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
		23rd February 2010

1. MR JUSTICE McCOMBE: This is an appeal by Mr Metin Kaya, pursuant to section 26 of the Extradition Act 2003, against a decision of Designated District Judge Nicholas Evans sitting at the City of London Magistrates' Court, dated 25 November 2009, ordering the extradition of Mr Kaya to the Netherlands. Extradition was sought by the Respondent Prosecutor in the Netherlands on a European Arrest Warrant executed in this country on 5 May 2009. This was done for the purposes of requiring the appellant to serve the outstanding term of a sentence of three years' imprisonment imposed following his conviction on 25 November 1992 in the District Court of Maastricht for offences of participation in criminal organisation and elicit trafficking in narcotics. His appeals to the Court of Appeal of 's-Hertogenbosch and the Supreme Court of the Netherlands were dismissed on 14 July 1992 and 11 October 1994 respectively. On the latter date, the sentence imposed by the District Court became operative and effective for the first time. He was present both at his trial at Maastricht and for his appeal before the Court of Appeal, although he was not present, it appears, for the appeal to the Supreme Court. He was legally represented, however, throughout. It seems that throughout the criminal proceedings, or at least for a very substantial part of them, Mr Kaya remained at liberty. The substantive extradition hearing before the District Judge was held on 9 November 2009 and the judge delivered his decision in a careful, reserved judgment on 25 November. Before the District Judge, Mr Kaya relied upon arguments as to abuse of process and passage of time within the meaning of section 14 of the Act to resist an Extradition Order. On the present appeal, Mr Kaya submits that the learned District Judge was wrong in rejecting his argument on the passage of time question. The abuse of process point is no longer formally pursued but Ms Hobcraft, who appears for Mr Kaya this morning and has made helpful and succinct submissions to us, says that the abuse of process aspect is of relevance to the question of oppression as a whole.
2. The facts of the matter are somewhat complicated but I shall endeavour to summarise them as follows. The appellant, Mr Kaya, is now 53 years old, having been born in Turkey in 1956. In 1990 he came to England via Bulgaria. At that stage, he was claiming he was in fear of his life, being wanted for a number of matters in Turkey including political crimes. Having arrived here in the United Kingdom, he applied for asylum. On 25 January 1991 he was given exceptional leave to remain in this country for three years -- this was renewed in 1994 (on 7 January) -- and later given indefinite leave to remain on a date which is not clear. Finally, about five or six years ago he was given British citizenship. His travels, in the meantime, were broadly as follows: on 20 February 1991 he applied for a Dutch visa. On about 17 March 1991 he travelled to Holland, spent ten days there, then travelled to France, then back to Holland, then back to England and back to Holland again, where he remained from 17 December 1991 until November 1993. The Dutch authorities confirmed that the defendant entered the Netherlands on 19 September 1991 in possession of a three month visa and in 1992 he married a lady named Anita Delvoux, a Dutch citizen who has more recently died and with whom throughout he remained in communication. The arrest warrant indicates that throughout his time in Holland, between April 1991 and July 1992, he was a member of a drug trafficking organisation dealing with heroin and moving it in and out of Holland. As I have indicated, he was convicted at trial, at which he was present and was legally represented, and that sentence of three years' imprisonment imposed in the District Court was confirmed on two appeals.
3. Throughout the criminal proceedings the Dutch Immigration and Naturalisation Service were taking steps to require the defendant to leave the Netherlands. There seems to have been very little communication between the two arms of the Dutch state during the course of these two legal proceedings. At all material times Mr Kaya was a Turkish national who had a right to reside in the United Kingdom while his asylum claim was being considered. His right to reside in the Netherlands was dependent upon a residence permit which was of a temporary nature. It seems that, in 1993, Mr Kaya received a letter from the immigration authorities in Holland requiring him to leave the country within three months. On 16 February he sought a review of the refusal to renew his residence permit and there was a hearing of that application for a review on 6 January 1994, the day before he returned to England after a brief visit to the Netherlands. By a decision of 21 July 1994, he was refused any further grant of residence in the Netherlands and was under the impression that he had to leave the country pursuant to the immigration laws. On 30 September 1994, however, he made an application for what is called "provisional relief" against the immigration decision. That had the effect, informally, of suspending his status as an illegal immigrant, either as an ex gratia matter or what has been called in correspondence "a gentleman's agreement", so that in fact, whatever the legality, he would not have been deported if he had been found in the Netherlands. That application was withdrawn on 27 January 1997. Of course, by that time Mr Kaya was in the United Kingdom.
4. It appears that on 6 June 1996, however, a letter was issued by the Dutch criminal authorities requiring him to present himself for the service of his sentence. He had not provided any English address to the judicial authority or to the police since his arrival initially in the United Kingdom in 1993. He was not required to do so but his wife, then still alive, received the letter from the penal authorities telling him that he should report to a particular prison on 15 July 1996. He then sought advice from his Dutch lawyer, who told him that, if he did not return to Holland for 16 years, he would be safe from having to serve the sentence. The relevant provisions of the Dutch Penal Code provide that 16 years would be a form of limitation period operative on this sentence. That period ran from 11 October 1994, the date of the decision of the Supreme Court, which would therefore expire on 10 October 2010. Mr Kaya told the District Judge that he had asked his wife to telephone the senders of the letter to explain that he was now settled in the United Kingdom and to give them his correspondence address. There is no evidence that anything happened pursuant to that request and certainly no correspondence seems to have ensued as a result. The learned District Judge did not believe the appellant's evidence about this.
5. On that material, it seems clear to me that Mr Kaya participated fully in the criminal proceedings up to and including the hearings of his appeal. He instructed lawyers up to that stage and thereafter continued to instruct them in the conduct of his appeal to the Supreme Court, although by that time he was residing in this country. In the meantime, in January 1994 he had been present in the Netherlands for hearing his application for a review of the decision not renew his right to reside in the country. His lawyer was notified of the refusal of that application in July 1994 and on 30 September, still on his instructions, the lawyer applied on his behalf for provisional relief against refusal. That gave him an informal right to be present in the Netherlands. In July 1996, as I have said, the penal authorities sent notification to Mr Kaya's Dutch address that he was required to present himself at the prison to serve his sentence. He was informed of that decision by his wife, he took advice about the request, he was told he could not be required to serve the sentence after the expiry of 16 years from the date of the operative date of the sentence's effectiveness. On 27 January 1997, he withdrew his application for provisional relief against the adverse of the immigration decision of July 1994. The learned District Judge, on those facts, found that from 1996 onwards Mr Kaya, who had evaded arrest, could not, therefore, rely on passage of time since that date to contend that it would be oppressive within the meaning of section 14 of the act to surrender him. He held, further, there was nothing in Mr Kaya's personal circumstances rendering it oppressive to direct a surrender.
6. On the present appeal, in written submissions and orally this morning, Ms Hobcraft contends that those conclusions were wrong. She submits that Mr Kaya did not evade arrest as the District Judge found and that his personal circumstances have become such that it would oppressive to surrender him now. She essentially takes four points. She points to the absence of any restriction on his leaving the Netherlands; his understanding, certainly for some part of the time, that he was no longer entitled to remain there; his travels in the meantime, on a number of occasions abroad; and the relative inactivity of the judicial authority. In Ms Hobcraft's submission, these are not the activities or background of a classic fugitive offender. She further submits it would now be oppressive, in the light of his personal circumstances, to remove him to the Netherlands. Insofar as the learned District Judge's finding that he had been untruthful in his evidence about what happened on notification of the requirement to report for his sentence, she submits that Mr Kaya openly gave a full account of the events following that letter before the judicial authority had really set out their case about what happened; he had been entirely frank and he ought to have been believed on his evidence.
7. In my judgment, the district judge was entitled to focus on the absence of any correspondence to his English address following what Mr Kaya was saying was notification by his wife of his new circumstances.
8. Ms Hobcraft has placed reliance upon a decision of this court in the case of Wenting v High Court of Valenciennes [2009] EWHC 3528 (Admin), the decision of Lord Justice Maurice Kay and Mr Justice Lloyd Jones. In that case the appellant had been caught in possession of drugs on entering France some 20 years previously. He was kept in custody for over two years before being bailed to his home address in the Netherlands. While still on bail, an international warrant had been issued. He was tried in his absence, convicted and sentenced to five years' imprisonment. He was informed about the trial only after the event. He did not, at that stage, return to France. The French authorities took no active steps to procure his return until the issue of a warrant, after the scheme for European arrest warrants came into effect. The District Judge in that case held that, on becoming aware of the conviction, Mr Wenting should have contacted the French authorities and surrendered himself. He also found the authorities had done nothing to instill in Mr Wenting a false sense of security, so rendering it oppressive to surrender him. This court allowed Mr Wenting's appeal in what Mr Justice Lloyd Jones described as "the very unusual circumstances of the case".
9. The factors that persuaded Mr Justice Lloyd Jones and Lord Justice Maurice Kay are set out in paragraph 23 of Mr Justice Lloyd Jones' judgment as follows: it was pointed out the offences of which the appellant had been convicted were serious; he had not deliberately fled the jurisdiction; he had returned to his home in the Netherlands with the express permission of the French authorities to an address of which the French authorities were always aware; he had been tried in his absence and, although informed of the outcome of the trial, he was never notified of his requirement to return and he was advised by authorities in Holland that he should await such a summons before returning; he was never made aware of the warrant for his arrest and over 20 years had elapsed since the commission of the offences.
10. I have considered that case and, for reasons that I will indicate, I have considered that it is clearly distinguishable. In my judgment, the District Judge's decision in the present case cannot be impugned. He was entitled to find that, if Mr Kaya had indeed asked his wife to tell the Dutch authorities his new address and she had done so, further correspondence addressed to him in this country would have ensued. It did not. He had been told by his lawyers in the Netherlands that it would not be safe for him to return there for 16 years after the sentence had been operative and, in January 1997, he withdrew his applications contesting the immigration decisions. Up to that time, his presence in the Netherlands was de facto lawful and there was no need for the Dutch authorities to be looking for him to enforce the departure on immigration grounds. Shortly after July 1996, he knew the Dutch authorities were actively seeking him to enforce the sentence. Several features of the Wenting case, which led this court to hold it to be very exceptional, are absent. Unlike Mr Wenting, Mr Kaya had not been bailed to a foreign address that was known to the requesting state; he had been present at his trial and on his first appeal; lawyers acted for him in the criminal proceedings throughout; he was notified that he should serve his sentence and, unlike Mr Wenting, had not been advised by any public authority here to await the summons from the foreign authority to enforce his return; finally, Mr Kaya was advised of the gradual passing of the period of enforcement of the sentence.
11. In my judgment, it is clear that Mr Kaya knew from 1996 onwards that the appeal authorities were looking for him in the Netherlands and had tried to find him at his address in Maastricht. He was advised he would be safe from having to serve the sentence after the expiry of 16 years and, perhaps understandably from the human point of view, was trying to achieve that safety. To my mind that is evading arrest, as the learned District Judge found. I do not consider there is anything in his family or personal circumstances which render his returning to serve his sentence in any way oppressive. He was not living secretly but that does not mean that his return now would be oppressive. I have considered the fact that Mr Kaya has in fact lived a respectable and useful life here for a number of years and that he has active interests in this country. However, those features of the case do not to my mind establish a case of oppression within the meaning of section 14 of the Act.
12. I would therefore dismiss this appeal.
13. LORD JUSTICE LAWS: I entirely agree.
14. MS HOBCRAFT:: My Lord, I am publicly funded in this case and I would be grateful for a detailed assessment of costs.
15. LORD JUSTICE LAWS: Detailed assessment for the LSC? Yes, certainly. You may have that, Ms Hobcraft. We were obliged to hear your submissions.
16. Do you have no application, Miss Bramwell?
17. MISS BRAMWELL: No, thank you.
18. LORD JUSTICE LAWS: So be it. Thank you.