LAW REPORT.

New Zealand Police Gazette, Volume XL, Issue 26, 30 June 1915, Page 453

LAW REPORT.

(“ Times Law Reports,” Vol. xxxi, page 384.) [K.B. Div.— (Avory and Atkin, JJ.)— 3lst March, 1915.] Ex parte Moser. Extradition Fugitive Criminal Conviction in France — Escape from Prison Commitment Extradition Act, 1870 (33 and 34 Viet., c. 52), s. 10. The appellant was convicted in France of vol et violence, but before he had served the whole of his sentence he escaped from prison. Having come to this country he was committed with a view to his extradition. The extradition treaty with France provides for the surrender of persons who have been convicted of a crime in France. Held, That even if prison breach were not an offence within the treaty, and although the applicant had not been oonvicted en contumace, the applicant was nevertheless a fugitive criminal within the meaning of section 10 of the Extradition Act, 1870. and the order of commitment was right. Mr. Abinger applied for a rule nisi for a writ of habeas corpus on behalf of Maral Louis Albert Moser in the following circumstances. The applicant, said counsel, was a French subject, aged twenty-six, who was at present in Brixton Prison. He stood committed on an extradition warrant for the offence of vol et violence committed in France. He was convicted of the offence, and was sentenced to four years’ penal servitude, a sentence which was reduced on appeal to three years’ penal servitude. When he had served eighteen months of the sentence he escaped from prison. He went first to Liege, and three or four years ago came to this country, where he earned his living as an hotel employee. When war broke out he went to the French Consul and volunteered to fight the Germans if the Consul would give him an undertaking that he should not be called upon to serve the rest of his sentence. The French police were communicated with, and they declined to accept the suggestion made, but as they had learned hL address they applied for his extradition. The extradition treaty between this country and France provided that “ the High Contracting Parties engage to deliver up to each other those persons who are being proceeded against or have been convicted of a crime committed in the territory of the one party and who shall be found within the territory of the other party under the oircumstances and conditions stated in the present treaty.”

The Extradition* Act, 1870, section 10, provided, by its second paragraph, that ‘‘ln the case of a fugitive criminal allfged to have been convicted of an extradition crime, if such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, prove that the prisoner was convicted of such crime, the police magistrate shall commit him to prison, otherwise he shall order him to be discharged.” Mr. Abinger submitted (1) that the offence with which the applicant was charged had merged in the conviction, and (2) that as prison breach was not an extraditable offence the applicant was wrongly committed. He also contended that the words in the treaty “ have' been convicted of a crime ” must mean convicted en contumace, for otherwise a man who had been convicted twenty-five years ago and had served his sentence would be liable to extradition. Mr. Justice Avory.—ls not the question here whether the applicant is a fugitive criminal within the meaning of sec tion 10 of the Extradition Act ? Mr. Abinger.—l submit that he is not a fugitive criminal, but a criminal who has escaped from prison, and in doing so has committed prison breach which is not an extraditable offence. Mr. Justice Avory, in giving judgment, said that in his opinion there should be no rule. The order of commitment showed that the applicant had been committed with a view to his being surrendered in pursuance of the Extradition Act on the ground that he had been convicted of robbery with violence, as the offence was known in this country. Mr, Abinger admitted that the applicant was convioted of that crime and was sent to prison, and also that he had broken out of prison and had fled to this country, and he contended that the offence of prison breach was not one of the offences specifically mentioned in the treaty with France or in the Extradition Act of 1870. The answer to this contention was that the applicant was undoubtedly a fugitive criminal within the meaning of section 10 of the Act. Admittedly he was a criminal who had not yet served his sentence, and who had fled from the place of his conviction in France to this country. The second paragraph of section 10 clearly dealt with the case of a fugitive criminal alleged to have been convicted of an extradition crime. All that the Magistrate had to consider was whether the evidence produced before him was such as under English law proved that the prisoner was convicted of such a crime. It was not suggested that the Magistrate had not such evidence before him, and therefore it appeared to him (Mr. Justice Avory) that the case clearly fell within the section. He also thought that the case came within the treaty because the applicant was convicted of one of the crimes mentioned in it. The Magistrate had properly exercised his jurisdiction, and the application must be dismissed. Mr. Justice Atkin delivered judgment to the same effect. Solicitors—Messrs. Claude Lumley and Co.