R (Guisto) v Governor of Brixton Prison

The House of Lords allowed an appeal in a habeas corpus application where a committal order under paragraph 7 of Schedule 1 to the Extradition Act 1989 had been made after the Secretary of State's order to proceed wrongly described the requested person as an "accused" rather than as a "convicted" person. The court held that the District Judge's jurisdiction to commit derives from the Secretary of State's order under paragraphs 4(2) or 5(4) and that the judge must deal with the case in the category in which the Secretary of State has placed the person, subject only to the judge's power to determine under paragraph 20 whether a foreign conviction is one for contumacy. Because the committal was founded on the wrong statutory subparagraph, it was beyond jurisdiction and the detention was unlawful.

Background and facts:

• The appellant, Gennaro Guisto (also known as Jerry Russo), had been tried in absentia in New York, convicted of assault in the first degree on 19 October 1995 and sentenced on 29 November 1995.
• He was arrested in the United Kingdom on 10 October 2001. The United States requested provisional arrest and later submitted a requisition to the Secretary of State seeking surrender for the purpose of serving the sentence; the supporting papers made clear that the request was for a convicted person.
• The Secretary of State's order to proceed, however, recited that the appellant was "accused" of the offences. At Bow Street a Designated District Judge heard a committal hearing presented on the footing that the appellant was an accused person (para 7(1)) and committed him to await surrender.

Procedural posture:

• The appellant applied for habeas corpus. The Administrative Court held that the Secretary of State's recital was an error but that the District Judge nevertheless had jurisdiction and refused habeas corpus. The case was brought to the House of Lords on appeal from [2002] EWHC 1441 (Admin).

Issues framed:

• Whence does the magistrate's jurisdiction to commit arise and, if the Secretary of State's order miscategorises the requested person as "accused" rather than "convicted", can the District Judge nevertheless commit under the other subparagraph of paragraph 7?
• What is the District Judge's role in determining whether a foreign conviction is a conviction for contumacy (paragraph 20)?

Court's reasoning and conclusion:

• The House held that the District Judge's jurisdiction is derived exclusively from the Secretary of State's order under paragraphs 4(2) or 5(4) of Schedule 1 and that the order ordinarily must state whether the requisition is for the surrender of an accused or a convicted person; the Secretary of State is responsible for categorisation in the first instance.
• The District Judge may, when properly raised, determine as a matter of fact under paragraph 20 whether a foreign conviction is for contumacy (in which case the person is treated as an accused person). That limited inquiry does not, however, permit the judge to re-categorise a case where the Secretary of State has legitimately and correctly placed the case in the other category.
• Because the Secretary of State's order in this case authorised detention and committal on the footing that the appellant was an accused person, but in reality the requisition sought surrender as a convicted person and no valid basis under the order existed for a committal under the convicted-person subparagraph, the committal was beyond jurisdiction and habeas corpus should have been granted.

Appeal allowed. The House held that the District Judge's jurisdiction to commit derives exclusively from the Secretary of State's order to proceed under Schedule 1 (paras 4(2) or 5(4)). The Secretary of State must identify whether the case is presented as an accused or as a convicted person; the magistrate must deal with the case in that category (subject only to determining under paragraph 20 whether a foreign conviction is for contumacy). The committal made under the wrong subparagraph was therefore beyond jurisdiction and the detention was unlawful; the appellant must be discharged.

Committal by Designated District Judge, Bow Street Magistrates' Court; habeas corpus refused by the Administrative Court (Divisional Court, Queen's Bench Division) [2002] EWHC 1441 (Admin); appeal to the House of Lords allowed [2003] UKHL 19.