England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		20 October 2010

1. LORD JUSTICE MOSES: This is an appeal against the decision of District Judge Coleman, sitting at Westminster Magistrates' Court, on 23 July 2010. The order stated that the appellant should be extradited to the Republic of Spain to serve five years' imprisonment. This was a period outstanding in respect of a sentence of eight years' imprisonment passed for an offence of manslaughter.
2. The chronology of the sequence of events leading to the issue and execution of a European Arrest Warrant in 2009 and the order of the district judge are central to this appeal.
3. The appeal is brought on two grounds. First, that by reason of the passage of time it would be unjust or oppressive to extradite him: see Section 14 of the Extradition Act 2003 ("the 2003 Act"). Secondly, it is contended that this was a case where, pursuant to Section 20, the appellant was one who would not be entitled to a re-trial and therefore ought to be discharged.
4. The offence was committed on 17 October 2001. It is relevant to this appeal to observe that it was committed while the appellant was on holiday in Tenerife during the course of what is described as a bar brawl. During the course of a fight the appellant kicked another man in the head who tragically died. The appellant was arrested immediately and remanded in custody. He remained in custody between October 2001 and his trial in 2004. On 20 September 2004 at a court in Tenerife he was convicted and sentenced to one year imprisonment. He had by then, it will be appreciated, served three years on remand. He had thus already served that sentence. He was released immediately without conditions. He remained, so I am told, though the evidence about this is not completely clear, some two weeks in Tenerife and then was released. It is important to note that he was represented and the evidence is that his lawyer told him that the prosecution would have a right to appeal.
5. The appellant then left Spain in early October 2004. He was not under any bail or licence conditions, still less any obligation to return to Spain. He thus left lawfully and legitimately. Some six months later on 23 March 2005, the Attorney General having appealed against the sentence, the Upper Court of Justice of the Canaries increased the sentence to one of two years' imprisonment. He was informed of that but again it is important to appreciate that he had already served a sentence and been in custody for a longer period than the sentence of two years passed and thus had no more time to serve.
6. Unknown to him there was a right to a second appeal. Unknown to him the Attorney General exercised that right and appealed to the Supreme Court of Spain in Madrid. That hearing took place on 1 March 2006. In other words, some eighteen months or so since he had lawfully left Spain. The Supreme Court of Spain in Madrid increased his sentence to one of eight years' imprisonment. Thus for the first time he had some years to serve, namely five years' imprisonment. It was only at that stage that technically he could be described as unlawfully at large within the meaning of Section 14 (b) of the 2003 Act.
7. According to a response to a question from the Provincial Court (Criminal Division) Santa Cruz de Tenerife of 27 May 2010, the authorities sought to execute the sentence of the Supreme Court by trying to summon the defendant in the domicile of Arona, the area where the original offence had taken place, to request him to serve his imprisonment. Not surprisingly, the authorities drew a blank. Anybody reading the facts of the case and making even the most basic inquiries would have appreciated that the offender was not a citizen of Spain and had committed the offence, while on holiday, against a fellow citizen. Not surprisingly therefore, according to the authorities and that document dated 27 May 2010, "the case was stopped" (to adopt the authority's phraseology). Nothing then happened until 20 July 2009 when a European Arrest Warrant was issued by the authorities in Santa Cruz. It was certified on 21 January 2010 and executed on 6 March 2010.
8. It is plain that between March 2005 and March 2006 the appellant believed that he was not at risk any further. He had been told of the right to appeal. He had not been told it had been exercised. He was told in 2005 that his sentence had been increased to two years. In March 2006 he was told that it had been increased yet again to eight years' imprisonment. Thus there were some periods when he must have believed he could put the matter behind him and others when he could not be so assured.
9. The district judge in his judgment identified these facts and concluded:

"I have carefully considered the authorities put before me ..... [refer to them]. There is no evidence to suggest that the Spanish authorities made a deliberate decision not to pursue the case against Mr O'Connell, and communicated such information to him. On the contrary it is clear that he knew about the appeal process and, therefore, its potential outcome. The unexplained delay in dealing with both the appeal process, and the issuing of an EAW is certainly regrettable and harsh. I fully accept that it is not a delay of the defendant's making. I also accept that extradition will cause both Mr O'Connell and his young family hardship. However having considered the authorities I have been referred to, I do not consider the passage of time in this case to be unjust or oppressive."

10. It is right to point out that although the appellant knew of a right to appeal there is no evidence to suggest he knew of a second right to appeal. The district judge was therefore wrong not to draw attention to a period between March 2005 and March 2006, or shortly thereafter, during which this appellant might have been assured that he was to hear no more about the original offence and his sentence.
11. The principles are well established and have been set out in a number of authorities which do not require yet another occasion for repetition in this judgment. The question the district judge had to ask himself was whether to extradite this appellant would be oppressive (see Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at 782).
12. It is worth recalling what Lord Justice Henry said in R v Secretary of State ex p Patel [1995] Admin 7 LR 56 at 51, 52. He drew the contrast between the delay of which a lawyer may become inured as opposed to a citizen. He said:

" ..... justice is reproached by delay ..... 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 ..... 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 as just a figure on a piece of paper."

13. The mere passage of time will not dictate a conclusion to the question whether it would be oppressive or not to order extradition. The question of how confident or secure a person not unlawfully at large may feel is an important but not determinative consideration. Further, on appeal, there is ample authority for the proposition that the court should hesitate before disturbing the district judge's value judgment as to whether it would be or would not be oppressive to extradite the requested person. After all, the district judges are far more familiar with these questions and better placed through experience to compare the situation of one requested person to another and monitor the behaviour of the requesting state.
14. Nevertheless the question that the statute poses is how the judge ought to have decided the question before him in the instant case: was it oppressive to extradite this appellant by reason of the passage of time since he became unlawfully at large? In my judgment, it plainly was oppressive. The district judge was wrong to describe the extradition as merely being harsh.
15. Although only three years elapsed between the sentence passed by the Supreme Court of Spain in Madrid and the issue of the arrest warrant in July 2009, and although it must be acknowledged that the appellant was aware of the sentence passed in Madrid, that period must be viewed in the context of the events as a whole. The statute focuses on a period after 1 March 2006 because it was only at that time he was "unlawfully at large". But nonetheless that period must be looked at in the context of the whole of the period since the statute - in the very word "oppression" - is looking at the impact on the person whose extradition is requested.
16. This offence took place nearly ten years ago. Immediately following that offence - terrible though the consequences were - this man, although he was much younger, remained in custody for three years. He was then sentenced to a year's imprisonment and - although knew of a right to appeal - left Spain under no obligation to return and heard nothing more until March 2005. Unknown to him there was a second right of appeal. Even though he learned the result of that, nothing happened thereafter. He has led, so far as this court knows, an honest and industrious life since and has started a family.
17. The conduct of the authorities after March 2006 in delaying the issue of the arrest warrant without any rational explanation combines, in the context of the whole period, to make it in my judgment oppressive to order his extradition. No sensible explanation - as I have sought to emphasise - as to why the arrest warrant was not issued earlier has ever been advanced. Of course it was difficult for the authorities since they did not have an address. Why they wasted time and money looking for him at a holiday address has never been explained. Moreover the arrest warrant itself describes him of being of an unknown address and merely refers to his last known address. That was no inhibition to the issue of a warrant in July 2009 and therefore cannot have been any inhibition to an earlier issue of a warrant. Of course matters take time. No doubt they took time after March 2006 whilst the appropriate authorities sanctioned the issue of the warrant. They cannot possibly have taken over three years to reach that decision.
18. During those three years this appellant had every right to think that - notwithstanding the increase in the sentence - the authorities did not propose to order the appellant back to serve his sentence, particularly having regard to the fact that a very long period had elapsed since the original offence was committed. For all he knew, the Spanish authorities were taking exactly the same sort of attitude as the courts in this country would take where there had been an appeal against sentence by the prosecuting authorities, namely, that they indicated the appropriate sentence but did not intend to enforce it. He heard nothing.
19. In those circumstances, whilst acknowledging that I am differing from the judge with far greater experience of matters than this court, I am of the firm view that it would have been oppressive to extradite this man and that the question before the district judge should have been heard differently.
20. If he had decided that question differently he would have been required to order this appellant's discharge. Accordingly I so order.
21. I ought to record that a further argument to which I have already alluded was raised under Section 20 on the basis that this appellant was not present at the Supreme Court in Madrid. In the light of the conclusion that I have reached, it is unnecessary for me to determine the issue save to indicate that in my view there was absolutely nothing in it.
22. But for the reasons I have given the appeal is allowed and the order must be that he be discharged.
23. MR RHODES: The appellant has a legal aid order. If it needs to be assessed, may it be assessed?
24. LORD JUSTICE MOSES: Yes.