England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		15 June 2009

MR JUSTICE KEITH:

1. On 6 November 2008, the appellant, Fjodor Borovkov, was arrested at his home in Cardiff pursuant to a European Arrest Warrant issued by the respondent, the Viru County Court in Estonia, on 7 March 2008. The warrant had been certified by the Serious Organised Crime Agency on 27 October 2008. Mr Borovkov did not consent to his extradition, and an extradition hearing took place at Westminster Magistrates' Court. On 16 March 2009 District Judge Riddle ordered that Mr Borovkov be extradited to Estonia. He now appeals against that order. Collins J ordered that the appeal could be heard by a single judge. The basis of the appeal is that Mr Borovkov's extradition is barred under section 14 of the Extradition Act 2003 since it would be either unjust or oppressive to extradite him in view of the passage of time since he was alleged to have committed the offences for which his extradition was sought. The burden of showing that his extradition would be unjust or oppressive is on Mr Borovkov.
2. The law on the topic has recently been clarified by the House of Lords, but I should start with what Lord Diplock said in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, in which a provision similar to section 14, namely section 8(3) of Fugitive Offenders Act 1967, was considered. At pages 782H-783A, 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 from 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."

Lord Diplock went on to address delay which had not been brought about by the conduct of the fugitive. At page 783B-D, he said:

".... 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. So .... 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."

However, in relation to someone who is alleged to be a fugitive from justice, Lord Diplock said at page 783A-B:

"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."

3. In Gomes and Goodyear v Government of Trinidad and Tobago [2009] UKHL 21, the House of Lords recently had to consider the effect of delay on the part of the requesting state in seeking the fugitive's extradition once he had become a fugitive from justice. On that topic Lord Brown said this:

26. If an accused .... deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstances which would similarly justify a sense of security on his part notwith-standing his own flight from justice, could allow him properly to assert that the effects of further delay were not 'of his own choice and making'."

Lord Brown added two things for good measure. First, at paragraph 29, he acknowledged that there might be "most exceptional circumstances" in which, despite the fugitive's responsibility for the delay, the court would nevertheless find the time-bar established. Secondly, at paragraph 31, he said that oppression will not easily be established: "hardship, a comparatively commonplace consequence of an order for extradition, is not enough."

4. The offences which Mr Borovkov is alleged to have committed are rape, satisfaction of sexual desire in an unnatural manner by violence or threat of violence, and malicious hooliganism. They each carry a maximum sentence of five years' imprisonment. They are alleged to have been committed in June and November 1999 when Mr Borovkov was 16 years old. He is now 26. Plainly a very substantial period of time has passed since the offences were alleged to have been committed. That is partly due to the fact that Mr Borovkov left Estonia on 24 October 2004 and flew to London, in circumstances in which the Estonian authorities say that he became a fugitive from justice. He claims that when he was released from custody on 18 January 2000, he thought that that was "the end of the matter". In those circumstances, the course which the investigation and the subsequent criminal proceedings took becomes very important.
5. The investigation and the subsequent criminal proceedings have been described by the judicial authorities in Estonia. Their summary shows that Mr Borovkov was charged with the offences on 25 November 1999, and that he was interrogated in the presence of a lawyer that day. On 18 January 2000, he was released on bail with a condition of residence, and signed an undertaking to comply with that condition. Evidence was taken on 30 April, 7 August and 11 August 2000. On 21 March 2001, Mr Borovkov and his co-defendants were declared to be suspects. Between 26 March and 25 April 2001, evidence was taken from another witness. Evidence was taken from further witnesses on 15 October 2001, 21 January, 20 March, 22 March and 7 May 2002. On 10 May 2002, expert evidence was served on Mr Borovkov, for which he signed. On 21 June 2002, the prosecutor approved a summary of the charges.
6. The file was sent to the judicial authorities on 4 July 2002. There is no information about the course of the prosecution thereafter until 23 August 2004, when the trial was fixed for 21 and 22 September 2004. Mr Borovkov was personally served with a summons to appear on those dates. He signed a notice of delivery of the summons. However, Mr Borovkov and two of his co-defendants did not attend court on 21 September. A medical certificate stated that he had been treated as an outpatient at a hospital the previous day. On 30 September 2004, Mr Borovkov signed a document appointing his lawyer, but he and two of his co-defendants failed to attend the next hearing on 26 October 2004. Accordingly, a local warrant for his arrest was issued on 8 November 2004. There is no information about the steps taken to trace Mr Borovkov's whereabouts since then, or why the European Arrest Warrant was not issued until 7 March 2008.
7. The information received from the judicial authorities in Estonia included the following statement:

"On 5 October the decision was made regarding the four accused persons who were processed separately from Fjodor Borovkov's charges and the judicial proceedings were terminated with regard to them."

It is not clear what year that was but, more importantly, it is unclear whether the proceedings were terminated in the sense that it was decided no longer to pursue criminal charges against Mr Borovkov's four co-defendants, or whether the proceedings were terminated because the trial of his four co-defendants was concluded.

8. Mr Borovkov gave evidence at the extradition hearing, as did his partner and his mother. The effect of his evidence about the investigation was that when he was released from custody in January 2000, he thought that that was "the end of the matter". He had signed a number of documents on his release, and he acknowledged that one of them could well have been an agreement to reside where he was then living. However, he had not read what he had signed, and he did not know what he was signing. He thought that he had been released unconditionally because there was insufficient evidence to proceed against him. He denied that he was ever told that he had to go to court. Indeed, he claims that before his release in January 2000, and his departure for London in October 2004, he had heard nothing from the police and had received no documents summoning him to attend court. On the other hand, his mother appeared to remember that there had been some court hearings after Mr Borovkov's release from custody, but she was unable to recall any details.
9. It is against that background that Mr Borovkov claims that he left Estonia with his mother. She was going through a difficult divorce at the time, and it was finalised in 2005. She had left her 13 year old son in Estonia with her 24 year old daughter, while she made arrangements for his schooling in the United Kingdom. He has since come to this country and is attending school here.
10. Since their arrival in this country, Mr Borovkov and his mother have made their lives here. They live in Cardiff. Mr Borovkov lives with his partner and their young son, who is now 2 years old. His partner is studying mathematics at the University of Cardiff. If Mr Borovkov were extradited, she would have to give up her studies to look after their son. Mr Borovkov had been looking after their son during the day and had worked nights.
11. The information from the judicial authorities in Estonia understandably left the district judge in no doubt that the investigation and the subsequent proceedings were continuing. The district judge went on to consider whether Mr Borovkov had been aware of them. He was sure that Mr Borovkov had. Mr Borovkov had signed the undertaking to comply with the condition of residence. He had signed an acknowledgement that he had been served with the expert evidence. He had acknowledged service of the summons to appear at his trial by signing the notice of delivery. A medical certificate had been submitted to the court on his behalf, and he had signed the document appointing his lawyer.
12. Having concluded that Mr Borovkov had been aware of his trial, the district judge went on to consider why he had left Estonia. He regarded the timing of Mr Borovkov's departure as highly significant. It was just two days before the date fixed for his trial. Moreover, the departure of Mr Borovkov and his mother was at short notice for such a significant upheaval in their lives, which involved a young boy being left behind. They did not have any clear plans as to what they proposed to do. Neither of them had any work organised. It was in these circumstances that the district judge concluded that Mr Borovkov had left Estonia to avoid his trial.
13. The district judge considered the delays, which the outline I have given of the course of the investigation and the subsequent criminal proceedings reveal. He rightly described the time that it had taken to reach trial as "very long", especially for someone as young as 16 when the offences were alleged to have been committed. However, he took the view that this delay did not make it unjust or oppressive to order Mr Borovkov's extradition. He noted that the delay had not been advanced by Mr Borovkov as having had anything to do with his reasons for leaving Estonia, though that was hardly surprising because if Mr Borovkov had said that, it would have been inconsistent with his assertion that he had not realised that the proceedings were continuing.
14. As for whether it would be unjust to order Mr Borovkov's extradition, the district judge concluded that Mr Borovkov could receive a fair trial in Estonia despite the delay. The file must have been preserved for the judicial authorities to have been able to complete so detailed a summary of the course of the investigation and the criminal proceedings. There was no reason to suppose that a record of Mr Borovkov's interrogation did not exist. The district judge was confident that the judicial authorities would take into account any difficulties which Mr Borovkov might encounter in obtaining evidence himself so long after the event.
15. As for whether it would be oppressive to order Mr Borovkov's extradition now that he has settled in this country with his partner and their son, the district judge said this:

"He and his family, including the baby, will no doubt suffer if he is returned to Estonia to face criminal proceedings. This is so even though the baby's mother is clearly competent and resourceful and the baby's grandmother is also in Cardiff, working as a nurse, and with a home of her own. I do not in any way minimise the upset and distress that extradition will cause them, and have particularly considered the effect on the baby .... However, I must conclude that the hardship is no more than one would normally expect in a case such as this. It falls far short of being oppressive."

16. A number of points are taken on this appeal by Mr Julian Atlee for Mr Borovkov. Some of them overlap with each other, but they boil down to three. The first is that the district judge should not have found that Mr Borovkov had left Estonia to avoid his trial. An analysis of the course which the investigation and the subsequent proceedings took shows, it is said, that the judicial authorities in Estonia have never suggested that Mr Borovkov was requested or required to attend investigative hearings between January 2000 and September 2004. That may be so, but the fact remains that on 10 May 2002 he had signed for the expert evidence which had been served on him; and on 23 August 2004 he had signed for the summons requiring him to attend court on 21 September 2004. He must, therefore, have known that the criminal proceedings were continuing. Having regard to the timing of his departure from Estonia, the speed with which it happened, and the absence of any forward planning, the conclusion that he left Estonia to avoid his trial is inescapable.
17. Secondly, it is said that the district judge failed to take into account that the delay in investigating and prosecuting Mr Borovkov was not attributable to him. That criticism of the district judge is wrong. It is true that he did not say in terms that Mr Borovkov did nothing to contribute to the delay between January 2000 and September 2004, but the judge considered that delay specifically. He did not say that Mr Borovkov had contributed to it. Indeed, there as nothing to suggest that he had. But in any event, the issue is not whether the district judge failed to take a relevant consideration into account; the question is whether, on looking at the case as a whole, the district judge should have decided differently the question whether Mr Borovkov's extradition to Estonia would be unjust or oppressive in view of the passage of time.
18. Thirdly, it is said that even if Mr Borovkov left Estonia to avoid his trial, some of the delay since then has not been attributable to him. It is attributable to the fact that the authorities in Estonia have not taken sufficient steps to trace him. In that connection it is said that Mr Borovkov notified the consular section of the Estonian Embassy in London in July 2007 of his address when he applied for a travel document for his infant son. The Estonian authorities therefore knew of his whereabouts, but the judicial authorities did not issue the European Arrest Warrant until March 2008.
19. I do not regard this as a point of significance. Even if the correct constitutional position is that the Embassy's knowledge of Mr Borovkov's whereabouts should be attributed to the judicial authorities in Estonia, the practical realities may be very different. We do not know what steps the Embassy took to verify Mr Borovkov's nationality, and whether such steps as they did take should have alerted the judicial authorities in Estonia that the Fjodor Borovkov in respect of whom a local arrest warrant had been issued was the same Fjodor Borovkov who was living in Cardiff and applying for a travel document for his son. However, even if the judicial authorities became, or should have become, aware of Mr Borovkov's whereabouts in July 2007, so that the delay between then and the issue of the European Arrest Warrant in March 2008 was attributable to fault on their part, that argument is no longer available to Mr Borovkov in the light of the decision of the House of Lords in Gomes, unless the circumstances could be described as most exceptional. In my view, they are not.
20. Ultimately, like District Judge Riddle, I must consider whether it would be unjust or oppressive for Mr Borovkov to be returned to Estonia in the light of such part of the passage of time which has elapsed but for which he is not responsible. Mr Atlee no longer suggests that his extradition would be unjust. I agree with that concession. I have seen nothing which suggests that Mr Borovkov might not receive a fair trial. In this country sexual allegations are often tried many years after the event, usually because the offences only recently came to light. That of itself has not been regarded as making it unjust for the trial to take place. As the district judge noted, the file must have been preserved, and presumably a record of Mr Borovkov's interrogation exists. There is nothing to suggest that his alleged victims are not available to give evidence. Nor is it suggested on Mr Borovkov's behalf that evidence on which he would wish to rely is no longer available. It is true that the memories of the witnesses will have been affected by the delay for which Mr Borovkov was not responsible, but overall I cannot say that his trial would be so compromised by the passage of time that it would be unjust to extradite him.
21. I turn to whether Mr Borovkov's extradition would be oppressive. If I had been considering that question in November 2004 at the time the local arrest warrant was issued, I would have said that it was not. He had not then acquired his new family, so in that sense his circumstances had not changed. The only issue would have been whether it would have been unfair to return someone, then aged 21, to Estonia to face trial there for offences alleged to have been committed when he was 16, almost five years having elapsed since he was granted bail. I do not think that would have been unfair, although it would have been open for Mr Borovkov's lawyers to argue that the passage of time had resulted in his right under article 6(1) of the Convention to being tried within a reasonable time having been infringed.
22. Having said that, we are now in 2009. The question is whether it would be oppressive for Mr Borovkov now to be returned to Estonia. The critical point here is that he cannot rely on the relationship he has build up with his partner and their son because that arose when he would (or at least should) have realised that his presence in the UK was precarious and when the delay was attributable to him. His evidence to the district judge was that he and his partner only became partners after their arrival in this country, even though they had known each other in Estonia.
23. For these reasons, therefore, this appeal must be dismissed.

MR ATLEE: My Lord, may I have an assessment of my publicly funded costs?

MR JUSTICE KEITH: Yes.

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