QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
MR JUSTICE LEGGATT
|GOVERNMENT OF GHANA||Defendant|
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Ms Gemma Lindfield (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
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MR JUSTICE LEGGATT:
The Alleged Offence
The Extradition Proceedings
Is Extradition Barred by Passage of Time?
"A person's extradition to a category 2 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)..."
"I can deal with this briefly. This defendant is not entitled to rely on the passage of time bar. He is a classic fugitive. He shot a man twice and then almost immediately left the jurisdiction. This is not a borderline case. Even if it were, the Ghanaian authorities have not misled Mr Richards into thinking that there would be no extradition. The return of his passport by the UK authorities cannot be taken to indicate that there would be no extradition proceedings, and this defendant was never told that. I will deal later with article 8, but the facts relied on there would not in any event amount to oppression."
"If an accused...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'."
The New Evidence
"That I understand arrangements are being made to extradite Brian Richards to Ghana to face trial in the matter in which I made my earlier statement on 16th day of February 2005.
That over time my health has improved considerably and I do not want to go through the ordeal of a trial.
That when I made my original statement it was a week after the incident at which time my emotions were running high and my recollection was clouded with my emotion.
That over the years I have had plenty of time to consider the events of the 7th day of February 2005.
That what I recall about that day is that I got into a heated argument with Brian Richards in respect of my taking Sally's Range Rover vehicle.
That during the argument a gun was brandished and there was a struggle for the gun between myself and Brian. I now do not believe that the gun was brandished to be used, however there was a struggle and shots were discharged and I sustained injuries as a result.
That looking back Brian never intended to actually shoot me the reason being that the shots were discharged as we were both struggling over the firearm.
That my belief that Brian never intended to shoot me is confirmed by the fact that Brian was the person who put me in the taxi that took me to the hospital, an act which is clearly inconsistent with the actions of a man intending to shoot me.
That I believe the events were an unfortunate accident brought about by our argument that I accept was heated on both sides."
"To my surprise, he [that is the appellant] pulled up a pistol from his pocket and shot me even though I begged him."
Although not mentioned in his latest witness statement, Mr Zakkour gave a further statement on 22 March 2005.
In that he said:
"To my surprise, he pulled up a pistol from his pocket and shot me twice and I fell."
He also made (again not referred to in his recent witness statement) an affidavit some three years later on 2 February 2008. In that affidavit he said:
"The fugitive pulled a pistol and shot at me twice even though I was pleading with him not to."
"To my surprise, the suspect removed a pistol from his pocket and pointed same on him. In fact the way things were going I wanted to put back the items I removed from the car and before I could see I heard a shot of pistol. When I turned my face back I saw Nadim [Zakkour] lying down saying 'We are friends do not shoot me'. Still the suspect pointed the gun at him and when I was putting the items back into the car I heard the second shot and I realised that Nadim was bleeding from his left rib."
"... the fugitive pulled out a pistol and shot at him [Mr Zakkour] without any provocation."
That whilst Nadim was on the ground pleading with the fugitive he shot at him again."
"They started struggling over the ignition key and Nadim fell down and Brian shot him 3 times. When shooting him Nadim was saying Brian you are my father..."
"I overheard victim pleading with someone within the house saying don't kill me, please don't kill me, you don't know I'm your brother! Not quite long I heard a gun shot and look through a small hole in the gate and saw suspect Ibrahim holding a gun."
Article 3 ECHR
"There are five prison blocks, each with a capacity of 400 prisoners. At the time of the visit only two of those blocks were in use, holding a total of 220 inmates. The cells were described as not having adequate ventilation. The prisoners did not complain of heat and expressed satisfaction with the airflow or ventilation. Natural and artificial light supply was found to be adequate. Each inmate has a mattress and blanket and there were pillows on most beds. There are dormitory style showers and a potable water supply. There was no complaint about the meals, although the food is comparatively basic, or about medical facilities and services. There are three adequate playgrounds but these are not used often because of a shortage of balls. There is a clinical psychologist, a chaplain, visiting facilities, a television and facilities for a number of indoor games. The courtyards are generally clean.
The complaints are: congestion; the fact that the toilet in the cell is less than 3 feet from the nearest beds; mosquitoes; and the fact that there is currently no library and a sense of hopelessness arising from boredom and idleness."
"Each cell contains 10 inmates. They sleep on five double-decker student type bunk beds. ... Moreover, the five bunk beds take up most of the space in the cell, leaving very little room (probably less than 3' X 3') for the inmates' use. Thus the cells are crowded or congested. There is a flush toilet in each cell. There is no partition to ensure any degree of privacy. The toilets are less than 3 feet from the nearest beds. Although there are other toilets available for use between 6.30am and 3.30pm, these too lack privacy. Inmates and officers were unanimous in their complaints about the overabundance of mosquitoes. There was clear evidence of mosquito bites on the skin of many inmates. Mosquitoes were all over the place. Prisoners and prison officers alike 'pleaded for mosquito nets to help cope with the mosquito menace'. The mosquitoes were described as voracious. The professor says that next to coping with the unbearable mosquitoes at [Ankaful Prison], dealing with boredom arising from idleness, and a sense of hopelessness, constitute the inmates' most significant challenge."
"With the possible exception of the mosquitoes, there is no evidence that any of the current prisoners at [Ankaful Prison] has suffered fear, anxiety or inferiority because of the conditions in the prison. This is a new prison and generally the conditions are satisfactory. The conditions imposed may last a long time, if this defendant is convicted of attempted murder. On the other hand, prisoners are apparently able to leave their cells during the day. I will consider the degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention in that context.
By our standards, to house 10 people in a cell the size here, with so little freestanding space, would almost certainly not be acceptable. It is said to be an 'experiment' but I accept that it may continue, particularly if the funding to open the rest of the prison does not materialise. Similarly, there are obvious objections to a toilet being within 3 feet of a bed, where there is no wall or other partition between the toilet and the bed. As for the mosquitoes, there is no doubt that a regular presence of our large number of these creatures is unpleasant and distressing. I am not prepared to speculate on the extent of the health risk...I understand and accept the professor's concern about idleness and lack of educational or recreational facilities. This is a significant problem in this country also. [The Prison] at least does have recreational facilities, even if not currently used for ball games. There are indoor games and a television. It is not suggested that prisoners cannot be provided with books by friends or family.
I am satisfied from the overall tone of the professor's report that [Ankaful Prison] is a new-build prison that in most ways meets international standards and with the one exception referred to does not give significant cause for complaint by the prisoners.
There is no evidence that the adverse conditions in [Ankaful Prison] are deliberate, or seriously harmful to health. There is no evidence that existing prisoners are humiliated or debased by the conditions there. Ill-treatment must attain a minimum level of severity to fall within article 3. The treatment complained of here does not."
"...the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the 'minimum level of severity' which would make it inhuman and degrading. Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account."
"...the absolute nature of Article 3 does not mean that any form of ill-treatment will act as a bar to removal from a Contracting state. As Lord Brown observed, this court has repeatedly stated that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States... This being so, treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case. For example, a Contracting State's negligence in providing appropriate medical care within its jurisdiction has, on occasion, led the court to find a violation of Article 3 but such violations have not been so readily established in the extra-territorial context..."
(1) The presence of premeditation;
(2) The measure may have been calculated to break the applicant's resistance or will;
(3) An intention to debase or humiliate an applicant, or if there was no such intention, the fact that the measure was implemented in a manner which nonetheless caused feelings of fear, anguish or inferiority;
(4) The absence of any specific justification for the measure imposed;
(5) The arbitrary punitive nature of the measure;
(6) The length of time for which the measure was imposed; and
(7) The fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.
"... as was observed by Lord Brown, [the Court] has been very cautious in finding that removal from the territory of a Contracting State would be contrary to Article 3 of the Convention. It has only rarely reached such a conclusion since adopting the Chahal judgment... The Court would further add that, save for cases involving the death penalty, it has even more rarely found that there would be a violation of Article 3 if an applicant were to be removed to a State which had a long history of respect for democracy, human rights and the rule of law."
"...the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court."
"Special circumstances" plainly include the fact that the Court is bound by precedent to follow a case which is inconsistent with the relevant Strasbourg case law.
"The defence also argues that extradition would breach this defendant's article 8 rights. They point out that he has been resident in the UK since 1999 and has very substantial family connections with this country. He has a business that would suffer and almost certainly fail in his absence. I can deal with this briefly. I accept everything Mr Richards tells me about his family life. I accept that article 8 is engaged for himself and for his family. However whichever way you look at the facts, they amount to no more than hardship and fall far short of a breach of his convention rights."
MR JUSTICE SIMON: I agree.
MR GARLICK QC: I have of course tried to take as good a note of my Lord, Leggatt J's judgment. May I have a few days at least to consider this matter, with those who instruct me, to see whether or not - I am not saying that there is - there might be an application to certify a point?
MR JUSTICE SIMON: If it does not spring from the judgment immediately it is unlikely to develop over a few days. What are you proposing?
MR GARLICK QC: I do not think I need to propose anything. I think I have 14 days to make an application.
MR JUSTICE SIMON: You were proposing something.
MR GARLICK QC: Perhaps I was being polite and indicating to your Lordships that I would want to scratch my head carefully and see whether there might be a point. The more important factor I would raise at this time is: Mr Richards has been on bail throughout the extradition proceedings from the very first appearance at Westminster Magistrates' Court, although conditions are strict, and I would ask that pending --
MR JUSTICE SIMON: Have you a copy of the bail conditions?
MR GARLICK QC: I have, indeed.
MR JUSTICE SIMON: Let me see those?
MR GARLICK QC: I am afraid it is in the form of an attendance note by those who instruct me.
MR JUSTICE SIMON: Miss Lindfield will doubtless assist if it is necessary.
MR GARLICK QC: Would it be helpful if I highlight --
MR JUSTICE SIMON: There ought to be a copy on the file somewhere.
MR GARLICK QC: This may help your Lordships and I think that they are the conditions. (same-handed) They include very substantial sureties and there is a substantial cash security.
MR JUSTICE SIMON: Is there no condition in relation to his passport?
MR GARLICK QC: I am sure there was such a condition. The passport has been surrendered.
MR JUSTICE SIMON: The passport is still surrendered, is it?
MR GARLICK QC: It is indeed, I am sure. If it is not there, there would be a condition he does not apply for any travel documents. The passport certainly has been surrendered. He no longer has it. Mr Richards is a family man. He has attended on every occasion at the Magistrates' Court without fault and to this court. We would ask your Lordships to extend bail. The usual procedure is that an arrangement is made between the Metropolitan Police Extradition Squad for the fugitive to surrender at the police station, and he is taken to whatever aeroplane port and handed over to the marshals who come from the foreign jurisdiction.
MR JUSTICE SIMON: Miss Lindfield, what do you say about that?
MS LINDFIELD: The position of the Government was that we opposed bail. District Judge Purdy, I believe, granted bail. I would just remind your Lordships that in giving evidence in the lower Court (and this can be found at page 48 of the bundle, internal page 5 of the judgment) the Senior District Judge records that the evidence of this appellant at the extradition hearing was that he came to the UK on a friend's passport.
MR JUSTICE SIMON: That was referred to in my Lord's judgment.
MS LINDFIELD: We have always had concerns about the ability and means of this appellant to flee the jurisdiction. Obviously at this moment it is the crucial point at which people do frequently abscond. I appreciate he has one further procedural step he has to exhaust, but --
MR JUSTICE SIMON: What is that?
MS LINDFIELD: Applying to certify a question, but that is a rare occurrence.
MR JUSTICE SIMON: Without prejudging that, that has to be done pretty promptly.
MS LINDFIELD: I just draw those matters to the court's attention.
MR GARLICK QC: I would draw to your Lordship's attention that my learned friend did not appear on one occasion when I made an application to vary the bail to make it slightly less strict. The Government did not object to that. The curfew was reduced and so was the reporting time.
MR JUSTICE SIMON: We will retire to consider this.
MR JUSTICE SIMON: Mr Garlick, in the circumstances we are prepared to grant bail limited to a period of 48 hours. At the expiry of that time he must surrender to custody.
MR GARLICK QC: My Lord, yes.
MR JUSTICE SIMON: The reasons being that there must be serious concerns as to whether he will comply with an order that he surrenders in view of the fact that on a previous occasion he travelled under a false passport, or the passport was not his own. We are prepared to extend the bail on the same terms for that period, but he must surrender to custody at the end of that period.
MR GARLICK QC: May I have permission to bring the matter before the Court? One matter I have taken instructions on is we do intend to make an application to the European Court under rule 39 for interim relief. If that application is granted, may we have permission to bring the matter back before the court. The position would plainly be slightly different then?
MR JUSTICE SIMON: Yes, I think that must follow.
MS LINDFIELD: There is provision in the Act to do so. If someone is [inaudible] in custody they can still make a bail application.
MR JUSTICE SIMON: In the circumstances we feel it right he should have 48 hours. I think we will fix a time of 4.30 on Thursday on which he must surrender to Southgate Police Station. Until that time he must abide by the following bail conditions: residence at 6 Woodville Court, Oakwood N14 4BF; observe the same curfew at the address from 7pm to 7am with an electronically monitored curfew; report tomorrow to Southgate Police Station and to provide the same mobile phone to the court and to the CPS, which is never switched off; not to apply for any travel documents. The security and sureties will remain in place.
MR GARLICK QC: I am grateful, my Lord. Thank you.
MR JUSTICE SIMON: Miss Lindfield, do you have any points on that?
MS LINDFIELD: No, my Lord.
MR JUSTICE SIMON: Thank you both very much for your submissions.