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 December 2009

Tuesday 15 December 2009

LORD JUSTICE MAURICE KAY: Mr Justice Lloyd Jones will give the first judgment.

MR JUSTICE LLOYD JONES:

1. This is an appeal by Mr Roy Wenting pursuant to section 26 of the Extradition Act 2003 against a decision of District Judge Riddle dated 13 October 2009 ordering his extradition to France. The extradition of Mr Wenting, a Dutch national, is sought by the French issuing judicial authority pursuant to a European Arrest Warrant issued on 4 August 2006 and certified on 8 July 2009.
2. France is a designated Category 1 territory pursuant to section 1 of the Extradition Act 2003. Accordingly, Part 1 of that Act applies, as modified by the provisions of the Extradition Act 2003 (Multiple Offences) Order 2003 and the Police and Justice Act 2006, schedule 13.
3. The appellant was provisionally arrested on his arrival in the United Kingdom at Gatwick Airport on 7 July 2009. On 8 July the European Arrest Warrant was certified and served on the appellant.

In a reserved judgment delivered on 13 October 2009 District Judge Riddle ordered his extradition to France. By this appeal the appellant challenges the order for his extradition on the ground that his extradition to France would be oppressive owing to the passage of time, as provided by section 14 of the 2003 Act. Accordingly, he seeks his discharge under section 27(5) of the Act.

The History

4. On 17 March 1989 the appellant, who was then aged 31, was arrested on entering France at Saint Aybert whilst travelling in a vehicle which contained 585 grams of cocaine. He was caught red-handed. He made full admissions of guilt. He was charged with two offences, importing prohibited drugs and being involved in the smuggling of prohibited drugs. He admitted both offences. Nevertheless, he was remanded in custody to await trial for a period which exceeded two years.
5. On 9 April 1991 he was released on bail by an examining judge. His brother, who also lived in the Netherlands, acted as surety. The order recorded that the appellant acknowledged having committed the offences and also explained that the appellant was not responsible for the length of time which had been taken by the investigations. The judge emphasised that the appellant would be required to comply with any summons of the court. So with the full consent of the French authorities the appellant returned to his home in the Netherlands, where he lived at his mother's address. He provided the French authorities with accurate details of that address, so that his whereabouts were fully known. Thereafter, the appellant lived openly in Holland. His mother remained at that address. He was therefore contactable at that address until the death of his mother, which occurred very recently during the course of these proceedings. He complied with his conditions of bail.
6. It is a curious feature of this case that, notwithstanding the grant of bail and notwithstanding the fact that it has not been suggested that there was any breach of bail, on 14 June 1991 the French authorities issued an International Arrest Warrant for the appellant. This was before any trial was scheduled to take place. Then by letter dated 19 February 1992, the French authorities summoned the appellant to attend his trial on 4 May 1992. The letter was sent to the address which had been provided by the appellant. The judicial authority has expressly accepted that the appellant did not receive this letter before 4 May 1992.
7. The appellant subsequently received a letter dated 23 May 1992 from the Public Prosecutor in Amsterdam, which stated:

"I am hereby sending you a summons from the French authorities with the translation.

Due to an incorrect address and the time it took to translate the document, you unfortunately receive this summons after the date of the hearing."

The enclosed document was the summons to attend the trial on 4 May 1992, which had already passed.

8. Notwithstanding his failure to attend on 4 May 1992, the appellant had been tried, convicted and sentenced to a term of five years' imprisonment.
9. In these proceedings the District Judge found that the appellant subsequently learned that the trial had proceeded in his absence and that he had been sentenced to five years' imprisonment. The evidence below of the appellant, which the District Judge stated he had no reason to doubt, was that he was not told to surrender himself and was not given details as to whom he should contact.
10. Shortly after the trial on 4 May 1992, the International Arrest Warrant, which was already in existence, was confirmed on 11 May. On 4 December 1992 the International Arrest Warrant was notified to the Public Prosecutor's Office. On 14 December 1992 the judgment became enforceable. On 29 December 1992 the arrest warrant was registered on the Schengen Information System.
11. The appellant maintains that no further communication was ever sent by the requesting authority to the appellant, despite its having his correct home address. Furthermore, he maintains that at no point was he told that he was required to surrender to the French authorities or how that should be effected. This evidence of the appellant before the District Judge is not challenged and it is not contradicted by any other evidence. No such summons was ever received. Moreover, the appellant maintains that he was told by the Probation Services in the Netherlands, with whom he was in contact following his release from pre-trial custody in France, and also by his Dutch lawyer, to wait to be summoned to serve the sentence. The District Judge recorded that evidence in his judgment, observing that no corroboration of that advice had been provided.
12. Years passed. On 4 August 2006 the French authorities issued a European Arrest warrant for the appellant. He was arrested on entering the United Kingdom at Gatwick Airport on 7 July 2009.
13. Section 14 of the 2003 Act (as amended) 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) or

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

14. Reference has been made to the fact that if the appellant were to return to France he would be entitled to a retrial, given that his first trial took place in his absence in circumstances where he had not been notified of the date of the trial. However, the appellant has always admitted the offences with which he has been charged. He does not seek to challenge the sentence imposed.
15. The appellant's case is limited to oppression resulting from the intervening passage of time. In support of that contention he relies on a number of matters: the fact that since 1992 he has lived a blameless and hard-working life; he has never since come to the attention of the police; he relies on the length of time which has passed; in that time he has built up his own business maintaining and servicing catering equipment, and he is also responsible for running a property business; his long-term partner with whom he lives in the Netherlands was diagnosed last year with lung cancer and her condition is deteriorating; she is unable to run the businesses on her own because of her illness; and the appellant stands to lose the businesses he has built up over a number of years.
16. The District Judge rejected the submission that the extradition of the appellant would be oppressive. He considered that the appellant had been in a position in which he had three choices: to accept the sentence and surrender himself to the French authorities; to appeal; or to do nothing and to hope to be troubled no further. The appellant had taken the last course. The correct course, in the District Judge's view, would clearly have been to contact the French authorities and arrange to surrender himself. The appellant may have hoped that nothing further would happen, but he must always have been aware that, potentially, he faced a prison sentence in France. The District Judge considered that nothing that the French authorities had done could have instilled in him a sense of false security. While expressing considerable sympathy for the appellant, in particular because it was not his fault that he had not attended the original trial and he had not deliberately fled the jurisdiction, the District Judge nevertheless concluded that when all the factors were balanced it would not be oppressive to extradite him.
17. On this appeal Miss Hill, who appears for the requesting authority, submits that the appellant is precluded from relying upon section 14 by reason of his actions since his conviction in 1992. Here she relies on Kakis v The Government of the Republic of Cyprus [1978] 1 WLR 779, and Gomes v Government of Trinidad and Tobago and Goodyer v Government of Trinidad v Tobago [2009] 1 WLR 1938. In a well-known passage in Kakis, having distinguished between the circumstances in which it would be unjust and those in which it would be oppressive to return a fugitive offender, Lord Diplock went on to distinguished between two categories of case. Of the first he said this at page 783A:

"Delay in the commencement or conduct of extradition proceedings which are 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. 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."

He then turned to the second category, of which he said at 783B:

"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."

18. Earlier this year in Gomes and in Goodyer the Appellate Committee returned to this question. The judgment is in the form of a report by Lord Brown in which all the members of the Appellate Committee concurred. He referred to the distinction drawn by Lord Diplock. He explained that the speech concerned two different situations. The first establishes that the accused cannot pray in aid what would not have happened but for the additional passage of time for which he is responsible. The second expressly postulates that the delay is not brought about by the acts of the accused himself. If it is, then the question of blameworthiness on the State's part simply does not arise. He emphasised the clear effect of the first of the two paragraphs of Lord Diplock's speech, which I have set out earlier in this judgment. He then said:

"26. .... This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer 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 circumstance which would similarly justify a sense of security on his part notwithstanding 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'.

....

29. .... The rule contained in Diplock para 1 should be strictly adhered to. As the rule itself recognises, of course, there may be 'most exceptional circumstances' in which, despite the accused's responsibility for the delay, the court will nevertheless find the section 82 bar established. ...."

19. While accepting that the appellant did not flee from France, Miss Hill on behalf of the requesting authority submits that in 1992 he became aware that he had been convicted and sentenced in relation to these proceedings. He made no efforts to contact the French authorities and resolve the matter. Nor did he contact his French lawyers and instruct them to liaise with the court on his behalf. On this basis she submits that he has deliberately evaded justice and it is entirely appropriate and fair that he should be precluded from relying on the passage of time.
20. The appellant left France with the express permission of the French authorities. He was never expressly called upon to return to France to serve his sentence. It is a matter of concern that there is something of an evidential vacuum at the heart of this case. The requesting authority has not been able to produce any evidence to support the view that the appellant was ever summoned to return to France, or that as a result he was in breach of his conditions of bail. On the contrary the only evidence is from the appellant that he has not been required to surrender, and that evidence was accepted by the District Judge. Nor is the requesting authority able to establish that the appellant was ever aware of the warrant issued for his arrest. The appellant maintains that he was not.
21. To my mind these matters serve to distinguish the present case from the situation considered in the first limb of Kakis and in Gomes. In the very unusual circumstances of this case it cannot be said that the appellant has fled the country, concealed his whereabouts, or evaded arrest. The requesting authority has not been able to demonstrate that the appellant is responsible for the passage of time which has occurred. It is therefore necessary to address this case as falling within the second limb identified by Lord Diplock.
22. Turning to the question of oppression, I bear in mind the observation of Moses LJ in USA v Tollman and Tollman [2008] EWHC 184 (Admin), where he said this:

"49. .... There is a danger in applying the jurisprudence of the court as if it had statutory force. It is to the words of the statute that the courts must look in considering whether there is a statutory bar to extradition. That principle was clearly expressed by Laws LJ in La Torre v the Republic of Italy [2007] EWHC 1370 Admin (at paragraph 37). He emphasised the danger of courts straying too far from the simple words of the statute, summarised the relevant jurisprudence in a few sentences and concluded:

'An overall judgment on the merits is required, unshackled by rules with too sharp edges.'"

23. In this case the appellant knew that there was an unresolved matter against him. However, there are other factors in this case which lead me to the firm conclusion that it would be oppressive to extradite the appellant at this late date:

(1) The offences of which the appellant was convicted were serious offences. Although he admitted them immediately, nevertheless he was kept in custody for over two years before being released on bail, still without having been tried or sentenced.

(2) He did not deliberately flee the jurisdiction. He returned to his home in the Netherlands with the express permission of the French authorities. He has resided there throughout. At all times the French authorities have been aware of his address.

(3) He was not notified of his trial, which proceeded in his absence.

(4) Thereafter, although he was informed of the outcome of the trial and the sentence imposed, he was never notified that he was required to return to France to serve his sentence.

(5) There is evidence that he was advised by the Probation Services in the Netherlands and by his Dutch lawyers that he should wait to be summoned by the French authorities to serve his sentence. That never happened.

(6) The appellant was never made aware that there was a warrant issued for his arrest.

(7) Over twenty years have elapsed since the commission of these offences. On any view that is a very considerable period of time. To my mind, the length of time in itself is an important consideration. In addition, I note that it was three years after the introduction of the new regime of the European Arrest Warrant before the requesting authority made any attempt to secure his extradition under that scheme. I note, in that regard, that the Netherlands, where the appellant is resident, participates in that scheme. Here we are concerned primarily with the effect of delay, not with its cause, but I note that no explanation has ever been provided for any stage of the delay which has occurred in this case. So far as the length of time is concerned, I note the following observation of Rose LJ in Sagman v Government of Turkey [2001] EWHC 474 (Admin),

"27. .... The length of delay in this case is not only enormous in itself, in that fifteen years or thereabouts has elapsed since the criminal conduct is said to have taken place, but there have been many, many years during which the Turkish government has made no significant attempt to obtain the applicant's extradition."

In that case the requesting authority had done far more to try to secure the fugitive's return than has happened in the present case. Moreover, the period of time which had passed in that case was considerably shorter than that in the present case.

(8) The appellant has led a blameless, law-abiding and useful life since his return to the Netherlands. He has been involved in charitable and youth work.

(9) His partner was diagnosed in 2008 and is suffering from lung cancer. Her condition is deteriorating. She has no other family or close support in the Netherlands.

(10) The appellant has built up over the years two successful businesses. If he were now extradited to France, his partner would be unable to run the businesses on her own, in particular because of her medical condition.

24. For these reasons I have come to the firm conclusion that it would be oppressive to extradite the appellant to France. I would hold that the District Judge should have found that it would be oppressive to extradite the appellant to France.

LORD JUSTICE MAURICE KAY:

25. I agree that the legal principles are as propounded by my Lord. In her skeleton argument Miss Hill observed that extradition must be determined on a case-by-case basis. In her oral submissions she added that this is a case with unique facts. I agree with her about those points.
26. Applying the principles to these unusual facts, I entirely agree that for the reasons given by my Lord, this appeal should be allowed.