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
		1 October 2012

1. MR JUSTICE WYN WILLIAMS: In December 2002, the appellant was working in Portugal. In that month he was arrested on suspicion of committing a burglary at a commercial premises and also in respect of an allegation of assaulting a police officer. In due course, the appellant was released on bail. There were conditions of bail. However, shortly after his release on bail the appellant left Portugal.
2. More than 9 years later, in February 2012, the appellant was arrested under the terms of an European Arrest Warrant. He was then residing in or near Harrogate in the north of England. His extradition was sought and the appellant appeared before the Senior District Judge, District Judge Riddle, who made an order for extradition. The District Judge made his order on 3 July 2012. Within days of that decision the appellant sought to appeal to this court. There is an issue about whether or not he served his appellant's notice within the relevant time period and, if not, whether it is open to this court to extend time for service of the appeal notice. I say no more about that aspect of this case since, with the agreement of the parties, I have heard the merits of the appeal as presented by the appellant.
3. In his notice of appeal, the appellant raised a number of issues for the consideration of this court. In total there were six grounds of appeal. Very realistically, if I may say so, Mr O'Donoghue on behalf of the appellant has focused his attention upon one issue, which has with it a related issue. The one issue upon which Mr O'Donoghue focuses is whether or not the District Judge was correct to conclude that the appellant was not entitled to rely upon section 14 of the Extradition Act 2003. The related issue, or sub-issue, is whether or not in considering section 14 and its applicability, the District Judge was bound to have regard to the principle of proportionality. That principle is engaged, says Mr O'Donoghue, by virtue of European Community law.
4. Section 14 of the Extradition Act 2003 is in the following terms:

"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 committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."

Portugal, of course, is a category 1 territory. It is common ground between the parties that a person cannot avail himself of section 14 if he is properly to be regarded as "a classic fugitive". That principle derives its authority from the decision of the House of Lords in Kakis v Government of Cyprus [1978] 1 WLR 779.

5. During the hearing before District Judge Riddle the judicial authority sought to prove that the appellant was a classic fugitive. Miss Hinton, who appears on behalf of the judicial authority before me, accepts that the burden of proving that the appellant was a classic fugitive lies upon the judicial authority and the standard of proof would be the balance of probabilities. Essentially, the judicial authority sought to persuade the District Judge that the appellant was a classic fugitive because he had left Portugal in 2002 or early 2003 in breach of his conditions of bail and had kept himself away from the notice of the judicial authority for the period that followed.
6. District Judge Riddle gave a considered written judgment justifying the order for extradition. In relation to the issue of whether or not the judicial authority had proved that the appellant was a classic fugitive he said this:

"Over nine years elapsed between the time of his detention in Lagos in December 2002 and the time of his arrest on the warrant in February 2012. The first question for me to decide is whether he is entitled to argue the passage of time bar. The judicial authority submits that he falls within the definition of a 'classic fugitive' and so this bar is not open to him. He says he is not a classic fugitive because he thought he was entitled to leave.

I am satisfied that he is a classic fugitive, for the following reasons.

1. In his proof he says 'I thought they were still gathering evidence'. He initially failed to mention this in his evidence in chief and indeed his oral account to me conflicts with his written account. His explanation in cross-examination was unconvincing.

2. It is unlikely that he would have thought the police would be unable to gather sufficient evidence. On his own account he was deeply compromised. For example, not knowing the man who challenged him was a police officer would not of itself be a defence in this country to assault police. He thought the bag he was carrying was suspicious.

3. On his own account he was already in breach of his bail conditions by not residing on the ship where he says he had been bailed to live. The ship had left the port.

4. The account of being told to leave by the police officers was at best ambiguous, even on his own account.

5. The return of the passport, assuming it occurred in the way he described, does not have the significance he attributed to it. There is no reference to surrendering passport as a condition of bail by the Portuguese court, and his own account was equivocal on this.

6. He was already a fugitive from justice on an apparently more serious allegation. The impetus to leave on this new allegation, to avoid coming to the attention of the UK authorities, would have been substantial.

7. He is an intelligent and articulate man, and I doubt that he would have left court not understanding the obligations on him, or that he would have accepted such a casual comment by a police officer genuinely to mean that proceedings against him had concluded."

7. As is obvious from that passage from the judgment of District Judge Riddle, the learned District Judge paid careful attention to the explanation which the appellant had given him in evidence as to how it came to be that the appellant had left the jurisdiction of Portugal. As is equally obvious, the District Judge was not prepared to accept important parts of the appellant's account.
8. It also seems to me to be clear that in reaching his conclusion the District Judge took full account of the information which had been provided by the judicial authority both in relation to that which was contained in the arrest warrant itself but also in relation to further information which was sought from the judicial authority once the appellant had served a proof of evidence. I have no doubt that in reaching his conclusion upon whether or not the appellant was a classic fugitive the District Judge had full regard to all the relevant facts which were placed before him. There is nothing in the passage to which I have referred from his judgment which begins to lead me to the view that the District Judge's conclusion about the appellant's status can be regarded as in any way erroneous. I have reached the clear conclusion not just that it was open to the District Judge to conclude that the appellant was a classic fugitive but on that the information which was available to him such a conclusion was almost inevitable.
9. Given that state of affairs, Mr O'Donoghue accepts that, on the face of it at least, the appellant was not entitled to rely upon section 14 of the 2003 Act. However, he submits that it was still incumbent on the District Judge to consider the issue of proportionality.
10. Before I deal briefly with that submission I should also record, however, that the District Judge considered the appellant's position not just upon the basis that he was a classic fugitive but also on the basis that he was not. In the paragraphs which followed the extract which is set out earlier in this judgment the District Judge expressed himself in the following way:

"Even if he were not a classic fugitive, it would not be oppressive or unjust to return him for trial. He does not suggest that any defence evidence has been lost. Counsel refers in his skeleton arguments to CCTV but the defendant himself says in his proof 'I am quite sure that there wouldn't be any CCTV of this incident'. There is no realistic suggestion that there were witnesses at the time who are no longer available, and indeed the defendant was at liberty for some time before leaving the country, on his own account. There is no suggestion that he attempted to trace witnesses then, nor indeed that there was any realistic prospect of doing so at the time. The case appears to turn entirely on his own account as to the circumstances he found the bag and the circumstances in which he came to assault a plain clothes police officer.

Nor is it oppressive. He has lived an itinerant lifestyle in the ensuing years, living in France, the Netherlands, Portugal, the United States and this country. Although he did not provide me with full details, it is clear that he at some recent stage served 15 months in prison. 'I have had a couple of brushes with the law since then but nothing that has landed me a custodial sentence'. The defendant tells me he has worked hard and has obtained a driving licence to assist his parents who are old age pensioners. He takes them to hospital appointments. He is hoping to set up his own business. He has a girlfriend. He has a dog that it is difficult for anybody else to control. If he is extradited his girlfriend will not be able to afford the rent. There are corroborating statements from the girlfriend and his father."

11. Mr O'Donoghue quite properly makes no criticism of the approach which the District Judge took in assessing whether or not it was oppressive or unjust to return the appellant to Portugal. It is clear that the District Judge properly approached those issues. It is equally clear, in my judgment, that in assessing the issue of oppression the District Judge took account of all those factors which could conceivably have been relevant to the issue of proportionality. I acknowledge that the District Judge did not use the word "proportionate" in this part of his judgment but, to repeat, in assessing whether or not it was oppressive to return the appellant to Portugal, he took account of all the relevant factors. I have mentioned some of them already. However, he also took account, as the later parts of his judgment show, of the fact that the offences in relation to which extradition was sought could not properly be regarded as minor or trivial, which was the submission made to the District Judge below but not pursued, again sensibly in my judgment, in this court. Although the District Judge may not have set out to conduct a proportionality exercise in relation to section 14, in my judgment he did so, given that he took account of all possible relevant factors when reaching his conclusion about section 14.
12. I stress, however, that I should not be taken to be deciding that proportionality, as such, was a matter which the District Judge need consider. Mr O'Donoghue makes the suggestion that proportionality should be considered based upon European law principles but he also accepts that in the course of his speech in Assange, Lord Phillips cast doubt upon whether or not proportionality is to be taken into account in assessing whether section 14 of the 2003 Act is applicable in a given case.
13. I have dealt with the case of proportionality only because it has been raised before me. Nothing in this judgment should be taken as seeking to determine one way or the other whether or not proportionality is an issue properly to be taken into consideration in any given extradition case. I say that for this reason. It is not necessary in this case to determine the just outcome of this appeal to adjudicate upon the strict legal issues which surround proportionality and it is far better that a considered adjudication should take place upon the issue of proportionality if and when it becomes decisive in a given case. I am satisfied that the District Judge made no error of law when he directed that the appellant should be extradited to Portugal and I am equally satisfied that each of his findings of fact were properly justified by the evidence before him.
14. In my judgment, this appeal should be dismissed.
15. I add as a postscript that which I mentioned at the beginning of the judgment, namely that since I have taken a very decided view of the merits of this appeal, it seemed to me to be counterproductive and a waste of counsel's time, the court's time and my time to embark upon an academic exercise of whether or not this appeal was properly brought within time or whether there was a power to extend time if not brought within time.
16. Thank you both very much. What about costs?
17. MISS HINTON: My Lord, yes. My Lord, do you have the order dated 30 August?
18. MR JUSTICE WYN WILLIAMS: Yes, but is your client legally aided?
19. MR O'DONOGHUE: He is, my Lord.
20. MR JUSTICE WYN WILLIAMS: So is the appropriate order to make an order for costs but that it not be enforced without further leave of the court or the usual order in a legally aided case?
21. MR O'DONOGHUE: My Lord, yes.
22. MISS HINTON: My Lord, my application relates specifically to the hearing on 30 August and I have set out my submissions in the second skeleton argument at page 6.
23. MR JUSTICE WYN WILLIAMS: Are you making this application against the appellant or his legal advisers? Because if it is the appellant, I am prepared to made an order for costs against him but obviously it will not be enforced unless someone establishes that he has got the means to pay. That is what usually happens when someone is legally assisted, is it not?
24. MISS HINTON: My Lord, yes, it is a discretion within the court whether to make an order for costs on that basis or whether in the context of this case, specifically the hearing on 30 August, which, in my submission, was a hearing which became a wasted hearing.
25. MR JUSTICE WYN WILLIAMS: I follow that but I can only make an order for costs against the claimant on the basis that thereafter someone will determine whether he has the means to pay. I will make an order for costs but obviously it cannot be enforced without a determination of his ability to pay. That is all I am saying.
26. MISS HINTON: My Lord, yes. I am grateful.
27. MR JUSTICE WYN WILLIAMS: Can we put a figure on it so that we know where we are? How much are you seeking?
28. MISS HINTON: My Lord, £780.
29. MR JUSTICE WYN WILLIAMS: You cannot really oppose that, can you?
30. MR O'DONOGHUE: I cannot oppose it, my Lord.
31. MR JUSTICE WYN WILLIAMS: So I make an order that the appellant should pay the respondent's costs, which are summarily assessed in the sum of £780 but I direct that the sum should not be enforced against the appellant without a further determination of his ability to pay that sum.
32. MISS HINTON: My Lord, I am grateful.
33. MR JUSTICE WYN WILLIAMS: Anything else? No. Thank you very much.