QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HON MR JUSTICE CRANSTON
| SALVIS AUZINS
|- and -
|PROSECUTOR GENERAL'S OFFICE OF THE REPUBLIC OF LATVIA
Mr Mark Summers QC & Miss Catherine Brown (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 03 March 2016 with further written submission 12 April 2016
Crown Copyright ©
LORD JUSTICE BURNETT:
i) The judge should have discharged him because the Latvian authorities were estopped, or the issue of his surrender was res judicata, on account of his discharge in March 2011 in Scotland in extradition proceedings for substantially the same matters in connection with an earlier EAW which was subsequently withdrawn;
ii) Alternatively, the judge should have discharged him because by seeking the appellant's surrender the Latvian judicial authority was abusing the process of the court;
iii) The judge should have discharged him on grounds of delay pursuant to section 14 of the Extradition Act 2003 ["the 2003 Act"];
iv) The judge should have discharged him pursuant to section 21A of the 2003 Act because his surrender would violate his rights under article 8 of the European Convention of Human Rights ["The Convention"];
v) The judge should have discharged him pursuant to section 25 of the 2003 Act because of his physical condition.
"Taking into consideration the above mentioned health treatment for A. Auzins in the imprisonment institutions of the Republic of Latvia due to insufficient public funding will be restricted, insufficient and incompatible with European guidelines."
A similarly gloomy statement about the quality and extent of the medical care then available on surrender was contained in another communication a month later. The order made by the Sheriff Court on 24 March 2011 recorded that there were no bars to extradition under section 11(1) of the 2003 Act and that the appellant's extradition would be compatible with the Convention. However, the Sheriff concluded that the appellant's "physical condition is such that it would be oppressive to extradite him" and ordered his discharge. There is no judgment available but, on instructions, Mr Robertson tells us that the entire focus of the hearing was on whether the appellant's constellation of medical conditions would be adequately treated in Latvia. The Latvian judicial authority did not appeal.
The Medical Position
Res Judicata and Abuse of Process
"There is, however, a wider sense in which the doctrine of res judicata may be applicable, whereby it becomes an abuse of process to raise in subsequent proceedings matters which could, and therefore should, have been litigated in earlier proceedings In our judgment, that principle is applicable to proceedings for habeas corpus "
Ouseley J (with whom Davis J agreed) went on to deal with abuse in Altun's case on that basis, holding that a similar approach to abuse of process could arise in extradition proceedings.
a) The decision, whether domestic or foreign, was judicial in the relevant sense;
b) It was in fact pronounced;
c) The tribunal had jurisdiction over the parties and the subject matter;
d) The decision was (a) final and (b) on the merits;
e) It determined a question raised in the later litigation; and
f) The parties are the same or their privies [i.e. the decision was in personam], or the earlier decision was in rem [i.e. binding on the world, not just the parties].
The appellant's case is that all six ingredients are satisfied, subject to the question whether the concept applies at all to extradition proceedings. Mr Summers QC for the respondent submits that even if the concept has any part to play in extradition proceedings the question in these second English proceedings is different from that in the Scottish proceedings. They were concerned with the state of affairs in the Latvian prison medical system in late 2010 and early 2011. The factual position has changed.
"Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston's Case (1776) 20 St Tr 355. "Issue estoppel" was the expression devised to describe this principle by Higgins J in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537, 561 and adopted by Diplock LJ in Thoday v Thoday  P 181, 197-198. Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger."
"That doctrine [i.e issue estoppel], so far as it affects civil proceedings, may be stated thus: a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him.
the existence of the 'issue estoppel' results in there being no issue in the subsequent civil proceedings to which such evidence would be relevant. Issue estoppel is a particular application of the general rule of public policy that there should be finality in litigation.
That general rule applies also to criminal proceedings, but in a form modified by the distinctive character of criminal as compared with civil litigation. Here it takes the form of the rule against double jeopardy."
" every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court."
"A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction on the assumption
(a) that the conduct constituting the extradition offence constituted an offence in the part of the United Kingdom where the judge exercises jurisdiction;
(b) that the person were charged with the extradition offence in that part of the United Kingdom."
Reference to the Luxembourg Court
Abuse of Process
Delay and Section 14 of the 2003 Act
"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-
(a) committed the extradition offence (where he is accused of its commission) or
As is well known, the term unjust is "directed primarily to the risk of prejudice to the accused in the conduct of the trial itself" and oppressive is "directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration" but "there is room for overlapping, and between them, they would cover all cases where to return [the accused] would not be fair " See Lord Diplock in Kakis v the Government of the Republic of Cyprus  1 WLR 779, HL at 782H 783A.
"Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."
Lord Brown, giving the considered opinion of the Committee in Gomes, re-emphasised the point. He indicated at  that the delay Lord Diplock was concerned with in this passage was delay in the overall process of bringing the accused to justice. At  he continued:
"This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer 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."
Lord Brown approved the approach of this court in Krzyzowski  EWHC 2754 (Admin) that flight would in all save the most exceptional circumstances operate as an "almost automatic bar to reliance on delay" . He gave as an example of the operation of the exception the decision of this court in In re Davies (Alfred James)  COD 30. The accused was discharged because during the relevant lapse of time for which he was responsible as a fugitive, he had become unfit to plead . I observe that such a case might now also be decided by reference to article 6 of the ECHR or possibly section 25 of the 2003 Act. Lord Brown concluded:
"In the great majority of cases where the accused has sought to escape justice, however, he will be unable to rely upon the risk of prejudice to his trial or a change in his circumstances, brought about by the passing years, to defeat extradition."
(i) Taken as a whole, the appellant can establish "most exceptional circumstances" why the delay since 2007 should be taken into account;
(ii) There was a deliberate decision by the Latvian authorities not to pursue him after his discharge by the Sheriff in 2011 and, in any event, he has a justified sense of security following the Scottish proceedings;
(iii) The delay from 2007, if taken into account, justifies the conclusion that it would be oppressive to extradite him. Alternatively, on its own, the delay from March 2011 does so.
Article 8 and Section 25 Oppression
MR JUSTICE CRANSTON