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The Law Officers are, therefore, requested to advise on the following questions:--
(1) Is the fact of a prisoner's extradition having been granted by a foreign Government to a British Colony on a charge of felony, sufficient to legalize his detention in the United Kingdom for such time as may be necessary for his journey and his recapture should he attempt to escape during such time?
(2) If not, is the Colonial warrant charging the offence in respect of which extradition has been granted, sufficient for these purposes, or must a warrant under the Fugitive Offenders Act, 1881, be obtained as was done in the case of James Boyd?
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Opinion.
(1) and (2) In the case of a prisoner extradited from a foreign State to which, pursuant to international arrangement, His Majesty has directed that the Extra- dition Act, 1870, shall apply to a British Colony to which the same Imperial Act has also been applied, we think that the Colonial warrant would sufficiently legalize detention and recapture in the United Kingdom during transit to the Colony and that in such case it is not necessary to have recourse to the provisions enacted by the Fugitive Offenders Act, 1881.
Law Officers' Department,
JOHN L. WALTON.
W. S. ROBSON.
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I infer from their silence upon this point and from the sentence with which the Commissioners conclude their report: "we do not recommend any change in the principle of existing Imperial legislation on this subject as regards the Colonies and foreign possessions of the Crown, as already contained in the Act of 1870," that if the question before us had been submitted to them, they would have endorsed the opinion which I have ventured to express.
I am, &c.,
Godfrey Lushington, Esq., C.B., &c..
&c.,
&c.
J. VAUGHAN.
December 14, 1906.
SIR,
Police Court,
September 3, 1887.
HAVING regard to the 17th section of the Extradition Act of 1870 and the 14th Article of the Treaty with Belgium, 1876, I am of opinion that the possessions of the Colonies and the territory of Great Britain were, for the purpose of extradi- tion, intended to be regarded as identical, and that a fugitive criminal surrendered by Canada to Belgium under a Treaty with this country and brought to England by its own officer for delivery to Belgium, may lawfully be conveyed by him through this country by virtue of the Canadian warrant to the frontier of Belgium. I am fortified in this opinion by the report of the Extradition Commissioners in 1878, a body of jurists of the highest eminence. In the 13th paragraph of the report they observe: "There is in the law relating to extradition, as it at present exists, a defect by which extradition is liable to be frustrated and to which, therefore, we think it necessary to call attention. It is that in the existing statutes no provision is made for dealing with the case of a criminal who, having been surrendered by one foreign State to another, may be brought into British territory on his way from the one country to the other "; and then having referred to a difficulty which had recently occurred in the conveyance of a prisoner through Columbia, who had been surrendered by Peru to the United States, they thus illustrate a similar diffi- culty which might arise in this country: "If, for instance, to take a possible case, a man surrendered by the French Government to that of Germany or Ĥolland, were landed in this country to be conveyed by land to a port on our eastern coast, to be thence shipped to his place of destination, the man would be entitled to be set free unless a case sufficient to found a demand for extradition could at once be estab- lished here."
There is not the faintest suggestion in the report that any such difficulty could arise in the conveyance across the English territory of a prisoner surrendered by a Colonial Government to a foreign State, and it is inconceivable that if they had entertained the smallest doubt with respect to the legality of such a course, they would have failed to give prominence to the supposed defect and recommended, as they did in the case which they put by way of illustration, that statutory provision should be made to meet it.
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PUBLIC RECORD OFFICE
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C.O.
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