Johannes Deuss v The Attorney General for Bermuda and The Commissioner of Police for Bermuda (Bermuda)

Under the transitional extradition regime preserved for Bermuda, whether conduct is an extradition crime is determined by the conduct alleged. The conduct must be criminal under Bermudian law at the relevant time and fall within a generic or statutory description in the schedule to the Extradition Act 1870, even where the listed statute operated only in the United Kingdom. Under the Extradition Act 1989, a treaty extension clause may require reference to the requesting state’s law and to the 1870 schedule. At the provisional-warrant stage, the magistrate need only decide whether the evidence would justify a local arrest warrant. That conclusion was expressly obiter. The appeal was dismissed because the appellant’s legal challenge to reliance on United Kingdom statutes failed, although the court did not decide whether the alleged conduct was in fact criminal under the relevant statutes.

The appellant was arrested in Bermuda under a provisional warrant based on allegations of Dutch offences involving the handling and laundering of proceeds of carousel VAT fraud. He surrendered voluntarily to the Netherlands, where his trial had not yet taken place, and later returned to Bermuda. He sought judicial review to vindicate the alleged unlawfulness of his arrest.

The Supreme Court of Bermuda rejected his objections. The Court of Appeal of Bermuda upheld the decision concerning the offence of handling stolen property. The appellant did not appeal the separate conclusion that the extradition arrangements remained in force. The central issues were whether the alleged conduct constituted an extradition crime under the Bermuda regime and whether the magistrate had to determine that question before issuing a provisional warrant.

Appeal dismissed. Lord Phillips delivered the judgment of the Board. Although the appeal was academic, the Board addressed the issues because they raised a question of general importance concerning the continuing operation of the statutory extradition regime.

1. Extradition crime. The inquiry must focus on the conduct alleged, rather than simply on the description of the foreign offence. Under the Extradition Act 1870 as applied to Bermuda, the conduct had to be a crime under Bermudian law at the time and had to fall within a generic or statutory description in the First Schedule. It was irrelevant that a statute containing the description operated only in the United Kingdom. The contrary construction would create an unjustified distinction between extradition from the United Kingdom and extradition from a British possession.
2. The 1989 regime. Under paragraph 20 of Schedule 1 to the Extradition Act 1989, where reliance was placed on a treaty extension clause, it was necessary to look beyond the Order in Council to the law of the requesting state and the United Kingdom. For the United Kingdom, that led back to the statutory schedule to the 1870 Act.
3. Provisional warrant. At the initial provisional-warrant stage, the magistrate was not required to determine whether the conduct constituted an extradition crime. The magistrate had to be satisfied only that the evidence would justify a local arrest warrant for the alleged conduct. The expression fugitive criminal in paragraph 5(1) of Schedule 1 had to be read in context as alleged fugitive criminal. The relevant Order in Council still had to be in force. These conclusions were expressly obiter.
4. Application. The Court of Appeal had taken the wrong approach by comparing the foreign offence label with corresponding descriptions under Bermudian law and the Theft Act 1968. The appellant’s broader submission that statutes not applying in Bermuda could not be used to identify an extradition crime failed. Whether the conduct was criminal under the relevant receiving-stolen-property provisions was not pursued and was not determined. Costs were to follow the event unless contrary submissions were made within 14 days.

• Privy Council: In [2009] UKPC 38, the Board dismissed the appeal and advised that costs follow the event unless contrary submissions were made within 14 days.
• Court of Appeal of Bermuda: On 25 April 2008, the Court dismissed the appeal from Wade-Miller J concerning the offence of handling stolen property and upheld the provisional warrant. Its separate ruling that the extradition arrangements remained in force was not appealed.
• Wade-Miller J: On 8 December 2006, the court held that the extradition arrangements remained governed by the preserved statutory regime. On 20 July 2007, it held that the provisional warrant was lawfully issued in respect of handling stolen property.