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
		19th December 2007

1. LORD JUSTICE DYSON: The appellant is the subject of an extradition request made by the Government of the United States of America. He is accused of conduct which, had it occurred within the jurisdiction of the United Kingdom, would have amounted to offences of conspiracy to defraud. Although he faces 17 counts of larceny and/or fraud, the reality is that he was said to have been involved in two fraudulent schemes.
2. The first alleged scheme is said to have occupied the period between 1st April and 28th July 1988. It is said that the appellant and his brother, Ephraim Stern, gained the confidence of a New York lawyer, Irving Markowitz, and thereby gained access to his bank account, into which they deposited fraudulent cheques in the sum of US$1,184,138. From this they are said to have withdrawn $265,422, stealing $123,330 of Mr Markowitz's money and the balance which was covered by the bank. Mr Markowitz is now deceased.
3. The second scheme is said to have occupied the period between 1st July 1988 and 31st January 1989. It is said that the appellant and his brother and others entered into a sale and lease back arrangement concerning printing equipment with a company called Bell Atlantic Systems Leasing International. It is alleged that the sales concerned equipment which either did not exist at all or was not theirs to sell. Accordingly, Bell was defrauded of some US$1,521,800.
4. The appellant was arrested on 18th December 2006. He first appeared at the City of Westminster Magistrates' Court the following day. Thereafter, extradition proceedings continued until 2nd August 2007. In a reserved judgment given on 13th August, the Senior District Judge sent the case to the Secretary of State pursuant to section 87(3) of the Extradition Act 2003. At paragraphs 5 and 6 of his judgment, the District Judge recorded:

"5. [Counsel], on behalf of the defendant, does not seek to raise any of the bars to extradition and is not raising any Human Rights issues.

6. The proceedings are opposed solely on the basis that there has been an abuse of the process of this court."

5. The appellant now appeals against the decision of the District Judge on the sole ground that it would be oppressive and unjust to return him to the United States owing to the passage of time. Reliance is placed on section 82 of the 2003 Act which provides:

"A person's extradition to a category 2 territory [the United States is 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 committed the extradition offence or 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)."

6. The abuse of process alleged in the court below was summarised by the District Judge in his judgment in these terms:

"a. That authorities in the United States are pursuing his extradition for improper collateral motives, seeking to coerce him into assisting the authorities in recovering substantial sums of assets stolen by another;

b. Because of Mr Stern's failure to assist, he is being punished by the oppressive and vindictive pursuit of these proceedings;

c. That the United States authorities provided false and misleading information to the Brazilian courts, and;

d. That the United States consulate in Brazil issued him with a full 10 year passport coupled with verbal assurances from an official of the US consulate in Brazil that he could, 'now travel freely and safely in foreign countries other than the United States.'"

The Senior District Judge found that there had been no conduct capable of giving rise to an abuse of process. That being the only point raised, he made the order to which I have already referred.

7. Three issues arise on this appeal. The first issue is whether the appellant can raise a bar to his extradition on appeal that he did not raise and in respect of which he did not adduce evidence in the court below. The second issue is whether the passage of time is available as a bar to extradition to the appellant since he was a person who fled the requesting country. The third issue is whether on the evidence the appellant has discharged the burden of showing that it will be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the offences.
8. For reasons that I shall explain, I have come to the clear conclusion that the second issue should be decided against the appellant. In these circumstances, I do not find it necessary to decide the first or indeed the third issues. For the purposes of the second issue, I shall assume, without deciding, that the appellant can raise the passage of time issue, even though he did not raise it and adduced no evidence in relation to it in the court below.
9. The question whether the passage of time is available as a bar to extradition to a fugitive has been the subject of considerable debate in recent cases. The locus classicus, however, remains the speech of Lord Diplock in Kakis v Government of the Republic of Cyprus 1978 1 WLR 779 at 783A:

"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 unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of 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.

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 effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. So where the application for discharge under section 8(3) is based upon the 'passage of time' under paragraph (b) and not on absence of good faith under paragraph (c), 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."

I should say that that was a decision under the Fugitive Offenders Act 1967 but it is common ground and has been accepted in the recent cases under the 2003 Act that those observations by Lord Diplock are equally applicable to the corresponding provisions under the later statute. Lord Edmund-Davies at page 785C expressed disagreement with that part of Lord Diplock's speech which I have just quoted. He said:

"In my respectful judgment, on the contrary, 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."

Other decisions on this point include Osman (No 4) [1992] 1 AER 579, La Torre v Republic of Italy [2007] EWHC 1370, Goodyer and Gomes v Government of Trinidad and Tobago [2007] EWHC 2012 (Admin) and, most recently, Krzyzowski v the Circuit Court in Gliwice, Poland [2007] EWHC 2754. The problem considered in these recent cases is the extent to which a person who flees a country can rely on the passage of time as a bar and contend that it would be unjust or oppressive to extradite him where the authorities of the requesting state have been at fault in failing to secure his extradition. The approach to this issue most favourable to an extraditee is that enunciated by Sedley LJ in Goodyer, paragraph 17 to 19:

"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."

10. In my judgment, there is much force in the criticisms of this passage in the later case of Krzyzowski at paragraph 19, per Longmore LJ and, in particular, at paragraphs 28 and 29 per Mitting J. I do not find it necessary to decide which school to follow. For the purposes of the second issue in the present case, I shall adopt the Goodyer approach, although I emphasise that I am not deciding that this is the correct approach. As I have said, I see considerable force in the criticisms made in the Krzyzowski decision and in particular in the judgment of Mitting J.
11. It is submitted on behalf of the appellant that the United States government has been guilty of an inexcusably dilatory approach to locating him and that he is on that account entitled to invoke section 82 of the 2003 Act even though he is a fugitive from the United States. The appellant has stated in his witness statement that in April 1990 he left the United States and went to Brazil, where, a few months later, he was joined by his wife and five children. They lived together in Sao Paulo. He was issued with a Brazilian identity card and passport in the name of "Teby Stern" and with a date of birth which differed from his actual date of birth. In his witness statement of 17th December 2007 he refers to the name Teby Stern as "my more English sounding name" and the wrong date of birth as "a minor clerical error" which he never sought to correct as it never seemed to be of any importance. In his witness statement he says at paragraph 15 that the US authorities have known his family's whereabouts in Sao Paulo for many years. He says that, shortly after their arrival, his wife and five children registered with the United States consulate in Sao Paulo using their genuine US passports. His wife subsequently provided the consulate with their home address and telephone number in Sao Paulo, an address at which they lived for about 18 years until their recent trip to London several months ago. At paragraph 16 he says that over the years his family have had numerous formal and informal contacts with the US authorities via the US consulate in Sao Paulo. He says, for example, that in December 1993 his wife gave birth to a boy and they went to the US consulate to apply for a US birth certificate and passport and the same happened when the next baby was born in December 1995. He also says that his wife and children had all their passports renewed at the US consulate as they frequently travelled between the United States and Sao Paulo on many occasions over the years. He makes the point that all these applications for passports and birth certificates and the like were granted without any complications.
12. This evidence has not, of course, been tested by cross-examination but it is undeniably the case that the appellant did use false documents in Brazil and committed an offence according to Brazilian law for which he was later sentenced to four years' imprisonment. We have been shown the certificate which was issued by the United States authorities in relation to the birth of the child in December 1993. That certificate shows that the appellant, the father, gave his name to those authorities as Teby Stern. It also shows that he gave the false date of birth, the date of birth which in his witness statement he said that, when he saw it for the first time, he thought was a mere clerical error of no importance.
13. Mr Hardy has drawn our attention to the affidavit sworn by Mr Michael Kitsis on 1st August 2007. Mr Kitsis has since 1983 been employed by the Office of the District Attorney of the County of New York as an Assistant District Attorney. At paragraph of 6 of his affidavit he says this:

"Although there was a 10½ year delay between the time Stern fled from New York and the time the District Attorney's Office sought his extradition from Brazil, the delay is attributable to Stern. Indeed, the District Attorney's Office was not aware that Stern had left the United States until the federal investigators contacted the District Attorney's Office in November 2000. Hence, the District Attorney's office did not ask Interpol to issue a 'red notice' or submit an extradition request during that 10½ year time period. Furthermore, although Stern, his wife, and children may have had substantial contact with the US Consulate in Sao Paulo during that 10½ year period, Stern, by his own admission, did not use his true name, nor is there any indication (a) that Stern informed any officials at the US Consulate that there was an outstanding warrant for his arrest, or (b) that Stern applied for a US passport, which I understand would have generated a background check to determine whether there were any outstanding warrants for his arrest. Finally, although Stern's wife and/or children may have registered with the US Consulate, obtained US birth certificates, and/or renewed their US passports, it is my understanding that these facts, if true, would not have prompted US officials to conduct a background check on Stern."

14. Mr Hardy has emphasised the part of this affidavit where Mr Kitsis says that the District Attorney's Office was not aware that Stern had left the United States until November 2000. He submits that the US authorities, with all the resources at their command, could surely have tracked the appellant down during this ten year period. Instead, he submits, they must have merely sat back and done nothing. They were therefore guilty of culpable delay.
15. I cannot accept this submission. There is no evidence that the United States authorities knew where the appellant was before the end of 2000. Their attention to his being in Brazil was aroused only when he was arrested by the Brazilian authorities for the offences of the use of false documents. It is quite clear, as Ms Dobbin points out, that the appellant went out of his way to obscure his identity. I cannot accept that the systematic use of the name Teby Stern was done for the apparently innocent purpose of merely using a more English sounding name. Why an American citizen should use a more English sounding name when he goes to Brazil is wholly unclear to me. The systematic use of the wrong date of birth, wrong by some two years, has not been explained. To describe it as a mere clerical error of no significance is not an acceptable explanation.
16. So here we have an appellant who left the United states in 1990, went to Brazil and concealed his identity for a period of some ten years. The fact that his wife and children had dealings with the US consulate during that period in a way which did not arouse the suspicion of the United States authorities that the appellant was living in Brazil is explained satisfactorily, in my view, at paragraph 6 of Mr Kitsis' affidavit. I am not prepared to hold that the United States authorities were at fault in any way in not knowing that the appellant had left the United States or, which is more important, that he was living in Brazil during the ten year period. In the absence of any culpable delay or other fault on the part of the United States authorities during this ten year period, Mr Hardy has to accept that, even adopting the Sedley LJ approach to the passage of time issue, the appellant has failed to show that he is able to rely on this bar. It follows, since Mr Hardy rightly accepts that he has to succeed on all three of the issues that I have identified if he is to succeed on this appeal, that this appeal must be dismissed.
17. MR JUSTICE JACK: I agree that it would not be unjust or oppressive to extradite the appellant to the United States by reason of the passage of time and for the reasons given by my Lord.
18. MS DOBBIN: My Lord, may I make an application for prosecution costs, please, to be taxed?
19. MR HARDY: I cannot resist that particular application, my Lord. May I raise one other issue of procedure, I hope out of courtesy to the court. An appeal from the decision of this court lies to the House of Lords, my Lord, under section 114 of the Act, which is at page 895 of Halsbury's.
20. LORD JUSTICE DYSON: I am afraid I do not have my Halsbury's here.
21. MR HARDY: Could I hand up my copy, if it assists?
22. LORD JUSTICE DYSON: Do you have another copy?
23. MR HARDY: I have not.
24. LORD JUSTICE DYSON: But you know it off by heart.
25. MR HARDY: Ms Dobbin comes to my aid. It is flagged. As your Lordships will see, it is section 114. I think it is the red tag, my Lord, or the red -- it is at page 895, that much I have remembered by heart.
26. LORD JUSTICE DYSON: I have it.
27. MR HARDY: I am grateful. As your Lordships see, an appeal lies to the House of Lords from a decision of the High Court on an appeal under section 103; by subsection (3) only with the leave of the High Court or the House of Lords; by subsection (4) leave to appeal must not be granted unless the High Court has certified that there is a point of law of general public importance involved in the decision and it appears to the court valid. Can I just deal with the certification process? By subsection (5) an application to the High Court for leave to appeal under this section must be made before the end of the permitted period, which is 14 days starting with the day on which the court makes its decision on the appeal to it.
28. My Lords, I do not propose to make an application to your Lordships today. I do propose to consider over the period which I am entitled to use whether or not to make such an application. If an application is made, I recognise that it would be wholly improper to seek to reconvene the court to hear it orally. I would propose to make it on the papers only and invite your Lordships to consider it on the papers. May I just indicate this: 14 days from and including today takes us to New Year's Day, when of course the court office will be closed. As a matter of established law in other cases, where a time limit requires service of documents by a particular day but the last day is a public holiday, the court extends that time, so to speak, to the following working day. Thus an application would have to be made, by my calculations, by 2nd January. In any event, if one is made, I am quite content that the court can consider it on the papers.
29. LORD JUSTICE DYSON: Right. You do not need me to say, but you will of course have to identify a point of law of general public importance. I think you will be struggling to find one in my judgment.
30. MR HARDY: I took careful note of my Lord's judgment and whilst the judgment canvasses territory of issues of law of general public importance, whether the decision involves a question of law, I accept your Lordship's point. Subject to my --
31. LORD JUSTICE DYSON: You must take your time obviously to consider it. Very well.
32. MR HARDY: I will endeavour to do my best in due course. Thank you.
33. LORD JUSTICE DYSON: Thank you both very much.