QUEEN'S BENCH DIVISION
ON APPEAL FROM THE CITY OF WESTMINSTER MAGISTRATES COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE NELSON
| Goodyer and Gomes
|- and -
|Government of Trinidad and Tobago
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Mr M Summers and Mrs A Riley (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: Wednesday 25 July and Thursday 26 July 2007
Crown Copyright ©
Lord Justice Sedley :
This is the judgment of the court.
A. Whether, by virtue of of ss. 79(1)(c) and 82 of the Extradition Act 2003, it would be unjust or oppressive by reason of the passage of time to return either appellant to Trinidad for trial.
B. Whether, were either appellant to be returned, his prison conditions would be such as to make his extradition incompatible with article 3 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment), contrary to s.87 of the Act.
79. Bars to extradition
(1)(c) the passage of time;
82. Passage of time
A person's extradition to a category 2 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;
(a) committed the extradition offence (where he is accused of its commission) or
(b) become unlawfully at large (where he is alleged to have been convicted of it)
87. Human rights
(1) If the judge is required to proceed under this section (by virtue of section 84, 85 or 86) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c 42).
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.
ECHR Article 3 - Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Unjust. The issue in the trial of Benjamin Goodyer will be very simple. Did the defendant have knowledge of the contents of the Samsonite handbag? All documentary evidence is apparently preserved and not disputed. The defendant was accompanied by a female whose luggage was innocuous and she was allowed to travel. In evidence the defendant said that this was a girlfriend, though not his current fiancιe, called Mary, and that he believed that she now lived in Amsterdam. I accept that this person may be a relevant witness for the defence and that she may not be easy to trace after 4 years but there is no evidence before me that she cannot be found or cannot go to Trinidad to give evidence.
Oppressive. The defendant states that he has remained in the United Kingdom since 2003 and at the same address, namely his mother's home. He has not sought to conceal his whereabouts. Although he has not had his liberty throughout the period that might be described as "the cradle of events" due to domestic criminal convictions, he would have been readily traced had the Requesting Judicial Authority wished so to do. Since 2004/2005 he has been the partner of Miss Tibbles. She lives in Canvey Island with 2 children. They do not live together but have an 8 month old son. Since the last hearing on 29th January 2007, I have received written documents from Miss Tibbles and Mrs Susan Goodyer, the defendant's mother. They are in letter or reference form. I do not know if Mr Summers, Counsel for the Requesting Judicial Authority has been served with these documents or whether he would wish to make submissions as to their admissibility. However, I have for the purposes of this submission (i.e. section 79(1)(c) taken their contents into account as supporting the defendant's evidence of his changed lifestyle since his encounter with Miss Tibbles. He has had good employment, paid his mother's mortgage and contributed to Miss Tibbles household. He has taken his responsibilities willingly and with devotion. Sadly, the consequences of his maturity do not afford him a bar to extradition cf. Yarrow v Greece and Tonge v Greece a decision of the Divisional Court of 22nd November 2006. Furthermore the defendant falls within that part of Lord Diplock's judgment in the case of Kakis, "delay in the commencement or 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 him as a ground for holding it to be 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".
When this is coupled with his knowledge of the proceedings and the adjourned court date which he chose to ignore, he cannot rely upon the tardiness of the Requesting Judicial Authority in pursuing him. Calder v Germany Divisional Court 10th October 2006. I find that it would not be unjust or oppressive to return Benjamin Goodyer.
I am satisfied that there is evidence to be found in the duly authenticated documents sufficient to require an answer and thus the section 84 (6) question is decided in the affirmative and I turn now to section 87 upon which I received no submissions. I am satisfied that the extradition would be compatible with Convention rights and I propose to send this case to the Secretary of State for his decision as to whether Benjamin Goodyer should be extradited.
Question A: Would it be unjust or oppressive by reason of the passage of time to return either appellant to Trinidad for trial?
"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 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 the delay as its effect; or rather, the effect of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. So the court is not normally concerned with what could be an invidious task of considering whether mere inaction of the requisitioning government or its prosecuting authorities which resulted in delay was blameworthy or otherwise. Your Lordships have no occasion to do so in the instant case."
"In my respectful judgment, on the contrary, the answer to the question where responsibility lies for the delay may well have a direct bearing on the issues of injustice or 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 "
"Culpable delay on the part of the State will often be associated with other factors, such as 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."
This reasoning has been still more recently followed in Spanovich v Croatia  EWHC 1770 (Admin) §16, where Hughes LJ pointed out that Kakis itself is an example of a case where extradition failed for just such reasons.
"The oppressiveness in returning him for trial would arise because during the years which have elapsed events have conspired to induce in Mr Kakis a sense of security from prosecution. Yet during these years he has not led the life of a fugitive from justice. On the contrary he has settled in this country openly ."
Question B: Were either appellant to be returned, would his prison conditions be such as to make his extradition incompatible with article 3 of the European Convention on Human Rights?