Kila v HM Prison Brixton & Anor [2004] EWHC 2824 (Admin)

Case No CO/4270/2004[2004] EWHC 2824 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 2nd December 2004
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
MR JUSTICE LEVESON
Between
PARFAIT KILAApplicant-v-
Between
THE GOVERNOR OF HM PRISON BRIXTONRespondentTHE GOVERNMENT OF SWEDENRespondent
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR P KELEHER (instructed by Messrs Moss and Co) appeared for APPLICANTMR G PATTERSON (instructed by Crown Prosecution Service) appeared for FIRST RESPONDENT for The SECOND RESPONDENT did not attend and was not represented
J U D G M E N TThursday, 2nd December 2004
[1]MR JUSTICE COLLINS: This an application by Parfait Kila, an Angolan by origin but now a Swedish national, who seeks a writ of habeas corpus in order, in effect, to release him from the requirement that he be extradited to Sweden.[2]The background we can state very shortly. He was living in Sweden in 1993 and 1994 and he was then involved in what the Swedish law describes as gross fraud. He was, in due course, convicted of three charges; two of attempted gross fraud, one of actual gross fraud. In our terms, the offences would have included obtaining or attempting to obtain by virtue of a forged instrument. He was involved with others who had a similar background to himself and he had sought to obtain sums into five figures. So this was a substantial fraud and it involved, it would seem, a fraud upon banks in France. It is not necessary to go into any further detail. Suffice it to say that, following his convictions, he pleaded guilty to one charge but was convicted of two others. He was sentenced to two years' imprisonment. He appealed against the convictions and against the sentence but his appeals were dismissed. Swedish law provides that in a case such as his where he is not imprisoned before the appeal process is concluded that he report to the prison in order to commence his sentence. The notional day when that should have occurred was 13th April 1995. However, it was necessary to serve him with the relevant documentation to require him to attend at the prison, and the date on which he was due to attend prison was in July 1995. He decided that he would not turn up to serve his sentence and he then left Sweden. We do not have any direct evidence as to where he went, until in about 1997, it would seem, he came to this country. He had, of course, a Swedish passport so he would have had no problems in relation to immigration here. He has travelled, it is said, relatively extensively since then, but he has been living in this country. He formed a relationship with a lady, by whom he had a son, but we are told that that relationship broke down and mother and son have since gone to the United States. He apparently sends money to help to support the child. Since then, he has been living here as a single man, although, we are told by Mr Keleher, who has appeared on his behalf, he is engaged to be married to a British citizen here.[3]The Swedish authorities were not aware of his having settled in this country, but in February 2002 it seems they were notified that he was living in London and were given an address, which Mr Keleher informs us was the correct address. That was on 12th February 2002. Unfortunately, we do not know how the Swedish authorities obtained that information. Following that, they decided that in September 2002 he should be reported as wanted in the Schengen countries and in the rest of Europe. Presumably, that would have been a notification to Interpol. He had been declared wanted in Sweden on 15th February 1996, but we assume that that was limited to the Swedish police authorities.[4]There is, unfortunately, a lack of evidence as to what steps, if any, the Swedish authorities took to try to locate him between 1995 and 2002. The authorities were asked in September of this year for information as to what steps had been taken, but no specific response has been received to that question.[5]Since the Swedish authorities discovered that he was in this country, he was, in fact, arrested by the police on 5th December 2002 in connection with an allegation relating to travelling on, I assume, the underground without a ticket. He was bailed and returned to Hounslow police station in January 2003, when the police informed him that no further action was being taken.[6]In the meantime, in December 2002 the Swedish authorities had requested that he be returned to them. There were then what might be described as perhaps the usual steps taken by the Home Office and the Crown Prosecution Service in this country. Unfortunately, quite considerable time was taken.[7]In December 2002, or shortly after, counsel was instructed to advise and gave his advice in February 2003. There was further information received from the Swedish authorities in early 2003 and various other information was sought and given during the summer. Essentially, what was required was proof of identity of the applicant.[8]There were further steps taken in the autumn of 2003. There was a need to provide a relevant schedule of charges, and it was also decided that it was necessary to obtain further authenticated evidence in relation to the applicant's conviction.[9]Finally, on 11th February of this year a warrant was issued and was executed on 13th July. The decision of the Court, which decided that extradition should take place, and which is the subject of this application was in August of this year.[10]The case, as put initially, certainly in the claim, was based largely upon what was said to have been the failure by the Swedish authorities to act with due diligence in taking steps to locate the applicant after he left Sweden in 1995. The affidavit from the applicant's solicitor states in paragraph 11:
"On behalf of Mr Kila, we will submit that the Swedish Government over many years has shown complete indifference to his whereabouts and way of life and has taken an inordinate amount of time to pursue his extradition. Given the amount of travel he has undertaken, it is inconceivable that the Swedish Government was not aware of his whereabouts. We will invite this honourable Court to infer that the second defendant [that is the Swedish Government] has pursued his extradition at this very late stage because it has realised that the sentence will become unenforceable after next April."
[11]That is a reference to the position in Swedish law which provides that in the case of a sentence of two years' imprisonment, if that sentence has not been commenced to be served within ten years, then there will be no liability to serve it. Effectively, the obligation to serve the sentence will be wiped out. That will occur on 13th April next year. Accordingly, at this stage, there is, of course, something of an incentive to the claimant to try to ensure that he is not extradited to Sweden before 13th April 2005.[12]This application relies upon the provisions of section 11(3) of the Extradition Act 1989. That provides, so far as material:
"Without prejudice to any jurisdiction of the High Court apart from this section the Court shall order the applicant's discharge if it appears to the court in relation to the offence or each of the offences in respect of which the applicant's return is sought that (b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be, it would, having regard to all the circumstances, be unjust or oppressive to return him."
[13]That provision has been in force in earlier Acts for a considerable time. One of the leading authorities in relation to it is Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 (HL(E)). In that case, at page 783A, Lord Diplock said this:
"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. ... As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude."
[14]Mr Keleher submits that that is putting it a bit too high inasmuch as the conduct of the requesting state can be material and can result in delay being regarded as oppressive. I suppose that the case which establishes that is Sinclair v Government of the United States, but the circumstances there were exceptional in that the person whose extradition was requested had left the United States with the permission of the authorities in order to wind up his affairs in Trinidad and, when he tried to return, had been refused admission to the United States by the immigration authorities. There were then indications given to him which led him reasonably to believe that the authorities in the United States had decided that they would not require him to serve the sentence which had been imposed for the offences which he had committed. Years later, the authorities in the United States requested his extradition. In those circumstances, it is perhaps not surprising that the conduct of the requesting state was considered material in deciding whether there was oppression. But the important point there was that the individual concerned had been provided with what nowadays might be regarded as a legitimate expectation that no further proceedings would be taken against him. That is usually not the position and is certainly not the position here.[15]So far as the conduct of the Swedish authorities is concerned, true this was a serious fraud, but it was hardly the most serious sort of offence that the authorities had to deal with. More importantly, as Mr Keleher accepted, there is a limit to the number of cases which should be notified to Interpol because otherwise the system will become overloaded and, obviously, its efficiency will be gravely affected. Furthermore, there was no reason for the Swedish authorities to believe that this applicant would come to the United Kingdom. He had no apparent connections with this country. He had some possible connections with France, which is where certain parts of the fraud were carried out, but he was of Angolan origin and they might well reasonably have taken the view that he was likely to be outside Europe because he might believe that he would be more easily detected in Europe.[16]In my judgment, it is quite unreasonable to suggest that the Swedish authorities can be blamed for not having located him before they did. There is some criticism leveled at the length of time that it took, between 2002 and 2004, to institute the proceedings against him. Mr Keleher accepts that he cannot say that there was any extra oppression resulting from that period of delay and we, of course, bear in mind that, unfortunately, the procedures relating to extradition do sometimes take longer than would appear to be desirable. But it is important that the application is in apple pie order before it is put to the court because defects will be spotted and will be relied upon by any person whose extradition is requested. So it is essential that the Crown Prosecution Service ensures that it has all the necessary information to establish the identity of the individual, the nature of the offences, the right description of offence to be put before the court, and so on. It has to ensure that there are no loopholes.[17]I ask myself whether it would be oppressive in all the circumstances. Mr Keleher accepts that "unjust" is not material in the circumstances of this case because as, again, observations in the leading cases make plain, "unjust" normally relates to whether it would be possible for the fugitive to have a fair trial. That, of course, does not arise in a case such as this. I am bound to answer the question I have posed to myself by saying that I can see nothing oppressive in the decision to return the applicant at this stage.[18]There are a number of authorities, of which we have been shown transcripts, which deal with this issue. All of them depend upon their own facts. It is not, in my view, particularly helpful to refer to them in any detail. Suffice to it say that they make clear that it is only if the court is satisfied that it will be oppressive that the return should not be permitted. The mere fact of delay is unlikely in most cases, indeed the vast majority of cases, to justify a decision that to return would be oppressive. There must be something more than mere delay.[19]Mr Keleher did submit that since the ten years was nearly up, that is something which we could properly take into account. It seems to me that it works essentially the other way. If the ten years were up, he would not be able to be returned because he would not have to serve the sentence. Swedish law provides that there is that limitation period. I see no reason why we should take the view that anything short of that limitation period must of itself mean that it would be oppressive to return. Accordingly, in all the circumstances, for the reasons I have given, I would dismiss this application.[20]MR JUSTICE LEVESON: I agree. All those concerned in or with decisions which deal with whether this applicant should in fact be extradited should be made aware that if he does not start to serve his sentence by 13th April 2005, by Swedish law it may no longer be enforced. If, on the merits, he should not be extradited, that is, of course, one thing. It would be unfortunate if further delays in the decision- making process rendered any analysis of those merits academic.[21]MR JUSTICE COLLINS: Mr Keleher, he is on bail, but that is bail granted by the magistrate, is that right? So we are not concerned with that.[22]MR KELEHER: No, my Lord.

Cited in 7 later judgments