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
		8th March 2005

Tuesday, 8th March 2005

1. LORD JUSTICE MAURICE KAY: This case comes before the court as an application for habeas corpus. It relates to an extradition request from the Government of Germany. The applicant, Gary Wood, is a young man of dual British and German nationality. His father is English. His mother is German. He speaks both languages and has lived in both countries.
2. The offences in respect of which his extradition is sought are allegations of unlawful killing and causing grievous bodily harm. The offences are alleged to have been committed in the early hours of New Year's Day 2002. The deceased was the uncle of the former girlfriend of the applicant. The other alleged victim is another member of her family in respect of whom one of the allegations of causing grievous bodily harm is advanced.
3. The applicant was arrested in Germany soon after these events. On 3rd May 2002 an indictment was lodged with the Regional Court of Paderborn. On 26th June 2002 the Regional Court acquitted the applicant of all charges. His defence had been one of self defence. On 6th March 2003, having heard a prosecution appeal of the kind which is provided for in German criminal procedure, the Federal Court quashed the decision of the Regional Court and ordered a retrial. By that time the applicant had long since repaired to this country, having obtained his freedom as a result of the acquittal on 26th June.
4. The Federal Court having ordered a retrial in March 2003, a warrant for the applicant's arrest was issued on 31st March. The extradition proceedings came alive in October 2003 when he made his first appearance at Bow Street Magistrates' Court. On 3rd March 2004 he was committed to await the decision of the Secretary of State.
5. That is the procedural history. It is necessary to say something of the applicant's circumstances. He was born on 15th January 1984 and was therefore almost 18 on New Year's Day 2002. He spent 6 months remanded in custody in Germany prior to his acquittal. There is evidence before the court that threats to his life were made whilst he was on remand. His evidence is that it was as a result of these threats that he left Germany as soon as he was free to do so and that he has, as a result, lived continuously in this country ever since. There is also evidence that his parents have received threats, and threats have also been issued via a friend. All these threats emanate from the family or associates of the deceased.
6. After the applicant returned to England, in September 2002 he formed a relationship with a young woman who gave birth to a daughter on 4th February 2004. Unfortunately the relationship did not prosper and the applicant has seen little of his child. It seems that the child was conceived and born at a time when the applicant was aware of the request for extradition. He has now established a relationship with another young woman with whom he is living.
7. For my part, I do not doubt that he has found the events of the last three and a half years harrowing. He is young, he has had relationship difficulties, and whatever may be the rights and wrongs of the incident on New Year's Day 2002 he inflicted wounds on a man by stabbing him eight times in circumstances which, unsurprisingly, led to that man's death.
8. When we are told that the applicant has depressive symptoms that is something I can readily understand. It does not seem that his medical condition has necessitated in-patient treatment. Nor does it seem that he is taking all possible steps to look after himself. A letter from the Community Mental Health Nurse in Staffordshire, where the applicant is living, dated a week or so ago, describes the applicant's failure to attend appointments with her and with the Anxiety Management Group at a day hospital.
9. He now seeks habeas corpus on one ground alone. Mr Paul Garlick QC has sensibly abandoned other grounds that were advanced before the district judge. He now puts his case solely and exclusively on section 11(3)(b) of the Extradition Act 1989. That provision is in these terms:

"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...

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

10. The law on section 11(3)(b) is helpfully set out in Ms Dobbin's skeleton argument and is not disputed in any way by Mr Garlick. The relevant period during which any delay ought to be considered is the period from the date of the alleged offence to the present time. The onus is on the applicant to demonstrate that in all the circumstances it would be unjust or oppressive because of the delay to return him. If it would be unjust or oppressive then his discharge must be ordered. It would not, in those circumstances, be a matter of judicial discretion.
11. It is well established from cases such as Kakis v The Government of Cyprus [1978] 1 WLR 779 and Union of India v Narang [1978] AC 247, that the words "unjust" and "oppressive" connote two different things. "Unjust" is concerned with whether or not it is possible for the applicant to obtain justice in the courts of the requesting state. "Oppressive" is concerned with hardship to the applicant resulting in changes in his circumstances that have occurred during the period to be taken into consideration.
12. Mr Garlick emphasises the age of the applicant; 17 at the time of the alleged offences, 21 now. Three years and three months have passed since the date of the alleged offences. Mr Garlick invites us to assess the impact of the threats with the youth of the applicant very much in mind. He invites us to have regard to the applicant's domestic circumstances and the fact that he has been living a settled existence in this country for almost three years. He invites us to conclude that to return the applicant to Germany would have a greater impact on this applicant than it might be expected to have on a person of maturer years and he invites us to have regard, not only to the other factual matters to which I have referred, but also to the applicant's present state of mind and his depressive and anxious condition.
13. Whilst I accept the factual evidence upon which the applicant seeks to rely, in my judgment there is a legal obstacle to his application which is simply insurmountable. Under section 11(3)(b) there has to be established a causal link between the passage of time and the unjust or oppressive circumstances relied upon. In my judgment that causal link simply is not, and cannot be, made out in the present case.
14. It is inevitably a matter of concern to the applicant and his family that his extradition is being sought in relation to a matter or matters of which he has previously been acquitted, but German law provides precisely for that eventuality.
15. For my part I conclude that, notwithstanding the hardships, many of which would exist if all these events had occurred in this country, the material relied upon simply does not establish that it would be unjust or oppressive to return the applicant "by reason of the passage of time." Accordingly, in my judgment, the application must fail.
16. LORD JUSTICE MOSES: I agree.
17. LORD JUSTICE MAURICE KAY: Thank you both very much indeed.