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
		11th May 2006

1. LORD JUSTICE SCOTT BAKER: This is an application for habeas corpus by Alexander Steblins, whose extradition is sought by the government of Latvia in respect of an offence of burglary and conspiracy to steal. The case is covered by the 1989 Extradition Act because the request for his extradition was made as long ago as 9th February 2001.
2. We are extremely grateful to Mr Ponte who has come into this case very late to represent the applicant and has made every point that he could possibly make on his client's behalf.
3. The applicant was born on 5th March 1978 so he is now 28. He was born in the Ukraine when it was still part of the USSR and he is of Russian/Ukrainian parentage. In 1986 his family moved to Latvia which is also within the USSR. In February 1996, when he was a few weeks short of his 18th birthday, he stole some electrodes from a warehouse. Two other men were involved. They were apparently three or four years older than the applicant. The value of the goods was in the region of £273 Sterling.
4. Although the extradition request was made in February 2001, it was not until over four and a half years later, on 25th August 2005, that an arrest warrant was issued. The applicant admits the offence, and indeed admitted it in Latvia when he was interviewed soon after committing it.
5. On 22nd December 1996 the applicant left Latvia, he says in order to escape persecution. In the previous years his sister and brother had sought asylum in the United Kingdom. He says that he did not come to the United Kingdom to avoid trial, but the fact is that he had been on bail since 18th March 1996, it being a condition that he did not leave his place of residence, he being bound over to continue living there. He left Latvia without a valid passport and apparently claimed asylum when he reached the United Kingdom. But his claim for asylum has been refused. He says that his two sisters and a brother were granted indefinite leave to remain. His third sister has been granted temporary citizenship.
6. According to the documents that have been put before the court, his asylum application was refused as long ago as 3rd December 1998. It is said that he appealed against that decision but the immigration history of the applicant is unclear to this court. He says that he has been required to report monthly, at least since May 1995, to the immigration authorities and he says that he is continuing to contest the decision refusing him asylum. It is difficult to see how that can be so, so long after the original refusal. But as I say, we have not received any real information from the Home Office.
7. He lives with his sister, and it was at first unclear why it took the authorities four and a half years to implement Latvia's request for expedition. However, we were told today by Mr Hardy that regrettably the Crown Prosecution Service lost the file and eventually the matter came to light when, after four and a half years, the Latvian authorities enquired what had happened to their application.
8. The sole issue before this court is whether it would be unjust or oppressive to return the applicant to Latvia by reason of the time that has passed since the commission of the offence. Section 11(3) of the 1989 Act provides, so far as material, as follows:

"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."

9. Mr Hardy, in his skeleton argument, sets out the various principles that are not in dispute. They are:

(1) The passage of time is to be measured from the date of the commission of the offence until the hearing of the application for habeas corpus.

(2) If for any of the reasons specified in section 11(3) it appears that the return would be unjust or oppressive there is no room for any exercise of a residual discretion by the court. The applicant must be discharged.

(3) Where the passage of time is due to dilatory conduct on behalf of the requesting government, it tells in favour of the fugitive, whereas if the passage of time was inevitable it would not.

(4) Delay on the part of the applicant, ie, by fleeing the country, concealing his whereabouts or evading arrest, cannot, save in the most exceptional circumstances, count towards making his return unjust or oppressive.

(5) Although unjust and oppressive are terms which can overlap, the term "unjust" is directed primarily to the risk of prejudice to the accused and the conduct of the trial itself, whereas "oppressive" is directed to hardship to the accused from changes in his circumstances during the period to be taken into consideration.

(6) The injustice or oppression must be causatively linked to the passage of time. They cannot be merely incidental to it.

10. It would not be unjust to return the applicant to Latvia for he has admitted the offence. Indeed, it is not suggested to the contrary. The focus has therefore been whether it would be oppressive. He submits that his Latvian offence apart, he is a man of good character. He says that since 1996 he has lived openly in the United Kingdom and under his own name. His whereabouts have always been known to the authorities, and he is required to report to the Home Office once a month. He lives with his sister. He says he went to Hendon College for two years, has learned English and works in the building and decorating trade, having established a good reputation for his work. From his arrival in the United Kingdom in 1996 until his arrest on the extradition warrant, he heard nothing concerning the allegations against him. He further says that he regrets committing the offences and that he considers that his life began on his arrival in England. None of that is in issue.
11. Mr Ponte, on behalf of the applicant, relies on five matters which, he submits, together amount to making it oppressive to return the applicant. First, he refers to the length of the delay. On any view, it is considerable, amounting to a period of 10 years. Further, he submits that the applicant has done nothing during that period to hide his whereabouts or evade apprehension. He illustrates the length of the delay by pointing out that it amounts to in the region of one third of the applicant's whole life so far. Second, he submits that this is not the gravest of offences. It is true that this is not by any means in the most serious category of offence but, on the other hand, it cannot be categorised as trivial. Third, it is submitted that the applicant was a juvenile at the time of the offence and that it was committed with two adults. He was very close to his 18th birthday and it is true that his co-defendants were some three or four years older, but, in my judgment, that is not a point that carries very much weight. Fourth, it is said that he does not speak Latvian, and fifth, that he has put down roots in this country.
12. On the other side of the coin, as it seems to me, in leaving Latvia the applicant deliberately broke the condition of residence. The prime reason for the delay is that he has left Latvia without giving the authorities any clue as to his whereabouts. On the face of it, they had no idea to which country he had fled and it was only after a number of years that they discovered that he was in the United Kingdom. Second, he is still a young man and therefore in a somewhat better position to adapt to a change in life than might be the case of someone who was older. Third, the evidence as to the roots that he has put down in this country, although of some significance, does not seem to me to be anything like as strong as one often finds in these cases.
13. Mr Hardy, on behalf of the Latvian government, makes the following general points. First, he submits that each of these cases must be decided on its own facts when one is looking at the question as to whether a return would be oppressive. With that submission I entirely concur. It seems to me that authorities are of very limited value when considering the facts of individual cases. Second, Mr Hardy submits that there is nothing on the evidence in this case that goes beyond what he would call the routine disruption that inevitably occurs when someone is extradited. There is, in my judgment, force in that submission.
14. Third, he submits that the level of culpability of the requesting state for the delay is not very great where the fault is that of the Crown Prosecution Service. For my part, I have not found it helpful to go in any detail into examining blameworthiness for the delay in this case, particularly bearing in mind that the initial years of the delay were occasioned, on the face of it, by Latvia not knowing where to go to extradite the applicant and the fact that the primary cause of the delay is the applicant's departure. It is certainly most regrettable that the Crown Prosecution Service managed to lose the file and, as a result of that, the extradition of the applicant is not sought as soon as it might have been. But, in my judgment, he has suffered no particularly significant disadvantage as a result of that.
15. The extradition provisions are based on reciprocity. There is a strong public interest, Community wide, that a person who has admitted committing an offence in Latvia should be dealt with in that country for it, just as someone who has burgled commercial premises in the United Kingdom and fled to Latvia should be returned to this country to be dealt with here. I would therefore refuse the application.
16. I would, however, say one further word. This matter still falls for consideration by the Secretary of State under section 12 of the 1989 Act, unlike the position is now under the 2003 Act. This is a case which, because of its antiquity, is governed by the 1989 Act. It may be that the Secretary of State, in exercising the unfettered discretion that he has under section 12, would like to look broadly at the whole picture -- more broadly than this court has been able to look because, of course, the Secretary of State will be apprised of the whole immigration situation with regard to the applicant. As I say, I would refuse the application.
17. MR JUSTICE LEVESON: I agree.
18. MR HARDY: My Lord, there is a consequential application. I do not understand the applicant to be publicly funded and it would ordinarily therefore be the case that I would be entitled to make an application for costs. I do so, but I invite your Lordships, for certain circumstances which I think Mr Ponte would allude to at some length, if your Lordships order costs to order that they not be enforced without leave of the court.
19. LORD JUSTICE SCOTT BAKER: I do not need any persuasion about that, Mr Ponte. Are you asking us to make no order as to costs or not to be enforced?
20. MR PONTE: I would ask for no order.
21. LORD JUSTICE SCOTT BAKER: We will say no order. We are very grateful to both of you. Thank you.