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
		11 February 2010

1. MR JUSTICE CALVERT SMITH: This is an appeal, under section 26 of the Extradition Act 2003, against the decision of the Chief Metropolitan Magistrate to order the extradition of the appellant to Spain to face trial on three charges of rape of a minor. Spain is a designated category 1 territory pursuant to section 1 of the Extradition Act 2003. Accordingly, part 1 of the 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.
2. Section 26 provides:

"1) If the appropriate judge orders a person's extradition under this part, the person may appeal to the High Court against the order.

...

3) An appeal under this section may be brought on a question of law or fact".

3. The sole ground of this appeal is that the extradition should not have been ordered because it was barred by section 14 of the Extradition. Section 14 states:

"A person's extradition to a category 1 territory is barred by reason of 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 ... or

(b) Become unlawfully at large".

4. The relevant history of this case is that in June of 1993 this appellant was arrested and accused of committing offences over the previous 3 years from 1991 to 1993. Sometime later he was charged and granted bail, and, on the evidence accepted by the Chief Metropolitan Magistrate, in 1995 his bail was varied to the extent that he was allowed to visit this country for two weeks to attend a conference. The on-going conditions of bail were that he report every 2 weeks to a court in the Barcelona area, having also deposited a security with the court in Tenerife which was due to try him.
5. While in the United Kingdom during that fortnight period he was arrested and charged with offences committed in this country, which, in due course, resulted in his being sentenced to 18 months' imprisonment. He was released from that sentence in 1996. During his imprisonment, it was accepted that he had informed, either directly or indirectly, the Spanish authorities of the fact that he was in prison and therefore prevented from complying with the terms of his bail. Thereafter, however, when released from prison, it does not appear that, either he, for his part, returned to Spain in compliance with his bail conditions, or, for its part, that the requesting state acted to try and secure his return.
6. In 2001 the appellant was again charged with offences in this country for which he was eventually sentenced to 5 years' imprisonment. He was released from that sentence during 2003. In June 2009 the requesting state issued the European Arrest Warrant, and in November 2009 the hearing took place which is the subject of this appeal.
7. Mr Morris, who has presented his client's case with great skill, both in writing and in court today, submits, first, that the Chief Metropolitan Magistrate was wrong to find that, in the terms of the decision in Kakis v Republic of Cyprus [1978] 1 WLR 779 and confirmed in Gomes v The Government of the Republic of Trinidad and Tobego [2009] 1 WLR 1038, this appellant was a "classic fugitive", and therefore not entitled to invoke the bar in section 14 of the Extradition Act. He relies principally on the finding of this court recently in the case of Wenting [2009] EWHC Admin 3528, and he points to a number of factual similarities in that case to this case. Mr Wenting was a convicted man, unlike this case -- Mr Dare still awaits trial of course -- but, in his judgment, Lloyd Jones J set out a number of factors which, in due course, led to the decision to allow the appeal of Mr Wenting. In particular, at paragraph 22 of his judgment, the fact that Mr Wenting did not deliberately flee the jurisdiction; it is conceded in this case that the appellant did not deliberately flee the jurisdiction. Although informed of the outcome of his trial and the sentence imposed, Wenting was never notified that he was required to return to France to serve his sentence. That, it is said, reads across to the circumstances of this case, in that the Spanish authorities never notified the appellant that he was required to return to Spain. However, it is perfectly clear that a man who is on bail pending his trial on criminal charges has a duty, which he is under by his bail conditions, to comply with the terms of his bail, and one of the conditions in this case, as I have already set out, was a condition to report on a fortnightly basis to the authorities in Barcelona.
8. To return to Wenting, there was evidence that he was advised by the probation services in the Netherlands, and by his Dutch lawyer, that he should wait to be summoned by the French authorities to serve his sentence. That never happened. In this case, Mr Morris submits that there was evidence before the Chief Metropolitan Magistrate that the appellant was advised that he should stay away from Spain for 15 years. That, with respect to the appellant, seems to be the most extraordinary contention, and if the advice was given, the most extraordinary advice. That a person who has not yet been tried on serious criminal charges could be advised by the authorities who wish to try him that he should not come to their country for 15 years is absurd. It would be understandable if an adviser of his had simply been informing him of a limitation period which might obtain in his case.
9. The next point in Wenting was that the appellant was never made aware that there was a warrant issued for his arrest. Mr Morris relies on the fact the Spanish authorities made no positive effort to seek his return for many years, albeit, as I have already said, it is perfectly clear that Mr Dare was on bail and therefore under a duty himself to answer his bail and comply with its conditions. In Wenting, the period of time that had elapsed since the alleged commission of his offences was more than 20 years.
10. The first submission that Mr Morris has made is that, therefore, the absolute bar on the possibility of invoking section 14 should not have been found to apply by the Chief Metropolitan Magistrate as not satisfying the three criteria set out in Kakis, and upheld in subsequent cases. In his submissions to us, on behalf of the respondent, Mr Grandison concedes that, in order for him to be declared a classic fugitive under those terms, some extension would be required to the principles set out in Kakis. He relies in particular on a point decided from the Bail Act 1976, that an accused person in this country would undoubtedly be held to be a fugitive from justice if he simply failed to attend his trial in breach of his bail conditions, and that, therefore, it is possible to extend the principles in Kakis to cover this case.
11. Mr Morris' second point, assuming that he is right on the first, is that, looking at the facts of this case, in particular the long delay, it would be unjust to extradite him at this length of time, on the basis that he would not be able to receive a fair trial if returned now. In his judgment, the Chief Metropolitan Magistrate referred to the undoubted fact that, in this country, and no doubt in many others, cases of this sort of age are frequently tried out in criminal courts, and the safety of convictions obtained in such trials has often been upheld by the appellate courts. There is nothing, therefore, in principle wrong, or Article 6 unfair, about a trial which takes place some 18 years or 19 years after the original allegation.
12. Mr Morris tried to distinguish that situation from his client's situation. He submits that one can assume that, at least by 1996 when the trial was originally due to have taken place, the prosecution's evidence and case would have been complete and in order; it is not a case of victims of alleged sexual assault only reporting such assault many years after the assault. Whereas, he submitted, his client has not the advantage of having had his case ready and prepared at around the beginning of 1996 as the prosecution must have. However, the fact is that, having been arrested himself on suspicion of committing these offences and no doubt interviewed, and having been held in custody for some considerable time before being granted bail, it must be assumed that the appellant was preparing to defend himself between his arrest in 1993 and his departure to England some 3 years later. In those circumstances, we do not agree with the point made by Mr Morris that the particular circumstances of this case make the imbalance between prosecution and defence such that it cannot be dealt with under the normal fair trial procedures common to all countries who, like Spain, are subject to the European Convention on Human Rights, and Article 6 in particular.
13. Returning to the first point, since I am so convinced that the second point does not avail Mr Morris such as to render his extradition unjust, there is no need perhaps to decide finally whether the interesting submissions upon the extent of the classical fugitive and the inability of "bail fugitives" to rely on the time bar in section 14 need to be decided in this case. For my point of view, I would simply dismiss this appeal on the second basis and leave the first point open.
14. LORD JUSTICE ELIAS: I agree.
15. There are two issues raised in this appeal. The first, as my Lord has indicated, is whether the appellant is a fugitive, because if so, it is accepted that he is deemed to be then responsible for all delay that there is, and any delay by the requesting state in seeking his extradition becomes irrelevant (see the analysis most recently by Lord Brown of Eaton-under-Heywood in Gomes v The Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038, paragraphs 18 to 30).
16. It is conceded by Mr Grandison, counsel for the defendant, that he does not fall within the classic definition of a fugitive established by Lord Diplock in his speech in Kakis v Government of Cyprus [1978] 1 WLR 779 and 783(a). Lord Diplock identified three circumstances in which someone might be a fugitive: if they flee the country, conceal their whereabouts, or evade arrest. I would not myself be inclined to the treat these three categories as exhaustive of a situation where somebody may be considered to be a fugitive, for the purpose of determining whether he is culpable for the delay. In this case, the appellant was on bail when he came to this country, and was then sent to prison. There is a very powerful argument indeed that once his period of sentence had expired, he remained under an obligation to report to the authorities in Spain. This he did not do.
17. To that extent, it seems to me that this case is distinguishable from the Wenting case which has been relied upon by the appellant. However, Mr Morris has made the point that there is no clear indication as to how the Spanish authorities would treat the imposition of the sentence in this country, and whether it may qualify the obligations that would otherwise arise under the original terms of bail.
18. In the circumstances, like my Lord, I do not think it necessary finally to resolve that question, because it seems to me that the appellant fails to surmount the second hurdle which faces him in this case, that is whether it would be unjust to extradite him.
19. I emphasise that the question is whether the extradition is unjust and not whether it would no longer be possible to have a just trial. The distinction is emphasised by Lord Brown in the Gomes case to which I have made reference. As Lord Brown pointed out at paragraph 35 in that case, it should be assumed that any Council of Europe country will be capable of protecting an accused against an unjust trial; they are signatories to the European Convention and will be bound by Article 6. They are in a better position then we are, with the very limited material before us, to determine whether a fair trial is possible or not. Lord Brown emphasised, following his own earlier judgment given in the divisional court in Woodcock v Government of Newzealand [2004] 1 WLR 1979, approved by the privy counsel in Mills v Government of the United States of America [2007] 1 WLR 47, that the crucial question is whether the court of the requesting state would be bound to conclude on the facts that a fair trial is impossible. In those exceptional circumstances, but only then, it would be wrong to extradite an accused.
20. I am fully satisfied that that test is nowhere near being met here. For the reasons given by my Lord, I think it likely that a fair trial can be heard, and there is certainly no reason to doubt that the Spanish courts will properly consider that issue if and when it arises.
21. For these reasons, therefore, I too dismiss the appeal.
22. MR MORRIS: My Lord, I have only one application to make and that is for legal aid taxation for the appellant's costs.
23. LORD JUSTICE ELIAS: Yes, you can have that. Thank you very much, both of you.