England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice The Strand London
		29 July 2004

Thursday 29 July 2004

LORD JUSTICE DYSON: I will ask Mr Justice Henriques to give the first judgment.

MR JUSTICE HENRIQUES:

1. This is an application for habeas corpus made on behalf of Darren Sapstead who seeks to challenge his return to Tenerife in the Canary Islands, in the Kingdom of Spain, to face a charge of unlawful killing in the form of negligent manslaughter.
2. The alleged offence took place on 7 November 1996. The applicant seeks to rely on the provisions of section 11(3)(b) of the Extradition Act 1989 which provides:

"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 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 [the offence] ....

it would, having regard to all the circumstances, be unjust or oppressive to return him."

3. The Kingdom of Spain seeks the extradition of Darren Sapstead, the applicant, a British national, aged 29. He is accused of the manslaughter of Garry Robert Walton, an Irish national, aged 21 at the time of his death. On 5 and 7 April 2004 at Bow Street Magistrates' Court committal proceedings were held before District Judge Nicholas Evans. During the course of the committal proceedings legal submissions were made in relation to the jurisdiction of the government in respect of the alleged offence and the authentication of the request for extradition. A representative from the Spanish Embassy attended Bow Street Magistrates' Court to give evidence in respect of the issues raised on behalf of the applicant. The submissions on behalf of the applicant were rejected, and on 7 April 2004 he was committed to await the Secretary of State's decision as to his return to Spain. Against that background the applicant now seeks a writ of habeas corpus. On behalf of the government it is submitted that it would not be unjust nor oppressive to return the applicant to Spain. There is submitted to us a chronology of the relevant events. The factual background is as follows.
4. On 7 November 1996, the applicant was one of 50 to 90 passengers on a pleasure craft on a day cruise out of Tenerife. Much alcohol was consumed on board. Several hours into the voyage the deceased went overboard and drowned. Amongst the passengers were the applicant, the deceased, and two sisters, Katie Smethurst, then aged 17, and her younger sister Lucy, then aged 14, none of whom (the sisters apart) knew one another prior to the cruise.
5. Several hours into the voyage when much alcohol had been consumed, shortly after it began to become dark and during the vessel's journey back to shore at approximately 6.30pm, it is contented that Garry Walton approached the applicant and Katie Smethurst who had been standing together talking on the deck at the stern of the vessel. According to Katie Smethurst, she formed the view that Garry Walton was extremely drunk, but not acting aggressively. As Garry Walton approached, the applicant said to Katie Smethurst, "Shall I throw him overboard?" She did not answer. At that point it is alleged that the applicant lifted Garry Walton by holding him around his legs at the knee area and in one movement threw him overboard. There was no struggle. The area immediately surrounding the vessel was dark and the vessel was travelling back to port. Garry Walton could not be seen. According to Katie Smethurst, the applicant began to remove his shoes in an effort to jump into the water. She persuaded him not to do so as it was dark and the water looked choppy. Instead, a life ring was thrown into the water, but Garry Walton was not able to take hold of the life ring. Suggestions were made at the time that he was not able to swim. Shortly afterwards the captain of the vessel was notified that someone had fallen into the sea. The vessel was turned about and taken to the point where it was thought the incident took place in an effort to locate Garry Walton. He could not be found and rescue teams took over the search. A few hours later the body was recovered by a fishing boat. A post mortem was carried out in Spain. The cause of death was drowning.
6. Passengers from the vessel, including the Smethurst sisters and the applicant, were taken to a Spanish police station.
7. On 13 November 1996, both sisters gave evidence in court. Katie Smethurst maintained that she first became aware of Mr Walton after he had fallen in. Lucy Smethurst was also examined by the judge. She said she was not sure whether her sister spoke to the deceased. She said she did not see him go into the water. Although 14, she said she had been drinking Sangria, beer and Bacardi rum.
8. On 4 March 1997, Katie Smethurst made a further statement saying that she had had four glasses of Sangria during the trip and that the applicant and his friend were with her at the time of the splash and that they could not be responsible for what happened.
9. On 16 May 1997, Lucy Smethurst made a further statement in which she said: "I was with Katie, Darren [the applicant], Lee and Alan. Garry Walton did not approach or speak to us at all. I saw no argument between anyone. No one in our group was involved in anyone falling overboard."
10. In September 1997 both sisters made fundamentally different statements changing their accounts. Katie's account founded the allegation which I have already recited. She alleged that the applicant had deliberately thrown the deceased overboard. Her sister Lucy admitted that she had lied in her earlier statements about the amount she had had to drink. She admitted she had lied in the earlier statements and that she was drunk. She said, "I didn't mention this before because I was worried about what people would think of me". She went on to say that she had not seen how Mr Walton went overboard, but that on the following day she had spoken to the applicant. By this time her sister had communicated to her what she had seen and she asked the applicant, "Do you feel guilty?" The applicant, according to the younger sister, said, "He deserved it".
11. Accordingly, should this matter proceed to trial, the prosecution will rely on the eye-witness evidence of Katie and an alleged admission to her younger sister, Lucy.
12. Notwithstanding questions of delay and prejudice resulting therefrom, there is accordingly clearly a prima facie case for the applicant to answer.
13. The applicant for his part denied any knowledge of how Garry Walton ended up in the sea when asked by the Spanish authorities on the day after Garry Walton's death, namely 8 November 1996. He returned to the United Kingdom that day, not by way of flight but simply because the period of his holiday had expired.
14. In due course the applicant was asked by the British authorities to make a statement and did so on 29 March 1999. I will return to that statement later in this judgment.
15. Following the critical statements taken from both girls on 9 September 1997, there was some considerable activity, including the extension of the Spanish inquiry, and correspondence between Interpol London and Interpol Dublin raising the question of jurisdiction. In early 1998 inquiries were made of the Provincial Harbourmaster. Matters of insurance were sent to the investigating court in Spain. Evidence was taken in the Oldham Magistrates' Court in pursuance of the Criminal Justice (International Co-operation) Act 1990, including statements from both girls taken on 3 September 1998. In January 1999 the post mortem report from Dublin was sent to the investigating court in Spain. In March 1999 a statement was taken from the applicant in the United Kingdom. In July 1999 a statement was taken at Chelmsford Magistrates' Court, which was sent to the Home Office by the Essex Magistrates' Court. In July 1999 a request for mutual legal assistance was made to the Home Office by the Spanish authorities. In October 1999 a petition by the prosecutor in Spain to appeal the earlier ruling of the Spanish court dated 20 September 1999, which provisionally suspended committal proceedings, was made. On 12 November 1999, a petition was refused. On 30 June 2000, a prosecutor's appeal against the ruling in respect of the petition was allowed and committal proceedings permitted to continue. In October 2000 questionnaires were to be put to the two sisters, and indeed one was drafted also for the applicant. We are told that such document never found its way to the applicant's notice.
16. On 20 November 2000, the Senior Master of the Queen's Bench Division returned the letter of request to the Spanish authority as it was not in due form. On 22 August 2001, after a gap of nine months, a statement provided by the applicant responding to the question posed by the Spanish authorities included a request for confirmation of which account the elder sister stated to be true. On 1 October 2001, the Home Office informed the Spanish authority of the Essex Magistrates' Court decision to decline to summons the applicant and enclose the evidence given by Katie Smethurst on 22 August 2001. On 9 October 2001, Interpol Madrid forwarded the results of the letter of request to the relevant investigating police force indicating that in respect of the applicant the magistrate rejected the letter of request, stating that a suspect cannot be required to make a statement before the judicial authorities and advising that extradition may be necessary. In January 2002, the prosecutor applied to the investigating court for various orders, including the translation of the material recently received from the United Kingdom. In February 2002, the lawyer acting on behalf of the deceased's father applied to the Spanish Court for the formal accusation of the applicant in respect of the homicide of Garry Walton and for his extradition to Spain. On 20 March 2002 the public prosecutor applied to the court for the extradition of the applicant. On 10 May 2002, the Spanish Court ruled that the committal proceedings revealed that the deceased was intentionally thrown from the vessel, that the prime suspect was the applicant, and that the facts may amount to homicide. On the same day a warrant for his arrest was issued. On 8 December 2003, the Secretary of State issued an authority to proceed. On 19 January 2004, the applicant was arrested at his home in Essex, and between 5 and 7 April 2004 committal proceedings took place at Bow Street Magistrates' Court.
17. In terms of chronology Mr Hines, who represents the applicant, stressed that between the tragedy and January 2004 there was no communication whatsoever with the applicant to the effect that he was suspected of this crime.
18. In all the circumstances we must consider whether it appears that by reason of the passage of time it would be unjust or oppressive to return the applicant to Spain. I consider separately and distinctly the passage of time and the words "unjust and oppressive".
19. The overall length of time between the tragedy and today's date is seven years and some eight months. The delay since the Smethurst sisters changed their evidence is almost seven years. It took from 30 June 2000 when the prosecutor's appealed against the ruling in respect of the petition for the committal proceedings to continue until January 2004 for the applicant to be arrested.
20. It is necessary for us to consider what an appropriate period of time would have been assuming all due haste and expedition. It is a fact that allowance must be made for the difficulties involving an offence allegedly committed in Spain, with witnesses in Greater Manchester and a suspect in Ireland. For my part I conclude that a period of time approximating three years is the sort of period of time that might be expected had matters proceeded with normality -- that is with reasonable expedition -- but that there is here a period of delay is undeniable.
21. Notwithstanding the passage of time, the respondent points to the fact that it was not until almost a year after the death that any evidence against the applicant came to light. The applicant himself was aware that an investigation was being conducted by the Spanish authorities. The names of other passengers have never been available as there was no passenger list. It was not until 2001, when the Spanish authorities were informed that the Essex Magistrates declined to summons the applicant because he was a suspect, that extradition was considered necessary. In 2001 the Spanish authorities obtained a further statement from Katie Smethurst in which she confirmed her statement of 7 September 1997. The translation of documents necessarily occupied a significant period of time.
22. It is submitted on behalf of the applicant that, since the evidence is not documentary but dependent on eye-witnesses, the passage of time is liable to have affected reliability. Memories will have faded. Further, it is submitted that there must have been other witnesses who have not been traced and the passage of time renders it impossible to trace such witnesses. Particular emphasis is placed upon a clerical note from the court clerk of the Tenerife Court, whereby he certified that, having contacted by telephone the hotels where the rest of the witnesses were staying, "We have been informed that they have left the hotels and returned to their countries of origin and that the honourable judge has been informed of this fact". Emphasis is placed upon that memorandum to which I will return in due course.
23. Emphasis is also placed by Mr Hines upon the fact that a police officer taking a statement from Lucy Smethurst when she was 14 assessed her as "open-hearted and sincere", when her statement contained lies. She convinced a detective that she was telling the truth when in fact she told lies.
24. The respondent contends that the passage of time does not render a return to Spain unjust. There never was a passenger list. As at 1997 it would not have been possible to trace any other eye-witness if such ever existed. It was dark at the time. Sunset was well before 1830 in the Canaries in November. In her questionnaire Katie Smethurst had said, "I am not aware of anyone else being on the stern of the boat. Having regard to the particular circumstances of this tragedy, there is an inference that there was indeed no other person on the stern of the boat.
25. As to the fading of memories, such were these events on any construction of the facts that an eye-witness must necessarily remember in some detail what occurred for the rest of her days. This was an extraordinary event which is unlikely, however it occurred, to fade from the memory.
26. So far as the admission to the younger sister is concerned, that too, if it occurred, was dramatic and thus memorable.
27. So far as chasing witnesses is concerned, had this trial taken place some three years after the tragedy, as I have speculated it might well have done, the same difficulties would have confronted the court and the defence as are confronted to this day.
28. As to oppression, on behalf of the applicant it is submitted that his life has changed significantly. He is now married with two children, both of whom were born before the extradition was requested. He was and remains a man of good character. Following his departure from Spain he heard nothing of this case until January 2004. He is in steady and stable employment. It is submitted that, by reason of his change of circumstance, extradition is now oppressive.
29. For assistance from the authorities we need look no further than Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, where at page 782 Lord Diplock stated:

"'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. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would neither be unjust nor oppressive that he should be required to accept them.

As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude."

30. For my part it does not appear to me that in the circumstances of this case it would be unjust to return the applicant. This is a very grave matter. Justice requires that, provided a fair trial is possible and in the absence of oppression, the applicant should be tried according to law. For my part I do not consider that the passage of time has deprived the applicant of the opportunity to trace any eye-witness. There never has been a passenger list. Potential witnesses left the island within days of this tragedy. I am also satisfied that the recollections of both sisters will not have faded; nor are they likely ever to fade having regard to the dramatic circumstances of this case. It also seems very likely that Katie Smethurst was the only eye-witness to the actual fatal event. The only other person alleged by the applicant in his statement to be with Katie Smethurst at the critical moment is Lee Blade, who was on holiday with the applicant at the time, a friend of his and well known to him. This was a very short event with no complicating factor and no possible scope for mistake. I detect no prejudice to the accused in the conduct of the trial itself.
31. Turning to the change in the circumstances of the applicant, his life has progressed in the way in which he would have expected and hoped for. At any trial he will be able to pray in aid his good character. No change in his circumstances has, in my judgment, rendered it oppressive for him to be returned. I am satisfied that the defendant has not been prejudiced in the deployment of his defence. Nor has the delay, such as it has been, been oppressive when viewed in the context of the gravity of this allegation and the public interest in the attainment of justice.
32. For those reasons I would refuse this application.

LORD JUSTICE DYSON:

33. I agree. The issue before the court is whether by reason of the passage of time since the date of the alleged offence it would in all the circumstances be unjust or oppressive to return the applicant to Spain. As Lord Diplock said in Kakis, to which my Lord has referred, the court is required when considering whether it would be unjust to return an accused, to have regard primarily to the risk of prejudice to him or her in the conduct of the trial itself. I am prepared to proceed on the basis that there has been inexcusable delay in this case. There has been no explanation as to why it has taken more than seven years for the applicant to be arrested in connection with these proceedings. Making all allowance for the difficulties that are inherent in a case such as this, I would have thought that the process ought reasonably to have been completed in approximately three years. But for the reasons given by my Lord, I am not persuaded that the inexcusable delay is likely to have caused prejudice to the applicant in the conduct of the trial itself. The court is required to have regard to all the circumstances. These include the fact that the alleged incident was stark, simple and dramatic. It is a very far cry from a confusing incident such as an affray where evidence is notoriously unreliable and where fading memories present a real problem. It is most unlikely that the lapse of time will have caused memories to fade in this case.
34. Another circumstance which is important is the seriousness of the alleged offence itself. This is a very tragic case. The applicant is a man of good character. He was only 21 at the time of the incident. But there is a strong prima facie case that he committed a serious offence in which a young life was lost. The effect of these proceedings on the applicant is no doubt devastating. He is now married and employs others. But I am in no doubt that in all the circumstances it would be neither unjust nor oppressive to return him to Spain.