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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> King, R (on the application of) v Government of Australia & Anor [2010] EWHC 83 (Admin) (12 January 2010)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/83.html
Cite as: [2010] EWHC 83 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
____________________
| THE QUEEN ON THE APPLICATION OF | ||
| ANTHONY KING | Applicant | |
| v | ||
| (1) GOVERNMENT OF AUSTRALIA | ||
| (2) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT | Respondents |
____________________
WordWave International Limited
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(Official Shorthand Writers to the Court)
Ben Brandon (instructed by Crown Prosecution Service) appeared on behalf of the First Respondent
Melanie Cumberland (instructed by the Treasury Solicitor) appeared on behalf of the Second Respondent
____________________
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- MRS JUSTICE COX: This is an application for bail in an extradition case which has been continuing now for some time. Bail was last refused by Senior District Judge Wickham at City of Westminster Magistrates' Court on 18th December 2009 and the applicant, Anthony King, is now applying for bail to this court.
- The background facts are these. The applicant was arrested in the United Kingdom on 17th December 2003 pursuant to an extradition request issued by the Government of Australia. His extradition is being sought so that he can be tried for serious offences arising from his alleged participation in a conspiracy to import large quantities of MDMA, ecstasy, into Australia in 2003.
- On 15th November 2004 District Judge Wickham committed the applicant into custody to await the decision of the Secretary of State for the Home Department on the question whether to order his extradition.
- On 23rd February 2005 the applicant made representations to the Secretary of State inviting him to decline to order extradition under section 12 of the 1989 Extradition Act. Further representations were then made on his behalf from a different firm of solicitors instructed to represent him. Eventually, on 30th June 2006, the Secretary of State made an order for the applicant to be extradited.
- This decision was then challenged by way of judicial review. On 19th February 2007 the High Court refused the applicant's renewed application for permission to apply for judicial review. However, on 2nd March 2007, the applicant applied to the European Court of Human Rights on the question whether his extradition would constitute a violation of his rights under Articles 6 and 8 of the European Convention.
- On 2nd April 2007 the European Court of Human Rights gave an indication under Rule 39 of the Rules that the applicant should not be extradited to Australia until the Court had examined his application. That decision was communicated to the UK Government in a letter dated 3rd April 2007.
- The question posed by the Court to the UK Government is whether the applicant's intended surrender would violate Articles 2 or 3 of the Convention. The Government was also requested to clarify whether the imposition of a life sentence without any possibility of early release on parole would be likely in the event of the applicant's conviction in Australia and, if so, whether that would be consistent with the requirements of the said articles.
- The Secretary of State, who has also appeared before me today, has helpfully set out in his chronology what has happened since that letter, in terms of the proceedings before the European Court of Human Rights. There is no need for me to refer to all the steps that have been taken. In summary, over the last 2 years observations have been submitted on the various issues raised and the parties have been given the opportunity to submit further observations responding to each side's arguments.
- Ultimately, the Court invited this Government, on 7th July 2009, to submit further observations, not only in this applicant's case but in relation to six other applications currently before the Court in which similar issues are raised. The Court has decided that all these seven cases should be linked and considered together.
- Combined observations were served by the UK Government in all seven cases on 15th September 2009. We have now, therefore, arrived at the position where the written pleadings have been finalised by all parties to the seven linked applications, including that of this applicant.
- It is unclear when a decision will be taken by the Court, but the best evidence before me today is that there has been a conversation recently between the agent for the UK Government and the registrar of the European Court from which it is understood that all the seven linked applications are currently before the Court, that the Court is well aware that all the applicants are in custody and that the Court is dealing with them "as a matter of priority".
- Two previous applications for bail were made on this applicant's behalf to District Judge Wickham on 4th July 2008 and then, as I have already indicated, most recently on 18th December 2009.
- In refusing these applications the District Judge has emphasised that these are offences of the utmost gravity; that it is clear that the alleged co-defendants have received very long sentences; and that if this applicant were to be convicted in Australia the sentence would be a very long one. The District Judge took the view that no bail conditions could ever satisfy her that he would surrender to face extradition to Australia.
- That summary of the key factors behind the District Judge's decision to refuse bail encapsulates the Objecting State's position on this application. It is submitted that the offences are so grave that any sentence that this applicant would receive would be a long one and that he poses a very serious flight risk which could not adequately be met by appropriate conditions.
- On this applicant's behalf Mr Jobling has rightly referred to the wealth of evidence now put before the court as to the way that matters have moved on for this applicant. He now has a wife and children and settled family ties, as to which there is a great deal of evidence in the bundle before me. There is evidence too of the availability of sureties and Mr Jobling refers in addition to the evidence which demonstrates that whilst he has been in custody the applicant has shown himself to be an exemplary and trusted prisoner.
- Mr Jobling emphasises that there has already been a lengthy delay in this case and that there comes a tipping point when it is no longer tenable for someone in his position to be kept in custody. He submits that that point has now been reached, that the matter has gone beyond the tipping point, and that he should be released on bail.
- Putting everything in the balance, as I must, I take the view that the tipping point has not yet been reached. It is not in dispute that these are offences of the utmost gravity: they are serious, Class A drug offences involving very high value and high quantities of Class A drugs. It is clear that any sentence which would be imposed on this applicant, were he to be convicted of these offences, would indeed be long. He is alleged to be the principal organiser, or at least one of the principal organisers, of these major conspiracies.
- In relation to the flight risk which is said to be posed, there is clearly evidence, to which Mr Brandon has referred in his documentation, showing that the applicant was involved in these offences. There is, in particular, evidence from an undercover police officer, from informants who were originally co-conspirators, covert surveillance of the applicant's movements in Australia and intercept evidence in a form which is admissible in courts in Australia.
- I take the view that, having regard to these matters, the incentives to abscond and avoid extradition are clear, but there is further evidence before me. There is no dispute that this applicant has absconded in the past and it also appears from his antecedents that if he were convicted of these offences in Australia, they would have been convicted on licence, the applicant having been released conditionally from a 14-year sentence for drug trafficking imposed in October 2000 at Isleworth Crown Court and Snaresbrook Crown Court.
- In all these circumstances, I refuse bail. However, given the delay and the time already spent in custody by the applicant, I am persuaded that there is some force in the point Mr Jobling makes as to the tipping point in such circumstances as these. If within 6 months from the date of this order today refusing bail there is still no decision from the European Court, and no clear indication as to when the decision might be handed down, I shall grant liberty to this applicant to renew an application to this court, so that the matter can be reconsidered.
- Thank you very much for your help.