Burke, In re

The House of Lords considered whether a person convicted and sentenced in the United States remains extraditable where he has served the custodial element of his sentence but remains subject to a period of supervised release. The majority construed Article III(4) and Article VII(4) of the 1972 extradition treaty between the United Kingdom and the United States so that the term "sentence" in Article VII(4) embraces the whole judicial order (including supervised release) and not solely the custodial element. Because the applicant had been sentenced to a custodial term meeting the Article III(4) threshold and his overall sentence included a supervised release period that had not been carried out, he remained liable to extradition. The minority held that the treaty should be read so that extradition of a convicted person requires that part of the custodial sentence remain unserved and that a person who has served the custodial term is not extraditable as a convicted person. Article III(4) and Article VII(4) were central to the decision.

Background and facts:

• The appellant pled guilty in a United States federal court to two counts of bank theft under Title 18 USC s.2113(b) and was sentenced to concurrent five-year custodial terms, to be followed by concurrent five-year terms of supervised release, a fine and restitution. He served the custodial term in full and left the United States. A warrant issued in the United States for failure to maintain contact with his probation officer during supervised release. The appellant was arrested in the United Kingdom under the extradition arrangements and detained; the Secretary of State issued an Order to Proceed and the magistrate committed him to await decision as to surrender.

Procedural posture:

• The appellant sought habeas corpus; the Divisional Court (Rose L.J. and Mitchell J.) dismissed that application. The matter was appealed to the House of Lords.

Relief sought: A writ of habeas corpus ad subjiciendum to challenge the lawfulness of detention pending extradition.

Issues framed:

• Whether a person who has completed the custodial element of his sentence but remains under supervised release may be surrendered as a "convicted person" under the extradition treaty between the United Kingdom and the United States;
• Whether the phrase in Article VII(4) requiring a statement showing "to what extent the sentence has not been carried out" refers solely to unserved custodial detention or to the sentence as a whole.

Court's reasoning:

• The majority construed the treaty as setting a threshold in Article III(4) (a custodial sentence of four months or more is required) but treating the "sentence" referred to in Article VII(4) as the whole sentence imposed by the sentencing court, which may include non-custodial elements such as supervised release, fines or restitution. Consequently the appellant remained liable to extradition because some elements of his sentence (supervised release, and arguably fine/restitution) had not been carried out.
• The minority regarded Article III(4) as a substantive provision referring specifically to custodial detention and read Article VII(4)'s reference to "sentence" as implicitly confined to the custodial element. On that view a convicted person who has served the custodial sentence would not be extraditable as a convicted person; extradition of convicted persons was intended to secure completion of custodial punishment where the prisoner was "unlawfully at large." The minority would have ordered habeas corpus to issue.

Implications: The decision turns on treaty construction: whether supervisory or non-custodial elements of an overseas sentence can sustain extradition of a person who has already served his prison term. The House of Lords majority answered that they can.

Appeal dismissed. The majority held that Article III(4) sets a threshold requiring that a custodial sentence of four months or more must have been imposed, but Article VII(4)'s requirement to provide evidence of "the sentence imposed" and a statement showing "to what extent the sentence has not been carried out" refers to the whole sentence as imposed by the sentencing court (including supervised release). Because the appellant's sentence included supervised release that had not been carried out, he remained liable to extradition and the habeas corpus challenge failed. The minority disagreed, reading the treaty to require that part of the custodial sentence remain unserved before extradition of a convicted person is permissible.

Committed by the metropolitan magistrate under Schedule 1 to the United States of America (Extradition) Order 1976 on 16 December 1998; Secretary of State issued an Order to Proceed on 9 November 1998. Divisional Court (Rose L.J. and Mitchell J.) dismissed the appellant's application for habeas corpus ad subjiciendum on 16 March 1999. Appeal to the House of Lords ([2000] UKHL 35).