England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 December 2013

Mr Justice Collins:

1. The appellant's extradition to Luxembourg was ordered by District Judge Zani on 19 August 2013 pursuant to an European Arrest Warrant (EAW) to serve the balance of sentences of 7 years imprisonment imposed for offences involving serious sexual assaults on the appellant's half-sister. He appeals against that order pursuant to section 26 of the Extradition Act 2003.
2. There were two offences which were proved against him. The victim of both offences was his half-sister who was at the time 14 years old, he being 35 years old. The first was committed in December 2008 and involved him stripping her while she was sleeping and then exposing himself to her. The second was committed in February 2009 and involved rape of the victim by penetration by his finger or penis. He was sentenced to a total of 7 years imprisonment, 3 years of which were suspended. In all, he served 84 days and so is required to serve the balance of 3 years and 281 days. From that will be deducted if he is extradited the time spent in custody in this country.
3. The appellant was originally extradited from the UK to Luxembourg to face trial for the two offences on 17 December 2009. He was taken to be interrogated by the police in accordance with the procedure in force in Luxembourg. He initially refused to answer questions unless, following the procedure which would have applied in England, he was assisted by a lawyer. The procedure then in force in Luxembourg did not allow for a lawyer to be present to assist an accused person at the initial police interrogation. He was informed that this was the position and that he would face a further interrogation before an investigating magistrate at which he would have a lawyer appointed to assist him. A lawyer was appointed and the same lawyer represented him at all following interrogations and throughout his trial. In all interviews and at trial he denied that he was guilty of either offence.
4. The ground relied on by the appellant is that there was a breach of Article 6 of the ECHR in the trial process which constituted a bar to his extradition. It is submitted that the failure to provide a lawyer at the initial police interrogation was a breach of Article 6(1) read with Article 6(3)(c). Article 6(1) provides for the entitlement in respect of any criminal charge 'to a fair … hearing'. Article 6(3) sets out a number of minimum rights which apply to everyone charged with a criminal offence. Article 6(3)(c) includes within those minimum rights, the right:-

"… to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."

5. In Salduz v Turkey (2009) 49 EHRR 19 the Grand Chamber of the ECtHR decided that as a rule Article 6(1) read with Article 6(3)(c) required that access to a lawyer should be provided from the first interrogation of a suspect by the police. The Court's reasoning is to be found in Paragraphs 54 to 56 of its judgment. It underlines the importance of the investigation stage since the evidence then obtained will determine the framework in which the offence charged will be considered at the trial. It noted that an accused will often find himself in a particularly vulnerable situation at that stage and this, added to the increasing complexity of rules relating to the admissibility of evidence, can only be properly compensated for by the presence of a lawyer to assist. The more serious the charge the more the need for such assistance. In Paragraph 55, the Court said:-

"55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently "practical and effective" art 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under art.6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction."

6. In Salduz the applicant had given incriminating answers to the police which he retracted at trial. But the court unsurprisingly relied on the incriminating answers in convicting him. However, the absence of any incriminating answers does not necessarily mean that there is not a breach of Article 6(1). So much was made clear by the Supreme Court in Cadder v HM Advocate [2010] 1 WLR 2001. The system in force in Scotland was similar to that in Luxembourg in that the initial police interrogation carried no right to the presence of a lawyer. There were protections in place which had persuaded the Appeal Court in Scotland to distinguish Salduz. But the Supreme Court decided that that was not possible and that the absence of a solicitor to give advice meant that there would be a breach of Article 6. Lord Hope, with whose judgment the other members of the Court agreed, made it clear in Paragraph 49 that the Salduz principle could not be confined to admissions made during police questioning and that it extended to incriminating evidence obtained from elsewhere as a result of lines of enquiry that the detainee's answers had given rise to. His conclusion as to the effect of Salduz was that:-

"… the contracting states are under a duty to organise their systems in such a way as to ensure that, unless in the particular circumstances of the case there are compelling reasons for restricting the rights, a person who is detained has access to advice from a lawyer before he is subjected to police questioning."

7. My attention was drawn to Directive 2013/48/EU of 22 October 2013 which came into force a few days ago. This lays down minimum rules concerning the rights of suspects and accused persons in criminal and EAW proceedings (Article 1). Article 3 deals with the right of access to a lawyer and requires that there be access to a lawyer from the time suspects are questioned by the police or by another law enforcement or judicial authority (Article 3.2(a)). While this does not have retrospective effect, it indicates complete acceptance of the decisions of the ECtHR. Furthermore, the ECtHR has decided that there is violation of Article 6 even though the accused persons said nothing when questioned by the police: see Dayanan v Turkey No. 7377/03, decision given on 13 January 2010.
8. Having regard to the authorities both from the ECtHR and the Supreme Court, Mr Payter recognised that he would be unable to persuade me that the refusal to allow a lawyer to assist the appellant at his first interrogation by the police did not in principle breach Article 6. He was obviously correct in doing so. However, when the violation was raised on the appellant's behalf in Luxembourg, the Court of Appeal and the Court of Cassation found there was no breach because "after having received clarification concerning the applicable proceedings, he agreed to give evidence without the presence of counsel." Since the explanation given simply told him that he would at subsequent interrogation be provided with a lawyer, it should, I think, be obvious that it could not provide the compelling reason which the ECtHR regarded as necessary: see Paragraph 55 of Salduz cited in Paragraph 5 above. Mr Payter was clearly correct to recognise that it was impossible to uphold the reasoning of the Court of Cassation.
9. Thus there can be no doubt that there was a violation of Article 6 in the refusal of the appellant's request for a lawyer at his interrogation by the police. But that does not mean that extradition is necessarily incompatible with his convention rights within section 21(1) of the 2003 Act. The jurisprudence of the ECtHR shows that more than the existence of a violation is required. I shall refer to this in more detail but it is entirely consistent with the approach of the Supreme Court in Cadder. In paragraph 64, Lord Hope, said this:-

"[Counsel] invited the Court simply to allow the appeal and quash the conviction. But that would only be appropriate if it was clear that there was insufficient evidence for a conviction without the evidence of the police interview or that, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they not had that evidence before them."

Accordingly, the case was remitted to the High Court of Justiciary to determine that issue. Only if the conviction was unsafe because of the admission of the evidence of the interrogation should the conviction be set aside.

10. When this case was before the District Judge, the information from Luxembourg was that, if the ECtHR found that there had been a breach of Article 6 (the appellant having made an application to the ECtHR following the decision of the Court of Cassation) "there would be no retrial in Luxembourg as the rules on criminal proceedings do not make provision for such a retrial." However, the Luxembourg authorities have now confirmed that, if the ECtHR find a violation of the appellant's Article 6 rights, he will be dealt with 'in a similar way to which the authorities in England and Wales would address the same situation'. This led the appellant's solicitor to request an adjournment to seek clarification of this by information from a Luxembourg lawyer since there had been a conflict between the new and the earlier indication. In addition, the ECtHR had informed the parties on 7 November 2013 that, before deciding on admissibility, the Court would seek observations from the governments of Luxembourg and the UK on the question whether the appellant's case was heard fairly. This also, it was said, together with whether, as will be seen, Articles 5 or 6 were applicable needed an adjournment. I was not persuaded that an adjournment was needed and so I refused the application. Mr Grandison also applied that his legal aid should be extended to appoint leading counsel having regard to the submitted complexity of the issues. I was entirely satisfied that Mr Grandison was capable of dealing with the issues which were not in reality particularly complicated. He showed that my faith in him was not misplaced and I am indeed grateful both to him and Mr Payter for the way in which they have dealt with the issues that have arisen in this case.
11. The appellant's application to the ECtHR raises matters in addition to the failure to provide a lawyer at the initial interrogation. He alleges that the lawyer provided had not been able to examine the court file when the appellant was interrogated by the investigating judge and so his presence was a mere formality. Further, he was only permitted to cross-examine the complainant at the trial through the president of the court who asked questions in the way he decided was appropriate. In addition, he complained that the complainant had been examined by a psychologist who concluded that her allegations were credible. These together with the refusal of a lawyer resulted, he submitted, in unfairness. All these matters are raised in the application which is at present before the ECtHR.
12. Mr Grandison recognises that the test to be complied with in extradition proceedings in accordance with the jurisprudence of the ECtHR is whether the appellant will suffer or has suffered a flagrant denial of justice in Luxembourg. What can amount to such a flagrant denial has been recently considered by the ECtHR in Othman v UK (2012) 55 EHRR 1. After considering the court's previous relevant decisions, in Paragraphs 259 to 261 of the unanimous decision, the court said this:-

"259. In the Court's case law, the term "flagrant denial of justice" has been synonymous with a trial which is manifestly contrary to the provisions of art 6 or the principles embodied therein. Although it has not yet been required to define the term in more precise terms, the Court has nonetheless indicated that certain forms of unfairness could amount to a flagrant denial of justice. These have included:

conviction in absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge

a trial which is summary in nature and conducted with a total disregard for the rights of the defence

detention without any access to an independent and impartial tribunal to have the legality of the detention reviewed

deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country.

260. It is noteworthy that, in the 22 years since the Soering judgment, the Court has never found that an expulsion would be in violation of art 6. This fact, when taken with the examples given in the preceding paragraph, serves to underline the Court's view that "flagrant denial of justice" is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of art 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by art 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article.

261. In assessing whether this test has been met, the Court considers that the same standard and burden of proof should apply as in art 3 expulsion cases. Therefore, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it. "

13. Mr Grandison relies in particular on 'deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country.' No doubt this could result in a 'nullification or destruction of the very essence of the right of a fair trial.' But it is necessary to consider the circumstances of a particular case and to recognise that the refusal referred to could extend beyond a preliminary interrogation. But it is clear that what has to be established to justify a refusal to extradite is set at a high level. It seems to me that the test enunciated in Cadder, namely whether the conviction can be regarded as safe, covers the same ground. If, but only if, that is established will the breach of art 6 be sufficiently flagrant to justify a refusal to extradite a requested person.
14. Since there was a breach of Article 6, it is necessary to consider the facts of the case to determine whether the breach was flagrant. Transcripts of the reasons given by the Court of trial, the Court of Appeal and the Court of Cassation have been provided. In his interrogation by the police, the appellant denied that he had committed the offences. The allegations were, he said and he maintained, unfounded. The Court of Appeal sets out the evidence given in great detail, but it is not necessary for me to refer to much of it. In relation to the first charge, he said he recalled it. She had fallen asleep in his room and he had had to wake her. She said she had dreamt that she had had sexual relations with her father, but that, the appellant said, he had reassured her that it was a bad dream. He had not at any time undressed her or exposed himself to her.
15. So far as the second allegation in February 2009 was concerned, he recalled, he said, that he was suffering from shingles and was resting in bed. He awoke to find the complainant sitting on his chest and kissing him. He pushed her off and she ran away. He did admit that he had bought underwear for her but denied anything was wrong with that. In addition, he admitted that he had bought her condoms because she had said she wanted to have sexual relations with an unnamed person. This was, he said, because he was a caring brother. This is what he said to the police.
16. To the investigating magistrate the record produced states that broadly speaking he confirmed what he had told the police. The allegations were false and the complainant seemed to be fascinated by sex. He maintained his denial and his previous denials. It was, however, noted that in relation to the giving to the complainant of condoms he had changed his version as to why he had given her condoms and what he had said in the initial interview, in his first court appearance and at trial was not entirely consistent.
17. I have no doubt that there was ample evidence which supported the decision to convict. There were discrepancies and improbabilities in the condom explanations independently of the police answers. Mr Grandison in addition draws attention to the shingles evidence since the prosecution was able to obtain evidence from the appellant's doctor which cast doubt on whether he was suffering from shingles in February 2009. But that did not depend entirely on what he said in the first interview. The breach in failing to provide a lawyer at the first interview did not nor could any court reasonably conclude that it could have resulted in a destruction of the very essence of the right to a fair trial or render the conviction unsafe.
18. It is not for this court to seek to determine the other matters now raised before the ECtHR. While the psychologist's assessment of the complainant's credibility would probably not be admissible in our system, that is not to say that it is unfair. It is not suggested that the psychologist could not be cross examined to test the reliability of her opinion. The requirement to cross examine the minor complainant through the President is not at all unreasonable. Information obtained from the Luxembourg authorities shows that the presiding judge did not prevent the appellant's representative from putting all the questions he wished to ask but, in order that the witness should 'grasp the meaning or take out the crudeness of the questions put forward by the advocate who 'had a very aggressive way of addressing the facts and charges', the President put the questions to the witness. I see nothing objectionable in that procedure.
19. While I would be surprised if the ECtHR decided to admit the appellant's application, it is not for me to reach any conclusion on that. Nor is it for me to engage in a detailed consideration of whether there were any flaws and so breaches of Article 6 in the trial process. None are apparent. I am satisfied that if the ECtHR were to decide in the appellant's favour, the Luxembourg authorities would apply that ruling and give the necessary relief to the appellant, possibly in the form of a retrial.
20. That it is not appropriate to refuse to extradite so long as the decision of the ECtHR is unknown is supported by the decision of the Divisional Court in Arranz v Spanish Judicial Authority [2013] EWHC 1662 (Admin). One issue in that case was whether Article 7 of the ECHR (prohibition of retrospective criminality) applied to the appellant's extradition. An appeal to the Grand Chamber of the ECtHR was pending against the decision of the Third Section that Article 7 did apply so that the appellant in that case would have to be released. In Paragraph 45, the then President of the Queen's Bench Division, giving the judgment of the court, said:-

"45. On the evidence before us, the Spanish courts have made clear that they will apply the decision of the Grand Chamber. There is no reason to suggest that the courts would not do so. Thus, as the Spanish courts will abide by the decision of the Grand Chamber, it is difficult to see how it can be said that there would be a risk of flagrant breach of Article 7 if the appellant were now to be returned to Spain to await that decision. If the Grand Chamber upholds the decision of the Third Section, the Spanish courts will release him; if the Grand Chamber reverses the decision and holds there was no breach of Article 7, the appellant would have no case on Article 7. Spanish law, as we have set out, makes no provision for bail. It is difficult to see how it can be suggested that in circumstances where there is no real issue over the operation of Article 7, keeping a person in custody pending the determination of that issue could amount to the risk of a flagrant violation of Article 7. As we have reached this conclusion, it would not be right to adjourn our decision on that issue, for to do so would in effect be acting contrary to the respect which we should accord the decisions of the Spanish courts."

In my judgment, that principle applies equally to this case, particularly as the present appellant's case is very much weaker than that of Arranz.

21. The question was raised whether, this being a conviction case, Article 6 applied at all and the matter should be approached as a breach of Article 5. This was said to arise from Othman v UK at paragraph 232 where the ECtHR said this:-

"232. The Court also considers that it would be illogical if an applicant who faced imprisonment in a receiving state after a flagrantly unfair trial could rely on art 6 to prevent his expulsion to that state but an applicant who faced imprisonment without any trial whatsoever could not rely on art 5 to prevent his expulsion. Equally, there may well be a situation when an applicant has already been convicted in the receiving state after a flagrantly unfair trial and is to be extradited to that state to serve a sentence of imprisonment. If there were no possibility of those criminal proceedings being reopened on his return, he could not rely on art 6 because he would not be at risk of a further flagrant denial of justice. It would be unreasonable if that applicant could not then rely on art 5 to prevent his extradition."

This was picked up by Mitting J in Frits Van Der Kramer v Belgium [2013] EWHC 500 (Admin), a conviction case, in which at paragraph 21 he said that the appellant's complaint in relation to the conviction warrant could only arise under Article 5. It does not seem to me to matter whether Article 6 or Article 5 should apply. If the conviction resulted from an unfair trial process, any custody would breach Article 5. Thus whether the case is considered as a breach of Article 6 or of Article 5 or both, the result would be the same, namely that extradition would be barred. Equally, if a real risk of a flagrant breach of Article 6 could not be established, Article 5 would not assist the requested person. The point is thus entirely academic.

22. In all the circumstances, this appeal is dismissed.