In re Guisto (FC)(Appellant)(application for a writ of Habeas Corpus)(Criminal Appeal from Her Majesty's High Court of Justice)

In extradition proceedings, the Secretary of State’s order to proceed must identify whether surrender is sought on the basis that the fugitive is accused or convicted. That categorisation defines the District Judge’s statutory jurisdiction.

The judge may examine whether the category is legally correct, including whether a foreign conviction is a conviction for contumacy. The judge cannot replace the category in the order with the alternative category and commit on that basis. A committal made outside those limits is unlawful even where a correctly framed application would inevitably have succeeded. Because personal liberty is at stake, extradition procedures must be strictly observed and jurisdictional errors cannot be excused as causing no prejudice.

The United States requested the appellant’s extradition to serve a sentence imposed after his trial and conviction in his absence in New York. The Secretary of State nevertheless issued an order describing him as a person accused of crime. A District Judge treated the conviction as one for contumacy and committed him under the procedure applicable to accused persons.

The Administrative Court, [2002] EWHC 1441 (Admin), held that the conviction was final and was not a conviction for contumacy. It nevertheless refused habeas corpus because the evidence would have required committal had the appellant been treated as a convicted person.

The central issue was whether the District Judge had jurisdiction to commit the appellant under a statutory category different from that specified in the Secretary of State’s order to proceed.

1. Appeal allowed unanimously. Lord Hope delivered the principal speech. Lord Nicholls and Lord Walker agreed with Lord Hope; Lord Rodger agreed with Lord Hope and gave additional reasons. Lord Hutton reached the same conclusion independently. The appellant was entitled to habeas corpus and discharge from the committal order.
2. Per Lord Hope, the extradition treaty requires the requesting state to determine whether surrender is sought for an accused or convicted person. The Secretary of State must satisfy himself of that category before issuing an order to proceed. The order identifies both the extradition crime and the category in which the person is to be dealt with.
3. The District Judge’s jurisdiction derives exclusively from the Extradition Act 1989 and originates in the Secretary of State’s order. Paragraphs 7(1) and 7(2) of Schedule 1 create distinct routes for accused and convicted persons, with different evidential requirements. Paragraph 7(3) supplies no independent power to commit; it prescribes what follows after a lawful committal under paragraph 7(1) or 7(2).
4. The District Judge may examine whether the specified category is correct. In particular, paragraph 20 permits expert evidence on whether a foreign conviction is a conviction for contumacy. That power does not permit the judge to change the category and commit under the alternative statutory route. The case must stand or fall under the category stated in the order to proceed.
5. Per Lord Rodger, the foreign requisition and the Secretary of State’s order are distinct. The requisition creates international obligations but has no direct effect in English law. It cannot independently supply jurisdiction missing from the order. The Administrative Court therefore erred in treating the requisition as the source of jurisdiction.
6. The appellant was a convicted person, but he had been brought before the District Judge and committed as an accused person. The committal was consequently outside her jurisdiction. The availability of evidence that would have compelled committal under the correct route did not cure that fundamental defect. The courts must scrutinise any procedure depriving a person of liberty and ensure that extradition requirements are strictly observed.

1. House of Lords: The appeal was allowed unanimously. The House directed that the appellant be discharged from the committal order.
2. Administrative Court: In [2002] EWHC 1441 (Admin), Rose LJ and Gibbs J held that the appellant’s New York conviction was not a conviction for contumacy. They nevertheless refused habeas corpus because the District Judge could have committed him as a convicted person on the evidence.
3. Bow Street Magistrates’ Court: The Designated District Judge held that the conviction was for contumacy, treated the appellant as an accused person and committed him under paragraph 7 of Schedule 1 to the Extradition Act 1989.