Neutral Citation Number: [2009] EWHC 880 (Admin)

CO/12382/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 26th March 2009
 
B e f o r e:

LORD JUSTICE RICHARDS 

MR JUSTICE TEARE 
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Between: 
HAYNES 
Claimant

v 

COURT OF MAGISTRATES, MALTA 
Defendant 
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Mr M Butt (instructed by Hallinans) appeared on behalf of the Claimant
Miss G Lindfield (instructed by CPS Special Crime Division) appeared on behalf of the Defendant
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J U D G M E N T
1.	LORD JUSTICE RICHARDS:  This is an appeal against the decision of District Judge Tubbs, sitting at the City of Westminster Magistrates' Court on 22nd December 2008, to order the appellant's extradition to Malta pursuant to section 21 of the Extradition Act 2003, this being a case under Part 1 of that Act.  The appellant's extradition was sought originally under a European Arrest Warrant issued in February 2007, but the resulting order for extradition was quashed by the Divisional Court, presided over by me, in October 2007 (see [2007] EWHC 2651 (Admin)).  A new warrant was issued on 25th June 2008 leading to the further order for extradition now under challenge.  
2.	The grounds on which extradition is resisted in this appeal are abuse of process and passage of time.  An attempt by Mr Butt to introduce this morning an additional ground of appeal, based upon a contention that the new warrant was defective for failure to refer to the original warrant, was refused by us.  The point could have been, but was not, taken before the District Judge and is not a point that, in our judgment, the appellant ought to be allowed to take for the first time at the hearing of the appeal before this court without even any prior notice to the court.
3.	The appellant is a 40‑year old British citizen.  The facts lying behind the order for extradition are summarised as follows in the District Judge's decision: 
"Mr Haynes visited Malta over a number of years and in 1999 returned there to live and run a business.  It is alleged that on the evening of 10th May 2003, Mr Haynes was the driver of a vehicle which collided with and overtook a car being driven by a man called Joseph Attard.  Mr Attard was accompanied in his vehicle by his wife, Maryanne Attard, and a friend David Shephard.  Mr Haynes stopped his vehicle in front of Mr Attard's vehicle.  All four people got out of their respective vehicles.  It is alleged that Mr Haynes physically attacked Joseph and Maryanne Attard and David Shephard by punching and kicking them.  As a result David Shephard suffered a contusion of the brain and a fracture of the eighth rib close to the spleen which resulted in internal bleeding.  Joseph Attard received facial injuries comprising bruising on the forehead and a 1 cm laceration over his left eyebrow which required stitching.  Maryanne Attard sustained bruising to her forehead.  
Mr Haynes was arrested and trial proceedings were commenced in May 2003.  Mr Haynes was present and legally represented throughout the trial proceedings.  Initially he was remanded in custody for about three months.  At one of the court hearings in July 2003 he was granted bail on conditions, one of which was the surrender of his passport.  The prosecution case was substantially completed when, in April 2006 and prior to the defence case commencing, Mr Haynes chartered a yacht and absconded from Malta in breach of his bail and abandoning his passport.  He made his way through Italy to France where he obtained an emergency passport from the British Embassy in Paris and came to the UK." 
4.	The original warrant was quashed because it was not in a sufficiently clear and particularised form to meet the requirements laid down by section 2 of the Act.  I described it in my judgment as "a terrible muddle".  One of the problems was a confusion on the face of the warrant as to the number and nature of offences of bodily harm that were covered, in circumstances where an offence of grievous bodily harm was an extradition offence, whereas an offence of slight bodily harm was not.  It was clear that the appellant's return was sought in respect of at least one offence of grievous bodily harm in relation to the attack on Mr Shephard, but it was not clear whether there were separate counts of grievous bodily harm or only slight bodily harm in relation to the attacks on Mr and Mrs Attard, or how many counts of bodily harm there were in total, or what the maximum sentence of 9 years in the warrant related to.  A letter from the Maltese Attorney General's office (to which I will need to refer further in a moment) asserted that the offences for which return was requested were three counts of grievous bodily harm, but this did not tie in satisfactorily with the warrant itself or resolve the court's concerns about the validity of the warrant (see, in particular, paragraphs 22 to 25 of my previous judgment).
5.	The new warrant indicated that the appellant's extradition was sought in respect of three counts of grievous bodily harm, and this was the position first adopted by counsel for the respondent authority in seeking to uphold the warrant.  But an expert report obtained on the appellant's behalf concluded that the alleged assault on Mrs Attard, at least, was incapable of amounting to an offence of grievous bodily harm under Maltese law.  Service of that report resulted in an adjournment and further enquiry of the respondent authority.  That produced a response to the effect that a mistake had been made and that there were only two counts of grievous bodily harm, in relation to the assaults on Mr Shephard and Mr Attard.  The assault on Mrs Attard was in fact charged as an offence of slight bodily harm.  Accordingly, extradition was sought thereafter only in respect of the two offences of grievous bodily harm.   
Abuse of Process 
6.	To sustain an allegation of abuse of process in relation to proceedings under the Act, it is necessary, first, to identify with specificity what is alleged to constitute the abuse; secondly, to satisfy the court that the matter complained of is capable to amounting to an abuse; and thirdly, to satisfy the court that there are reasonable grounds for believing that such conduct has occurred.  If the matter gets that far, then the court should require the judicial authority to provide an explanation.  The court should not order extradition unless satisfied that no such abuse has taken place (see R (on the application of The Government of the United States of America) v Bow Street Magistrates' Court and Tollman [2007] 1 WLR 1157, in particular at paragraphs 84 to 89).
7.	The abuse of process argument in the present case is founded on the stance previously adopted by the respondent authority in relation to the offences for which extradition was sought and the explanation given for the change of stance.  It is submitted, in short, that there are reasonable grounds for believing that the respondent has provided deliberately misleading information in relation to the charges on which the appellant has been tried in Malta and has done so with a view to securing extradition.  It is common ground that if a judicial authority were to provide misleading information with such intention, this would amount to an abuse.  But the submission for the respondent is, in summary, that the error that occurred in this case was nothing more than a mistake and cannot amount to an abuse.
8.	In order to examine the issue, it is necessary to look first in greater detail at the relevant facts.  In the extradition proceedings pursuant to the original warrant, the District Judge formed a provisional view that the warrant alleged only one extradition offence.  That led to further information being sought from the respondent in order to clarify what offences the appellant was accused of and what the maximum sentence was for each offence.
9.	In a response from the Maltese Attorney General's Office, Dr Donatella Dimech, Senior Counsel for the Republic, said that she had viewed the court file, she had that morning consulted the presiding Magistrate, Dr Padovani, and she was in a position to state that the offences for which the appellant's return was requested were three count of grievous bodily harm.  She said that in relation to the Attards the appellant was also accused of causing different injuries of a slight nature.  The letter was undated but was served in June 2007.  Counsel for the authority placed reliance upon that letter at subsequent hearings before the District Judge and the Divisional Court, seeking to persuade the court to accept the reliability of the statements in it.  The letter was relied on by the District Judge in finding the warrant to be valid and ordering extradition.  It was also taken into account by the Divisional Court (and I have already made mention of it), but it was not considered sufficient to overcome the court's concerns about the warrant itself.
10.	Following the quashing of the original order for extradition, the second warrant was issued by Dr Padovani, repeating the assertion that the appellant was sought for three offences of grievous bodily harm.  In the ensuing extradition proceedings, the District Judge was invited by counsel for the authority to accept that at face value.  Then came the expert report for the appellant, to which I have already referred, and the subsequent change of position by the authority.  
11.	A letter from Dr Padovani dated 11th November 2008 sets out the terms of the original charges against the appellant and the terms of the charges as amended in May 2003.  As there set out, they show that there was at all times a charge of grievous bodily harm in relation to the attack on Mr Shephard.  However, the attack on Mr and Mrs Attard was originally charged as an offence of slight bodily harm in each case, but this was amended in May 2003 to a charge of grievous bodily harm as regards Mr Attard and of slight bodily harm as regards Mrs Attard.
12.	A letter from Dr Dimech dated 12th November 2008 explains that the error in the warrant was a mistake due to the manner in which the charge was amended in May 2003.  The letter continues: 
"As the charge sheet indicates and as attested by the records of the sitting of the 16th May 2003, the charges proffered against Haynes were amended.  Under Maltese law, when an amendment is made on the face of the records, the amended text (be it a correction, a substitution or a deletion of words/phrases) must still remain visible.  The charge sheet indicates an 'ø' which denotes that the charge was amended by the words that follow.  It has always been understood and thus reproduced in the warrant that the words which were added were 'grievous bodily and of a slight nature' in substitution of the word 'slight'.  Since the sentence makes no reference to another insertion (denoted by another similar symbol) it appeared that the sentence added was meant to refer to both.  This understanding was further strengthened by the fact that at the end of the charge the articles of the penal code referring to grievous bodily harm (214, 216) were listed and I quote 'in breach of articles 214, 216 and 221' referring to the injuries committed on both Mr and Mrs Attard!! 
Nowhere in the charge sheet does it appear that the offence of grievous bodily harm committed could have been attributed solely in respect of Mr Attard and not in respect of both.  Indeed, had the amendment been drafted differently this misunderstanding would never have arisen.  Nor would I have so vehemently argued in defence of this fact.  Should it have meant to indicate that the words 'and of slight nature' were meant to be introduced immediately before the words 'Maryanne Attard', an indication similar to what had just been done with respect to Joseph Attard ('Ø') was, in my humble opinion, undoubtedly in order.  In fact from a grammatical point of view it appears inconceivable that, taking in consideration how it has now transpired that it was meant to read, with the reproduced amendment the wording is 'and . . . of slight nature on Maryanne Attard'; what now seems to be the word 'on' was hitherto perceived to be close inverts ("). 
The charge sheet which has been exhibited in no unclear manner bears witness that this was an honest mistake attributed by the manner in which the charge sheet was amended and had it not been for the request for clarification by your authorities from the Court of Magistrates, this fact would not have become known to me although admittedly it was known to the relevant court who has possession of the court records since 2003 and thus, from the evidence tendered (also in the UK authorities' possession!) could also verify from the testimonies and documentation including medical certificates exhibited in the course of the said proceedings, the reading which the amendments were purported to convey.  I can attest that I only learnt of this mistake upon reading the Magistrate Padovani's communication of the 11th November 2008." 
That explanation is, in part, a little difficult to understand, but the difficulty is increased by the fact that the court does not have before it the charge sheet either in its original form or in its amended form.  I recall seeing those documents on the occasion of the previous hearing before the Divisional Court, but neither side has thought fit to produce them for today's hearing and Mr Butt has made clear that he does not rely on those documents in his submissions.
13.	The submissions he makes, and makes very forcefully, are that there are reasonable grounds for believing that there has been deliberate misleading by the judicial authority and that the burden is then on that authority to satisfy the court that there is no abuse of process.  He submits in particular that the explanation given by Dr Dimech is insufficient and unconvincing, and that the court cannot be satisfied by reference to it that this was simply a mistake.  
14.	He makes three points in particular.  First, Dr Dimech says that she only learned of the mistake when reading Dr Padovani's communication of 11th November 2008, yet in her original letter of June 2007 she said she had consulted with Dr Padovani, and that gave the original letter greater authority.  This contradiction is not explained.  Secondly, the second warrant was issued by Dr Padovani herself and the erroneous reference in it to three counts of grievous bodily harm cannot be explained by a mistake on the part of Dr Dimech or by her being unaware of the mistake until she read Dr Padovani's communication of 11th November 2008.  Thirdly, there has been close communication throughout between the CPS and the authorities in Malta, and it is unreasonable in the circumstances to assume, having regard to the case advanced by the appellant at all times and to the terms of the previous judgment of the Divisional Court, that if a mistake had been made it would not have been discovered earlier, or to assume that Senior Counsel for the Republic could have been so incompetent as to make such a mistake and to fail to discover it if it had been made.
15.	The District Judge gave reasons for rejecting the submissions as to abuse of process that were made to her.  She said: 
"It has always been conceded that Mr Haynes was properly charged with grievous harm of David Shephard and that that was an extradition offence.  Secure in that knowledge there would be no logical reason for the Maltese Authorities to act in breach of their legal and international duties and obligations to deliberately lie and mislead the requested court in respect of the less serious alleged assaults on the Attards.  Having read Dr Dimech's reasons as to how the misreading of the amended charge sheet arose and having seen the photocopy of that charge sheet I entirely accept that it was a genuine and unfortunate error and that there has been no deliberate attempt by any Maltese Authority to mislead this court in order to obtain Mr Haynes's extradition to face a charge which the authorities knew not to be an extradition offence." 
16.	Mr Butt submits that that reasoning is mistaken.  It was clear that the appellant could not be returned to Malta unless the court was satisfied that he faced three identical offences of grievous bodily harm.  If any of the three assaults was not an extradition offence, the court could not be satisfied that the particulars of sentence given in the original warrant met the statutory requirement, since only one maximum sentence of nine years was specified in respect of all three assaults and the failure of the warrant to state with sufficient clarity the maximum sentence was one of the reasons why the Divisional Court quashed the order for extradition. 
17.	In her written submissions on behalf of the respondent authority, Miss Lindfield contends that the reasoning of the District Judge is beyond fault.  She says that the error about the nature of the charges is unfortunate, but it is clear that this was a mistake and that nothing more sinister has occurred.  The expert report did not compel a change of position but was simply a catalyst for uncovering the mistake.  Queries had always been passed to the Attorney General's Office which had answered in a way which was believed at the time to be accurate but is now accepted not to have been.  The amended charge sheet is itself a confusing document, but the relevant amendment was made in May 2003 before the appellant absconded, and the true position must have been known to him.  It is submitted that this court should start from the premise that the judicial authority is acting in good faith ‑‑ a well‑established principle ‑‑ and should conclude in the circumstances, as did the District Judge, that there has been no intention on the part of the respondent to mislead the court.
18.	For my part, I have no difficulty in accepting Miss Lindfield's submissions.  In my judgment, this whole saga smacks plainly of carelessness and mistake rather than any deliberate attempt to mislead the English court.  There is a presumption of good faith in extradition proceedings.  The court is entitled to assume that a judicial authority will act in good faith and the court should be slow to find that there has been bad faith.  I am satisfied that there is nothing in the material before the court to provide reasonable grounds for believing that the judicial authority in this case acted, or may have acted, in bad faith and in such a way as deliberately to mislead the English court.  
19.	The District Judge was right to focus on the fact that there has throughout been at least one offence (the alleged assault on Mr Shephard) on which extradition could properly be based.  The warrants and other information provided were consistent and correct on that point.  The judicial authority did not need to mislead in order to secure the appellant's extradition for that offence.  There was an entirely sound basis for it.  Indeed, there was also an entirely sound basis for extradition in respect of the alleged assault on Mr Attard.  The suggestion that false information as to the existence of three counts of grievous bodily harm may have been provided by Dr Dimech in order to make good or disguise a defect in the original warrant with regard to the particulars of maximum sentence is to my mind far‑fetched and unsustainable.  
20.	It is true that Dr Dimech said in the first place that she had consulted Dr Padovani, and it was Dr Padovani who issued the second warrant.  The error must therefore be attributed to Dr Padovani as well as to Dr Dimech.  But it is understandable how such an error could have occurred through the taking of insufficient care to examine the amended charge sheet and to ensure the accuracy of the warrant.  Of course, such a mistake should not have been made and the subsequent enquiries should have caused the true position to emerge sooner than it did, but in my judgment the explanation of the mistake is nonetheless entirely plausible.  By contrast, I regard the suggestion of deliberate misinformation as wholly implausible.  I am therefore of the opinion that the District Judge was correct to dismiss the appellant's contentions as to abuse of process.  On the material available, I am satisfied that there are no reasonable grounds for believing that what happened was done in bad faith or constituted an abuse of process.  No further explanation is therefore required.  The first ground of appeal fails.
21.	I turn to the second ground of appeal, passage of time. 
Passage of Time 
22.	By section 14 of the 2003 Act 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 committed the offence or since he is alleged to have been unlawfully at large, as the case may be.
23.	The appellant relies upon Lord Diplock's oft cited dictum in Kakis v Government of Cyprus [1978] 1 WLR 779 at 782: 
"'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." 
24.	There are three strands to the argument advanced by Mr Butt.  First, reliance is placed on what happened between the appellant's arrest in Malta on 10th May 2003 and the time when he absconded from Malta in July 2005.  The first hearing of the case against him was on 12th May 2003, and it is said that the case was then heard over a number of days with adjournments, amounting in total to 20 different occasions.  The final court hearing before he left the jurisdiction was listed for 17th July 2005.  By that date, the prosecution case had still not closed.  The applicant complained at the time to various bodies about the delay.  It is now submitted that given the dilatory nature of the previous proceedings in Malta, it would be unjust and oppressive to return him there where he might be expected to have to endure similar treatment again before the courts.
25.	Secondly, reliance is placed on delay from the date of issue of the first warrant to the current date.  It is submitted to be the fault of the judicial authority that two years after the first warrant was issued, these proceedings have still not been concluded.  The first warrant was defective.  The authority proceeded on a false basis until November 2008 as to the offences for which extradition was being sought.
26.	Thirdly, as an additional point in relation to the more recent period of delay, particularly oppression is said to have been caused by the delay in issuing the second warrant following the decision of the Divisional Court; a delay from October 2007 to June 2008.  No reason has been given why the authority waited so long.  It should have acted quickly.  The appellant was lulled into a false sense of security by the delay in issuing the second warrant.  He described, in his evidence before the District Judge, the stressful effect of the proceedings upon him and that after the successful appeal in October 2007 he soon thought the proceedings were behind him and he was able to put behind him the stress they had caused.  For the proposition that culpable delay associated with a false sense of security can be relevant to the issue of oppression, reliance is placed on La Torre v Italy [2007] EWHC 1370, paragraphs 36 to 37.
27.	Mr Butt submits that the combined effect of those matters is such that to order the appellant's return would have an oppressive effect upon him.
28.	The District Judge did not accept the appellant's case on passage of time.  She found that the appellant was not a witness of truth.  She rejected his account of why he left Malta.  She said that the trial began promptly and there was no evidence before her that there were inappropriate adjournments or any failure to prosecute the case at any stage.  When the first order for extradition was quashed, there was nothing in the Divisional Court's judgment to suggest that the Maltese authorities would not pursue the matter further, and the appellant would have been advised that there was nothing to prevent him from correcting the faults in the original warrant and issuing another warrant.  There was no reason for him to develop any false sense of security, nor would he be entitled to presume there would be no further proceedings in the period between then and the issue of the second warrant.  She did not find the Maltese authorities to be culpable for the passage of time relied on, nor did she find any basis for concluding that it would be oppressive to return the appellant to continue to stand trial, beyond the disruption inevitable to any individual leaving family and employment to face trial.  That inevitable disruption was not linked causally to the passage of time.  She therefore found that the appellant's extradition was not barred by the passage of time.
29.	For the judicial authority, Miss Lindfield submits that the District Judge was correct so to find for the reasons she gave.  She also refers to the case of Von Der Pahlen v Leoben High Court, Austria [2009] EWHC 383 (Admin), which was also a case concerning the issue of a second warrant after the Divisional Court had discharged the appellant in respect of the first warrant.  There, too, arguments about a false sense of security were run, but without success.  I think it unnecessary to carry out any detailed analysis of the case.  I doubt whether it helps the respondent authority here because it lays down no relevant principle but is another case on its particular facts.  I do not need to take the matter any further for present purposes.
30.	Miss Lindfield submits that the appellant was responsible for the delay that has ensued as a result of his leaving Malta.  Had he not absconded, the matter would have been concluded many years ago.  The District Judge was correct to find that the Maltese authorities were not culpable for the delay.  She further submits that it would not be unjust, given the passage of time, for the appellant to be surrendered.  The majority of the evidence in the Malta proceedings has been heard and he has a full written record of the oral evidence.  
31.	In relation to oppression, it is submitted that, as the District Judge found, there is nothing in the appellant's personal circumstances to justify a finding of oppression.  The disruption he will suffer is no greater than that to be expected in the ordinary course, and there is no causal link between it and the passage of time.
32.	In my judgment, the District Judge was right to find that the appellant's extradition was not barred by the passage of time, and I have very limited comment to make on the reasons that she gave for that conclusion.  The proceedings in Malta, up to the time the appellant absconded, were perhaps more extended and fragmented than one might expect in this jurisdiction, but there was nothing about them to give rise to injustice or oppression or to make it unjust or oppressive for the appellant to be returned to Malta for the remainder of his trial.  
33.	I accept that some delay was caused by the errors in the original warrant and, for reasons already discussed, the mistake concerning the nature of the counts the appellant was facing could have been avoided if greater care had been taken.  I also consider that the judicial authority could and should have moved more quickly to issue the second warrant following the successful appeal to the Divisional Court in respect of the original warrant.  In those respects, I consider that a degree of culpability for the delay does attach to the judicial authority.  That is the one point on which I respectfully differ from the District Judge.  I do not, however, regard it as a point of any real significance in the context of the case overall.  I am satisfied that the appellant had no reasonable basis for developing a sense of security following the Divisional Court's judgment, even after a number of months had elapsed.  He must have been advised of the possibility of a fresh warrant being issued and he had no reason to think, even by June 2008, that the risk had passed.  
34.	In any event, looking at the passage of time as a whole, and taking into account all the circumstances of the case, the District Judge was, in my opinion, entirely justified in concluding that the appellant's return to face the rest of his trial would be neither unjust nor oppressive and that his extradition was not barred by the passage of time.  Accordingly, I would find against the appellant on both the grounds advanced and would dismiss the appeal. 
35.	MR JUSTICE TEARE:  I agree.
36.	LORD JUSTICE RICHARDS:  Is there anything further that needs to be said?
37.	MR BUTT:  My Lord, I accept that I cannot argue the point on section 2(4)(b) in light of the authority of Louca.  That was the case at the time of the judgment in the Magistrates' Court.  However, leave has recently been granted in Louca and questions have been certified in very similar cases.  I wonder whether your Lordships would consider certifying a question in similar terms in relation to this case.
38.	LORD JUSTICE RICHARDS:  It is not a point that arises out of our judgment because, for the reasons we have given, we declined to allow the matter to be advanced.
39.	MR BUTT:  Indeed, my Lord.  Can I request Legal Aid taxation? 
40.	LORD JUSTICE RICHARDS:  Of course.
41.	MR BUTT:  I am grateful.
42.	LORD JUSTICE RICHARDS:  Thank you both very much.