QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE BEAN
|REZEKNE COURT OF LATVIA||(DEFENDANT)|
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MR R MCCOUBREY (instructed by CPS London) appeared on behalf of the DEFENDANT
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" . . . the court should keep its eye firmly on the statutory question posed by section 25. The question is not whether the appellant is suffering from a psychiatric disorder with or without the added disadvantage of low intelligence; it is whether, by reason of his mental condition it would be unjust or oppressive to extradite him."
"'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 would be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of a delay due to such causes are of his own choice and making. Save in the most exceptional circumstances, it would neither be unjust or oppressive that he should be required to accept them."
"In relation to Article 3 it is necessary to show strong grounds for believing that the person if returned faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment."
" . . . if and only if it appears that it would be unjust or oppressive to extradite . . . by reason of the passage of time since he is alleged to have committed the extradition offence."
The primary case for the appellant before the District Judge, so far as this issue was concerned, was that he had left Latvia for this country because of his problems with the police which were unconnected with the assault on Petrovs, and that he was unaware that by leaving Latvia he was in breach of any obligation to the prosecution or to the court in that country. There was a stark issue of fact. The case for the Latvian Government was, and is, that the appellant had signed an undertaking in Latvia to the effect that he would remain at his then address pending the conclusion of the proceedings. There was a document before the District Judge, and there is the same document before this court, certifying such an undertaking. It is referred to in the European Arrest Warrant. The District Judge simply disbelieved the appellant when he said that he had not signed such a document. That was an important finding of fact. In my judgment, it was undoubtedly a finding that was open to the District Judge, having regard to the properly authenticated document from Latvia and the fact that he had formed a negative view of the appellant's evidence in a number of other regards.
"I also declare that I am not willing to take part in any court proceedings which could be initiated against Aleksandrs Prancs in relation to the conflict mentioned above as well as I will not be the initiator of such proceedings."
Mr Caldwell submits that this is evidence that Petrovs would not give evidence at any trial in Latvia and that consequently the appellant could not receive a fair trial in Latvia compliant with Article 6, and in particular Article 6(3)(d) which refers to the right to examine or have examined witnesses against him.
" . . . that a person has suffered or is suffering a flagrant denial of a fair trial in a receiving state."
In my judgment, the appellant cannot satisfy that stringent test. Taking the statement of Petrovs at face value, as I am prepared to do, it is no more than evidence that on the date that it was made Petrovs was an unwilling witness. That does not prove that in Latvia, any more than in this country or elsewhere, such a witness would refuse to testify when the matter came to trial. We have not been referred to any of the minutiae of Latvian law, but it would be surprising if they did not include procedures and processes whereby witnesses can be compelled to attend court and to give evidence and to face sanctions if they refuse to do so. Again, it is common, and indeed now established in this country, that in some circumstances the statements of absent witnesses can be read as evidence without there being any breach of Article 6. Much depends on the circumstances. We do not know what motivated Petrovs at the date of his statement almost a year ago, and, in my judgment, it would be inappropriate for us to speculate what his response would be when his attendance as a witness was sought, if necessary by compulsion, at the eventual trial. In my judgment, Mr Caldwell has not begun to establish a breach of Article 6 if extradition were to take place.