ON APPEAL FROM THE CITY OF WESTMINSTER MAGISTRATES COURT
District Judge Riddle
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE COULSON
| WOLFGANG FRANK HERTEL
|- and -
|THE GOVERNMENT OF CANADA
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr Ben Brandon and Mr Richard Vallat (instructed by CPS) for the 1st Respondent
Ms Joanne Clement (instructed by Treasury Solicitors) for the 2nd Repondent
Hearing dates: 19 May & 30 July 2010
Crown Copyright ©
Lord Justice Laws :
THE EXTRADITION PROCESS
THE DELAY POINT
"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 change 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 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 cases are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust or oppressive that he should be required to accept them.
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. So where the application for discharge under section 8(3) is based upon the 'passage of time' under paragraph (b) and not on absence of good faith under paragraph (c), 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. Your Lordships have no occasion to do so in the instant case."
For convenience their Lordships in Gomes proceeded to refer to these paragraphs as Diplock para 1 and Diplock para 2. Then at paragraph 26 and 27, after referring to a judgment of mine in La Torre v Italy  EWHC Admin 137, their Lordships' opinion states:
"26. True it is that Laws LJ then added: 'An overall judgment on the merits is required, unshackled by rules with too sharp edges.' If, however, this was intended to dilute the clear effect of Diplock para 1, we cannot agree with it. This is an area of the law where a substantial measure of clarity and certainly 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'.
"27. There are sound reasons for such an approach. Foremost amongst them is to minimise the incentive on the accused to flee. There is always the possibility, often a strong possibility, that the requesting state, for want of resources or whatever other reason, may be dilatory in seeking a fugitive's return. If it were then open to the fugitive to pray in aid such events as occurred during the ensuing years – for example the disappearance of witnesses or the establishment of close-knit relationships – it would tend rather to encourage flight than, as must be the policy of the law, discourage it. Secondly, as was pointed out in Diplock para 2, deciding whether 'mere inaction' on the part of the requesting state 'was blameworthy or otherwise' could be 'an invidious task'. And undoubtedly it creates practical problems. Generally it will be clear one way or the other whether the accused has deliberately fled the county and in any event, as was held in Krzyzowski, 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 reasonable doubt (just as the issue whether a defendant has deliberately absented himself from trial in an inquiry under section 85(3) of the Act). But it will often be by no means clear whether the passage of time in requesting the accused's extradition has involved fault on the part of the requesting state and certainly the exploration of such a question may not only be invidious (involving an exploration of the state's resources, practices and so forth) but also expensive and time consuming. It is one thing to say – as Lord Edmund-Davies said in Kakis and later Woolf LJ said in Osman (No 4) and Laws LJ in La Torre – that in borderline cases, where the accused himself is not to blame, culpable delay by the requesting state can tip the balance; quite another to say that it can be relevant to and needs to be explored even in cases where the accused is to blame."
Then at paragraph 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. The decision of the Divisional Court (Hobhouse LJ and Moses J) in Re: Davies CA 443/96, (unreported, 30 July 1997), discharging a defendant who had become unfit to plead notwithstanding his responsibility for the relevant lapse of time, may well be one such case. In the great majority of cases where the accused has sought to escape justice, however, he will be unable to rely upon the risk of prejudice to his trial or a change in his circumstances, brought about by the passing year, to defeat his extradition."
At paragraph 32 in Gomes the House referred to Woodcock  1WLR 1979 in which in paragraph 29 Simon Brown LJ as he then was said:
"There can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive."
"Wherever law is practised, justice is reproached by delay. There is a real danger that those of us who have spent a life time in the law become inured to delay. So too laymen associate the law with delay, and their expectation of it may harden them to the fact of it. So the years trip off the tongue, and so we reach a position where a citizen may be surrendered to face a trial in another state for matters at least 9 years stale without examination of the reasons for the length of the delay or consequences of it… So it is we are left with a delay period… of 9 to nearly 12 years, with yet some time to pass before trial. It is salutary to look back over one's own life to evaluate the real length of that period, so as not to regard it just as a figure on a piece of paper."
THE DISTRICT JUDGE'S VIEW
"I am satisfied that Dr Hertel is and has been a deliberate fugitive from justice in Canada throughout the relevant period. It makes no difference that he was summonsed rather than bailed. I have not thought it necessary or appropriate to seek an explanation as to what steps were taken to extradite this defendant from Germany: it may or may not be that Germany will extradite its own citizens to Canada. It is clear the defendant was well aware his attendance was required in Canada."
THE APPELLANT'S ARGUMENT
THE TAX POINT
"(1) This section applies in relation to conduct of a person if—
(a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct...
(2) The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied—
(a) the conduct occurs in the category 2 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;
(c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law)".
"It is possible to define the crimes for which extradition is to be sought and ordered (extradition crimes) in terms either of conduct or of the elements of the foreign offence. That is the fundamental choice. The court can be required to make the comparison and to look for the necessary correspondence either between the offence abroad (for which the accused's extradition is sought) and an offence here, or between the conduct alleged against the accused abroad and an offence here. For convenience these may be called respectively the offence test and the conduct test. It need hardly be pointed out that if the offence test is adopted the requested state will invariably have to examine the legal ingredients of the foreign offence to ensure that there is no mismatch between it and the supposedly corresponding domestic offence. If, however, the conduct test is adopted, it will be necessary to decide, as a subsidiary question, where, within the documents emanating from the requesting state, the description of the relevant conduct is to be found."
After a full review of authority the House concluded (paragraph 87) that "[t]he language of section 137 is... consistent with either test", but that (paragraph 91) "the wider construction [viz. the conduct test] should prevail". Clearly the application of this approach requires a notional transposition of the conduct alleged from the requesting to the requested State. In explaining how this is to be effected, their Lordships at paragraph 97 found assistance in the judgment of Duff J in the Canadian case of Re Collins (No 3) (1905) 10 CCC 80:
"[I]f you are to conceive the accused as pursuing the conduct in question in this country, then along with him you are to transplant his environment; and that environment must, I apprehend, include, so far as relevant, the local institutions of the demanding country, the laws effecting the legal powers and rights, and fixing the legal character of the acts of the persons concerned, always excepting, of course, the law supplying the definition of the crime which is charged." (p. 103)
"asking whether there would have been a UK tax liability is the wrong approach. The correct approach is to treat the tax liability as, essentially, part of the background, a fact that needs to be proved to establish liability, but not part of the criminal conduct."
I was at first mystified by this. At length however it became clear that Mr Vallat was merely emphasising what should no doubt be obvious, namely that the appellant is not of course to be extradited for failing to pay tax due, but only if the conduct relied on by the respondent would establish an extradition crime if it took place here. In particular, as I have stated, the respondent must prove that the conduct, if it happened here, would constitute the offence under English law of cheating the Revenue. A failure or omission to pay tax due (whether on the part of the proposed extraditee or some other party) is indeed "part of the background, a fact that needs to be proved to establish liability", since if the conduct relied on does not disclose such an unmet liability, the Revenue would have been cheated of nothing.
A SHORT ANSWER?
EMPLOYMENT INCOME CHARGE
"Money may also be expended indirectly for the benefit of an employee without being taxable; for example, if a contract of service does not provide for medical expenses to be paid and the employer does not normally pay medical expenses the employer may, for compassionate or other reasons, as a special case, voluntarily pay the medical expenses of transporting and treating a child of the employee. The expense if not contractual and if lacking the elements of expectation and continuity would not be taxable."
THE HILLSDOWN ARGUMENT
Mr Justice Coulson: