Where the secretary of state issued an order to proceed under Sch.1 para.5(4) Extradition Act 1989 wrongly stating that the appellant's extradition was being sought as an accused person within para.7(1), the district judge did not have jurisdiction to order the appellant's committal as a convicted person under para.7(2).Appeal from the decision of the Administrative Court refusing relief by way of habeas corpus in an application by the appellant ('G') challenging the lawfulness of a committal order under Sch.1 para.7 Extradition Act 1989. In 1995 G was indicted by a New York County Grand Jury for assault in the first degree after a student ('J') was subjected to an unprovoked attack in Manhattan. G was bailed but warned that if he absented himself his trial could go ahead in his absence (a "Parker" warning). G failed to appear for a hearing and was tried, convicted and sentenced to 5 to 15 years' imprisonment in his absence. G was arrested in London in 2001. The US applied for his extradition as a convicted person and not as an accused person who had yet to face trial. For unexplained reasons the case was brought before the district judge for a committal hearing for G's extradition on the assumption that he was an accused person to whom the provisions of Sch.1 para.7(1) to the 1989 Act applied. At the committal hearing G argued that there was no prospect of his conviction being set aside and that he should be treated as a convicted person within para.7(2). The US Government argued that G could be treated as an accused person within para.7(1) because his conviction was a "conviction for contumacy" within Sch.1 para.20. The district judge held that G could be treated as an accused person and committed him to await the Secretary of State for the Home Department's decision on his extradition. The Administrative Court refused an application for habeas corpus. It held that: (i) although the district judge was wrong to hold that G's conviction was a conviction in contumacy, she still had jurisdiction to commit G under para.7(3) on the basis that he was a convicted person within para.7(2); and (ii) there was no statutory or legal requirement for the secretary of state to specify whether the requisition was for the surrender of the person in the capacity of an accused person or a convicted person. G appealed.HELD: (1) The district judge's committal order was made without jurisdiction. The origin of the jurisdiction that was to be exercised under para.7 lay in the order to proceed which the secretary of state sent to the district judge under para.4(2) or para.5(4) as the case might be. It was for the secretary of state to see that the provisions of the extradition treaty had been satisfied and to say into which category the fugitive criminal fell. The district judge did not have jurisdiction to change that category. In this case the secretary of state placed G in the wrong category and the district judge was confined to considering whether to commit under that category. R v Governor of Brixton Prison, ex parte Caborn-Waterfield (1960) 2 QB 498, Zezza v Governor of Pentonville Prison & Anor (1983) 1 AC 46 and Re Sarig (1993) (Unreported, 26/3/93) applied. (2) It was a fundamental principle that any use of the procedures that existed for depriving a person of his liberty had to be carefully scrutinised. There could be no more fundamental error in the use of the extradition procedures than the making of a decision by the court which lay outside its jurisdiction. G had to be discharged from the committal order.Appeal allowed.

[2003] UKHL 19

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