QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OUSELEY
| THE GOVERNMENT OF THE UNITED STATES OF AMERICA
|- and -
and BEATRICE TOLLMAN
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Edward Fitzgerald QC and Hugo Keith (instructed by Simmons and Simmons) for Mr Tollman
James Lewis QC and James Hines (instructed by Simmons and Simmons) for Mrs Tollman
Hearing dates: 20th November – 23rd November 2007
Crown Copyright ©
Lord Justice Moses :
"The course taken in this case has been defended by none of the parties before us. Why it has come about is not a matter for this court on this application to determine, but plainly the way in which this case has proceeded gives rise to concerns in the way in which cases should be dealt with, so that the extradition process can be determined within a time that is infinitely more expeditious that what has so far happened with this case. In this case, as Mr and Mrs Tollman are in their seventies, it is particularly unjust that so little has been achieved over such a protracted period of time."
"If the judge is required to proceed under this section he must decide whether the person's extradition to the Category 2 territory is barred by reason of –
(c) the passage of time;
(3) if the judge decides any of the questions in sub-section (1) in the affirmative he must order the person's discharge."
"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 committed the extradition offence…"
|"1978||The defendant and a Mr Hundley set up Tollman-Hundley hotels|
|1987 & 1989||The company negotiated loans with 5 banks|
|1989||The company purchases Days Inn of America|
|1990||The company defaults on its servicing of the financial loans that had been raised owing to a sudden downturn in business in the hotel industry|
|Sept 1991||An "earn-out" agreement is finalised|
|Sept 1992||Credit repayment agreement finalised|
|1991 – 1993||It is alleged that false representations were made by the conspirators to the First National Bank and the National Westminster Bank|
|1993 & 1994||Allegedly false statements and representations were made by the conspirators to the Marine Midland Bank and to the Chemical Bank|
|1993-1996||A number of allegedly false representations were made by the conspirators to the Bank of America|
|1996||The United States investigation commences|
|Nov 2000||Mr and Mrs Tollman's application for Swiss residency was approved|
|2001||They move to live primarily in Switzerland but with frequent visits to New York|
|Between 3rd &||Mr and Mrs Tollman visit New York|
|7th Apr 2002|
|17th April 2002||Mr Tollman was indicted by a Grand Jury, together with others, with offences of defrauding the banks, making false statements to financial institutions and tax evasion|
|24th April 2002||Arraignment hearing which Mr Tollman does not attend|
|July & Nov 2002||Superseding indictments were returned by the Grand Jury|
|Jan 2003||The complaint against Mrs Beatrice Tollman alleging tax fraud was laid|
|18th March 2003||A request was made for the extradition of Mr Tollman under the 1989 Act|
|19th April 2004||Extradition request withdrawn|
|6th Aug 2004||Request for a provisional warrant received|
|17th Aug 2004||Stanley Tollman is arrested|
|Oct 2004||Formal extradition request received|
|19th & 20th May 2005||Abuse of process argument at Bow Street Magistrates' Court|
|6th Jun 2005||Disclosure ordered|
|7th Feb 2006||United States government apply for judicial review|
|6th Sep 2006||Administrative Court sets aside orders for disclosure and remits the case to the City of Westminster Magistrates' Court"|
"…to simply request a signature page of any documentation for signing." (see paragraph 48)
He kept no notes, memos or copies of documentation.
"Invariably I would be shown a large box of documents, including the writs which had come in. However, not being there on a day-to-day basis made it impossible for me to keep abreast of what was happening on a very regular basis, and it is quite impossible for me to recall now what I signed. As a result I was not close to the detail of what was happening with Tollman-Hundley and the banks." (see paragraph 69)
He remembers only meeting representatives of one bank, The Chemical Bank, but cannot recall what was said at the meeting. He continues:-
"When it came to finalising the agreements with the banks to sell the debt, I was simply presented with the signature pages. I was not aware of the specific details of the agreements or the representations contained therein. I do not now recall ever being advised as to the content of the agreements, although I remember being assured, in relation to the First National Bank of Chicago agreement, that it was proper to sign. I cannot now recall who gave me that assurance." (paragraph 71)
Decision of the Senior District Judge
"I am conscious that the investigation of fraud and the preparation of cases for prosecution are time-consuming exercises, but I note that it was some six years after the investigation had begun that the first indictment was returned by the Grand Jury. It was a further two and a half years before the formal extradition request with which we are now dealing was made. Lengthy and complex extradition hearings, both in this court and in the High Court, have further added to the delay." (paragraph 15)
"…evidence that the accused fled the country or that he is therefore responsible for the delay." (paragraph 13)
"It is clear that his evidence is of considerable importance in this case and indeed the United States Assistant Attorney went to considerable and, in my view, inappropriate lengths, to obtain testimony from him. Mr Arnold Tollman played a significant part in the negotiations, preparation and documents, and the making of representations to the banks. The importance of his evidence is apparent from the fact that he was given immunity from prosecution. His evidence may have assisted the prosecution but it is apparent that his evidence may well have assisted the defence greatly." (see paragraph 26)
"They are factors to be considered when assessing the overall fairness in reaching a decision as to whether it will be unjust or oppressive to be returned."
"…through her to Mr Tollman, who is caring for her at the present time after some fifty-three years of marriage."
"An overall judgment on the merits is required, unshackled by rules with too sharp edges."
Mr Tollman's refusal to attend 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." (see page 783B)
"I spoke to him this morning and he is still in London where he lives. I thought we had pretty much negotiated a bail agreement with Mr Okula and the property that was to be posted was Mrs Tollman's real estate here in New York. Her lawyer raised a last minute objection to the posting of that property as bail. I hope to resolve it today. I have not been able to resolve it with her lawyers because I don't represent her…"
"…terminated ongoing discussions with my lawyers about the terms of my bail in the USA. Because of this and the prospect of being held without bail at my age and in my physical condition, I elected to remain in the United Kingdom and deal with the US authorities from here. I neither absconded from the US nor concealed my whereabouts thereafter from the US authorities." (see paragraph 10)
"I now believe the US Internal Revenue Service first began investigating Monty Hundley in August 1996, now over ten years ago. However, it was only six years later that the indictment was first issued against me, in 2002, and it became clear that I would be prosecuted. By this time Bea [his wife] and I were resident in Switzerland and in London, although I continued to visit the US regularly, mainly for business purposes. Indeed, I travelled to the US freely and without hindrance or concern right up to the date of the indictment." (paragraph 9)
Absence of Equivalent Remedy in the United States
"…not upon whether, having regard to the passage of time, it would be unjust to try the accused, but rather whether it would be unjust to return him…
To my mind that entitles, indeed requires, this court to have regard to whatever safeguards may exist in the domestic law of the requesting State to ensure that the accused would not be subjected to an unjust trial there. There are, it should be borne in mind, clear advantages in having the question of whether or not a fair trial is now possible decided in the domestic court rather than by us. That court will have an altogether clearer picture than we have of precisely what evidence is available and the issues likely to arise." (see paragraphs 20 and 21)
That observation stems from the very difficulty facing a judge in this country to which we have already referred.
"…weigh very heavily against his speedy trial claim." (see paragraph 31)
Evidence no Longer Available: Generally
"I had been asked originally to help raise the money. I had subsequently got ill and therefore wasn't involved in the effort, but understood that monies had been raised from other sources and I don't know exactly from where because nobody bothered to tell me from where."
Other Unavailable Witnesses
The length of time which the Court must consider
"What matters is not so much the cause of such 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." (Kakis 783C)
Mr Fitzgerald QC contended that the prosecution was to blame for the fact that the investigation took nearly six years to complete before the first indictment was returned. But the District Judge appears to have accepted that that was a reasonable period (see paragraph 15). No sound basis has been presented to demonstrate that the trial which did take place between 2003 and 2004 of co-defendants did not take place at a reasonable time. The consequences of that conclusion must not be overlooked.
Other Missing Evidence
"…other documents which might have assisted in establishing Mr Tollman's degree of knowledge and his movements",
which are probably no longer available. This seems to us to be a matter of speculation. There is no sound basis upon which it can be said that those documents might have assisted the defence. The proposition depends merely upon the assertion of Mr Stanley Tollman. This is not to discount his defence statement on the basis that it was unsworn but merely to emphasise the absence of any objective material to suggest that documents, likely to have gone missing, might have assisted the defence.
The Passage of 16 Years
This Court's Approach to the Judgment of the Senior District Judge
"No contrary opinion will lightly be formed. But if after due consideration a contrary opinion is in fact formed, those upon whom devolves the duty of considering the matter cannot in my view be absolved or inhibited from expressing their opinion. If they were, there would be little purpose in having an appeal." (279H)
There is ample authority demonstrating differing views as to justice and injustice in which either the District Judge or the Divisional Court or the House of Lords has reached a contrary view. For the reasons we have given, we are satisfied that the Senior District Judge did make errors of law and of fact in his approach to an appraisal of the significance of the evidence as relied on as showing that extradition would be unjust by reason of the passage of time.
The U.S. Government's Further Points of Law
"I shall have to attach such weight to it as I think appropriate. The weight is clearly influenced by the fact that Mr Okula is not here to give evidence or to be cross-examined."
"The prosecutor cannot be penalised, under s.82,87 or by any other route, for limiting the material he places before the court to what is required for the proper execution of the court's function under s.78."
Mr Jones QC contends that the effect of the judge's ruling is to penalise the US Government for failing to call Mr Okula whose evidence was admissible, pursuant to s.202(3) and (4), since Mr Okula's statement was duly authenticated.
"His submission looks for a statutory regime which Parliament has chosen not to provide."
The observation of Laws LJ has nothing to do with the weight to be given by the judge to evidence given by the Government's witness as to the availability or otherwise of evidence which might assist the defence.
The Guernsey Tax Charges
"…factors to be considered when assessing the overall fairness in reaching the decisions whether it would be unjust or oppressive for Mr Tollman to be returned."
Mr Justice Ouseley :
The Appeal against the Discharge of Beatrice Tollman
"(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.
(3) The judge must-
(a) order the person's discharge, or
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied."
"All three doctors conclude that Mrs Tollman is suffering from moderately severe to severe clinical depression. All three doctors also conclude that she is suffering from severe anxiety. The identified impairment of intelligence and reasoning with impairment of memory amount to cognitive impairments of moderate severity. All three doctors conclude that she is suffering from pseudo dementia which results not from primary brain disease but from severe psychological stresses or disorders such as depression or severe anxiety.
This court has good reasons to view with scepticism diagnoses of dementia. However, all three doctors are satisfied that their diagnosis is accurate and was based upon symptoms or tests that could not be faked or feigned.
In the absence of any evidence in rebuttal and having heard all three doctors give their evidence, I am satisfied on the evidence before me that Mrs Tollman is suffering from moderately severe to severe clinical depression and cognitive impairments of a moderate severity, particular impairments of intelligence and reasoning which give rise to a medical diagnosis of pseudo dementia."
"All doctors agree that Mrs Tollman is unable to instruct lawyers in these extradition proceedings and all three doctors were emphatic that she was not in a fit state to give evidence. As she is unable to effectively participate in these extradition proceedings, in the procedures of a trial in the United States of America, or to give evidence, I conclude that it would be unjust to extradite her at this stage. I am also satisfied from the evidence of Dr Pierides that whilst her physical and mental health are deteriorating, she is not at risk at present. However, he makes it clear that if she were to be extradited, her frail state of health would be greatly exacerbated and her life would be at risk."