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
		22 June 2005

1. LORD JUSTICE ROSE: This is an application for habeas corpus. The court has the advantage of written submissions on behalf of the applicant by leading counsel, highly experienced in the extradition field. We also have the advantage of written submissions on behalf of the respondents from Mr Hardy. The court is informed that leading counsel will not be appearing today, though it is right to say that a solicitor acting for the applicant is in court. As I indicated to Mr Hardy at the outset of these proceedings, the court proposes to deal with the matter on the basis of the respective written submissions.
2. The applicant is a 48 year-old Turkish national, who is presently in custody in Brixton Prison. He challenges his detention there pursuant to an order by District Judge Daphne Wickham at Bow Street Magistrates' Court on 16 March 2005. That order was made under section 9(8) of the Extradition Act 1989, committing the applicant in custody to await the decision of the Secretary of State for the Home Department on a request for his extradition by the Government of France. The charges relate to the importation of 29 kilograms of heroin between 14 and 17 November 1993.
3. The history, so far as relevant, is this. On 22 August 1995 a Tribunal at Boulogne-Sur Mer found the applicant guilty in his absence of unlawful importation of narcotics in an organised gang and smuggling heroin into France, and sentenced him to 16 years' imprisonment and a substantial fine. Four others were similarly convicted: two British subjects, Watson and Kearney, who were each sentenced to eight years; and two others, Boente and Kocak, who were sentenced in their absence to 12 years. There was initially listed before this court today an application by Boente, but, pending further events in relation to him, that matter has been taken out of the list by consent and the court has directed that it be re-listed next term.
4. On 15 December 2004 the Secretary of State issued authorities to proceed under section 7 of the 1989 Act against the applicant and Boente on the basis that their conduct, had it occurred in the United Kingdom, would have constituted an offence of conspiring in the fraudulent evasion of the prohibition on the importation of 29 kilograms of heroin.
5. On 21 December 2004, following the issue of a warrant the previous day, the applicant was arrested in Tottenham. The warrant had been issued by the district judge pursuant to the Secretary of State's authority to proceed. Boente too was arrested on that day.
6. So far as the offences committed between 14 and 17 November 1993 are concerned, they are particularised to this relevant extent, namely participating abroad, particularly in Belgium and the United Kingdom, in unlawfully importing narcotics in an organised gang, and in smuggling prohibited goods into France by importing drugs under the same circumstances. In each case the 29 kilograms of heroin, to which I have referred, constituted the drugs in question.
7. Following the applicant's arrest, on 4 January this year the solicitors then acting for him wrote to the Home Office seeking information as to the reasons for the delay in the extradition proceedings. Information in that regard was provided, which is summarised in the skeleton of Mr Nicholls QC. In particular, extradition papers were first received in this country from the French authorities in 1994, after, as will later emerge, extradition proceedings against him had been discontinued. The papers were returned to France for amendment in March 1995, and returned by France in April 1996. They went back to France in May 1996 for further amendment, and returned to this country in January 1997. Back they went to France in June for further amendment. In the meantime the applicant had been convicted in his absence in France. The judgments of the Tribunal were received in this country in 1998 and efforts were made to serve them on the applicant.
8. In January 2001 the French authorities were invited to re-submit the requests with an undertaking that the defendants would be entitled to a full trial in the event of their surrender to France. In October 2001 the papers were re-submitted on that basis. In October 2002 they were found to be in order. There were, as will shortly be apparent, other enquiries going on in relation to the applicant's immigration status in this country. Those had to be clarified before progress could be made in relation to extradition. In September 2004, in the light of all the circumstances, it was decided that an authority to proceed could and should be issued, and it was.
9. At that point, it is convenient to refer to the immigration status of the applicant which led ultimately to him successfully claiming asylum in this country. According to the determination of the Special Adjudicator, who allowed his appeal against refusal of asylum, the applicant was a high profile and wealthy Kurdish businessman in Turkey and owned a football club. According to the Special Adjudicator, the applicant told him that he was, incorrectly, associated with the PKK, a Terrorist organisation in Turkey, and in consequence had been placed on a "hit list". He was the subject of repeated scrutiny in Turkish newspapers in 1989 and the early 1990s, which made allegations against him of being involved in organised crime and, more specifically, of being the third most senior godfather in the Turkish mafia. In 1993 he sold his businesses and travelled to Holland where he met, and in 1994 married, his wife. He also met a former boyfriend of hers and a friend of the former boyfriend who helped him to get his money out of Turkey. After the death of his uncle, he returned to Turkey. Thereafter, he and his wife travelled to London. These matters I take from Mr Nicholl's skeleton argument. That skeleton argument goes on helpfully to refer to events thereafter in London.
10. The applicant was interviewed in mid April 1994 by the United Kingdom immigration authorities, and he was arrested on 23 April for an alleged firearms offence. He was, at the time, in possession of three passports, all bearing his photograph, but each bearing a different name. On one of the passports he gave the name Ali Erdal.
11. On 15 June 1994, while he was still in custody for the firearms offence, his solicitor informed the immigration authorities, apparently correctly, that his true name is Nurettin Guven. On 2 September he claimed asylum, which was refused. He appealed, with the result to which I have already referred. In the meantime, on 8 November 1994 at the Central Criminal Court, the prosecution offered no evidence against him on the firearms offence. On that same day he was arrested on a provisional warrant for extradition to France in relation to the offences which found the present application. On 16 December 1994 the extradition proceedings were discontinued, as I mentioned earlier, because the Bow Street Magistrate had not received sufficient evidence within the time prescribed. It was after that, on 22 August 1995, as I have already rehearsed, that the applicant was convicted and sentenced in Boulogne-Sur Mer.
12. So far as the immigration appeal was concerned, that took place over a period of time between May 1999 and April 2000. In the course of it, both the applicant and his wife gave evidence which, it appears, certainly in part, the Special Adjudicator accepted. He claimed before the Special Adjudicator that the allegations which found the present application for extradition were false.
13. Against that historical background, the sole issue in this appeal, as is common ground between counsel who have made written submissions to the court, is whether, in the terms of section 11(3)(b) of the 1989 Act, it would be unjust or oppressive to return the applicant to France because of the passage of time since the offences were alleged to be committed. There is no issue that the general approach, when considering section 11(3)(b), is contained in the well-known speech of Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779. At page 782 Lord Diplock said this:

'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 ...

As respects delay which is not brought about by the acts of the accused himself ... 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 ... the court is not normally concerned with what could be an invidious task of considering whether mere inaction of the requisitioning government or its prosecuting authorities which resulted in delay was blameworthy or otherwise."

That statement of principle has been the subject of subsequent comment by members of the Court of Appeal in a number of authorities which it is not, for present purposes, necessary to rehearse.

14. The submission which is made on behalf of the applicant is that it would be unjust to order his return, in that he has denied any involvement in the offences and, by reason of delay, he is prevented from defending himself effectively. There is no evidence as to what his defence may be, or as to the respects in which his defence could not effectively be advanced. It is emphasised that, at the time the present proceedings were instituted, it was almost 11 and a half years since the commission of the alleged extradition offence, and almost ten and a half years since the applicant was first arrested on a provisional warrant on 8 November 1994. It is said that the earliest that he is likely to have known the evidence against him is when the papers were served on him at the end of 2004, though it is apparent from the history which I have rehearsed that he knew of the allegations against him because, in connection with the asylum proceedings, he relied on an article in the Sunday Times in January of 1997. From that date, at least, he must have been aware of the allegations.
15. It is submitted that the reasons provided by the Home Office for delay amount to a failure of the French authorities to provide sufficient documentation in proper form. The validity of that reason is questioned on the basis that, as this is a Convention case -- in that this country and France are signatories to the European Convention on Extradition -- mere particulars of the offence as opposed to evidence were required, and it would be comparatively simple to provide the relevant material. In consequence, it is said that the delay is such that it would, in all the circumstances, be unjust to return the applicant. It is of course a corollary of this being a Convention case that the applicant will be entitled in France to the benefit of the fair trial provisions in Article 6 of the European Convention on Human Rights.
16. So far as oppression is concerned, it is submitted that the United Kingdom authorities have known of the applicant's whereabouts in this country since his arrest in November of 1994. By reason of the decision on his appeal against the refusal of asylum, he has unlimited right to remain in the United Kingdom, due to the situation which he would face if he were returned to Turkey. It is said that, because of the publicity in Turkish and English newspapers, he has had to give up the employment which he had in this country in importing and exporting food and drink, and he is now separated from his wife.
17. It is submitted that the present case is distinguishable from Woodcock v the Government of New Zealand [2004] 1 WLR 1979, which was a case involving allegations of sexual abuse against children which had occurred some 20 or 30 years previously. In particular, it is said that, in the present case, the Government of France is resurrecting allegations first put to him ten years previously, yet no further evidence is being presented than was then available, that there is a want of satisfactory explanation for the delay, that France is not the applicant's own country or one from which he has fled, and that the applicant is not able to return to Turkey by reason of the matters ventilated before, and in part at least accepted by, the Special Adjudicator on the immigration appeal. Accordingly, it is said it would be oppressive to extradite the applicant to France.
18. On behalf of the respondent, Mr Hardy accepts that this extradition request has taken longer to process than would ordinarily be the case, but that does not have the necessary consequence of injustice or oppression. He submits, rightly, that the burden is on the applicant to show on the balance of probability that the passage of time within the cradle of events, as Lord Scarman in Kakis described it, is such as to make return unjust or oppressive.
19. Mr Hardy submits that, although the period is longer than usual, Article 13 of the European Convention on Extradition expressly contemplates and provides for the making of requests to the requesting state for supplementary information. Furthermore, the convictions in absence in August 1995 were followed by efforts to serve the judgment on the applicant. Concerns also had to be addressed as to whether what had originally been an accusation case had metamorphosed into a conviction case. In any event, submits Mr Hardy, from October 2001, when the papers were re-submitted by the French authorities, until the issue of the authority to proceed, there can be no criticism of the Government of France for any delay in the proceedings.
20. Mr Hardy refers to one authority to which reference can conveniently be made: the decision of the Divisional Court in the matter of Michelle Alison Rose (Unreported; 14 February 1994). That was a fraud case in which the matter had been largely, though not entirely, dormant between mid 1998 and February 1993. Kennedy LJ at page 4 of the transcript referred to the absence of any adequate excuse "for the pathetically slow rate of progress". He also went on at 4F to refer to the fact that allowing the procedure to drag on was plainly insensitive and deserving of severe censure. Nonetheless, in the particular circumstances of that case, the court found that it was neither unjust nor oppressive to order extradition.
21. Mr Hardy submits that this is not a case in which the applicant could be surprised either by the nature or scale of the ultimate allegation made against him. He knew from the time of his provisional arrest in 1994 the outline of the allegation. He knew that he had been convicted in his absence because that was referred to in the Sunday Times article to which I earlier referred. And, as Mr Hardy rightly points out, he has provided no evidence in connection with the present application, either to rebut the allegations in relation to which he was convicted, or to say anything other than that he was not involved in the conduct alleged against him.
22. In those circumstances, Mr Hardy, in my judgment rightly, submits that it is impossible to say that his defence is shown to have been affected by the passage of time. As to oppression, Mr Hardy submits that the only real point is whether the applicant could be subjected to extradition or other removal to Turkey following trial and the completion of any resultant sentence. But, as Mr Hardy points out, the terms of Article 15 of the Convention on Extradition effectively prohibit such extradition or removal without the consent of the United Kingdom.
23. In the light of all these considerations, for my part, it does not seem to me that the extradition of this applicant to France would be either oppressive or unjust, despite the significant delay which has occurred. In those circumstances, for my part, I would refuse this application.
24. MR JUSTICE FIELD: I agree.
25. MR HARDY: My Lord, I am in some difficulty making an application for costs because the applicant is in no position to make any submissions as to why he should not be ordered to pay the costs. But I draw to the court's attention this, that he has not been publicly funded in these matters, and even though he is not represented by counsel, those instructing me have incurred a level of costs in visiting this application. Accordingly, I feel duty bound to make an application for costs.
26. LORD JUSTICE ROSE: Yes, Mr Hardy, we shall make an order that the applicant pay the respondent's costs.
27. MR HARDY: I am grateful.