Neutral Citation Number: [2013] EWHC 2671 (Admin)
Case No: CO/1025/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 02/09/2013

Before :

PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
MRS JUSTICE THIRLWALL

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Between :

	Government of the United States of America	Appellant	
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	 Ilan Shlesinger	Respondent	

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John R W D Jones QC and Daniel Sternberg (instructed by CPS Extradition Unit) for the Appellant
James Lewis QC and Rachel Kapila (instructed by Quastel Midgen LLP) for the Respondent

Hearing date: 18 April 2013
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Judgment

President of the Queen’s Bench Division: 
This is the judgment of the Court.
Introduction
1.	The respondent to this appeal, Mr Shlesinger, pleaded guilty to the charge of passport fraud in the United States District Court in the Southern District of Florida as long ago as 6 January 1989.  Although he had been born in Israel, he had falsely claimed he had been born in the United States.  On 10 March 1989 he was sentenced to three years probation.  Whilst under probation supervision he committed other criminal offences.  On 20 February 1991 the same court revoked the probation and sentenced him to four months imprisonment, followed by three years supervised release.
2.	He was transferred to the custody of the US Federal Bureau of Prisons and sent to Eglin Federal Prison Camp.  On 24 May 1991 the respondent left the prison camp in circumstances we shall describe.  He had some days of his sentence left to serve.  A warrant was issued for his arrest on a charge of escape.  He was indicted for escape on 24 July 1991.  It was not until 2011 that the US federal authorities discovered where he was.  He was living in North London.  They had located him through entries on Facebook.
3.	On 13 March 2012 the United States Department of Justice requested his extradition for the offence of escape; they did not seek his extradition to serve the balance of his sentence.  In support, the United States Government served an affidavit dated 12 March 2012 sworn by Mr Kunz, the Assistant US District Attorney for the Middle District of Florida.  His request was certified by the Home Office on 27 March 2012.  The respondent was arrested.  An extradition hearing took place before District Judge Evans at the Westminster Magistrates’ Court.  In a reserved judgment given on 18 January 2013, District Judge Evans discharged the respondent.  The United States Government appeals to this court.  Three issues arose on the appeal. 
Issue 1 : Proof of an extradition offence
4.	Amongst the matters that a judge has to decide under Part 2 of the Extradition Act 2003 (the 2003 Act), is the question under s.78(4)(b) as to whether the offence specified in the request is an extradition offence.  If he decides that question in the negative, he must order the person’s discharge.
5.	For the purpose of deciding whether the offence specified in the request is an extradition offence, the test of dual criminality has to be applied in a Part 2 case.  Under s.137 of the 2003 Act the court has to consider whether the conduct alleged against him as an offence in the Part 2 state also constitutes an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or more.  It is clear from the decision in Norris v Government of the USA (No.1) [2008] UKHL 16, [2008] 1 AC 219 at paragraph 91 that the court must look at the conduct alleged in the documentation constituting the request to see if the conduct constitutes an offence under the law of the United Kingdom.
6.	It is common ground that the relevant offence under the law of England and Wales is the common law offence of escape from custody.  In Dhillon [2006] 1 Cr App R 15 the court set out four elements that must be proved to constitute the offence of escape.
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.
7.	The conduct alleged in the affidavit dated 12 March 2012 of Mr Kunz which constituted part of the extradition request described the conduct in the following terms:
“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.”
8.	The question which arose for determination before the District Judge and on appeal was whether on the conduct described the respondent was in custody and intentionally escaped therefrom.  The test as to whether a person is in custody was considered in R v Montgomery [2007] EWCA Crim 2157, [2008] 1 WLR 636.  In that case the court had to decide whether a person on temporary release from prison to attend employment, but not under supervision during the employment though obliged to return to prison at night, had escaped when he did not return one night.  The court determined that he was not in custody at the time he did not return from release to attend employment.  The court held that a person may be in custody notwithstanding that he is not physically confined provided that he is under the direct control and under the charge of a representative of the state or detaining authority.  The court approved the judgment of the Divisional Court in E v DPP [2002] Crim LR 737 where Forbes J said at paragraphs 19-20:
“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.”
9.	On the basis of these authorities it was common ground before us, although it was not common ground before the District Judge, that if the respondent had been on day release from the Federal Prison Camp to do work elsewhere, he would not have been in custody, but he would be in custody, even though not physically restrained, if he was in what might be described as “open prison conditions” within the Eglin Federal Prison Camp.
10.	It is, in our view, clear beyond any realistic argument that if regard is had solely to paragraph 8 of the affidavit of Mr Kunz and the other documents constituting the extradition request (which do not add anything material to that paragraph) the respondent was being held in custody; he was at the camp and, although not physically restrained, he was prohibited from leaving.  His freedom of movement was under the direct control of the authorities.  It is not necessary, as the court observed in Montgomery, that a person must be physically restrained or locked up; it is sufficient if that person is within the place of detention under the control of the authorities and he knows he must not leave it.  The position is quite different, as is common ground, if he was entitled to leave on a day release or something similar.
11.	It was submitted by Mr James Lewis QC on the respondent’s behalf that, in determining whether the conduct alleged in the extradition request constituted an offence under the law of England and Wales, it was permissible for the court to consider extraneous evidence served by the requested person.  He accepted that there was no authority to this effect, but contended that it must be open to the court to receive such evidence, as whether the conduct constituted an offence under the law of England and Wales would not be determined in the state to which he was returned.  He submitted that the position was analogous to the position that arises when the court considers bars to extradition, such as those relating to human rights, the rule against double jeopardy, passage of time and other matters set out in the 2003 Act.  In such cases the court always receives evidence from the requested person.
12.	We cannot accept that submission.  It is clear that the scheme of the Act, and such authority as there is, lead to the very clear conclusion that in determining the issue of dual criminality the court examines the documents constituting the extradition request.  It determines on the basis of that material whether the conduct alleged in the documents constitutes an offence under the law of England and Wales.  It is not permissible for a requested person to put in evidence contradicting what is set out in the extradition request, unless he can bring himself within the very narrow exception to which we refer at paragraphs 14 and following below.  The court must proceed to determine the issue of dual criminality on what is set out in the extradition request alone.
13.	We therefore conclude that the offence was an extradition offence.  The judge came to a different conclusion, taking into account the evidence that had been put before him and to which we will shortly refer.  That was not a course that was permissible unless the requested person could bring himself within the narrow exception of abuse of process to which we next turn.
Issue 2: Abuse of process
14.	In R(Castillo) v Kingdom of Spain & Anr [2004] EWHC 1676 (Admin), [2005] 1 WLR 1043 this court made clear that a state making a request for extradition under the Extradition Act 1989 and the European Convention on Extradition Order 2001 must fairly and properly describe the conduct alleged; see paragraphs 24 and 25.  In The Spanish Judicial Authority v Murua [2010] EWHC 2609 Sir Anthony May at paragraphs 56-58 of his judgment refined the duty fairly, properly and accurately to describe the conduct.  He said that on appropriately clear facts it might occasionally be necessary to ask whether the description of the conduct was a fair, proper and accurate description.  In Zakrzewski v The Regional Court in Lodz, Poland [2013] UK SC 2, [2013] 1 WLR 324 Lord Sumption, giving the judgment of the Supreme Court, agreed with what was stated by Sir Anthony May making clear, in four observations, that the jurisdiction was exceptional, that its juridical basis was abuse of process, the true facts must be clear and beyond legitimate dispute, and the error must be material.
15.	Although these decisions are all concerned either with the European Convention or the European Arrest Warrant, the principle must be of more general application in relation to the operation of the 2003 Act and in particular to the fairness and accuracy of the description of the extradition offence.
16.	It appears that although the evidential basis for the argument advanced before the District Judge was founded on statements served two months before the final extradition hearing before the District Judge, the argument itself was only advanced at the final extradition hearing on 21 December 2012.  That evidential basis can be summarised as follows:
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. 
17.	When the point was taken at the hearing that the description in the extradition request was not fair and accurate, counsel for the appellant Government appears to have appreciated that the evidence supplied by the appellant United States Government did not adequately deal with this point.  At the conclusion of the hearing counsel for the United States Government informed the judge that he intended to obtain evidence in rebuttal from the United States.  Counsel for the requested person strongly opposed any such course of action.  The judge stated that he was not encouraging such a course of action and was giving no indication as to whether he would consider any such material if it was obtained.
18.	On 11 January 2013 prior to the judge notifying the parties of his intention to hand down his written judgment, the appellant Government served a note on the court and a supplemental affidavit by Mr Kunz dated 8 January 2013.  In the affidavit Mr Kunz set out evidence which he submitted would show that on the day when the respondent escaped, the respondent had returned to the federal prison camp; that he had been present at the 8 p.m. headcount but not present at the 10 p.m. headcount.  It was therefore submitted that he had not absconded during day release but had escaped from the camp.
19.	The judge rightly, in our judgment, declined to accept that evidence.  If a party appreciates at a hearing that it does not have evidence to deal with the point, it is incumbent upon a party to apply then and there.  A judge then has the opportunity to consider whether there is any basis upon which further evidence can be admitted or whether the point being taken in relation to which the evidence is said to be directed is a point which is new and therefore should not be taken.  
20.	The judge, however, dealt with the argument made on behalf of the respondent as to abuse on the basis of the respondent’s evidence alone.  He did so in short order.  He said there was nothing to suggest any abuse by the Government in the presentation or conduct of the proceedings.
21.	We agree with that view.  The fact that the respondent has been able to obtain evidence that inmates worked at the air force base, a matter not disputed by the appellant Government, does not advance the respondent’s case that the conduct was not fairly, accurately or properly described.  Neither the employee of the federal prison camp nor the employee on the base purports to say that the appellant was at the base at the time he absconded.  The only evidence that he was at the air force base and not at the prison camp at the time he absconded is that of the respondent himself.  The fact that the respondent’s account contradicts what is said by the Government cannot give rise to a claim that the conduct was not fairly and accurately described.
22.	In our judgment, therefore, the claim relying on Murua and abuse of process fails.
Issue 3:  Article 8
(i)	The issue
23.	It was contended on the respondent’s behalf before the District Judge that his extradition was in any event barred as extradition would not be compatible with his rights and those of his dependants under Article 8.  It was submitted that in accordance with the law as established by the Supreme Court in H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2012] 3 WLR 90, extradition would be a disproportionate interference with his private and family life and that of his dependants, given the balance between the level of seriousness of the offence for which his extradition was sought, the time at which the offence had allegedly been committed, the significant family and private life established in the United Kingdom and the blameless life which he had led since then in the course of which he had made a significant contribution to society.
24.	The judge accepted the submissions made on behalf of the appellant Government to the effect that any interference, although it would cause hardship, would not be disproportionate to his rights under Article 8.
25.	In this court there was no dispute as to the applicable principles; they are set out in H(H).  The appeal turns solely on the application of those principles to the particular facts.
(ii)	The submissions
26.	The matters relied on by the respondent can be summarised as follows:
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.
27.	It is accepted by Mr James Lewis QC on behalf of the respondent that the matters which we have summarised relating to his family and private life do not in themselves constitute a bar to extradition which is set at a high level in respect of Article 8.  It is, however, submitted that combined with the age and gravity of the offence, the interference with the Article 8 rights of the respondent and his dependants would not be proportionate.
28.	It is the submission of the appellant Government:
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 [2012] EWHC 2603 (Admin) at paragraph 24 and AC v Poland [2012] 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
29.	As it is clear, on the concession of the respondent, that the necessary level of interference with family and private life cannot be constituted by the respondent’s personal and professional life and the dependency of others upon him, it is necessary to analyse the two factors that are said by the respondent to make a difference.
30.	The first factor is the length of time he has spent in the United Kingdom without detection and the fact that the offence for which he is sought was so long ago.  However, as in JP v The Czech Republic and AC v Poland, the respondent came to the United Kingdom as a fugitive from justice.  It seems to us therefore that the fact that the crime was so long ago can only be a very minor factor.
31.	The second factor, and one of much more importance, is the level of the seriousness of the offence and the likely punishment he would receive.  As Lord Judge CJ said in H(H) at paragraph 132, it is relevant to consider in such cases whether a sentencing court in this country would be likely to impose a sentence of immediate custody.  However, as he went on to point out, a court in the United Kingdom must exercise caution as it would not be right to impose the views of UK courts about the seriousness of offences as those were ultimately a matter for the state seeking extradition.  He concluded by stating:
“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.”
32.	We are in no doubt that if a court in this country was considering sentencing the respondent for the offence of escape given the circumstances of the offence and, more importantly, the dependence of children and others upon him, a court would not pass a custodial sentence.  Furthermore, provided appropriate arrangements were made so that the respondent did not flee from justice, it would not impose remand in custody awaiting trial or sentence.
33.	In deciding in the circumstances whether, taking into account the interests of the children and the other dependants, extradition would be a disproportionate interference with Article 8 rights, it is, we think, important in the most unusual circumstances of the present case to consider not only the way in which the courts of the UK would approach the sentence but also how the courts would deal with him in the period of time he was awaiting trial.
34.	The court came to the view, in these circumstances, that it was necessary for it to be provided with information, in the event of the respondent being extradited, as to the amount of time that would elapse before a trial and what the appellant Government would seek in respect of the respondent’s bail or custody during that period.  Bearing in mind the fact that in this case the courts of the United Kingdom would impose neither a remand in custody awaiting trial nor an immediate custodial sentence, it was material for the court to be informed as to what would happen to the respondent in the United States in the period pending trial. This view was communicated to the parties. The parties provided further evidence and submissions.
(iv)	The further evidence in relation to the terms on which the respondent would be held pending trial.
35.	The appellant Government provided in June 2013 a further affidavit from Mr Kunz and affidavits from Mr Flournoy, Warden of the Federal Detention Centre at Tallahassee, Florida, and Mr Massindale and Mr Wood, respectively a Senior Programs Specialist and a Correctional Programs Administrator in the South East Regional Office of the Federal Bureau of Prisons. That evidence can be summarised as follows:
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.
36.	In response, the respondent served in July 2013 an affidavit from Mr Joseph Walker, a former federal prosecutor and now a practitioner in “White Collar” work. His evidence was, in summary:
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.
37.	In response, the appellant Government filed a letter from Lynn Holiday, a Senior Trial Attorney at the Office of International Affairs of the Department of Justice. It disputed any likelihood of delay; the respondent was not yet entitled to discovery and when he was the documentation would be small. It was unlikely that he would be held at Baker County Jail.
38.	At the hearing of the appeal and before the submission of further evidence, the court canvassed with the appellant Government the possibility of undertakings of the kind usually given by Governments being given in this case. None was offered, not even in respect of bail. On the contrary, the stance of the appellant Government was that it would oppose bail.
39.	Thus in determining the likely interference with the family life of the respondent and those dependent on him, the court must, on the evidence before it, take into account the evidence that it is likely that he will be held in custody pending trial; there is a dispute as to how long that period might be, which on the evidence it is difficult to resolve. It is, given the balance of the period that remained to be served on the original offence, the blameless life led by the respondent since 1991 and the dependence of others on him, a period of custody, even on the most favourable assumptions as to the time of a trial, that in relative terms would in itself be a very severe sentence on an offender in the position of the appellant for a crime of no great gravity. 
40.	If convicted, the evidence was that he would receive a custodial sentence; we were provided with no evidence as to its potential length. After the expiry of that sentence the clear evidence of Mr Walker in relation to custody pending deportation was not contradicted (even though the place of detention was).  It is thus likely that, in addition to the time on remand, if convicted he will spend a further considerable period of time in custody before return to the United Kingdom taking into account the custodial sentence and the period following that sentence in custody awaiting deportation.
41.	Taking all of these matters together, in addition to the matters we have set out at paragraphs 26-33 and carrying out the requisite balancing test, we have come to the conclusion in the rare circumstances of this most unusual and exceptional case that to order extradition would infringe the Article 8 rights of the respondent and those dependent on him.
42.	It is a matter of regret that in a case of this kind those giving instructions on behalf of the appellant Government have not been prepared to provide the kind of undertakings provided by other Governments that might well have allowed this court, consistent with the Article 8 rights of the respondent and those dependent on him, to order his extradition.