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Criminal Appeal and Extradition

By Kate O'Raghallaigh

 

 

Manslaughter - Application of Code C during significant witness interview - breach of specialty protection

 

Jack Shepherd [2019]

 

EWCA Crim 1062

 

 

The case of Jack Shepherd is better known for the media furore surrounding his trial in his absence than it is for the issues of law which arose in relation to his conviction and subsequent extradition from Georgia. In June, however, the Court of Appeal handed down judgment in two appeals relating to Shepherd’s case: first, an appeal against his conviction for gross negligence manslaughter and secondly, an appeal under s.13 of the Bail Act 1976 relating to breaches of specialty protection under the Extradition Act 2003. The latter appeal was brought against Shepherd’s conviction for a Bail Act offence to which he had pleaded guilty after his extradition. The case underscores the importance of strict compliance with specialty provisions for defendants who are extradited to the UK.

 

Facts

 

Shepherd and the deceased had been on a date. They had been drinking over the course of the evening and later took Shepherd’s speedboat out on the river. After further drinking, Shepherd drove the boat at speed and let the deceased drive the boat, during which time the boat hit a submerged tree and both were thrown into the water. Whilst Shepherd was rescued, the deceased died later in hospital.

 

Shepherd was interviewed as a significant witness the next day. Despite officers having formed the impression that he had been drunk the previous evening, they did not treat him as a suspect. The officers in question were unaware of the Thames Byelaw prohibiting being in charge of a boat whilst intoxicated and for reasons which are unclear, did not otherwise suspect Shepherd of an offence of criminal negligence. Shepherd was therefore not cautioned or offered legal advice during the interview, despite making significant admissions about alcohol consumption. He was later prosecuted for gross negligence manslaughter on the basis that he had breached his duty of care towards the deceased - in part, by being intoxicated whilst he was in charge of the vehicle.

 

Shepherd later absconded to Georgia and was tried and sentenced in his absence. He consented to his extradition from Georgia in April 2019 and pleaded guilty at the Central Criminal Court to a s.6 Bail Act offence for which he was sentenced to six months’ imprisonment. However, the UK Extradition Unit had not included a Bail Act offence in the extradition request and did not thereafter seek Georgia’s consent to prosecute Shepherd under the Bail Act.

 

The manslaughter appeal

 

It was Shepherd’s significant witness interview which formed the subject of the appeal against conviction, the issue being whether the trial judge was correct to admit parts of the interview in which Shepherd spoke of the accident. The interviewing officer accepted on the voir dire that, had he known of the byelaw, he would have cautioned Shepherd before seeking to ask specific questions about alcohol. In the context of an alleged breach of Code C, the judge drew a distinction between questions which went to alcohol consumption and other more general questions about the accident, ruling inadmissible parts of the interview referring to alcohol consumption but admitting Shepherd’s answers to open questions about the accident.

 

In dismissing the appeal, the Court was persuaded that, because the interviewing officer had been subjectively unaware of the byelaw offence, the protection of Code C was not triggered. The Court reached this conclusion despite accepting that there were objective grounds on which they could have suspected Shepherd of a criminal offence. The Court placed significant emphasis on the purpose of the significant witness interview: Shepherd had answered questions during the ‘investigative phase’ of police activity and, whilst there may well have been the possibility that he was a suspect, the police should not be trapped by ignorance of an obscure byelaw offence so as to render their questioning in breach of the Codes. Finally, the Court decided that, even if there had been a breach of Code C, the breach was not such as to render the admission of any evidence from that interview, unfair.

 

 

The specialty appeal

 

The law of extradition does not permit countries to surrender individuals from one place to another without any form of limitation: one such limitation is specialty protection. Specialty protection is a principle whereby a requesting state undertakes not to try or punish a requested person for any offence committed prior to extradition, save for the offences for which he or she has specifically been extradited. The principle is elemental to the operation of extradition arrangements and is enshrined in the Extradition Act 2003.

 

The consequence of specialty protection is that the Crown Court did not have jurisdiction to deal with Shepherd for a Bail Act offence unless the Crown had alleged such an offence in the extradition request or had sought consent from Georgia to prosecute him under the Bail Act. Though there had been reference within the extradition request to Shepherd’s failure to attend his trial, as previously canvassed in R v Seddon [2009] 2 Cr App R 9, R v Dey [2010] EWCA Crim 1190  and R v Birch [2015] EWCA Crim 2289, s.151A(3)(b) of the Extradition Act 2003 requires that the full criminal allegation must be included.  

 

Thus, the only way in which the Bail Act conviction could stand was if Georgia had given consent under s.151A(3)(c). Whilst the Crown exhibited a series of emails between the UK Extradition Unit and their Georgian counterparts, the Court accepted that those emails did not contain any request for consent. Accordingly, the Court accepted that the proceedings under the Bail Act were a nullity and Shepherd’s conviction for failure to surrender was quashed.

 

Shepherd’s is the latest in a line of cases where convictions under the Bail Act have been quashed because the provisions of Part 3 of the Extradition Act have not been complied with. Where practitioners represent someone who has been extradited and appears in the Crown Court, the extradition request should be obtained and scrutinised to make sure that specialty protection has been complied with.

 

 

If you would like to discuss this case with Kate O'Raghallaigh, please email here.