England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 March 2004

Lord Justice Kennedy:

1. This is an application for Habeas Corpus and a renewed application for permission to seek judicial review of a decision of District Judge Davidson who at Bow Street Magistrates' Court on 12^th November 2003 committed the applicant to await the decision of the Secretary of State in relation to a request for extradition to France to face 3 charges, which allege that between 27^th March 1997 and a date in April 1997 the applicant conspired with Jacques Evrard and others –

(1) To fraudulently evade the prohibition on the importation of a controlled drug, namely cannabis resin:

(2) To be in possession of a controlled drug, namely cannabis resin:

(3) To be in possession of a controlled drug, namely cannabis resin with intent to supply it to persons unknown,

all within the jurisdiction of France.

2. The applicant's case in outline is that he should not be extradited because all three charges relate to matters within the ambit of a conspiracy to which he has pleaded guilty, and for which he has been punished in this jurisdiction.

Facts.

3. In April 1997 the French police conducted a surveillance operation which revealed that the applicant, a French national, then aged 47, and a number of others, were involved in the movement of a lorry load of cannabis resin from Morocco to a warehouse at St. Ouen l'Aumone near Paris. On 11^th April 1997 he and others were arrested near to the warehouse, but on 10^th February 1998 the Prosecuting Chamber set aside part of the proceedings, and ordered that the applicant and Evrard be released. That however did not bring the investigation to an end, and on 10^th April 1998 the Investigating Judge sent the applicant a notice that he was to be investigated. He was asked to attend court, but did not respond.
4. On 25^th April 1998 the applicant was arrested in England for drug offences, having been deeply involved in the movement to England over the preceding two months of 87 Kilograms of cocaine, with a street value of about £9.7 million and 1.324 tonnes of cannabis. The French authorities were made aware of his arrest.
5. In England the applicant and six others faced an indictment which, in its final form, contained five counts. For present purposes only count one is relevant. It alleged that the applicant and two others, between 1^st January 1995 and 26^th April 1998, conspired together and with others, some of them named, to evade the prohibition on the importation of cocaine and cannabis resin.
6. In a letter dated 19^th January 1999 from the applicant's English solicitors to the Customs & Excise there was set out the basis on which the applicant was prepared to plead guilty to that count. The letter expressly referred to the arrest in France, and asserted that the ultimate destination for the 2.5 tonnes of cannabis resin which reached the warehouse at St. Ouen l'Aumone was to have been England.
7. On 4^th February 1999, soon after that letter was written, the applicant's French lawyer advised the Investigating Judge in France that the applicant was being prosecuted in England for the same offences as those committed in France. The Investigating Judge then, on 19^th March 1999, sent international letters of request to the competent authorities in the United Kingdom, asking them to "cause a judge to proceed with a detailed examination of Andre Caddoux" in relation to the facts giving rise to the French investigation (which were spelt out in detail). The addressees were also asked to notify Caddoux of the findings of an expert in relation to the drugs seized in France and to advise the French Judge of the reasons for his detention in custody and the progress of the English proceedings. It appears that, shamefully, there was no written reply to the letters of request, at any rate not in the short term. On 25^th January 2000 the Investigating Judge wrote to a named official at the Home Office enquiring as to the means of investigating Caddoux before a magistrate on British soil, and as to the nature of the offences for which he was being prosecuted in England and their relationship to those in France. That may have had some effect, because on 21^st March 2000, four days after Caddoux's co-accused had been dealt with in France, he was interviewed at Belmarsh Prison, by two Customs & Excise officials in the presence of his English solicitor, in relation to the March 1999 letters of request. The facts of the importation of the cannabis resin from Morocco into France were put to the applicant, and he agreed with them, but as to what was to happen to the drugs he appears to have been somewhat inconsistent. First he said that he was to find English buyers, because there were no buyers in France, then he said they were never to leave France, but the English buyers would be caught if they were in France when the authorities seized the drugs. Michael Michael was to be the English customer and the applicant said that his only reward would be commission on the sale.
8. On 24^th May 2000 the applicant appeared before Judge Stephens QC at the Central Criminal Court, and prosecuting counsel, when opening the case, indicated that the prosecution accepted the basis of plea. The applicant denied involvement in certain earlier transactions, but, said prosecuting counsel –

"He does accept that he was concerned with the importation of 2.5 metric tonnes of cannabis resin from Morocco. That was an importation from Morocco into France and was part of the overall conspiracy because that cannabis resin was destined for Michael Michael. It was his arrest in relation to that 2.5 tonnes of cannabis resin that led to his detention in France and his non-availability for that period of time…. He accepts that he was conspiring with Michael Michael in relation to that importation at an earlier stage. So there is, it seems to us, no problem in accepting that basis of plea."

As to quantities prosecuting counsel said –

"As regards cannabis, Mr Caddoux is accepting that he was a party to the importation of 1,324 kilograms on the bus to which is to be added 2500 imported from Morocco to France and the subject of the arrest which kept him in custody. That is roughly 3800 kilograms …. We are talking in terms of roughly £5 million worth, street value, of cannabis."

Having heard from Mr Peters QC in mitigation the judge passed sentence. He referred to the importation into England of cocaine after the applicant's release from prison in France in February 1998 and continued –

"Before and after that date you were involved with cannabis resin, amounting to some 3½ metric tonnes valued at something in the region of 5 million pounds, so a total of £14 million worth of illegal drugs approximately."

He referred to the applicant's degree of involvement even after his arrest and incarceration in France from April 1997 to February 1998. The applicant was sentenced to 13 years imprisonment, and information in relation to that sentence was conveyed to the Investigating Judge by the applicant's French lawyer. That sentence was later reduced to 10 years by the Court of Appeal Criminal Division.

9. We have read the judgment of the CACD which makes it clear that the gravamen of the offence for which the applicant was sentenced at the Central Criminal Court was the activity of the applicant after release from prison, and in particular the importation of cocaine. In paragraph 7 of that judgment Buxton LJ distinguished between the importation of cannabis into France and the agreement to use that cannabis in furtherance of the conspiracy to import drugs into England. He said –

"We accept that what he did in France was a step on the road to committing an offence in this country, but it was only a step on the road, it was a discrete act, and in our judgment it would be quite wrong for the period he spent in France in respect of the separate offence to be counted against any sentence that he serves here."

10. On 5^th March 2001 an international arrest warrant was issued by the French Investigating Judge, as a prelude to a request for extradition. Then on 5^th September 2001 the Investigating Judge sent notice to the parties of the ending of the investigation. The applicant's French lawyer then, on 23^rd September 2001, filed a request for an investigation, asking for the applicant's lawyer, prosecuting counsel, and an officer of Customs & Excise to be heard by letters rogatory to affirm that the applicant had pleaded guilty in England and had been sentenced for the crime of which he was accused in France. That application was rejected by the Investigating Judge on the basis that the hearing requested related to offences committed and sentenced abroad, whereas the Investigating Judge was concerned with offences committed on French soil. There was an unsuccessful appeal against that decision, but meanwhile on 15^th November 2002 the Public Prosecutor at Pointoise made a request for extradition. That was passed in due course to the Secretary of State in the usual way, and on 9^th April 2003 the Secretary of State gave the District Judge authority to proceed in respect of conduct which appeared to the Secretary of State to be conduct which –

"Had it occurred in the United Kingdom would have constituted offences of conspiracy to being concerned in supplying a controlled drug to another, conspiracy to being knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods, conspiracy to possess a controlled drug, and conspiracy to possess a controlled drug with intent to supply."

On 11^th April 2003 the applicant's English solicitor wrote to the Secretary of State advising him of the basis of the plea. Later that month on 26^th April 2003, the applicant was released from the sentence imposed at the Central Criminal Court, but he was detained in custody by the immigration authorities pending deportation. We have ascertained that a deportation order had been issued by the Secretary of State on 31^st March 2003, and it was served on the applicant on 23^rd April 2003. He was about to be removed pursuant to that order when, on 9^th May 2003, he was arrested at Bow Street Magistrates' Court in response to the request for extradition.

11. It seems that the Secretary of State then took the view that it would be unlawful to deport, pending the determination of extradition proceedings. That may be open to doubt. If the purpose of the deportation was to surrender the applicant to France without the benefit of extradition safeguards because the French government had asked for him then that would be illegal, but if the purpose of the deportation was simply to send the applicant back to his own country because the Secretary of State considered his presence here not to be conducive to the public good then a decision of the Secretary of State to deport him would be lawful (see R v Governor of Brixton Prison ex parte Soblen [1963] 2 QB 243 at 302). In this case it looks as though the Secretary of State may have been in a position to deport lawfully, because his decision to deport may well have been taken before he gave consideration to the request for extradition, but once the request for extradition was received I accept that there were powerful reasons of comity for giving it priority. The fact then was that a person wanted by the French authorities was still on English soil. If he were to be deported without notice to the French authorities, and that would we were told would be the normal practice, they might well be deprived of the opportunity to require him to stand trial in France, so, as it seems to me, the Secretary of State was right to allow the extradition proceedings to go ahead, leaving the deportation order to be implemented if necessary at the conclusion of these proceedings.
12. After the applicant had been arrested at Bow Street his solicitors wrote to the Crown Prosecution Service (as agents for the Government of France) drawing attention to the basis of plea. That was put to the French authorities and on 14^th May 2003 the State Prosecutor wrote saying that the offences involved in the judicial inquiry started in France were earlier than those for which the applicant was convicted in the United Kingdom. Plainly the writer of that letter to some extent misunderstood the position. That is clear from a letter written on 27^th May 2003 to Bow Street Magistrates' Court by Mr Biker, the Customs & Excise prosecution lawyer who had charge of the conduct of the prosecution in which the applicant had been involved. Part of that letter reads-

"I am advised that prior to receiving and executing a Rogatory Commission from France in mid-March 1999 (which requested that Mr Caddoux be further interviewed by UK Customs) another Customs & Excise lawyer who dealt with extradition and mutual assistance matters had sought and received an assurance from the French authorities that 'no proceedings will be instituted in France against Mr Caddoux for an offence connected to one for which he is being prosecuted in the United Kingdom.' Current extradition proceedings would therefore appear to be inconsistent with this assurance and it seems that Mr Caddoux has served a term of imprisonment here in the UK for offences including the one on 11 April 1997."

I find that letter puzzling. It appears to be the only reference to an assurance being given, and in March 1999 the French judicial inquiry was already in progress, whereas in England it remained to be seen whether the prosecution and the Judge would accept the applicant's basis of plea.

13. As a result of approaches made by the applicant's English solicitor, Mr Dominic Connelly, who had been junior counsel for the Crown at the Central Criminal Court, on 12^th June 2003 confirmed in writing that the applicant had been sentenced in accordance with his written basis of plea. Transcripts were obtained of the hearing at the Central Criminal Court, and they made it clear that the court did have regard to an intended importation of cannabis which had been moved from Morocco to Paris. That intended importation was regarded as an act in furtherance of the overall conspiracy.
14. On 6^th August 2003, at Bow Street Magistrates' Court, counsel then acting for the Government of France stated in her opening note that the application for extradition was in relation to a consignment of cannabis other than the one considered at the Central Criminal Court. However, that submission was abandoned in a revised skeleton argument which Mr Hardy prepared on 10^th October 2003, and so it was in relation to the revised skeleton argument that the District Judge made his decision. He held that the plea of autrefois convict does not apply in this case. What the Central Criminal Court was concerned with was an admitted agreement with Michael Michael to import 2663 kilograms of cannabis resin into England, which itself was part of a much larger conspiracy. Evidence as to the conduct of the applicant outside the jurisdiction would have been admissible if required as demonstrating the existence of the sub-conspiracy, but the applicant was not being sentenced for that conduct. The District Judge also considered and rejected the submission that he should decline to commit on the basis of abuse of process. He said –

"It does not offend against justice in any way that the French Government should request to have Mr Caddoux extradited. The French authorities are entitled to have the opportunity to enquire further into Mr Caddoux's involvement in offences in France, and then relate this involvement to the totality of the conduct for which he was sentenced at the Central Criminal Court. When this task has been completed it will be a matter entirely for the French courts to consider whether the offences charged and evidence in support thereof in the proceedings at the Central Criminal Court together with the basis of the plea tendered reflects in the interests of justice, the extent of Mr Caddoux's criminality both in France and in the United Kingdom. There is nothing unfair or arbitrary in their acting in this way."

The Extradition Act 1989.

15. There are two sections in the 1989 Act which are relevant in this case, and, so far as material, they read as follows-

"6(3) A person accused of an offence shall not be returned, or committed or kept in custody for the purposes of return, if it appears to an appropriate authority that if charged with that offence in the United Kingdom he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction."

[It is clear from section 6(9) that this court is an appropriate authority for the purposes of sections 6(3)]

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 … or,

(c) 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."

The previous conviction argument – section 6(3).

16. Before the District Judge and in this court this has been the argument at the heart of the applicant's case. It requires us to decide, in relation to each of the three offences now under consideration (see paragraph 1 above) whether the applicant, if charged with that offence in the United Kingdom, would be entitled to be discharged in the light of his plea of guilty at the Central Criminal Court. As Mr Peters QC for the applicant recognised, his case can be put at its best in relation to the first charge, which he describes as a mirror charge in the context of an international crime, so the question can be re-formulated in this way –

Assuming the existence of a court applying English law which has jurisdiction covering both England and France, if this applicant were to be charged with conspiring with Jacques Evrard and others in March to April 1997 fraudulently to evade the prohibition on the importation of cannabis resin into France, would he be entitled to be discharged because he had previously pleaded guilty to conspiring with others, named and unnamed, over a period of years ending in April 1998 fraudulently to evade the prohibition on the importation of cocaine and cannabis resin into England, simply because one of the movements of drugs relied on as evidence of the larger and longer running conspiracy was now being relied upon as important evidence to prove the existence of the smaller conspiracy?

In my judgment the answer to that question must be in the negative. A presiding judge might well enquire as to why it was considered necessary to bring the second set of proceedings, and it is not difficult to envisage possible answers. For example there might be a need to demonstrate the existence of the second conspiracy involving Evrard and others, who were never alleged to be parties to the longer running English conspiracy. That, to my mind, illustrates the importance of recognising from first to last that the core of any charge of conspiracy is an agreement, and the agreement alleged in the English indictment is plainly different from that alleged in the first charge on which extradition is now sought. The same point is illustrated by some of the answers of the applicant when questioned on 21^st March 2000 pursuant to the letters of request. One possible interpretation of what he said is that the movement of the drugs from Morocco into France was pursuant to an agreement with a Belgian national named Benoit Chatel, and it was only after the drugs reached France that contact with Michael Michael brought them within the ambit with the English conspiracy. Of course the judge dealing with the second conspiracy in the position which I have postulated would, if the applicant were to be convicted, be considerably influenced when deciding on the appropriate sentence by what had happened at the Central Criminal Court. He might even be minded to impose upon the applicant a sentence which would not add to the period of imprisonment already served, but that is not an issue with which we are concerned.

17. As to the nature of autrefois acquit and autrefois convict, Mr Peters drew our attention to the speech of Lord Morris in Connelly v DPP [1964] AC 1254 at 1305 and 1307, and to the decision of the Court of Appeal Criminal Division in R v Beedie [1998] QB 356. In the latter case Rose LJ said at 359 that in Connelly the majority of the House of Lords identified a narrow principle of autrefois, applicable only where the same offence is alleged in the second indictment. He continued –

"Lord Devlin said at page 1339 to 1340: 'for the doctrine to apply it must be the same offence both in fact and in law', and he went on having rejected the idea that an offence may be substantially, rather than precisely, the same as another in its legal characteristics, to reject the suggestion that autrefois applies in favour of an accused who has been prosecuted on substantially the same facts. Lord Pearce, at 1368, agreed with the opinion of Lord Devlin. Lord Reid said at page 1295:

'many generations of judges have seen nothing unfair in holding that the plea of autrefois acquit must be given a limited scope … I cannot disregard the fact that with certain exceptions it has been held proper in a very large number of cases to try a man a second time on the same criminal conduct where the offence charged is different from that charged at the first trial.'"

18. Those decisions, in my judgment, show that this applicant on these facts cannot take advantage of the provisions of section 6(3) in relation to the first charge, and if his submissions do not succeed in relation to the first charge they cannot possibly succeed in relation to either of the other two charges which, as Mr Peters concedes, do not reflect the proceedings at the Central Criminal Court.
19. Mr Peters also drew our attention to Article 9 of the European Convention on Extradition Order 2001 SI 962, and to the United Kingdom reservation to that Article, but in my judgment that adds nothing to the requirements of section 6(3).

Section 11(3) and abuse of Process.

20. Mr Peters then turned to section 11(3). He placed some reliance upon section 11(3)(b), which is concerned with the passage of time since the applicant is alleged to have committed the offences, and submitted that at least the request for extradition could have been made in time for the procedures to have been completed before the applicant was due for release after the sentence imposed at the Central Criminal Court. Initially that may seem to be an attractive submission, but in fact the Government of France did request extradition some time before the applicant was due for release, because about two weeks before he was due for release the Secretary of State gave authority to proceed, and it would have been inappropriate for the Government to seek extradition much earlier, because –

(1) Pursuant to section 12(3) of the 1989 Act an order for return cannot be made in the case of a person who is serving a sentence of imprisonment, and –

(2) the Act aims to ensure that once committal proceedings have taken place, if there is no further legal challenge, the person who has been committed is fairly speedily either extradited or discharged. The combined effect of section 16(1) and (2), and of section 11(2) is to give rise to a right to discharge after 2½ months. It follows that the Secretary of State would be unwise to give authority to proceed in relation to anyone serving a sentence of imprisonment at any time when more than 2½ months might elapse after the committal proceedings and before the time when the person under consideration ceased to serve his prison sentence.

Furthermore, viewing the tortuous history of this matter as a whole, there has not here been any lapse of time as such as would make it unjust or oppressive to return the applicant to stand trial in France.

21. Equally I cannot discern any evidence that the application was made otherwise than in good faith in the interests of justice (see section 11(3)(c)). What, as it seems to me, Mr Peters is really contending for is the exercise of a form of abuse of process jurisdiction which, in my judgment, is not entrusted to this court – see re Schmidt [1995] AC 339 at 378. Mr Peters drew our attention to Thomas [1985] QB 604, but that does not seem to me to assist. In that case the defendant had been tried for fraud in Italy, and was convicted and sentenced to imprisonment in his absence. He then raised a plea of autrefois convict when charged in England, but that plea failed because he had never previously been in jeopardy. Even if the plea had succeeded, the criminal court in that case was exercising a jurisdiction which cannot be equated with the jurisdiction which we are exercising in this case. In Kashamu (No 2) [2002] QB 887 this court recognised that in the light of Article 5(4) of the European Convention on Human Rights – the right to liberty – the District Judge in extradition proceedings does have some limited jurisdiction in relation to abuse of process. In that case it was found that it was his duty to consider whether the detention was lawful by English domestic law, whether it complied with the general requirements of the Convention, and whether it was or was not open to criticism for arbitrariness. Those are not the issues which arise in this case. Accordingly, in my judgment, the applicant has failed to establish any ground on which it would be possible for this court to grant him relief by way of an order of habeas corpus.

Judicial Review.

22. The renewed application for permission to seek judicial review seem to me to be hopeless. The substantial points made on behalf of the applicant all arise in relation to the application for habeas corpus. The only reason for seeking a separate form of relief is that Mr Peters contends that the District Judge did not really grapple with the arguments other than those arising under section 6(3). He simply deferred to the French courts, leaving them to decide at the end of the day what would be the right course. In my judgment, for the reasons I have given, he had in the end no real alternative. I would therefore dismiss the renewed application for permission to seek judicial review.

Mr Justice MacKay:

23. I agree.
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LORD JUSTICE KENNEDY: For the reasons set out in the judgment which has been handed down, this application for habeas corpus and the renewed application for permission to move for judicial review are both dismissed.

MR MURPHY: My Lord, yes. There are two further consequential applications.

LORD JUSTICE KENNEDY: Yes.

MR MURPHY: My Lord, I do not know if you have had an opportunity --

LORD JUSTICE KENNEDY: We have, and we are grateful for it, and in fact we have had a chance to look at it. It seems to Mackay J and I that it is helpful, if I may say so, for it to be put on paper so that we could have a look at it, but it remains a matter which we think should be referred to another jurisdiction.

MR MURPHY: My Lord, yes.

LORD JUSTICE KENNEDY: You have made your application here, we are not prepared to grant it here.

MR MURPHY: The second application relates to costs. Mr Caddoux is legally funded. I think the correct phrase is an assessment for legal funding taxation.

LORD JUSTICE KENNEDY: Yes. You may have that. Thank you very much. Thank you for your assistance and attendance.