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
		10th October 2006

1. LORD JUSTICE AULD: On 26th June 2006 District Judge Wickham ordered the extradition of Mr Aubrey Calder, rejecting his case that his extradition was barred by sections 11 and 14 of the Extradition Act 2003 ("the 2003 Act") on the grounds that it would be unjust or oppressive to extradite him by reason of the lengthy passage of time since his alleged commission of the offences. Those offences, ones of rape and indecent assault against three female complainants, are alleged to have taken place in 1992 and 1994, that is to say some 12 to 14 years before the sought extradition.
2. The complaints indicate a pattern of alleged rape and/or other sexual assault against each complainant while Mr Calder was living with and a sexual partner of each. In some instances the complainants identify specific dates or approximate dates, or a period or periods during which the alleged incidents occurred. While Mr Calder acknowledges that he lived with each of the complainants mainly in Germany during the periods of the alleged assaults, he denies having forced himself upon them or having sexually assaulted any of them as they allege. His answer to the allegations is, therefore, that each of the complainants is lying about his behaviour towards her. Each of those relationships successively came to an end over a period of two years between 1992 and 1994, and in 1995 each of the complainants separately complained about and made detailed supporting witness statements to the police in Munich. During or towards the end of 1995, Mr Calder left Germany, to the knowledge of the German authorities, and moved to and lived in Israel for a while. In September of that year the German authorities issued a domestic warrant for his arrest in respect of the complaints, a warrant of which he claims to have been unaware at the time, a warrant that they never served on him possibly because he was by then out of the country.
3. Over the next five or six years, to the end of 2001, Mr Calder did not return to live or work in Germany. He apparently moved about from one European country to another, ending up in about 1999 in Luxembourg. There in December 2001 the German authorities obtained a provisional international warrant for his arrest on these matters, serving on him, with the warrant, the detailed witness statements of the three complainants made some five or so years before.
4. When Mr Calder was brought before the Luxembourg court on that warrant, the court accepted its validity and the requirement to extradite him to Germany. However, pending the arrangements for his extradition it released him on provisional release - in our terms, conditional bail. the Luxembourg court did that because, as it recorded in its order, Mr Calder had lived and worked in Luxembourg since November 1999 and had demonstrated, by the production of certain documents, what it described as "stable family connections with the Grand Duchy". However, the court expressly made Mr Calder's provisional release conditional upon him attending all proceedings and the enforcement of the extradition when required of him.
5. Shortly afterwards, in February 2002, Mr Calder married in Luxembourg and, very soon after that, left his new wife and the Grand Duchy without informing the Luxembourg court or the German authorities, and without leaving a forwarding address. In doing so, he was plainly in breach of the effective condition to his bail to which I have referred. The same month the Luxembourg court ordered his arrest for the purpose of executing the extradition order. However because it did not know where he was, and was unable to take the matter any further. The German authorities were equally unaware of his whereabouts.
6. It appears that Mr Calder went or (as the District Judge was to infer) fled to the United Kingdom - - he is a United Kingdom citizen - - where he has lived and worked ever since. In November 2004, some 2½ years later, the German authorities issued a European warrant for his arrest, which was eventually executed on him at Stansted Airport in March 2006, resulting in these proceedings.
7. The District Judge, in rejecting his challenge to the extradition proceedings, inferred, as in my view she was entitled to do on the evidence, that he had fled Luxembourg in early 2002 to avoid execution by the authorities there of the extradition order. She found that he could not, therefore, pray in aid the delay of some four years from 2002 to the execution of the arrest warrant in Stansted, since he had brought that upon himself by fleeing Luxembourg in breach of its extradition order, and had thereby made it difficult for the German authorities to trace him. Again, I am of the view that this was a finding the District Judge was entitled to make, and to which she was entitled to give effect by disregarding the last four years of delay on which he sought to rely (see e.g. Kakis v Government of Cyprus [1978] 1 WLR 779).
8. As to the earlier period of some six years from the issue by Germany in 1995 of the domestic arrest warrant to the securing of the provisional arrest warrant in Luxembourg in 2001, the District Judge found, on the evidence before her, that the German authorities did not know where he was, other than that he had been in Israel at the beginning of that period. She contrasted his peripatetic lifestyle in Europe during those years and lack of contact, for whatever reason, with the German authorities with those considered by the court in Hunt v The Court at First Instance, Antwerp [2006] EWHC 165 (Admin), where the applicant seeking to challenge extradition on account of five years' delay had kept in touch and cooperated fully with extraditing authority throughout that period. But in any event, the District Judge found that the earlier passage of six years, even if it had amounted to culpable delay, was not such as, within the test in sections 11 and 14 of the 2003 Act, would render it "unjust" to extradite Mr Calder to Germany. In so concluding, she contrasted the facts here with those considered by the court in Kociukow v District Court of Bialystok III, Poland [2006] EWHC 56 (Admin). That case concerned charges of attempted robbery on a specific date in Poland, to which the defence was to be misidentification and alibi, offences allegedly committed some six years before the extradition proceedings. As the court there found, it would have been difficult for the applicant to find and marshal alibi evidence in relation to a specific date and times in his support so long after the event. Here, as the District Judge observed, the facts and likely issues were very different. The allegations were all of sexual nature, said to have been committed over periods while Mr Calder was living with and had a sexual relationship with each of the complainants. As I have said, some were allegations fixed by reference to some specific dates, but mostly were vague as to date and period. By their very nature, there were unlikely to have been any potential witnesses on either side to the alleged conduct. The issue in each case is seemingly that each one of the complainants has fabricated her allegations. In the circumstances, the central issue in relation to each of the allegations would be the respective credibility of the complainant and Mr Calder. Dates and places are unlikely to be of critical importance, or to cause serious prejudice to him for want of third party evidence.
9. Mr Rodney Dixon, for Mr Calder, advanced what had the appearance of three free -standing grounds of appeal against the District Judge's order of extradition and reasoning, all of them going to the issue of injustice. He does not rely on the other statutory ground of challenge under sections 11 and 14 of the 2003 Act: oppression.
10. First, Mr Dixon submitted that, regardless of the length of the period of delay on which Mr Calder can rely - five to six years before his flight from Luxembourg in 2001, or the 11 to 12 years to his arrest at Stansted Airport earlier this year - if extradited and tried he would be seriously prejudiced in the conduct of his defence. It was, emphasised Mr Dixon, five to six years before he learned of the complaints and saw supporting witness statements, all in the course of the Luxembourg extradition proceedings in 2001. He submitted that Mr Calder could not then, any more than now, have been expected to remember where he had been, and his various activities throughout 1992 and 1994 to meet the allegations made against him with regard to incidents during that period. The likelihood or unlikelihood, Mr Dixon submitted, of there being witnesses to the matters complained of is beside the point. He said that Mr Calder may have an alibi, may have potential alibi witnesses, who might in 2001 have had or who may have now serious difficulties remembering where they were at critical dates and times, or details of the nature and circumstances of his relationship with the complainants.
11. Mr Dixon contrasted Mr Calder's position with that of the unsuccessful appellant in Dziedzic v Government of Germany [2006] EWHC 1750 (Admin), who was held not to have been prejudiced by 15 years' delay when the evidence against him and his defence were such that he was in no worse position than he would have been if tried shortly after the alleged offence.
12. Mr Seth Levine, for the German prosecutor, prefaced his submissions by pointing out, as is the case, that it is for Mr Calder to show, on the balance of probabilities, that he would suffer injustice as a result of the passage of time (see Kociukow and the reasoning of Jack J at paragraph 9 of his judgment in that case, and section 206 of the 2003 Act).
13. Mr Levine submitted that Mr Calder had not begun to make out a case of serious prejudice or any prejudice amounting to injustice. He said that at best Mr Dixon had only been able to make mere assertions of vague potential prejudice. He argued that it is not clear whether - indeed it is unlikely that - there will be issues of alibi here, as there were in Kociukow. The charges and the detailed supporting witness statements were all available to Mr Calder in Luxembourg in 2001, as they are now. He was then, and is now, in no worse position than he would have been if tried in 1995, shortly after the alleged offences. He added that such, if any, witnesses whom Mr Calder might have wished or would now wish to assist his case could at best give only peripheral evidence to the main issue in respect of the credibility of the parties, a consideration that this court had in mind in Beresford v Government of Australia [2005] EWHC 2175 (Admin) when rejecting a submission that extradition after 22 years after the event would be unjust. Mr Levine commented that Mr Calder's defence then, in 1995, 2001 or now, is simply one of fabrication. To the extent that there may be some vagueness as to date or place in the evidence that he has to meet on which an important issue might turn, any difficulty in meeting it would necessarily be a matter for consideration by the court of trial in Germany.
14. The thrust of those submissions of Mr Levine, coupled with the reasoning, explicit and implicit, in the District Judge's judgment, convinces me that she was right, on the issue raised by this ground alone, to reject Mr Calder's challenge to the German prosecutor's request for extradition. Despite the detailed nature of the allegations available to him for some five years, Mr Calder has not identified any candidates for a defence of alibi or to counter the allegations, or any persons whom he might have wished to call in his defence. In a case where the central issue is the relative credibility of the parties, not one of identification and/or alibi, and where the conduct in question is alleged to have taken place within the confines of the parties' homes over substantial periods of time, the role of potential alibi witnesses, if any, would have been and would be at best peripheral. Certainly Mr Calder has not, in my view, made out a case of any real risk of prejudice, or prejudice not curable by the trial process in Germany, so as to make it unjust to return him there for trial, and the District Judge was right so to conclude.
15. The failure of that ground of appeal alone would be sufficient to dispose of the appeal, but I will just say a few words, some of which I have anticipated in this judgment, about each of the other grounds of appeal which Mr Dixon advanced before the court.
16. The first was culpable delay on the part of the German authorities. It is doubtful to what extent, certainly in the circumstances of this case, that culpability (if any) of delay on the part of the German authorities can contribute to an argument of injustice, if, on the District Judge's finding and on mine, there was otherwise no injustice. Certainly it has no other relevance, because Mr Calder has not sought to rely on oppression. But, in any event, there is no culpable delay here in the light of Mr Calder's response to the two formal attempts to bring him to justice in Germany. First, he made himself scarce for a period of five years, as I have indicated, when the German authorities were on the brink of commencing proceedings after taking statements from the three complainants. Secondly, when they caught up with him in Luxembourg in 2001, he made himself scarce again, this time in breach of the Luxembourg court's order, by leaving the Grand Duchy and coming to live in this country, without leaving a forwarding address for either court.
17. The third ground of appeal was an associated complaint that the District Judge wrongly inferred from Mr Calder's departure from Luxembourg in 2002 that he had fled to avoid the execution of the order made by the Luxembourg court. As I have already said, there was clear evidence on which the District Judge could draw that inference. But in any event, flight or no, it does not affect the fundamental reason for upholding this extradition order. There was no risk of serious prejudice that would make his return unjust.
18. For those reasons, I would dismiss the appeal.
19. MR JUSTICE WILKIE: I agree. I too would dismiss this appeal for the reasons given by my Lord, Lord Justice Auld.
20. LORD JUSTICE AULD: Mr Levine, are there any consequential applications?
21. MR LEVINE: My Lords, not from the requesting authority.
22. MR DIXON: Nothing from myself, my Lord.
23. LORD JUSTICE AULD: Thank you both for your assistance, both orally and in writing through your skeleton arguments.
______________________________