QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE TREACY
| The Government of Croatia
|- and -
Mr Nicholas Stewart QC and Mr B V O`Toole (instructed by Atlee Chung & Co.)
for the Defendant/Respondent
Hearing date: Friday 13/07/07
Crown Copyright ©
Lord Justice Hughes :
i) He ought to have held that Mr Spanovic could not rely on the passage of time at all because he had brought it upon himself by fleeing Croatia in November 1998.
ii) He was wrong on the primary facts found to say that Mr Spanovic's whereabouts had been known to the Government since May 1997; further, failure on the part of the Government to find him could not justify a finding that it was unjust or oppressive to extradite him.
iii) He should not have placed significant weight upon the course of Mr Spanovic's asylum claim and application for leave to remain in the UK.
iv) He should not have placed significant weight upon the fact that Mr Spanovic had established himself, and his family, in the UK.
v) He was wrong to find injustice or oppression on the basis of difficulties in seeking out evidence and preserving memories in relation to a trial so long afterwards of an event occurring in the chaos of civil war.
I should take those contentions seriatim.
"Delay in the commencement of conduct of extradition proceedings which is brought about by the accused himself 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 which 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 neither be unjust or oppressive that he should be required to accept them."
"All the circumstances must be considered in order to judge whether the unjust/oppressive test is met. Culpable delay on the part of the State may certainly colour that judgment and may sometimes be decisive, not least in what is otherwise a marginal case……And such delay will often be associated with other factors, such as the possibility of a false sense of security on the extraditee's part. ….An overall judgment on the merits is required, unshackled by rules with too sharp edges."
I do not read that expression of the test as confining the possible relevance of culpable delay to the marginal case, nor would I myself do so. Particularly since a development by the person sought of a sense of security may be one of the relevant effects of delay and one which may lead to a finding that extradition would be oppressive, as for example in Kakis itself, it seems to me that that may well involve examining whether culpable neglect or delay on the part of the requesting state has engendered such sense of security. But I have no doubt that it is not the law that if there is proved to be culpable delay in finding the man it is therefore necessarily unjust or oppressive to extradite him, any more than it is necessarily unjust or oppressive to try a domestic English defendant because the police have been (culpably) less than assiduous in catching him. Although culpable delay may be relevant, the principal focus, when it comes to considering the passage of time, is not on a judgment on the performance of the requesting state's investigation but on the effect that time passing has had.
"whether extradition is barred by reason of the passage of time"
The District Judge's decision on this question will, now, stand as ours: see section 106(8). If he decides this question in favour of Mr Spanovic, discharge will follow. If he decides it in favour of the Government, he will go on under s 106(7) to consider the other possible bars to extradition, in particular the possible breach of Convention rights and, if it arises, the question of extraneous considerations.
Mr. Justice Treacy: