England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London WC2
		Friday, 23rd February 2001

1. LORD JUSTICE LATHAM: This is an application for habeas corpus by Anthony Cookeson following his committal by District Judge Pratt sitting at Bow Street Magistrates' Court on 27th September 2000 to await the Secretary of State's decision as to his extradition to Australia under the Extradition Act 1989.
2. The facts giving rise to the extradition request can be stated briefly. On 2nd May 1988 gold valued at A$ 300,000 was stolen from a gold mine in Western Australia. The Government of Australia alleges in the request that the applicant together with Desmond Reynolds, Jaye Peters (the applicant's ex-wife) and a woman called Helen Cochrane were responsible for its theft. Thereafter warrants for the applicant and his wife's arrest were issued in June 1991 in Australia; the position being that, by then, Reynolds had been arrested and had given an account of the offence which implicated both the applicant and his wife.
3. In relation to the proceedings themselves thereafter, what happened was that an extradition request was made to the United Kingdom in July 1991, but insufficient material was provided by the Australian authorities for the authorities in this country to pursue the matter; and it was not until November 1992 that they were able to place sufficient material before the English authorities to justify an extradition warrant.
4. The applicant was not, however, arrested in this country until July last year; in other words, some twelve years after the offence itself, and some eight years after the extradition request had finally resulted in a warrant.
5. The applicant submits that in the light of that delay he should not be returned to Australia. He relies upon section 11(3) of the Extradition Act 1989, which provides as follows:

"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that ...

(b) By reason of the passage of time since he is alleged to have committed it ... it would, having regard to all the circumstances, be unjust or oppressive to return him."

6. As far as the law is concerned, both the applicant and the respondent are in agreement that the principles can be shortly summarised as follows. Firstly, as to the meaning of unjust and oppressive, this was considered by Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, where his Lordship said at page 782:

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair."

7. The injustice or oppression alleged by an applicant in circumstances such as these must, as explained by Lord Fraser in R v Governor of Pentonville Prison, ex parte Narang [1978] AC 247, be the result of the passage of time.
8. In determining whether or not there is injustice or oppression in any given case, clearly the reasons for the delay may be of themselves material factors. However, as explained by Sedley J, in the case of Re Ashley - Riddle, a decision given on 22nd November 1993, a transcript of which has been provided:

"... excusable delay, if its effect meets the statutory test, may require discharge; and inexcusable delay, if its impact on the person sought is not within the mischief aimed at, may fail to do so."

9. It is also important in the context of this case that no account should be taken of any periods of delay which were the result of the applicant himself deliberately avoiding the authorities. Any such delay clearly could not be allowed to be used to his advantage.
10. With those principles in mind, it is necessary to look at the way in which the applicant puts his case. Firstly, it is said that the delay itself has produced injustice in the sense described by Lord Diplock, and that, of itself, should entitle this applicant to release. For the moment, putting to one side any issue as to who was responsible for or the reasons for that delay, the question arises as to whether injustice can properly be said to have arisen by reason of the delay in the circumstances of this case.
11. The evidence which the Australian authorities have put before the magistrate and is before us in relation to the offence with which they seek to charge the applicant is a relatively short compass. It consists of the evidence of Mr Reynolds and the evidence of a tape recording which Mr Reynolds made of a conversation between himself and the applicant which, on its face, appears to be thoroughly incriminatory as far as this applicant is concerned. There is also the evidence of the police officer who arrested the applicant in this country, Detective Sergeant Knapp, who, if he were to be believed, received an admission of guilt from the applicant after he was told that he was arrested for an offence of robbery. The applicant is said to have replied, "Give us a break, don't frighten me, it wasn't an armed robbery. I drove in, picked up the gold and drove off through the bush. It's been nothing but fucking aggravation. I only got £260,000 for it which was split three ways."
12. It is certainly the case that as far as that evidence is concerned, the passage of time is unlikely to create any difficulties in the applicant being able to deal with it. It seems to me that the only matter which is of any significance in this context is that, the applicant's former wife, who was said to have been implicated by Mr Reynolds, is not available to give evidence, in that it is unlikely that she would wish to help him. That seems to me to be a very tenuous basis upon which to suggest that any injustice would arise if the matter were to proceed to trial. There is no material before us to indicate what she could say which would help the applicant; indeed, it may or may not be the case that at the end of the day, were the matter to proceed to trial, he would be better off without his former wife rather than with her as a witness.
13. I turn therefore to the other basis upon which it is submitted on behalf of this applicant that he should be released; namely, that the passage of time has resulted in oppression which should justify this court in ordering his release. That requires me to consider in a little bit more detail, firstly, the history of the matter to indicate the circumstances which have given rise to the delay, and, secondly, to look at what is the central thrust of the applicant's case in relation to oppression, which is that it would have a significant effect on his 32-year old son, Ryan, who is suffering from schizophrenia and, it is said, for whom he is now the sole person who can exercise care which would ensure that his schizophrenia is as controlled as possible.
14. The delay is quite clearly very substantial in this case. However, it is important to note that, first of all, it was not until Mr Reynolds was arrested in 1991 that the Australian authorities had any evidence to suggest that the applicant was responsible for the offence. Thereafter there was certainly some difficulty in collating the material sufficient to justify a request for extradition, and it may be said that, to some extent, the authorities were dilatory in that respect, but that was only in relation to the short period between July 1991 and November 1992.
15. As it happens, according to the applicant, he had left England by that time. The history as to where he had been living since the alleged offence was that he had left Australia, where he had been living with his former wife, in May 1988 and he had come back to this country, which was his original home, and lived here until 1991. He had obtained a substantial amount of money from the sale of his businesses in Australia, and, as a consequence, he decided that he would have a more pleasant lifestyle were he to live in Spain, and accordingly there he went. It is unclear from any of the evidence before us where he went to in Spain. That detail has not been vouchsafed either in affidavit form or in any other part of the evidence before us.
16. Between 1991 and 1995 it would appear as though there was no significant contact between the Australian authorities and the English authorities in relation to the applicant or his whereabouts. However, in the meanwhile, on 26th June 1994, his former wife returned to Australia, was arrested at Perth and charged with the offence in question. It is surprising to say the least that in the material before us there is no indication that that stimulated the Australian police into asking the English authorities to make efforts to discover the whereabouts of the applicant. In fact, in 1995 it is clear that the English authorities did have some knowledge of the whereabouts of the applicant. The Australian authorities were informed that the English police were in contact with the applicant and, indeed, had had a meeting in relation to an investigation in which the English police were engaged on the French/Spanish border. From the material that we have, it does not appear as though the applicant indicated at that stage where he was living, although in a letter written by the Metropolitan Police to the Western Australia Police on 3rd July 1995, they said that the applicant, in a telephone conversation "claimed, at that time, to be in South America."
17. The next event of significance was that in January 1996 the applicant's former wife was acquitted at her trial. The evidence against her was essentially the evidence of Mr Reynolds. There was other evidence, including tape recorded conversations, but they were, it would appear, not nearly as incriminating as the telephone conversations which Mr Reynolds had with the applicant.
18. At some stage in 1996 it would appear as though the Australian police did receive information that the applicant was believed to be residing in Spain but his address was unknown. It is therefore clear that in 1995 and 1996 the Australian authorities had sufficient information to know that the applicant could be in Spain. They took no steps to seek him in Spain, according to the material that we have, on the grounds that they felt there was no certainty that he was in Spain. There was insufficient information which would enable them, therefore, to be sure that there would be time to take any steps which could be effective.
19. In 1998, however, the applicant emerged, so far as the Australian authorities were concerned in relation to this offence, in the sense that inquiries were made on his behalf by a solicitor, Mr Hughman, as to what the position was in relation to the extradition request that had been made in 1992. Mr Hughman wrote, it would appear, three letters, one in June 1998 and two in October 1998, to the authorities in Western Australia making that request. At about the same time as those inquiries were being made, the applicant had essentially done two things himself. Firstly, in March 1998 he had written to a Mr Davis, an English police officer, indicating that he would like help in relation to the charges that, he said, "I am soon to be facing in Australia". It would also appear as though, at about that time, he himself went to Australia, and did so, according to the information that we have, using a passport in his deceased brother's name, Douglas Cook. Whilst in Australia it is plain that he, for whatever reason, completed a tax return, applied for a fishing licence and obtained medical insurance. He was not, in fact, in Australia for long. It would appear as though he was there from February 1998 to April 1998 according to the immigration records, and then from 1st July 1998 to 8th September 1998. The inquiries made by Mr Hughman by letter produced an answer on 26th October from Detective Constable Bullimore of the Organised Crime Group, in which DC Bullimore said:

"I have made enquiries into this matter and should your client wish to make himself available extradition proceedings in Australia will be instituted."

20. The applicant himself sent a letter by facsimile to DC Bullimore on 10th November, saying:

"Thank you for your recent enquiry on my behalf to the West Australia Police Dept.

This enquiry was brought about by me bumping into Peter Hughman in Spain. He suggested to me to try to help me sort out my problem in Australia. It was good of him, as I had not seen him for some 8 years and he tried to assist me in my dilemma.

I am unsure of my future plans and will advise you accordingly, by fax at your office.

My apologies if I have wasted your time. I did not intend to cause any problems or wasted work on your part.

I am not sure if I will ever return to Australia. I am quite happy in Spain."

21. Despite what was said at the end of that letter, the applicant has sworn in the affidavit in support of his application that he had returned to this country by mid-1998. It would therefore, on its face, appear as though the applicant was seeking to suggest to the police that he was still in Spain at a time when he was clearly in this country.
22. The applicant was, at the same time, in contact with an Inspector Lavender of the West Australian Police, again, clearly seeking to find out how the land lay in Australia. The communications culminated in a letter of 6th April 1999, sent by facsimile and purporting to come from Spain, in which he said as follows:

"I Anthony Cookeson wish to return of my own free will to face the charge made against me by the W/A Police Force. I wish to surrender myself and plead guilty to the charge.

I make one request in the humblest possible terms and that is that I be allowed to stay in Australia at the end of my sentence and that no deportation order be made by any Australian government department. This request and subsequent answer be in writing, please. Thank you."

23. It was clear, therefore, to Inspector Lavender that, as far as he could tell, the applicant was still in Spain. As a result of that, during the course of the summer of 1999, the Australian authorities sought the assistance of Interpol, asking for the applicant's address in Spain to be found if that were possible. However, the waters were then muddied, as far as the Australian authorities were concerned, by a facsimile from the English authorities saying that the applicant was then believed to be residing in Liverpool or Manchester. As I have already indicated, the applicant was eventually traced and arrested on 30th June 2000.
24. It is said on behalf of the applicant that, as far as that delay is concerned, it is a delay which either in total, or at least substantially, can be laid at the door of the Australian authorities, on the basis that they acted in a dilatory fashion and never took the appropriate steps to seek and eventually obtain the arrest of the applicant. It is pointed out that there is no indication of any activity at all between November 1992 and the correspondence to which I have referred in 1995, and that nothing was apparently done of any significance from 1996 until the correspondence, again to which I have referred, in 1998. It follows, it is said, that this court should be slow to categorise the delay of that length as being delay which is other than oppressive to this applicant.
25. Dealing for the moment with the applicant himself, and simply concentrating on the effects of the delay on him, it seems to me that that submission is one without any foundation. Firstly, as far as the defendant's own activities were concerned, the material to which I have already referred suggests strongly that the applicant was seeking to keep as low a profile as he could, well knowing at all material times that he was wanted for the offence in Australia; that he did everything that he could to create difficulties for the Australian authorities in knowing where he was; and, that he was, in particular, during the period in 1998 to which I have referred, clearly showing that he was prepared to manipulate the system to his best advantage, as I say, well knowing that he was wanted for the offence. It follows that he does not fall into the category of a person who has, by reason of delay on the part of the authorities, been lulled into a false sense of security resulting in his developing a new life which could properly be said to be a life in which he expected he would not be required to face the consequences of the offence which he is said to have committed.
26. That is unlike the case of Kakis, in which the applicant, having left Cyprus, which is where he was said to have committed a murder, had been able to rebuild a life in this country for himself and his family openly and with the apparent approval of the authorities. Quite the contrary. This is a case in which the applicant, it seems to me, has clearly indicated that he expected that, if he were to be caught, he would have to face trial in Australia at which the indication he was giving was that he would plead guilty and accept whatever punishment was imposed by the Australian court. There would therefore, if that was all the material that was before us, be no question of my concluding that the passage of time had resulted in oppression to him.
27. However, the applicant's son Ryan, to whom I have already referred, is an extremely ill man. The evidence that we have before us from the consultant psychiatrist who has been treating him, that is Dr Harrison-Read, is best summarised by the last few paragraphs of the report which he has provided to this court:

"Ryan is a 32 year old man with a 15 year history of serious and enduring mental illness (schizophrenia). His illness is characterised by severe impairment in all four mental domains affected by this psychotic disorder (reality distortion, mental impoverishment, mental disorganisation and cognitive impairment). The deteriorating nature of Ryan's illness has been exacerbated by his previous poor adherence to psychiatric treatment. This fortunately has been arrested and improved in the past 18 months since Ryan has been maintained on long acting injections of antipsychotic medication. However Ryan is likely to remain severely disabled for the rest of his life, and even with optimal treatment will continue to show severe, fluctuating impairments and disturbance.

Throughout Ryan's time in the UK, his principal carer has been his father who, with Ryan's younger brother Neil has done his best to support Ryan and encourage him to adhere to psychiatric treatment. Ryan's father made considerable efforts to engage him in treatment initially, including bringing him to England in 1998 for the purposes of getting him psychiatric treatment in the NHS. Ryan's father's removal from the scene in the summer of 2000 was a major blow to Ryan and the situation was made more difficult for Ryan as initially he felt unable to tell his care workers about the true nature of these developments. At about the same time as his father's arrest, for reasons unclear to me, Ryan's brother refused to continue as his principal carer, and Ryan was made homeless. Initially Ryan did surprising well despite these very adverse circumstances, and this has been in no small part due to the devoted care of his CPN who has kept in regular contact with him despite his living outside our catchment area. Ryan has continued on depot injections of antipsychotic medication, and despite the severe stresses that he has been undergoing as a result of his father's removal to prison, he has avoided an acute exacerbation of his psychotic symptoms until recently. However he has now suffered another serious mental breakdown and is currently in hospital.

It is hoped that Ryan will soon be rehoused in some form of permanent accommodation. In the absence of any of his father or his family members to care for him, the care that he receives will have to come entirely from statutory services which in Brent are severely restricted. Ryan would need to live in sheltered accommodation preferably with care from staff available 24 hours per day. This care could be much more effectively and satisfactorily provided by Ryan's father if he were free to do so. Ryan has previously also depended on his father for financial support, and his quality of life is bound to fall if he were to rely instead entirely on state benefits.

Despite the severity of Ryan's schizophrenic illness, including periods when he has been seriously behaviourally disturbed, self-neglected and expressing suicidal ideas and self-damaging behaviour, the support of his family, and especially that of his father, has for the most part allowed him to remain living in the community. In the past ten years or so he has only required relatively infrequent and brief periods of hospitalisation and this relatively positive outcome is in no doubt partly due to his father's material and emotional help and support. Although initially Ryan reacted only mildly to his father's removal, it should be noted that it has already been necessary on two occasions to admit Ryan to hospital since his father left. It may only be a matter of time before the negative impact on Ryan's mental health of his father's absence takes even greater effect, with the likelihood of a substantial deterioration in the course of his already serious schizophrenic illness. Episodes of acute mental and behavioural disintegration with self-neglect and self-harm will then be even more likely. Even more worryingly, Ryan's tendency to have pessimistic and hopeless thoughts and to blame himself for his family's troubles is likely to be exaggerated, raising the already high risk of suicide posed by a person with schizophrenia. Finally, Ryan made it very clear to me when I last interviewed him on 4th January 2001 that he misses his father very much and urgently needs his father to care for him."

28. The gloomy prediction of Dr Harrison-Read unhappily proved to be correct. On 18th January, that is very shortly after that report was written, Ryan set fire to himself. Fortunately, it would appear that his life was not threatened, but he was admitted to hospital with burns to his chest and back which will require inpatient treatment for some time yet.
29. It seems to us that the report makes clear two things in particular. Firstly, the illness from which Ryan suffers has progressively deteriorated. That means that the need for care has progressively increased. The passage of time, therefore, since 1988, when this offence was allegedly committed by the applicant, has resulted in a significantly increased need for care for Ryan. Secondly, it is clear from the report that, certainly on the material that the doctor had, the applicant is the only person other than the statutory authorities who can provide him with that care.
30. I have to confess to having some hesitation in accepting the doctor's views in that regard, simply because of the fact that the material before us suggests to me that anything that the applicant says has to be approached with caution. A significant amount of the material upon which the doctor came to the conclusions that he did was material which was provided by the applicant. There is no doubt, for example, that the doctor's assertion that throughout Ryan's time in the United Kingdom his principal carer had been his father is unlikely to be correct. It would appear as though the principal carer in the United Kingdom was in fact Neil, the brother, who, according to the doctor, has now indicated that he is no longer prepared to provide that care.
31. Despite that reservation, I have come to the conclusion that there is a very real risk that Ryan will suffer significantly if his father is not available to provide care for him. The risk is clearly unquantifiable, and it is possible that there may be other ways in which care could be provided for Ryan which would secure as good an outcome as may be possible for him. But, at the end of the day, I have come to the conclusion that the very real risk of deterioration in Ryan's health which would result from the applicant being removed to Australia is such as to cause oppression to him, and through him to the applicant, which is sufficient to meet the requirements of the section, as a result of which, in my judgment, this court is duty bound to order his release.

MR JUSTICE POTTS: I too share the reservations expressed by my Lord regarding this applicant, but, for the reasons that he has given, I agree with the conclusion that he has reached.

MR HARDY: My Lords, there is one short application. It is this: as your Lordships will know, under section 5 of the Administration of Justice Act 1960, your Lordships have power to order the continued detention of an applicant for habeas corpus in proceedings such as these until the Government determine whether or not they wish to seek leave to appeal to the House of Lords. If I may respectfully say so, given the nature of your Lordship's judgment, I can say with a degree of some certainty that it is unlikely that the Government would seek leave to appeal. Nevertheless, purely for the courtesy of being able to take formal instructions from my lay client, I would invite your Lordships to consider making an order which would result in the detention of Mr Cookeson until no longer than Tuesday of next week. On that day, I do not know whether your Lordships are still constituted next week, matters could be dealt with, if your Lordships would permit, by the making of written submissions, namely either a notice of motion would be given as an application for leave to appeal, or, if I may say so, more probably, notice could be given that no such application would be made and therefore the full effect of your Lordship's order for discharge would take effect.

LORD JUSTICE LATHAM: What are you going to say, Mr Knowles?

MR KNOWLES: Detention can either be in custody or on bail. If your Lordships were minded to order some form of detention under section 5, we would invite your Lordships to grant unconditional bail, and then that can lapse if my learned friend's lay clients decide not to pursue this matter to the House of Lords. Clearly, in view of the situation, we are anxious, given that he has been in custody for a long time, to secure his release as soon as possible.

LORD JUSTICE LATHAM: I have assumed from the documents that Ryan is still in hospital.

MR KNOWLES: He is, yes.

LORD JUSTICE LATHAM: We direct that the applicant remain in custody until Tuesday. I better give a time, I will say midday on Tuesday.

MR KNOWLES: Finally, may I have legal aid taxation?

LORD JUSTICE LATHAM: Certainly.