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
		15 October 2009

1. LORD JUSTICE SCOTT BAKER: This is an appeal against a decision of District Judge Zani on 30 July of this year ordering the extradition of the appellant to the Republic of Ireland where he is accused of two offences against a ten year old boy in 1973 and 1974, namely indecent assault and buggery.
2. This is a case to which Part 1 of the Extradition Act 2003 applies. One of the bars to extradition under section 11(1)(c) is the passage of time. The sole issue in this appeal relates to the passage of time.
3. Section 14 of the Extradition Act 2003 provides:

"A person's extradition to a category 1 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:

(a) committed the extradition offence (where he is accused of its commission) [that is this case],

or

(b) would become unlawfully at large (where he is alleged to have been convicted of it)."

4. The burden of proof is on the appellant. The root authority on passage of time is the case of Kakis v The Government of the Republic of Cyprus [1978] 1 WLR 779 in which Lord Diplock said:

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused and 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."

Although Kakis was a case under the old extradition law it is still regarded as applicable to the 2003 Act and there have been a number of authorities since then.

5. The focus in this case is on "oppressive" rather than "unjust". The Republic of Ireland courts are as well equipped as those in this country to deal with issues of the fairness of trial in the context of long delay such as the delay in the present case. Oppression means hardship greater than that inevitably inherent in extradition: see, for example, Norris v United States of America [2007] EWHC 71.
6. The mere fact of delay is unlikely in the vast majority of cases to justify a finding of oppression or injustice. The defendant must show something more: see, for example, Kila v The Governor of HM Brixton and The Government of Sweden [2004] EWHC 2924.
7. The gravity of the offence or offences in respect of which extradition is sought can be a relevant factor in weighing up the circumstances and considering the question of oppression. It is pointed out by Miss Mannion for the respondent that, although these offences are alleged to have occurred a very long time ago, they are, nevertheless, of very considerable gravity and there is a plain public importance in not leaving unresolved historic issues of child abuse if they can be justly considered and dealt with.
8. The district judge found:

"I have considered the evidence of Mr Cleere very carefully as well as the submissions so ably made on his behalf but I am entirely satisfied that this is not a case whereby it would be oppressive to order his return to Ireland to face his trial and, accordingly I do so order that Mr Cleere is to be extradited to Ireland to stand trial in relation to the charges of buggery and indecent assault previously referred to."

9. It is important that the point should be made that the district judge heard the evidence, in particular the evidence of the appellant, and was well able to weigh up the importance and significance to be attached to it and that this court should not lightly interfere unless there is a real indication that he has gone wrong.
10. These allegations were not made until 3 April 2007 and for my part I do not think that anything turns on the limited passage of time between 3 April and the extradition request.
11. The argument advanced by Mr Watkins for the appellant is essentially this. That it will be a very great hardship on the appellant if he is extradited to Ireland because he has no support network in Ireland, he is a stranger in Ireland, everything to do with his well-being is in this country and it is a very long time, namely some 35 years, since these offences are alleged to have been committed.
12. Unfortunately the appellant has a conviction as recently as August of 2004 for which he received a prison sentence of two years and an extended licence period. He breached the licence and that penalty only ran out during the course of last year. But, submits Mr Watkins, there is a real indication that the appellant has now put his past behind him and has settled down to lead a more promising life.
13. For my part I am unable to accept that this is a case where it is even arguable that the threshold of oppression has been crossed. As has been pointed out, there is inevitably a hardship and difficulty for anyone who is extradited to a country in which they have not lived in the recent past. There will be hardship for the appellant in this case, but for my part I am unpersuaded that the district judge's analysis having heard the appellant's evidence is erroneous in any way. The delay in this case is neither the fault of the appellant nor of the Irish authorities. It is in one sense, as it were, neutral, but it is not a delay which is causative of any oppression to the appellant. Accordingly, I would dismiss this appeal.
14. MR JUSTICE CRANSTON: I agree.
15. MISS MANNION: My Lord, only one matter.
16. LORD JUSTICE SCOTT BAKER: Yes.
17. MISS MANNION: You refer to the allegation having been made on 3 April of this year. In fact it was made on 3 April 2007.
18. LORD JUSTICE SCOTT BAKER: I meant 2007. I misread my notes. Thank you.
19. MISS MANNION: I am grateful. I have no other application.
20. LORD JUSTICE SCOTT BAKER: Thank you.
21. MR WATKINS: My Lord, for my part I understand I am supposed to request an order for legal aid assessment. Can I ask for that?
22. LORD JUSTICE SCOTT BAKER: So you can have the ordinary public funding assessment?
23. MR WATKINS: Yes.
24. LORD JUSTICE SCOTT BAKER: Yes, very well.
25. MR WATKINS: I am grateful.
26. LORD JUSTICE SCOTT BAKER: Thank you.