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
		01/05/2012

The Hon Mr Justice Burnett:

Introduction

1. This is an appeal brought pursuant to section 26 of the Extradition Act 2003 ["the Act"] against the order of District Judge Purdy of 15 November 2011 whereby he ordered the extradition of the appellant to Poland pursuant to section 21(3) of the Act. The extradition of the appellant was sought by a European Arrest Warrant ["EAW"] issued on 15 February 2011 by the Regional Court in Gdansk, Poland. The EAW was certified by the Serious Organised Crime Agency on 19 April 2011. A number of arguments were advanced before the District Judge in opposition to extradition. Before us Mr Hugo Keith QC has advanced but one argument on behalf of the appellant: his extradition to Poland would be unjust or oppressive by reason of the passage of time since the commission of the offences for which he is sought. If that argument is made good, then by virtue of sections 11(1)(c) and 14 of the Act there would be a bar to his extradition.
2. As material, sections 11 and 14 of the Act provide as follows:

"11(1) If the judge is required to proceed under this section he must decide whether the person's extradition to the category 1 territory is barred by reason of—

...

(c) the passage of time;

...

(2) Sections 12 to 19 apply for the interpretation of subsection (1).

(3) If the judge decides any of the questions in subsection (1) in the affirmative he must order the person's discharge.

...

(5) If the judge decides those questions in the negative and the person is accused of the commission of the extradition offence but is not alleged to be unlawfully at large after conviction of it, the judge must proceed under section 21."

Section 14:

"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 -

(a) committed the extradition offence (where he is accused of its commission), or

(b) become unlawfully at large (where he is alleged to have been convicted of it)."

Poland is a category 1 territory. Section 21 contains a provision which requires the court to consider human rights arguments if they arise.

The Facts

3. The facts of this case are unusual. It is necessary to distinguish between the facts as explained by the material before the District Judge, and as further illuminated by two very recent communications from the Polish authorities which were placed before this court de bene esse.
4. The EAW in issue is an accusation warrant. The appellant is wanted in Poland for trial in respect of two offences committed in 1999. The first in time is described as a burglary which occurred on 1 November 1999 and the second a mugging which occurred on 24 November of that year. Both offences are said to be aggravated in that they were committed within five years of the appellant having served a four year prison sentence. The second offence was alleged to have been committed as part of a gang attack. The material before the District Judge did not provide detail concerning the progress made in respect of the prosecution of these offences. The picture was that the appellant was one of a large number of defendants tried together. He was remanded in custody in respect of these offences between 13 August 2004 and 22 June 2005. That period of detention occurred after the indictment had been filed in the Regional Court. The appellant's own evidence before the District Judge was that he had spent a total of about four years in custody between the commission of the alleged offences and the Court's judgment, but it was clear, on the material provided by the Polish authorities which was before the District Judge, that any detention beyond these ten months was not in connection with the offences covered by the EAW. There was a trial of his co-defendants (twelve in all) but the appellant himself pleaded guilty to the two counts he faced. The material was silent as to when he was first suspected of the offences, when he was first apprehended and also when he entered his guilty pleas. On 2 June 2008 the Regional Court in Gdansk delivered its judgment. It convicted the other defendants and imposed various sentences upon them. The appellant was sentenced to a total of two years and ten months imprisonment. Polish law provides that time spent on remand counts towards the sentence and also that a convicted prisoner will ordinarily be released from custody after serving three quarters of the sentence. Mr Keith explained that the appellant was present when the Court gave its judgment, but he was not immediately taken back into custody to complete his sentence. Nonetheless, it is not in dispute that the appellant was obliged to keep in touch with the Court as part of the conditions of his bail.
5. In October of that year the appellant left Poland and came to the United Kingdom. It is accepted by the appellant that he left Poland without authority and from that date was a fugitive. Following the decision of the Gdansk Regional Court a number of the appellant's co-defendants appealed. They were successful. On 26 November 2009 the Appellate Court in Gdansk allowed the appeals and quashed the convictions. Article 435 of the Polish Penal Code provides that where one co-accused is successful in an appeal, the convictions of other co-accused will be quashed so long as the same arguments are available to them. It is a provision which is designed to avoid the need for defendants launching late appeals on the back of those successfully run by their co-accused. As such, it is a provision which provides a benefit on such co-accused. It has no parallel in English law. It is in those circumstances that the appellant's convictions were quashed without his having appealed or even being aware that there was an appeal. A letter dated 27 September 2011, which was before the District Judge, gave more information. It explained that the error into which the Regional Court fell was to treat the single count alleging mugging as two. It had considered that the gang involvement connoted a separate offence, rather than being a feature of the single offence. The Regional Court had sentenced for three offences rather than two. That letter also explained that a feature of the Polish legal system is that a conviction, and indeed sentence, does not become final on its pronouncement by the Regional Court. If appeals are lodged, the decision does not become final unless it is affirmed by the Appellate Court.
6. The information contained in the two recent letters, which were not before the District Judge, indicates that the authorities in Poland only became aware of the appellant's involvement in the offences on 2 October 2003, in response to which he was arrested on 12 October 2003. The indictment against the appellant and his co-accused was lodged on 4 February 2004. The delay between then and June 2008, when judgment was given, was the result of the reporting judge changing with the result that some evidence had to be taken a second time. At the time of his arrest the appellant was wanted in respect of another outstanding sentence. Although he was in custody from the date of his arrest, he was serving another sentence until 13 August 2004. Then, as already noted, he was in custody in respect of these charges. Between 22 June 2005 and 2 April 2007 he was serving yet another sentence unconnected with the extradition offences.
7. The District Judge concluded that because the appellant had left Poland during the currency of the proceedings without consent, and was thus a fugitive, he was obliged by authority to hold that the passage of time bar identified in section 14 of the Act was altogether unavailable. He went on to hold that, were he to be wrong in that conclusion, that extradition would not be oppressive.

The Submissions

8. Mr Keith submits that the District Judge erred in concluding that the appellant could not rely upon any delay because, as was accepted, he was a fugitive after October 2008. The appellant's contention is that he is able to rely upon the delay between the commission of the alleged offences in 1999 and October 2008 in support of his argument that extradition now would be oppressive. Mr Keith further submits that being exposed to a second trial process in the circumstances on the appeal by other co-accused is, in itself, oppressive irrespective of the fact that the events giving rise to the argument post-date the appellant's flight from Poland. I note that no separate human rights argument is advanced on the basis that the trial process in train in Poland is so unfair that to extradite the appellant would put the United Kingdom in breach of its obligations under the European Convention on Human Rights. Such an argument is at least in theory open under section 21 of the Act, but in my judgment is rightly not advanced in this case. Poland is a signatory to the Convention and may be expected to accord a defendant in criminal proceedings the full panoply of protections afforded by Article 6 of the Convention.
9. In support of his arguments, Mr Keith places particular reliance of the decision of this court in Oncel v HM Prison Brixton [2001] EWHC Admin 142 in which the applicant's extradition to Turkey was refused on grounds including the passage of time.
10. Mr Stansfeld submits that the District Judge was right to conclude that the appellant's flight from Poland shut the door on an argument based on delay. In the alternative he submits that if the appellant can rely upon delay in the period between 1999 and 2008 he must show that there was a change in his circumstances during that period which makes extradition oppressive. He further submits that there must be a causal connection between the delay and the oppression. To the extent that the appellant prays in aid the events that have developed in the prosecution since he left Poland, they were not caused by the delay. Finally, he submits that the District Judge was right to conclude that, on the facts of this case, no oppression is made out. He reminds us that the appellant placed no evidence before the District Judge of the impact of any delay upon him. He relies simply on the passage of time coupled with the fact of a retrial.

Discussion

11. At the heart of both parties' submissions is the decision of the House of Lords in Gomes v Government of the Republic of Trinidad and Tobago [2009] UKHL 21; [2009] 1 WLR 1038 in which Lord Brown of Eaton-under-Heywood gave the considered opinion of the Committee. The House of Lords had before it two appeals concerning individuals who were on bail in respect of offences, but had left Trinidad and Tobago and thus become fugitives. The first appellant had been arrested on 21 November 2002 and failed to surrender to his bail in February 2003. He had left the country. His extradition was sought in 2006. The second appellant was arrested on 15 May 1998 for two serious offences. The two charges proceeded separately. On the first he was discharged on 4 November 1999 following a successful argument that there was no case to answer. The prosecution immediately indicated their intention to appeal. He continued on bail in respect of the second offence but left the country in December 1999. It is immediately apparent from this short summary of the facts, that there was no delay involved in these cases before the respective appellants left Trinidad and Tobago. It was post-departure delay that was in issue.
12. Lord Brown discussed the judgment of Lord Diplock in Kakis v. Government of Cyprus [1978] 1 WLR 779, concerned with earlier legislation in very similar terms. At pages 782-783 Lord Diplock said this:

" '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 change 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. So where the application for discharge under section 8(3) is based upon the "passage of time" under paragraph (b) and not on absence of good faith under paragraph (c), 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. Your Lordships have no occasion to do so in the instant case."

In Kakis the appellant had gone into hiding for 15 months after the commission of the alleged offence. In the result that period was disregarded for the purposes of delay.

13. At paragraph [21] in Gomes Lord Brown explained that:

"The certified question principally concerns [that part of Lord Diplock's speech] which states that, "save in the most exceptional circumstances",

"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 … be relied upon as a ground for holding it to be either unjust or oppressive to return him."

In other words, the accused cannot pray in aid what would not have happened but for the additional passage of time for which he is responsible. (In speaking of "delay in the commencement or conduct of extradition proceedings" Lord Diplock was clearly referring to delay in the overall process of bringing the suspect justice, including delay before any question of extradition arose."

14. The question for consideration by the House of Lords in Gomes was whether the approach identified by Lord Diplock in Kakis held good in circumstances where the requesting state was alleged to share responsibility for the delay in the period following the person concerned becoming a fugitive. On that the House of Lords held:

"26. … This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not "of his own choice and making".

27. There are sound reasons for such an approach. Foremost amongst them is to minimise the incentive on the accused to flee. There is always the possibility, often a strong possibility, that the requesting state, for want of resources or whatever other reason, may be dilatory in seeking a fugitive's return. If it were then open to the fugitive to pray in aid such events as occurred during the ensuing years—for example the disappearance of witnesses or the establishment of close-knit relationships—it would tend rather to encourage flight than, as must be the policy of the law, discourage it. Secondly, … deciding whether "mere inaction" on the part of the requesting state "was blameworthy or otherwise" could be "an invidious task". And undoubtedly it creates practical problems. Generally it will be clear one way or the other whether the accused has deliberately fled the country and in any event, as was held in Krzyzowski [2007] EWHC 2754 (Admin) DC, given that flight will in all save the most exceptional circumstances operate as an almost automatic bar to reliance on delay, it will have to be proved … It is one thing to say—as Lord Edmund-Davies said in Kakis and later Woolf LJ said in Osman (No. 4) and Laws LJ in La Torre—that in borderline cases, where the accused himself is not to blame, culpable delay by the requesting state can tip the balance; quite another to say that it can be relevant to and needs to be explored even in cases where the accused is to blame."

15. Lord Brown concluded in paragraph [39]:

"It follows from what we have said … that neither appellant, as a "classic fugitive", can invoke the passage of time, lengthy though it is, since their respective alleged offences."

16. Mr Stansfeld relies upon this observation of Lord Brown, coupled with his reference to Krzyzowski in paragraph [27] of the considered opinion, in support of his submission that, even though such delay as occurred between 1999 and 2008 was not the result of the appellant fleeing Poland, he cannot rely upon it in support of a passage of time argument. I reject that submission. Krzyzowski, like Gomes, was a case in which the flight took place close to the commission of the alleged offences so the question of how to treat a period of delay said to result in oppression before the accused person's flight was not in issue. It is clear from the language of Lord Diplock and Lord Brown that it is only delay following flight, upon which the requested person ordinarily may not rely. Lord Diplock spoke of 'delay … brought about by the accused himself' and 'delay due to such causes'. Lord Brown spoke of delay 'for which he is responsible' [21], and responsibility for 'the ensuing delay' [26].
17. In my judgment the appellant can pray in aid the passage of time between the commission of the offences and his departure from Poland in support of an argument that to extradite him now would be unjust or oppressive. That said, there was no material before the District Judge, nor is there any before us, which speaks to any particular oppression suffered by the appellant as a result of that delay, nor any injustice that he suffered during that period or as a result of the passage of that time. In paragraph [34] in Gomes Lord Brown observed that in considering questions of injustice, the court should have regard to domestic law safeguards in the requesting state. At paragraph [35] he added:

"Council of Europe countries in our view present no problem. All are subject to article 6 of the convention and should readily be assumed capable of protecting and accused against an unjust trial - whether by an abuse of process jurisdiction like ours or in some other way."

18. In reality, the appellant does no more than suggest that the period of almost nine years between the commission of the offence and the original judgment of the Regional Court is a substantial period and thus, in some way, gave rise to injustice or oppression. There is no suggestion that he took any point concerning delay in the proceedings before the Regional Court. In my judgment, the appellant has failed to establish that this initial period has given rise to any real prejudice, still less that as a result of that delay it would be unjust or oppressive to extradite him now.
19. It is right to observe that Mr Keith placed limited emphasis on this period but rather developed his argument by reference to the appeal which followed the appellant's conviction, in which he played no part, with the unwelcome consequence that he faces a retrial. Mr Keith recognises that such prejudice (to use a neutral term) as might flow to the appellant from the reconstituted proceedings in Poland all occurred during a period after he had left that country. In those circumstances, he accepts that the ordinary approach supported by Kakis and Gomes suggests that it should be left out of account. Furthermore, in Wood v. The Government of Germany [2005] EWHC 385 (Admin) Maurice Kay LJ said:

"Under section 11(3)(b) there has to be established a causal link between the passage of time and the unjust or oppressive circumstances relied upon."

The statutory provision there referred to was that found in the Extradition Act 1989. In my judgment, the true position is that the passage of time has nothing to do with this aspect of the argument. The Appellate Court gave its judgment in November 2009. There has, no doubt, been a delay on the retrial by reason of the appellant's absence but this argument is unrelated to it.

20. None of that matters, submits Mr Keith, because in Oncel this court took into account matters of a broadly similar nature which had occurred after the applicant in that case had become a fugitive. The facts were striking. The applicant was alleged to have committed offences in early 1980 in Turkey. He was tried and acquitted of those offences in January 1982. Thereafter he left Turkey. In December of that year the acquittals were overturned on appeal and a retrial ordered. A warrant for the arrest of the applicant was issued in November 1983 by which time he was resident in Germany. Extradition proceedings were commenced by Turkey shortly thereafter. The applicant left Germany and came to the United Kingdom. By 1991 the Turkish authorities were aware that the applicant was in London. He was arrested in connection with extradition proceedings in May 2000. During the 16 years the applicant had by then lived in the United Kingdom, he had established a family life. He was receiving treatment for a heart condition. The applicant resisted extradition on a number of bases, including that it would be unjust or oppressive to extradite him by reason of the passage of time since the commission of the alleged offences in 1980. Lord Woolf cited the passage from the speech of Lord Diplock in Kakis which was the subject of discussion by Lord Brown in Gomes. Lord Woolf recognised that the argument advanced on behalf of the applicant rested primarily upon oppression but also to some extent injustice. He noted that, in respect of part of the time which had elapsed, the applicant had brought the delay upon himself. Lord Woolf took account of the fact that the applicant had left Turkey after he had been acquitted. I do not read the judgement as suggesting that he was a fugitive at that stage. The flight which could be laid at the applicant's door occurred after extradition proceedings were started in Germany, following which the applicant was living openly in this country at least from 1986. The Turkish authorities did nothing for years. Lord Woolf had regard to the fact that the type of new proceedings in Turkey, a retrial following an acquittal, was unknown to English law. Furthermore, a number of the offences for which the applicant was wanted were 'political'. That gave rise to a separate bar to extradition. The matter came before the Divisional Court on an application for a writ of habeas corpus. The applicant succeeded. In his short concurring judgement, Ouseley J said this:

"33. … To contemplate a retrial, particularly one following an acquittal some 20 years after the original trial took place, of a man who is now 57, and who has been in this country for a number of years, is readily within the concept of oppression in all the circumstances.

34. It is also important to bear in mind that at least at some point in the early 90s the Turkish authorities were alerted to the potential presence of the claimant in this country because the Interpol bulletin of 1991 draws attention to that fact, and there has been no explanation offered (at least explicitly) for the delay which took place in seeking the extradition of the claimant in the period 1983 to 1991, and from 1991 onwards. Moreover, this is not a case where it can be said that the claimant has always been evading the process. He may have left Germany as extradition was sought, but he has been settled in this country too long for it to be said that he has made himself so scarce that the Turkish authorities have had no means of finding him."

21. It is, in my judgement, important to recognise that in so far as the conclusion of the Divisional Court rested upon the passage of time, as opposed to the political nature of some of the offences, it considered itself to be following loyally the decision of the House of Lords in Kakis. I observe that the Divisional Court entered into the type of exercise disapproved by the House of Lords in Gomes, namely to look at joint responsibility for delay. The analysis would have been different in the light, in particular, of paragraphs [26] and [27] of Gomes quoted above. Oncel was a case in which a number of coincident factors led this court to release the applicant. It was unnecessary for the court to consider, as a discrete issue, whether each aspect of the injustice or oppression was directly caused by material delay. The argument was not considered. In my judgment the observation of Maurice Kay LJ in Wood concerning causation is, with respect, obviously correct. It flows from the language of the statute, now section 14 of the Act. Nothing said in Oncel can be read as qualifying it. It follows that the appellant's argument founded on the appeal and retrial fails because it is unrelated to the passage of time.
22. Even if I were wrong in that conclusion, before it becomes appropriate to consider whether the circumstances of any individual case are such as exceptionally to call for the bright lines identified in Gomes to be disregarded, the anterior question is whether the facts suggest that extradition would be unjust or oppressive at all. The appellant has been in the United Kingdom for three and a half years. He has spent the last year in custody. There is nothing prayed in aid relating to his personal circumstances. In my judgment, leaving aside the prospective retrial, there is nothing which has occurred as a result of the passage of time from the commission of the alleged offences which gives rise to any credible argument of oppression. When considering the retrial, were it appropriate to do so, the context identified by Lord Brown in Gomes, namely that the proceedings can be expected to be article 6 compliant, is important. As Cardozo J observed in Loucks v. Standard Oil 224 N.Y. 99, 120 N.E 120 in 1918

"We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home."

23. The appellant's complaint comes to no more than that the appellate procedure in Poland has no parallel in England and Wales. He is therefore being exposed to a retrial in circumstances which could not have arisen here in the same way. The founding premise of the submission made on the appellant's behalf is correct but I am unable to accept that it would be oppressive to return him to Poland to take his part in those proceedings. He has hitherto accepted his guilt for the two offences in respect of which he faces charges. If he were to deny his guilt, he has the uncovenanted prospect of an acquittal. If he continues to accept his guilt, he will be re-sentenced on a correct basis and not on the mistaken basis identified by the Appellate Court in Gdansk. I can see nothing oppressive in the prospective extradition. In those circumstances the question whether this is an exceptional case for the purposes of the analysis in Kakis and Gomes would not arise.

Conclusion

24. The appellant has succeeded in demonstrating that the District Judge applied the wrong test to the question of delay, in that he decided that such delay as occurred before the appellant left Poland could not be considered. Nonetheless, the District Judge went on to conclude that even if he were wrong in that regard, the facts of this case show no material oppression. He was right in that conclusion. For that reason, together with the reason identified in paragraph 21 above, I would dismiss this appeal.

The Rt Hon Lord Justice Gross

25. I agree.