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
		25 February 2010

1. MR JUSTICE CALVERT-SMITH: This is an appeal under Section 26 of the Extradition Act 2003 from the decision of District Judge Riddle to order the extradition of the appellant to Hungary to face trial on two charges of forging a public document and one charge of making a false accusation of crime.
2. Hungary is a designated category 1 territory pursuant to Part I of the Act, as modified by the provisions of the Extradition Act (Multiple Offences) Order 2003 and the Police and Justice Act 2006, Schedule 13.
3. So far as it is relevant, Section 26 reads:

"(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.

Section 27 reads:

"(1) On an appeal under Section 26 the High Court may -

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if conditions in sub-section (3) or the conditions in sub-section (4) are satisfied.

(3) The conditions are that —

(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that -

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he have been required to order the person's discharge.

(5) If the court allows the appeal it must -

(a) order the person's discharge;

(b) quash the order for his extradition."

4. This appeal is brought effectively under Section 27 (4).
5. Three grounds are raised: first, that the extradition should not have been ordered because it was barred by the operation of Section 14 of the Act; second, that it should not have been ordered because it was barred by Section 21 of the Act; and thirdly, that the judicial authority, in whose shoes the respondent to this appeal stands, has abused the process of the court by supplying the respondent and, through it, the court with false information.
6. Section 14, so far as relevant reads:

"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 extradition offence ..... "

So far as this ground is concerned, reliance is placed on the oppressive limb of the section rather than the unjust limb.

7. Section 21 reads:

"(1) If the judge is required to proceed under this section (by virtue of Section 11 or 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

(2) If the judge decides the question in sub-section (1) in the negative he must order the person's discharge.

(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued."

The Convention right in issue in this case is the right under Article 8 of the European Convention on Human Rights.

8. The principles governing the operation of Section 14 are derived from Kakis v Government of Cyprus [1978] WLR 779, 782. In his speech Lord Diplock said:

"'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. 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 ..... "

A little later:

"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."

9. The burden of establishing this bar, as others, is on the appellant on the balance of probabilities. The offences in this case date back to 2003. So far as the bar under Section 21 and Article 8 of the Convention is concerned, the appellant has to establish that the interference to the appellant's right to private life is disproportionate to the legitimate aim of extradition as a means of ensuring that those accused of crime are brought to trial.
10. Yesterday - 24 February 2010 - the Supreme Court gave judgment in Norris v Government of United States of America 2010 UKSC 9. The case concerned the principles to be applied to Article 8 rights in respect of those sought for extradition to Part 2 countries. However the human rights bar to extradition (Section 87 of the Act) is identical to that of Section 21, and so the same principles must apply.
11. Lord Phillips gave the first judgment. At paragraph 56 of that judgment he said:

"56 The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves ..... Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition ..... "

As Miss Searley, who represents the appellant in this case, realistically conceded, the bar, so far as the high jump analogy is concerned, has been raised significantly as a result of that judgment which was adopted, either generally or specifically, by all the judges who gave judgment in this case.

12. The principles to be applied in extradition cases in which abuse of process is alleged are to be found in a number of cases, but, most conveniently, once again for the purposes of this judgment, in the speech of Lord Phillips (when he was Lord Chief Justice) in R (Government of United States of America) v Bow Street Magistrates' Court [2007] 1 WLR 1157. At paragraph 84 of his judgment in that case he said:

"The judge should be alert to the possibility of allegations of abuse of process being made by way of delaying tactics. No steps should be taken to investigate an alleged abuse of process unless the judge is satisfied that there is reason to believe that an abuse may have taken place. Where an allegation of an abuse of process is made, the first step must be to insist on the conduct alleged to constitute the abuse being identified with particularity. The judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process. If it is, he must next consider whether there are reasonable grounds for believing that such conduct may have occurred. If there are, then the judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred ..... "

13. For reasons I will deal with in a moment, the question of abuse of process has been raised for the first time before us. Therefore one has to apply the principles of Bow Street to the situation in which we find ourselves today.
14. All applications by persons requested for extradition are effectively subject to other important principles. First, that the requesting country is a signatory to the European Convention on Human Rights, a category 1 country. The court will assume, absent very strong evidence to the contrary, that that country will apply Article 6 fair trial provisions, and that arguments addressed to the court in England and Wales on delay or on Article 8 and even on most forms of abuse of process in proceedings can be dealt with under the domestic law. In addition, it would require very strong evidence indeed to found an allegation of bad faith on the part of a Convention country which might support one of the bars to extradition or an abuse of process argument.
15. Second, proper deference is due to the decision of the district judge who has great experience of extradition cases and the benefit - as this one had - of oral evidence to his findings on fact. Findings of credibility are the province of the district judge unless, as alleged in this case, material - which, with due diligence by the appellant could not have unearthed - reveals that those findings were wrong.
16. The history of the case has been disputed to some extent. The appellant Cornel Mihociu is now 33. He is a Romanian national. The offences he is alleged to have committed date back to 2003 when he is said to have claimed to have been his brother Irinel Mihociu and to have produced a passport and another document to support that claim. As a result of that deception, he was tried and convicted in the name of his brother for a debit card fraud for which he had been arrested. In due course he served a sentence in his brother's name of seven months' imprisonment from which he was released in 2003. At some time after that - it is not entirely clear when - it was discovered that the appellant had indeed used his brother's name on his arrest and at his trial.
17. In April 2004 or thereabouts the appellant moved to Austria. Later that year he was arrested in that country for debit card offences. Meanwhile his brother Irinel was arrested, tried and acquitted in respect of the allegations concerning the use of his identity by this appellant. In March 2005 the judicial authority issued, as now it has transpired, two European arrest warrants against the appellant. The first one was for another debit card fraud. The second one was for the offence that is now before this court. He was extradited in respect of both. In May 2007 he was tried and convicted in respect of a debit card fraud, sentenced to 16 months' imprisonment and ordered to be expelled from Hungary with no return permitted within five years. In July 2007 and August 2007 it is alleged by the judicial authority on the one hand that the indictment in respect of these offences was filed, and by the appellant that the prosecution informed him that it had discontinued proceedings in respect of him. In October 2007, on his release from prison, he was deported from Hungary and came to Liverpool.
18. The European arrest warrant in this case was issued on 12 December 2008. On 5 May 2009 he was arrested in pursuance of it and brought before the Westminster Magistrates' Court. Shortly thereafter he was granted bail. There were various hearings at the Magistrates' Court until, on 26 August 2009, the district judge ordered his extradition.
19. On 5 May 2009 he was represented by solicitors. Certain parts of the chronology of their involvement is necessary to understand and indeed to decide the appellant's abuse of process argument. The appellant was anxious to establish the facts concerning the offences for which the Austrian authorities had extradited him to Hungary. As will become plain, the information sought did not become available until after the hearing. Since then the judicial authority has sought in two letters of January and February 2010 to clarify the sequence of events. Objection was taken by both sides to the admission of some of the evidence and information obtained since the hearing.
20. Miss Bramwell, for the judicial authority, submitted that the eventual method used by solicitors for the appellant obtaining access to material from the Austrian judicial authority has been available ever since they were instructed and therefore could have been obtained with reasonable diligence before the extradition hearing.
21. For her part, Miss Searley, for the appellant, submitted that since the information relating to letters of 2010 was information that had been in the hands of the judicial authority for about a year anyway, the judicial authority should not be allowed to rely upon it. In this context the appellant relies on Szombathely City Court, Sopron City Court, Municipal Court of Szombathely - Three Hungarian Judicial Authorities v Roland Fenyvesi, Kalman Fenyvesi. This case concerned the question of a litigant, in this case the judicial authority, who wished to adduce new evidence concerning the treatment of Roma minority members in Hungary, there having been written evidence given on behalf of the person sought at the extradition hearing as to the potential for persecution if he were returned. The district judge ordered that the extradition could not go by reason of "extraneous considerations" under Section 13 of the Extradition Act.
22. In giving judgment, the President of the Queen's Bench Division said at paragraph 3 of his judgment:

"It is normally incumbent on litigants in first instance courts or tribunals in which evidence is adduced to advance their whole case at first instance and to adduce all the evidence on which they want or need to rely."

A little later in the same paragraph -

"An appeal court is not generally there to enable a litigant who has lost in the lower court to advance their case upon new and enlarged evidence which they failed to adduce in the lower court."

The judgment goes on effectively to equate for these purposes the judicial authority's representative in this country, the Crown Prosecution Service, and giving the history of that particular case, highlighting the fact that the issue central to the extradition - of whether this appellant or these appellants may or may not be subject to persecution if extradited - had been with the CPS, and therefore with the British law authorities, for months before the actual hearing. Miss Searley submits that the same applies here.

23. So far as the two applications are concerned, as to the first, I am quite satisfied that the attempts by solicitors for the appellant were genuine, conscientious attempts, which certainly did not lack diligence, when they tried to approach, first, the Crown Prosecution Service and then Interpol for details of the prosecuting judicial authority in order to be able to obtain information. The fact that the information turned out to be available on the Internet does not detract from that due diligence. In any event, since the evidence subsequently revealed does show that the district judge inadvertently fell into error, it would be unfair in any event to exclude it. In fact the new evidence has founded what is now the appellant's principal submission in this court, namely a submission that the proceedings in this country are an abuse of process because the judicial authority deliberately attempted to mislead the Magistrates' Court by failing to reveal the existence of a previous extradition warrant.
24. Much is made on both sides of the court, and in all extradition cases, for the need for trust to be reposed and indeed earned between Part 1 countries. It would be very damaging for that trust were an appellant allowed to make and then win an argument based upon deliberate dishonesty by a judicial authority without that judicial authority having an opportunity to explain the sequence of events by reference to rules and procedures in this country. The abuse of process argument now mounted was never mounted before the court simply because, even by the exercise of due diligence, the appellant had not been able to gain information which, he submits, founds that submission. However it must also be right for the court to consider the explanations contained in the two letters of January and February 2010 when deciding whether this new submission should be upheld or not.
25. Accordingly I am quite satisfied that all the evidence is admissible before us.
26. I return to the chronology. On 21 May 2009 the solicitors requested contact details for the Austrian judicial authority. On 20 July they wrote specifically to the Crown Prosecution Service, asking for the information. They were immediately told to contact Interpol which they did. On 10 August Interpol replied saying that it could not help, and advised them to make direct contact with the Austrian judicial authority. By using a well known Internet search engine, that is what they managed to do.
27. In the meantime however inquiries had been made by the Crown Prosecution Service of the Hungarian judicial authority which generated two responses. I paraphrase the relevant contents of the two letters. First, Cornel Mihociu was never in custody in respect of these offences. That, so far as the court is aware, was an accurate statement.
28. Second, the only court in Hungary to conduct proceedings in respect of these offences is the issuing court. Once again, nothing was put forward to gainsay that contention.
29. Third, the indictment in the current case was only filed in July 2007. Once again, nothing was put forward to gainsay that.
30. Fourth, the appellant was informed on 28 July 2008 that between 20 November and 15 December he would be allowed into Hungary and he was then summoned in respect of his trial in Hungary for these offences on 1 December 2008. That statement also was true except that, having heard evidence from Mr Mihociu in person, the district judge found that he could not be satisfied that Mr Mihociu had been informed by his father, who resided at an address in Romania to which these communications had been sent, of their contents so that he did not know the detail of what it was the Hungarian authorities wanted.
31. Fifth, there is no decision of any court in Hungary to the effect that these proceedings have been terminated. This was in dispute. Mr Mihociu claimed that he had received a written document while in prison in Hungary to the effect that they had. Suffice to say, no such document has been produced in proceedings in this country. There is no evidence whatever that that was in fact the case. All the other evidence is clear. The Hungarian authorities were anxious to try him. The date for his trial was fixed for August 2008 and a second date in December. When he failed to attend either this warrant was issued.
32. It is hard to believe in those circumstances there was some formal document from the same authority stating that they were not going to proceed.
33. I quote from paragraph d) of the letter of 3 July 2009:

"d) No criminal proceedings were pending against the accused Mihociu Cornel owing to the criminal actions serving as basis of the European arrest warrant either at the Budaörs City Court or at any other place other than the issuing court."

This, it was submitted, was an untrue statement in that there must have been criminal proceedings pending because he had been extradited on the European arrest warrant from Austria before this.

34. In view of the matters that have been supplied to the court subsequently, particularly in the letters of January and February 2010, it is clear to me at least that criminal proceedings in Hungary start to be pending when an indictment is filed, and that was not until July 2007 albeit there had been an extradition warrant which, were the matter to be dealt with in this country, would undoubtedly have led to a formal charge being brought upon the defendant's return to the country.
35. I am unable to accede to the submission of Miss Searley that that statement was an untrue statement. These letters and the quoted paragraph in particular were before the district judge, and they resulted in the understandable but, in the event it is now clear, wrong conclusion in his judgment that there had never been an European arrest warrant issued in respect of these offences to Austria.
36. The defendant disputed that he in fact signed the documents acknowledging the summons and the relaxation of the expulsion order to allow him to return to the country. The district judge could not be sure that he had.
37. After the hearing in October 2009 the Austrian authority complied by disclosing the documents concerning the request for eventual surrender referred to already. They reveal that on 22 May 2005 the court had ordered his surrender in respect of two European arrest warrants, one of which read as translated:

"According to the arrest warrant - 7.11.2005 - Cornel Mihociu is strongly suspected of having committed the following crimes. He is suspected since January 2003 of criminal proceedings and the crime of using non-cash means of payment and of charges of posing as his brother Irinel Mihociu, using his brother's travel passport which is why his brother Irinel Mihociu was finally sentenced to a prison term of seven years and four months."

His extradition was ordered in respect of that warrant on 7.11.2005.

38. As to the first ground, the appellant submits that since he did not deliberately flee the jurisdiction of Hungary or deliberately avoid proceeding initially with the case he is entitled to rely on the passage of time as running from the date the offence is alleged to have been committed.
39. I do not accept the whole of that submission. The effective date must be the date upon which it became clear to the Hungarian authorities that he had in fact impersonated his brother at his trial. That seems to have been at about the end of 2003 or at the latest 2004. In 2007 when the appellant was deported from Hungary the district judge found that the appellant "hoped, and perhaps expected, from being so expelled, that he would be hearing no more from the Hungarian judicial authority".
40. Accordingly, it is submitted that it would be oppressive in the terms of the section to extradite the appellant by reason both of passage of time of some five years, and that a false sense of security was engendered in the appellant by the failure of the Hungarian authorities to prosecute him in respect of these offences when they had the opportunity. No submission was made that it would be unjust to extradite him on the basis that he cannot have a fair trial.
41. In addition, it is submitted that since he arrived in this country he has started a new life. He has two brothers resident in this country. His father died in this country. He is sending money to his mother in Romania and in due course hopes that she will be able to join him in this country. And he has found legitimate employment in this country. The delay in this case, it is submitted, is not simply the passage of time but includes culpable delay in that the Hungarian authority, whether deliberately or not, did not proceed against him when they had the opportunity but actually expelled him from their jurisdiction.
42. The Article 8 contention is really part and parcel of the Section 14 abuse of process application. It rests upon the creation of family life in this country and alleges it would be disproportionate now to extradite a man when, as now it appears, he has been extradited once from a different country for the very same offence.
43. The abuse of process argument draws from both the previous arguments.
44. In the result the appellant alleges that the combination of the passage of time, the actual and the now proven extradition of the appellant from Austria to Hungary in respect of these offences, the failure of the Hungarian authorities - when they had the opportunity to do so - to prosecute the offences and the creation of a family life in this country since 2007, together with their deliberate failure, as it is alleged, to inform the court via the respondent in this appeal of the previous extradition means that to return him now would be an abuse of the process of the court.
45. Because the abusive behaviour was directed at the English court, it is submitted that it is appropriate for this court to deal with it rather than - in other forms perhaps of alleged abuse of process - to leave it to the fair trial provisions of the receiving country. I am bound to say that had the evidence ended with the evidence set out up to the end of 2009, I would have seen much force in the combined submission.
46. At the core of this submission is the undoubted fact that the judicial authority had successfully sought his extradition for trial on these offences so they could have tried him but instead of doing so deported him from Hungary and then waited for 18 months or so before seeking his return. Further the information supplied had actually misled the district judge into making a wrong factual finding.
47. Further information has been received by the respondent from the judicial authority in the form of two letters dated 11 January and 12 February 2010. These letters set out the following relevant facts. (Once again, I paraphrase the translated documents.) First, the European arrest warrant 7.11.2005 was issued to the Austrian authorities in March 2005. The appellant was surrendered on that warrant and another warrant in October 2006. In respect of that second warrant he was sentenced to imprisonment and expulsion for five years from Hungary. That judgment became absolute on 14 April 2007.
48. The indictment in respect of the current offences was filed in July 2007. Absent extraordinary reasons, which do not apply in this case, trials in Hungary are taken in strict order of filing. No date had been fixed for the trial by October 2007. In October the issuing court was informed that the appellant was to be released from prison on 13 October 2007. The conditions which would enable a court to keep the appellant in custody in advance of his trial on these offences simply did not apply. He was therefore expelled from the country pursuant to the earlier sentence. However he was informed in person of the relaxation on the ban on his return, and in September he was served in person with the summons to his trial. So far as those last two matters are concerned, and insofar as they seek to go behind the finding of the district judge, the court is not prepared to re-enter that argument, and to rely on the finding of the district judge, having heard Mr Mihociu, that he could not be sure that Mr Mihociu had been informed of the content of the documents for which some member of his family - once again impersonating him this time - had a signed receipt.
49. It does seem to me that these letters do clarify the actual position and lead to the following conclusions.
50. Although the appellant was in Hungary following extradition, his trial had not been reached and there was no power to detain him in custody until the expulsion order contained in his earlier sentence was implemented. Secondly, the appellant was never told that the proceedings in respect of these offences had been withdrawn or dropped. Thirdly, if he had believed as much from the fact of his expulsion, he certainly had the means of discovering the fact that these proceedings were still live, he having admitted in evidence to the district judge that his father had informed him that documents had arrived and he simply chose to ignore them.
51. The passage of time, in my judgment, is not an issue so great as to engage the power of Section 14. The European arrest warrant for his arrest was issued only 11 days after his failure to attend his trial on 1 December 2008. For all that the authorities were aware, he had received the summons because they had a receipt purportedly signed by him stating so and they were expecting to see him on 1 December 2008.
52. Most extraditions involve an interference with the Article 8 rights of the extraditee. As Miss Searley accepted, the bar seems to have been raised in Norris. In this case the interference is undoubtedly proportionate to the legitimate purpose of extradition. Although he has been living here for more than two years, he has lived in a number of other countries and at least until recently had been something approaching a professional criminal in two of them. He still has family in his country of birth. It would of course have been more helpful from the point of view of the extradition hearing for a clearer picture to have been put before the district judge.
53. The new material produced by both sides can probably be categorised as the issue or evidence which was not available at the extradition hearing under Section 24A of the Extradition Act. However it is clear to me that the allegation of bad faith on the part of the judicial authority has not been made out. The judicial authority filed its indictment within a reasonable time. It was not in a position to remand the appellant in custody, and listing arrangements meant that it could not, before he was expelled, inform the appellant of the date of this trial. The judicial authority received that document purporting to be signed by the appellant and acknowledging the summons and the relaxation of the expulsion.
54. The information as to the previous European arrest warrant is not, as is conceded on both sides, a necessary part of the contents of an applicatin for a European Arrest Warrant as required by Section 2 of the Act (Article 8 of the Framework Decision). The judicial authority, perhaps unfortunately, was never asked in terms by the Crown Prosecution Service whether there had been a European arrest warrant to Austria in respect of these offences. Nothing in the two pre-hearing letters from the judicial authority states specifically that there was no such warrant. The proof or statement supplied by the appellant which was enclosed in a request from the Crown Prosecution Service makes no such specific claim. The existence of a previous warrant is in fact no bar to the issue of a fresh warrant. Although, as explained above, the new evidence would have resulted in the district judge deciding the question differently under Section 27 (4) (b) of the Extradition Act, I am quite satisfied that he would not have been obliged to order the appellant's discharge under Section 27 (4) (c) as a result.
55. I have considered these grounds both separately and cumulatively, but I would dismiss this appeal.
56. MR JUSTICE OWEN: I agree. It follows that this appeal is dismissed.
57. I would simply add that we are indebted to Miss Searley and Miss Bramwell for the character of their submissions and, secondly, for bringing the decision of the Supreme Court in Norris, given as recently as yesterday, to our attention.
58. MISS SEARLEY: My Lords, Mr Mihociu is legally aided. I wonder if I might have some detailed assessment.
59. MR JUSTICE OWEN: Yes, certainly.
60. MISS SEARLEY: The second matter is this: might it be possible to ask for an expedited transcript. Mr Mihociu has a keen interest in these proceedings and certainly would require, I anticipate, my advice regarding any further steps that might be open to him.
61. MR JUSTICE OWEN: Yes. We will indicate that there should be an expedited transcript at public expense.