QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|DISTRICT PUBLIC PROSECUTORS OFFICE ZWOLLE-LELYSTAD NETHERLANDS||Respondent|
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Mr Myles Grandison (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
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"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."
"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. 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 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."
"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. So where the application for discharge ... is based upon the 'passage of time' ... and not on absence of good faith ..., the court is not normally concerned with what could be an invidious task of considering whether mere inaction of the requisitioning government or its prosecuting authorities which resulted in delay was blameworthy or otherwise."
"(1) The offences of which the appellant was convicted were serious offences. Although he admitted them immediately, nevertheless he was kept in custody for over two years before being released on bail, still having been tried or sentenced."
(2) He did not deliberately flee the jurisdiction. He returned to his home in the Netherlands with the express permission of the French authorities. He has resided there throughout. At all times the French authorities have been aware of his address.
(3) He was not notified of his trial, which proceeded in his absence.
(4) Thereafter, although he was informed of the outcome of the trial and the sentence imposed, he was never notified that he was required to return to France to serve his sentence.
(5) There is evidence that he was advised by the Probation Services in the Netherlands and by his Dutch lawyers that he should wait to be summoned by the French authorities to serve his sentence. That never happened.
(6) The appellant was never made aware that there was a warrant issued for his arrest.
(7) Over twenty years have elapsed since the commission of these offences. On any view that is a very considerable period of time. To my mind, the length of time in itself is an important consideration ..."
I need not read more than that on that aspect:
"(8) The appellant has led a blameless, law-abiding and useful life since his return to the Netherlands. He has been involved in charitable and youth work.
(9) His partner was diagnosed in 2008 and is suffering from lung cancer. Her condition is deteriorating. She has no other family or close support in the Netherlands.
(10) The appellant has built up over the years two successful businesses. If he were now extradited to France, his partner would be unable to run the businesses on her own, in particular because of her medical condition."
"All this suggests to me that he will need to keep out of trouble for an appreciable amount of time if he is to demonstrate to the local authority that he has indeed reformed and is capable of providing his daughter with a safe environment in which she might prosper. In that sense 292 days in a Dutch prison might be to his advantage. That view was played no part in my decision."
That observation, understandably, has not been in any way prayed-in-aid by Mr Grandison. It was, with great respect to the District Judge, not something which was helpful for him to have stated.
"Although this might appear to suggest that one arm of the state does not know what another arm is doing such a view would be unfair. He had no right to remain in the Netherlands on the date of his deportation. On that date, as the criminal judgment was not enforceable, there was no power to prevent his voluntary departure let alone an involuntary one."
I regret to say that I find that impossible to accept, for reasons I have already indicated, and indeed the information given does suggest that he was deported because the immigration authorities were unaware of the criminal procedure.
"There are several reasons why the EAW ... was drawn up only after a considerable time. In the Netherlands, for instance, it was not possible until April 2005 to use special investigative means in respect of cases of convicted fugitives. As a result of an amendment to Netherlands criminal legislation on this matter, investments were made to form the Criminal Sentences Execution Team. This team, under the responsibility of the Public Prosecution Service, focuses on cases of convicted persons who attempt to evade execution of the sentences imposed on them. Issuing (international) alerts regarding these persons is also one of the competencies of this team, which became operational in 2007 after a start-up period. All this resulted in EAWs being drawn up in a more systematic manner at present than before in the Netherlands for persons requested in connection with the fact that they still have to serve a sentence. Because a backlog arose in these cases, it can happen that some more dated cases have only been included recently in the international search registers. It should be noted explicitly that cases are presented for international alerts only if the limitation period for execution has not yet started under Netherlands criminal law."
The limitation bites in June of this year, following a 16 year period, so that, if he is not returned to the Netherlands before June, he will not be able to serve the sentence in any event. Effectively, the delay was really 15 years rather than 16 years, although now it amounts to 16 years.