England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		19 October 2006

Thursday 19 October 2006

THE LORD CHIEF JUSTICE: This is an appeal from an order of District Judge Nicholas Evans dated 7 September 2006 made in the course of extradition proceedings brought in relation to the appellant. The district judge ordered that the appellant be extradited to Poland in accordance with section 21(3) of the Extradition Act 2003. The appellant appeals against that order in accordance with sections 26 and 27 of the Extradition Act.

1. Mr Trovato for the appellant has realistically confined his ground of appeal to a single point that is based on section 14 of the Act. That section provides:

"A person's extradition to a category 1 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)."

Mr Trovato has made it plain that he does not rely on the contention that it would unjust for the appellant to be extradited by reason of the passage of time; the appeal is based exclusively on the submission that it would be oppressive.

2. The facts found by the district judge are set out in paragraphs 9 and 10 of his written reasons as follows:

"9. I make the following findings having heard evidence from the defendant and noted his answers and demeanour under cross-examination. The defendant is now 32 years old; at the time of the alleged offence in 1998 he would have been 24 years old. He left school when he was 16/17 and shortly afterwards travelled abroad looking for and obtaining employment. He mostly worked on farms or on building sites in countries such as Holland, Austria, Germany and Spain. He was never away for more than a couple of months, returning regularly to his parents' address, at which he was registered, 15/24 Jagiellonska Street, Legionowo. He married his current wife when he was 21. She lived in the same street in Legionowo, about 200 metres away. They rented a flat for six months or so but soon found they could not afford independent living so both returned to their respective family homes. Thereafter, the defendant travelled abroad as he had before, regularly returning to see his wife and his twin boys (his wife was pregnant when they married) and living at his registered address with his parents. At the time of the alleged offence he accepts he was living at his registered address. Poland requires its citizen to register the address at which they live in Poland at the Central Office of Addresses. At no time did the defendant notify that office of any address other than 15/24 Jagiellonska Street. After the alleged offence police made enquiries and visited 15/24 Jagiellonska Street on 19th October 1998. At that time the defendant is unsure precisely where he was residing, save, if he was in Poland, he never lived at any address other than at his registered address. The defendant's parents told the police that the defendant was not living at the address and they did not know where he was staying. In addition to at least one police visit a summons was sent to the registered address, which was ignored. Enquiries made of the defendant's wife [indicated] that she did not know where he was living. In 1999 the defendant travelled by bus from Poland to England. Since then he has never returned to Poland. He told me that it was not until 2002, or thereabouts, that he first learnt of any police interest in him. Even then he had no idea why there should be such interest. It follows that neither his wife nor his parents mentioned the summons or police visits prior to 2002.

10. Given that history I conclude the defendant was lying low after the alleged offence. I do not accept his assertion that he knew nothing about it. If he was out of Poland from October 1998 to some period immediately before his departure for England there can be no reason for him not contacting either his wife or parents before setting off for England unless he thought it was too dangerous to make such contact lest he be arrested. If, as I suspect, his parents and his wife were covering up for him he must have known all about it. If they were not and they genuinely did not know where he was, why then did he change his whole patter of behaviour? Why leave and not tell his wife and parents where he was going and why? Why, in relation to his regular returns to Poland (never away for more than two months) and always visiting and staying at his registered address, did he decide to behave differently? He was not telling me the truth. He fled from Poland never to return because he knew full well that if he remained he would be arrested and prosecuted. On his arrival in England he was working initially without permission as he had a tourist visa. He subsequently regularised the position by obtaining a self-employment visa in 2002. Following accession in May 2004 he has had full entitlement to work without the necessity of having to obtain a visa. Significantly, he arranged for his wife to come over and visit him in England, sometimes with the children, sometimes not, but he never returned to Poland."

3. Mr Trovato submits that, despite the fact that part at least of the delay that has occurred in this case has been attributable to the fact that, as the district judge has found, the appellant came to this country in order to evade the course of justice in his own country, this court should nonetheless find that the delay would result in such a degree of oppression were the appellant to be extradited that we should rule that his extradition is barred under section 14.
4. The oppression relied upon relates to the impact upon the appellant's family were his support to be removed. The appellant's family settled in this country three years ago. They have made a very successful home here. The twin children attend good schools and the appellant is clearly an important and supportive member of the family unit. But the fact relied upon particularly by Mr Trovato in support of the case of oppression relates to the medical condition of Karlo, one of the 11 year old twins. We have before us a letter from the clinical nurse specialist in diabetes at The University College London Hospitals Cancer, Children's and Adolescent Services, which tells us that Karlo has a severe form of diabetes, Insulin Dependent Diabetes Mellitus, which requires him to wear an insulin pump that delivers subcutaneous insulin 24 hours a day; that Karlo has to monitor his blood glucose a minimum of six times a day throughout that period; and that his parents have to be constantly vigilant as well. At the end of her letter Miss Thompson comments that, without daily intensive management (which refers to management by Karlo himself) and his parents' vigilance, support and assistance, Karlo could potentially become very unwell, leading to urgent admission to hospital. Thus, submits Mr Trovato, it would be particularly serious for Karlo if the appellant's assistance were removed.
5. The district judge dealt with the question of oppression very shortly in his reasons at paragraph 18 as follows:

"He was married with children at the time of the alleged offence; the children now are a little older. Of course their educational requirements change as they get older. The children successfully made the transition from Poland to the United Kingdom in 2003 and presumably could reverse that if necessary. Karlo's unfortunate medical condition was diagnosed before he came to England and is it is unclear how the passage of time has a bearing on it. Anyone who had been working prior to extradition will lose that employment on extradition. The defendant's wife is entitled to work in the United Kingdom, and she is currently in part-time employment. On the material placed before me I do not see why either she or the children need to return to Poland, unless they want to. The defendant can return to face his trial and if acquitted can come back to the United Kingdom straight away. If convicted there may be a delay."

In these circumstances the district judge found no exceptional circumstances existed which established that it would be oppressive to order the appellant's extradition to Poland.

6. When questioned by this court Mr Trovato made it clear that if the appellant is extradited to Poland, his wife and children intend to remain in this country. That is no more than the judge suspected would be the case, and what this court had also anticipated.
7. Miss Ezekiel for the respondent has made two points in answer to the appellant's reliance on oppressiveness. The first point is that, insofar as delay has or will result in hardship if the appellant is extradited, the appellant has brought that upon his own head because he is essentially responsible for the delay by seeking to evade the Polish authorities. Miss Ezekiel says that in that event, barring exceptional circumstances, it is not open to someone to pray in aid section 14.
8. The second (and distinct) point she makes is that the appellant has not demonstrated that the delay that has occurred in this case is the cause of any potential oppressiveness if the appellant is extradited. She draws attention to the wording of section 14 that "extradition is barred if it would be oppressive to extradite him by reason of the passage of time". Thus the section expressly requires a causative link between the oppression and the passage of time.
9. Miss Ezekiel has helpfully referred the court to the relevant passages of the relevant authorities in her skeleton argument. The leading authority in this field is the decision of the House of Lords in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779. Although this was a decision under the Fugitive Offenders Act 1967, it bears on the meaning of "unjust of oppressive" in the present context. At pages 782-783 Lord Diplock said this:

"'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.

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."

10. Miss Ezekiel has referred us to more recent authorities which endorse these principles: Regina v Governor of Pentonville, Ex parte Narang [1978] AC 247, Regina v Governor of Brixton Prison and another, Ex parte Osman (No 4) [1992] 1 All ER 579, Cookeson v Government of Australia [2001] EWHC Admin 149, and Zigmund v Government of Slovakia [2005] EWHC Admin 2507. Thus the two points taken by Miss Ezekiel are abundantly supported by authority.
11. Mr Trovato sought to meet these authorities by reliance on the decision of the Divisional Court in Cookeson v Government of Australia, in which the court found in favour of a submission that it would be oppressive as a result of delay to extradite the applicant to Australia. The oppressiveness in that case flowed from the fact that there was a very severely mentally disabled son who depended greatly on the applicant for his welfare. Miss Ezekiel submitted, rightly in my view, that the facts of that case were very different from the present. In that case the support given by the father was manifestly critical to the health and wellbeing of the son.
12. In the present case I acknowledge at once the hardship that will be caused to the family unit if the appellant is extradited, but insofar as help is needed to look after Karlo, the twin with serious diabetes, such help could be provided by the Social Services. In truth, the hardship does not differ greatly from that which is experienced by any family if the father is taken away from it to face a criminal charge.
13. A question that occurred to me in relation to Cookeson was that of the nexus between oppressiveness and the delay. In that case the court, obviously sympathetic to the predicament of the son, found that the consequences of the extradition of the father would be exacerbated as a result of the delay that had occurred. At paragraph 29 Latham LJ held:

"It seems to us that the report makes clear two things in particular. Firstly, the illness from which Ryan suffers has progressively deteriorated. That means that the need for care has progressively increased. The passage of time therefore, since 1988, when this offence was allegedly committed by the applicant, has resulted in a significantly increased need for care for Ryan. Secondly, it is clear from the report that, certainly on the material that the doctor had, the applicant is the only person other than the statutory authorities who can provide him with that care."

14. In contrast to that finding, I cannot see in the present case any nexus between the oppression that will result from the extradition of the appellant and the delay that has occurred. On the contrary, I am inclined to agree with Miss Ezekiel that the delay that has occurred has been beneficial to the family in that they have established themselves in this country and Karlo has been able to avail himself of medical treatment which would not have been available in Poland.
15. In relation to the other points made by Miss Ezekiel, on the facts of this case there are periods of delay in relation to which we have no information. But putting the case at its highest, all that can be said on the part of the appellant is that the authorities might have been more diligent in trying to trace the appellant after he had absconded. Looking at it realistically, the appellant has brought the delay upon himself by taking steps which prevented a prompt trial for the offences with which he is charged. In this case there are no exceptional circumstances such as those envisaged by Lord Diplock that would lead to making a finding in the appellant's favour under section 14, notwithstanding that he is responsible for the delay that has occurred. For these reasons, therefore, I would dismiss this appeal.

MR JUSTICE RODERICK EVANS: I agree with my Lord's reasoning. I, too, dismiss the appeal.