Government of Canada v Aronson

Under section 3(1)(c) of the Fugitive Offenders Act 1967, double criminality depends on the offence charged in the requesting Commonwealth country. The ingredients disclosed by the charge and its particulars must constitute an offence under United Kingdom law.

Evidence cannot supply an additional physical or mental ingredient which forms no part of the Commonwealth offence. This construction applies to accused and convicted fugitives alike. Any genuine ambiguity in legislation restricting liberty must be resolved in favour of the subject.

Canada requested the respondent’s return to face numerous dishonesty charges. The Chief Metropolitan Stipendiary Magistrate committed him on 77 charges after finding that they were relevant offences under section 3 of the Fugitive Offenders Act 1967 and that the evidence disclosed prima facie cases.

On habeas corpus, the Divisional Court quashed the committal on 69 charges. Although it preferred a conduct-based construction, it considered itself bound to compare the ingredients of the Canadian offences with those of the corresponding English offences.

The central issue was whether section 3(1)(c) permits the evidence as a whole to supply an ingredient required by English law but absent from the Commonwealth offence. By a majority of three to two, the House held that it does not.

1. Appeal dismissed by a majority of three to two. Lord Bridge of Harwich and Lord Lowry delivered the principal majority speeches. Lord Elwyn-Jones agreed with both. Lord Griffiths and Lord Jauncey of Tullichettle dissented and would have restored the magistrate’s order on all 77 charges.

2. Per Lord Bridge, section 3(1)(c) of the Fugitive Offenders Act 1967 bears the narrow construction. The ingredients of the Commonwealth offence, as disclosed by the charge and its particulars, must establish a corresponding United Kingdom offence. It is insufficient that the totality of the evidence could prove an additional ingredient required only by United Kingdom law.

3. Per Lord Bridge and Lord Lowry, an additional ingredient and the evidence said to prove it do not form part of the material constituting the Commonwealth offence. The wider construction would produce anomalies. Identically charged persons could be treated differently because evidence irrelevant to their trial abroad happened to establish an additional English ingredient. In conviction cases, a magistrate would have to go behind a verdict or guilty plea and reconstruct the facts found at trial.

4. Per Lord Lowry, “the offence” in section 3(1)(c) is the offence of which the fugitive is accused or has been convicted in the Commonwealth country. Section 3(2) provides the express qualification by requiring specified special intentions, states of mind and aggravating circumstances to be disregarded when determining whether the offence falls within Schedule 1. The court must examine what constitutes the charged offence, rather than search the evidence for some other English offence.

5. The majority treated Reg v Governor of Brixton Prison, Ex parte Gardner [1968] 2 QB 399 as consistent with that construction. Lord Lowry also regarded the approach in Reg v Governor of Pentonville Prison, Ex parte Myers as applicable. The separate machinery of the Extradition Act 1870, including the approach in In re Nielsen [1984] AC 606, could not be transferred to the materially different statutory scheme governing Commonwealth fugitives.

6. Per Lord Bridge, Lord Elwyn-Jones and Lord Lowry, even if section 3(1)(c) were genuinely ambiguous, the construction more favourable to the liberty of the subject must prevail. The Divisional Court’s order quashing the committal on 69 charges therefore remained in force.

1. House of Lords: By a majority of three to two, dismissed the appeal and left undisturbed the quashing of the committal on 69 charges.

2. Divisional Court of the Queen’s Bench Division: On 20 December 1988, quashed the magistrate’s committal order in respect of 69 offences because they were not relevant offences under section 3(1) of the Fugitive Offenders Act 1967. It ordered that the respondent remain in custody on the eight undisputed offences. Reported in The Times, 24 December 1988.

3. Chief Metropolitan Stipendiary Magistrate: Found sufficient evidence on 77 of the 78 charges and committed the respondent to custody to await his return to Canada.