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Habeas Corpus, Extradition and the Burden of Proof: The Case of the Man who Escaped from Devil's Island

Published online by Cambridge University Press:  16 January 2009

Robert J. Sharpe
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Extract

The decision in 1907 to grant habeas corpus in favour of Eddie Guerin, a notorious criminal widely known as the man who escaped from Devil's Island, attracted attention at the time in the popular press but has been largely ignored by lawyers. The judgment of the court was brief and the issue decided appeared to be entirely factual. Yet the case was a remarkable one from a legal perspective which merits further attention. It deals with a difficult and crucially important legal point—the burden of proof and the resolution of issues of disputed fact on habeas corpus—in a most unusual and intriguing way.

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Articles
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The Cambridge Law Journal , Volume 49 , Issue 3 , November 1990 , pp. 422 - 440
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Copyright © Cambridge Law Journal and Contributors 1990

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References

1 R. v. Governor of Brixton Prison, ex p. Guerin (1907) 51 Sol.J. 571Google Scholar; The Times, 15 June 1907.

2 Murray, 1928.

3 Doubleday, 1929.

4 Article II of the United Kingdom-France treaty (14 Aug. 1876) provided as follows: Native-born or naturalized subjects of either country are excepted from extradition. In the case, however, of a person who, since the commission of the crime or offence of which he is accused, or for which he has been convicted, has become naturalized in the country whence the surrender is sought, such naturalization shall not prevent the pursuit, arrest, and extradition of such person, in conformity with the stipulations of the present Treaty. Extradition of fugitive offenders to France was a matter of routine. Foreign Office records indicate that in 1888, there were 27 active files: PRO Kew, FO 802, vol. 216.

5 Gill, then 37, went on to establish a reputation as a first-rate counsel, particularly in the criminal courts: “…he deserves to be remembered with the great advocates of his generation”. The Times, 23 Feb. 1923. Guerin described Gill as “one of the greatest criminal lawyers England has ever known…a man who never had a superior in the defence of prisoners”. I was a Bandit, p. 107.

6 See Friedland, M. L., The Trials of Israel Lispski (Macmillan, 1984), esp. at p. 29Google Scholar.

7 The Times, 7 Nov. 1888.

8 Ibid.

9 The formal order of the court, however, did not limit Guerin to any specific points, nor follow the usual practice of being directed to the gaoler. It was, rather, framed as an order to the “French Consulate General and the Bank of France to show cause why a writ of habeas corpus should not issue directed to the Gaoler of Her Majesty's Prison at Holloway in the County of Middlesex commanding him to have the body of the said Eddie Guerin before this court immediately after their receipt of the said Writ together with the day and cause of his being taken and detained by whatsoever name he may be called therein and then and there to undergo and receive all and singular such matters and things as the said court shall then and there consider of concerning in this behalf.” PRO Ch. Lane, J74/88, p. 41. While the order required that notice be given to the Treasury Solicitor, the matter was seen as being essentially one between Guerin, on the one hand, and the French authorities and the Bank of France, on the other.

10 60 L.T. 538; 58 L.J.M.C. 42; 37 W.R. 269; 53 J.P.; 16 Cox C.C. 596; The Times, 14 Nov. 1888.

11 Alverstone, , Recollections of Bar and Bench (Arnold, 1914)Google Scholar; DNB. 1912–1921, 562–563; The Times, 16 Dec. 1915.

12 See Friedland, M.L., “R. S. Wright's Model Penal Code: A Forgotten Chapter in the History of the Criminal Law” (1981) 1 O.J.L.S. 307CrossRefGoogle Scholar.

13 Poland more or less conceded that the evidence actually heard by the committing magistrate was sufficient: See Stephenson to Lushington, PRO Kew, H.O. 144/476, 16 Nov. 1888. Wills J. had taken the extraordinary step of communicating with the magistrate who had assured him “that he had acted on the French depositions and the evidence before him only, and had not looked at the depositions taken before Sir James Ingham” (60 L.T. at 540). The judgment of the court dismissed the application on the first point, but held that a second magistrate could not act on evidence received by the first (60 L.T. at 540–541): “It is contrary to all my ideas and experience of justice for depositions taken before one magistrate to be considered by another magistrate sufficient evidence to commit a prisoner upon without having seen the demeanour of the witnesses when they were giving their evidence, and so being in a position to judge for himself of the truth of their statements.”

14 60 L.T. at 541; Sharpe, R. J., The Law of Habeas Corpus (Oxford, 2nd ed., 1989), pp. 73–74Google Scholar.

15 See Sharpe, supra n. 14, pp. 64–91.

16 Indeed, it would seem that Wright was ready for the point as he cited an early case, Re Andrews (1873) L.R. 8 Q.B.D. 153, where a similar practice had been followed.

17 60 L.T. at 540. While the Guerin case presents one of the best examples of the technique of directing the trial of an issue, it has been resorted to in other cases: See Sharpe, supra n. 14, pp. 78–79; 157–159.

18 The formal order of the court followed the earlier order which framed the issue as one between Guerin and the Bank of France. The court enlarged the time within which cause was to be shown why a writ of habeas corpus should not issue until 27 December 1888 and further ordered (PRO Ch. Lane J74/88, p. 52) “that in the meantime an issue be tried to ascertain whether the said Eddie Guerin is a native born British subject within the meaning of the Treaty between Her Majesty The Queen and the French Republic concluded on the 14th day of August, 1876 for the mutual Extradition of Fugitive Criminals and the said Eddie Guerin shall be plaintiff and the said Bank of France the defendants in the said issue”.

19 60 L.T. at 540.

20 Waddington to Lord Salisbury, 16 Nov. 1888, PRO Kew, HO 144/476.

21 23 Nov. 1888, HO 144/476.

22 11 Dec. 1888, HO 144/476.

23 ibid.

24 (1888) 5 T.L.R. 160.

25 DNB 1931–1940, 179; Clarke, , The Story of My Life (John Murray, 1918)Google Scholar; Walker-Smith, D. and Clarke, E., The Life of Sir Edward Clarke (Thornton Butterworth, 1939)Google Scholar.

26 Treatise on the Law of Extradition (Stevens and Haynes) first published in 1866 with subsequent editions in 1874, 1888, and 1903 (which contains a lengthy reference to the Guerin case, at pp. 179–182).

27 Clarke, The Story of My Life, p. 265. Webster described Clarke's noted speech in response to Gladstone's second home rule bill as “one of the most magnificent efforts I ever listened to”. Recollections of Bar and Bench, p. 164.

28 A Royal Commission on Extradition in 1878 had deprecated treaty clauses restricting the extradition of nationals: see Clarke, , Extradition (4th ed., 1903), p. 259Google Scholar. The matter had also received adverse judicial comment: in R. v. Wilson (1877) 3 Q.B.D. 42 at 44–45Google Scholar, Lord Cockburn C.J. stated: “this blot upon the law should be removed, so as to prevent an Englishman who commits an offence in a foreign country from escaping with impunity”.

29 For discussion of the way the law has developed on the point, see infra, text at notes 59–65.

30 Woolmington v. D.P.P. [1935] A.C. 462Google Scholar.

31 5 T.L.R. at 162.

32 5 T.L.R. at 190.

33 5 T.L.R. at 162.

34 5 T.L.R. 188; The Times, 18 Jan. 1889.

35 5 T.L.R. at 189.

36 Ibid. at 190.

37 Ibid.

38 Evidence Act, 1851 (14 & 15 Viet., c. XCIX), s. 3.

39 5 T.L.R. at 192.

40 Guerin was put on board the S.S. Dora at Le Havre, bound for Southampton, on June 6 along with his confederate, Frank Denning. The French authorities must have warned the English that Guerin had been shipped back. The Assistant Commissioner of Police advised the Home Office of Guerin's arrival, pointing out that Guerin and Denning had criminal records and that “both of these men are dangerous criminals and will probably be heard of again in connection with some crime” (7 June 1899, PRO Kew, HO 144/476). The Home Office was annoyed at having Guerin back, but felt that nothing could be done. The minute on Guerin in the Home Office file reads as follows (15 June, 1899, PRO Kew, HO 144/476): “The French Government, of course, know perfectly well that these men are American subjects: Guerin fought his extradition alleging that he was a British subject, without success (Denning wished to go). But I do not think it would be of any use to protest: they were in the UK last and they were arrested here. If they had been deported to the US there would have been no means of preventing them from coming back to England.”

41 The Times, 23 June 1906.

42 A copy of the formal order is to be found in PRO Kew, FO 372/10.

43 Dysart, the Director of Public Prosecutions, noted (7 August, 1906: PRO Kew, FO 372/10): “What has occurred in this case will probably lead to expenditure which is quite unusual in an extradition case and may be not inconsiderable—I do not know whether in the circumstances the French Government would make any contribution to the cost which is being incurred to check a claim which if established will lead to the discharge of the accused to whose surrender they as I understand attach considerable importance.”

44 Letter from Home Office to the Foreign Office, 23 Aug. 1906: PRO Kew, FO 372/10.

45 5 July 1906, PRO Ch. Lane, KB 1 347/1 No. 277.

46 1 Oct. 1906, PRO Ch. Lane, KB 1 347/2 No. 365.

47 PRO Ch. Lane Index Entry KB 39/31 refers to a bundle of 22 documents having been filed 14 June 1907, but these are said to be missing at the time of transfer and may well be the transcripts.

48 1 Oct. 1906, PRO Ch. Lane, KB 1 347/2 No. 365.

49 Letter from Bulkley, Gray and More, Chicago to the Director of Public Prosecutions, 6 Dec. 1906, PRO Kew, FO 272/10.

50 5 Oct. 1906, PRO Ch. Lane, KB 1 347/2 No. 367.

51 Supra, n. 48.

52 For discussion of this, see Sharpe, supra n. 14, pp. 201–212. Successive applications were eliminated by Re Hastings (No. 2) [1959] 1 Q.B. 358Google Scholar. See also R. v. Governor of Winson Green Prison, Birmingham, ex p. Littlejohn [1975] 1 W.L.R. 893Google Scholar, where the applicant lost a habeas corpus application, was sent to Ireland for trial, escaped and when again arrested in England launched another habeas corpus application on the same grounds as the first. The court considered the application on the merits, but on the ground that fresh material had been presented.

53 The other members of the court were Darling and Lawrence JJ.

54 No mention is made of the Guerin cases in his memoirs, Recollections of Bar and Bench, Nor did Guerin mention the fact that Lord Alverstone C.J. had appeared against him in the earlier case. On the other hand, Guerin was very relieved to learn that Sir Edward Clarke would not appear again to oppose his application: / Was a Bandit, p. 267.

55 Guerin credited his success in 1907 in part to the determination of his counsel, Richard Muir, “who for eight months, tooth and nail, fought the extradition proceedings like a terrier. He won in the end because he would not be beaten.” I Was A Bandit, p. 264.

56 Felstead, S.T., Sir Richard Muir: A Memoir of a Public Prosecutor (Lane, 1927), p. 321Google Scholar.

57 For Muir's view of the case see ibid., pp. 318–323.

58 (1907) 51 Sol. J. 571; The Times, 15 June 1907.

59 Text writers have tended to ignore the 1907 decision and continue to cite the 1888 decision as authority for the proposition that the burden of proving nationality as an exemption rests with the prisoner: see Piggott, F., Extradition (Butterworth, 1910), pp. 67–8 (criticising the 1907 decision)Google Scholar; Booth, V. E. Hartley, British Extradition Law and Procedure (Sijthoff & Noordhoff, 1980), vol. 1, p. 73Google Scholar; Stanbrook, I., The Law and Practice of Extradition (Barry Rose, 1980), p. 4 (citing both the 1888 and 1907 decisions for this proposition)Google Scholar; La Forest, G. V., Extradition To and From Canada (Canada Law Book, 2nd ed., 1977), p. 78Google Scholar.

60 For a detailed discussion, see Sharpe, supra, n. 14, pp. 85–91.

61 Eshugbayi Eleko v. Officer Administering the Government of Nigeria [1931] A.C. 662Google Scholar.

62 Greene v. Secretary of State for Home Affairs [1942] A.C. 284Google Scholar.

63 R. v. Governor ofBrixton Prison, ex p. Ahsan [1969] 2 Q.B. 222Google Scholar.

64 Zamir v. Secretary of State for the Home Department [1980] A.C. 930Google Scholar.

65 Khawaja v. Secretary of State for the Home Department [1984] A.C. 74Google Scholar.

66 The literature on the Dreyfus case is vast. For a lively and detailed recent account, see Bredin, J. D., L'Affaire (Julliard, 1983)Google Scholar, translated as The Affair: The Case of Alfred Dreyfus (Firefly, 1986).

67 I Was a Bandit, p. 248.

68 On the same day Guerin's ex pane application for habeas corpus was reported in The Times, there was also an account of the argument before the Cour de Cassation in proceedings to review Dreyfus' conviction: 6 July 1906.

69 Supra, n. 15.

70 See Clarke, , Extradition (4th ed., 1903)Google Scholar for the texts of the treaties. The treaties with Luxembourg, Spain and Switzerland provided for the extradition of British subjects, but not nationals of the other state.

71 Supra, n. 28.

72 Most modern treaties give the requested state discretion: see Hartley Booth, supra n. 59, pp. 69–73, 299. The extradition of nationals has been upheld under the Canadian Charter of Rights and Freedoms, s. 1, as a reasonable limit on the s. 6 right of “every citizen of Canada…to enter, remain in and leave Canada”. Re Federal Republic of Germany and Rauca (1983) 145 D.L.R. (3d) 638 (Ont. C.A.)Google Scholar; United States of America v. Cotroni; United States v. El Zein [1989] 1 S.C.R. 1469Google Scholar.

73 6 Aug. 1907, PRO Kew, FO 372/50.

74 Minute, 8 Aug. 1907, PRO Kew, FO 372/50.

75 Ibid.

76 Maycock to Bertie, 12 Aug. 1907, PRO Kew, FO 372/50.

77 Ibid.

78 Bertie to Campbell, 28 Aug. 1907, PRO Kew, FO 372/10: “The crime of which a British subject might be accused might be on the borderland between common and political crime. If we surrendered him, there would be an outcry in England; if we refused to give him up there might be an outcry in France with political inconvenience to us.”

79 Minute, 16 Mar. 1908, PRO Kew, FO 372/103.

80 The Times, 17 June 1907.

81 Barker, D., Lord Darling's Famous Cases (Hutchinson, 1936) p. 45Google Scholar; The Times, 26 July 1907.

82 See, e.g. The Times, 10 April 1908; 22–24 Jan. 1912; 25 April 1913; 8 July 1918; 30 Sept. 1920; 7 Jan. 1924; 29 May 1928; 10 April 1931; 25 Nov. 1932; 31 Dec. 1934; 10 Oct. 1935; 2 Feb. 1938; 14 Mar. 1938; 29 May 1939.