Neutral Citation Number: [2007] EWHC 2012 (Admin)
Cases No: CO/3261/2007 & CO/744/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM THE CITY OF WESTMINSTER MAGISTRATES COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22/08/2007

Before :

LORD JUSTICE SEDLEY
MR JUSTICE NELSON
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Between :

	Goodyer and Gomes	Appellants	
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	Government of Trinidad and Tobago	Respondent	
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(Transcript of the Handed Down Judgment of
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Mr E Fitzgerald QC and Mr B Cooper (instructed by Messrs Kaim Todner for the Appellant Goodyer and by IBB solicitors for the Appellant Gomes) 
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  
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Judgement
Lord Justice Sedley : 

This is the judgment of the court.

1.	These two appeals under the Extradition Act 2003 have been conjoined by order of the court because they raise related issues. Both appellants are now represented before us by Edward Fitzgerald QC and Ben Cooper; the respondent government by Mark Summers and Alison Riley. In each case the questions canvassed before this court have been: 
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. 

2.	The provisions mentioned above are these: 
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.

Goodyer’s case
3.	Mr Goodyer, a UK citizen with a fixed abode in east London, was arrested at Piarco international airport, Port of Spain, on 21 November 2002 when some 7.5 kilos of cocaine were allegedly found in his suitcase. He was remanded to Golden Grove prison. On 31 January 2003 he was released and flew home on travel documents apparently supplied by the UK High Commission. He has asserted throughout that he was discharged, but in the course of the hearing before us an affidavit was produced exhibiting a recognisance entered into on 31 January 2003 for Goodyer’s appearance on 28 February, with a condition of thrice-weekly reporting. On his non-appearance a warrant was issued for his arrest and his sureties were ordered to forfeit the amount of their recognisances. There remains the possibility that Goodyer honestly believed himself to have been discharged, but the recognisance bears what purports to be his signature, and what follows proceeds on the assumption that Goodyer will be found to have jumped his bail. 
4.	There is, however, nothing before us to controvert Mr Fitzgerald’s submission that Goodyer has since his return lived openly in this country at a fixed address. Indeed, in that time he has served a spell of imprisonment. The reason for the delay in seeking his extradition is that the Trinidadian authorities lost their file on him. It was located again on 9 May 2006, and since then things have moved at a proper pace. But the Trinidad government frankly admits the culpability of its own delay in locating the file, which will have contained Goodyer’s address, and in seeking his extradition. 
5.	Question A – whether, by reason of the passage of time, it is now unjust or oppressive to extradite Goodyer – therefore involves a question of law: does culpable delay on the part of the requesting state affect the fairness of extraditing a person who would not otherwise be able to rely on the passage of time because it had been brought about by his own flight? 
6.	Question B arises out of the conditions in Trinidad’s gaols. There is evidence of appalling conditions in Golden Grove prison where Goodyer was held for something over 2 months; but, recognising the likely effect on the extradition request of a possible return to such conditions, the Trinidad government on the eve of the hearing in this court provided a diplomatic assurance, the reliability of which has not been challenged before us, that if returned both men will be held in the island’s new maximum security prison or facility (MSF) where, it is said, conditions are acceptable. But Mr Fitzgerald’s case is that there too conditions are such that to send anyone there is to subject him to inhuman and degrading treatment. 
7.	Deputy Senior District Judge Wickham, reminding herself that “unjust” is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself” and that “oppressive” relates to “hardship to the accused resulting from changes in his circumstances that have occurred during the period taken into consideration” (see Kakis v Government of Cyprus [1978] 1 WLR 779), concluded: 
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 fiancée, 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.

Gomes’ case
8.	Mr Gomes, a citizen of Trinidad and Tobago, was arrested on 15 May 1998 together with a man named Gomez following a police raid on an apartment. Both were charged with possession of a large amount of cocaine, together with conspiracy to supply it, and Gomes was charged in addition with unlawful possession of a firearm and ammunition. After 19 months in Port of Spain prison, where the evidence is again of appalling conditions, the drugs and firearms charges were severed. On 14 December 1999 Volney J upheld a submission that because of the suspiciously inconsistent state of the prosecution evidence (including an unexplained diminution of the principal amount of cocaine recovered from about 25 kg to about 18 kg) there was no case to answer. He discharged both men on the counts before him, ordering the return of Gomez’ passport and other effects, and – according once again to late evidence put in by the requesting state - bailing Gomes on the still outstanding firearms charges. The prosecution said in court that they would appeal. 
9.	Two days later Gomes left the country. He too asserts that he honestly believed himself to be free to go, the dismissal of the outstanding firearms charges (which arose out of the same events) being a formality. Notice of appeal against his summary acquittal on the drugs counts was given by the prosecution but not served upon him or, it appears, upon his Trinidad lawyer. In his absence, in July 2000, the appeal succeeded. A warrant was issued for his arrest, but he was not able to be found until on 5 May 2006 he was arrested at Heathrow airport. 
10.	A material part of Gomes’ defence, if he is tried on the drugs charges, will depend on whether the police could possibly have seen into the apartment as they approached it. This is a matter on which Gomes’ then neighbour, Monica Buns, was in a position to give evidence. Indeed she gave such evidence and was cross-examined on it at his committal, and her signed deposition is with the papers. But she had disappeared before the trial date and is now thought, following inquiry by a private investigator, to have died in 2005. As a former police officer in Kenya, it is submitted that her oral testimony would have carried particular weight. 
11.	District Judge Purdy on 11 January 2007 refused to discharge Gomes. He accepted, on the evidence then before him, that Gomes had been free to leave Trinidad and Tobago and so had not contributed to the delay. But he held that even so no unfairness or oppression would result from the passage of time. He went on to hold that the conditions encountered by Gomes in Port of Spain gaol in 1998-9 “left much to be desired”, but he was not satisfied that they were still as bad. In the light of the assurance that any return will be to the MSF we do not need to re-examine this aspect of the case. But so far as concerns the situation in which Gomes left Trinidad, Mr Fitzgerald submits that without a proper hearing of the further evidence a court cannot safely conclude that he fled in breach of bail. 

Question A: Would it be unjust or oppressive by reason of the passage of time to return either appellant to Trinidad for trial?

12.	In Gomes’ case there is no question of unwarranted delay on the part of Trinidad and Tobago in tracing him. The only question that may remain is whether he left in breach of bail or freely. The reason lies in the well-known principle spelt out by Lord Diplock in Kakis (above), decided under s.8(3)(b) of the Fugitive Offenders Act 1967 but applicable to the same wording in s. 82 of the Extradition Act 2003: 
“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.”

13.	It follows that it is only if Gomes is found to have left Trinidad lawfully, or possibly in the reasonable and honest belief that he was free to go, that he can begin to rely at all on the intervening years. Such reliance has already failed to avail him, despite the district judge’s acceptance that he left Trinidad lawfully; but in our view, for reasons we shall come to, he is entitled to a reappraisal of his s.82 claim on all grounds. 
14.	Goodyer’s case, notwithstanding that the lapse of time is much less than in Gomes’ case, is different and arguably stronger because of the requesting state’s admitted failure to seek him much earlier. Here, assuming as we do that he jumped his bail in leaving Trinidad, he is able legitimately to say that if at any time from that moment the Trinidad government had looked for him, they would have found him. 
15.	How does such a situation fit into the Kakis principle? Mr Summers submits that it makes no difference: Goodyer was still a fugitive from justice and cannot therefore complain of the time it took to find him. He cites the next paragraph of Lord Diplock’s speech in Kakis: 
“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.”

16.	Mr Fitzgerald, however, draws attention not only to the fact that this passage was obiter but to Lord Edmund-Davies’ disagreement with it: 
“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 …”

17.	The way s.82 works is to go directly from the passage of time to the possibility of consequent injustice or oppression. What Kakis does is interpose a jurisprudential cut-off for so long as the passage of time is of the accused person’s making; but in a case such as Goodyer’s this, while true, is not the whole truth. It seems to us that, whether the concurrent fault of the requesting state is regarded as keeping the chain of causation intact, albeit attenuated, or is regarded as an exceptional circumstance, it is wrong for the reasons given by Lord Edmund-Davies to leave it out of account. 
18.	This aspect of the Kakis decision has been considered more than once in the intervening years. In Osman (No.4)  [1992]  1 All ER 579, 587, Woolf LJ explained that Lord Diplock had not intended to exclude the materiality of culpable delay on the part of the requesting state in cases close to the borderline. In La Torre v Italy [2007] EWHC 1370, §36-7, Laws LJ adopted and amplified this reasoning, concluding: 
“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 [2007] 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.
19.	There would also be an asymmetry, if we may respectfully say so, between taking the cause of delay into account to the accused person’s detriment when it is his fault, but leaving it out of account when it is the requesting state’s fault. It seems to us more appropriate to regard the respective faults of the offender and the state as merging at the point where it is no longer reasonable for the requesting state not to have located the offender. From that point it becomes increasingly likely that the sense of security engendered by state inaction will render extradition oppressive. 
20.	It can also be observed that the possibility, which Lord Diplock considered invidious, of deciding whether another state’s delay was blameworthy, does not arise here, for the state’s fault is very properly admitted. There will be other cases where, albeit not admitted, such fault is manifest. It is in the speech of Lord Scarman that the threads are drawn together: 
“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 ….”

21.	For all these reasons, difficult though it will be for the decision-maker, s.82 in our judgment requires him or her to give as much weight to the effects of the passage of time as he or she judges right given that both sides have been to blame for it. The want of concealment of Goodyer following his return will be an important factor in the light of Kakis and the subsequent decisions of this court. We do not accept Mr Fitzgerald’s submission that the lapse of some 9 years by itself necessarily – that is, as a matter of law - makes extradition of Gomes oppressive; but it is clearly a factor of some weight in the ultimate decision. 
22.	It is also our view that evidence of the conditions each appellant had to endure while in custody in, respectively, Golden Grove and Port of Spain prison, is admissible as part of his case on oppression. 

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?

23.	We have not been invited either to develop or to seek to apply for ourselves the approach set out in the judgment of Laws LJ in R (Wellington) v Home Secretary [2007] EWHC 1109 (Admin) to the question of extra-regional compatibility with the European Convention. Argument before us has been confined, at our insistence, to what now follows from the diplomatic assurance about the location of both appellants should they be extradited. 
24.	The reason for this is that, given the assurance, Mr Fitzgerald has been able to place before us evidence, which although it dates from April 2004, is capable in our view of founding an article 3 case in relation to conditions in the MSF. It is not appropriate for us to canvass its detail; sufficient to say that it comes from a highly respected and non-partisan observer. But Mr Summers wishes to lead contrary evidence, and it is in both sides’ interest to ensure that the evidence is up to date. 

Disposal

25.	Although both sides have sought final rulings in their favour, neither side can in our judgment succeed outright, that is to say in point of law alone, upon what must necessarily be the assumptions least favourable to them. In the light of what we have set out, which is deliberately not comprehensive, we intend in both cases to exercise the court’s power under s.104(1)(b) to “direct the judge to decide again a question (or questions) which he decided at the extradition hearing”. We take “the judge” in this provision to relate to the office, not to its particular holder: otherwise non-availability would make the provision inoperable. It follows that we are not required to send each case separately back to the original district judge. It is preferable in our view, given the major issues the cases have in common, that we should remit them together to the senior district judge or such other judge as he may nominate. 
26.	The questions are those addressed above. Question A falls to be decided under s.79(1)(c) and s.82 in the light of this judgment. Question B falls to be decided under s.87 in relation to the compatibility of detention in the Maximum Security Facility in Trinidad with art. 3 of the European Convention on Human Rights. The evidence on both is again at large. 
27.	Counsel have agreed, and we direct, that all further evidence to be relied on by the appellants should be served by 15 August; that all other evidence be exchanged by 22 August; and that the court is then to be notified of the areas of agreement and disagreement in relation to the expert evidence.