England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th November 2003

Lord Justice Simon Brown:

1. The applicant is a fifty-five year old citizen of New Zealand, a one-time Roman Catholic priest whom the government of New Zealand seek to have returned for trial there in respect of a number of alleged sexual offences committed mostly in the early 1980s. He was arrested on 6 August 2002 pursuant to a formal extradition request. On 23 October 2002 the Secretary of State issued an authority to proceed. At a contested committal hearing at Bow Street Magistrates' Court on 5 February 2003 the District Judge found there to be a prima facie case against the applicant on all 19 of the charges he faces. These consist of 18 charges of indecent assault and one of buggery. There are a total of 11 complainants, all young male persons. The applicant was duly committed pursuant to s9(8) of the Extradition Act 1989 ("the 1989 Act").
2. Before the court now is a habeas corpus application to discharge the applicant pursuant to s11(3)(b) of the 1989 Act, which, so far as material, provides:

"11(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-

…

(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."

3. There are a number of authorities (reported and unreported) concerning the application of this well-known mandatory provision in various contexts. Prominent amongst them is Kakis -v- Government of the Republic of Cyprus [1978] 1 WLR 779 which makes plain (by reference to s8(3)(b) of the Fugitive Offenders' Act 1967, the materially identical predecessor provision) that "unjust" in the statute is "directed primarily to the risk of prejudice to the accused in the conduct of the trial itself", "oppressive" is "directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration [from the date of the offence(s) to the present date]", but "there is room for overlapping, and between them they would cover all cases where to return [the accused] would not be fair" (per Lord Diplock at pp 782-783).
4. It is Ms Dobbin's submission before us that it would be both unjust and oppressive to return this applicant to New Zealand now after so many years: unjust because at this distance in time it will be virtually impossible for the applicant to defend himself against these allegations; oppressive because the applicant has made a new life for himself since leaving New Zealand in 1987.
5. With that brief introduction let me turn next to the facts in a little more detail.
6. Seventeen of the 19 alleged offences took place in 1982 - 1985. The other two are alleged to have occurred respectively in 1978 and in May or June 1987. At the date of the alleged offences the complainants were mostly under 18 (sometimes 15 or 16); four of the alleged indecent assaults, however, were allegedly committed when the complainants were aged respectively 18, 19, 19 and 22. The complainant in respect of five of the charges (one of buggery and four of indecent assault) was Terence C who was 15 at the date of the first alleged indecent assault, 16 at the date of the second, 17 at the date of the third and at the date of the alleged buggery, and 19 at the date of the final alleged indecent assault. The circumstances of all the alleged indecent assaults are depressingly familiar. They consist variously of mutual masturbation, oral sex, touchings of the genital region, rubbing of the accused's penis against the complainant's body and so forth.
7. The applicant became a priest in 1972 and thereafter studied music. In 1982 he became a teacher at St Patrick's College, Silverstream, Wellington and taught there throughout that year. He then worked intermittently over the next five years at the Futuna Retreat House in Karori, Wellington before leaving New Zealand in 1987 to go to Ireland. He stayed in Ireland for some three years doing voluntary work with drug addicts. He then moved to London in 1990 and, having trained as an adult therapist, took up a position providing counselling and crisis intervention for passengers and staff at Heathrow Airport. He has lived and worked in this country ever since.
8. Most of the complainants had encountered the applicant whilst they were pupils as St Patrick's College. Some, however, came to know him later at the Futuna Retreat House. It is unnecessary for present purposes to describe their individual accounts of the particular circumstances in which these various alleged offences took place.
9. Complaints were first made to the New Zealand police respectively by Terence C on 13 October 1994 and by Mark A (the complainant in respect of an alleged indecent assault in May or June 1982 at St Patrick's College) on 12 April 1995. There was some supporting evidence too at that time, in particular from another pupil at the school who alleged that he had been propositioned albeit not physically assaulted, in the same way as Mark A. Consequent upon those complaints Interpol Wellington in April 1996 requested Interpol London if possible to interview the applicant. In June 1996, however, the applicant refused to be interviewed. In the result no request for extradition was made at that time. In evidence recently sworn in these proceedings, Detective Sergeant Mills of the Wellington police explains that as follows:

"There being only two complainants; the matters were historical; lack of an interview and admissions from the subject."

He further records that the police officer at Interpol Wellington stated in his covering report in 1996:

"I can say at this stage that this matter is one [for] which extradition is possible but not probable."

10. Also in 1996 Terence C brought a civil action against St Patrick's College for damages to compensate him for the abuse he alleges he suffered whilst a pupil there, an action which in 2001 the college settled out of court with no admission as to liability.
11. There matters rested until 30 June 2002 when a documentary called Sunday was shown on New Zealand television featuring an interview with Terence C. There followed all the remaining complaints as well as statements from a number of supporting witnesses, all clearly prompted in one way or another by the television programme. DS Mills states that the reasons offered by these complainants for not having complained earlier included:

"They did not think they would be believed.

Making a complaint wasn't seen as the thing to do.

Now had courage to make complaint as others had now gone public.

Circumstances of the alleged offending were accepted as occurring now by the Catholic Church and the general public.

They thought they were the only ones it had happened to."

12. In a witness statement made in these proceedings on 3 November 2003 the applicant denies all the allegations made against him and states:

"I have not lived in New Zealand for 16 years. I have made a life for myself in the United Kingdom. In the intervening years I have trained as a therapist, worked, bought a home and made firm friendships. No-one has ever in that time made any complaint about my conduct.

The allegations date back as far as 1978. I have read the contents of the allegations made against me in the extradition bundle. I do not see how I can defend myself against allegations that are so old. I have little recollection of dates and times going back that far. I am not even able to recollect some of the persons referred to in the extradition papers. I am worried about the way in which the allegations were made in a cluster following a television programme that described how I was alleged to have abused Terence C."

13. The main thrust of Ms Dobbin's able and forceful argument was directed to the difficulty - she submits, I think, impossibility - of having a fair trial of these charges so long after the offences are said to have taken place, on average some 20 years ago. She points out that the charges are based solely on accusations, unsupported by any documentary or "forensic" (meaning scientific) evidence. It is, she submits, inevitable after so long a delay, when even the complainants cannot assert with any accuracy when the assaults are alleged to have occurred, that the applicant will be severely impeded in establishing his defence.
14. The authority upon which Ms Dobbin most particularly relies is R -v- B [2003] 2 Cr App R 13 in which the Court of Appeal (Criminal Division) allowed an appeal against conviction in a sex abuse case even though the trial process itself could not be faulted. As Lord Woolf CJ put it:

"28. In this case it has to be recognised that because of the delay that occurred, in our judgment the appellant was put in an impossible position to defend himself. He was not … able to conduct any proper cross-examination of the complainant. There was no material he could put to the complainant to establish that she had said that something had happened on one occasion which could be established to be incorrect. There was no material in the form of notes … which showed that she had changed her account. All that the appellant could do was to say that he had not committed the acts alleged against him. [Counsel] says that to say to a jury, when faced with allegations of the sort that were made here, 'I have not done it' is virtually no defence at all."

That, submits Ms Dobbin, is no less the position here.

15. R -v- B clearly represents the high water mark of the applicant's case. There are, however, a number of difficulties in Ms Dobbin's reliance upon it, quite apart from the fact that it is a decision in domestic law and not, therefore, of direct relevance with regard to the application of s11(3)(b) (an important consideration to which I shall return). The first difficulty is that R -v- B was a decision on its own particular facts and cannot stand as authority for some broad proposition that, without supporting scientific or documentary evidence, no-one can be fairly tried for sexual offences after a long period of time (in that case 30 years). There seems to me, for example, all the difference in the world between a case like R -v- B which concerned a single complainant (the accused's step-daughter) and no supporting evidence whatever, and a case like the present where there are now no fewer than eleven separate complainants and a good deal of supporting evidence.

16. Even, moreover, in the case of a single complainant it is by no means invariably the court's view that, because of a long delay in making the complaint, a fair trial is now impossible. Take, for example, R -v- Dutton [1994] Crim LR 910, one of the cases considered in R -v- B. The allegation in Dutton was of sex abuse committed against a young boy who then made no complaint until he was 29, twenty years after the first offence and 14 years after the last offence alleged against the defendant. There was no apparent corroboration in the case and no supporting medical or scientific evidence of any kind. Furthermore, a number of witnesses had died. All these considerations notwithstanding, the Court of Appeal found the trial judge to have been entitled to decide, as he did, that a fair trial could be held (albeit the conviction was quashed because the judge was held to have been "wrong not to assist the jury as to the possible adverse effects that the delay could have occasioned the defence and not to refer in the summing-up to the age of the complaint and the difficulties this could well have posed").
17. The principle applying in the domestic courts is that a stay on the grounds of delay should only be granted in exceptional circumstances: judges should be assiduous to ensure that there really is evidence of prejudice to the extent that a fair trial could not be held before staying a prosecution. On the material before us I have the gravest doubts as to whether our own courts would stay a prosecution on the same facts.
18. This, however, is not a domestic case and the question arises as to what should be the approach under s11(3)(b) of the 1989 Act, in particular having regard to Lord Diplock's dictum (see paragraph 3 above) that whether or not delay makes return unjust depends primarily on the risk of prejudice to the accused in the conduct of the trial itself.
19. The respondent government has put in evidence before us a statement by Mr Stone, a Crown Solicitor, who describes the New Zealand court's approach to abuse of process applications in the case of long delayed prosecutions as follows:

"13. While the Courts recognise an inherent jurisdiction to prevent an abuse of process, there is no statutory or common law rule preventing a matter proceeding to trial when a complaint in respect of an offence had not been made until many years after the alleged criminal act took place. Indeed, there have been many cases going to trial throughout New Zealand over recent years involving alleged sexual abuse in which the complainant is giving evidence of events which may have happened 20 or 30 years ago or more. Such complaints often relate to incidents when the complainant was a child, but in which for a number of reasons the complainant has not taken the matter to the Police until recently. The Courts assess these cases on their individual merits and although pre-trial applications are sometimes made in such cases on the basis of undue delay, it would be an exceptional case for the Court to conclude that a delay of this kind amounted in itself to an abuse of process. It has been recognised by the Courts, and by the legislature, during recent years that there may be good reasons why complainants in cases involving sexual abuse have felt inhibited and unable to make complaints to the Police at an earlier time.

14. The approach of the Court of Appeal to this issue has recently been stated again in R -v- "O" [1999] 1 NZLR 347, at p350. The case involved a number of allegations of sodomy and indecent assault committed between 1973 and 1981. Delivering the judgment of the Court, Blanchard J said:

'Some prejudice to an accused is always likely when a prosecution is brought long after the event. There is an obvious inherent problem of memory for witnesses and accused alike. There will be very occasional cases where the lapse of time is so exceptionally long that it will clearly be impossible to have a fair trial. But ordinarily passage of time alone will not be sufficient to found a successful application to have a prosecution stopped. Avoidance of prosecution for a period of time does not diminish the criminal nature of the act alleged against an accused, though the advanced age of a defendant may have to be taken into account in sentencing if there is a conviction. As the Judge observed, there is no limitation period and no presumption that after a particular time memories will be too unreliable for the purposes of a criminal trial. Whatever the length and cause of delay, the central question is whether a fair trial can still take place in the particular circumstances. Are important defence witnesses no longer available? Have relevant documents been lost or disposed of? Is the complainant's evidence so fraught with memory problems that the accused is unfairly faced with trying to defend himself against accusations which are insufficiently specific in relation to place or circumstances? Concerns about pinpointing the exact time and place at which an incident has occurred may be greater when an isolated act of offending is alleged than they will be if a representative charge has been laid.

An absence of adequate explanation for lengthy complainant delay will not be good reason for stopping a prosecution if a fair trial is possible. Serious crime should normally be the subject of prosecution notwithstanding that a victim has chosen to delay making a complaint. That dilatoriness may, of course, assume significance as a matter of weight of evidence but, if there is a proper basis for a prosecution and a trial can be conducted fairly, mere absence of justification for the delay will not be a sound basis for a stay."

20. That approach seems to me very similar to that adopted by our own courts. Is that, however, a relevant consideration when it comes to applying s11(3)(b), or must this court decide for itself one way or the other whether there is "the risk of prejudice to the accused in the conduct of the trial itself" of which Lord Diplock spoke? If one applies Lord Diplock's dictum literally, and overlooks within it the word "primarily", one might conclude that we in this court should simply ignore the possibility of the New Zealand court itself staying the proceedings if it decides that a fair trial has become impossible. In my judgment, however, that would not be the correct approach to this provision. Section 11(3)(b) in terms requires this court's decision not upon whether, having regard to the passage of time, it would be unjust to try the accused, but rather whether it would be unjust to return him (albeit, of course, return him for trial).
21. To my mind that entitles, indeed requires, this court to have regard to whatever safeguards may exist in the domestic law of the requesting state to ensure that the accused would not be subjected to an unjust trial there. There are, it should be borne in mind, clear advantages in having the question whether or not a fair trial is now possible decided in the domestic court rather than by us. That court will have an altogether clearer picture than we have of precisely what evidence is available and the issues likely to arise. For example, the accused is likely to be interviewed on return (in New Zealand, we are told, under caution administered in terms similar to our own) so that more is likely to be known about his defence. If, of course, we were to conclude that the domestic court in the requesting state would be bound to hold that a fair trial of the accused is now impossible, then plainly we would regard it as unjust (and/or oppressive) to return him. Equally, we would have no alternative but to reach our own conclusion on whether a fair trial would now be possible in the requesting state if we were not persuaded that the courts of that state have what we would regard as satisfactory procedures of their own akin to our (and the New Zealand courts') abuse of process jurisdiction.
22. Here, however, it seems to me plain, for the reasons already indicated, first that the New Zealand courts have satisfactory procedures for guarding against an unjust trial and, secondly, that, under those procedures, they would certainly not be bound to find a fair trial impossible (see paragraph 17 above).
23. I pass to the second limb of the case, Ms Dobbin's submission that it would now be oppressive to return the applicant to New Zealand. This I can deal with altogether more shortly. The main considerations which the applicant seeks to pray in aid in this regard are, first, that he left New Zealand freely in 1987 and has ever since lived openly and with no complaint about his conduct abroad, initially in Ireland, and since 1990 in England, having now established a settled existence here; secondly, that having declined to be interviewed in 1996, he heard nothing more about the matter until 2002, notwithstanding that two of the complainants (including in particular Terence C whose allegations are the gravest of all) had already made their complaints to the police.
24. These considerations, I have to say, to my mind fall far short of what is necessary to establish a case of oppressiveness. Ms Dobbin referred us to a number of (mostly unreported) authorities in this field but none of them seemed to me to come close to sustaining her argument. There is, for example, all the difference in the world between a requesting state after many years merely resurrecting allegations that have already been put to an accused (as occurred in Re Ward, unreported 24 February 1994) and, as in the present case, making a host of fresh allegations to which the earlier allegations, in themselves previously thought an insufficient basis for extradition, are then naturally attached. Similarly there is all the difference between a case where the accused "could well have concluded that he was never going to hear another word about the allegation" (Re Ward at p9) and the present case in which the applicant cannot possibly argue that in 1996 he was left feeling secure, least of all against complaints which had yet to surface.
25. It must also be recognised that the charges here related to grave offences: sexual offences mostly against minors involving a serious abuse of the applicant's position of trust as priest and teacher. The gravity of the offences, as Lord Diplock observed in Kakis (at p784) is relevant to the question of oppressiveness. The gravity of these offences of itself is sufficient to my mind to distinguish this case from In re Ashley Riddle (unreported, 22 November 1993). So too, in my judgment the changes in this applicant's circumstances during the relevant period are less material than in Ashley Riddle's case where the accused had "not only settled here but [had] had his son for a number of years in boarding school in England" (per Sedley J at p10), albeit the relevant period there was only four years against the sixteen years in the present case.
26. I would add just this with regard to the concept of oppressiveness in s11(3)(b). As I observed during the course of argument, it seems to me in any event puzzling in present times why someone should be able to improve their chances of escaping trial by travelling abroad and then changing their circumstances in their new country of residence. Why, say, should an Australian who has committed a series of frauds in Sydney then be better placed to escape trial (through it being found oppressive to extradite him) if he moves to England than if he moves to Darwin? The court should to my mind be wary of paying excessive heed to "hardship to the accused resulting from changes in his circumstances" following upon the accused's move to another country when equivalent hardship is likely to have occurred even had he remained in his country of origin.
27. Be that as it may, however, I am clearly of the view that there is nothing in this applicant's circumstances to make it oppressive now to return him to New Zealand to stand trial.
28. I am similarly of the view that, taking both limbs of s11(3)(b) together, there is nothing that "would not be fair" (Lord Diplock's words) in returning the applicant.
29. I add just this. My researches following the hearing led me to an unreported decision of this court in Sagman -v- Government of Turkey [2001] EWHC (Admin) 474, referred to in the footnotes to paragraph 8.26 of Nicholls, Montgomery & Knowles on The Law of Extradition and Mutual Assistance. The facts of the case are strikingly different from those of the present case and ultimately I found it of no assistance. But I could not help noting Rose LJ's observation at paragraph 19 of his judgment that "no case is known to counsel, or to the court, where an extradition has been ordered after a lapse of so long a period as 15 years". There may or may not previously have been such a case. In my judgment, however, there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive. It hardly needs me to point out that trial after 20 years or more is far from ideal. Sometimes, however, it may nevertheless be appropriate to extradite an accused for that purpose. This, in my judgment, is such a case. I would dismiss this application.

Mr Justice Royce:

30. I agree entirely with the reasoning and conclusions of My Lord, Lord Justice Simon Brown, and would refuse the application.
ORDER: APPLICATION DISMISSED. NO ORDER AS TO COSTS (Order does not form part of the approved judgment)