In re Ismail

Under section 1(1) of the Extradition Act 1989, an extraditable person may be “accused” although no formal criminal charge has been made. The issue is a factual threshold, determined by substance rather than the procedural forms of English law. The competent authorities of the requesting state must have taken a step which can fairly be described as commencing a prosecution.

Mere suspicion or a wish to question the person is insufficient. Extradition legislation and treaties should receive a broad, generous and purposive construction, so far as their language permits. Courts should adopt a cosmopolitan approach which accommodates differences between common-law and civil-law criminal procedures and focuses closely on the particular facts.

In re Ismail concerned a British citizen whose extradition was requested by Germany for alleged involvement in a substantial international investment fraud. A German judge had issued a detailed arrest warrant following an application by a senior public prosecutor. Although the warrant described the appellant as accused and charged, no formal complaint commencing the intermediate stage of German criminal procedure had been filed.

A metropolitan stipendiary magistrate committed the appellant on bail to await the Secretary of State’s decision. The Divisional Court, Garland J with Simon Brown LJ agreeing, dismissed his application for habeas corpus. The sole question before the House was whether he was a person “accused” of an extradition crime under section 1(1) of the Extradition Act 1989, notwithstanding the absence of a formal German charge.

1. Appeal dismissed unanimously. Lord Steyn delivered the leading speech. Lords Browne-Wilkinson, Jauncey of Tullichettle, Slynn of Hadley and Hutton expressly agreed with his reasoning.

2. Per Lord Steyn, “accused” in section 1(1) of the Extradition Act 1989 is not a term of art and should not receive an exhaustive definition. Whether the threshold has been crossed is a question of fact. The court must ask whether the competent foreign authorities have taken a step which can fairly be described as commencing a prosecution. That inquiry requires an intense focus on the particular facts.

   Mere suspicion, or the fact that a person is wanted for questioning, is insufficient. Conversely, a formal charge corresponding to the laying of an information or preferring of an indictment in English procedure is unnecessary.

3. Per Lord Steyn, extradition treaties and statutes should receive a broad and generous construction, so far as their language permits, because they serve the transnational interest in bringing persons accused of serious crimes to justice. The House applied the approach in Reg. v. Governor of Ashford, Ex parte Postlethwaite [1988] A.C. 924 and Rey v. Government of Switzerland [1998] 3 WLR 1. The court should adopt a purposive and cosmopolitan approach which accommodates differences between legal systems and concentrates on substance rather than form.

   Section 20 of the 1989 Act supported that construction because it contemplated that a person returned to the United Kingdom as an accused person might not have proceedings begun against him for six months. Section 37(7) of the Police and Criminal Evidence Act 1984 also showed that, even in England, a prosecution could begin when a custody officer charged an arrested person, despite continued investigation and the absence of prosecutorial or judicial involvement at that stage.

4. Per Lord Steyn, three circumstances cumulatively established the required status. The German judge had been satisfied on compelling evidence of the appellant’s guilt before issuing the arrest warrant. The senior public prosecutor had decided that sufficient evidence existed to justify criminal proceedings. Most importantly, the warrant described the appellant as accused and charged, particularised the alleged conduct and identified the applicable statutes.

   The appellant was therefore “accused” under section 1(1) of the 1989 Act and was also a person against whom the competent German authorities were proceeding for an offence under article 1 of the European Convention on Extradition.

• House of Lords: In [1998] UKHL 32, unanimously dismissed the appeal and left undisturbed the Divisional Court’s refusal of habeas corpus.
• Divisional Court of the Queen’s Bench Division: On 2 July 1997, Garland J, with Simon Brown LJ agreeing, dismissed the application for habeas corpus.
• Bow Street Magistrates’ Court: On 15 August 1996, the metropolitan stipendiary magistrate committed the appellant on bail to await the Secretary of State’s decision on his return to Germany.