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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Welsh & Anor v Secretary of State for the Home Department & Anor  EWHC 156 (Admin) (21 February 2006)
Cite as:  WLR 1281,  EWHC 156 (Admin),  1 WLR 1281,  3 All ER 204
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OUSELEY
| HOWARD WELSH
LEE HOPE THRASHER
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Khawar Qureshi (instructed by the Treasury Solicitor)
for the Secretary of State for the Home Department
Mr Gavin Irwin (instructed by CPS) for the Government of the United States of America
Crown Copyright ©
Ouseley J :
FORM AND PROCEDURE
SPECIALTY : STATUTORY PROVISIONS
"(3) There are specialty arrangements with a category 2 territory if (and only if) under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if-
(a) the offence is one falling within subsection (4), or
(b) he is first given an opportunity to leave the territory.
(4) The offences are –
(a) the offence in respect of which the person is extradited;
(b) an extradition offence disclosed by the same facts as that offence, other than one in respect of which a sentence of death could be imposed;
(c) an extradition offence in respect of which the Secretary of State consents to the person being dealt with;
(d) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence."
"…(1) A person extradited shall not be detained or proceeded against in the territory of the requesting party for any offence other than an extraditable offence established by the facts in respect of which his extradition has been granted, or on account of any other matters, nor be extradited by that party to a third state –
(a) until after he has returned to the territory of the Requested party; or
(b) until the expiry of thirty days after he has been free to return to the territory of the Requested party
(2) the provisions of paragraph (1) of this Article shall not apply to offenses committed, or matters arising, after the extradition…"
"While the treaty of 1842, with Great Britain, had no express limitation of the right of the demanding country to try a person only for the crime for which he was extradited, such a limitation is found in the manifest scope and object of the treaty itself and it has been so construed by this Court. United States v Rauscher, 119 U. S.407.
A person extradited under the treaty of 1899 with Great Britain cannot be punished for an offense other than that for which his extradition has been demanded even though prior to his extradition he had been convicted and sentenced therefor.
Sections 5272, 5275, Revised Statutes, clearly manifest the intention and the will of the political department of the Government, that a person extradited shall be tried only for the crime charged in the warrant of extradition, and shall be allowed a reasonable time to depart out of the United States before he can be arrested and detained for any other offense.
Repeals by implication are never favored, and a later treaty will not be regarded as repealing, by implication, an earlier statute unless the two are so absolutely incompatible that the statute cannot be enforced without antagonizing the treaty, and so held that the treaty with Great Britain of 1899 did not repeal §§ 5272, 5275, Rev.Stat.
While the escape of criminals is to be deprecated, treaties of extradition should be construed in accordance with the highest good faith, and a treaty should not be so construed as to obtain the extradition of a person for one offense and punish him for another, especially when the latter offense is one for which the surrendering government has refused to surrender him on the ground that it was not covered by the treaty."
SPECIALTY: SUPERSEDING INDICTMENT FOR A NON-EXTRADITION OFFENCE
"These cases suggest that the doctrine of specialty is concerned primarily with prosecution for different substantive offenses than those for which consent has been given, and not prosecution for additional or separate counts of the same offense. The appropriate test for a violation of specialty 'is whether the extraditing country would consider the acts for which the defendant was prosecuted as independent from those for which he was extradited'. Id. at 1435 (citations omitted).
Moreover, we do not believe Mexico would consider the acts for which Aaron was prosecuted to be independent from those for which he was extradited."
SPECIALTY: SUPERSEDING INDICTMENT FOR OFFENCES NOT IN THE REQUEST
SPECIALTY: EVIDENCE OF OTHER OFFENCES
THE POST- DECISION UNDERTAKINGS