COUNSEL: Sir Peter Rawlinson QC and J M Cope for the applicant.

J H Buzzard and C P C Whelon for the Governor of Brixton Prison.

C J S French QC and M H D Neligan for the Canadian Government.

 

SOLICITORS: Official Solicitor (for the applicant); Treasury Solicitor (for the Governor of Brixton Prison); Charles Russell & Co (for the Canadian Government).

 

JUDGES: Lord Parker CJ, Ashworth And Willis JJ

 

DATES: 7, 8 NOVEMBER 1968

 

 

The applicant was arrested in the United Kingdom at the request of the Canadian authorities and an order was made for his detention pending his extradition to Canada under the Fugitive Offenders Act 1967. Held: The applicant would not be returned to Canada to be dealt with in respect of that charge, because it was impossible to say that there was sufficient evidence to warrant, in corresponding circumstances, the trial of the offence under English law because, apart from the conspiracy itself, the only acts which took place in Canada related to the printing, typing and posting of letters, etc, the making of phone calls and the collection of cheques.

 

 

8 November 1968. The following judgments were delivered.

 

LORD PARKER CJ.

 

In these proceedings counsel moves on behalf of the applicant, one Michael Myer Rush, at present detained in Her Majesty’s Brixton Prison pursuant to an order of the metropolitan magistrate sitting at Bow Street pending his extradition to Canada under the Fugitive Offenders Act 1967.

 

The history of this matter is that the applicant was arrested on 21 June 1968 on a provisional warrant issued at Bow Street at the request of the Canadian government. On 22 August, an order to proceed was issued under s 5 of the Act by the Secretary of State for Home Affairs requesting the magistrate to proceed with the case in accordance with the provisions of the Fugitive Offenders Act 1967 in respect of some eight charges set out in the schedule to the order to proceed. The order in question subsequently made, as I have said, was made on 6 September and related to each of those eight charges.

 

Before considering the matter in any further detail, I think it is as well to remind oneself of a few of the provisions of the Fugitive Offenders Act 1967. Before a fugitive offender can be extradited it must be shown that the offence or offences to which the order to proceed relates are what are called in this Act “relevant offences”. By s 3(1) it is provided that:

 

“For the purposes of this Act an offence of which a person is accused or has been convicted in a designated Commonwealth country … [and Canada is one] is a relevant offence if— [*318]

 

(a) in the case of an offence against the law of a designated Commonwealth country, it is an offence which, however described in that law, falls within any of the descriptions set out in Schedule 1 to this Act, and is punishable under that law with imprisonment for a term of twelve months or any greater punishment; … ”

 

As will be shown in a moment, nothing turns on that because there was before the magistrate an affidavit from a Canadian lawyer verifying that each of these eight charges fell within s 3(1)(a) of the Act. But then by para (c) it is provided that to be a relevant offence:

 

“In any case, the act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of the United Kingdom if it took place within the United Kingdom or, in the case of an extra-territorial offence, in corresponding circumstances outside the United Kingdom.”

 

Provision is then made in s 4 restricting the power to return in the case of policical offences or offences of a political character and then by s 4(3) it is provided that:

 

“A person shall not be returned under this Act to any country, or committed to or kept in custody for the purposes of such return, unless provision is made by the law of that country, or by an arrangement made with that country, for securing that he will not, unless he has first been restored or had an opportunity of returning to the United Kingdom, be dealt with in that country for or in respect of any offence committed before his return under this Act other than—

 

(a) the offence in respect of which his return under the Act is requested; … ”

 

I read that because it is important to remember that the court in this case and under this Act, unlike the earlier Act, must deal with each of these charges in the order to proceed and that the applicant can only be sent out of this country for trial in respect of those offences which the courts in this country are satisfied fall to be tried under this Act. Section 7 sets out the proceedings before the magistrate after the order to proceed has been issued to him and by sub-s (5), which is the important provision in this case, it is provided that:

 

“Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence to which the authority relates is a relevant offence and is further satisfied—

 

(a) where that person is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence if it has been committed within the jurisdiction of the court; … ”

 

The charges in the schedule to the order to proceed were, as I have said, eight in number and for my part I find it convenient to look first at charges 7 and 8, not only because they were earlier in point of time but also because in some respects they are the simplest to deal with. Charge 8 is one of conspiracy. [His Lordship stated the nature of that charge and that of charge 7 which charged an overt act pursuant to the conspiracy. He continued:] There is no doubt that those two offences as laid comply fully with s 3(1)(a) of the Act; they were both offences under Canadian law. They also quite clearly come within s 3(1)(c) in that in each case the act (or acts) constituting the offence would constitute an offence against the law of the United Kingdom if it took place within the United Kingdom. Indeed no one has sought to argue to the contrary. The sole question here is whether there was under s 7(5)(a) sufficient evidence to warrant the applicant’s trial for that offence.

 

[His Lordship then reviewed the evidence relating to charge 7 and charge 8, [*319] and concluded:] The magistrate was quite in order in committing the applicant to prison with a view to his extradition for trial on those two charges.

 

The facts relating to the other charges, 1 to 6 inclusive, are rather more complicated and before reading the charges in detail I will try to give a short résumé of what the evidence, it was said, disclosed. It disclosed the connection between the applicant and a Mr Joseph Williams of Queen’s Counsel, sometimes apparently known as “Diamond Joe”. Mr Williams was interested in mining companies and mining shares and at one time controlled a company called Aurora Development Corpn Ltd which purported to sell to a company called Darien Exploration Co (Darien for short) various mining concessions in Guyana. In addition, Mr Williams was at all material times the legal adviser of a company called British Overseas Mutual Fund Corpn (conveniently, perhaps, called British Overseas) and that company, it was said, had been taken over by the applicant in June 1965; and at any rate some time in 1966 the applicant not only managed the company but had all the shares in the company. Darien, which, as I have said, purported to have mining concessions in Guyana, had been formed by the applicant in 1963 and was at all times controlled by him. There was evidence of a scheme to get shareholders of inactive mining companies to transfer their shares to Darien in exchange for Darien shares and, when that had been done, to persuade those who had become shareholders in Darien to purchase further shares in Darien and also in British Overseas, and to that end circulars and letters were prepared in Canada to be sent to shareholders of these inactive companies who had become shareholders in Darien or British Overseas. What part exactly the applicant was said to have played is uncertain. It was at any rate an important part and he, as a security salesman, had a list of persons to whom circulars and letters would be sent. The evidence also showed that in every case the circulars and letters were sent outside Canada, and in particular to the United States of America. Sometimes they were sent directly to the addressees from Canada, sometimes they were taken out of Canada and then sent to the addressees and yet again in other cases they were sent to a Mr Green in Guyana who in turn would send them to the addressees. It was said that in the circulars and letters attributes were given to Darien and British Overseas which were not only entirely false but fraudulent. As a result, a number of people agreed to buy more Darien shares or to buy British Overseas shares and, when they so agreed, confirmation slips were sent showing the payment due and, in each case, the prospective purchaser was invited to send his cheque to the appropriate Post Office box of the Darien Exploration Co, either in Nassau or in Panama. Those that were sent to Panama were then transferred by Panama lawyers to Toronto and those sent to Nassau were received by a Mr Britstone, another of the alleged conspirators.

 

Before dealing with what happened to the cheques thereafter I should say that not only were the circulars and letters sent but follow-ups, as it were, were made by telephone calls from Canada to the places where the addressees or respective purchasers lived. As regards the cheques, those that were sent to Nassau, some were paid by Mr Britstone into his own account with a bank in Nassau, and others he transmitted to Toronto where they were paid either into an account in the name of M O’Quinn, who was in fact Mrs Britstone, or into the account of British Overseas in Toronto, which was an account solely operated by the applicant. As I have said, all or almost all the addressees and the persons who bought shares were resident in the United States. The only possible exceptions were two Canadian residents in respect of whom two cards were found entitled “Exchange Agreement”, showing the number of shares in a company, presumably one of the inactive companies, called Medallion to be transferred to Darien for an exchange in Darien shares. Those two cards were found by a Mr Huxley, the investigator of the Ontario Securities Commission, when he began his investigations and there is no evidence, as I understand it, that in fact any letters were sent to these two persons, these Canadian residents, [*320] or that they were invited to take up shares or that they agreed to take up shares. The fact is that there were found in the records two cards which had never gone out to the Canadian residents but bore their names.

 

Those are the short facts and, bearing in mind that the evidence shows that there were no mining concessions in Guyana, that all the descriptions of the assets were completely and utterly false, there is clearly evidence of a gigantic conspiracy of some kind or another. Having said that, one returns to the charges and charge no 1, the really important one in this case, reads in this way:

 

“That Michael Myer Rush, Robert Colucci, and Joseph S. Williams, at the Municipality of Metropolitan Toronto, in the County of York and elsewhere in the Province of Ontario between the first day of June, 1966, and the first day of July, 1967, unlawfully did conspire together and with Manuel Britstone and with other persons unknown to commit an indictable offence, to wit: to defraud the public of one hundred million dollars ($100,000,000.00) more or less, by inducing [and a number of persons are there set out] and other members of the public, through the use of the mails and telephone services, to purchase shares of Darien Exploration Company, S.A., and British Overseas Mutual Fund Corporation, which shares did not have the attributes ascribed to them by the accused or their agents … ”

 

Pausing there, the first question that the magistrate and now this court must ask itself is whether that charge there discloses a relevant offence. In my judgment it does, because on the face of it those that were to be defrauded by the alleged conspiracy were, for all anyone knew, members of the Canadian public and if members of the Canadian public it is perfectly clear that not only did it disclose an offence under Canadian law but it discloses an offence under the law of England if the conspiracy had been made in, for instance, London in respect of what is referred to in s 3(1)(c) as “corresponding circumstances”. Accordingly, as it seems to me, one then has to go on and see whether the evidence disclosed was sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the court. When one looks at the evidence it is perfectly clear, as I have said, that except in respect of these two cards which name Canadian residents and which in fact were never sent out, all the members of the public that were approached were resident in the United States of America. It was in fact United States residents who were induced by, it is said, false pretences to enter into contracts for the purchase of shares and pay for those shares and the real question here, as it seems to me, is whether when that stage is reached there was disclosed here an offence for which he could have been tried in England if this had occurred in England in relation to a foreign country.

 

The approach on this has now been laid down by the House of Lords in Board of Trade v Owen, and it is quite clear now that a conspiracy to commit a crime abroad is not indictable in England unless the contemplated crime is one for which an indictment would lie here. The sole question then is whether on the facts disclosed, substituting England for Canada (in other words, the conspiracy taking place in England and not in Canada) an offence against English law was disclosed, which in turn means whether an indictment would lie in this country for the substantive offence. As has already been disclosed in the course of the narrative of the facts, apart from the conspiracy itself the only acts which did take place in Canada were the printing of the circulars, the typing of the letters, in some cases their posting, the telephone calls in the nature of follow-ups and the fact that both Mr Britstone and the applicant eventually got the cheques collected mostly in Canada and were credited, no doubt, with the proceeds. In my judgment it is really impossible to say that an offence of that kind could have been indicted in this country. In Board of Trade v Owen some of the overt acts were acts which took place in England; the forged documents emanated from England; and the documents were sent from England to, [*321] in that case, Germany. It was urged that if a letter sent out of this country had been intercepted it would be very odd that there could be an indictment for an attempt and yet if the whole fraud had gone through there could not be an indictment for the fraud. All matters of that sort were fully argued in Board of Trade v Owen but nevertheless it was held that no indictment would lie for the substantive offence and that accordingly the charge of conspiracy in that case could not be sustained.

 

That case was followed by the Court of Appeal in the case of R v Peter Cox. That was a case in which the conspiracy alleged was to defraud persons by inducing them to part with goods by false pretences and the conspirators there acquired in England a chequebook containing unused cheques. They took those cheques out of the country and by means of five cheques they persuaded French shopkeepers to part with jewellery by falsely representing that they had accounts with the bank on which the cheques were drawn and having got their jewellery they brought it back to England and sold it in Essex. The Court of Appeal, following Board of Trade v Owen, held the alleged conspiracy was not indictable in England.

 

For my part, I find it really impossible to distinguish this case from those and earlier cases. Counsel for the Canadian government has taken a number of points by which he seeks to distinguish this case from those cases. He refers to the overt acts at the beginning, in preparing the letters and circulars, overt acts, as I have said, of a similar kind to those present in Board of Trade v Owen. He also refers to the rather remakable situation that if this investigation had come down before anything had been done, it may be that an indictment would lie for an attempt. That again was something which was urged in Board of Trade v Owen. Then he says that not only at the beginning but at the end something took place in Canada, namely, obtaining money by getting the banks to collect the cheques, and he says in fact that when one looks at this charge it is laid as a defrauding of the public of $100,000,000. For my part, I am by no means clear that this charge is one relating to money in the sense of cash. It is, according to the Canadian lawyer, a good charge in Canada; that under Canadian law it is an offence to conspire to commit an indictable offence and by s 323(1) of the Criminal Code of Canada, as amended*:

 

*1953–54 (Canada) c 51.

 

“Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security is guilty of an indictable offence … ”

 

Counsel for the Canadian government urges that this was a defrauding of the public by obtaining money and that that money was only obtained in Toronto when these cheques were cashed. For my part, I am quite unable to accept that view of the matter. When one looks at the evidence here, it is perfectly clear that what these United States residents were being asked to give was the purchase price of the shares by means of cheques, and that really this charge can only be read in line with the evidence if one reads the indictable offence, which they conspired to commit, as one to defraud the public of valuable securities to the value of $100,000,000. It seems to me that the reality of the situation here, as I have said, is that these United States residents were being induced by false pretences, if they were false, to buy more shares and to pay in valuable securities; and those valuable securities were obtained from them either when they were put into the post or, at latest, when they were received either in Panama or in Nassau. The indictable offence was then ended. That is the indictable offence which was the subject of the conspiracy. What was done with those cheques thereafter is, as it seems to me, neither here nor there. A [*322] similar submission was made by counsel for the Canadian government by saying that if it was not money they expected to receive in Toronto when the cheques were cashed, at any rate it was an obtaining of credit in Toronto. For exactly the same reason, it seems to me that that submission fails. The indictable offence which they conspired to commit was completed when the cheques were obtained.

 

Then counsel for the Canadian government relies on these two cards in the names of two Canadian residents. For my part, I think it is sufficient to say that I am quite unable to accept such inferences or deductions as one could make from the discovery of those two cards, which in fact were never used, as constituting any evidence, certainly no sufficient evidence, to warrant a trial on this conspiracy charge. I should say that great reliance was placed by counsel for the Canadian government (I should perhaps have mentioned this earlier) on R v Holmes. The headnote reads:

 

“H. wrote and posted in [Nottingham] a letter, addressed to G. at a place out of England, containing a false pretence by means of which he fraudulently induced G. to transmit to [Nottingham] a draft … which he there cashed:—Held by the Court there that there was jurisdiction to try H. at [Nottingham], and that the pretence was made at [Nottingham], where also the money obtained by means of it was received.”

 

Since R v Holmes there have been many cases, of which the most recent one is R v Harden, which, following an earlier case of R v Ellis, has laid down that the question is not where the inducement took place but where the money, property, valuable security or whatever it may be was obtained; in other words, it is the obtaining which is the gist of the offence. In fact in R v Holmes the money was obtained in England in that it was never obtained until the post arrived and it was delivered, but the point that was never taken in R v Holmes was the distinction, if any, between money (because this was a charge of obtaining money) as opposed to the draft which was in fact sent. No point was taken on that and I venture to think that, if the point had been taken, the charge of obtaining money was bad whereas if laid as a charge of obtaining valuable security it was correct. Accordingly I can get no help towards the solution of the present case from R v Holmes. Looked at in that light, I have reluctantly come to the conclusion that the applicant should not be returned to Canada for trial on the first count.

 

[His Lordship then referred to the other counts, 2 to 6 inclusive, which were all of a similar nature and related to the fact that in Canada the applicant was found in possession of a number of the cheques which had been obtained, as it was alleged, by fraud; which were undoubtedly offences both under Canadian and English law. His Lordship concluded:] Accordingly I have come to the conclusion that the order for the applicant’s extradition should be supported on charges no 2 to no 8 inclusive but he should not be returned for trial on the first charge.

 

ASHWORTH J.

 

I agree.

 

WILLIS J.

 

I agree.

 

Orders accordingly. Leave to appeal to the House of Lords refused.