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
		20th May 2009

1. SIR ANTHONY MAY: This is an appeal by Barry Finch against a decision in extradition proceedings of District Judge Evans on 23rd January 2009 for Mr Finch's extradition to France. The appeal, in essence, raises a single issue: whether the District Judge was wrong to decide that Mr Finch's extradition to France would not be oppressive for delay under sections 11 and 14 of the Extradition Act 2003. The order for extradition was made to give effect to a European Arrest Warrant of 14th November 2008 upon which Mr Finch was arrested on 21st November 2008.
2. The facts may be summarised as follows. On 1st November 2002, the body of Mr Jean-Jacques Bertelot was found in Calais. He had been stabbed 15 times and his car had been stolen. Between 1st November 2002 and 3rd December 2002, Mr Finch was arrested in this jurisdiction by the Hertfordshire police for quite separate offences of armed robbery committed with a man called William O'Connor. When he was interviewed about these offences he admitted them and provided the police with information about William O'Connor's role in them. He also indicated that he had information about other offences that he said Mr O'Connor had been involved in.
3. So it was that on 3rd December 2002 Mr Finch was interviewed at Stevenage Police Station at a time that he was legally represented. He gave a full account of events on 31st October and 1st November 2002 in Calais. He informed the police that Mr O'Connor had been responsible for murdering Mr Bertelot, and that he, Mr Finch, had witnessed the murder. He gave considerable detail of the incident and drew maps in the interview which resulted in the discovery of a knife.
4. On 5th December 2002 the British authorities informed the French authorities that Mr Finch had provided information about this crime. Mr Finch was interviewed again on 20th May 2003, when he was brought from prison where he was on remand to Newport Police Station. The interview was conducted by English police officers pursuant to a letter of request issued by the French authorities. Pre-interview disclosure described the investigations carried out subsequent to the previous interview and stated that:

"The account given by Mr Finch during that interview appears to be accurate in all respects that it is possible to confirm. The diagrams he made are uncannily accurate."

It was during this second interview that Mr Finch gave further details of what had happened on 31st October and 1st November 2002.

5. Mr Finch was to serve a seven year prison sentence for his involvement in offences which he had told the police about in this jurisdiction, and he was released from prison on 6th August 2007. It was not, however, until 2008, and in the event until 4th September 2008, that a first European Arrest Warrant was issued by judicial authorities in Boulogne Sur Mer. He was arrested on 7th November 2008 on this first warrant at his home. The matter was listed for an initial hearing on 8th November, when no issue was taken as to identity and he did not give his consent to extradition. He was remanded in custody. There were concerns at that stage about the sufficiency of the warrant. These were raised by the District Judge.
6. There was a second European Arrest Warrant then issued in France on 14th November 2008. The extradition hearing fixed for 21st November took place on that day, and on that day the police arrested Mr Finch on the new and further particularised European Arrest Warrant, the prosecutor withdrawing the first warrant. The extradition hearing was then formally opened and adjourned. There was argument about the validity of the warrant on 17th December. There was a further application to adjourn on 7th January. On 15th January 2009 there was full argument on the passage of time in question, at which Mr Finch gave evidence on oath and was cross-examined, and it was on 23 January 2009 that the District Judge delivered his judgment. He rejected the appellant's submissions and ordered his extradition under section 21(3) of the 2003 Act.
7. Thus, there is this essential timeframe. The serious offence in France was committed on 31st October or 1st November 2002. Mr Finch soon admitted his participation in that event, and the French authorities were aware of what he had admitted by early December 2002. He gave a further account at their request in May 2003. It may be that the French authorities were uncertain whether to treat him as a witness or a defendant, and there is material before the court indicating that there was at least some possibility, which English police officers considered, that he might be treated as a witness. He was then in custody in this jurisdiction until August 2007 for other offences. The effective arrest warrant was not issued until November 2008, which was more than six years after the alleged offence, and nearly six years after the French authorities knew what he had admitted. He was, however, as I have indicated, in custody in this jurisdiction until August 2007.
8. Extradition may be barred by the passage of time if it appears that it would be unjust or oppressive to extradite a person by reason of the passage of time since he is alleged to have committed the extradition offence. In the leading House of Lords case of Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, Lord Diplock said as follows:

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes to his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair."

Then a little later on in the same passage Lord Diplock said:

"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 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."

Both Lord Diplock and Lord Keith observed that the seriousness of the offence is a factor relevant to the court's determination of whether extradition will be oppressive by reason of the passage of time.

9. In La Torre v Republic of Italy [2007] EWHC 1370, Laws LJ explained the approach to be taken where passage of time is raised as a bar to extradition. He stated that all the circumstances must be considered in order to judge whether the unjust/oppressive test is met. An overall judgment of the merits is required, unshackled by rules with too sharp edges. In Government of Croatia v Milan Spanovic [2007] EWHC 1770 (Admin), Hughes LJ and Treacy J held that even where there had been culpable delay on the part of the requesting state or judicial authority, this does not necessarily mean it is unjust or oppressive to extradite a defendant. The focus of the enquiry is upon the effect of the passage of time. This was emphasised by Hughes LJ at paragraph 16 of his judgment in that case. There are certainly judicial authorities which indicate that responsibility for the delay on the part of the judicial authority may be a relevant factor, but, as is said in that and other cases, oppression largely consists of the effect that time passing has had on the appellant.
10. The recent House of Lords decision of Gomes and Goodyer v Government of Trinidad and Tobago [2009] UKHL 21 was, in the main, concerned with the issue of where a person whose extradition is sought has been in flight from justice and how the court should address matters in those circumstances. There was, however, reference in paragraph 31 to oppression in these terms:

"The other main question discussed at some length during the argument is what approach should be adopted to the concepts of injustice and oppression within the meaning of section 82. This is, of course, touched on in the first sentence of Lord Diplock para 1. And, so far as concerns oppression, it is worth noting too Lord Diplock's statement (at p284) that: 'the gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would render his return to stand his trial oppressive'. That said, the test of oppression will not easily be satisfied: hardship, a comparatively commonplace consequence of an order for extradition, is not enough."

11. In the present case, the District Judge said this in paragraphs 15 and 16 of his ruling:

"15. Since Mr Finch's release from prison in August 2007 up until his arrest in November 2008, a period of some 15 months, it is his evidence that he has used his best endeavours to lead a law-abiding life. He has started afresh and, with his background that cannot have been easy. I have to say I am a little surprised that someone who says he is anxiously looking over his shoulder (always wary that someone from his past might recognise him and then perhaps tell others, who might wish him harm, where he can be found) should have decided to take employment in a pub. Where this kind of submission is to be made, the court ought not to have to rely solely on the evidence of a defendant. It ought to have been possible to obtain a statement/report from the police which could have given support for these submissions and the police could have provided their assessment of the usefulness of the information given, the risk to Mr Finch and his family's wellbeing, and the extent to which he and/or his family are at continuing risk of attack. In the particular circumstances of this case I am accepting, at face value, what Mr Finch has told me.

16. Since Mr Finch's arrest on the first European Arrest Warrant he has been in custody. At the prison he is again on the witness protection wing. His wife and family are finding the reduction in family income extremely difficult. Certain financial commitments made prior to arrest are putting a very considerable strain on the family. Mr Finch was particularly upset in court when he learned that his daughter had to abandon her college course and go and find a job to help her mother pay the bills."

Then the District Judge said this:

"I am approaching this case on the basis that (1) Mr Finch has not contributed to any delay and (2) there has been a culpable delay by the judicial authority of some five years.

18. The charge here is extremely serious. There is no real oppression during the period May 2003 to August 2007 (four plus years) whilst Mr Finch was serving his prison sentence. True with every day that passed his hope that he would not be prosecuted would have grown.

19. The oppression is of different order following Mr Finch's release in August 2007, as over the next 15 months he set about changing his life completely. Although it is not a particularly long period it is, nevertheless, significant."

Having then referred to what Laws LJ said in La Torre, the District Judge expressed his overall judgment that Mr Finch had failed to discharge the burden placed upon him to establish that he would suffer oppression by reason of the passage of time should he be extradited.

12. It is submitted that this decision is wrong. It is suggested that Mr Finch may be subjected to yet further delay if he is extradited, because Mr O'Connor is still serving a prison sentence in Ireland. The future possibility of delay is both speculative and, in my view, not helpful. The relevant delay for the purposes of section 14 of the 2003 Act is past delay. It is submitted that the culpable delay by the French authorities has created a sense of security which it would now be oppressive to break. It is accepted that a European Arrest Warrant earlier than August 2007 would have had to await the conclusion of his sentence in this jurisdiction. He had not, however, been made aware in the five years or so from his interview that he was to be prosecuted and there was a reasonable expectation in his mind that he would not. This is especially so when he had been fully cooperative and helped solve a crime which might otherwise have gone unresolved. He was entitled to think that he had wiped the slate clean and could start a fresh life on his release from prison in this jurisdiction. He has, moreover, assumed significant financial responsibilities.
13. It will be evident that the ambit of this appeal is quite confined. There has been significant delay for which, so far as it goes, there is little or no explanation. On the other hand, the offence alleged is grave and for much of the period of delay the appellant was in custody for other matters in this jurisdiction. No doubt the appellant has developed a sense of security, not least since his release from custody in August 2007.
14. I agree with Mr Caldwell that the speculative possibility of future delay in France is immaterial, not least because the French authorities are obliged to deal with Mr Finch if he is extradited within a reasonable period of time in accordance with Article 6 of the European Convention on Human Rights. I also agree that if the court were to consider only the period when Mr Finch was in custody in England, that delay can scarcely, by itself, give rise to anything amounting to oppression, even though, no doubt, there was a sense of security engendered during that period. Of course, one is not concerned with only that period. The court has to consider the whole period from 2002 to 2008 and its total effect, but it is obvious, I think, that the last 15 months has to be regarded as more prominent than the previous four and a half years or so.
15. The question is whether the District Judge was wrong to decide that Mr Finch's extradition would not be oppressive. I do not consider that it was wrong so to decide. As has been said, the test of oppression will not easily be satisfied. Reflecting that the appellant was in custody for approximately four years and nine months of the total delay period of six years, and that he could not have been extradited during that period, and accepting that no doubt during that period a sense of security built up in his mind, the case for oppression is nevertheless, in my view, not made out. In the end, I do not consider that the case really comes very close to oppression. I would therefore dismiss the appeal. In doing so, I am confident that if Mr Finch is in due course convicted, credit will be given by the French judicial authorities in any sentence, not only for the help that he will have given in any prosecution of William O'Connor, but also for the delay that has occurred in bringing him before a French court. But as I say, in my judgment, this appeal should be dismissed.
16. MR JUSTICE BLAKE: I agree, and I would particularly want to associate myself with my Lord's comments as to the confidence as to how Mr Finch will be treated in the future by the French judicial authorities.
17. SIR ANTHONY MAY: Miss Oldfield, Mr Caldwell, thank you very much.
18. MR CALDWELL: I think my learned friend has an application for Legal Aid assessment.
19. SIR ANTHONY MAY: No doubt you do. If you do, you may have it.