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 WC2A 2LL
		17 October 2007

1. LORD JUSTICE LATHAM: This is an appeal from a decision of District Judge Evans on 12 April of this year in which he sent the appellant's case to the Secretary of State for the Home Department to consider a request for extradition to the United States on charges of conspiracy to commit securities fraud and wire fraud (six counts of wire fraud and one of securities fraud).
2. On 23 May 2007, the Secretary of State for the Home Department made an order for extradition. The request was made in respect of events which took place in relation to the appellant's position with a company, 2Do Trade. The appellant is in fact a New Zealand national, but the appellant has not, it appears, himself lived in America. The company was incorporated in Nevada, but had its headquarters in the United Kingdom. It was a private company. It then merged with a public company, which was a "shell" company. The allegation against the appellant and six others was that by means of disseminating fraudulent information about the company and other matters, they managed to achieve a stock market valuation ultimately of about $20 million, when in reality the only asset was $26 in a bank account.
3. The investigations that were commenced in America resulted in an indictment, which was returned on 20 August 2003 by the grand jury in the District Court for the District of Columbia. Thereafter, and this is important for the purposes of the submissions that have been made on the appellant's behalf, civil proceedings were commenced by the Securities and Exchange Commission against the appellant and co-conspirators. The civil proceedings were based essentially on the same material as was relied upon by the grand jury when returning the indictment. Indeed, much of the material would appear to consist of interviews with the appellant during the course of the Securities and Exchange Commission's own investigation.
4. The procedural history thereafter was that, on 24 October 2003, the summons in the civil proceedings was delivered to the appellant's address, and then on 2 February 2004 the United States Government intervened in the civil proceedings to apply for a stay, the purpose of which was to protect the integrity, it is said, of the criminal proceedings. On 12 March 2004 a stay was ordered. Subsequently, when criminal proceedings had been completed against one of the co-conspirators, for reasons which are not fully explained but Mr Summers on behalf of the appellant has characterised as a blunder, the stay of the civil proceedings was lifted. That was on 29 March 2006. The request had by then been made, and on 22 May 2006 the Secretary of State issued a certificate under section 70 of the Act in respect of that request. Again, in circumstances which Mr Summers has characterised as a further blunder, the stay having been lifted and there being no defence from the appellant, a default judgment was entered against the appellant. That was on 13 June 2006. The appellant was thereafter arrested on 29 August 2006, and the proceedings in respect of which this appeal is brought were then in train.
5. The appellant's first ground for resisting his extradition to the United States is, as I have already indicated, based critically on the civil proceedings and their consequences. It is submitted that the appellant essentially will be denied a fair trial, contrary to Article 6, by reason of the conclusion of those proceedings in the judgment to which I have referred. It is said this judgment is in terms which indicate that there has been a finding of fact in those proceedings to the effect that the appellant has done the things which are said in the civil proceedings to have amounted to a conspiracy and which, as I have already indicated, are precisely the same facts upon which the prosecution in the United States will rely in support of the criminal proceedings.
6. The form of the judgment is, it seems to me, of some significance. It reads as follows insofar as material:

"This court having considered the pleadings and declarations on file herein makes the following findings of fact and conclusions of law..."

Thereafter there is set out the fact of the proceedings having been commenced and the fact that the appellant had not filed any answer to the complaint, nor appeared before the court to defend the cause. It goes on:

"4. No appearance has been entered by counsel on behalf [of] Taylor.

5. The allegations in the Complaint as to Taylor are, as to him, deemed admitted."

7. It is said accordingly that the effect of that judgment, which is a public judgment, which can be readily obtained by means of an ordinary internet search, means that the facts upon which the prosecution are based have been prejudged in a way which prevents the appellant from having a fair trial.
8. We have made enquiries of the appellant, through his counsel, as to what steps, if any, had been taken by him in relation to that judgment and its possible prejudicial effects. We have been told that he became aware of the judgment some time late in 2006, and that by the time he could take any steps in relation to it, a television programme had been screened in Dallas about the judgment. The latter point is of significance because the civil proceedings, for whatever reason, were indeed commenced in Dallas, whereas, as I have already indicated, the criminal proceedings are going to be in the District of Columbia. It is against that background that we have to consider the extent to which there is any real force in the submissions made on behalf of the appellant.
9. They are essentially based upon the proposition that had the civil proceedings and the criminal proceedings been in this country, stringent steps would have been taken, were the civil proceedings to continue during the life of the criminal proceedings, to ring-fence the civil proceedings in a way which would, so far as possible, ensure that there was no interference with the criminal proceedings. We have been referred in that regard to DPR Futures Limited [1989] 1 WLR 778; Attorney General of Zambia v Meer Care & Desai and others [2006] EWCA Civ 390; R v Barrington Payton [2006] EWCA Crim 1226.
10. The appellant submits that, because no such steps were taken in the United States, and the judgment in the form that I have already referred to has become public, the horse has bolted and there is nothing now that can be done which could ensure a fair trial.
11. It seems to me that that is a hopeless argument. The position is that there is, as we would call it, a default judgment, which has only stated that the facts are deemed to have been found. There are no findings of fact as such which could in any way prejudice the appellant, who at all times would be able to say, were it to in fact be a matter which ever arose during the course of the criminal proceedings, that the only reason there was a judgment against him was because he had simply not put in a defence. He will have to give an explanation for that, but nonetheless it will not in any way, in my view, redound of itself to his detriment. But quite apart from that, I cannot believe that steps could not be taken to ensure that the jury was not in any way prejudiced by the existence of that judgment, be it by ensuring that the jury does not in fact know about it, or by appropriate directions which one would expect in a court in this country and which one would expect also a court in the United States to be given to the jury to ensure that no inappropriate inference is drawn from that judgment.
12. I accordingly do not consider that there is any real risk of the appellant's defence being prejudiced by what happened in relation to the civil proceedings, unfortunate though it may be that they were allowed to continue in the way that they were.
13. I then turn to the second main basis upon which it is submitted that the order made by the district judge was wrong, and that is based upon the appellant's health. The position before the district judge was that he had before him a medical report from a Dr Spyrou, a consultant cardiologist, which set out his findings in relation to the appellant. He concluded that the appellant was suffering from a chronic heart condition. He described it as being heart failure. He described how the appellant was on a significant drug regime, and his prognosis was described in the following terms:

"12. Patients with severe heart failure as Mr Taylor's have a very poor prognosis with a 50% 5 year mortality. The randomised Aldactone evaluation study (RALES) have suggested a 50% mortality within the first 3 years of the diagnosis."

14. The report continued with the doctor's views about the problems that would have to be faced by the appellant given that condition in relation to deportation, and he said as follows:

"13. In view of his incapacity Mr Taylor would be in danger of flying as things stand. This may be feasible only with the provision of oxygen and close monitoring during the flight.

14. Possibility of travel to the United States by boat obviously would not pose any risk from oxygen decompensation but simply the risk of being out at sea when he could be acutely unwell.

15. My other concern about deportation is about the stress that will cause in someone who has significant cardiac disease and may in fact cause his demise."

15. The medical position has been brought up-to-date to some extent by a letter from Dr Spyrou of 17 September 2007, where he again repeats the medical history and the diagnosis. He records that there have been further tests, and those indicate some deterioration and progression of the chronic disease. The paragraph reads as follows:

"As I mentioned in my previous reports, Mr Taylor's prognosis is poor and I would suggest he has a 50%, 5 year mortality. Again I would suggest that it would be unsafe for him to travel by air and the problem with the long boat trip would be that he could run into problems mid-ocean and it would therefore not be medically advisable from my point of view."

16. The district judge also had available to him an undertaking from the United States Government that appropriate steps would be taken were the appellant to be deported to enable him to have oxygen available both on the ground before and after the flight, and during the flight, and would be accompanied by a medically qualified, or at least trained, marshal.
17. The district judge considered that that was a sufficient answer to the question as to whether or not it would be unjust or oppressive to return the appellant to the United States so as to mean that there was no bar to his being returned under section 91 of the 2003 Act. But the argument is put in a slightly wider form by Mr Summers on the appellant's behalf, as indeed was recognised by the district judge. The act of deporting him would, it is said, be prima facie a breach of his rights under Article 8 of the European Convention on Human Rights, and the consequences of his being convicted and sentenced in America would mean that there would be a real risk of a breach of Article 3 of the European Convention.
18. As far as Article 8 is concerned, it is clear from the jurisprudence that one starts from the proposition that, in normal circumstances, the interference with a person's private and family life under Article 8 is proportionate in Convention terms, bearing in mind the mischief and purpose of extradition proceedings. Although described as ancient authority by Mr Summers, the Commission observed in Launder v United Kingdom [1998] 25 EHRR CB 67 that:

"... it is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting State would be held to be an unjustified or disproportionate interference with the right to respect for family life."

19. That was echoed in this court in R(Bermingham) v the Director of the Serious Fraud Office [2006] EWHC 200, where Laws LJ said:

"... a wholly exceptional case would in my judgment have to be shown to justify a finding that the extradition would on particular facts be disproportionate to its legitimate aim."

20. Mr Summers has referred us, quite rightly, to the recent authority of the House of Lords in the case of Huang v the Secretary of State for the Home Department [2007] 2 WLR 581. That was an appeal from a decision of the Court of Appeal in which the leading judgment was given by Laws LJ again, in which the court had there been dealing with the question of removal from this country of a person who had not met the requirements of the Immigration Rules. He had said that it would only be exceptional circumstances, in effect, that would justify a departure from the Immigration Rules.
21. In the opinion of the Committee, which was given by Lord Bingham, Lord Bingham indicated that it was not appropriate to describe the circumstances which could justify departure from the Immigration Rules as exceptional. That was to gloss what Article 8 required. However, it seems to me that, certainly in the context that we are talking about, the matter is one of semantics. Quite clearly, there is a proper purpose in deportation, and the question in every case is whether the deportation in the particular circumstances is one which is disproportionate. Whether one calls it a search for an exceptional case or simply describes it as requiring very strong circumstances before deportation could be considered to be disproportionate seems to me, as I have already indicated, to be a semantic exercise rather than one of substance. What we really need to look at is whether, in the given circumstances, the extent of the disruption to the individual is such that it outweighs the need for proper international comity to be adhered to in the extradition field.
22. If one looks at the Article 8 argument here, it is essentially based upon the risk to the appellant's health as to transfer from this country to America. That risk can, as the district judge indicated, be properly moderated by the steps which are proposed by the United States Government, and I see no reason to dissent from the views of the district judge that accordingly there is no bar to his extradition based upon Article 8. In doing so, I take into account the fact that Dr Spyrou considers that there is a risk of his suffering sufficiently from stress to mean that his condition might be exacerbated. The difficulty is that that is not expressed in a way which gives any confidence that it is other than simply a cautious doctor's comment in circumstances which one can readily understand in relation to his patient. I accordingly do not consider that there is any potential problem which justifies the conclusion that the removal of the appellant would be disproportionate in Article 8 terms.
23. The final argument, that there is a real risk of a breach of Article 3, is based upon the expectation of life prognosis, which Mr Summers submits means that there is a real risk of the appellant spending the rest of his natural life in prison. That is based upon the proposition that he must be facing a lengthy prison sentence by reason of the fact that a co-defendant has been sentenced to nine years' imprisonment. Once again, one has to consider this in its proper context. The deportation proceedings are just the first stage in what will be a considerable legal procedure, during the course of which the appellant will have the opportunity to put forward any defence that he has, to ensure that he has a procedurally proper trial, and in the event of his being convicted, which is not a matter about which this court can speculate, he will then be able to put forward arguments as to mitigation, which will, one would expect, include a reliance upon his medical condition. It seems to me in those circumstances that it is not properly described as a case where there is a real risk of the sort of sentence which was considered by this court in the case of Wellington v Governor of HMP Belmarsh [2004] 2 AC 368. The position, in my judgment, is one which falls far short of the necessary high threshold envisaged in the judgment of Newman J in the case of McCaughey v Government of the United States of America [2006] EWHC 248 (Admin), where he said in paragraph 22 as follows:

"The court has helpfully been provided with well-known cases in connection, as far as Article 3 of the European Convention of Human Rights is concerned, the concept of unjust and oppressive conduct under the extradition proceedings. It has to be said that the threshold of fact which is required, both in connection with an issue raised under Article 3 and, as it now is under section 91 of the 2003 Act, is a high threshold. I have no difficulty in accepting that the medical condition of the appellant is such as to place him under a greater risk from a long flight than would be associated with a person in good health. That said, persons in varying degrees of health travel, and, as a result, the risks involved will be increased. But I am satisfied that the presence of a risk to health does not mean that no risk can be taken and therefore there can be, in cases where it exists and extradition applies, no extradition. In each case, the case must involve a careful assessment of the risk and the extent of the danger which the extradition will involve."

24. That goes to both the bases upon which the appellant has sought to argue that the extradition order made in this case should not stand. But for the reasons that I have given, I do not consider that the material before us meets the high threshold which was envisaged by Newman J in that passage. I consider that passage accurately reflects the way issues such as this have to be viewed, and I accordingly conclude that the district judge's decision is one with which ultimately I agree, and I would dismiss the appeal.
25. MR JUSTICE SIMON: I agree. This application requires an answer to three questions. First, is the applicant's extradition incompatible with his right to a fair trial under Article 6 of the European Convention on Human Rights? In my view, the answer to that question is "no". Article 6 is of limited application in the extradition process since the process itself is not determinative of guilt. The issue is whether the applicant would be at real risk of suffering a flagrant denial of justice in the receiving state: see Lord Bingham of Cornhill in R(Ullah) v Special Adjudicator [2004] 2 AC 323.
26. For the reasons given by my Lord, in my view the lifting of the civil proceedings and the judgment in the court in Texas do not create a real risk of a flagrant denial of justice in relation to a criminal trial in Washington DC. Many of the arguments raised in opposition to the extradition are matters which may be relevant to the criminal trial, but do not amount to reasons for acceding to this application.
27. The second question is whether the applicant's physical condition is such that it would be unjust or oppressive to extradite him: see Article 3 of the Convention and section 91(2) of the Extradition Act 2003. Again, in my judgment, the answer is "no". The threshold of facts which is required under Article 3 and section 91 is a high one. The assessment will involve a careful assessment of the risk and the extent of the danger which extradition will involve: see McCaughey v United States of America [2006] EWHC 248 (Admin), Newman J at paragraph 22. In my judgment, the district judge's assessment and views at pages 6 and 7 of his judgment were unimpeachable at the time he made them, and for the reasons given by my Lord, the evidence has not significantly changed.
28. The third question is whether the possible sentence which may be imposed is inconsistent with the applicant's Article 3 and Article 8 rights. Again, in my view, the answer is "no". This is not an Article 3 case at all. The sentence in the case of conviction is a matter for the judge in Washington. There is no mandatory sentence as there was in the case of R(Wellington) v the Secretary of State for the Home Department [2007] EWHC 1109 (Admin). Dr Spyrou's views as to life expectancy amount to matters of mitigation, which can doubtless be addressed in due course to the judge.
29. I accept that the applicant's Article 8 rights may be engaged in this case, but again, for the reasons given by my Lord, in the circumstances of this case the extradition is proportionate.
30. LORD JUSTICE LATHAM: Thank you both very much.
31. MR WEEKES: My Lord, two very minor points. In the course of dismissing ground 1, my Lord, Latham LJ, said at all times in the civil proceedings Mr Taylor could make reference to the fact of the judgment in default. I think my Lord meant at all times in the criminal proceedings. The other point is this: in dismissing ground 3 your Lordship said that deportation proceedings are just the first stage of this process. Of course, while your Lordship I know is referring to the case of Huang, the ground 3 (inaudible) extradition proceedings rather than deportation.
32. LORD JUSTICE LATHAM: Sorry.
33. MR SUMMERS: My Lord, two matters. Firstly, please may I have legal aid taxation?
34. LORD JUSTICE LATHAM: Certainly.
35. MR SUMMERS: Secondly this: I am entitled, my Lord, to ask to certify a point of general public importance. It is section 114. I am entitled to 14 days. I do not wish to exercise them, I wish to deal with the matter and it may take less than two minutes. The question I invite the court's consideration to certify is this: whether in proceedings under the Extradition Act of 2003, reliance is placed on Article 8 of the European Convention, it is necessary to show exceptional circumstances. My Lords have given, albeit extempore, a detailed judgment in relation to the impact of Huang on what had become a settled line of extradition authority that began with Ullah and Razgar, went through Bermingham, been upset a little by the High Court in Scotland in Gohill(?) and ended up here, my Lord. In our submission, even if it makes, in my Lord's view, little difference in the facts of this case -- that of course is the import of my Lord's judgment -- as a matter of principle, it is going to have a very large impact in other cases. The applicable test in extradition cases in Article 8 terms is of crucial importance. But, in the circumstances, given in particular the comments of Lord Steyn at paragraph 33 in Ullah, I do invite my Lords to certify this as a point of law of general public importance.
36. My Lords' views on this application to the facts of this case of course will be reflected in any decision on leave, and I do not press that. But as a matter of law, given its impact on other cases, I do invite my Lords to certify in this case.
37. LORD JUSTICE LATHAM: Mr Weekes, have you anything to say about that?
38. MR WEEKES: Only, my Lord, that in the case of Bermingham to which my Lord, Simon J, made reference, a very extensive review of the authorities was conducted by this court only last year, and in my submission, that review having been conducted, the exceptional circumstances test promulgated by Laws LJ is clear and the law is settled in this matter. (pause)
39. LORD JUSTICE LATHAM: Mr Summers, no, we do not certify in this case.
40. MR SUMMERS: I am grateful, my Lord.