England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2
		Wednesday 22 May 2002

1. LORD JUSTICE SEDLEY: Mr Justice Gage will give the first judgment.
2. MR JUSTICE GAGE: This is an application for a writ of habeas corpus in extradition proceedings which have been concluded against the applicant. The three extradition crimes upon which he was committed are three offences of what, under English law, would be theft of Deutschmarks between January and March 1994. This is the second committal of the applicant in respect of these alleged crimes.
3. The applicant is now aged 51 and was born in Kittna in the Punjab, India. In 1962, aged 12, he came to this country and has lived here ever since. He married in November 1978 and has three children. On 6th August 2000 his wife died and he now lives in the family home with his three daughters. They are Tina, who is aged 21 and studies at Kings College London, Reena, aged 19, studying at South Bank University, and Esha, aged 14, who attends a secondary school in Chigwell.
4. In October 1976 the applicant set up an agency selling airline fares in Frankfurt. In 1985 he and his business partner bought an IATA agency, Altstadter Reiseburo GmbH, ("ARG"). The agency sold airline tickets as agents for IATA. In short, the procedure operated was that the agent, after checking the availability of seats, sold a ticket or tickets to the customer. The ticket was sold at the standard fair for the journey as advertised by the airline or IATA. The agent had to account to IATA the value of the ticket sold to the customer. On the 15th of each month the total sums due from all sales in the preceding month had to be paid to IATA. However the amount due to IATA had to be reduced by commission paid by IATA to the agent. The applicant in his witness statement states that the commission due from IATA to him was 9 per cent. He also states in his witness statement that the sum due to IATA was further to be reduced by an override commission of 30 per cent, a sum representing commission payable to the agent by the airline.
5. The alleged offences are in respect of sums which should have been paid to IATA in respect of the months January, February and March 1994. Those sums were due respectively on 15th February, 15th March and 15th April 1994. It is alleged that the total of the sums due for each of the three months was stolen from IATA.
6. In October 1997 the applicant was arrested on a warrant issued in this country on 17th October 1997. Committal proceedings followed and in April 1998 he was committed to await the decision of the Secretary of State as to his extradition to Germany. This was the first committal. He made an application for a writ of habeas corpus which was heard by the Divisional Court on 26th November 1999. Judgment being given on 15th December. The court rejected the challenges to the extradition warrant made under section 11(3) of the Extradition Act 1989, but remitted the case to the magistrate so that the charges could be amended on what the court regarded as a technical matter concerning the date of appropriation in respect of each charge. The court expressed the view that the matter should proceed speedily to second committal proceedings.
7. The Divisional Court refused leave to appeal to the House of Lords, but the applicant petitioned for leave and after hearing oral argument on 10th May 2001 leave was refused. On 10th July 2001 the magistrate committed the applicant on the amended charges to await the decision of the Secretary of State. On 24th January 2002 this application was made and by these proceedings the applicant challenges the second committal.
8. There is some overlap in the grounds on which the committal is challenged with the grounds relied on in the challenge in the first committal. Further evidence has been filed by the applicant, but the factual basis for the warrant of committal remains precisely the same, save for the amendment of the charges.
9. The applicant now relies on three grounds pursuant to section 11(3) of the Act. The section 11(3) grounds are as follows: (1) the trivial nature of the offence; (2) the passage of time since the commission of the alleged offences; (3) alleged lack of good faith in the interest of justice; and the applicant contends that having regard to all the circumstances in respect of all or of any of the grounds it would be unjust or oppressive to return him to Germany.
10. I deal first with the trivial nature of the offences. At the first hearing before the Divisional Court the applicant challenged the fact that the offences amounted to offences under English law. Several points were relied on, the principal one being that there was no appropriation. The court rejected these arguments, but, as I have indicated, remitted the charges to the magistrate so they could be amended to alter the timeframe in respect of each charge.
11. In support of the submission that ground 11(3)(a) is established the applicant now submits that the offences charged are of a trivial nature. In his witness statement the applicant contends that the total sum of DM 3,759,521.70 alleged to have been stolen should be reduced for a number of different reasons. First, he alleges that the total should be reduced by 49 per cent to take into account commissions due to him and sums guaranteed by ARG to IATA. The result and figure he contends for is DM 332,356.1.
12. He further alleges that on the date on which ARG went into liquidation it was owed VAT reimbursements of sums sufficient to extinguish the remaining balance alleged to have been stolen. On this basis Mr Alexander Cameron, for the applicant, submits that the offences are so trivial as to establish the ground under 3(a).
13. Mr Cameron made the further submission that the applicant operated an accounting procedure which was known and acquiesced in by IATA. In my judgment, this submission is nothing to the point. It may or may not provide defences to the criminal charges but for the purpose of this application it cannot support an argument that the offences are trivial.
14. Finally, he relied on a report produced in May 1996 dealing with the bankruptcy which, in his submission, casts a much less serious light on these offences.
15. The respondent disputes the sums to be deducted for commission. He contends that the 49 per cent contended for by the applicant includes a figure of 30 per cent override commission which were properly collected by IATA on behalf of the airline and then payable by the airline as commission to its agent. Accordingly, it is submitted by Miss Malcolm, for the respondent, that the total sum alleged to be due is correct. So far as the VAT is concerned, she has received further instructions today about that matter but, in my judgment, it remains still opaque. The respondent is unable to provide any hard information about that principally for the reasons that disclosure to the prosecution is not permitted under German law.
16. Accordingly, it is submitted by the respondent that these are not trivial offences. The statutory maximum sentence in respect of these offences appears to be five years, save in offences described as especially severe in respect of which the sentence is from one to ten years. In the course of argument both counsel accepted my Lord, Sedley LJ's description of these offences which was that whilst not trivial they could not be described as crimes of the century.
17. Mr Cameron, whilst accepting that the minimum sum due after deduction of commission of sums guaranteed was the equivalent of £100,000, nevertheless contended, as I have indicated, that the sums would have been extinguished by VAT repayments.
18. For my part, I find it difficult, if not impossible, on the evidence, to resolve the dispute on which is the correct sum. It may be that ultimately the loss will be less, maybe much less, than the sum alleged by the respondent. What is clear is that these offences cannot be described as of great gravity. Miss Malcolm in the course of argument conceded that in this country they might have been charged as fraudulent trading.
19. On the material before the court in respect of this ground I conclude that the facts relied on on their own do not establish that the offences are so trivial as to make it unjust or oppressive for the applicant to be returned to face trial in Germany, albeit that they are not serious.
20. I shall deal next with the ground of lack of good faith under section 11(3)(c). In support of this ground the applicant relies on seven factors. They are set out in his witness statement and were helpfully summarised by Mr Cameron in his skeleton argument. They are, first, the nature and extent of the allegation made against the applicant, which it is said could have been dealt with by civil proceedings rather than prosecution. Second, it is alleged that a German national, Mr Roer, in similar circumstances, but with a larger financial shortfall, was not prosecuted but was the subject of civil proceedings. Third, Mr Choudry, a Pakistani national, is said to have been prosecuted, although the applicant claims that a judge found that there was no case for him to answer. Fourth, the applicant alleges that his business was subjected to harassment by the German revenue authorities in 1981. Fifth, it is said that the applicant and his late wife were the subject of ill-treatment by the German immigration authorities. Sixth, the applicant asserts that he has been unfairly treated by the VAT authorities. Seventh, the applicant states that whilst on bail he was arrested on entry to India on an international warrant in respect of these matters despite the fact that he had made an unhindered previous trip to India whilst on bail.
21. Mr Cameron accepts that the first six matters were before the first Divisional Court, however they were apparently not proceeded with because the respondent had not been given sufficient notice so as to deal with them. Accordingly, the applicant abandoned this ground and that fact is recorded in the judgment of Turner J. I am bound to say that, for my part, I find it difficult to believe that if the counsel at that hearing, not Mr Cameron, had real faith in this ground he would have abandoned it in those circumstances. Whatever may have occurred at the first hearing, these matters are now relied on by the applicant at this hearing.
22. The respondent filed some evidence at the first hearing which dealt with some of the six factors relied on by the applicant. The responses are contained in a letter from the Public Prosecutor's Office dated 9th September 1998. They consist of a number of short bald statements. It is said that search operations by the revenue authorities in 1991 are not connected with the present proceedings; that is the fourth allegation. It appears to be denied that difficulties were created in respect of visas (fifth allegation) although this is put on the basis that the author of the letter had no information that there had been such difficulties. Generally, the allegation of bad faith was denied. Significantly, at that stage, no response was made to the allegations that I have mentioned as 1, 2, 3, 6 and 7. Mr Cameron submits that this lack of response, at that stage, is significant.
23. During the course of argument on the previous day's hearing we took the view that the absence of response to these points was unsatisfactory. We allowed time for the respondent to provide such evidence as it could in relation to these matters.
24. Today the following further information has been supplied. We have been supplied with a letter from the prosecuting authorities, but the contents are somewhat vague and still rather unsatisfactory. The respondent complains in the letter that it has had little time to deal with these allegations but, in my judgment, whoever is to blame for the shortness of time that cannot be laid at the door of the applicant. These matters were raised by the applicant some little time ago and the way that they have been dealt with might indicate that the respondent has not taken either them or this matter very seriously.
25. Be that as it may, in respect of allegations made under 11(3)(c) we have been referred to observations made by Woolf J (as he then was) in re OSMAN, an unreported decision, but we have now seen the transcript. The passage we have been referred in the judgment of Woolf LJ reads:

"..."good faith" has to be given a reasonably generous interpretation so that if the proceedings were brought for a collateral purpose, or with an improper motive and not for the purpose of achieving the proper administration of justice, they would not be regarded as complying with this statutory requirement. Likewise the accusations would not be made in good faith and in the interests of justice if the prosecution deliberately manipulates or misuses the process of the court to deprive the defendant of a protection to which he is entitled by law."

26. The inference which the applicant invites this court to draw in respect of the seven factors relied on is that the respondent deals more severely with non-nationals, particularly Asians, than with German nationals. It is a very serious allegation to make.
27. In my judgment, before a court accepts that this ground is made out, it must be satisfied by detailed and cogent evidence. In this case the allegations made by the applicant were never very specific or detailed, particularly those referring to the treatment of other Asians and the treatment of a German national. It may have been difficult for the respondent to make detailed responses to these allegations, but, in any event, for my part, I am not satisfied that the evidence relied on by the applicant is of such quality to justify a finding of bad faith. I would therefore reject the applicant's case on this ground.
28. I turn now to the final ground, namely delay. The applicant accepts that this is really the central plank of this application for habeas corpus. It is further accepted that in the application to the first Divisional Court this ground was restricted to four matters. They were, first, the fact that the claimant had travelled to and from Germany between 1994 and 1997. It is said that this engendered in him a false sense of security because he was allowed to come and go without restriction by the authorities. Secondly, the loss of business documents and records during the period of delay; it is submitted that the company records are no longer available having been destroyed by an employee. Thirdly, the loss of evidence of witnesses; these witnesses were his business partner, Mr Anwar Saeed, and, importantly, the office manager, Mr Heinz Stingle, the only German employee in the business. Fourthly, the applicant's ill health; in this respect there was some medical evidence that he was diabetic.
29. These matters have now been further developed in this application in the following ways. A further two years and five months have passed, this period is to be added to the previous five and a half years, making a total of approximately eight years. It is submitted that there is culpable delay on the part of the respondent for the period 1994 to 1997.
30. Since the first committal the applicant's wife has died and the applicant's health has further declined, otherwise the material relied upon is the same as relied upon in the first hearing. The applicant submits that the judgment of the court following the first hearing did not deal with the test of oppression under 11(3)(b). There are references to oppression and hardship in Turner J's judgment, but Mr Cameron contends that the aspect of oppression was only put forward on a limited basis.
31. Before this court additional facts are relied on as establishing this ground. It is submitted that these additional facts, added to the facts placed before the first Divisional Court now make it both unjust and oppressive for the applicant to be returned. Specifically the applicant's wife who was ill at the time of the first hearing has died. She might, although there is no evidence to this effect, have been able to assist as a witness in the criminal proceedings. More importantly, the applicant is now left on his own to look after his three daughters.
32. Next there is evidence that the applicant's health has deteriorated. In addition to the evidence of diabetes, before the court there are now five medical reports which show that the applicant's eye sight has been affected by his diabetes. Doctor Victor Chong examined the applicant in July 2001. In his report he states:

"On examination on the 5th July, his visual acuities were 6/36 in both eyes (which is approximately 16% of normal vision), fundal examination revealed bilateral extensive diabetic maculopathy which was confirmed by fluorescein angiogram."

33. The doctor explained that there was a possibility of slight improvement following initial laser therapy, but there was a risk of further deterioration in his sight. The long-term visual prognosis was poor.
34. Today the court has been furnished with a further report. It is dated 21st May 2002 and is a report made by his GP, a Dr V Sehra. In that report she states:

"He still suffering with the same health problems but his eyes problem has worsened. He has seen the Ophthalmologist and his maculopathy has gone worse. Left eye is worser than right eye. The prognosis of his vision seems poor as per consultant's report from Moorfield Hospital. He is waiting for his laser treatment for his left eye. He has appointment on 27th June '02 for follow up of his diabetic retinopathy. His vision has deteriorated further and is unable to read accurately."

35. She also reports that on 2nd May he was admitted to King George's Hospital with chest pains. Apparently, the diagnosis is a probable ischaemic heart disease, but he is awaiting a further appointment to see a cardiologist and physician. The doctor finishes her letter by saying:

"On the whole his eyes are getting worse as a complication of diabetes and in addition has got his heart involved as well and is getting ischaemic symptoms. I do not think there is going to be much improvement in his vision. He does need further intervention with regards to his heart problem for which he is awaiting the appointment."

36. Mr Cameron submits that the applicant would have difficulty in properly reading documents in order to defend himself in respect of these charges. Further, he relies on this evidence as making it oppressive for him to be returned in view of these physical handicaps.
37. Miss Malcolm, for the respondent, submits that there was little new information put forward from that which was before the original Divisional Court. She submits that there are no details of the defence such that the court could see which issues in the criminal proceedings are likely to be affected by the loss of documents. In any event, there is evidence from the respondent that a large number of documents are available from banks and others retained in the bankruptcy proceedings. She submits that no attempt was made at any stage to obtain witness statements from those who have now died. Further, she submits that the German authorities must be assumed to be able to treat appropriately the applicant's physical handicaps at trial, as well as providing medical assistance. In short, her submission is that it has not been sufficiently established on this ground that it is either unjust or oppressive for the applicant to be returned.
38. So far as the new matters raised are concerned, in my judgment they are not sufficient to show circumstances are such as to make it unjust for the applicant to be extradited by reason of delay. In reality, the only additional material that the applicant put forward before this court is the applicant's visual deficit. There is no evidence at all that his wife would have assisted him in any way in his defence and so far as his health is concerned, I see no reason to suppose that the proceedings will be conducted in any way that fails to make allowances for his physical disabilities. In the circumstances, for my part, I am not persuaded that the new material, added to the material before the original Divisional Court, make it unjust to return the applicant on the grounds of delay.
39. In respect of oppression, in my view, the matter is less clear-cut. Here, in my opinion, the applicant's physical condition is more relevant and more important. In addition, although as Miss Malcolm points out the applicant's children are now much older and able to look after themselves, the youngest is still only 14. It would inevitably be some hardship for both the applicant and his family if he were returned to Germany to face trial, thus being away from this country for an indefinite period.
40. Further, his medical condition is such that it requires continual treatment and monitoring. I have no doubt that such treatment would be available in Germany and of equal quality as in this country, but there would still be some hardship for the applicant having to change to a different set of medical advisers. The question is: do these facts caused by the delay amount to oppression under section 11(3)(b) of the Act?
41. Mr Cameron also argues that they should be taken cumulatively with all factors relied on in respect of all of the grounds making it, in the circumstances, either unjust or oppressive or both for the applicant to be returned. In reaching my conclusion on this submission I leave out of account the material in respect of bad faith. For the reasons which I have expressed, in my judgment, that ground is not made out. However, although as I have stated the ground under 11(3)(a) is not made out to the extent that individually, with the circumstances, it would be unjust or oppressive for the applicant to return, there is, in my opinion, sufficient material respectively for arguments on their cumulative effect of delay, added to the nature of the offences, to be considered seriously.
42. In the end, weighing the matter up, for my part, I am satisfied that all the circumstances are such as to make it oppressive for the applicant to be returned. Whereas I have not found the offences to be so trivial as on their own to make it unjust or oppressive for him to be returned, I accept Mr Cameron's submission that the court is entitled to look at the oppression caused by the delay against the background of the offences for which extradition is sought.
43. As I have already said, they are not grave offences and the evidence suggests that they are not treated as very grave offences by the German authorities. Against that background, it is, in my view, oppressive after eight years to return this applicant to face trial in Germany on these charges. He is in poor health and is the sole parent of his three daughters not yet fully fledged and whom, no doubt, would expect help and support from him for a number of years yet.
44. These factors, in my mind, tip the balance in favour of the applicant in showing that the ground under 11(3)(b) is made out and that the circumstances are such as to make it oppressive for him to be returned.
45. Accordingly, I would discharge the committal.
46. LORD JUSTICE SEDLEY: I agree with Gage J that this application for habeas corpus succeeds on the ground that by reason of the passage of time it would be oppressive, in the particular circumstances of this case, to return the applicant for trial in Germany.
47. I want to add a footnote about the assembling of evidence for this court. As Gage J has recounted, the applicant set out his case in writing, for present purposes, in January 2001. It included allegations which could not be called wild but were unparticularised and which might have indicated a differential prosecuting policy in relation to similar offences, the difference arguably being associated with ethnicity. Such an allegation is a serious one, capable of impugning the good faith of the requesting state. Unless it is plainly untenable it requires attention and requires an answer. The applicant's evidence received neither from the requesting state. We were sufficiently concerned about this to adjourn the hearing on 15th May so that the German Government could look at the allegations and at the further allegation that the applicant's business was owed enough in overpaid VAT to offset much or all of its debts.
48. Today, Miss Malcolm has been able to put before us the German Government's response. It is, however, dated 21st May, that is to say yesterday, and it was sent in reply to a message faxed only on 20th May. Gage J has given his appraisal, with which I agree, of the contents of the reply. It is right, however, to place on record that the Crown Prosecution Service responded to this court's wishes by sending the appropriate request for information through the correct diplomatic channels on 16th May; that is to say the morning after we had adjourned this case for that purpose. It was when on 20th May no response had come that the CPS took the sensible course of faxing the German prosecutor direct. I am not surprised that the prosecutor's reply (written in, if I may say so, excellent English, for which we are grateful) complained of the short notice.
49. The fault, it needs to be said, did not lie here. The reason for the adjournment having been a week and no more is that this court does not make a habit of adjourning part-heard cases for more than a minimal period, for obvious reasons. The seven-day adjournment would, if properly used, have been enough to allow fuller research and response than in the event was possible for the public prosecutor in Germany.
50. In the event, nevertheless, enough has been ascertained to make it clear that we would not be justified in drawing any inferences pointing to bad faith from the evidence before us. It would have been very much better and, from the point of view of the requesting state, a great deal safer if the applicant's allegations had been addressed in detail a year or more ago when they should have been. Requesting states cannot expect to be helped out by this court if they do not do so and leave it until it is really too late to respond.
51. The writ of habeas corpus will, therefore, issue to procure the production before this court of the applicant, and pursuant to section 11(3) of the Extradition Act 1989 he is to be discharged forthwith in relation to the offences for which he is sought by the Government of Germany.

MR CAMERON: My Lord, I am very grateful. May I ask for an order for taxation of legal aid costs?

LORD JUSTICE SEDLEY: Do you have any duty to the fund?

MR CAMERON: I am sorry, my Lord?

LORD JUSTICE SEDLEY: Normally the fund, I think, expects to be indemnified if it properly can be.

MR CAMERON: I am grateful, my Lord.

LORD JUSTICE SEDLEY: Well, no, your gratitude is misplaced, Mr Cameron.

MR CAMERON: It may be that I have misunderstood.

LORD JUSTICE SEDLEY: Ordinarily, a publicly-funded applicant has an obligation to the Legal Services Commission to recover the costs which they are going to pay on assessment to the applicant's lawyers if you can decently do so, unless the LSC has given you authority not to do so. What is the situation here?

MR CAMERON: Well, I do not understand that the LSC has given me authority not to do so.

LORD JUSTICE SEDLEY: Ordinarily the court does not meddle in counsel's judgment as to whether it is appropriate or not to apply for costs, but hearing that you are publicly funded, it comes as a matter of some surprise to know that having won the case you are not seeking to recover the LSC's costs. Do you have instructions?

MR CAMERON: I do not, my Lord. Would your Lordship give me a moment? My Lord, I have no instructions. So if the position is -- well, then in those circumstances perhaps the appropriate application to be made is for an application for the costs against the respondent.

LORD JUSTICE SEDLEY: Well, it may be. I think both of us are surprised that you have not made it and given that you are publicly funded, I think the court perhaps has some monitoring interest in making sure that at least we hear such an application. There may be a perfectly good answer to it.

MR CAMERON: My Lord, having considered the position, I am not instructed not to make such an application and given the encouragement that I have had from the court I think that is the appropriate application to make and therefore I make it. I am sorry, my Lord, it has come in such a roundabout way.

LORD JUSTICE SEDLEY: Miss Malcolm, what do you say about it?

MISS MALCOLM: My Lord, my understanding is, although a quote of authorities may correct me, but my understanding is that there are only two options: one would be costs out of central funds for a legally-aided applicant and the other would be costs against the respondent in the usual criminal terms, that is to say that this court finds cost have been incurred as a result of unnecessary or improper action on behalf of the German Government.

LORD JUSTICE SEDLEY: Yes. Well, either way, it matters to the Legal Services Commission. It may just look like public money to us, but these are ring-fenced budgets. The legal aid fund is capped, as it used not to be, and every penny matters. So whichever it is, the application is properly made. What do you say about the German Government's responsibility, Miss Malcolm?

MISS MALCOLM: My Lords, if they are costs out of central funds I would say I have nothing to say, it is entirely a matter for the court. If they are costs against the German Government, first of all, as a matter of treaty law, the CPS are themselves personally responsible for all costs incurred by requesting states in all extradition proceedings in this country. Therefore, in effect, your Lordships would be, if you were making an application against me, be making an application personally against the CPS in this country. As I say that is----

LORD JUSTICE SEDLEY: Formally the order would be against the requesting state, it is the only party. But you say in practice the CPS carries the can.

MISS MALCOLM: My Lords, that is the case. There are reciprocal agreements on the treaties. I mean, it is the requested party's representatives, prosecution representatives, who carry the can, as your Lordship says. But, my Lords, there has to be therefore, in effect, a finding of fault, an unnecessary or improper act or omission, is my understanding, because it is the criminal causal matter, before costs can be award against the requesting state, CPS. As your Lordships found, in the event, no bad faith, which would be the principal issue, in my submission the appropriate order would be one out of central funds. The fact of a fluxion of time leading to oppression because of Mr Kumar's health is a fact that your Lordship has found, of course, we do not go behind that, but it is not in itself sufficient to warrant a further legal finding that the German Government has been responsible for unnecessary and improper acts and omissions.

LORD JUSTICE SEDLEY: You say there has to be some prosecutorial misconduct before the prosecutor, rather than central funds, would be expected to pay.

MISS MALCOLM: My Lord, that is right.

LORD JUSTICE SEDLEY: Mr Cameron, as far you understand your application can be made against central funds equally with the respondent government, can it?

MR CAMERON: It can.

LORD JUSTICE SEDLEY: Yes, well, I think we are minded to give you your costs out of central funds.

MR CAMERON: I am very grateful, my Lord.

LORD JUSTICE SEDLEY: Do you still need a public-funding assessment? You better have it in case you do.

MR CAMERON: I am grateful, my Lord.

LORD JUSTICE SEDLEY: Miss Malcolm, perhaps I can say we are particularly obliged to you and those behind you for having run very fast up the down escalator over the last few days.

MISS MALCOLM: I am very grateful. I shall pass that on.