdem generis with the words "conviction, order or determination" which are final proceedings. As the decision of committing magistrates or the chief metropolitan magistrate under the Extradition Acts was not a final determination, a stated case was incompetent.

I pass now to the appeal on the habeas corpus proceedings. Counsel for the appellant takes three points on this appeal. In the first place, he argues that as the appellant had not in fact been convicted on the charges on which he was originally arrested in this country, namely, robbery with violence and attempted murder, art 1 of the treaty does not apply. This article provides for the handing over by one contracting party to the other of persons accused or convicted of extraditable offences when "found" within the territory of the other State. Counsel for the appellant argued that in order to comply with art 1 of the treaty the person must be accused of an extraditable offence when he is arrested in this country. I am not, however, prepared to give such a restrictive meaning to the word "found" in art 1. It means no more, in my view, than that the person in question must be present in this country when the extraditable charges are preferred. On this interpretation of art 1 the appellant was present in this country when the charges of attempted murder were preferred in New Orleans.

[1969] 3 All ER 1317 at 1333

These are extraditable offences. This argument, in my view, therefore, fails.

The second point which counsel for the appellant takes relates to s 3(2) of the Extradition Act 1870, which is in the following terms:

"A fugitive criminal shall not be surrendered to a foreign state unless provision is made by the law of that state, or by arrangement that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to Her Majesty's dominions, be detained or tried in that foreign state for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded:"

He contends that as the State of Louisiana is not a party to the treaty, there is no evidence that according to Louisiana law the appellant shall not, until he has been returned to this country, be detained or tried in the United States of America for any offence committed by him prior to his extradition other than those on which he has been extradited; and that there is no evidence of any "arrangement" made between the United Kingdom and the State of Louisiana to that effect. This matter, however, has now been cleared up completely by the affidavit sworn by Mr Gottesman, a member of the Bar of the State of New York and the United States Federal District Court for the Southern District of New York, and produced for your Lordship without objection by the appellant. The affiant states his opinion that under art vi of the Constitution of the United States of America the judges of every State are bound to act in accordance with the treaties made under the authority of the United States of America. Paragraph 5 of the affidavit is in the following terms:

"In my opinion it would be unlawful for a judge in Louisiana to cause a person surrendered in accordance with the provisions of the said Treaty to be kept in custody or brought to trial in the State of Louisiana (or elsewhere in the United States of America) for any other crime or offence, or on account of any other matters, than those for which the extradition shall have taken place, until the person had been restored or had had an opportunity of returning to the territories of the United Kingdom, except for crimes of offences committed after the extradition."

The terms of s 2 and s 4 of the Extradition Act 1870 make it plain that the treaty is the "arrangement", and art 7 of the treaty complies with s 3(2). In these circumstances it is clear that the terms of s 3(2) are, therefore, satisfied.

The third and final point taken by counsel for the appellant is more difficult. He concedes that it was not open to the appellant to plead before the magistrate either autrefois convict or autrefois acquit in regard to the charges of attempted murder on which extradition is sought because there was no judicial determination is New Orleans in these charges. He contends, however, that in the whole circumstances it would be oppressive and contrary to natural justice for the appellant to be returned to America on these charges and that the magistrate had a discretion to refuse to do so. He says that it is clear that as the appellant cannot in fact be extradited for the offences of prisonbreaking or attempted armed robbery, the American authorities, on the pretext of charging him with attempted murder, seek his return in order that he may serve the rest of his 18 years' sentence. No charge of bad faith is made against the American authorities which, indeed, would be a question for the Secretary of State to consider and not the courts (see Re Arton (No 1)). But counsel for the appellant stoutly maintains that this discretion to dismiss the charges can and should be exercised by the magistrate in his favour. He admits that there is no authority in point. The argument proceeds on these lines. A committal order without proper jurisdiction is

[1969] 3 All ER 1317 at 1334

unlawful. In order that the court may have jurisdiction the offender must be "lawfully detained by his gaoler" (see per Viscount Radcliffe in Schtraks v Government of Israel ([1962] 3 All ER 529 at p 536; [1964] AC 556 at p 585)).

Section 9 of the Extradition Act 1870, provides that the police magistrate shall have the same jurisdiction and powers as near as may be as if the prisoner were brought before him charged with an indictable offence according to the law of England. By s 10 in the case of a fugitive criminal accused of an extraditable offence if such evidence is produced as (subject to the provisions of the 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. The test is, therefore, the committal of a prisoner in England by the magistrates for trial.

The foundation of counsel for the appellant's argument is contained in certain passages from Connelly v Director of Public Prosecutions which state that a residual discretion rests in the High Court to stay proceedings where the preferring of certain charges would be oppressive and contrary to the principles of natural justice. But there is no case in which this discretion has been stated to exist in magistrates at committal proceedings. If such a plea is available it can be raised at the subsequent stages when the case reaches the High Court. It has never been suggested that examining magistrates at committal proceedings have a discretion to refuse to commit on the ground that although a prima facie case has been made out, to do so would be contrary to natural justice. I therefore consider that the magistrate under the Extradition Act 1870 has no discretion to refuse to commit on the ground that the principles of natural justice have not been complied with.

There is a further reason why the discretion to dismiss the charges in extradition proceedings on the ground of oppression or breach of the principles of natural justice should not be exercised by the magistrate. Under s 11 of the Act, after the magistrate has under s 10 committed the prisoner to prison the Secretary of State is given a complete discretion after a certain time limit to order the fugitive criminal to be surrendered to the foreign State. He can if necessary at that stage decide questions of oppression or breach of the principles of natural justice. I respectfully adopt the observations of my noble and learned friend, Lord Reid, on this point. In my view, it is clear in regard to extradition proceedings at any rate that no discretion resides in the magistrate to refuse to commit on the grounds counsel for the appellant suggests.

In the whole circumstances my view is that the appellant's appeal must fail on this point also. I would therefore dismiss the appeal on the habeas corpus proceedings and sustain the appeal in regard to the stated case by the chief metropolitan magistrate on the aggravated burglary charge and restore the decision of the chief metropolitan magistrate.



LORD UPJOHN:

My Lords, there are two appeals before your Lordships both by the appellant Atkinson. The first appeal is against the order of the Divisional Court refusing his application for a writ of habeas corpus from the order of the chief metropolitan magistrate who committed him to prison under s 10 of the Extradition Act 1870. The ground of his appeal is that the committing magistrate has a discretion whether or not to commit if it would be wrong and oppressive to do so, and on the facts of this case he submits that it would be wrong to commit. I can see no such discretion vested in the committing magistrate; the words of s 10 are mandatory and I see no room for the implication in the Act of such a discretion. But, my Lords, I do not pursue this matter further for I have had an opportunity of reading the speech of my noble and

[1969] 3 All ER 1317 at 1335

learned friend, Lord Reid, on this appeal with which I entirely agree and to which I cannot usefully add anything. For the reasons he gives I would dismiss the first appeal.

My Lords, the second appeal by the appellant arises in these circumstances. In addition to the grounds for extradition relevant to the first appeal the first respondent also sought the extradition of the appellant on the charge of aggravated burglary. The chief metropolitan magistrate held that on this charge the appellant's plea in bar of autrefois convict succeeded but at the request of the first respondent he stated a case for the opinion of the Divisional Court. It is common ground that the magistrate was wrong to uphold the plea in bar and the Divisional Court on the case stated remitted the matter to the magistrate with a direction to commit. The whole question is whether the magistrate had power to state a case on committal proceedings. If he had not then the Divisional Court had no power to remit and the magistrate's order, though wrong, must stand.

One thing seems clear that if committing magistrates in general have no power to state a case for committal there is nothing in the Extradition Act 1870 which gives the magistrate acting under that Act any special power to do so. The question, therefore, which is of some general importance, is whether magistrates when committing an accused for trial have power to state a case. This depends on s 87 of the Magistrates' Courts Act 1952 ("the Act"). The majority of your Lordships disagree with the judgment of the Divisional Court in this respect and are of opinion that there is no such power, and I agree, but in these circumstances I propose to add some observations of my own on the matter. Section 87 of the Act is in these terms:

"87.--(1) Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved ... [I can omit the proviso to this subsection.]

"(2) An application under the preceding subsection shall be made within fourteen days after the day on which the decision of the magistrates' court was given.

"(3) For the purpose of the last preceding subsection, the day on which the decision of the magistrates' court is given shall, where the court has adjourned the trial of an information after conviction, be the day on which the court sentences or otherwise deals with the offender.

"(4) On the making of an application under this section in respect of a decision any right of the applicant to appeal against the decision to a court of quarter sessions shall cease ... "

It cannot be doubted that the chief metropolitan magistrate when sitting as a committing magistrate was sitting as a magistrates' court. See s 4 and s 124 of the Act.

The case for the first respondent, the United States government, supporting the decision of the Divisional Court is attractively simple. Their counsel argues that the word "proceeding" which appears three times in the first four lines of sub-s (1) has the same meaning throughout and that the United States is a party to the proceeding; then, he says, this is a proceeding and as the magistrate has finally decided the matter by committing the appellant he can state a case.

I cannot, however, accept the argument that the word "proceeding" has the same meaning throughout. In the first line it means merely "litigation". Where it secondly appears "proceeding" must be read ejusdem generis with

[1969] 3 All ER 1317 at 1336

"conviction, order, determination" and really means "decision". In parenthesis I may add that the word "proceeding" had to be used for in fact s 33 of the Summary Jurisdiction Act 1879 used that word and that section was being consolidated. Where it thirdly appears the word "proceeding" is used plainly as an omnibus phrase to cover "conviction, order or determination".

On that analysis of the subsection I think it most doubtful whether on its true construction the subsection taken even by itself confers a power on committing magistrates to state a case. Of course, in a most literal sense, in making an order of committal the magistrates are making a judicial order or determination; it is a judicial proceeding and it is an order or determination in the sense that in the result the accused then stands his trial. But I do not myself think that the subsection is aimed at that. In my opinion, it is aimed at an adjudication not necessarily in a summary matter, for the magistrates may be exercising their jurisdiction under other Acts, eg, with regard to affiliation orders or matrimonial proceedings. But here there is no judicial determination of the rights of the parties in that sense; no "rights" are decided. All that the committing magistrates have "decided" or "determined" is that there is a prima facie case which should go before the adjudicating tribunal; they are acting judicially but they are are truly an adjudicating body at this stage, they are merely carrying out a step in the complex of proceeding which by our law precedes the trial of an indictable offence. This view is supported by sub-s (2), sub-s (3) and sub-s (4) which seem to me quite plainly to be drafted on the footing that the case stated under sub-s (1) is dealing only with a final adjudication (subject to appeal where appropriate) of the rights of the parties and not merely the taking of a step in the action such as a committal.

But, my Lords, the Magistrates' Courts Act 1952 is a consolidating Act so that the strong presumption arises that no alteration in the existing statutory law was thereby enacted. But the long title tells us that it was enacted with corrections and improvements under the Consolidation of Enactments (Procedure) Act 1949. So your Lordships looked at the Lord Chancellor's memorandum, which is an essential feature of the procedure under that Act, to see whether the relevant enacting words in the Act were introduced under the Act of 1949 and it is quite clear that no relevant alterations to the existing statutory law were thereby introduced; so the presumption stands unaffected in any way.

My noble and learned friend, Lord Reid, in his speech has traced in detail the statutory and judge-made law on this matter and has shown that it was settled law before 1952 that examining or committing justices had no power to state a case. I entirely agree with that opinion and cannot usefully add anything thereto. In this state of affairs even if I had reached the conclusion that on the true construction of the Act alone it did create a power in examining or committing magistrates to state a case I feel no doubt that the presumption applies and that s 87 most certainly is not clear enough in its express wording to displace the presumption and alter the previous clearly accepted law.

My Lords, I am glad to be able to reach this conclusion for if committing magistrates could be required to state a case it would, to put it mildly, be productive of highly inconvenient results.

For these reasons I would allow the second appeal.

Appeal as regards habeas corpus proceedings dismissed, but appeal in regard to case stated allowed and order of magistrate restored.

Solicitors: Victor J Lissack (for the appellant); Rowe & Maw (for the first respondent); Treasury Solicitor.

S A Hatteea Esq Barrister