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
		23 February 2011

1. MR JUSTICE BURNETT: This is an appeal under section 26 of the Extradition Act 2003 against the order of District Judge Purdey of 23 November 2010 ordering the appellant's extradition to Lithuania. His extradition had been sought pursuant to a European Arrest Warrant issued on 17 August 2009 and certified by the Serious Organised Crime Agency on 7 February 2010. He was arrested pursuant to the warrant on 26 May 2010 in circumstances to which I shall return.

1. In the course of his written ruling, the district judge rejected an argument that the passage of time since the alleged offences were committed made it unjust or oppressive to extradite the appellant. He also rejected an allied argument that extradition would result in a breach of Article 8 of the European Convention on Human Rights.
2. In her focused skeleton argument and oral submissions today, Miss Jarret, who appears for the appellant, has concentrated on the essential issue, namely whether, in consequence of the passage of time, it would be "oppressive" to extradite the appellant to Lithuania. She submits that the district judge erred in failing to discharge the appellant on that basis.
3. The European Arrest Warrant with which this case is concerned is an accusation warrant alleging five offences, all of which were said to have been committed in 1997. They are as follows:

1. 19 January 1997, stole an Audi 900 car from a yard at an identified address.

2. 29 January 1998, stole an Audi 100 car, location specified.

3. 3 February 1997, stole a Mercedes Benz 190 car at an identified location.

4. 6 March 1997, stole an Audi 100 car, location specified.

5. 7 June 1997, assaulted by intentionally kicking an identified man and hit another man several times in the face at the dancing hall of the leisure centre located in Kazlu Ruda.

4. Sections 11.1(c) and 14 of the Extradition Act 2003 provide between them that it is a bar to extradition if it appears that it would be unjust or oppressive to extradite the person concerned by reason of the passage of time that has elapsed since the commission of the alleged offences. The meaning of the phrase "unjust or oppressive" was considered by the House of Lords in the context of antecedent legislation in Kakis v Government of Cyprus [1978] 1 WLR 779 and, more recently, in Gomes v the Government of Trinidad and Tobago [2009] UKHL 21. The passage of time with which the statutory provisions are concerned is between the commission of the alleged offences and the first occasion on which the ground for resisting extradition can be raised by the requested person. In this case that of course was before the district judge.
5. At page 782H and following, Lord Diplock said this in Kakis:

"'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. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances, it would be neither unjust nor oppressive that he should be required to accept them. 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".

6. In the considered opinion of the committee in the case of Gomes Lord Brown of Eaton under Heywood said this at paragraph 31:

"The other main question discussed at some length during the argument is what approach should be adopted to the concepts of injustice and oppression within the meaning of section 82. This is of course touched on in the first sentence of Diplock para 1 and, so far as concerns oppression, it is worth noting too Lord Diplock's statement (at page 284) that 'the gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would render his return to stand his trial oppressive'. That said, the test of oppression will not easily be satisfied. Hardship, a comparatively common place consequence of an order for extradition, is not enough."

7. Numerous cases showing the application of those principles in this court have been produced by counsel and referred to in their skeleton arguments. Those cases inevitably turn on their own facts. It is sufficient at this stage to cite two short passages from other authorities. First, from paragraph 22 of the judgment of Lloyd Jones J in Wenting v High Court of Valenciennes [2009] EWHC 3528 (Admin) on the approach to oppression:

"Turning to the question of oppression, I bear in mind the observation of Moses LJ in USA v Tolman and Tolman [2008] EWHC 184 (Admin) where he said this: '49. There is a danger in applying the jurisprudence of the court as if it has statutory force. It is to the words of the statute that the courts must look in considering whether there is a statutory bar to extradition. That principle was clearly expressed by Laws LJ in La Torre v Republic of Italy [2007] EWHC 1370 (Admin) at paragraph 37. He emphasised the danger of courts straying too far from the simple words of the statute, summarised the relevant jurisprudence in a few sentences, and concluded: 'an overall judgment on the merits is required, unshackled by rules with two sharp edges''".

8. Second, a short citation from the judgment of Calvert Smith J in the case of Kovac. He said:

"The factors that the court has to take into account include the seriousness or otherwise of the alleged offending and, as a possible balancing factor, if the case is thought to fall close to or on the border line of oppression, any culpable delay on the part of the requesting state".

9. I turn to the facts of this case. The evidence in this case upon which the district judge made his decision came from the appellant in two witness statements, confirmed and augmented in oral evidence, together with a number of notes from the Lithuanian authorities. Much of the cross-examination of the appellant before the district judge went to the question whether he had fled Lithuania, in the sense of knowingly evading prosecution. That was an important part of the case being run by the Government of Lithuania before the district judge. As the citations from both Kakis and Gomes emphasise, if the requesting state can prove that the requested person is a "fugitive", to use a term often used, for one of the various reasons identified by Lord Diplock in Kakis, then the period flowing from that is effectively discounted for delay purposes.
10. The district judge found that the appellant had not knowingly evaded the prosecuting authorities. That conclusion is rightly not impugned by Mr Grandison, who appears for the respondent today. He does submit, however, that there is evidence which this court should take into account that the appellant left a false address with the police authorities when he was interviewed by them in early 1997.
11. A summary of the appellant's evidence is necessary to understand his case on oppression. He was born on 7 March 1977 and so was only 19 at the date on which a number of the alleged offences were said to have been committed and just 20 for the balance. His mother died when he was 6 and he went to live with a grandmother rather than staying with his father. For reasons that will become apparent, that may be a significant fact. On leaving school at the ages of 17 or 18 he tried his hand at various jobs and, in due course, set up by trading in second hand furniture and second hand cars from Germany. That required him to travel to and from Germany from Lithuania to obtain his goods. He said that he stopped that trade in the late 1990s and then worked in the building industry for a while. In 2003 he renewed his Lithuanian passport with a view to coming to the United Kingdom both to work and, if possible, to settle. He came to the United Kingdom in 2003. The evidence suggests that he has not been back to Lithuania since. He worked in various jobs in the years that followed. It is now apparent that for much of the time he was in self-employment and, for the purposes of an immigration tribunal decision, which again I shall return to, he was able to produce documentary evidence supporting that state of affairs.
12. Unfortunately, the appellant fell into some bad ways and got into trouble with the police and the courts on a number of occasions. I use the appellant's first statement as the source of the summary:

"Since I have been in the UK I have had some criminal convictions. These include a conviction at South West Magistrates' Court for failing to provide a specimen for analysis on 29 April 2005 and 14 June 2005; conviction at same court for common assault on 26 August 2005; failing to surrender to custody at same court on 29 January 2007; conviction for being drunk and disorderly at Sussex Magistrates' Court on 18 January 2008; conviction for theft, shoplifting at South West Magistrates' Court on 18 July 2008; as well as a conviction of Guildford Crown Court on 25 August 2009 for intimidating a witness, which led to a custodial sentence of 18-months; and conviction at South West Magistrates' Court for common assault on 10 September 2009."

13. In the ordinary way, the sentence of 18-months resulted in a 9-month custodial element which should have resulted in the appellant's release from prison on 26 May 2010. However, on that same day he was served both with the European Arrest Warrant and also deportation proceedings. Those deportation proceedings related to the attempt by the Secretary of State for the Home Department to remove the appellant to Lithuania on grounds of public interest flowing from his 18-month sentence and conviction for the serious offence of intimidating a witness.
14. The appellant appealed against the deportation order that had been made and was successful in his appeal before the First Tier Tribunal Immigration and Asylum Chamber. The decision of that chamber was promulgated on 13 October 2010. The essence of the decision was that it would not be right to deport the appellant, given the long time that he had been residing here and the nature of his family relationships.
15. Miss Jarret tells me that the Secretary of State appealed to the Upper Tribunal and the appeal has been heard and determined against her. However, no copy of that determination is available.
16. The appellant remained in custody until August of 2010 pursuant to the European Arrest Warrant. In August 2010 he was granted bail.
17. Prior to the appellant's incarceration he had started a serious relationship with a lady who is a British national and whom he describes as his fiancé. They have a daughter who was born on 22 November 2009, his fiancé has four other children who the appellant has supported. The whole family unit has lived together as a family. Evidence has been produced today, by way of a 20 week scan, which shows that the appellant and his fiancé are expecting another baby some time in June this year. Mr Grandison did not object to the introduction of that evidence but makes the point that the baby was conceived after the appellant was released from custody, in circumstances where both he and his fiancé were aware that he was the subject of extradition proceedings.
18. The appellant accepted before the district judge that he had been interviewed by the Lithuanian police in 1997, on a date that he by now is unable to remember. He explained that he was not charged with any offence, nor were any measures of constraint placed upon him. He told the district judge that he had no idea that he was a wanted person when he left Lithuania. Mr Grandison has confirmed that there was no arrest of this appellant in 1997, he was not subject to any bail or other conditions, he was not told that he had to notify the authorities of his whereabouts or changes of address or matters of that sort and, in those important respects, the evidence of the appellant was and remains agreed.
19. The information from the Lithuanian authorities, as I have indicated, has come in the form of three notes provided since the arrest warrant itself was issued. The first note explains that the appellant has been wanted for these offences since 4 August 2005. It describes the four theft offences as of "average gravity" and the offence of assault or public order as of "minor gravity". It is suggested that the appellant did not reside at the residence or the address he had declared to the police. Nor was he at another address which the authorities had established might be his. This first note suggests that there were enquiries of friends and relatives but that they did not turn up an address in Lithuania, or indeed elsewhere.
20. The next note, the second, set out details of the five alleged offences. It suggests that the appellant was interviewed on 9 March 1997 and 3 July 1997. It suggests that he was treated as a suspect in relation to two of the five offences. There is language in this note which, at least in translation, suggests that the appellant had gone into hiding, but the note nonetheless makes clear that the appellant had never been arrested or made subject to any restraints. It is said that, after a decision to charge had been made on 15 August 1997, the police did not find the appellant at home. On this occasion it suggests that the police spoke to his father. However, his father said, as recorded in this note, that he did not know his son's address because he did not "socialise" with him. "Socialise" is the word used in the translation but the context suggests that the appellant's father was saying that he did not have contact with his son. I noted, when outlining a description of the appellant's early years, that after his mother's sad death he went to live with a grandmother not with his father and that the fact might be significant. The significance is apparent from the observation made by his father which I have just recorded.
21. The third note states that the appellant was not required to return to the police station, neither was he told that he might be questioned again. It suggests that on 4 August 1997 the police visited the address given by the appellant during interview. That person is referred to as someone with the same surname as the appellant but a different first name, or at least a different initial, is given. The note does not explain how the appellant's father, family members (which are mentioned in the plural) or acquaintances to whom the police did manage to speak were contacted or found.
22. The Lithuanian authorities further explained in that note that no efforts were made between 1997 and 2005 to locate the appellant. They started making enquiries in August 2005. They heard of his presence in the United Kingdom in October 2007. The European Arrest Warrant followed 21-months later.
23. Miss Jarret submits that there is no proper basis for concluding that the appellant provided a false address. The address referred to by the prosecuting authorities in the note is, on its face, for a different person. It is an address of which the appellant denies all knowledge. I do not read the ruling of the district judge as finding that the appellant did provide a false address. Indeed, the conclusion of the district judge that the appellant was not a fugitive suggests that he believed the contrary.
24. I agree with Miss Jarret's submission that the material provided by the Lithuanian authorities does not prove that point. The fact is that the appellant presented himself for interview at least once. He remembers only one interview not two, but before he presented himself for interview there must have been contact with him. He was not arrested. It is extremely difficult to understand how the Lithuanian authorities lost track of him. The appellant was residing in Lithuania and regularly coming and going across the border to conduct his business in Germany.
25. Miss Jarret also points to an error in the second response which suggests that an investigation was opened on 31 January 1997 into the theft of the Mercedes, which it is said did not occur until 3 February 1997. In the same response it is said that offences came to light on 2 July 1997 when there is a reference to the appellant being interviewed in respect of those offences long before. I should emphasise that it is no part of Miss Jarret's case on behalf of the appellant that the Lithuanian authorities have acted in bad faith or in some way deliberately misled this court or the district judge. Her point is a more straightforward one, namely that when one can point out errors on the face of a document, the result is that one can have little confidence in the accuracy of the facts stated.
26. In my judgment, Miss Jarret is right to point to the contradictions and errors found in the material that has come from the prosecutor and, quite apart from the appellant's denial, to identify the implausibility in the assertion that a false address was given. I repeat, therefore, that I am not satisfied on the material available that the appellant did give a false address or in any way sought to place himself beyond the reach of the prosecuting authorities in 1997.
27. I proceed to consider the question of oppression on that basis.
28. The starting point in the evaluation of the question whether extradition would be oppressive is that these alleged offences occurred over a period of 6-months from January 1997, a period of between 13 and 14 years before the appellant's appearance before the district judge. The appellant was a very young man at that time. The reality is that all of his adult life has occurred since the early months of 1997; a large part of that adult life has been spent in the United Kingdom. The appellant has made his life here, he has developed family ties, albeit that the family ties are, in chronological terms, relatively recent.
29. Mr Grandison understandably prays that in aid in support of his submission that this case does not move from the arena of hardship into the arena of oppression. Mr Grandison also submits that, for some of the time during which the appellant should have been enjoying his family life, he was, as a result of his own criminality, serving a sentence of imprisonment. More generally, Mr Grandison reminds me that the fact that an appellant has been engaged in criminal activity in the period between the alleged offences and the extradition proceedings is something that might weigh in the balance against the appellant establishing oppression. For that proposition he relies upon paragraph 13 of the judgment of Kenneth Parker J in Kovac v Regional Court in Prague [2010] EWHC 1959 (Admin).
30. Be that as it may, the appellant's life has been in the United Kingdom since 2003. He has family here and, despite the fact that, as Mr Grandison reminded me, a number of the children for whom he has financial and no doubt emotional responsibility to some extent are his fiancé's and not his, that is a feature of some weight.
31. It is accepted that the appellant had no reason to suppose that the offences for which he was questioned all those years ago in 1997 were still being pursued. It is proper in this case, in my judgment, to conclude that the appellant has truly been lulled into a false sense of security as a result of the inaction on the part of the Lithuanian authorities. The offences are described by the Lithuanian authorities as of "average gravity" so far as the car thefts are concerned, and "minor gravity" so far as the other alleged offences are concerned. This is not one of those cases in which the very serious nature of the alleged offences weighs heavily against a finding of oppression.
32. Miss Jarret summarised the appellant's case on oppression by reference to a list of ten points that she set out in paragraph 30 of her skeleton argument. In doing so, she sought to emulate the approach of producing such a list which is found in the judgment of Lloyd Jones J in Wenting. The ten points identified by Miss Jarret are these:

"1. The offences for which the appellant is requested are not serious offences and they are pre-conviction.

2. He did not deliberately flee the jurisdiction.

3. In fact, he remained working and regularly travelling in and out of Lithuania between 1997 and 2003.

4. The requesting state can provide no explanation for the delay and admit that they did not search for the appellant during this time.

5. The appellant was never made aware that there was a warrant out for his arrest. He did not know that he was wanted in respect of these offences until he was served with the EAW in 2010.

6. Over 13 years have elapsed since these offences were alleged to have taken place. There is no explanation for the delay.

7. The appellant has been engendered with a false sense of security.

8. The appellant has moved to another country with the expectation that he need not return to Lithuania as he has no family ties there now.

9. The appellant has a fiancé, a child and four step children. All these relationships have been forged when he did he not know that there were any outstanding matters whatsoever that may concern him in another jurisdiction, namely Lithuania.

10. These family members depend upon him as a father husband and a provider in the United Kingdom."

33. The reference to the offences being pre-conviction is found in that list because a number of the cases placed before me, including some in which oppression was found, concerned cases which followed conviction and also, as it happens, cases in which the offences were, on any view, rather more serious than those with which this case is concerned.
34. It seems to me that this is a neat summary of the germane points in this case that can be drawn from the broad factual circumstances that I have sought to outline. Taking all those into account, the factors I have outlined and, in particular, the additional factor of the appellant's youth at the time of the commission of the alleged offences in 1997, I am persuaded that extradition would not simply bring hardship to this appellant but would be oppressive.
35. For that reason, this appeal must be allowed and the appellant will be discharged.
36. Yes? Any ancillary matters that need to be dealt with?

38. MS JARRET: My Lord, only --

39. MR JUSTICE BURNETT: I understand your joy at the result, but it would be better to wait to thank Miss Jarret properly until she has finished the case.

40. MS JARRET: I am sorry, my Lord. Only that the appellant is legally aided, so for the appropriate taxation to be assessed, or costs to be assessed.

41. MR JUSTICE BURNETT: Yes. So you need a public funding assessment.

42. MS JARRET: Thank you.

43. MR JUSTICE BURNETT: Whatever the usual form of words in one of these is, which we always have to look to the associate to find for us. But that will be done.

37. Yes. Well, thank you very much indeed. Let me hand you back the original of the Asylum and Immigration decision.
38. I am grateful to both of you for your assistance. Mr Grandison, we would not have got to the other case would we?

46. MR GRANDISON: My Lord, probably not, no. Thank you very much for your foresight.