Holmes v Government of Portugal [2004] EWHC 2875 (Admin)

Case No CO/1215/2004[2004] EWHC 2875 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 9th November 2004
Strand
London WC2
B E F O R E:
LORD JUSTICE THOMAS
MR JUSTICE FULFORD
Between
HOLMESClaimant-v-
Between
GOVERNMENT OF PORTUGALDefendant
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 B WATSON (instructed by Hallinan Blackburn Gittings & Nott) appeared for CLAIMANTMS S WHITEHOUSE (instructed by Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE THOMAS:

[1]There is before the court an application for a writ of habeas corpus in respect of an applicant who was committed on 26th February 2004 at Bow Street Magistrates' Court to await the decision of the Secretary of State for the Home Department on a request for his extradition to Portugal for a number of offences including obtaining property by deception, using a false instrument, passing or tendering counterfeit currency, and having custody or control of counterfeit currency. All those charges relate to one factual scenario.[2]The facts alleged by the Republic of Portugal are set out in a document of the court at Albufeira which set out the allegations made. They were that on 11th September 1998 at about 9 o'clock in the evening, the claimant and his wife went to the foreign exchange office in Albufeira. Once inside they gave to one of the employees three £20 notes, handing them over to the employee as genuine bank notes, whereas in fact they were counterfeit. The employee, believing the bank notes to be genuine, exchanged them by giving Portuguese currency.[3]On 13th September 1998 at about midday, the claimant and his wife went once again to the same foreign exchange office in Albufeira. Whilst the claimant waited at the door, his wife delivered to the employee four £20 notes, handing them over to the employee as genuine bank notes. Despite the fact that the £20 notes had been delivered as genuine bank notes and had been delivered along with other notes which were, in fact, genuine, the employee refused to accept them and did not exchange them. The Albufeira Court document then alleges that the offenders had in their possession, inside their holiday residence, another £20 note with a given serial number, also supposedly issued by the Bank of England.[4]The notes concerned: the three on the 11th, the four on the 13th, and the one that was found at their apartment were, in fact, all counterfeit currency. It is alleged that the claimant's wife acted according to a carefully worked out plan with the claimant; both of them were aware of characteristics of the bank notes and had set about to exchange them. It was also alleged that they had made a surveillance and had agreed to divide up the genuine bank notes.[5]At the time, that is in September 1998, from documents that have been provided to the court today, it appears that on 14th September 1998 the claimant and his wife were brought before a judge of the City Court at Albufeira and the claimant and his wife were legally represented. The judge went through the facts and recorded answers made by both the claimant and his wife. Essentially, both of them, in evidence, stated that they did not know that the notes were forgeries. They believed them to be genuine. They also set out in the explanation that they gave at the time that they had exchanged some money at Gatwick Airport for Portuguese currency, and that they had friends in Portugal who had funds with them.[6]At the conclusion of the hearing, the court decided that there was insufficient evidence to detain them in custody and granted them, in effect, what can be described as bail. The claimant and his wife were each required to sign a form which is dated 14th September 1998 which, in respect of the claimant, gave his name, address, date of birth and stated:
"He stated he undertook to appear before the court whenever served by order of a competent judge or whatever the law so required; not to change the place of residence, nor to be absent from said residence for more than five days without communicating the new place of residence or the address at which he can be found, and not to disturb the continuing of the case by unlawfully trying to hinder the determination of the truth and not to commit further offences."
That document was provided to him in Portuguese. We were told by counsel on behalf of the claimant that he had not understood it. We cannot accept, bearing in mind the obvious seriousness of the offence concerned, that he cannot have made enquiries as to the terms on which he was released.[7]What then happened was, it appears, that the claimant and his wife returned to England. On 2nd February 2000, the matter was called on for trial at the Criminal Court at Albufeira before three judges. It appears from the record of the court that all persons summoned to appear were present except for the claimant and his wife, and it could not be determined whether they had been served to appear. The court, having heard that, decided that as it did not know whether the claimant and his wife had been served at the address where they resided in England, the matter would be adjourned; it was ordered that the claimant and his wife be served in order to appear before the court within a 20 day period.[8]It is important to observe two matters. First of all, on the evidence before this court, this court is satisfied that the claimant and his wife had, at the tiem of the hearing in Portugal on 2 February 2005, plainly not been served. There is absolutely no evidence to suggest they had. Secondly, although the judges directed they be served within 20 days, there is no evidence to suggest that they were. That is an important matter because I have no doubt that a judge in Portugal would approach this matter very much like a judge in this country; namely that if there had been a delay of some 17 months since the offence concerned, then it was a matter of great urgency the matter be brought on. The fact that the service was ordered in 20 days, supports the view that the judge in Portugal would have regarded that as important. Such a time period having elapsed for a such an offence, considerable expedition was required to proceed with the matter. But as I have said, no attempt was made to serve the claimant.[9]Instead, what happened was that on 9th March 2001, some 13 months later, a warrant for his arrest was issued. Then an International Arrest Warrant was issued in February 2003, and an authority to proceed was granted on 7th October 2003. The warrant was then issued in this country on 22nd October 2003, and on 14th February 2004 and the claimant was arrested. When he was arrested, he stated to the arresting officer that he had heard nothing. He added the explanation:
"I was in Portugal six years ago with my wife. We got arrested, we went to court, we had the assistance of an interpreter, we were told we were free to go, we signed some forms and left the country. I went back to Portugal about three years ago and I had no problems."
[10]Those are the brief factual circumstances giving rise to this application. Two points are relied on, and both taken in respect of the obligations of this court under section 11(3) of the Extradition Act 1989 which provides:
"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 -- (a) by reason of the trivial nature of the offence; or (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."
[11]We first consider the ground advanced under (a): is this offence a trivial one? With some courage it was argued on behalf of the claimant that the offence was a trivial one. In my view such a contention is not maintainable in the light of the clear authorities in relation to offences of counterfeiting.

(S) 167 where he observed:

"... it is accepted that a custodial sentence is an entirely appropriate sentence for even one offence of tendering or passing a counterfeit banknote. The reason is obvious. Such offences threaten the integrity of our monetary system and confidence in it ... In the absence of exceptional circumstances an immediate custodial sentence is necessary in all cases involving the tendering or passing of forged banknotes."
[12]Although it must be a decision on the facts of each particular case whether an offence is trivial or not, I have no doubt at all that the offence with which the claimant was charged was not a trivial one. It is well known that passing counterfeit currency has the effect identified by Steyn J, and those who knowingly pass counterfeit currency can only expect to be treated for what is a serious offence.[13]We turn, then, to consider the much more substantial ground argued before us which arises under subsection (b). The case made on behalf of the claimant is that the delay in this case has severely impeded the ability for him to have a fair trial. He also contends that by reason of the length of the delay and the circumstances in which it has taken place, the delay is oppressive, as no explanation has been given and he has been led into a false sense of security. In essence, his case is that had the matter been brought on in Portugal within the time limit which we consider (and it seems to me the Portuguese judge would have considered) appropriate then his position would have been very different. I say that I consider the Portuguese judge would approach the matter in the same way by reason of the fact that the Portuguese judge required the matter to proceed with considerable expedition once he realised that the claimant and his wife had not been served.[14]The claimant has identified to us one important fact. That is to say, that it would have been important to his defence -- and is important to his defence -- to be able to establish the amount of currency that he had with him and the circumstances in which he had obtained that currency. To do that he needed the evidence of his wife, his son and his son's girlfriend, and the couple who were with them. Essentially, it is his case that they had with them significant sums of cash and these notes had been obtained or given to them. They had not realised they had these notes and the fact that they had all this other money showed that they were not setting about passing counterfeit currency.[15]The difficulty now is that the claimant divorced his wife on 12th June 2001. His son's girlfriend is now separated from him, and the other couple cannot be traced. That is the principal point on which he relies. That seems to me an important factor to take into account in reaching an overall judgment because that, it appears to me, is a matter that is in issue in the case. As I have already attempted to describe, the case of the Government of Portugal against the claimant is that he and his wife set about, in a conspiratorial way, seeking to pass counterfeit currency. The essence of the defence, therefore, that they had a large amount of other money that was genuine is important. Furthermore the fact of them having a large amount of other currency appears to be in issue.[16]Secondly, there is absolutely no explanation for the delay. This matter has come on before this court after some considerable delay. The papers were issued on 9th March 2004. In those papers, the claimant's case and the matters on which he relied were fully set out. There was, therefore, ample opportunity for the Republic of Portugal to try and explain what had happened. There was absolutely no explanation at all.[17]The third factor we have taken into account in looking at the delay and the oppression that is alleged to exist, is the fact that the claimant had given an address. He remained at that address until 2003 and had, in the intervening period, been back to Portugal. I accept that he must, in those circumstances, have thought that the matter had come to an end. There was ample time, it seems to me, to have complied with the decision of the court in Portugal on 2nd February 2000 to serve the order for appearance within a 20 day period. Had that happened, there could have been no reason why he should not have returned.[18]Taking into account therefore, on the particular facts of this case, the fact that delay is wholly unexplained, the false sense of security into which this claimant must have fallen, and the fact that there is some considerable prejudice to the conduct of his defence at trial, I. Consider that in all the circumstances it would be oppressive to return him to Portugal on the facts of this particular case.

MR JUSTICE FULFORD: I agree.

[20]MR WATSON: Thank you, my Lord. There is no further order.

LORD JUSTICE THOMAS: Thank you very much indeed.