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Cite as: [2000] EWHC Admin 343

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GOVERNMENT OF BULGARIA and GOVERNOR OF HMP BRIXTON ex parte ATANAS MOMTCHILOV RATCHEV, R v. [2000] EWHC Admin 343 (17th May, 2000)

Case No: CO 2018/99
IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 17th May 2000

B e f o r e :
LORD JUSTICE HENRY
and
MR JUSTICE ALLIOTT
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	REGINA
	-v-
	GOVERNMENT OF BULGARIA & THE GOVERNOR OF HMP BRIXTON ex parte ATANAS MOMTCHILOV RATCHEV

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Ms Helen Malcolm (instructed for the Applicant)
James Lewis Esq (instructed for the Respondent)

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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE HENRY:
1. Mr Ratchev, now a British subject through marriage and residence, challenges, under Section 6(2) of the Extradition Act, 1989, his committal for extradition to Bulgaria by Mr Evans, the Metropolitan Stipendiary Magistrate for Bow Street on 6th May 1999, and additionally exercises his right to apply for habeas corpus under Section 11(3) of that Act.
2. The facts in their barest outlines are these. Mr Ratchev is a Bulgarian citizen. In 1987 he met and fell in love with a UK citizen then working in Bulgaria as a travel industry representative with a job that took her to Bulgaria for a few months every year. The government's permission to marry a foreigner was required, and was refused. He successfully challenged that refusal in the courts, and he married his wife in Bulgaria in 1988. Their intention was to live in England and they were planning to return to England when her contractual commitments permitted later in 1988.
3. But then, at the end of June 1988, he was arrested and detained by the police for some nine days. The Bulgarian authorities contend that he was arrested on seven counts of burglary, and was released after he had formally admitted them. Mr Ratchev, for his part, denied the burglaries. He admitted the confession. His defence was that he had been arrested for changing money for tourists on the black market. When arrested the police said that they knew of his currency dealings. They knew he wished to move to England to be with his wife. They said they could prevent him from doing so if they charged him with the currency matters. They had the responsibility for issuing external passports. They proposed that if he confessed to a series of burglaries and paid them a bribe, they would issue his passport for foreign travel, and he would never hear of it again, there being then no extradition treaty between the United Kingdom and Bulgaria. Accordingly, he made a full confession, and paid the bribe (which his wife had borrowed from his uncle). His external passport (which permitted him to go to the United Kingdom only) was returned to him on 6th July, after he had filled in a card including details of his English address, which he also had to give to the military authorities, in case of mobilisation. He was released from custody on 6th July, got his visa on his new external passport from the British authorities, and flew to England on 13th July. From then, until his very recent separation from he wife, he lived quite openly with her at the address in Newcastle-on-Tyne which each of them had given to the Bulgarian authorities. The English authorities too knew his address.
4. On 31st January 1990 he was tried in Bulgaria and convicted in his absence of the seven counts of burglary, and sentenced to three years' imprisonment. He was not notified that he was to be tried, and was not notified of the hearing date, nor of the result. The first he knew of his trial, conviction and sentence was 8½ years later when arrested at his Newcastle home, when, having been cautioned he said:
"The police in Bulgaria control the issue of passports, unless I agree to confess to these crimes they do not issue me with a passport so I do not leave the country ... I did not do these things, they say if I sign they give me a passport, I can leave and go to the UK, Bulgaria has no extradition treaty with the UK. My wife she knows this, and so does the counsel (sic)"
5. Bulgaria became a party to the European Convention on Extradition in 1994, and the scheme of extradition from the United Kingdom to Bulgaria is now governed by Part III of the Extradition Act, 1989 and the European Convention on Extradition Order, 1900 SI 1507. Accordingly, on 16th February 1998, Bulgaria applied for the applicant's extradition to serve his sentence. On 29th April 1998, the Secretary of State authorised the designated Metropolitan Stipendiary Magistrate to proceed, and after a full hearing the magistrate committed him under Section 9(8)(b) of the Act to await the decision of the Secretary of State as to his return to Bulgaria.
6. That decision is now challenged by Mr Ratchev under Sections 6(2) and 11(3) of the Act by his application for habeas corpus.
7. Section 6 of the Act deals with general restrictions on the return of the person whose extradition is sought. Sub-section (2) deals with the particular problem where a conviction was obtained in his absence, as happened here:
"(2) A person who is alleged to be unlawfully at large after conviction of an extradition crime shall not be returned to a foreign state ..., or committed or kept in custody for the purposes of return to a foreign state ..., if it appears to an appropriate authority-
(a) that the conviction was obtained in his absence; and
(b) that it would not be in the interests of justice to return him on the ground of that conviction
Then, the appropriate authority (the Secretary of State, the court of committal, or, as here, the High Court on an application for habeas corpus or for review of the certificate of committal) must not return him if it appears to the authority "... that it would not be in the interests of justice to return him ...".
8. The legislative history of Section 6(2) is set out in R -v- Governor of HM Prison ex parte Barone (the judgment of Lord Justice Kennedy given on 7th November 1997) and I need not repeat it here. In summary, the 1982 Review of Extradition in the UK recognised (paragraph 4.15) that "... special conditions arose ... where the fugitive had been tried and convicted in his absence." The Report also recognised (paragraph 4.21) that an investigation as to whether there is a prima facie case against the accused can test the strength of the case, but cannot test "... the sufficiency of the procedure ..." which is necessary to ensure that he had "... adequate rights of defence ..." at his trial in order to give him his right to a fair trial within the rules of natural justice.
9. In relation to paragraphs 4.22 to 4.27 of the Review (which I do not rehearse in full) I make the following points:
i) Paragraphs 4.22 - 4.24: in our case, on surrender to Bulgaria the accused will not be able to have his conviction set aside by retrial in Bulgaria. He did not have an adequate opportunity to defend himself because, as he was not told whether or when the trial was to take place, he could give no instructions as to his defence.
ii) Paragraph 4.25: as there will be no retrial or review of the convictions in Bulgaria,
"... it would seem to us appropriate that the United Kingdom authorities should look into the proceedings which led to the conviction in absentia. We think it would be necessary in such cases to require the requesting state to provide details of the relevant statutory provisions together with an account of the conduct of the trial of the fugitive. This would allow the United Kingdom to refuse to surrender if, for example, the fugitive had been denied adequate rights of defence at his trial".
10. The Working Party's 15th recommendation took this up in recommending:
"... a new provision for dealing with applications in respect of persons convicted in absentia"
The recommendation was accepted, and Section 6(2) enacted in the form summarised above.
11. In ratifying the European Convention on Extradition, the United Kingdom made a reservation to Article 1 of the Convention in the following term:
"The United Kingdom reserves the right to refuse to grant extradition which is requested pursuant to or for the purpose of executing a conviction or sentence pronounced against the person concerned in his absence from the proceedings in respect of which the conviction or sentenced was pronounced."
12. The Section 6(2) issue was tried by the magistrate, because, as we have seen, both the magistrate and this Court are "appropriate authorities" under the Act.
13. Mr Lewis accepts that this Court has both an original jurisdiction under Section 6(2), but also a jurisdiction under Section 11(1) and (3) which is not enjoyed by the magistrate. Section 11 provides:
"(1) Where a person is committed under Section 9 above, the court shall inform him in ordinary language of his right to make an application for habeas corpus, and shall forthwith give notice of the committal to Secretary of State.
(2) A person committed shall not be returned-
...
(b) if an application for habeas corpus is made in his case, so long as the proceedings on that application are pending.
(3) Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences in respect of which the applicant's return is sought, that-
(a) by reason of the trivial nature of the offence; or
(b) by reason of the passage of time since he is alleged to have committed it or have become unlawfully at large, as the case may be; or
(c) because the accusation against him is not made in good faith in the interests of justice,
it would, having regard to all the circumstances, be unjust or oppressive to return him.
(4) On any such application the court may receive additional evidence relevant to the exercise of its discretion under Section 6 above, or sub-section (3) above."
14. It follows that the jurisdiction granted to this court is substantially larger than that granted to the magistrate.
15. The magistrate made the following findings in his consideration of the Section 6 issue:
1) that he should not consider matters which fell to be considered under Section 11(3).
2) That he did not believe Mr Ratchev in his account of how he came to sign the confession, and that there was clearly a prima facie case against him.
3) That the Bulgarian court was entitled to proceed in the absence of Mr Ratchev despite the fact that he was not warned of his trial.
4) If he is returned to Bulgaria, there is no way he can contest the counts he admitted.
5) That there was nothing more court-appointed counsel acting for him could have done in the trial in Mr Ratchev's absence.
16. Finding 1) is right in law. Finding 4) is right in fact. So far as Finding 2) is concerned, there clearly is a prima facie case against Mr Ratchev, and this Court, who did not hear his and his wife's evidence, cannot quash that finding: it is clearly one the magistrate could reach having heard the witnesses. It shows that there is a clear prima facie case, but it does not show that Mr Ratchev is guilty of the offences charged.
17. My main criticism of the magistrate is in relation to Finding 3). Though Mr Ratchev made his confession before Mr Paskalev (described as "an examining magistrate with the Investigating Department") there is no evidence that he was at any time arraigned, nor that his trial had in any sense commenced before he left the country on 13th July 1988.
18. It is agreed that thereafter no steps were taken to notify him of the trial or its date, nor the result of the trial, nor the fact that any appeal had to be lodged within 15 days or else the conviction of the defendant in his absence was beyond challenge.
19. The power of the court to proceed in the absence of the defendant depended on the provisions of Article 268 of the Penal Procedure Code, which exceptionally allows the court to proceed in the absence of the defendant who is out of Bulgaria if
"... that will not impede the revealing of the objective truth ... [and] if:
1. his residence is not known."
20. The court record for 31st January 1990 discloses that the defendant did not appear, and records:
"He has left the country, and is at present in England with unknown address."
21. The court then decided to appoint "an office barrister" to represent him. It is recorded:
"The court deems that the requirements of Article 268, Part III, section 1 of the Penal Procedure Code do exist for the case to be tried in the absence of the defendant, wherefore it has decided to proceed with the case to be tried in the absence of the defendant."
22. I deal first with the position of the court-appointed lawyer. As that lawyer had no instructions from Mr Ratchev, so he could not possibly have either known or presented the defendant's defence. All he could usefully do was to challenge everything and insist on everything being strictly proved. For a start, he should have called for evidence to satisfy himself that none of the court, the prosecution, nor the police knew of the English address of the defendant. It would seem that the police certainly did. It was important to do so because if the court decided to proceed without any notification of the hearing and its result to the defendant, that decision effectively deprived him of any right to challenge the case against him, and made the appointment of a lawyer to act for him nothing more than window dressing. But Mr Statev, the court-appointed lawyer, apparently took no such point. Instead, he made concessions in necessary ignorance of what the defence would have been. But the most serious of his shortcomings is that it seems from the court record that he, without protest, allowed the court to use this exceptional procedure of proceeding in the absence of the defendant without establishing what efforts had been made to discover his address.
23. The Bulgarian authorities only had power to proceed to try Mr Ratchev in his absence if they did not know his permanent address in England. The evidence shows:
a) that both Mr Ratchev and Mrs Ratchev gave the Bulgarian authorities details of their permanent address in the United Kingdom, he on marriage, on delivery to him of his external passport in 1988, and when he had to hand in his military passbook, she on her white entry card that was stamped on entry, and additionally when she applied for a Bulgarian visa. Both of them deposed to this at the committal at Bow Street in February 1999, and that evidence has never been contradicted.
b) The Bulgarian documents reveal that they had that address in April 1996 (Exhibit MH1/1, at page 67 on what appears to be a court document) and on their request for extradition of 10th December 1996.
c) There is no evidence filed by Bulgaria either challenging Mr and Mrs Ratchev's account of giving their UK address, or asserting that they did not know that address on 31st January 1990, or saying when they learnt of it or how, or saying whether they made any, or if so what, inquiries as to that address before proceeding to "deem" that the requirements of Article 268, Part III, Section 1 of the Penal Procedure Code existed. It became clear before us that the Bulgarian authorities had been asked for this information but had not provided it.
24. In those circumstances, I am not satisfied that the trial court in Bulgaria made any sufficient inquiries as to whether the Bulgarian authorities knew Mr Ratchev's English address, and accordingly had no jurisdiction to proceed to try him in his absence. To try him in his absence in those circumstances would not be in the interests of justice, as he had, as a result of the failure of the Bulgarian court properly to investigate this issue, no notice of the trial, yet no right of retrial under Bulgarian law.
25. Accordingly, in my judgment it was not just to try Mr Ratchev in his absence, and it would not be in the interests of justice to order his return.
26. We next consider Section 11. Had his conviction been after a fair trial on proper notice to him, he would have been unlawfully at large on 15th February 1990. At that time there was no extradition treaty between this country and Bulgaria. And we simply do not know what would have been the fate of an ad hoc extradition request from Bulgaria to the United Kingdom in the absence of a treaty. I would not criticise the Bulgarian government for being culpably dilatory over those years until the extradition treaty between the two countries came into force on, we are told 15th September 1994. I am not clear when the request for extradition was in fact made - whether it was in the letter of 10th December 1996, or whether it was the Request for Extradition of 23rd August 1996 enclosed with that letter (see MH1, pages 5 and 6). But even though I do not criticise the Bulgarian government for waiting until the extradition treaty was in position before making their request, at the time when the treaty came into effect, the offences alleged had been committed between seven and six years earlier, and the trial (not that Mr Ratchev knew about that) had been roughly 4½ years earlier. In the light of that passage of time, the onus was on the Bulgarian authorities to proceed promptly with the extradition request, and it seems to me that there was culpable delay of roughly two years in making the request. From the date of the Request for Extradition to the service of the extradition warrant on the applicant 18 months elapsed. From there until the time the Section 11 point was raised in Court in this hearing was another 18 months. That seems to me to be an inappropriately leisurely process through the courts, but on the material before me, I cannot ascribe culpability for that delay to the Bulgarian government. Accordingly, while adhering to all I said about delay in R -v- Secretary of State for the Home Department, ex parte Patel (7 Admin LR, 56), if the applicant had known of his trial date but chosen not to attend, I would not have denied the application for his return on Section 11(3) grounds. But that is hypothetical. What is clear is that the passage of time since Mr Ratchev was permitted to leave Bulgaria (now 12 years ago) adds significantly to the injustice that there would be were we to return him under Section 6(2). Accordingly, I would quash the committal order by the Metropolitan Stipendiary Magistrate, under Section 6(2) of the Extradition Act, 1989, and order the discharge of Mr Ratchev.
MR JUSTICE ALLIOTT:
27. I agree.