QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE MITTING
|DA AN CHEN||(CLAIMANT)|
|THE GOVERNMENT OF ROMANIA||(DEFENDANT)|
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MR JOHN HARDY QC & MS CLAIR DOBBIN (instructed by the Home Office Extradition Section) appeared on behalf of the DEFENDANT
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(1) His extradition was barred under section 79(1)(c) Extradition Act 2003 by the passage of time;
(2) Having been convicted in his absence without having deliberately absented himself from his trial, he would not be entitled to a retrial or, on appeal, to a review amounting to a retrial under section 85(5), which gave him the right to specify in section 85(8). The District Judge rejected those submissions.
"(1) If the judge is required to proceed under this section he must decide whether the person's extradition to the category 2 territory is barred by reason of...
(c) the passage of time..."
"A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."
and section 85:
"(1) If the judge is required to proceed under this section he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 87.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 87.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 86.
(7) If the judge decides that question in the negative he must order the person's discharge.
(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights-
(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had no sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
The wording of section 85(8) is identical to Article 6(3)(c) and (d) of the European Convention on Human Rights.
Section 85(5) and (8)
"I am satisfied that the right to legal representation S.85(8) is preserved. The defendant will have compulsory juridical assistance by virtue of the gravity of the accusations."
As to what she regarded as a more important issue under section 85(8)(a) to (b):
"Mr Baker argues that Article 405 para 2 of the Romanian Criminal Procedure Code gives a discretion to the Judge on a retrial to re-administer all the evidence administered during the first trial only 'if it finds it necessary' and that the fact of that discretion, whether it is actually exercised by the retrial Judge or not, breaches Article 6. The letter of Mr Radu (dated 11th October 2005) makes it clear that by Article 405 para 1 the procedure for the retrial will be governed by the rules settled for the trial in the first court of the accused (and I accept from the documents in the extradition request bundle that witnesses were interrogated); he further states that Dr Draghici's opinion on Article 405 is taken out of context and that Article 320 allows for the admissibility of fresh evidence and calling of witnesses at the defence request."
"I do not wish to give a judgment based on some contest between Mr Radu and Dr Draghici, least of all when neither of these parties have themselves given evidence or been cross-examined and many nuances of interpretation may be lost in translation. I am of the opinion that the reference to 'if he finds it necessary' is no more than a reference to the discretion given to any Judge to administer his or her court and manage his or her caseload as befits each individual case and that the defendant's right remains preserved."
"(1) If the extradition of a person tried and condemned while absent is requested, the case may be retried by the court which solved the case in first instance, at the request of the condemned."
(2) The provisions of articles 405-408 apply accordingly."
"(1) Retrial of the case after provisional admission of an application for review ... shall be made according to the rules of procedure applicable for the trial in first instance.
(2) The court, if the court finds necessary, administers again the evidence which was administered during the first trial or during the procedures for provisional admission of the application for review."
She stated that it was highly unlikely that a reviewing court would conduct a retrial or rehearing which gave the appellant the rights guaranteed to him under Article 6. She also made criticism of the adequacy of state funded lawyers who would provide free legal assistance if the appellant did not obtain his own.
"However, having made all allowances I properly can, I am unable to conclude that, upon examination of the Albanian provisions and the explanations given for them, I am satisfied that the Respondent would be entitled to the required re-trial or (on appeal) review amounting to a re-trial in Albania. I do not doubt the good faith in which the 'guarantee' was given but I see considerable force in the submissions of Mr Pearse Wheatley. There are in my judgment too many open ends and insufficient clarity to be able to conclude that the information supplied belatedly and by instalments, following the concession before the judge, provides a sufficient assurance that the Respondent would receive in Albania the re-trial, or review amounting to re-trial, which the 2003 Act requires if extradition is to be ordered. I do not find signatures of the European Convention on Human Rights, or the UN Covenants, in themselves amount to sufficient assurance in the circumstances."
Section 79(1)(c) and 82
"As this defendant's trial has already taken place submissions can only be made on the basis of oppression. I am referred to Kakis v Republic of Cyprus (1978) 1 WLR 777 and the Lord Diplock definition of oppressive -- 'as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period taken into consideration.'"
"'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 this 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.
"As respects delay which is not brought about by the acts of the accused himself, however, 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."
(i) Whether or not the appellant fled Romania, concealed his whereabouts and identity or evaded arrest, in which case any prejudice brought to him by delay should not avail him. This is not precisely the same question as that already conceded by the Government of Romania as to his voluntary absence from trial.
(ii) The effect of the fairness of his retrial et cetera caused by the passage of time. Mr Fitzgerald has identified a number of factors which he submits must be considered:
(a) It may not be possible to trace the only eye witness and identifying witness against him, Zhai Jing Sheng;
(b) The appellant may have difficulty in remembering and establishing his whereabouts on the relevant date, to set up an alibi in relation to the murder;
(c) The appellant may have difficulty in tracing witnesses in support of his alibi who can remember where he was and what he was doing at the relevant time.
(d) Documents, such as a stamped passport, may have gone missing.
"If the judge comes to the same decision as he did at the extradition hearing..."
It does not seem to set down there a provision on which time the judge has to come to that decision. My Lord, I cannot see laid down there a provision as to how soon on a remittal back on a requested person's appeal the District Judge has to reach the decision.