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
		20th June 2005

Monday, 20th June 2005

1. LORD JUSTICE ROSE: There is before the court an application for habeas corpus. The applicant's extradition is sought under the Extradition Act 1989. It is a European Convention case in that Spain is the requesting state.
2. No evidence has been adduced by the Government of Spain with a view to explaining the delay which, as will appear, has occurred in this case. That is regrettable. This application must be determined in the light of the material which is before the court.
3. The applicant challenges his detention pursuant to an order on 27th July 2004 at the Bow Street Magistrates' Court committing him to await the decision of the Secretary of State for the Home Department on an application for extradition to face charges of the murder of two German nationals, a Mr Hesse, and his mother, Mrs Dohr, between September 1995 and May 1998 when their bodies were found. There are also allegations of falsehood in relation to a business document and fraud.
4. The relevant statutory provision for present purposes is section 11(3) of the Act. This provides that:

"... 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 to have become unlawfully at large, as the case may be; 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."

5. In addition to the dates to which I have already referred, it is pertinent to rehearse a number of further significant dates. On 29th July 1997 Gregory Cook, the applicant's son, was arrested in Spain. The bodies of the two deceased were discovered on 3rd May 1998. On 29th March 1999 the Spanish court ordered the arrest of the applicant. On 12th May that year he was arrested, in London, under a provisional extradition warrant. The following day the Spanish authorities were notified of his arrest. On 19th May, together with his son and a man called Leuyckx, he was jointly indicted in Spain.
6. Having, thereafter, been in custody for some 40 days, on 21st June 1999, the applicant was discharged by the Bow Street magistrate in the absence of any request or evidence.
7. On 13th August a request for extradition was received by the Secretary of State and, on 3rd March 2000, the Spanish court issued an authority to proceed. It was not until 25th September 2003 that an extradition warrant for the applicant's arrest was issued by the Bow Street magistrate, and, as I have indicated, there is before the court no explanation for that delay.
8. On 19th May 2004 the applicant, following further delay after the issue of the extradition warrant, was arrested. There is no explanation before the court as to that delay either.
9. In the meantime, on 2nd April 2004, the Spanish proceedings against the applicant's son and Leuyckx were discontinued in their entirety, both in relation to murder and dishonesty.
10. On 27th July 2004, as I have already said, the applicant was committed by the Bow Street magistrate to await the decision of the Secretary of State.
11. The classic statement in relation to whether it would be unjust or oppressive to order a defendant's return in response to extradition proceedings is in the speech of Lord Diplock in Kakis v Government of Cyprus [1978] 1 WLR 779 as to which Woolf LJ made certain observations in ex parte Osman (No 4) [1992] 1 All ER 579, in particular at page 587 in a passage which it is, for present purposes, unnecessary to rehearse.
12. It suffices to refer to the headnote of Kakis where Lord Diplock is recorded as saying that:

"'Unjust' is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' [is directed primarily] to hardship to the accused resulting from changes in his circumstances that have occurred during the period taken into consideration."

13. Lord Diplock also indicated that, in relation to delay not brought about by the acts of the accused, the question where responsibility lies for it is not generally relevant; what matters is not so much the cause of the delay as its effect.
14. In this factual and legal context Mr Hines, on behalf of the applicant, submits that the vagueness in the allegations made against the applicant points to oppression. All that is said, in relation to the time or circumstances of death, is that the two victims were not shot but were killed by blows on the head, apparently by the three accused acting together.
15. Mr Hines points out that this is not a case in which there are, as there are in some of the authorities to which reference was made, documents which might trigger memory. He points out that the applicant left Spain many years ago but he was not indicted until May of 1999. No papers containing any details of the allegations were served upon him.
16. Following his release in June of 1999, the next that the applicant knew about the continued pursuit of him by the Spanish authorities was May 2004, the month after the applicant, no doubt, would have known that the proceedings against his son and the other co-accused had been discontinued.
17. Mr Hines says that the applicant effectively has no clue as to the nature of the evidence against him. He accepts that to some extent there is substance in the submission by Miss Dobbin, on behalf of the respondent government, that the claim of oppression is speculative. But, he says, it may have been, because of the passage of time, difficult for the applicant to identify relevant witnesses, both as to the circumstances of the allegations made against him and to the possibility of establishing an alibi.
18. It is, of course, to be noted in that context that, within 12 months of the discovery of the bodies, the applicant had become aware of the interest of the Spanish authorities in him in relation to the death of the two victims.
19. He submits, though for my part in a Convention case I have some difficulty in accepting this, that it is incumbent on the respondent to give some clue as to how the case is put.
20. Mr Hines referred to Woodcock v Government of New Zealand [2004] 1 WLR 1979, the headnote of which refers to the judgment of Simon Brown LJ, as he then was, as indicating that:

"... if the court concluded that the domestic court of the requesting state would be bound to hold that a fair trial of the accused was impossible then it would be unjust to return him."

21. It is apparent that, in a Convention case, it is, to put it no higher, highly improbable that this court would hold that a fair trial of the accused in Spain would be impossible.
22. Woodcock, it is to be noted, was a case in which allegations of sexual abuse in relation to children were made in the context of events some 20 or 30 years before. In the course of giving judgment Simon Brown LJ, at paragraph 25, referred to the gravity of those offences. Bearing in mind that the principal allegation against this applicant is murder, Miss Dobbin, unsurprisingly, relies upon that passage.
23. As to oppression, Mr Hines surmises that since 1999, despite what he may or may not have been told at that time, (and Mr Hines does not seek to suggest that he may have been told that proceedings against him were being terminated), the applicant, with the effluxion of a further five years or so could have been entitled to assume that proceedings against him were at an end.
24. As to good faith, Mr Hines puts the matter in this way: in the absence of any response, which they had time to make, the Government of Spain can be suspected of bad faith, particularly in the light of the discontinuance of the proceedings against the applicant's son and the co-accused, which discontinuance the applicant believes may, in part at least, be due to the loss of some crucial evidence.
25. On behalf of the respondent, Miss Dobbin submits that the applicant is effectively seeking his discharge because of the passage of time rather than because the passage of time has caused prejudice. There is, she submits, no evidence from the applicant of any hardship to him, or any change in his circumstances, such as would render his return oppressive.
26. She stresses that there must have been a continuing awareness on the applicant's behalf, at least until proceedings against his son were discontinued in 2004, that he, the applicant, would himself continue to be pursued by the Spanish authorities.
27. As to unfairness or injustice, again Miss Dobbin submits no prejudice to the defendant is shown in relation to a prospective trial by virtue of the absence of any material witness. Indeed, the applicant has not seen fit to disclose the nature of his defence.
28. What is clear in relation to the applicant, and it is a feature relevant to the question of bad faith because it distinguishes the position of the applicant from that of his son and the third accused, is that there is material indicating the applicant used the deceased's passport to make withdrawals from the deceased's bank account. Furthermore he used that passport to pass himself off as the deceased, when opening a bank account.
29. In relation to bad faith, Miss Dobbin submits that a non-response by the Spanish government simply cannot equate to bad faith.
30. There are some occasions when counsel is obliged to seek to make bricks without straw. Mr Hines, whose experience in this field is second to none, has made all the submissions which could be made on behalf of the applicant. Despite his diligence and skill he has not, to my mind, succeeded in constructing a brick which demonstrates, the onus being on him, that it would be either unjust or oppressive for this applicant to be returned to Spain in accordance with the extradition request which has been made. In those circumstances, for my part, I would refuse this application.
31. MR JUSTICE FIELD: I agree.