In re Burke

Under the United Kingdom–United States extradition treaty, the requirement that a convicted person must have received at least four months’ imprisonment or detention is a threshold of seriousness. Liability to extradition does not end when the custodial term has been served.

The requesting state must show what remains unperformed of the whole sentence imposed by the court. That sentence may include supervised release and other non-custodial orders. Extradition serves no purpose once every element of punishment has been completed, but it remains available while supervised release is outstanding. An alleged breach of supervised release need not itself constitute an extradition offence where surrender is sought upon the original conviction.

The appellant had been convicted of two offences of bank theft in the United States. He received concurrent terms of five years’ imprisonment, followed by concurrent five-year periods of supervised release, together with a fine and an order for restitution. After completing his imprisonment, he left the United States while still subject to supervised release.

A metropolitan magistrate committed him in custody under Schedule 1 to the Extradition Act 1989. The Divisional Court dismissed his application for habeas corpus. He appealed to the House of Lords.

The central issue was whether the United Kingdom–United States extradition treaty permitted the surrender of a convicted person who had completed his custodial term but had not completed the supervised-release component of his sentence.

1. Appeal dismissed by a majority of three to two. Lord Hope of Craighead delivered the leading speech. Lord Steyn and Lord Jauncey of Tullichettle agreed with his reasons. Lord Hutton dissented, with Lord Hobhouse of Woodborough agreeing.

2. Per Lord Hope, an extradition treaty is a bargain between contracting states and receives a liberal construction according to its language, object and intent. Article III(4) of Schedule 1 to the United States of America (Extradition) Order 1976 sets a threshold of seriousness. A convicted person must have received imprisonment or another form of detention for at least four months. The provision does not require any portion of that custodial term to remain unserved.

3. Article VII(4) requires evidence of the sentence imposed and a statement showing the extent to which it remains unperformed. Per Lord Hope, “sentence” means the whole sentence imposed by the court. It is not confined to imprisonment or detention. The appellant’s sentence therefore comprised the orders for imprisonment, supervised release, a fine and restitution.

4. It is implicit in Article VII(4) that extradition cannot be used after every element of punishment has been carried out. In that situation the convicted person is no longer escaping punishment. The appellant nevertheless remained liable to extradition because the Article III(4) custodial threshold had been crossed and his supervised release remained outstanding.

5. The appellant’s alleged breach of supervised release had not yet been established. For that purpose he occupied the position of an accused person, and the breach was not itself advanced as an extradition offence. Evidence of the possible penalties for breach did not affect liability under the treaty, although it could be relevant to the Secretary of State’s discretion under Schedule 1 to the Extradition Act 1989.

6. Dissenting: Lord Hutton considered that “sentence” in Article VII(4) referred to the qualifying sentence of imprisonment or detention in Article III(4). Once that term had been served in full, outstanding supervised release, a fine or restitution could not independently justify extradition. He would have allowed the appeal and ordered habeas corpus. Lord Hobhouse agreed.

1. House of Lords: By a majority of three to two, dismissed the appellant’s appeal and upheld his committal pending the Secretary of State’s decision on surrender.
2. Divisional Court: On 16 March 1999, Rose LJ and Mitchell J dismissed the appellant’s application for a writ of habeas corpus ad subjiciendum.
3. Metropolitan magistrate: On 16 December 1998, committed the appellant in custody under paragraph 7(2) of Schedule 1 to the Extradition Act 1989 to await the Secretary of State’s decision.