HOUSE OF LORDS

In re NIELSEN

See annotated Law Reports version at [1984] A.C. 606

COUNSEL: John Mathew Q.C. and Clive Sanbrook for the appellant.

Clive Nicholls Q.C. and R. Alun Jones for the Government of Denmark.

SOLICITORS: Memery Crystal & Co.; Director of Public Prosecutions.

JUDGES: Lord Diplock, Lord Keith of Kinkel, Lord Roskill, Lord Bridge of Harwich and Lord Brightman

DATES: 1984 March 6, 7, 8; April 12

Appeal by Jan Bonde Nielsen by leave of the Divisional Court (Robert Goff L.J. and Mann J.) from their decision on 12 May 1983 allowing an application by the respondent, the Government of Denmark, for judicial review of a decision of the Chief Metropolitan Magistrate (D. A. Hopkin Esq.) dated 30 September 1982 by which, in proceedings against the appellant under sections 9 and 10 of the Extradition Act 1870, he ordered the appellant’s discharge.

[*613]  Their Lordships took time for consideration.

12 April. LORD DIPLOCK. My Lords, the appellant, Nielsen, is a Danish national for whose extradition from the United Kingdom requisition has been made by the Government of Denmark, pursuant to the Extradition Acts 1870 to 1932.

The Act of 1870 prescribes the procedure to be followed when a requisition for the surrender of a fugitive criminal is made by a foreign state to which that Act has been made applicable by order in council under section 2. Except where otherwise indicated any subsequent reference that I make to a numbered “section” should be understood as referring to that section in the Act of 1870.

The Acts of 1870 to 1932 have been made applicable to Denmark by orders in council dated respectively 26 June 1873 and 30 April 1936, which recite the terms of arrangements made pursuant to section 2 of the Act of 1870. These take the form of treaties between the two countries providing for the extradition by each country of persons accused or convicted of crimes committed in the other country. The treaty of 1873 (“the principal treaty”) was entered into before the Extradition Act 1873 had added to the list of extradition crimes listed in Schedule 1 to the Act of 1870 (“the 1870 list”) any of the crimes that have been added to that list by the Schedule to the Act of 1873 or by any later Extradition Act. It is the 1870 list that is reproduced verbatim in the English language version of the principal treaty to describe the crimes for which extradition is to be granted of persons, other than British nationals, accused or convicted of having committed any of those crimes in Denmark; and it is with conduct that is alleged to constitute a crime or crimes described in the 1870 list that the instant case is concerned.

The treaty of 1936 (“the supplementary treaty”) has the effect of adding to the 1870 list of crimes for which extradition is to be granted between the United Kingdom and Denmark; but it leaves the 1870 list in the principal treaty untouched, and such additions as it makes to extradition crimes are made in qualified terms to which it will be necessary to advert later.

It is, however, appropriate at this juncture to draw attention to the fact that when one is describing crimes committed in a foreign state that are regarded in the United Kingdom as serious enough to warrant extradition of an offender by whom they have been committed, one is describing the way in which human beings have conducted themselves and their state of mind at the time of such conduct. Since conduct of those [*615] kinds consists of wicked things that people do in real life it is possible to describe them either in broad generic terms and using popular language, or in varying degrees of specificity, as had been done in minute detail, nine years before the Act of 1870 itself was passed, in the five Acts that had been passed in 1861, consolidating and amending the statute law of England relating to criminal offences of larceny, malicious injuries to property, forgery, coinage and offences against the person respectively. These Acts condescended to minute detail in their descriptions of numerous distinct offences included within the broad genus of crimes with which, as their titles indicate, each Act dealt. Between them the five Acts ran into 380 sections.

The 1870 list uses the former technique. It describes each of the list of 19 “extradition crimes” in general terms and popular language, irrespective of whether (as the introductory words of Schedule 1 to the Act of 1870 make clear) the conduct described is rendered criminal by common law or by statute made before or after the passing of the Act of 1870. So the 1870 list covered all offences under the five consolidating and amending Acts of 1861 that fell within any of the 19 genera of conduct described in the list; and also any criminal offence created by any subsequent statute but only if it fell within a described genus. The 1870 list would not extend to offences created by any of the Acts of 1861 which did not fall within any of those generic descriptions. The list in the Schedule to the Act of 1873 as well as adding two additional genera to the list of extradition crimes (viz. “Kidnapping and false imprisonment”; and “Perjury, and subornation of perjury, whether under common or statute law”) filled these lacunae by adding to the list any indictable offence under any of the five 1861 consolidation and amending Acts (or any Act amending or substituted for the same) “which is not included in Schedule 1 to the [Act of 1870].”

The list in the Act of 1873 has been subsequently amended by replacing the reference to the Larceny Act by a reference to the Theft Acts 1968 and 1978, and adding references to the Criminal Damage Act 1971 and the Sexual Offences Act 1956.

The introductory words to both the 1870 and the later list provide that the list of crimes is to be construed according to the law existing in England at the date of the alleged crime. So in order to determine whether conduct constitutes an “extradition crime” within the meaning of the Acts of 1870 to 1932, and thus a potential ground for extradition if that conduct had taken place in a foreign state, one can start by inquiring whether the conduct if it had taken place in England would have fallen within one of the 19 generic descriptions of crimes in the 1870 list. If it would have so fallen the inquiry need proceed no further where, as in the case of the principal treaty with Denmark, the extradition treaty with the foreign state demanding the surrender of a person as a fugitive criminal incorporates the whole of the 1870 list in the descriptions of crimes for which surrender may be required and makes no modification to those descriptions.

The conduct of which Nielsen, who is not a British subject, was accused in Denmark is stated succinctly in the judgment in the instant case delivered by Robert Goff L.J. in the Divisional Court: [*616]

“Nielsen fraudulently abused his position as controlling shareholder of a company called Gredana A/S to rescue another company under his control, called Egtofte Industri A/S, from financial difficulties. The means alleged to have been employed by him for this purpose were to cause Gredana (1) to purchase certain shares from Egtofte at an inflated price and upon onerous terms, the total purchase price being nearly 100 million kroner; and (2) to advance loans to Egtofte, without security, in a sum of about 13 million kroner. In the outcome, it is alleged, the loan has not been repaid, and Gredana has lost the whole of the capital invested in the purchase of the shares.”

This brief description of the conduct of which Nielsen is accused is sufficient to identify the point of law that is raised by this appeal.

My Lords, in my speech in Reg. v. Governor of Pentonville Prison, Ex parte Sotiriadis [1975] A.C. 1, I undertook an analysis, which received the express approval of Lord Wilberforce and Lord Simon of Glaisdale, of the procedure laid down in the Acts of 1870 and 1873 for the extradition of persons accused or convicted of crimes committed within the jurisdiction of a foreign state with which the United Kingdom had entered into an extradition treaty. I refer to, but will not take up space by repeating, that analysis, except to draw attention to the facts: (1) that the Acts of 1870 to 1932, from which alone is derived the jurisdiction of the Bow Street magistrate to make orders under section 10 committing a fugitive criminal to prison to await surrender to the person authorised to receive him on behalf of the foreign state, extend only to those foreign states which have entered into an extradition treaty with the United Kingdom to which the Acts have been made applicable by order in council; and (2) that the magistrate’s jurisdiction and powers under the Acts are subject to such limitations, restrictions, conditions, exceptions and qualifications as may be provided for in the extradition treaty with the particular foreign state. The jurisdiction conferred upon the Bow Street magistrate by the Acts of 1870 to 1932 is the widest that he may lawfully exercise upon applications for extradition of fugitive criminals from foreign states. His jurisdiction cannot be extended beyond that maximum but it may be limited, in the case of fugitive criminals from a particular foreign state, by the terms of the extradition treaty with that state. Ex parte Sotiriadis involved an example of an additional limitation imposed by the relevant extradition treaty with the German Federal Republic.

While the Acts of 1870 to 1932 apply to persons convicted, as well as those accused, of having committed an extradition crime within the jurisdiction of a foreign state, your Lordships in the present appeal are concerned only with the extradition of an accused person (which I shall call “an accusation case”) and not with the extradition of a convicted person (which I shall call “a conviction case”). Your Lordships are likewise not concerned in the instant case with alleged political offences.

Nielsen was first arrested under a provisional warrant issued on 27 July 1981 under section 8.2 by a metropolitan magistrate in the form set out in Schedule 2 to the Act of 1870. Nielsen was stated in the provisional warrant to be suspected and accused of the commission of the crime in Denmark of “fraud by a director of a company.” The provisional warrant, [*617] however, was shortly afterwards superseded by an order to proceed made by the Home Secretary under section 7, in the form set out in Schedule 2 to the Act of 1870. This described the crime of which Nielsen was accused and for which his surrender was sought by the Government of Denmark as “obtaining property by deception.” Shortly before the opening of the hearing of the case against Nielsen by the Chief Metropolitan Magistrate under sections 9 and 10, this order to proceed was supplemented by a further order to proceed which described offences of which Nielsen was accused of having committed in Denmark as: “theft, procuring the execution of valuable securities by deception, publishing misleading, false or deceptive statements and false accounting.” In view of Nielsen’s office as director of the Danish company Gredana A/S these are particular species of crimes dealt with in sections 1(1), 15(1), 17(1)(a), 19(1) and 20(2) of the Theft Act 1968, which fall within the genus described in item 8 of the 1870 list and reproduced in article I of the principal treaty as “Fraud by a … director, or member, … of any company made criminal by any Act” (“law” in the principal treaty) “for the time being in force.”

The Acts of 1870 to 1932 do not themselves provide that an arrangement made with a foreign state under section 2 of the Act of 1870 for the surrender by the United Kingdom to that foreign state of fugitive criminals accused or convicted of criminal conduct committed within its jurisdiction must provide for reciprocity of surrender by the foreign state to the United Kingdom of persons accused or convicted of similar criminal conduct committed in this country. In practice, extradition treaties do provide for a substantial degree of reciprocity, but the surrender by a foreign state of a fugitive criminal from the United Kingdom who is found in the territory of that foreign state is not governed by English law at all, but solely by the law of the foreign state that is party to the treaty. If the foreign state fails to comply with its treaty obligations as respects surrender this is a matter for the Secretary of State; it has nothing to do with the English magistrate.

Likewise the Extradition Acts 1870 and 1873 do not themselves lay down what documents, if any, must be sent to the Secretary of State by the foreign state together with the requisition for the surrender of a fugitive criminal. That is a matter that is left to be dealt with by the extradition treaty. At the hearing of the extradition proceedings by the magistrate under sections 9 and 10 there must be produced in an accusation case a duly authenticated warrant authorising the arrest of the accused person and issued by a judge, magistrate or officer of the foreign state by which the requisition was made; and, except in so far as their use may be restricted by the extradition treaty under which the application for surrender was made, depositions, statements on oath and affirmations taken in the foreign state are admissible in evidence at the hearing, as well as any additional oral evidence that is called before the magistrate himself.

The principal treaty provides by article II that the requisition by Denmark for the surrender of a fugitive criminal other than a British national accused of having committed an extradition crime in that country shall be [*618]

“accompanied by (1) a warrant or other equivalent judicial document for the arrest of accused, issued by a judge or magistrate duly authorised to take cognisance of the acts charged against him in Denmark; (2) duly authenticated depositions or statements taken on oath before such judge or magistrate, clearly setting forth the acts on account of which the fugitive is demanded; and (3) a description of the person claimed, and any other particulars which may serve to identify him.”

By article III, provisions in identical terms apply to requisitions by the United Kingdom government for the surrender by Denmark of a fugitive criminal, other than a Danish national, accused of having committed an extradition crime in the United Kingdom. What is significant in these provisions is, first, that the treaty refers to the acts charged against the accused and on account of which his surrender is demanded, that is to say, the conduct of the accused that is alleged to constitute an extradition crime included in the list contained in article I of the principal treaty which, as already mentioned, merely reproduces verbatim the 1870 list; secondly, that the treaty does not require that the warrant of arrest should specify the particular provision of the Danish Criminal Code for the infringement of which the warrant of arrest was issued.

Under Danish criminal practice it would appear that a warrant of arrest does specify the article of the Danish Criminal Code which the Danish judge who issues the warrant of arrest considers that the evidence before him constitutes reasonable cause for suspecting that the person whose arrest is applied for has committed. In the instant case, the article of the Danish Criminal Code referred to in the Danish warrant for the arrest of Nielsen was article 280. The terms of the article are set out in the judgment of the Divisional Court but I see no reason for referring to them because, for reasons which will appear, I do not think that, upon the true construction of the Acts of 1870 to 1932, they had any relevance to any question that the magistrate or the Divisional Court had jurisdiction to decide.

My Lords, the definitions of “extradition crime,” “fugitive criminal,” “fugitive criminal of a foreign state” and “warrant” in section 26 of the Extradition Act 1870, read in conjunction with the introductory words of Schedule 1 which require the description of each listed crime to be construed according to the law existing in England at the date of the alleged crime, are all-important. They are:

“The term ‘extradition crime’ means a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in the first Schedule to this Act: … The term ‘fugitive criminal’ means any person accused or convicted of an extradition crime committed within the jurisdiction of any foreign state who is in or is suspected of being in some part of Her Majesty’s dominions; and the term ‘fugitive criminal of a foreign state’ means a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that state: … The term ‘warrant,’ in the case of any foreign state, includes any judicial document authorising the arrest of a person accused or convicted of crime.” [*619]

Important too are the forms set out in Schedule 2 to the Act of 1870 the use of which, or of forms as near thereto as circumstances admit, is authorised by section 20 of the Act. The form of order to proceed issued by the Secretary of State to the police magistrate pursuant to section 7 contains a space in which the Secretary of State specifies the crime (which, ex hypothesi, for the list so requires, must be described in terms of a crime according to the laws of England) as being the crime for which the magistrate is required to issue his warrant for the apprehension of the fugitive criminal under section 8. Likewise, the form of warrant of apprehension addressed to the constables of the police area in which the fugitive criminal is, or is suspected of being, recites the Secretary of State’s specification of the crime for which he is to be apprehended; so does the form of warrant of committal of the fugitive criminal to prison to await surrender that is issued by the magistrate under section 10, if at the hearing under section 9 such evidence is produced as would according to the law of England justify his committal for trial if the crime of which he is accused had been committed in England.

The expression “the crime of which he is accused” in section 10 thus means the crime specified in an order by the Secretary of State to the magistrate to proceed to issue his warrant for the apprehension of the fugitive criminal to show cause why he should not be surrendered for that crime pursuant to the Acts of 1870 to 1932. The magistrate has no jurisdiction under section 10 to issue his warrant for committal of the fugitive criminal for any crime other than one so specified in an order to proceed.

Under the principal treaty, the documents accompanying the requisition for the surrender of a fugitive criminal in an accusation case will state the “acts” on account of which the fugitive is demanded by the Danish government. It is for the Secretary of State to make up his mind what crime those acts would have amounted to according to the English law in force at the time they were committed if they had been committed in England. In the instant case, this meant identifying the offences which those acts would have amounted to under the relevant criminal statute in force in England at the relevant date (viz. in the instant case the Theft Act 1968) had they been done by Nielsen in England. This was what the Secretary of State did in the orders to proceed, to which I have previously referred.

At the hearing before the Chief Metropolitan Magistrate, which lasted for several days, the Director of Public Prosecutions representing the Danish Government produced evidence, including statements made on oath taken before the Danish judge who had issued the foreign warrant for Nielsen’s arrest, directed to establishing a prima facie case that Nielsen had done the acts that are summarised in the passage from the judgment of the Divisional Court that I have already quoted. Pursuant to a practice which has apparently been followed at Bow Street in extradition cases since the judgment of a Divisional Court in In re Arton (No. 2) [1896] 1 Q.B. 509, evidence of Danish criminal law was called on behalf of the Danish Government and, in particular, expert evidence as to the wording of, and practice followed in prosecutions under, article 280 of the Danish Criminal Code, which was the offence referred to in the Danish warrant [*620] of arrest as being the crime committed in Denmark in respect of which that warrant was issued.

Upon this expert evidence of Danish law the magistrate apparently took the view that, although there were other articles in the Danish Criminal Code which corresponded to the English offences referred to in the Secretary of State’s orders to proceed, the Danish offence created by article 280 involved a narrower concept than was involved in any of the specified English offences. He regarded himself as bound by authority to discharge an accused unless “the offences in English law and … Danish law are substantially similar in concept” and he took the view that for the purpose of determining whether there was the necessary similarity he was compelled to confine himself to the description of the Danish offence contained in the single article of the Danish Criminal Code, viz. 280, that was referred to in the Danish warrant of arrest as being the offence in respect of which it had been issued.

Upon this ground, in response to a submission made by counsel on behalf of Nielsen, he ordered Nielsen to be discharged, although at that stage there was further evidence which the Danish Government had intended to adduce of the acts done by Nielsen upon which the claim for his surrender was based.

The Danish Government thereupon applied to the Divisional Court for judicial review of the magistrate’s order that Nielsen should be discharged. The Divisional Court in a judgment by Robert Goff L.J., for which I should wish to record my respectful admiration, quashed the magistrate’s order and ordered him to continue with the hearing of the proceedings against Nielsen in accordance with section 10 of the Act of 1870. Leave to appeal to this House was granted and the following point of law of general public importance was certified as being involved:

“In the case of a fugitive criminal accused of an extradition crime (not being the case of one who claims that the requisition for his surrender was made with a view to his trial or punishment for an offence of a political character) are the only functions of a police magistrate under section 10 of the Extradition Act 1870 to determine (i) whether the foreign warrant authorising the arrest is duly authenticated and (ii) whether with reference as a matter of practice to the extradition crime or crimes specified in the order of the Secretary of State made under section 7 of the Act the evidence produced to the magistrate is sufficient according to the law of England to justify the fugitive criminal being committed for trial on a crime described in Schedule 1 to the Act as amended had the conduct described in that evidence been committed in England.”

My Lords, the certified question is confined to the functions of the police magistrate under sections 9 and 10, since it was his functions only that were in issue in the application for judicial review. The question is couched in terms so general as to preclude a categorical answer “Yes” or “No,” since it contains no reference to the extradition treaty between the United Kingdom and the particular foreign state by which the surrender of the fugitive criminal is sought. As has been pointed out, the effect of sections 1 and 5 is that such a treaty when embodied in an order in council [*621] may impose limitations, restrictions, conditions and qualifications on the provisions of the Act; and these may include restrictions upon the list of crimes in Schedule 1 to the Act of 1870 as amended. If they do so, the magistrate, in the exercise of the statutory jurisdiction conferred upon him by sections 9 and 10, must give effect to them.

In the principal treaty with Denmark, the list of crimes in respect of which surrender of fugitive criminals will be granted is confined to those contained in the 1870 list, and it was for crimes within this list alone that the Secretary of State’s orders to proceed in the instant case were made. That is the reason why the magistrate had not, in my view, any jurisdiction in the instant case to make any findings of fact as to Danish substantive criminal law or to hear expert evidence about it.

It would have been otherwise if the conduct of which Nielsen was accused in Denmark had not been covered by any description of an English crime in the 1870 list but had been added to the list of extradition crimes by later Extradition Acts. For, in that event, it would only have been brought into the list of extradition crimes applicable to fugitive criminals from Denmark by the supplementary treaty of 1936 of which the relevant provision is the addition to article I of the principal treaty of the words:

“Extradition may also be granted at the discretion of the High Contracting Party applied to in respect of any other crime or offence for which, according to the laws of both [my emphasis] of the High Contracting Parties for the time being in force, the grant may be made.”

Had it been necessary for the Danish Government to rely upon the supplementary treaty it would have been necessary for the magistrate to hear evidence of Danish law in order to satisfy himself that the conduct of the accused in addition to constituting in English law an extradition crime included among those subsequently added to the 1870 list, also constituted an offence that was treated as an extradition crime in Denmark.

Whether in an accusation case the police magistrate has any jurisdiction to make findings as to the substantive criminal law of the foreign state by which the requisition for surrender of a fugitive criminal is made will depend upon the terms of the arrangement made in the extradition treaty with that state. Some treaties may contain provisions that limit surrender to persons accused of conduct that constitutes a crime of a particular kind (for example, one that attracts specified minimum penalties) in both England and the foreign state. Accusation cases arising under extradition treaties that contain this kind of limitation I shall call “exceptional accusation cases”. In an exceptional accusation case it will be necessary for the police magistrate to hear expert evidence of the substantive criminal law of that foreign state and make his own findings of fact about it.

In conviction cases, too, if the foreign certificates or judicial documents stating the fact of conviction issued in accordance with the procedure followed by that state do not recite the facts upon which the conviction was based hut only give the name of the crime or the article of the [*622] criminal code of the foreign state of which the fugitive criminal was convicted, expert evidence of what under the law of that foreign state constitute the kinds of conduct and state of mind of a person that make him guilty of that particular offence will be admissible before the magistrate in order to enable him to decide whether that kind of conduct and state of mind would constitute in English law a crime described in the list in the Acts of 1870 to 1932 as amended.

The practice adopted at Bow Street in accusation cases since In re Arton (No. 2) [1896] 1 Q.B. 509, however, has not been to confine the calling of evidence of foreign law to exceptional accusation cases only. So far as living memory stretches it appears to have been the invariable practice of the requisitioning foreign government in all accusation cases to call expert evidence of its own criminal law in order to prove that what the fugitive criminal is accused of having done, within the jurisdiction of its courts, is not only criminal under its domestic law but is also a crime that is “substantially similar” (or “similar in concept”) to one or more of the English crimes of which descriptions are included in the 1870 list or later lists as currently amended and reproduced in the English language version of the extradition treaty with that state.

This is the first time that this House has had occasion to examine the origin and justification of this practice. Its origin would appear to be not so much what was said as what was done in the two late 19th-century cases of In re Bellencontre [1891] 2 Q.B. 122 and In re Arton (No. 2) [1896] 1 Q.B. 509. Both were decisions of a Divisional Court in proceedings to discharge an order nisi for habeas corpus and both were concerned with extradition to the French Republic pursuant to an extradition treaty entered into in 1876, i.e. after the Act of 1873 had made the additions to the list of extradition crimes in Schedule 1 to the Act of 1870, to which I have already drawn attention.

The curious feature of the judgments in each of these two cases is that in neither of them was there any reference to the terms of those sections of the Acts which were the sole source of the jurisdiction of the magistrate to make the committal order that was the subject of attack by habeas corpus. The extradition treaty embodied in the order in council under section 2 of the Act of 1870 which made the Acts applicable to France does not appear to have incorporated any provisions rendering the operation of the Acts as respects the surrender of fugitive criminals from France who were not of British nationality subject to any limitations, restrictions, conditions, exceptions or qualifications additional to those contained in the Acts themselves; and, so far as was relevant, the descriptions in the English language version of the treaty of the crimes for which the United Kingdom undertook to surrender fugitive criminals to the French government were in the identical words appearing in Schedule 1 to the Act of 1870.

Following the lead given by the Solicitor-General in his opening argument, as reported, Cave and Wills JJ. in In re Bellencontre, apparently without the benefit of any expert evidence of French criminal law, confined their judgments to construing for themselves article 408 of the French Code Pénal which was cited in the French warrant for Bellencontre’s arrest as the French crime of which he was accused, and [*623] comparing the terms of this article with section 76 of the Larceny Act 1861. They came to the conclusion that the conduct with which Bellencontre was charged as having committed in France fell both within that particular article of the Code Pénal and within that particular section of the English statute. I have been unable to extract from either of the judgments any clear statement of the reasons why it was thought that the Acts of 1870 and 1873 made necessary this kind of investigation of comparative French and English criminal law.

In In re Arton (No. 2), following a similar lead that had been given in the argument, this time by the Attorney-General, a similar exercise in comparative French and English criminal law was undertaken by Lord Russell of Killowen C.J., but on this occasion the Divisional Court was assisted by expert evidence of French law adduced before it on affidavit which, however, had not been before the magistrate. This evidence was directed to the correspondence between article 147 of the French Code Pénal, on the one hand, and sections 83 of the Larceny Act 1861, and 1 of the Falsification of Accounts Act 1875, on the other. The expert evidence of French criminal law showed that the conduct of which Arton was accused was a crime against that article of the Code Pénal, that such crime fell within the description of one item in the list of extraditable crimes in the French language version of the treaty, and that, although it did not fall within the item bearing the same number in the list, as it did in the English language version, it did fall within an item that bore another number in the English language version. This the Divisional Court held to be sufficient to justify Arton’s committal for surrender under the Acts of 1870 and 1873.

There are two passages in the judgment of Lord Russell of Killowen C.J. in this case which appear to be intended to express the principles upon which the decision of the court was based. The first, at p. 513, is equivocal:

“The conditions of extradition, the fulfilment of which we have in this case to consider, are the following: (1) the imputed crime must be within the treaty; (2) it must be a crime against the law of the country demanding extradition; (3) it must be a crime within the English Extradition Acts 1870 and 1873; and (4) there must be such evidence before the committing magistrate as would warrant him in sending the case for trial, if it were an ordinary case in this country.”

If by “imputed crime” is meant the conduct which the fugitive criminal whose surrender is sought is accused of having committed in the foreign state demanding extradition, I have no quarrel with this as a statement of principle. But in the penultimate paragraph of the judgment there is a further statement, at p. 517, which also appears to be intended as one of principle:

“The English and French texts of the treaty are not translations of one another. They are different versions, but versions which, on the whole, are in substantial agreement. We are here dealing with a crime alleged to have been committed against the law of France; and if we find, as I hold that we do, that such a crime is a crime against the law of both countries, and is, in substance, to be found in each [*624] version of the treaty, although under different heads, we are bound to give effect to the claim for extradition.”

This double comparison between the substantive criminal law of England and of the foreign state and between the versions in the English and the foreign language versions of the list of extraditable crimes in the treaty, which appears to have become an invariable practice in all extradition cases since In re Arton (No. 2) [1896] 1 Q.B. 509, was first given the sobriquet of “double criminality” by Griffiths J. in Reg. v. Governor of Pentonville Prison, Ex parte Budlong [1980] 1 W.L.R. 1110. After discussion of the cases in which the practice had been followed, Griffiths J. summarised it thus, at pp. 1122-1123:

“double criminality in our law of extradition is satisfied if it is shown: (1) that the crime for which extradition is demanded would be recognised as substantially similar in both countries; (2) that there is a prima facie case that the conduct of the accused amounted to the commission of the crime according to English law.”

My Lords, I can find no justification whatever in the Act of 1870 for adducing at the hearing before the magistrate, under sections 9 and 10, evidence of foreign law directed to satisfying Griffiths J.’s proposition (1) in an accusation case in which the surrender of a fugitive criminal is requisitioned by the Danish Government under the principal treaty which, in contradistinction to the supplementary treaty, does not give rise to any exceptional accusation cases.

The jurisdiction of the magistrate is derived exclusively from the statute. It arises when a person who is accused of conduct in a foreign state, which if he had committed it in England would be one described in the 1870 list (as added to and amended by later Extradition Acts), has been apprehended and brought before the magistrate under a warrant issued pursuant to an order made by the Secretary of State under section 7 or confirmed by him under the last paragraph of section 8.

At the hearing, sections 9 and 10 require that the magistrate must first be satisfied that a foreign warrant (within the definition in section 26 that I have already cited) has been issued for the accused person’s arrest and is duly authenticated in a manner for which section 15 provides. Except where there is a claim that the arrest was for a political offence or the case is an exceptional accusation case, the magistrate is not concerned with what provision of foreign criminal law (if any) is stated in the warrant to be the offence which the person was suspected of having committed and in respect of which his arrest was ordered in the foreign state.

The magistrate must then hear such evidence, including evidence made admissible by sections 14 and 15, as may be produced on behalf of the requisitioning foreign government, and by the accused if he wishes to do so; and at the conclusion of the evidence the magistrate must decide whether such evidence would, according to the law of England, justify the committal for trial of the accused for an offence that is described in the 1870 list (as added to or amended by subsequent Extradition Acts) provided that such offence is also included in the extraditable crimes listed in the English language version of the extradition treaty. In making this decision it is English law alone that is relevant. The requirement that he [*625] shall make it does not give him any jurisdiction to inquire into or receive evidence of the substantive criminal law of the foreign state in which the conduct was in fact committed.

Reliance was placed by Nielsen on the second paragraph of section 9, viz.:

“The police magistrate shall receive any evidence which may be tendered to show that the crime of which the prisoner is accused or alleged to have been convicted is an offence of a political character or is not an extradition crime.”

If only English law were relevant to determining whether the conduct of the accused amounted to an extradition crime this, it was argued, would not be a matter for evidence whereas foreign law would. But the answer to this is that under an extradition treaty in such terms as give rise to what I have called exceptional accusation cases and in some at any rate of conviction cases, evidence of foreign law may be relevant to a decision whether particular conduct constitutes an extradition crime, and for these kinds of cases section 9 had to make provision. In an ordinary accusation case, such as arises upon a requisition by the Danish Government for surrender of a fugitive criminal under the principal treaty, section 3(2) of the Act supplies the safeguard for the person who is surrendered. It provides:

“A fugitive criminal shall not be surrendered to a foreign state unless provision is made by the law of that state, or by arrangement, that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to Her Majesty’s dominions, be detained or tried in that foreign state for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded:”

So it is the facts proved before the magistrate at the hearing of committal proceedings against the fugitive criminal under sections 9 and 10, and not whatever article of the Danish penal code that may be referred to in the original Danish warrant for arrest, that determine the only crime or crimes under Danish law for which the fugitive criminal who has been surrendered can be tried in Denmark without being given an opportunity of returning to the United Kingdom.

In my opinion, therefore, there being no claim that any political offence was involved and no dispute as to the authenticity of the Danish warrant for Nielsen’s arrest, the magistrate in the instant case, which was not an exceptional accusation case, had no jurisdiction to enter upon any question of Danish criminal law. The evidence of Danish law, adduced though it was on behalf of the Danish Government in accordance with the long prevailing practice, was irrelevant. It should not have been admitted by the magistrate. I would therefore uphold the order of the Divisional Court setting aside the magistrate’s order for Nielsen’s discharge and remitting the case to the magistrate to continue hearing the as yet unfinished evidence which the Danish Government wish to produce. [*626]

LORD KEITH OF KINKEL. My Lords, I have had the benefit of reading in advance the speech of my noble and learned friend, Lord Diplock, and for the reasons he gives I too would dismiss the appeal.

LORD ROSKILL. My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Diplock. I agree with it and for the reasons he gives I would dismiss the appeal.

LORD BRIDGE OF HARWICH. My Lords, for the reasons given in the speech of my noble and learned friend, Lord Diplock, with which I agree, I would dismiss the appeal.

LORD BRIGHTMAN. My Lords, I am in agreement with the speech of my noble and learned friend, Lord Diplock, and would dismiss the appeal.

Appeal dismissed with costs.