Ismail, In re

The House of Lords held that a purposive and cosmopolitan approach should be adopted to the meaning of "accused" in section 1(1)(a) of the Extradition Act 1989 so as to accommodate differences in criminal procedure between jurisdictions. The court rejected a narrow, form‑based test requiring a formal charge in the requesting state and held that a person will be "accused" where, on the facts, the competent authorities of the requesting state have taken a step that can fairly be described as the commencement of prosecution proceedings. The court relied on section 20 of the 1989 Act and Article 1 of the European Convention on Extradition for contextual support of a broad construction. Applying that test, the House of Lords concluded that the combination of the German judge's satisfaction on compelling evidence, the senior public prosecutor's decision that there was sufficient evidence to justify proceedings, and the terms of the warrant of arrest meant the appellant was a person "accused" and extraditable.

This was an appeal against the dismissal by the Divisional Court of a habeas corpus application challenging committal under Part III of the Extradition Act 1989. The appellant, a British citizen, faced a German request for extradition in respect of large scale alleged frauds carried out in 1994–95. The warrant issued in Germany identified the appellant, set out particulars of alleged offences and described him as "the accused". The appellant contended that no formal criminal charge had been laid in Germany and that he was only wanted for pre‑trial investigation; accordingly he argued he was not a person "accused" within section 1(1)(a) of the Extradition Act 1989.

The issues framed by the court were (i) the meaning of "accused" in section 1(1)(a) of the 1989 Act and Article 1 of the European Convention on Extradition, and (ii) whether, on the facts, the appellant satisfied that test. The House of Lords held that "accused" is not a term of art and requires a factual inquiry in each case. Given differences in legal systems, the court stated that a purposive and broad construction is appropriate, looking to whether the foreign authorities had taken a step which can fairly be described as the commencement of a prosecution. The court observed that section 20 of the 1989 Act (which contemplates a defendant returned after extradition not having proceedings begun within six months) supports a broad interpretation of "accused" in section 1.

On the facts the court relied on three cumulative matters: the German judge had been satisfied on compelling evidence before issuing the warrant; the senior public prosecutor had decided there was sufficient evidence to justify criminal proceedings (he had applied for the warrant); and the warrant's terms expressly charged the appellant and set out particulars and statutory bases for the charges. For these reasons the court concluded the appellant was a person "accused" and dismissed the appeal.

The relief sought: a writ of habeas corpus to challenge the lawfulness of detention/committal pending extradition. The court granted no such relief, dismissing the appeal.

Appeal dismissed. The House of Lords held that "accused" in section 1(1)(a) of the Extradition Act 1989 should be given a purposive and context‑sensitive meaning to accommodate differences between legal systems; on the facts the German authorities had taken steps amounting to the commencement of prosecution and the appellant was therefore a person "accused" and extraditable.

Appeal from the Divisional Court of the Queen's Bench Division, which on 2 July 1997 dismissed the appellant's habeas corpus application (Garland J and Simon Brown L.J.). Earlier proceedings included arrest on 29 May 1996, committal by a Metropolitan Stipendiary Magistrate on 15 August 1996 and the Secretary of State's authorisation on 25 April 1996 to proceed under Part III of the Extradition Act 1989.