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
		14 June 2006

1. LORD JUSTICE LATHAM: This is an appeal under Section 103 of the Extradition Act 2003 against a decision of District Judge Nicholas Evans on 17 May 2006 to order the appellant's extradition to Germany. The order was made in response to a European arrest warrant issued on 19 October 2004 in relation to an alleged offence committed by the appellant on 8 August 1991.
2. The basis upon which the appellant sought to persuade the district judge that he should not be returned to Germany was that it would be unjust to extradite him by reason of the passage of time since the alleged offence, and it will be seen that the relevant time is now in excess of 15 years. It is accepted that the question which the district judge had to answer was whether or not the appellant could establish that he could not have a fair trial by reason of that passage of time.
3. The district judge heard the evidence of the appellant against the background of the material provided by the requesting state which showed that the alleged offence was burglary and attempting to choke with intent to rob. The evidence upon which the requesting state based its allegation was essentially the fact that found at the scene of the crime was the appellant's driving licence, and in support of the assertion that he the appellant had dropped the licence at the scene, two witnesses, on being shown the licence, identified the appellant's photograph on the licence as being a photograph of the person who had committed the offence. Having heard the appellant's evidence, the district judge concluded that he was satisfied that the delay was attributable in significant part to the fact that the appellant had fled Germany after having committed the offence. The procedural history thereafter was undoubtedly that the German authorities were unable to discover the appellant's whereabouts.
4. A domestic arrest warrant was issued on 30 September 1991, an original arrest warrant in October 1991 and on 2 May 1996 an international arrest warrant was issued, subsequently superseded by the European arrest warrant issued on 19 October 2004. The requesting state's explanation of the delay in proceeding to obtain a warrant other than a domestic warrant until after May 1996 was that the appellant was known at that time to be in Poland. The Polish authorities would not at that time extradite alleged offenders to Germany for trial. It was accordingly only when the requesting state's authorities were notified by Interpol that the appellant was in the United Kingdom on 6 March 2006 that steps were taken to enforce the warrants which were then in existence.
5. The district judge directed himself in accordance with the passage in the speech of Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, at page 782, where he said:

"'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. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."

6. Dealing with the evidence he had heard, the district judge concluded in paragraph 11 of the reasons that he gave as follows:

"On the basis of the material put before this court I am satisfied the defendant is to blame for the delay by fleeing Germany. On the authority of Kakis the defendant cannot rely on the delay."

It was accordingly a decision based upon that finding of fact.

7. Mr Ponte, on behalf of the appellant, submits that there was no, or no adequate, material upon which the district judge could come to that conclusion; and Mr Caldwell, on behalf of the requesting state, has accepted that the question of the appellant's departure from Germany was not explored, at least in any detail, in the evidence before the district judge. However he points out that the district judge had had the opportunity of seeing the appellant give evidence and making an assessment of his credibility which would have included an assessment of the extent to which he could be relied upon to be telling the truth when he denied that he had any previous convictions, whereas the material before the court indicates that there were on two previous occasions convictions for dishonesty whilst he was in Germany. Unfortunately the district judge does not give in his reasons any clear basis upon which he came to the conclusion that he did in the passage to which I have referred.
8. It seems to me that there is force accordingly in Mr Ponte's argument that the district judge could not reasonably have come to the finding that he did in that respect. That however does not answer the question which ultimately we have to decide today. Although it is clear that the district judge put in the forefront of his reasoning the finding of fact to which I have referred, he went on to indicate that he did not consider that the delay in this case would in fact cause any injustice to the appellant which would, or could, mean that his extradition would be unjust. Mr Ponte submits that that conclusion cannot stand, particularly bearing in mind the fact that - as Lord Justice Rose noted in the case of Sagman v Government of Turkey [2001] EWHC 474 at paragraph 19 - no case was then known to counsel or the court where extradition had been ordered after a lapse for as long a period as 15 years. That passage has to be read in the context of the judgment of Lord Justice Simon Brown in Woodcock v Government of New Zealand [2003] EWHC Admin 2668, at paragraph 29, where, having referred to that dictum of Lord Justice Rose, Lord Justice Simon Brown said:

"There may or may not previously have been such a case. In my judgment, however, there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive."

With that, I entirely agree.

9. The question has to be considered in the light of the material before the court in the case in question. The material in this case indicates that, in my judgment, the district judge was correct to conclude that the appellant will not suffer injustice as a result of extradition. The defence which he asserts is that he had lost, and somebody else had purloined, his driving licence; he was not the person who committed the robbery. He accordingly will wish to challenge the identification made by the two witnesses. The two witnesses undoubtedly made their identification close to the time of the offence. The appellant will be in the same position in terms of challenging that evidence now as he would have been shortly after the offence itself was committed because the identification was not of him some time after the offence, it was of his photograph. That is a matter that can be dealt with in the context of the trial process as satisfactorily now as it could have been at the time. Indeed it may well be thought that the appellant is in fact in a stronger position in relation to the evidence against him now because he can pray in aid the delay that has taken place as a material consideration in determining whether or not, at the end of the day, the prosecution case is sufficient to justify a conviction.
10. There is equally nothing to suggest that he is in any worse position in relation to the positive aspect of his defence, namely that he was not there, than he would have been closer to the time of the offence. Such difficulties as there may be as a result of the delay can, in my view, within the context of a properly conducted trial within the legal system of a country such as Germany, be a full safeguard for the appellant's interests.
11. Mr Ponte, on behalf of the appellant, in seeking to persuade us that really there is no way in which he could have a fair trial has referred us to Kociukow v District Court of Bialstok III Penal Division [2006] EWHC 56 Admin in which six years had gone by since the alleged offence and it was held by this court that that was a delay which would cause sufficient prejudice to justify the conclusion that it would be unjust to return that particular appellant to Poland. In paragraph 10 of his judgment however Mr Justice Jack made it plain that that was a decision based on the particular facts known to the court at the time of that hearing. He said as follows in relation to the allegation against that appellant:

"There is no evidence as to the nature of the evidence against him. I conclude that there is a very real risk the appellant will be prejudiced in his defence by the passage of the time that has passed. As is obvious, he is very likely to have difficulties in dealing with evidence which he first hears about over six years after the events. Also, if, for example, the case turns on identification evidence, there is very likely to be a much greater risk after this period of time of a wrong conviction."

In the present case we know the nature of the evidence against the appellant and we know what his answer to that evidence is.

12. For the reasons I have given it seems to me the court in Germany will be able to provide a safe and fair trial of those issues even after the passage of time in this case. I would accordingly dismiss this appeal.
13. MR JUSTICE McCOMBE: I agree.
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