B e f o r e :
(The Lord Woolf of Barnes)
MR JUSTICE MACKAY
|IN THE MATTER OF AN APPLICATION FOR A WRIT|
|OF HABEAS CORPUS AD SUBJICIENDUM|
|IN THE MATTER OF THE EXTRADITION ACT 1989|
|FOUAD KHALED JAFFAR||Applicant|
|- v -|
|THE GOVERNOR OF HM PRISON BRIXTON|
|THE GOVERNMENT OF SPAIN|
Smith Bernal, 190 Fleet Street, London EC4
Telephone No: 020-7421 4040
(Official Shorthand Writers to the Court)
MR JAMES HINES (instructed by the Crown Prosecution Service, Central Casework, London EC4M 7EX) appeared on behalf of THE RESPONDENT
Crown Copyright ©
Tuesday 25 November 2003
THE LORD CHIEF JUSTICE:
"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; [that has no application here] or
(b)by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; [(b) is important] or
(c)because the accusation made against him is not made in good faith, in the interests of justice [that has no relevance here],
it would, having regard to all the circumstances, be unjust or oppressive to return him." (my emphasis)
5. Article 10 of the European Convention on Extradition Order 2001 provides:
"Extradition shall not be granted when the person claimed has, according to the law of either the requesting or the requested Party, become immune by lapse of time from prosecution or punishment."
Article 14, so far as relevant, provides:
"RULE OF SPECIALITY
1. A person who has been extradited shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited ....."
There are then two exceptions to that general provision to which it is not necessary to refer.
The Background Facts
Committal Charge 1 (INPAC)
Committal Charge 2 (Croesus)
Committal Charges 3 and 4 (Oacthorn)
Committal Charge 5 (Pincinco)
The Spanish Proceedings
"THE PROSECUTOR, having been notified of the court order of 16 July 2003 by which notice was served of the documents sent by the competent UK judicial Authorities regarding the extradition of FOUAD KHALED JAFFAR states:
1. That Criminal Proceedings 67/93 were instituted by the Central Examining Court No 3 of the National Court of Justice [Audiencia Nacional] on the charges described in Court Order No 2 of 2 December 1989, 29 December 1989 and 13 July 2000.
The trial concerning court record TCSA-INPACSA, which also included operation CROESUS, started on 25 March 2003.
The counsels for the defence brought several 'prior issues' forward, among them, that the prosecution of the offences could [have] become barred by reason of lapse of time.
On 11 April 2003, an answer was given by the Criminal Division of the National Court of Justice to the above mentioned 'prior issue', according to which, on careful consideration of the dates in which the alleged offences took place, and of the dates in which statements were taken from persons against whom charges were brought later on ,it was decided that the status on limitations should be applied as follows.
1. As regards Operation ICSA-INPACSA, only to persons whose statements as 'accused' had not been taken before November 1996, and who, judging from the facts described in the complaint, were neither involved nor aware of the illicit activities, given their position within the company."
For the purpose of these proceedings Mr Nicholls does not dispute that, because of paragraph 1 of the order, in relation to charge 1 (INPAC), there was no decision that that charge was time-barred as against the applicant. The order continues:
"However, prosecution has not become barred by lapse of time for those who were mentioned in the complaint as involved in the facts described therein. FOUAD KHALED JAFFAR is one of them.
This person, being aware of the charges against him, has never appeared before this court, and this is the reason why his statement as accused has never been taken and the extradition request has been filed.
In the records, folios 369-370, that is a document written by FOUAD KHALED JAFFAR, by means of which he became party to the proceedings, later on his representatives submitted several documents.
He was summoned to give his statement on 4 May 1994, but he failed to appear.
This all means that the decision made by the Criminal Division of the National Court of Justice on the application of the statute of limitations does not affect this person, whose extradition has been requested.
2. As regards Operation CROESUS, the Criminal Division of the National Court of Justice, prosecution has become barred by lapse of time, given that the facts described happened between 1988 and 1990, and they were described for the first time in a document written by the Public Prosecutor dated 18 November 1996. This means that these facts were not included in the complaint, and prosecution was therefor barred by lapse of time.
However, this Agreement, which must be included in the judgment that will be passed once the Operation ICSA-INPACSA trial is over, is not final. An appeal can be filed against it before the Supreme Court. Both the Public Prosecutor and the private prosecutor protested against the Agreement, and announced their intention to file an appeal against such decision.
On the other hand, other separate court records called Operation PINCINCO and OAKTHORN, among others, are awaiting trial. The extradition of FOUAD KHALED JAFFAR is requested in all of them, and the Criminal Division has made no statement in this regard as the trial has not started.
On consideration of the above said, prosecution of the offences for which extradition is requested has not become barred by lapse of time, except for Operation CROESUS, although the decision is not final."
Although the language of that order is far from clear, Charge 1 (INPAC) is not time-barred so far as the applicant is concerned. The Croesus charge is time-barred in relation to the application. The position with regard to Oacthorn (charges 3 and 4) is not clear. The position with regard to Pincinco is not clear.
"Due consideration has been taken of the Prosecutor's report, which has been attached to the aforementioned criminal proceedings [Procedimiento Abreviado], and it is to be submitted to the competent judicial authorities in the United Kingdom for their consideration. It should be noted that the prosecution of the offences the extradition request was based on has not become barred by lapse of time, except for Operation Croesus, although no final decision has been reached in this regard. The Prosecutor's report, together with the present Order, is to be submitted to the Translation Department for its URGENT translation."
United Kingdom Extradition Proceedings
"The applicant's challenge having failed both in relation to the 1987 and in relation to the 1988 offences it is not necessary for me to decide what our order would have been if he had succeeded in relation to one of the offences and not in relation to the other but, as both counsel did address us in relation to that issue, it may be helpful if I say that having regard to the wording of section 11(3) I am wholly satisfied that this court should only order discharge if persuaded in relation to 'each of the offences in respect of which the applicant's return is sought that .... it would be unjust or oppressive to return him'. In other words there can be no order for discharge unless the challenge succeeds in relation to every offence. On the other hand, as Mr Lewis points out, it would be unthinkable for the Secretary of State when making an order for return pursuant to section 12 of the 1989 Act not to have regard to a finding of this court that in relation to one or more offences the requirement of section 11(3) has been satisfied, and the court had held that so far as those offences were concerned it would be unjust or oppressive to order return."
That passage is clearly obiter, but Mr Nicholls, rightly in my view, does not seek to challenge the accuracy of that dicta. It is relevant because it confirms that a committal on one charge of the five is perfectly in order. That is subject to the separate argument which I have to consider which is advanced on the basis of section 11(3)(b).
"by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be ....
it would, having regard to all the circumstances, be unjust or oppressive to return him."
Mr Nicholls submits that in this case it would be oppressive and unjust to return the applicant. He points to the fact that fifteen years have now elapsed since the offence is alleged to have been committed. He further relies on the fact that two witness have died. He identifies the dates on which they died and the evidence which they would have given. It is right to point out that their evidence would only be corroborative of the evidence upon which the applicant relies, which he could give himself. Their evidence relates to matters within his knowledge.