QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE THIRLWALL
| Government of the United States of America
|- and -
| Ilan Shlesinger
James Lewis QC and Rachel Kapila (instructed by Quastel Midgen LLP) for the Respondent
Hearing date: 18 April 2013
Crown Copyright ©
President of the Queen's Bench Division:
This is the judgment of the Court.
Issue 1 : Proof of an extradition offence
i) The defendant was in custody.
ii) The defendant knew he was in custody.
iii) The custody was lawful.
iv) There was an intentional escape from that custody.
"On May 24, 1991, Shlesinger escaped from custody at the Eglin Federal Prison camp. It is unknown exactly how Shlesinger escaped, but it is suspected that he walked away from the prison. The Eglin Federal Prison Camp was a minimum-security facility in which Shlesinger was held as a prisoner in conditions in which he was not physically restrained from leaving the prison camp, but he was prohibited from leaving the prison facility at any time."
"19. I agree with Mr Spackman's submission that whether a person can be said to be in custody at any particular time is a question of fact to be decided by reference to the circumstances of each individual case. 'Custody' is an ordinary English word, which should be given its ordinary and natural meaning, subject, of course, to any special meaning given to it by statute. In the Shorter Oxford English Dictionary the word 'custody' is defined in the following terms, amongst others: 'confinement, imprisonment, durance.'
20. As it seems to me, for a person to be in custody, his liberty must be subject to such constraint or restriction that he can be said to be confined by another in the sense that the person's immediate freedom of movement is under the direct control of another. Whether that is so in any particular case will depend on the facts of that case."
Issue 2: Abuse of process
i) The respondent's evidence was that some of the prisoners at the prison camp were volunteered for a day release at the air force base which was located near to the prison camp; he was one of those. His evidence was that during his day release at the air force base he walked off the base and made his way from the base to South Florida and thence to New York.
ii) In a statement made on 22 August 2012 John Caulfield, who had been warden of the Eglin Federal Prison Camp from 1991 to 1992, said that the majority of the inmates at the Eglin Federal Prison Camp worked at the air force base. He agreed with the description given by the respondent of the day release work.
iii) In a statement dated 15 October 2012 by Mr Bobby Hanson who had been a civil employee at the Eglin Air Force Base, he gave similar evidence as to inmates of the prison camp working at the air force base.
Issue 3: Article 8
(i) The issue
(ii) The submissions
i) The offence with which he was charged was in fact at the bottom end of the scale for such offences. Although the appellant Government submits he had 54 days remaining to serve, we agree with the District Judge's observation that the respondent's calculation that he had only about nine days remaining to serve was plausible. Although the respondent is not being extradited to serve the balance of his sentence, but for the offence of escape, any judge sentencing him would have to take into account the very short time he had left before he absconded from what was in effect an open prison. It was right to describe the offence as an offence of "no great gravity".
ii) What he had done had happened 21 years before. During that period he had built up a new and blameless life in the UK. He had for 19 years lived in the same area of north London entirely openly using his real name. He had never tried to conceal his identity or whereabouts.
iii) In 1996 the respondent had married. Although separated from his wife, he remained close. The evidence establishes that the wife was dependent on the respondent, both emotionally and financially.
iv) The respondent is the sole carer for his 28 year old daughter. She requires care as she suffers from a depressive illness and is not capable of living and working independently. There was psychological evidence that showed her mental state was likely to deteriorate if she was separated from her father.
v) He had a five year old son of whom he had joint custody and saw him most days.
vi) He has other non-familial dependants including a young woman named Kelly Carty. She suffers from a serious gastric condition. The evidence is clear as to the extensive support he provides for Miss Carty and her three year old son. The severity of her medical condition is supported by powerful independent medical evidence.
vii) The respondent has built up extensive business interests in the UK. These include computer software businesses and an indoor children's activity centre in north London. There is some evidence that if he was to be absent for a significant period of time awaiting trial in the United States and then serving a sentence of imprisonment, the businesses and those employed by them would suffer serious adverse consequences.
i) The delay caused in the prosecution was solely due to the respondent's act in escaping from custody in the United States.
ii) He had come to the United Kingdom as a fugitive from justice; this was relevant to the assessment of family life; see JP v The Czech Republic  EWHC 2603 (Admin) at paragraph 24 and AC v Poland  EWHC 3201 (Admin) at paragraph 32. The offence of escape would be likely to result in a custodial sentence.
iii) On the evidence the respondent was not the sole or primary carer of the child or the other persons claiming dependency upon him.
The appellant Government relied upon the acceptance by the respondent that the interference with private and family life through the familial and other dependency relationships did not, on their own, constitute a bar. Given that concession, it was clear that on analysis of the seriousness of the offence and the reason for the delay that there was no disproportionate interference with family life.
(iii) Our initial conclusion
"It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence; however it would become relevant to the decision if the interests of the child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence, including a suspended sentence."
(iv) The further evidence in relation to the terms on which the respondent would be held pending trial.
i) If extradited, as soon as the respondent was brought to Florida, he would remain in the custody of the US Marshals who extradited him from the United Kingdom and would be housed at the Federal Detention Centre at Tallahassee.
ii) He would be brought immediately before a Federal Court.
iii) Although it would be for the Federal Court to determine whether he would be held in custody pending trial, the US prosecutor would seek his detention in custody, due to his "being a flight risk, as demonstrated by his escape from the prison facility at which he was incarcerated, his fugitive status for more than 20 years, his fleeing to another country and changing his name." Mr Kunz was of the view that the court would order detention pending trial.
iv) The respondent would be entitled to a speedy trial to be commenced within 70 days from the date of his first appearance. It was likely he would be tried within 45-50 days of arraignment.
v) At the Federal Detention Centre, prisoners awaiting trial were given free association, save when they were locked in their cells from 2045 to 0630. If convicted and sentenced to custody, he would be sent to a Federal Prison determined by his Security Designation and Custody Classification, medical and programming needs.
i) There were a number of circumstances in which the time limit of 70 days could be extended. As discovery had been refused, the practical position was that it was likely that the respondent would spend many months in custody before trial.
ii) It was likely that the respondent, in the light of the evidence filed by the appellant Government, would be housed in an Administrative Facility. These were "institutions with special missions, such as the detention of pre-trial offenders, the treatment of inmates with serious or chronic medical problems or the containment of extremely dangerous, violent or escape prone inmates."
iii) If convicted, he would be deported after sentence; this could potentially add several months to his period of confinement, as he would then be held at an institution similar to a prison. A likely institution would be Baker County Jail in Florida which had been the subject of severe criticism.