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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 >> Jones v Government of United States [2012] EWHC 2332 (Admin) (25 July 2012)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/2332.html
Cite as: [2012] EWHC 2332 (Admin)
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand London WC2A 2LL |
||
B e f o r e :
PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE GLOBE
____________________
| PRINE GEORGE ALPHONSO JONES | Appellant | |
| v | ||
| GOVERNMENT OF UNITED STATES | First Respondent | |
| SECRETARY OF STATE | Second Respondent |
____________________
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Mr A Watkins (instructed by CPS Special Crime Division) appeared on behalf of the First Respondent
Mr B Watson (instructed by Treasury Solicitors) appeared on behalf of the Second Respondent
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- THE PRESIDENT: There is before the court an appeal from the decision of District Judge Evans, given on 3 August 2011, to send a request for extradition to the United States to the Secretary of State for the Home Department. There was also an appeal against the decision of the Secretary of State that the appellant be extradited to the United States but that appeal has been withdrawn.
- The factual background can be simply stated.
- On 4 February 2009, the appellant was arrested at Gatwick International Airport for smuggling a box containing 340 grams of cocaine at 100 per cent purity and 6.55 kilograms of marijuana. He was bringing the box from Jamaica into the United Kingdom. The marijuana was estimated to have a street value of some £18,864 and the cocaine was estimnated to have a street value of about £24,920, or as put in some of the other documents, a value between £14,000 and £20,000.
- On 30 April 2009, the appellant pleaded guilty at the Crown Court at Croydon to offences of importing class A and class B drugs and was sentenced to a term of 5 years' imprisonment.
- After that conviction a grand jury sitting in Newark, in the State of New Jersey in the United States of America, on 4 May 2009, returned and filed at the United States District Court for the District of New Jersey what is known as a superseding indictment. That charged the appellant, Jones, and others with conspiracy to import 5 kilograms of cocaine from the West Indies, through the United States for delivery to England. It was said in the affidavit sworn by the Assistant United States Attorney in support of that indictment that the conspiracy charged covered the period July 2006 to July 2008. The case against Jones was that he had received the cocaine from couriers who came on the last leg of the conspiratorial route, namely from the United States to London, and then distributed in England the cocaine that was brought in that way.
- The indictment formed the basis of a warrant signed on that day, 4 May 2009.
- An extradition request was made and on 10 May 2009 certified by the Secretary of State.
- On 6 August 2010, the appellant, who was at that time still serving his sentence of imprisonment following the imposition of that sentence by the Crown Court at Croydon, was arrested. He appeared in the City of Westminster Magistrates' Court (as it was once known) on 22 September 2010. Between 22 September 2010 and the date of the decision of District Judge Evans on 3 August 2011 there were further hearings.
- In a skeleton argument signed on 22 December 2010, the case advanced on behalf of the appellant was that extraditing him was barred by virtue of double jeopardy, in that the extradition offence was based on the same conduct. It was also submitted than even if the offences were not based on the same conduct, the overlap between the facts were such as to render it an abuse of process to extradite him. It is clear that in due course both those arguments were abandoned before of the District Judge.
- Before the District Judge, the matter then proceeded as an uncontested matter. In accordance with the then practice of the Magistrates' Court, there was no judgment; that practice has been discontinued as of recent times.
- On 14 September 2011, the Secretary of State ordered the appellant's extradition to the United States. The appeal to this court against that decision and the decision of District Judge Evans was lodged.
- The grounds of appeal were initially that his extradition was not compatible with the appellant's Convention rights, in particular Articles 3, 8 and 13, in view of the fact that the appellant might face a sentence in the United States amounting to a whole life sentence and that he was at risk of serving that in a supermax prison in solitary confinement. Furthermore, it was said that the Secretary of State had erred in not obtaining an assurance with regard to the length and conditions of the sentence he might have to serve.
- On 22 March 2012, this court granted an adjournment and extended the time within which to begin to hear the appeal to 27 July 2012. The hearing was then fixed for 19 July 2012.
- Shortly prior to the hearing on 19 July 2012, an application was made to me to adjourn the hearing, on the basis that there was a prospect that the Crown Prosecution Service would agree to prosecute the appellant for conspiracy to import cocaine into the United Kingdom in the period July 2006 to July 2008, the period covered by the indictment in the United States, and that the United States prosecutor was likely to agree to that course. No documentary evidence was submitted. I refused the adjournment but stated that it could be renewed at the start of the hearing, but that the appellant must be prepared to argue the grounds of the appeal at the hearing on 19 July 2012.
- I therefore turn to consider the grounds of the appeal as argued before the court on 19 July 2012. The contention that there would be a breach of the appellant's Convention rights was not pursued. The argument advanced was in essence the revival of the argument that had been abandoned before the District Judge, namely double jeopardy or, alternatively, abuse of process.
- First, as to the argument on double jeopardy, it was unsustainable. It is clear that the conduct of which the appellant was convicted in the United Kingdom was a single importation of cannabis and cocaine direct from Jamaica to the United Kingdom in February 2009. The conduct alleged in the indictment in the United States was a conspiracy to import from Jamaica through the United States to the United Kingdom cocaine in the period July 2006 to July 2008. Although the subject matter of the indictment is the illegal trafficking in cocaine, the conspiracy covers importation through the United States and not direct importation between Jamaica and the United Kingdom. It also covers a different period. It is, in my view, unarguable to suggest that there could be double jeopardy.
- The alternative argument, again canvassed in the skeleton argument before the District Judge, was that there with an abuse of process, in that it was said that the prosecutors must have liaised and that it was an abuse of process to prosecute the appellant for one crime in the United Kingdom and for a different crime in the United States. The principles set out in a case commonly known as Tolman were relied upon.
- It seems to be impossible to see how what is alleged can amount to an abuse of process. Although the evidence suggests to the contrary, I will assume that the prosecution authorities in the United States and the United Kingdom co-operated. The decision of each prosecution authority to prosecute was for different crimes. That cannot be criticised, nor, it seems to me, can Article 8 be relied on. There is no evidence whatsoever before this court in relation to the appellant's connection with the United Kingdom. True it is that he is a British citizen but beyond that there is no evidence. This arguments echos a point raised in Khan v The Government of the United States of America [2010] EWHC 1127 (Admin), where at paragraphs 45 to 48 the court roundly rejected such an argument.
- It therefore seems to me that there is no basis on which an abuse of process argument can be advanced.
- However, there is one other matter to which I should briefly refer before turning to the developments in the case. The process of appeal to this court is an appellate process. The points with which I have hitherto dealt were taken in the court below and then abandoned. The only new point taken in this court relates to current discussion, to which I shall refer in a moment, as to whether the CPS will prosecute in England and Wales. However, that can have no bearing on the abuse of process issue, as that will be a fresh decision which the court would have considered had it eventuated. It seems to me to be impermissible to raise in this case a point abandoned in the lower court unless good reasons were put forward for so doing and explained in a witness statement. This court cannot but emphasise yet again that arguments on extradition are to be properly advanced before the District Judge. If they are abandoned before the District Judge, a good and proper reason (suitably supported by evidence) has to be shown why they can be revived here.
- I turn finally to the issue, which I have just mentioned, in relation to the Crown Prosecution Service possibly prosecuting in this country. We were told at the hearing that there had been discussions between those representing the appellant and the Assistant United States Attorney conducting the prosecution in the United States. There had also been discussion with the Crown Prosecution Service in which the appellant had put forward certain proposals to the Crown Prosecution Service. At that stage, there were no documents before us. It seemed to me that it was in the interests of justice, despite the fact that nearly 2 years had elapsed since the original arrest of the appellant, to defer judgment for a few days to see whether the CPS would prosecute in this country, with or without the consent of the US Federal Prosecutor. Such a delay would make little overall difference given the time that had elapsed. However, it was not in the interests of justice to adjourn the hearing or to allow a longer period, bearing in mind first that the discussions over the appropriate venue, if they were to arise, ought to have taken place at the outset and second that the extradition request had been outstanding for nearly 2 years. This court has other business to conduct and it cannot constantly adjourn extradition cases, as it interferes with the disposal of its other business.
- Since that hearing, we have been provided with two letters. The first is a letter dated 13 July 2012 from a specialist CPS prosecutor to the appellant's solicitors, Kaim Todner. In that first letter there is set out a summary of the discussions that had taken place between the solicitors, Mr Cooper, who has appeared before us and the CPS, and discussions that had taken place with the Assistant United States Attorney for the District of New Jersey. The letter then goes on to set out in some detail the background and to say that, essentially, a prosecution will not be proceeded with by the CPS in the United Kingdom. The second letter followed on 22 July. That referred to other letters we have not seen, but this letter is again an affirmation of the decision that, as there had been no investigation in this country, the Crown Prosecution Service were not prepared to prosecute.
- We were asked today by Mr Cooper, who has taken every point and put every conceivable argument that could properly be put by Mr Jones, that we should also adjourn again the giving of the judgment.
- There comes a point in time, in my view, which should have occurred approximately 18 months ago, when this case should have been dealt with. It is inimicable to the interests of justice and the proper conduct of business in relation to extradition that these cases take so long. This is a relatively simple case. The decision for the CPS was simple and the points that were sought to be argued were also simple. It was said that proposals had been made to the CPS which would have obviated the need for an evidential inquiry and therefore the basis upon which the CPS had decided not to prosecute was a decision that could be challenged by judicial review and that we should therefore delay giving this judgment until an opportunity had been taken to apply for judicial review.
- It seems to me that the time for all of that has long passed. It is appropriate for us now to bring the extradition proceedings to finality and dismiss this appeal. If so advised, Mr Jones can always make other applications but as far as this court is concerned, the appeal from the extradition hearing has been dismissed. The decision of the District Judge was plainly correct.
- MR JUSTICE GLOBE: I agree.