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Attempt to get away with burglary, 1979

Discussion in 'Education, Research and Inside Reports' started by musketeerwang, Feb 27, 2008.

  1. musketeerwang Member

    Attempt to get away with burglary, 1979

    The below is copypasta from the American Journal of International Law, Vol.74, p447. It pertains to two Co$ members living in the UK who tried to get out of extradition to face Operation Snow White-related burglary/trespass charges, by trying some special pleading/technicality. Doesn't look like the court bought it... :D

    Extradition-double criminality-definition of political offense-speciality
    IN
    THE
    MATTER
    OF
    BUDLONG KEMBER.' NOS. 199/79, 200/79.
    AND
    Queen's Bench Division, Nov. 30, 1979.
    The United States requested the extradition of the accused, an Ameri-
    can national and a British national, on ten charges of burglary, pursuant to
    the treaty with the United Kingdom of 1972 (28 UST 227, TIAS No.
    8468)(Treaty). It appeared that the accused, who were senior members
    of the Church of Scientology and who resided in the United Kingdom,
    had instructed members of this organization in the United States to break
    into offices of the Internal Revenue Service and the Department of Justice
    in the District of Columbia for the purpose of making photocopies of
    documents pertaining to the organization. Finding that a prima facie case
    of burglary had been made against the accused, the metropolitan magis-
    trate granted the extradition request. The accused then applied for writs
    of habeas corpus, complaining that the extradition order was illegal. The
    Queen's Bench Division denied their applications.
    At the outset, the applicants argued that the magistrate did not have
    before him a document showing that the charge of burglary corresponded
    fully to the crime of burglary as defined in English law. It appeared
    that in English law burglary involved the act of trespass. The requisition
    19
    Id., 3403.
    20
    Id., 3404.
    21
    Ibid.
    '
    Text of decision provided by William S. Kenney, Esq. The text is in the form
    of a stenographic report made by Walsh, Cherer and Co., Ltd.
    Page 3
    448
    THE AMERICAN JOURNAL OF INTERNATIONAL LAW
    [Vol.
    74
    sent by the Home Office to the magistrate simply referred to burglary.
    In the opinion of the court, the requisition was the only document that
    had to be submitted to the magistrate in order to initiate the extradition
    proceedings under the Treaty and the relevant law, and, in form, it need
    only refer to the offense in general terms.
    Applicants then argued that because the definition of burglary in En-
    glish law differed from that in the District of Columbia Code (22 D.C.
    Code $1801 ( b ) )
    ,
    the requirement of double criminality that appears in
    the Treaty (Art. 111) had not been met. Admittedly, the burglars had
    committed trespass in undertaking their act; applicants contended, how-
    ever, that unless trespass was recognized as part of the offense of burglary,
    as in English law, if extradited, they would be tried for a different offense
    from that understood in England. Mr. Justice Gri5ths pointed out that
    an examination of English and American judicial decisions and statutes
    indicated that for purposes of extradition the offense charged did not have
    to be identical in terms in each country's laws. Given the differences in
    language and legal systems, to require identical definitions of offenses
    would make extradition a very difficult process. The court said:
    I therefore summarise by saying that 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 con-
    duct of the accused amounted to the commission of the crime accord-
    ing to English 1aw.l
    Applicants further contended that the offenses charged were actually
    political offenses for which extradition could not be granted under the
    Treaty. They argued that the burglaries had been committed in order
    to ascertain what detrimental information the U.S. Government had on
    file about the Church of Scientology and what persons in the Government
    were opposed to this organization. They submitted that the ultimate
    objective of the burglaries was to use this information in order to change
    the Government's hostile policy toward their organization. They main-
    tained that this objective was political in nature; hence, the burglaries
    were political offenses. Although applicants' orders for the commission of
    the burglaries, which were submitted in evidence to the court, indicated
    that these acts were designed to obtain Government documents as well
    as the names of Government personnel opposed to the Church of Scien-
    tology, the court did not find that these orders supported applicants' alleged
    political objectives. Mr. Justice Griffiths said:
    I am unable to accept that organising burglaries either for the
    purpose of identifying persons in Government o5ces hostile to the
    Scientolo ists, or for the purpose of gaining an advantage in litigation,
    or even for the wider purpose of refuting false allegations thus en-
    abling a better image of the Church of Scientology to be projected
    to the public, comes anywhere near being an offence of a political
    character within the meaning of the Extradition Act.
    1
    Nos.
    199/79, 200/79, Q.B.D., Nov. 30, 1979,
    at
    14.

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