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
		26 November 2004

1. MR JUSTICE PITCHFORD: On 4th January 1999 the claimant, a British national, was committed by Mr Ronald Bartle, Metropolitan Magistrate, pursuant to paragraph 7, Schedule 1, Extradition Act 1989, to await the decision of the Secretary of State, whether he should be returned to the United States of America for trial upon four drug-related charges.
2. The case against the claimant is that on two occasions between 1986 and 1988 he sailed a vessel between the island of Jamaica and the United States mainland carrying and importing large quantities of cannabis. It is alleged that in 1988 a meeting took place in Elberta, Alabama, between the claimant and three co-conspirators with a view to distribution of the drug within the United States.
3. The claimant was granted bail by the High Court on the date of his committal and, save for a period when he was rearrested for another matter, he has been on bail throughout.
4. Application for a writ of habeas corpus was withdrawn by consent on 10th November 1999, it being recognised that it had been a misconceived application. On 13th December 1999 written representations were made to the Secretary of State supplemented by a further letter with enclosures in February 2000.
5. On 4th July 2002 the Secretary of State notified his adverse decision. Further and protracted representations were made until, on 27th November 2003, the Secretary of State issued his second adverse decision letter. The claimant now challenges the Secretary of State's decision reached in exercise of his discretion under paragraph 8, sub-paragraph 2, Schedule 1 to the Extradition Act 1989 to issue a warrant of surrender on the grounds that the Secretary of State misdirected himself in fact and reached an irrational decision.
6. It is common ground that by reason of Section 1 (3)of the 1989 Act, and the United States of America Extradition Order 1976, the provisions of sections 11 and 12 of the Act do not expressly apply to the present situation but the Secretary of State's practice was, and is, in respect of those applications by the United States which remain outstanding before the passing of the Extradition Act 2003, to exercise his discretion under paragraph 8, Schedule 1 as though it was being exercised under Section 12 (2). Section 12, (2)of the Act reads as follows:

"Without prejudice to his general discretion as to the making of an order for the return of the person to a foreign state... (a) the Secretary of State shall not make an order in the case of any person if it appears to the Secretary of State, in relation to the offence or any of the offences in respect of which his return is sought, that (i)... or (ii) by reason of the passage of time since he has alleged to have committed it... or (3) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him."

7. Mr Alun Jones QC submits that upon the material available to the Secretary of State it should have been plain that there has been inordinate and unexplained delay in the progress of the investigation such that it would now be unjust and/or oppressive to return the claimant. In so far as the Secretary of State has found to the contrary, his attitude has been one of credulousness with regard to the representations made to him by the United States.
8. I accept the submission that the court should consider the culpability of the requesting state in the matter of delay, particularly and primarily to the extent that it bears upon considerations of injustice and oppression; see Kakis v the Republic of Cyprus, [1978] 1 WLR 779 HL.
9. It is contended that to the extent that the delay remains unexplained the court is being hindered by a refusal by the Secretary of State to make disclosure of his correspondence with the United States following representations received. It is first necessary to summarise relevant events.
10. In 1984 the claimant purchased from Finland a 40-foot yacht named Can Can IV, changed to Can Can of Arne. It was registered in the United Kingdom in the Ministry of Transport's Register of Small Ships in the claimant's own name, giving his address as his family home in Dorset. In 1986 the claimant sailed the yacht to the West Indies and Florida. He admits remaining in the area until late 1987 when he returned to the United Kingdom to take part in the Fastnet Race.
11. He says that he then sailed to Greece, Australia and Java where he met his first wife, Marcella, in 1991. In July of 1988 he re-registered his yacht in the name of his mother to secure her loan to him of the purchase price in 1985.
12. In the meantime, in May 1988, a search warrant issued by the United States District Court for the southern district of Alabama was executed by Special Agent Douglas Lamplugh at premises on the water front in Elberta, Alabama. A substantial quantity of cannabis and cannabis oil was seized and four persons were arrested at the property: Billy Williams, also known as Charles Overstreet; Ruby Williams, Cortina Mattner Byles, and Michael Mattner.
13. Howard O'Neal, Michael Beauchemin, James L Rigsby and Herbert T Baskin were also arrested. Baskin immediately made a plea bargain agreement with the prosecutor. It was a condition of that agreement that the defendant would:

"fully and truthfully respond to all questions put to him by federal and state law enforcement authorities".

In June of 1988, Baskin began co-operating with the investigating team. That information was provided by Special Agent James Baker in his affidavit of 26th February 1998. It could not, however, have been Mr Baker who interviewed Baskin in June 1998 because he did not join the team until January 1989.

14. At some unidentified stage, Baskin told the team that in 1988 two men, Beauchemin and Clarke, visited the house in Elberta, where Clarke was shown marijuana stored in the garage.
15. Also in June 1988 the investigators commenced their pursuit of an alleged co-conspirator, Robert Delisser. Mr Lamplugh spoke to Howard O'Neal following the latter's arrest and O'Neal named Delisser. An indictment was returned against Mr Delisser on 19th August 1988. It charged him with offences of importation to and distribution within the United States between 1986 and 1988. An arrest warrant was issued. An application was made to the Cayman Islands government for the extradition of the suspect to the United States.
16. That application was supported by an affidavit sworn by the prosecutor, Gloria Bedwell, an assistant United States attorney in the southern district of Alabama. She exhibited an affidavit sworn by Howard O'Neal and another by Mr Lamplugh. O'Neal implicated Delisser, Billy Williams and others but did not implicate the claimant Mr Carlyle-Clarke. Mr Lamplugh deposed that following the arrests at the property in Elberta he had seized a substantial quantity of documents. Among them was an invitation to the Williams to the wedding of Robert Delisser to Serena Wendell in Goytre near Abergavenny in Wales on 12th September 1987. That invitation made an important connection between the Williams and Delisser. Also recovered were several photographs which reinforced the evidence of connection. I shall have to return to the issue of photographs in more detail later.
17. One of the affidavits submitted by the defence of which there were many from the family and friends of Mr Delisser in an attempt to undermine the credibility of Mr O'Neal, was supplied by the claimant. In it he claimed that Randy Nelson had contacted him direct about the need for funds and that it was he, and not Delisser and O'Neal, who had made the arrangements. If accepted, that evidence tended to undermine O'Neal on a peripheral issue.
18. The affidavit gave the claimant's name and address in Dorset and his temporary address in Antigua. It was sworn at St Johns, Antigua, on 6th May 1989. The senior magistrate ruled in favour of the United States government, Mr Delisser was released on bond, but he absconded before he could be returned for trial.
19. In May 1990, Beauchemin and Rigsby also made a plea bargain agreement with the prosecutor which contained the same undertaking to frankness as had Mr Baskin. They, too, implicated the claimant in the conspiracy both in Jamaica and in the United States. Beauchemin said that he was introduced to Giles Clarke by Robert Delisser. It was agreed Mr Clarke should deliver 200lb of marijuana using his yacht, the Can Can. That voyage was successful.
20. In the next, Mr Clarke agreed, he said, to sail a Morgan yacht, carrying about 7,000lb of marijuana smuggled from Jamaica to St Petersberg, Florida. Beauchemin said he paid Mr Clarke the sum of $500,000. The third importation in which Beauchemin did not implicate the claimant took place in about March of 1988. The claimant was, he said, involved in inspection of part of the cargo in Elberta for distribution by the claimant and Delisser.
21. Rigsby implicated the claimant in the arrival and unloading of the first cargo in St Petersberg, Florida and with the inspection and movement of the third cargo. He claimed that he had stayed the night at the same motel as the claimant at about this time. Baskin also implicated the claimant in the inspection of the third cargo in Alberta.
22. In 1990 Rigsby was sentenced to four years' imprisonment and in 1991, Beauchemin to seven years' imprisonment, Baskin received a suspended term of 15 years' imprisonment and a probation order.
23. The claimant married his first wife Marcella on 19th January 1992; their daughter, Jessica, was born later the same year. With the evidence now available, the prosecutor instituted proceedings against the claimant before the grand jury in the southern district of Alabama. On 26th June 1992, an indictment against the claimant was returned.
24. Count 1 alleged that between 1983 and the 31st May 1988, he was a member of the conspiracy to import marijuana to the United States.
25. Count 2 alleged that between the same dates, he was a member of the conspiracy to possess marijuana with intent to distribute it.
26. Count 3 alleged that during March 1988 he was involved in the importation of marijuana.
27. Count 4 alleged that on or about the 9th March 1988 he was in possession with intent to distribute marijuana. On 6th July 1992 a warrant for the claimant's arrest was issued.
28. One of the alleged conspirators named in this indictment was Walter Gilbert Byles, Mr Byles is a native of Jamaica. An extradition warrant for Byles was issued by the prosecutor Gloria Bedwell, and a diplomatic request for extradition was made on the 27th September 1993. It was served upon the Jamaican police authorities on 4th January 1994. On 8th December 1995 the resident magistrate made an order for committal of Mr Byles. On 15th June 1996 an application to the full court of the Supreme Court for a writ of habeas corpus was refused. An appeal against that decision was heard over a period of 20 days in the Court of Appeal in Jamaica and was allowed.
29. The reasons for allowing the appeal appear in the judgment of the President of the court, Rattray J. To summarise, first: the United States had failed to prove the authenticity of the indictment Mr Byles faced in Alabama; second: an alleged co-conspirator whom Byles wished to give evidence in his defence had been returned to the United States with the complicity of the Jamaican police, this constituted an abuse of the committal proceedings; third: it would, by reason of the passage of time, since he was alleged to have committed the offence, be unjust and oppressive to return him.
30. The President understood that the accomplice's evidence in support of the request for extradition had been gathered only in 1992. Accordingly, that evidence could not have supported a warrant and indictment issued in 1989. It was apparent to him not merely that the United States could not verify which indictment Mr Byles now faced but that there was in existence an earlier indictment in respect of which no further proceedings had ever been taken.
31. He reached this conclusion since the prosecutor, Gloria Bedwell, deposed to the existence of an indictment number 89/00089, containing six counts whereas the copy indictment exhibited to her affidavit was numbered 91/00054 and contained six counts which did not coincide with the original.
32. The court was not prepared to accept counsel's mere assertion on behalf of the United States that there had been a simple error in the identification of the indictment in the body of the prosecutor's affidavit. No other explanation was forthcoming.
33. This reasoning lead the President to the following conclusion with which the other members of the court agreed:

"The foundations of extradition arrangements rest upon the principles of comity and reciprocity, that is the basis upon which nations enter into extradition treaties with each other. Consequently the evidence would have to be compelling to find an absence of good faith, which I do not.

"However, the effect of the passage of time would be so disruptive to the appellant who has lived an open and settled life over those years that in the absence of any contributory factor on his part and of any explanation on the part of the requesting state, coupled with the extraordinary difficulties of defending serious criminal charges of such staleness and antiquity, I am compelled to the view, having regard all the circumstances of this particular case, that it would be unjust and oppressive to extradite the applicants."

34. Speaking for myself, I understand the deep unease the Jamaican Court of Appeal experienced at the manner in which the issue was delay was being presented to them. The papers before the court allowed the real possibility that the prosecution had laid sufficient evidence before a grand jury in 1989 for the jury to issue an indictment but the United States had , without explanation, chosen not to pursue it for three years.
35. What was the material before the court upon which the President reached the conclusion that Mr Byles faced extraordinary difficulties in defending himself after this lapse of time, I cannot speculate but I can only assume that there were proper grounds for that conclusion.
36. Mr Jones submitted that it is a conclusion which should impress itself upon this court. In my view, a judgment upon the issue of injustice or oppression caused by delay must depend upon the particular facts of the case, particularly the quality of the behaviour of the prosecutor, and if culpable, its effect upon the issues of injustice or oppression.
37. It may well be that there was a simple explanation as there often is in matters of this kind, which could have been established by the presentation of evidence but the fact that no effort was made to explain the situation played, in my judgment, a significant part in the words used by the President in his conclusion.
38. Accordingly, while the decision of the Court of Appeal in Jamaica is to be respected, the factual background here must be judged on its individual merits. The Secretary of State in his first decision letter expressed the view that Mr Byles' case was distinguishable. In my view, for the reasons I have given, that was an entirely justifiable conclusion.
39. Between 1995 and 1997, no proceedings were taken against the claimant. It will be necessary to examine the reasons in a moment. In April 1995 the claimant's marriage was dissolved. He married his second wife, Sumiata, an Indonesian national, in Java in May. In January 1996 their child, Maxmillian, was born. Sumiata left her home and has not seen her child since. The claimant was divorced in October 1996. Maxmillian was brought up by and lived with his father but there were business absences.
40. The report of a paediatric psychologist of 25th January 2000 -- prepared for the purpose of describing the closeness of the claimant's relationship with his children and the possible consequences of separation from them -- records the claimant's explanation that he employed a housekeeper and part-time child-minder.
41. In December 1997 the claimant was arrested in England and charged with money laundering. The subject was a payment of $495,500 into the bank account of a family company. The claimant was remanded in custody.
42. On 17th December, 1997, Mr Beauchemin swore an affidavit implicating the claimant. He identified the claimant by a photograph. On 7th January 1998 Mr Rigsby supported his account by affidavit and he, too, made an identification by photograph. On 9th January 1998 the English proceedings were discontinued and the claimant was rearrested under the current extradition warrant and remanded in custody. He was released on bail conditionally on 20th February.
43. On 25th February Mr Baskin supported his account by affidavit and he identified the claimant by means of a photograph. The Secretary of State issued an authority to proceed on 19th March, 1998. On 4th September 1998 committal proceedings commenced. As I have said, they were concluded on 4th January 1999.
44. Mr Jones, in support of his argument that delay has been inordinate, invited us to concentrate upon two periods: the first is that between the end of the alleged conspiracy, May 1998, and the date of arrest, January 1998; the second period is that between the commencement of representations on the claimant's behalf in December 1999 and the Secretary of State's second decision letter of November 2003.
45. Mr Jones submitted to us that explanations for inactivity between 1988 and 1998 are tainted by the Secretary of State's refusal to make full disclosure of his correspondence with the prosecuting authority in the United States conducted in consequence of the representations to which I have referred.
46. The duty of the relevant public authority whose decision is challenged is, he says, to make full relevant disclosure of the facts to the court and therefore, to the claimant. He relies upon the observations of Lord Donaldson MR and Parker LJ, in R v Lancashire County Council ex-parte Huddlestone, [1986] 2 All ER 941 at pages 945 and 947; also the judgment of Laws J in R v London Borough of Lambeth, ex-parte Campbell, [1994] 618 HLR at page 622.
47. In each case the court observed that a United Kingdom public authority had done less than it ought to explain its reasons for reaching the decision under challenge. In Huddlestone the court was nevertheless not persuaded that the council had erred in its approach to its decision; in Campbell the decision of the council was quashed.
48. In my judgment these statements of good practice are of limited value to the claimant in the present case. The government of the United States is not a United Kingdom public authority whose administrative decision is being reviewed by the court. The decision being reviewed is that of the Secretary of State. The Secretary of State has assumed an obligation to exercise a discretion but he does so in the context of reciprocal enforcement of criminal investigation in both sovereign jurisdictions under the Extradition Treaty of 1976 between the United States of America and the United Kingdom.
49. I recognise that when making enquiries in the performance of the exercise of his discretion, the Secretary of State will have access to information and sources of information which it is not appropriate or desirable for him to disclose or which he is bound not to disclose. This may be particularly so in the case of an ongoing investigation.
50. Provided however that disclosure is made to the court of the essential nature of the facts upon which the Secretary of State exercised that discretion, it does not seem to me to be the business of this court to interrogate the Secretary of State at the election of the claimant.
51. In the end, as in Huddlestone, the question for the court will be whether the decision was made lawfully and rationally upon a proper application of the law and the essential facts. A refusal to make full disclosure will not necessarily be greeted by a presumption or inference that the Secretary of State is concealing material which assists the claimant. In my view, unless the contrary is indicated, the court will assume that the exercise of the Secretary of State's discretion is conscientious.
52. The court is required to make an assessment of the facts available to it. Should there be a lacuna in reasoning of such magnitude that the decision cannot be supported by the material which is available, then obvious consequences follow to the detriment of the Secretary of State's case. In my judgment, for reasons which I shall explain, that position has not been reached in this review.
53. It is from this point that I approach the issue of culpability for delay. Mr Jones points to the prosecutor's knowledge of the claimant's home and temporary address disclosed in his affidavit dated 16th May 1989 in the Delisser extradition hearing. On 8th January 2003, Gloria Bedwell wrote to explain that she did not realise the significance of the claimant's affidavit. Her involvement, she said, was as a witness by deposing in an affidavit to the material which supported the case against Mr Delisser.
54. Mr Jones mounted an attack upon Miss Bedwell's assertion. Its cogency depended upon the opinion of Mr Quin the attorney who acted for Ms.Delisser in the extraditon hearing. It is Mr Quin's view that the US prosecuting attorney who was making the application to the Cayman Islands on behalf of the United States and therefore instructing counsel in Grand Cayman must have been familiar with the evidence.
55. Further evidential material was supplied during the course of the hearings. This would indicate she would have had a command of the evidence submitted by both sides. For my part, I am not prepared to draw any such inference. Special agents Lamplugh and Baker did travel to Jamaica to represent the United States and in due course they gave evidence. Miss Bedwell did not. Counsel locally was instructed by the office of the Attorney-General, such communications as there were with America must have been telephonic.
56. I would not, in these circumstances, expect the United States prosecutor to be familiar with the mass of evidence gathered by the defendant and presented to the magistrate. The agents undoubtedly would have had some knowledge of the defence affidavits because the prosecution had to deal with them. But what was the depth of understanding of its significance I cannot speculate.
57. Having read the closing submissions of both counsel, Ms.Smellie for the government and Mr. Raman Alberga QC for the defendant, I am not prepared to assume that the affidavit sworn by the claimant acquired more than peripheral relevance, either to the agents or to counsel or to the lawyer instructing them. The short submission contained in Mr Smelly's note of his closing remarks on behalf of the United States was this:

"Giles Carlyle-Clarke, hearsay, that Randy Nelson told him he needed money for attorney's fees should be struck from the records."

58. I see no basis for requiring additional disclosure of Miss Bedwell's state of mind since I do not consider that the circumstantial basis for a prima facie adverse inference exists.
59. Mr Jones identifies in the affidavit of Special Agent James Baker of 26th February 1998 evidence that Herbert Baskin began to co-operate in June 1988. Mr Baker proceeded in his affidavit to describe Mr Baskin's account of his involvement in the conspiracy between 1986 and 1988, repeated in his own affidavit of 25th February 1998.
60. Whether all that information was revealed in 1988 rather than 1998, including the name of the claimant, Giles Clarke, is not clear. I shall assume for the purpose of the present proceedings that it was, although I am by no means persuaded that such an assumption is warranted.
61. I shall further assume, therefore, that the information from the United States referred to in the Secretary of State's first decision letter to the effect that Mr Baskin was not questioned about the claimant in 1988 was mistaken.
62. The controversy reduces in significance when it is appreciated that Mr Baker is explicit in the same affidavit that Mr Rigsby, during interviews conducted in July and August 1990, also identified the claimant by the name Giles Clarke and described his limited involvement in the distribution of the third consignment in March 1998.
63. It does not seem to me, however, that the identification of the period of inaction is enough to demonstrate that the inaction was culpable or inexcusable. Nor does it demonstrate a decision not to prosecute.
64. Unlike the case of Mr Byles, there is no indication here of any inconsistency of approach towards the claimant. The delay is in my view no more than an indication of the pragmatic selection of priorities. At the time that the information came to the investigating team there was no lead as to the claimant's whereabouts.
65. An astute investigator with the requisite resources could have carried out an enquiry in the United Kingdom and if he had realised that Giles Clarke was or might be the same man who swore an affidavit in the Delisser extradition proceedings, could have caused enquiries to be made at his home address.
66. That no such enquiry was made at that stage does not, in my opinion, signify neglect, let alone inexcusable delay. Even if enquiries were successful they would have revealed that the claimant was travelling, according to his own evidence, around the island of Java.
67. In his first decision letter, the Secretary of State informed the claimant he had made enquiries. In that letter he wrote:

"The United States' authorities have stated that the case against Mr Carlyle-Clarke was one of many that resulted from a huge drugs investigation that began in 1988. It seems that the investigation identified about 80 people involved in the marijuana smuggling and distribution scheme, though not all at the same time. Numerous indictments were returned over the next few years as investigative leads were followed up. Additional information was obtained through the co-operation of those arrests and corroborated by the documentation that had been seized. The United States authorities make it clear that it took several years to progress this complex operation and maintain that they had been entirely proactive in bringing the matter to a conclusion."

68. This information amounts, it seems to me, to a reasonable explanation why time passed before the investigating team devoted efforts to the pursuit of this claimant. The mistaken assertion that Baskin was not interviewed about the claimant in 1988, if it is a mistake at all, is in my opinion understandable in an investigation as complex and as wide-ranging as this one.
69. Secondly, upon the issue of period one, Mr Jones has identified what he submits is at least an error in the explanations tendered for the delay which the Secretary of State has failed to take into account when exercising his discretion. His submission arises from an assertion of fact. That is that amongst the material recovered from the search in Alberta in May 1988 was not only the wedding invitation to which I have referred but also a photograph of wedding guests enjoying the reception in the grounds of Goytre Hall Abergavenny. Pictured in the photograph is the claimant and Mr Delisser.
70. That photograph, it is said, provided the investigative team with solid evidence that the claimant was associated with the occupants of the house in Elberta and with Robert Delisser. They had material from the outset, therefore, which they could and should have used to commence their investigation into the complicity of the claimant and to trace him once his involvement became clear from information provided by his accomplices.
71. The wedding invitation was exhibited by Mr Quin to his affidavit of 23rd January 2003. Mr Quin had managed to recover some of his papers from the Delisser extradition proceedings. Included was the affidavit of Mr Lamplugh to which the invitation was originally exhibited.
72. Mr Lamplugh said, amongst other things:

"I arrested Billy J Williams and Ruby Williams [husband and wife] and Micky Mattner and Cortina Mattner Byles [brother and sister] at the residence, charging them with violating United States drugs laws. I have also seized a significant quantity of documentary evidence which has been secured at the drug enforcement administration office in Mobile during the investigation and prosecution of these charges...

"I seized some items which established association by Delisser with Billy and Ruby Williams, Micky Mattner and Cortina Mattner Byles. These items include a wedding invitation to the Williams for the marriage of Robert Delisser to Serena Williams Rees. A true and correct copy of this invitation is attached hereto and marked 'exhibit one'.

"I found some photographs depicting Delisser with other participants in the marijuana-smuggling adventures, some of whom have been charged with the defendants in this investigation. True and correct copies of these photographs are attached hereto and marked as exhibits 2A through to 2F."

73. Mr Quin did not exhibit, either to his first or to his second affidavit of 22nd July 2003, any of the photographs described by Mr Lamplugh as exhibits 2A to 2F. That is not a criticism, they have probably been mislaid.
74. Of more significance perhaps is the fact that Mr Quin did not claim, in either affidavit, a recollection of any photographs which might be relevant to the enquiries he was being asked on behalf of the claimant to conduct.
75. The question therefore arises: whether any of the photographs produced by Mr Lamplugh had any connection with the claimant? Also exhibited to Mr Quin's second affidavit are the notes of written submissions made by counsel to the magistrate hearing Mr Delisser's case.
76. They both made reference to the photographs, exhibits 2A to 2F, produced by Mr Lamplugh. Mr Smelly, Counsel for the United States, said this:

"Can this court be compelled to accept that what appears to be the photographic memorabilia of a long-standing acquaintance between Robert Delisser and the Williams were in fact required because of the Williams' zealous photographic accesses as they were posing as tourists. This is what Diana Delisser's evidence would suggest. How then does she explain so many different photographs in so many different settings? There is one that shows Robert Delisser dressing for bird-hunting in a cold climate along with Ruby Williams. How would Mr Diana Delisser explain the invitation to the wedding?"

77. About the same photographs, Mr Ramon Alberga QC, counsel for Mr Delisser, said:

"He [Mr Lamplugh] found several hundred photographs amongst the documents depicting children, dogs, events and occasions in the lives of the persons whose photographs they were. Six photographs, showing Delisser, and an invitation to his wedding were found... He confirms that Robert Delisser does not appear in any of the videos which he seized... Apart from the few photographs of the wedding invitation which do not indicate that Delisser was guilty of any of the offences set in the indictment, there is nothing in Mr Lamplugh's evidence to connect Delisser with the vehicle used for the transport of the marijuana... In relation to the photographs, it must be remembered that Diana Delisser in her evidence stated that Billy Williams was an avid photographer who was continually taking photographs. His evidence, however, showed a real involvement by Billy Williams, Gilbert Byles, and Howard O'Neal."

78. To my mind, while the evidence is by no means conclusive, two possible inferences are available: the first is that if there was, before the magistrate, a photograph of the guests who attended the very Delisser wedding to which the Williams had been invited and if that photograph depicted the alleged conspirators or some of them, specific reference would have been made to them, particularly by counsel for the United States.
79. The second is: if counsel had known that Mr Giles Clarke was not only a friend of Mr Delisser but the best man at his wedding and an alleged conspirator with him, he would have had a good deal more to say to the magistrate about the claimant's affidavit than he did say.
80. It is, in my view, noteworthy that Mr Smelly in his submissions to the magistrate was not shy about attributing to the defence witnesses dishonest complicity in Mr Delisser's activities. Nowhere in the admittedly incomplete material before us was there any mention of Giles Carlyle-Clarke's involvement with the characters in Mr Delisser's extradition hearing save for the existence of his affidavit.
81. In my view this serves to emphasise that if the investigating team was in fact in procession of information about the claim, which I have assumed for present purposes they were, they had not appreciated its significance.
82. The first specific mention of a wedding photograph was made by Special Agent Baker in his affidavit in support of the extradition of the claimant dated 26th February 1998. At page 7 of the affidavit, page 106, Bundle A, Mr Baker said:

"During the search of the residents in Alberta Alabama and subsequent searches of other areas controlled by the defendants, there were numerous documents, photographs, and other items seized which corroborate statements made by co-operating defendants. I have also obtained documentary evidence from businesses and motels that corroborate statements made by corroborating defendants. During the investigation I obtained photographs taken of Robert Delisser's wedding in Great Britain which showed Clarke, who was Delisser's Best Man, which corroborates the relationship between Clarke and Delisser. A true and correct copy of such photograph is attached as Exhibit 8."

83. In my view the way Mr Baker expresses himself is significant. He did not seige documents in Elberta in May 1988, he did not join the investigating team until January 1989. It was Mr Lamplugh who did that. Mr Baker then proceeds that he obtained documentary exhibits from businesses and motels. He was plainly referring to a later stage of the investigation when he acquired, amongst other things, the Best Western Motel registration slips and the banking documents. It was the latter which supported the domestic charge of money laundering in 1997 and which Mr Baker saw in 1995.
84. Finally, Mr Baker says that during the investigation he obtained photographs taken at Robert Delisser's wedding. It is clear to me, from the way Mr Baker was expressing himself, that he was not saying that the wedding photographs were part of the material seized in 1988. Furthermore, Mr Baker was a witness at the Delisser extradition in 1989. In his written submissions, Mr Alberga both confronts and relies upon the evidence given by Mr Baker. Had Mr Baker then been in possession of the wedding photographs to which he referred in his affidavit nine years later, I find it difficult to accept that he would not have produced them given the prominence which the wedding invitation had acquired.
85. In the written representations made on the claimant's behalf to the Secretary of State in December 1999 it is averred that a variety of documents were recovered in May 1988 from the house in Alberta including the wedding photographs and the room rental records at Best Western Motel. This was in my view an averment made in consequence of a misreading of Mr Baker's evidence.
86. The Secretary of State did not specifically address the assertion in his first refusal letter but expressed himself satisfied with the United States' explanation why the indictment was not returned until June 1992 after Rigsby and Beauchemin had started to cooperate with the authorities.
87. By November 2002 Mr Compton, the claimant's solicitor, was in possession of Mr Quin's file from Jamaica. On 11th November 2002 he wrote to the Secretary of State to make further representations. Included is the sentence:

"We have viewed the files still held by Charles Quin and have taken copies of such material as seems to us to be relevant to such issues as have arisen or may arise in this matter."

88. Later, he wrote this:

"As a result of information received, we can now advise you that we expect to be in a position to prove by evidence that the applicant had a video and photographs of our client and had identified him, thereby, at the outset of their investigations in or about May 1988. If true, such facts would entirely destroy the basis of the applicant's explanations to the Secretary of State for the delays and seriously call into question not only the bona fides of the applicant but whether our client could possibly have a fair trial if returned and also reopen the whole question of oppressiveness and so forth."

89. Mr Compton interviewed Mrs Cortina Byles, one of those who had been arrested in 1988 and made a plea bargain with the prosecutor. She claimed to have been shown a wedding video of Mr Delisser's wedding by the police. In it she identified the claimant. She made an affidavit in support of that account. She does not say when she was shown the video. She does say that she was visited many times by the investigating team.
90. It will be recalled that counsel for Mr Delisser in Jamaica elicifed from Agent Lamplugh an answer which assisted his client that none of the videos seized in Alberta depicted Mr Delisser. Since it was Mr Delisser's own wedding, if Mr Compton's information was accurate and if it had been in possession of the United States since May 1989 it is remarkable that it was not used in evidence. The answer to this conundrum must be: if the wedding video came into the United States' possession it was at another time and by another means.
91. On 20th June 2003 Mr Compton wrote to the Secretary of State enclosing an affidavit made by Mr Delisser's former wife, now Serena, Marchioness of Bute. She has been a friend of the claimant's since childhood. She said that she recalls sitting in the public gallery during her then husband's extradition hearing. She was in an elevated position overlooking the court. She says she saw Mr Smelly sorting through his papers. Amongst them on one occasion she noticed was a photograph of Giles Carlyle-Clarke. She also purported to depose that Miss Gloria Bedwell was in hands-on control of the United States' government case in Grand Cayman. She reached those conclusions, she said, as a result of hearing remarks made by the advocates and by Mr Quin.
92. Thirdly, Mr Jones relies upon the United States' knowledge of the existence of the claimant's yacht, Can Can of Arne. Its relevance is the alleged failure to take appropriate steps to seek out the claimant followings receipt of the relevant information from Mr Beauchemin, sometime between 1990 and 1992. This was the first time the United States had knowledge of Mr Clarke's role in the first two importations in 1986 and 1987. A search of the United Kingdom Ministry of Transport Register of Small Ships would have provided all the information needed to connect the claimant with the yacht. It would also have provided his address in the United Kingdom. The evidence that this is so seems to me to be compelling.
93. On 8th January 2003, Gloria Bedwell wrote to the Office of International Affairs in Washington responding to the representations made on behalf of the claimant. The essence of those representations was this -- One: the United States was in possession of a photograph of the claimant in 1988; two: Miss Bedwell took an active role in and was present at the hearing of Grand Cayman, accordingly she knew of the existence of the photographs and the claimant's affidavit in those proceedings; three: the United States was in possession of a wedding video in May 1988, recovered from the home of Billy Williams; four: the United States seriously misled the Secretary of State, obtained the claimant's committal by fraud and had, with the connivance of the United Kingdom, manipulated his domestic arrest for money laundering; five: the United States knew of the claimant's whereabouts between 1995 and 1997.
94. These were serious allegations against the probity of the United States and Miss Bedwell's reply was understandably trenchant. During this period of consultation with the United States, in 2000 and 2001, the Secretary of State had acquired explanations recorded in his first decision letter of 4th July 2002. They are to be found in full at pages 2 and 3 of bundle B. In short, he was informed that in 1992 when the indictment was preferred, the investigators had no photograph of the claimant and no date of birth with which to verify his identity. Unsuccessful attempts were made to locate him in Florida where Rigsby had last placed him. They only learned of his identity when Mr Baker travelled to the United Kingdom to follow up information about Mr Delisser in 1995. He then learnt that the police were conducting their own enquiry into money laundering.
95. Mr Baker was provided with a photograph and details. He was informed that the claimant was somewhere in Indonesia. Later enquiries revealed that the claimant was travelling in Europe. Not until 2nd December 1997 was the claimant arrested by the police in the United Kingdom, on his return.
96. It was revealed that Agent Baker had indeed made enquiries about the Can Can but in the United States. He had not realised that the yacht might be British-registered until 1995. Miss Bedwell insisted in her letter of January 2003 that the United States stood by the representations previously made. She had consulted Mr Lamplugh about the recent information about the existence of a wedding video. He told her that the only video he could recall seeing concerned activity in Jamaica when a smuggling vessel was being adapted. Mr Clarke could not be seen in it.
97. Miss Bedwell repeated that her agents were unaware of the claimant's whereabouts until 1995, when Ms.Baker was informed that he was in an unknown location in Indonesia.
98. Among the material the claimant's solicitor continued to submit were affidavits from Joel Cohen, an attorney, and Rodney Davis, a private investigator in the United States, dated 24th January 2003. Based largely upon assertions currently made by Messrs Baskin, Beauchemin and Rigsby it is asserted that the prosecutor obtained affidavit evidence against the claimant by deception. Mr Cohen added about Mr Baskin:

"He had little if any information relating to Giles Carlyle-Clarke. Indeed although he had a vague recollection about meeting an Englishman named Giles, he did not at the time note his surname."

99. However Mr Baskin declined to make a witness statement to this or any other effect because he was fearful of a prosecution for perjury. Mr Cohen said he prepared a statement for Mr Baskin, which he understood Mr Baskin would be prepared to sign, it contained no reference to any event before 1998, and Mr Baskin never did sign it.
100. A further affidavit from Mr Cohen of 6th February 2003 was tendered in which he said that he had located Billy Williams. Mr Williams told him a wedding video recorded in September 1987 was recovered from him in May 1988. At a subsequent meeting Mr Williams retracted it and would make no statement.
101. Thirdly, an affidavit from Mr Compton of 10th March 2003 describing his visit to Mrs Byles -- I have already made reference to Mr Compton's interview with her.
102. Fourthly, the affidavit from Serena Bute, Mr Delisser's former wife to which I have referred, and a further affidavit from Mr Quin to which I have referred.
103. In his second refusal letter of 22nd November 2003, the Secretary of State confirmed that he had considered all the material provided on the 8th January and the supplemental representations including the affidavits to which I have just made reference. He concluded that there was no reason to doubt the good faith of the investigation. He did not accept the allegations of bad faith. In particular he accepted the account given by Gloria Bedwell in her letter of 8th January 2003, concerning the identification evidence available to the United States.
104. On 1st December 2003, Mr Compton invited the Secretary of State to agree that the United States was in possession of a photograph of the claimant from about May 1988. Accordingly that the assertion that the photograph came into their possession in 1995 was, at the least, not accurate. That concession was not made.
105. In light of the event I have explored, I can see no basis for the claimant's assertion that the Secretary of State has been unduly credulous in his acceptance of the good faith and reasonable diligence in the United States. The attack upon the probity of the investigation has in large measure, in my view, been mounted upon an incomplete and mistaken appraisal of the evidence.
106. As to the changes apparently emerging in the accounts of Messrs Baskin, Beauchemin and Rigsby, the Secretary of State concluded that these were matters properly to be explored at the trial in the United States. That was, in my view, an approach well within the proper exercise of the Secretary of State's discretion.
107. The second period of delay to which Mr Jones drew our attention was December 1999 to November 2003. It began with the claimant's 17-page representations and five-page chronology. A further letter and enclosures were sent on 1st February 2000. Detailed assertions of fact and argument were addressed to the Secretary of State. It took over two years for the Secretary of State to give his detailed reply in the first paragraph of which he wrote:

"I am sorry that it has taken very much longer than we would have wished to consider all materials submitted and to make enquiries on the detailed points to be raised."

108. A reading of the letter makes clear the magnitude of the task with which the Secretary of State was involved. Nevertheless I agree that it should not have taken as long as it did to complete those enquiries. No further explanation has been offered.
109. I take the view that a period of about 18 months was, in the absence of explanation, unjustified. I am not prepared, however, to find that this period of delay made any significant contribution to the whole nor that it generated injustice or oppression.
110. Following the refusal, the whole period was taken up with the claimant's own enquiries which were protracted. As Mr Qureshi correctly pointed out, the claimant's solicitors were setting out to prove bad faith. I do not consider that the enthusiasm with which this assertion was made and investigated was ever justified.
111. Far from criticising the Secretary of State, I consider he afforded the claimant every opportunity to contradict the information which he had acquired from the United States if he could.
112. In the light of the outcome of those enquiries, I do not consider any part of the period between July 2002 to date is attributable to inaction by the Secretary of State.
113. It is now 16 years since the last of the alleged offences was committed. Mr Jones submitted that the issues of injustice and oppression should be considered disjunctively and weighed together. He drew our attention to a passage in the speech of Lord Hope in R v The SSHD ex-parte Launder, [1997] 1 WLR 839 at page 855 G-H. I accept his submissions in these respects.
114. The Secretary of State received a number of previous decisions and reviewed them upon the exercise of the discretion, and distinguished them on the facts. I consider, after examination of them, that he was right to do so.
115. Mr Jones referred us today to an additional authority, the decision of this court differently constituted over which my Lord, Lord Justice Rose presided, Sagman v the Government of Turkey & Anr [2001] EWHC Admin 474. Mr Qureshi has demonstrated to my satisfaction that it is of no assistance to the present case.
116. The Secretary of State concluded that there was no evidence before him that the claimant could not mount an effective defence to the charges despite the passage of time, nor was there any question the claimant could not receive a fair trial.
117. Although the claimant had in the meantime acquired a family, a business, and undertaken responsibilities whose removal would cause hardship particularly to his children, he had to weigh all other aspects of the case which included, of course, this country's treaty obligations and the seriousness of the charges faced.
118. The Secretary of State has not suggested that the claimant was culpably responsible for delay in his arrest but he has concluded that any belief he may have acquired that he would not be pursued was not attributable to any representation, express or implied of the United States, such a belief was equally consistent with relief that he might have escaped detection.
119. I have examined the same material as was before the Secretary of State including the claimant's affidavit of 11th February 2003, in which he was explicit in his denial of any offence. If he is not guilty, he can hardly have acquired a belief that he was ever at risk of prosecution; if he is guilty then his free movement around the world since 1988 is consistent with the belief that he has not been implicated.
120. I have noted that on the only occasion the claimant has lawfully entered the United States since 1988, he stopped over by air en route to Jamaica on 23rd April 1992, and stopped over on his return to Indonesia on 4th May 1992.
121. I cannot infer from this evidence either that he had any justified belief that he was safe from the United States authories, or that the United States had made a conscious decision with knowledge they had or ought to have had not to pursue him.
122. Mr Jones has not suggested to us that any evidence available to the claimant in 1992 has ceased to be available as a result of delay. He has of course pointed out to us the usual disadvantage in investigation to which regard must be had by the court at trial. The claimant himself has deposed to his anxiety for the health of his mother. That is not merely a filial concern; his mother, he says, is the author of notes detailing his movements to and from the United Kingdom. The relevance of those notes was not, however, explained.
123. Furthermore, as I have said, the claimant admits he spent 1986 and 1987 in the Caribbean and that he was out of the United Kingdom for periods in 1988. I can identify no injustice in the return to the United States and, in my view, the Secretary of State's conclusion to that effect was justified.
124. There are features of the claimant's current situation which I have found agonising. I must remind myself that we are not exercising the Section 12 discretion for ourselves. We are considering whether the Secretary of State's decision was open to him on the facts. I am in no doubt that the Secretary of State did not misdirect himself, that his decision was proportionate and that he reached a decision well within the permissible limits of his discretion. For these reasons I would dismiss the claim.
125. LORD JUSTICE ROSE: I agree. Accordingly, this application is dismissed. Anything else?
126. MR QURESHI: I have no applications.
127. MR JONES: My Lord, may I just mention this -- I will mention this for the Secretary of State so that he knows the position -- we have two weeks to lodge an appeal. My Lord, of course any appeal depends upon a question of public importance being certified. We cannot make that decision this afternoon. I need to consult with my learned junior, my solicitor and of course the claimant and his family. My Lord, I say that because we are entitled to consider that and we shall do and if we do, we shall lodge an application in the normal way within two weeks.
128. LORD JUSTICE ROSE: Thank you.