CO885-(11-13) — Page 252

PUBLIC RECORD

OFFICE

Co.

Reference :-

885

12 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- | COPYRIGHT PHOTOGRAPH-NOT TO

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where that offence was committed been sentenced in contumacia, when such sentence has become final, or would become so before the person in question can arrive at the place to which it is proposed to take him, and on surrender he would unavoidably be subject to undergo the punishment awarded by that sentence without any trial in his

presence.

In obedience to your Lordship's commands we have taken these papers into con- sideration, and have the honour to

Report

That the answer to your Lordship's question is, in our opinion, to be sought for in the principles upon which extradition is founded. Upon those principles, and under th Extradition Treaties between Great Britain and other countries, before any fugitive criminal can be surrendered by this country, proof according to the law of this country is required sufficient to have justified the arrest of the person whose extradition is demanded had the crime charged been committed here.

The Legislature of several countries, however, admits of convictions in contumaciá, a proceeding unknown to English law, and affording no evidence of guilt which would be received here, and in the Extradition Treaties with such countries it has been the practice, at any rate since the Extradition Act of 1870, to insert a provision to the effect that a requisition for extradition cannot be founded on sentences passed in contumaciá.

We are of opinion that this provision, viz., that the demand for extradition, must not be founded upon a sentence in contumaciá, means that such sentence will, for the purpose of extradition, be deemed a nullity, and that other proof, according to the law of Great Britain, such as would justify the committal of the person accused if the crime had been committed here, must be given.

And we are further of opinion that Her Majesty's Government is not concerned with the consequences of the sentence pronounced in contumaciá, nor called upon to inquire whether such sentence has become final, or would become so, before the person surrendered could arrive at the place to which it was proposed to take him, or whether he would be subject to undergo the punishment awarded by such sentence in contumaciá without any trial in his presence.

These are matters to be determined by the law of the place where the crime was committed, and cannot properly be entertained by Her Majesty's Government

The only questions for the consideration of Her Majesty's Government are, whether the crime be an extradition crime, and whether the proof given would justify the arrest of the fugitive had the crime been committed here.

And although the words in Article IX. of the Treaty with Brazil describing a sentence passed in contumaciú are not free from obscurity, we think they may be explained by the previous paragraphs of the same Article consistently with the similar provision in other Treaties.

In forming the opinion which we have the honour of submitting to your Lordship. we have not overlooked the argument of the Crown Advocate in paragraphs 7 to 10 inclusive of his Memorandum to the Governor of Malta, and paragraphs 3 to 8 inclusive of the Crown Advocate's note to Sir Victor Houlton.

We regret that we differ from the Crown Advocate in his construction of the Extra- dition Act, 1870, and the Articles in the several Treaties in which sentences in con- tumaciá are named.

The construction put by the Crown Advocate upon the Extradition Act, 1870, would in our opinion be utterly inconsistent with the corresponding Article in the Treaties. and would be a snare and a delusion to the Governments who have made Treaties upon the subject with Her Majesty, and who knew and would know nothing of the Interpre- tation Clause in the Extradition Act, 1870.

Again, we consider that the construction of the 26th section of the Extradition Act, 1870, by the Crown Advocate is forced. The more natural sense of that section is, in our opinion, simply that a conviction in contumaciá is no more under the Act than a charge or accusation upon which alone, and without further proof, the person in question shall not be surrendered. This view appears to us to be borne out by the general tenor of the Act, which throughout (c. 9 in section 8) maintains a distinction between persons accused and persons convicted, including in the former class persons whose convictions have been in contumacia only.

Lastly, the distinction between the effect of a sentence in contumaciá in pene criminale and a sentence in contumaciá in pene corregionale according to Italian law, shows the inconvenience and difficulty of applying the construction suggested by the Crown

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Advocate, for, in each case where a conviction in contumaciá is brought to the knowledge of Her Majesty's Government, an inquiry into the law of the country whose Government demand the extradition would become necessary-an inquiry which neither the Extradition Act nor the Treaties provide for.

In our opinion, the third clause of the Malta Ordinance is not in correspondence with the Extradition Act of 1870 and the Treaty with Italy. Your Lordship or Lord Carnarvon will be able to form the best opinion whether any circumstance peculiar to Malta may make it desirable to retain in its present form the Ordinance so far as it applies to conviction in contumariá.

The Earl of Derby, &c. &c.

We have, &c.,

(Signed)

RICHARD BAGGALLAY. JOHN HOLKER.

J. PARKER DEANE.

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11,998.