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 June 2009

1. 1.1. MR JUSTICE CRANSTON:

Introduction

This is an appeal against a decision by District Judge Tubbs sitting at the City of Westminster Magistrates' Court. She decided to send the appellant's case to the Secretary of State for the Secretary of State's decision whether to order extradition. On 5 March 2009 the Secretary of State ordered the appellant's extradition to the United States of America. No appeal is made in relation to that decision.

Background

2. 2.1. The criminal conduct to which this extradition request relates concerns a series of frauds whereby the United States and New York governments were defrauded of tens of millions of dollars by a group of persons, said to include the appellant, living in the New Square Hasidic community. New Square is a small incorporated township of some 7000-8000 people located in Rochester County, about 25 miles from New York City.
3. 3.1. The schedule of charges against the appellant in the extradition request contains 18 counts, including conspiracy to defraud the US Department of Education, the New York State Department of Education, the US Department of Housing Urban Development, the US Internal Revenue Service, the US Small Business Association and the US Social Security Administration. In addition there are charges relating to false applications in the appellant's name for so-called Pell education grants and rental subsides, money laundering, a false mortgage application and false tax declarations in different names. The charges are explained in an affadvait by Deborah Landis, who was the United States attorney with the carriage of the prosecution case.
4. 4.1. The appellant was a New Square resident through the period concerned. The prosecution case is that he, with a small number of other persons, played a central role in the organisation of the New Square community. He was the New Square town clerk, his father being the New Square town mayor. The appellant was also the President of a company, Imperial Cosmetics. In addition, he was the finance officer of a religious institution which obtained government grants.
5. 5.1. The appellant left New Square and the United States in 1997 and went to Israel. That was attributable in his account to strains because of his remarriage some three years previously. There were also religious reasons. On his account he lived openly in Israel and taught. Then in 1999 he left Israel and came to this country. On his account that was because his younger children found it a strain in Israel. By that time he was aware of the arrest warrant for him. He had on his account been advised by a close relative still living in New Square that the US authorities' primary interest in him was to put pressure on him to inform against other members of the community:

"Such tactics by US prosecutors are notorious. I was convinced I would not be treated fairly in the US or receive a fair trial. I was innocent and saw no reason to undergo through the enormous trauma of a trial. It is much spoken of and accepted as fact within my community that there is a long history of antipathy towards Hasidic defendants by US prosecutors and, more importantly, juries. Therefore I simple chose not to return to the US."

6. 6.1. In this country the appellant lived in Stamford Hill, north London. In 2004 he was married again, to an United Kingdom citizen, in a religious ceremony. Some of his children and grandchildren are here, some in the United States. On his account, which is attested to by prominent members of the Stamford Hill community, the appellant continued to work as a scholar and a teacher of Jewish texts. He lived openly. He was arrested by the Metropolitan Police in April of last year; the United States had sought his extradition.
7. 7.1. The offending charged in the United States indictment concerned the period between late 1970s until the 1990s. There were criminal charges against seven individuals, including the appellant. The indictment involved some 64 separate offences. From November 1998 to January 1999 four of the defendants were tried by a jury in the United States District Court for the Southern District of New York. The outcome was that they were convicted and later sentenced to prison terms ranging from 13 months to more than six years. At the trial evidence was presented that the defendants and their co-conspirators executed schemes by creating sham organisations, by preparing and submitting false and fraudulent documentation in order to establish the eligibility of New Square residents to participate in public funding programmes, by opening special bank accounts to collect and receive the fraudulently obtained funds, and by using nominee names, aliases and religious organisations to conceal income obtained.
8. 8.1. Chaim Berger, who was the founder of the New Square community and one of the seven defendants, was arrested in Israel in 1999 and later extradited to the United States. On his return he pleaded guilty and was sentenced to a term of six years in prison. He died in prison in 2004. The appellant says that Chaim Berger was the undisputed community leader in New Square. In particular:

"When Rabbi Berger asked or directed me to do something I did it without hesitation and without questioning him. He was a father figure to me. Such elders are revered within the Hasidic community, and children are taught from a young age that their role is to obey them."

The appellant says that he is confident that had Mr Berger been alive, he would have given evidence for him at any trial. More generally the appellant says:

"I had no reason to believe that I was involved in anything dishonest let alone that he would ever expose me to criminal charges. In particular also I had been instructed to provide my signature onto a rubber stamp, I did not keep possession of this, and I think it likely from what appears in the ... affidavit that other defendants used it improperly without my knowledge to authenticate documents of which I knew nothing and I suspect that they have forged my signature in manuscript also when it suited them."

The District Judge's decision

9. 9.1. The extradition request ultimately came before District Judge Tubbs in December 2008. Initially she ruled that a letter dated 10 December 2008 from Lev L Dassin, an acting US Attorney, but signed by Jessica Roth, an assistant US attorney, was admissible. I return to that letter shortly ("the December letter").
10. 10.1. In her judgment of 20 January 2009 District Judge Tubbs considered the submission by the defendant that his extradition was barred by reason of the passage of time because it would be unjust given the long delay and oppressive because of his personal circumstances. Moreover, the appellant raised before the District Judge the injustice given what he submitted was a likely disparity in sentence. This arose because his convicted co-defendants had benefited from a commutation of their sentences by President Clinton on his relinquishing office in January 2001.
11. 11.1. The learned District Judge first addressed the culpability of the United States government in terms of the passage of time. She said that would not be determinative of the issues raised but it was a relevant consideration. She then considered the December letter and other evidence and concluded:

"I am satisfied on all the evidence that the US Government Authorities have diligently pursued leads regarding the defendant's whereabouts, have liaised appropriately and pro-actively with Police and Government Authorities in a number of countries, and have sought his extradition promptly when appropriate, from the time of his departure in 1997 until his arrest in April 2008. ...

I do find that the Government has acted with all due expedition and in good faith."

12. 12.1. The District Judge then turned to consider the defendant's responsibility, if any, for the passage of time, in particular whether he had deliberately left the United States in order to avoid prosecution, whether he had sought to conceal his whereabouts from the authorities and the reasons why he did not return to face trial in the United States. She invoked a well-known passage by Moses LJ in The United States v Tollman [2008] EWHC 184 (Admin):

"53. The very fact that the accused invokes justice to prevent his extradition requires consideration of the circumstances which have led to the fact that he is not facing justice in the country from which he has fled."

After a detailed consideration of the evidence, the learned judge found that she could not accept the appellant's account as to why he had left the United States. In her judgment, he had left in haste shortly before the charges against him were made public:

"He made no attempt to return or to contact the US Authorities either directly or through lawyers to ascertain his personal position or to express surprise or his innocence or any matter at all."

13. 13.1. After a consideration of further evidence, in particular the statement by the appellant to which I have referred, namely that there was in his view an antipathy to Hasidic defendants in the United States criminal justice system, the learned District Judge found that the defendant had not lived openly in Israel. Rather, he had sought to evade the attention of the authorities.
14. 14.1. Addressing the presence of the appellant in this country, the District Judge considered his marriage in 2004 and accepted the evidence that he lived, worked, lectured and prayed openly in the Stamford Hill area of London. However she concluded:

"The defendant has no National Insurance number and is not registered as an NHS patient. He is not known to the Department of Work and Pensions or to HM Customs and Revenue in any capacity whatsoever. He has paid no tax and no National Insurance since he has been here although he has obtained work as a teacher of religion giving private lessons in a school and in private homes. There is no evidence before me that he is registered to vote in local or national elections nor that his name is recorded with his local authority as a Council Tax payer or in any other capacity. The lack of any sort of official record of his presence in the UK is not of itself illegal but I find in all the circumstances that it is not chance but a deliberate policy by the defendant. It has proved effective in avoiding his detection by the Police."

15. 15.1. The learned judge then found that the appellant bore the burden of responsibility for the delay between the time of his departure from the United States in May 1997 to his arrest in London in April 2008.
16. 16.1. The learned judge then went on to consider the possibility of a fair trial in the United States. She addressed the essential question, as it was put in Tollman, whether a fair trial of the issues which arose could be achieved. She discussed the issue of Chaim Berger and his death in prison so that he was not available to give evidence which might support the appellant's account. The District Judge noted that Chaim Berger had not given evidence in the trials of other co-defendants while he was alive, nor had the appellant approached him either directly or through lawyers before or after his conviction and sentence. She said:

"There is literally no evidence at all before the court as to what evidence Chaim Berger would have given."

17. 17.1. District Judge Tubbs went on to say that there was no evidence that other relevant witnesses would not be available to testify about the prominent, indeed on the appellant's account, dominant role of Chaim Berger in the New Square community. She added that there was no evidence that relevant documents were not available.
18. 18.1. The District Judge then turned to the issue of oppression. In particular she was impressed that the appellant had many family ties in the United States and had uprooted himself and his family twice. There was no basis that it would be oppressive by reason of time to extradite him. Given the binding authority of Dyson LJ in Jaso, Lopez and Hernandez v Central Criminal Court No 2 Madrid [2007] EWHC 2983 at paragraph 57, there were not the striking and unusual features which were required to justify an Article 8 breach.
19. 19.1. In terms of the possible disparity of sentence because of the fact that President Clinton had commuted the sentences of four co-defendants, the District Judge referred to title 18 of the United States Code 3553(a), that it is possible for United States federal courts to take into account a disparity of sentence of a co-defendant when sentencing the appellant.

Passage of time: relevant law

20. 20.1. Section 82 of the Extradition Act of 2003 provides:

"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 or since he is alleged to have become unlawfully at large (as the case may be)."

21. 21.1. Kakis v the Government of the Republic of Cyprus [1978] 1 WLR 779 is the seminal decision on the interpretation of section 82. It involved a similarly worded provision, section 8(3)(b) of the Fugitive Offenders Act 1967. At pages 782H-783B Lord Diplock said:

"'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 fro changes in 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. 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 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 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."

That part of Lord Diplock's judgment has recently been reaffirmed as the law by the House of Lords in Gomes and Goodyer v The Government of Trinidad and Tobago [2009] UKHL 21, [2009] 1 WLR 1038. Thus delay cannot be relied upon in extradition proceedings if it is because the person whose extradition is sought has deliberately fled the requesting state, concealed his whereabouts or evaded arrest, unless the circumstances are exceptional.

22. 22.1. As to injustice under section 82, the House of Lords in Gomes and Goodyer endorsed the decision of the Privy Council in Knowles v United States [2007] 1 WLR 47. At paragraph 31 Lord Bingham endorsed the following propositions which were taken from an earlier decision of this court, Woodcock v Government of New Zealand [2004] 1 WLR 1979:

"First, the question is not whether it would be unjust or oppressive to try the accused but whether ... it would be unjust or oppressive to extradite him (para 20). Secondly, if the court of the requesting state is bound to conclude that a fair trial is impossible, it would be unjust or oppressive for the requested state to return him (para 21). But, thirdly, the court of the requested state must have regard to the safeguards which exist under the domestic law of the requesting state to protect the defendant against a trial rendered unjust or oppressive by the passage of time (paras 21-22). Fourthly, no rule of thumb can be applied to determine whether the passage of time has rendered a fair trial no longer possible: much will turn on the particular case (paras 14-16, 23-25). Fifthly, 'there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive.'" (para 20)

23. 23.1. In Gomes and Goodyer the House of Lords said that the test of oppression will not easily be satisfied. Hardship, a comparatively commonplace consequence of an order for extradition, is not enough (paragraph 31).
24. 24.1. It is for the party invoking the statutory bar in section 82 to establish injustice and oppression through passage of time. The standard of proof is on the balance of probabilities. In Krzyzowski v Poland [2007] EWHC 2754 (Admin) this court held that since under Kakis a person's deliberately fleeing a requesting state operates as an almost automatic bar to an accused's reliance on delay in extradition proceedings, the onus is on the requesting state to establish to the criminal standard of proof that the accused has deliberately fled. The court drew support for that conclusion from an earlier decision, that a requesting state must prove to the criminal standard whether a person has deliberately absented himself from his trial. Additional support for the court's conclusion comes from the Extradition Act 2003 itself, section 206. That approach to the standard of proof in flight cases has been endorsed in Gomes and Goodyer:

"Generally it will be clear one way or the other whether the accused has deliberately fled the country and in any event, as was held in Krzyzowski [2007] EWHC 2754, given that flight will in all save the most exceptional circumstances operate as an almost automatic bar to reliance on delay, it will have to be proved beyond a reasonable doubt ..." (Paragraph 27)

Evidence of Chaim Berger and other witnesses

25. 25.1. The first point advanced by Mr Goldberg QC in his skillful submissions concerns the prejudice the appellant will suffer due to the passage of time because of the death of Chaim Berger, along with the unavailability of other potential witnesses. A fair trial is not possible, in his submission, because Mr Berger is now dead. Since the District Judge's decision there has become available a statement from his widow about what Mr Berger would have said. That statement, because it is hearsay as to what Chaim Berger told Mrs Berger about the defendant, would seem to be inadmissible in United States courts. That disparity between the admissibility of hearsay evidence in this country as opposed to the United States was an additional string to Mr Goldberg's submission.
26. 26.1. The evidence from the appellant about Chaim Berger I have already referred to. In her statement Mrs Berger says:

"When charges were originally brought in this case in the Spring of 1997, my husband and I were living in Israel. During this time, my husband repeatedly questioned the United States government's decision to charge Rabbi Friesel. ... my husband acknowledged to me his own guilt for the crimes alleged in the Indictment, but maintained that Rabbi Friesel was innocent. As my husband recounted to me, Rabbi Friesel worked with him in his office at New Square and did whatever my husband told him to do. For instance, if my husband told Rabbi Friesel to sign something, Rabbi Friesel would sign it, without questioning what it was or what it was for. My husband described Rabbi Friesel as a good soldier who followed his orders, and did so without either questioning them or understanding the significance of particular tasks he was directed to perform.

After my husband was convicted in 2002, I visited him regularly while he was in prison. Again, on several occasions, he expressed to me his bewilderment as to why the United States maintained its case against Rabbi Friesel since his actions were actions done at my husband's direction without understanding the significance of those acts. My husband expressed to me that, if given the opportunity, he would have testified on Rabbi Friesel's behalf in connection with these criminal proceedings."

27. 27.1. That evidence, Mr Goldberg QC submits, if it were available at the appellant's trial, would be very powerful evidence going to his defence. The District Judge addressed the admissibility of Chaim Berger's evidence but said that apart from his credibility there was no evidence about what he would have said. Following the statement from his widow, submits Mr Goldberg QC, that situation has now totally changed. Her evidence supports his account that, to use Mr Goldberg QC's terminology, Chaim Berger was the mastermind of the fraud and the appellant simply an amanuensis and a disciple. Coupled with the statement from the appellant's American attorney, Robert Cleary, that Mrs Berger's hearsay evidence is not admissible in American courts, the appellant was at an obvious and clear disadvantage in terms of obtaining of a fair trial should he be extradited.
28. 28.1. Assume that, according to Mrs Berger's statement, Chaim Berger directed the appellant to sign documents in pursuance of the fraud. This evidence does not go to important issues that will arise in his trial, if there be one. For example, Mrs Berger's evidence cannot go to the appellant's state of mind at the time that he did sign documents, in particular whether or not he acted with honesty when he did so. That issue is peculiarly within his own knowledge. Moreover, it will be recalled as well that on his account those involved in the conspiracy had used a rubber stamp in his name to forge his signature. Again, that is not a matter on which Mrs Berger's evidence assists. Indeed it seems, on the surface, to be inconsistent with what Mrs Berger says, that the frauds were executed through her husband's direction to the appellant that he should sign incriminating documents. In any event, there are other witnesses who can give evidence about the nature of Chaim Berger's role within the New Square community and his relationship with the appellant.
29. 29.1. There is the additional point, as the District Judge noted, that Mr Berger did not consider it his duty to give evidence in support of other co-defendants. Mr Goldberg QC submits that the situation in that regard is different. Through their convictions the others were guilty men and, in any event, the relationship between Chaim Berger and this appellant was different. Nonetheless, the general point the District Judge made remains: there are other potential witnesses who can attest to the important role that Chaim Berger may have had viz-a-viz this appellant. That, in my view, also meets Mr Goldberg QC's additional submission that Mrs Berger's statement would not be admissible under the hearsay rules which operate in the United States.

The December letter.

30. 30.1. Mr Goldberg QC submitted that the District Judge could not have been satisfied to the requisite standard about her findings about why the United States authorities had been unable to locate and extradite the appellant over the last decade. In an impressive display of advocacy he deconstructed the December letter signed by Miss Roth for the United States. He submitted that the evidence in the letter contained inaccuracies, bad points, comment and, in particular, a plethora of hearsay allegations. The hearsay was unnecessary. It would have been easy enough, for example, for the United States marshalls mentioned in the letter to have given statements about the efforts being made to find the appellant. Instead, hearsay evidence was used. Similarly, it would have been easy enough for Deborah Landis, who had been the attorney in charge of the prosecution, to have given direct evidence about telephone calls she said were made with the appellant in 1996. Again, the December letter used hearsay. The December letter referred to newspaper articles, which was quite unsatisfactory. Moreover, in Mr Goldberg's submission, the letter was not in the proper form.
31. 31.1. By contrast the appellant had prepared a statement which set out his account. It was in proper form under section 9 of the Criminal Justice Act. In that account he explained why he left for Israel in 1997, how he lived openly there, how he came to this country and why there was no official record of his presence here. The District Judge was quite wrong to prefer the December letter, replete as it was with its inaccuracies and hearsay evidence, to the properly formulated evidence given by the appellant in his statement. Mr Goldberg's primary submission was that the December letter was inadmissible because of hearsay, but if it was admissible the District Judge had been wrong to give it the weight that she had.
32. 32.1. The submission in relation to inadmissibility turns on a characterisation of extradition proceedings as criminal. Reference is made to Lord Hoffman's judgment in R v The Governor of Brixton Prison [1997] AC 741, 746. Since extradition proceedings are criminal proceedings the next step in Mr Goldberg's submission is that the rules set out regarding hearsay evidence in chapter 2 of Part II of the Criminal Justice Act 2003 are applicable. Albeit that that legislation has liberalised the admission of hearsay evidence, its hurdles had not been surmounted by the United States in relation to the December letter.
33. 33.1. In my view there can be no bar to the admission of documents such as the December letter in extradition proceedings, albeit that they may contain hearsay evidence. Section 114 of the Criminal Justice Act 2003 is directed at criminal proceedings in the strict sense of that term: see section 134(1). The purpose is to protect the rights of persons being tried before a jury or by magistrates. Equivalent protection to a person's rights to that provided by the hearsay provisions of the Criminal Justice Act of 2003 are contained in the authentication provisions of section 202 of the Extradition Act of 2003:

"202. Receivable documents

(1) A Part 1 warrant may be received in evidence in proceedings under this Act.

(2) Any other document issued in a category 1 territory may be received in evidence in proceedings under this Act if it is duly authenticated.

(3) A document issued in a category 2 territory may be received in evidence in proceedings under this Act if it is duly authenticated.

(4) A document issued in a category 1 or category 2 territory is duly authenticated if (and only if) one of these applies—

(a) it purports to be signed by a judge, magistrate or other judicial authority of the territory;

(b) it purports to be authenticated by the oath or affirmation of a witness.

(5) Subsections (2) and (3) do not prevent a document that is not duly authenticated from being received in evidence in proceedings under this Act."

As Maurice Kay LJ recognised in Savvas v The Government of Italy [2004] EWHC 1233 Admin, the authentication provisions provide a valuable method of ensuring that information provided to a judge considering extradition can be relied upon. Maurice Kay LJ said:

"In the present case, it is significant that the disputed piece of information came from official and authenticated sources and was inextricably related. As such, no doubt a District Judge would accord it greater weight than some elusive piece of hearsay from an unofficial source. It would be absurd if properly authenticated material from a Convention state had to be verified by the calling of a witness in circumstances such as these." (Paragraph 9)

34. 34.1. Mr Goldberg points out that Savvas involved an application for extradition from a European Convention on Extradition state. But in my judgment there can be no differentiation in this regard between extradition applications from Convention states on the one hand, and from the United States on the other, when our two countries and legal systems have had such a long and close relationship.
35. 35.1. In any event, as was said by Lord Brown in Gomes and Goodyer at paragraph 36, it is necessary for the courts to have regard to the fact that extradition treaties are based on mutual trust and respect. As his Lordship explained, international co-operation in the field is ever more important to bring to justice those accused of serious cross-border crimes.
36. 36.1. In my view, therefore, this statement signed by Miss Roth was a document properly admitted by the District Judge. It was authenticated under section 202. It was not to be discounted on the basis of its containing hearsay evidence, although as the District Judge rightly held she had to take the hearsay into account in the weight she gave to its contents.
37. 37.1. It certainly is the case that evidence given by means of affidavit by those with direct knowledge of matters will generally be given greater weight. In my judgment, however, there can no exclusion of a document such as the December letter simply because it contains hearsay. As to the weight the District Judge gave the contents of the December 2008 letter, that was a matter for her.

Burden and standard of proof

38. 38.1. Next, Mr Goldberg QC submitted that the District Judge had not addressed herself properly to the onus and standard of proof. She had concluded that the appellant had fled to Israel, and that being the case she was required by the authorities to decide that issue according to the criminal standard of proof, albeit that Gomes and Goodyer had not at that point being decided. In the judgment the District Judge says at various points that she is satisfied about certain matters, but in Mr Goldberg QC's submission that is not sufficient because she does not indicate whether she is satisfied to the criminal, as opposed to the civil standard, of proof.
39. 39.1. The criminal standard of proof arises where a requesting state seeks to use a person's deliberate flight as automatically conclusive on the question of delay in extradition proceedings. In Kakis Lord Diplock held that delay cannot be relied on where a person has deliberately fled, save in the most exceptional circumstances. It is because a person in this situation is precluded from raising delay leading to injustice or oppression that this court in Krzyzowski held that the criminal standard of proof should apply. In that case the District Judge said that he was sure that the appellant had fled to avoid the prosecution. This court held that the District Judge had thus applied the criminal standard and was also correct to hold that deliberate flight concluded the matter, absent exceptional circumstances.
40. 40.1. In the present case, however, the District Judge was not asked to, and did not proceed on the basis of Kakis. She decided the matter on a straightforward application of section 82. The appellant's contribution to the delay was one factor to be considered. As I indicated earlier in the judgment, the District Judge invoked Moses LJ's statement in Tollman at paragraph 53. At paragraph 58 of that judgment Moses LJ had also said that it was reasonable to infer that at the time the appellant had left the United States he was well aware of the stage the investigation had reached and the likelihood, to put it no higher, of an indictment being preferred. His silence as to his anticipation of an indictment was, in Moses LJ's judgment, eloquent. He did not flee:

"But the fact that he did not return to face the indictment with his co-accused is in our judgment a significant factor in assessing the justice of requiring him to return now." (paragraph 58)

41. 41.1. Consequently, as is clear from these authorities, there was no reason for the District Judge to apply the criminal standard. Her task was to decide whether the appellant's case under section 82 had been made out on the balance of probabilities. His contribution to delay was a relevant factor. In her judgment she said this:

"I find that the defendant bears the burden of responsibility for that part of the relevant time that stretches from his departure from the US in May 1997 to his arrest in London in April 2008.

That finding does not preclude the defendant from relying on section 82 of the Act as a bar to his extradition but it is a relevant consideration."

In my view, the District Judge was correct in her analysis and application of the law.

Oppression and Article 8

42. 42.1. Finally Mr Goldberg QC reiterated the submissions made in relation to oppression and Article 8 of the European Convention on Human Rights. In particular he referred to the statement of the appellant's wife, where she set out the difficulties she had with her ailing mother of 84 years old, the problems faced by her siblings and the medical supervision to which she herself was subject. She also referred to her employment with a Jewish charity.
43. 43.1. In my view, none of this, even coupled with the other matters advanced on behalf of the appellant on this point, can meet the very high threshold set by Dyson LJ in the Jaso, Lopez and Hernandez, to which the District Judge quite rightly referred.

Conclusion

44. 44.1. For completeness I should mention that Mr Goldberg no longer contends as he did before the District Judge that the potential disparity of sentence to which the appellant might be subject on return to the United States was a major part of the case. It was something to be considered along with other matters in the pot. In my view the District Judge gave that matter proper consideration. The key point is that a sentencing judge in the United States will be able to take into account what had happened as a result of President Clinton's commutation decision in sentencing this appellant.
45. 45.1. The result is that I would dismiss the appeal.
46. 46.1. LORD JUSTICE PILL: I agree.
47. 47.1. LORD JUSTICE PILL: Are there any applications?
48. 48.1. MR CALDWELL: My Lord, there is. May I simply, so that the correct order shows an aspect of your judgment clearly. You referred to section 206. I am sure it was section 202 and it should be subparagraph (4) that dealt with authentication. That is the only point I wish to raise. Thank you.
49. 49.1. LORD JUSTICE PILL: Thank you.
50. 50.1. MR GOLDBERG: My Lord, we would welcome the opportunity of time to consider the judgment and in particular with a view to inviting you possibly to certifying a point of law for the House of Lords as being of general public importance under section 114 of the Extradition Act. That I think would be limited to the question of the American report.
51. 51.1. LORD JUSTICE PILL: Limited to?
52. 52.1. MR GOLDBERG: Limited to the question of whether hearsay in the American report is admissible in extradition proceedings. The Savvas point. I wonder if we could have time to invite your Lordships to consider that?
53. 53.1. LORD JUSTICE PILL: Yes, how long are you seeking?
54. 54.1. MR GOLDBERG: We have 14 days. One would hope to get something in writing before that certainly.
55. 55.1. LORD JUSTICE PILL: Yes.
56. 56.1. Mr Caldwell, you have no submissions on that.
57. 57.1. MR CALDWELL: I understood my learned friend has 14 days. In my submission it may not be necessary for the court to convene but it does help if we were to address submissions to your Lordship, provided that is the appropriate course, if my learned friend can give us a little notice so that you have both sets of submissions within the 14 day time limit. That is my invitation. I cannot seek an order.
58. 58.1. LORD JUSTICE PILL: I don't expect you dissent from that, Mr Goldberg. We will consider it on receipt.
59. 59.1. MR GOLDBERG: Yes. My Lord, he has bail. It is on stringent terms and all the other various sureties and so forth have been taken until, to use a phrase, he is basically put on the plane, is what it amounts to. (Pause). Each surety was asked Collins J in terms of his order to agree that they remain as sureties until he is returned to the USA, if I put it that way, and each has done so I doubt we need to do anything.
60. 60.1. LORD JUSTICE PILL: You are asking that bail be extended until the decision on certification is made. If it were to be made in your favour -- I think you had better include in your application for certification what you say should happen if the decision is in your favour.
61. 61.1. MR GOLDBERG: If it were in my favour, my Lords, then we would invite you to give leave to the House of Lords. It may be that conventionally leave is more often refused than given one recognises and then --
62. 62.1. LORD JUSTICE PILL: Your application for leave will accompany your application to certify. I was simply referring to bail. The statute I think the 14 days covers the leave application as well as the certification.
63. 63.1. MR GOLDBERG: Looking at section 114 -- yes, I think that is right. We have 14 days, including today, to invite you to give leave and thereafter if you give or whether you refuse it, then we have 14 days from your refusal on which to go to them. So, in other words, if you certify, that's the first hurdle, we would then.
64. 64.1. LORD JUSTICE PILL: We had a case on this two weeks ago on the procedure. The more esoteric points that arose there do not arise here. My understanding is that you have to apply within 14 days both for certification and for leave.
65. 65.1. MR GOLDBERG: Yes.
66. 66.1. LORD JUSTICE PILL: And then time would run from our decision probably.
67. 67.1. MR GOLDBERG: Yes.
68. 68.1. LORD JUSTICE PILL: In relation to a further ten days by which certain action has to be taken. What I had in mind was in your submissions include a reference to what should happen on the question of custody or bail in two possible events: one that we certify but refuse leave and the other on the basis that we certify and grant leave.
69. 69.1. MR GOLDBERG: Yes.
70. 70.1. LORD JUSTICE PILL: Mr Caldwell, do you have any observations about that?
71. 71.1. MR CALDWELL: My Lord, I don't believe that any separate order is required as of today's date. The appellant remains on bail with a duty to surrender if he is required to do so. That obligation to surrender will not arise unless certification is ultimately refused in which case his obligation will affect him within that ten-day period where he is liable.
72. 72.1. LORD JUSTICE PILL: But if, and I am not giving indications, if we refuse to certify then the order show incorporate a surrender provision, should it not.
73. 73.1. MR CALDWELL: Yes.
74. 74.1. LORD JUSTICE PILL: I was simply inviting submissions if it were the other way, again no indication, what should happen.
75. 75.1. MR CALDWELL: In my submission the status quo should continue.
76. 76.1. LORD JUSTICE PILL: You would not be opposing the continuation of bail.
77. 77.1. MR CALDWELL: No.
78. 78.1. MR GOLDBERG: It has been suggested to me that a simpler way is that the Crown did not object on the merits to bail, as I understand it, for you to order that bail to continue unless further order in which event when he is ordered to surrender he has to surrender but bail until that day.
79. 79.1. LORD JUSTICE PILL: Mr Caldwell?
80. 80.1. MR CALDWELL: I am content with that.
81. 81.1. LORD JUSTICE PILL: There is a time limit applying to you from the refusal of certification if that is the event.
82. 82.1. MR CALDWELL: Indeed so.
83. 83.1. LORD JUSTICE PILL: And the point we had to consider was when time began to run.
84. 84.1. MR CALDWELL: Yes.
85. 85.1. LORD JUSTICE PILL: What we held was that you had -- it was an appeal against the prosecution failure to send the man back -- and what we held is that you had the 14 days in any event, plus the ten. That is matter for you. I am sure those instructing you will --
86. 86.1. MR CALDWELL: I have only read the summary of that case so far.
87. 87.1. LORD JUSTICE PILL: If it arises, but there is the point, which did not arise in that case, as to the moment at which surrender should be required if we take a decision against the appellant. And you might like to address your mind to that and those instructing you. We would not it to be left in a limbo. Who would require him to surrender? Would you expect the court to do that, or is there some other procedure?
88. 88.1. MR CALDWELL: Within the ten day period he is liable to be required to surrender to a police station.
89. 89.1. LORD JUSTICE PILL: Who will require him?
90. 90.1. MR CALDWELL: He will be contacted by police. It is rather --
91. 91.1. LORD JUSTICE PILL: But if the court has granted bail, the court must allow the police to take that course.
92. 92.1. MR CALDWELL: If it is thought necessary as a safeguard might I invite the court to grant bail with the proviso that if he is required to surrender himself to a police station within the period in which he is liable to be extradited he should do so.
93. 93.1. LORD JUSTICE PILL: Yes. We will consider that, but Mr Goldberg, you may have submissions on that issue.
94. 94.1. MR GOLDBERG: Yes.
95. 95.1. LORD JUSTICE PILL: And rather than decide it on the hoof now, we will consider submissions. It is important that Mr Caldwell should have the chance, having taken instructions, to make any submissions as well.
96. 96.1. MR GOLDBERG: My Lord, would you order a transcript of the judgment to be prepared. That would I think assist both parties greatly?
97. 97.1. LORD JUSTICE PILL: Yes. Are you asking for expedition?
98. 98.1. MR GOLDBERG: Yes.
99. 99.1. LORD JUSTICE PILL: Yes, having consulted the shorthand writer, I grant the request that the transcript be expedited. We will need to approve it of course but we will do that, or my Lord will do that I am sure promptly.
100. 100.1. MR GOLDBERG: Yes, thank you.
101. 101.1. LORD JUSTICE PILL: No order for costs as between the parties?
102. 102.1. MR CALDWELL: No, my Lord.
103. 103.1. LORD JUSTICE PILL: Yes. Thank you, Mr Goldberg, Mr Caldwell.