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
		19th December 2006

1. MR JUSTICE RICHARDS: This is an appeal pursuant to section 26 of the Extradition Act 2003 against the decision of District Judge Tubbs at the City of Westminster Magistrates' Court on 24th October 2006 to order the extradition of the appellant. The case falls under Part 1 of the Act. The appellant's extradition is sought pursuant to a European Arrest Warrant issued by the Prosecutor General's Office of the Republic of Lithuania, which is the respondent to the appeal. The sole basis on which the extradition is resisted is that it is barred by the passage of time within sections 11 and 14 of the Act. Section 14 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)."

2. In order to see how that the provision is said to bite on this case, I turn to the relevant facts.

3. The offence alleged against the appellant is said to have occurred on 22nd October 1998. The facts as set out in the warrant are that, at approximately 8.00pm on that date, at a location in Lithuania, a group of three persons robbed a man, hitting him three times on the head, causing a minor bodily injury, and appropriating a leather jacket, a sum of cash and a watch to a total value of 807 litas. The appellant was said to have been one of the group of assailants. It appears that he was arrested on 23rd October. He was remanded in custody until 3rd November 1999, a total of just over a year. He says that on that date he appeared in court expecting to be tried but was told the witnesses had not turned up.

4. Supplementary information provided by the requesting authority shows that on 3rd November 1999 the appellant was remanded on bail and signed a written pledge in which he undertook to reside at a given address, being his aunt's address in Kaunas, not to leave there without permission from the court, and to appear at hearings on the court's demand. The pledge contained a warning that a stricter measure of constraint would be imposed if he broke the pledge.

5. He subsequently attended court on two occasions in August and September 2000. On both occasions a co-accused by the name of Germanas failed to attend and the case was adjourned while attempts were made to find the co-accused. Eventually, after the authorities had still failed to locate him, it was decided to proceed with the case in the co-accused's absence and a hearing was fixed for 19th March 2004. A summons was sent to the appellant's address as indicated in his written pledge, but he did not appear at the hearing. A further hearing was fixed for 27th October 2004 and the police were directed to bring the appellant to that hearing, but they discovered that he was no longer residing at the address in question. It was subsequently ascertained that he had left Lithuania, in breach of the conditions of his pledge. A European Arrest Warrant was issued on 17th July 2004 and the appellant was arrested in London pursuant to that warrant in May 2006.

6. In evidence to the Magistrates' Court, the appellant explained what happened in the intervening period. In July 2001 he came to England, entering on a six month holiday visa, and found work as a carpenter. He said he came with a view to starting a new life and because he had friends who had made their lives here. In Christmas 2003, however, he was returned to Lithuania as an overstayer after he had been stopped by the police while driving home and his details had been checked. Back in Lithuania, he applied for a new passport at a police station and was given one. He used this to return to England in early 2004. He said he picked up his life from before, living here openly, working as a carpenter and paying tax and national insurance. His English has improved and he has a girlfriend. They had been together for about six months at the time of the hearing before the Magistrates' Court.

7. Mr Watson, appearing before us on the appellant's behalf, submits that in these circumstances the appellant's extradition is barred by reason of the passage of time. He has taken us to a statement of relevant principles in the speech of Lord Diplock in Kakis v Government of the Republic of Cyprus [1978]1 WLR 779. At 782H to 783B, 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 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."

   Lord Edmund-Davies, at 785C to E, observed this:

   "In my respectful judgment ... the answer to the question of where responsibility lies for the delay may well have a direct bearing on the issues of injustice and oppression. Thus, the fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return, whereas the issue might be left in some doubt if the only known fact related to the extent of the passage of time, and it has been customary in practice to advert to that factor..."

   I see no great tension between what Lord Edmund-Davies said and what Lord Diplock said and Mr Watson tells us that that observation of Lord Edmund-Davies has been applied in subsequent cases.

8. In the skeleton arguments, a number of other authorities were referred to but they provide no more than illustrations of the application of the general principles to particular facts. Mr Watson submits, in the light of the statement of principles in Kakis, that one is concerned here with a broad discretionary jurisdiction, the ultimate test being one of fairness. The question of whether the period of delay will or will not render extradition unfair is itself highly dependent upon the individual circumstances of the case.

9. Here it is submitted that one should distinguish between two periods of delay. First, the period 1998 to 2004, when the matter was not brought to trial. Culpability for that lay with the authorities in Lithuania and not with the appellant. The second period is 2004 to 2006, when an issue does arise concerning the appellant's culpability.

10. As regards the broad features of the case, Mr Watson submits that this was not the most significant of offences. It falls at the lower end of the spectrum and he observes that the less significant the offence, the less likely it is that the facts will be remembered by witnesses. He prays in aid the relative youth of the appellant, who was 19 at the time of the offence and is now just 27 years old, and he suggests that matters can change dramatically with growing maturity. He points to the period of one year already spent in custody in Lithuania and suggests that, in our jurisdiction, for an offence of this kind the appellant might well not receive a custodial sentence in excess of that. He also refers generally to the change in the appellant's personal circumstances since 1998 and, in particular, the life he has built for himself in this country.

11. As regards the issue of injustice, Mr Watson submits that it is not known what the evidence against the appellant is but that, given the circumstances of his arrest and that nothing was apparently found in his possession, it may be suggested that the evidence was weak. He has also suggested that the appellant is disadvantaged in relation to a potential alibi witness. The appellant says that he was visiting his then girlfriend at the time of the offence and, whilst they kept in touch while he was on remand in custody, they became separated by the end of that period and he did not see her thereafter and has not heard from her for about four years and does not know where she lives. As to that, however, it is right to note that in his evidence before the Magistrates' Court the appellant was questioned about this and accepted that no enquiries had been made as to the availability of this alleged alibi witness.

12. In relation to oppression, Mr Watson suggests that, in our jurisdiction, if a 19-year-old were charged with an offence of this kind, remanded in custody for a year, then released on bail and attended further hearings but thereafter heard no more about the case until there was an attempt to hold a trial some six years after the offence, the proceedings would be stayed as an abuse of process; and, if it would be unfair to try the appellant in the light of such circumstances here, equally he suggests that it would be unfair to do so in Lituania and oppressive to return him for that purpose.

13. In relation to the period 1998 to 2004, Mr Watson submits further that that delay goes beyond a reasonable time for the conclusion of the criminal proceedings for the purposes of Article 6 of the ECHR, especially given that this does not appear to have been a particularly complex case legally or factually. So Mr Watson says that, as at 2004, it would have been oppressive and unjust for the appellant to be returned to face trial. In relation to the period since then, he submits that the additional delay should count in the appellant's favour rather than against him. He argues that one should have some sympathy for the appellant, who had attended court twice and, though subsequently on bail, must have come to the conclusion at some point that the proceedings were behind him and who applied openly to leave the jurisdiction following his removal to Lithuania from England in Christmas 2003.

14. I say at once that that argument seems to me to be plainly untenable. There was here a clear-cut breach of the appellant's written pledge and he must have realised what he was doing in leaving Lithuania in 2001 and in getting out of the country again, rapidly, following his removal there at Christmas 2003. He must have appreciated the risks that he was running. It seems to me that his position is not one for which, in that respect, the court should have any sympathy and in my view what has happened in the period 2004 to 2006 counts against rather than in favour of the appellant.

15. I think it unnecessary, however, for me to deal seriatim with each of the matters that Mr Watson has raised because the whole case was dealt with fully and clearly in the judgment of the District Judge. She directed herself by reference to the relevant principles. She set out the history in some detail and then she dealt carefully with the question of whether it would be unjust or oppressive to return the appellant by reason of the passage of time. On delay, she took into account in the appellant's favour the period between the hearing in September 2000 and the hearing fixed for March 2004, a period which she felt to be an overlong delay on the part of the Lithuanian authorities. But she also found fault on the part of the appellant in leaving Lithuania in early 2001, within a few months of his written pledge and without informing the authorities. Adopting a highly balanced approach to the issue, she held that on neither side had the culpability for delay been so serious as to be determinative of the issue one way or the other. She found there to be no risk of prejudice to the appellant in the conduct of the trial itself by reason of the passage of time. He had been arrested at the time of the offence, he knew the nature of the charge, he had been legally represented and had ample time to secure evidence and statements and to fix his own and others' recollection of events. She also held, entirely justifiably on the evidence before us, that it should not be difficult to trace the possible alibi witness. She said that the inevitability that memories fade over the years would be the same for both prosecution and defence witness and there was no reason to suppose that the trial process would not take it into account.

16. On oppressiveness, she took into account the appellant's age and the gravity of the offence, which she described, again in my view entirely justifiably, as a matter of some substance and seriousness. She pointed out that the appellant had at no stage been misled into thinking that the authorities no longer wished to prosecute him. She said that there had been no dramatic change in his circumstances or responsibilities. She referred to the improvement in his English and the fact that he had a girlfriend and the nature of his work and accommodation but she found there had been nothing in the circumstances, or any change of circumstances in the relevant period, which would result in hardship were he to be returned for trial, beyond the disruptions inevitable in facing a criminal charge such as this at any stage.

17. In my judgment that was impeccable reasoning on her part and I see no basis whatsoever for taking a different view from that taken by the District Judge. Insofar as she referred to the trial process in Lithuania as taking matters into account, and to the absence of risk of prejudice in the conduct of the trial itself, I see no inconsistency between that reasoning and what was said in Kakis, by Lord Diplock in particular. It seems to me that it is necessary and permissible to have regard to the way in which the trial process would operate in the country to which a person is to be returned.

18. Reference was made in the course of submissions to the case of Re. Henderson [1950] 1 All ER 238 but, for my part, I think it unnecessary to rely on that case or to consider the arguments that were advanced by reference to it for the purpose of disposing of the present appeal.

19. For the reasons I have given, I would dismiss the appeal.

20. MR JUSTICE OWEN: I agree.