Owalabi v Court Number 4 At the High Court of Justice In Spain [2005] EWHC 2849 (Admin)

Case No CO/7872/2005

[2005] EWHC 2849 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Tuesday, 15th November 2005

Strand

London WC2

B E F O R E:

LORD JUSTICE GAGE

MR JUSTICE OPENSHAW

Between

OWALABIClaimant

-v-

Between

COURT NUMBER 4 AT THE HIGH COURT OF JUSTICE IN SPAINDefendant

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MR S FIDLER (instructed by Stephen Fidler & Co) appeared for CLAIMANT

MR R MCCOUBREY (instructed by the Crown Prosecution Service) appeared for DEFENDANT

J U D G M E N T

LORD JUSTICE GAGE:

[1]On 28th September 2005 District Judge Anthony Evans ordered the appellant to be extradited to Spain pursuant to section 21(3) of the Extradition Act 2003. The appellant now appeals against the District Judge's ruling. The issue in this appeal relates to the bar to extradition by reason of the passage of time set out in section 11(1)(c) and 14 of the Extradition Act 2003.

[2]The offences for which the appellant's extradition is sought are described in the European arrest warrant as follows:

"The Special Unit of the Spanish Civil Guard at the Madrid Barajas Airport indicated legal measure number 4/2000 as a result of Bona Owalabi's arrest. This man, who uses also the name of Richard Roger Chambers, was arrested on 9th February 2000 while he allegedly was trying to withdraw money at a BBVA branch located at that very airport with a Visa card. Expert evidence showed that this card is a forged one. Apart from this card, other cards and two passports were seized that also proved to be forged according to experts."

[3]There was additional information set out in a text which was translated into English and appears at pages 32 and 33 of the appellant's bundle. The District

Judge summarised that information in his written ruling as follows:

"The defendant was originally arrested in the name of Richard Roger Chambers on 9th February 2000 at Madrid Airport when he attempted to withdraw money using a forged Visa card. There were other forged cards in his possession as well as two false passports, one of which was a British one in the name of Chambers. He appeared before court number 37 in Madrid on 10th February and a preliminary investigation was started. He was released provisionally without precautionary measures. This is presumably the equivalent of unconditional bail in this country. It is important to note that at this time the case was still subject to investigation. There then followed a period of time when the matter was passed back and forth between two different courts in Madrid as to which should continue with the case. At this stage no charges had been made. On 27th August 2003, responsibility for bringing charges was transferred to the Tax Ministry. That Ministry believed correctly that Chambers was an alias. Further investigations had been undertaken to ascertain his true identity. This was established on 16th October 2003. Further enquiries were undertaken by the Spanish authorities to ascertain his whereabouts. These were unsuccessful and the EAW was issued on 9th July 2004. Against this background the extradition is sought. There is no issue as to identity. I am satisfied that the offences are extradition offences. It is conceded that the defendant is not serving a term of imprisonment in the United Kingdom. I am also satisfied that all the proper formalities have been carried out as required by the 2003 Act."

[4]The appellant appeals on a number of grounds related to the bar for delay under section 11 of the 2003 Act. The legal framework, so far as is material for the purposes of this appeal, is as follows. Section 26 of the 2003 Act states, under the heading "Appeal against extradition order":

"(1) If the appropriate judge orders a person's extradition under this part, the person may appeal to the High Court against the order. (2) If subsection (1) does not apply the order is made under section 46 and 48. (3) An appeal under this section may be brought upon a question of law or fact. (4) Notice of an appeal under this section must be given in accordance with the Rules of Court before the end of the permitted period which is seven days starting with the day on which the order is made."

Section 27 deals with the court's power on appeal under section 26 as follows:

"(1) On an appeal under section 26 the High Court may -- (a) allow the appeal, (b) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or conditions in subsection (4) are satisfied. (3) The conditions are that -- (a) the appropriate judge ought to have decided the question before him at the extradition hearing differently, (b) if he had decided the question in the way he ought to have done he would have been required to order the person's discharge. (4) The conditions are that -- (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing, (b) the issue or evidence would have resulted in the appropriate judge deciding the question before him at the extradition hearing differently, (c) if he had decided the question in that way, he would have been required to order the person's discharge."

Subsection (5) is not material for the purposes of this appeal.

[5]Section 11 under the heading "Bars to extradition" in the material part reads as follows: "(1) If the judge is required to proceed under this section he must decide whether the person's extradition to the category 1 territory is barred by reason of . . . . (c) the passage of time." (a) and (b) are not material in that subsection.

[6]Finally, section 14 applies for the interpretation of section 11(1)(c) and is in the following terms:

"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 committed the extradition offence or since he is alleged to have become unlawfully at large as the case may be."

[7]There is no dispute that the test for the District Judge, as for this court, of "unjust" and "oppressive" has been set out by Lord Diplock in the case of Kakis v Government of the Republicof Cyprus

[1978] 1 WLR 779

at page 782 in the following terms:

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as 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 will cover all cases where to return him would not be fair."

[8]Mr Fidler, on behalf of the appellant, challenges the written decision of the judge in a number of respects. First, he submits that the District Judge misdirected himself on a number of facts. The first one is one to which I have already referred, namely the judge's expression of the view that the appellant's release by the Spanish court provisionally without precautionary measures was presumably equivalent to unconditional bail. It is submitted that this was an error. It is submitted that at the hearing it was explained to the District Judge that the appellant was simply told to go and given no dates to return. Before this court Mr Fidler has amplified that submission in the following way. He invites this court to infer from the text to which I have already referred, that the Spanish authorities must be taken to have formed the opinion that they really wanted to "get shot" of this appellant. Knowing that he had a false passport, they released him, Mr Fidler would argue, at the airport itself, and must have known that he would take advantage of that and come to this or another country at the first opportunity. So, he submits, that makes it unjust for this appellant to be extradited back to Spain.

[9]Next, Mr Fidler submits that this appellant has been lulled into a false sense of security by the passage of time. In respect of that matter he relies on an argument set out in his skeleton argument by which he submits that the authorities in this country, whether the police or the prison authorities, ought to have made checks with other European countries to see whether or not this appellant was wanted in Spain or any other country. Mr Fidler accepts that this appellant has a bad record in this country for offences of fraud, but he uses that to submit that the authorities over here must have been aware of his existence, of his criminal convictions, and so ought to have checked up with the European authorities to see whether or not he was wanted abroad.

[10]The District Judge dealt with that submission in the following way, at page 52 of the bundle of appeal documents filed by the appellant:

"The mere fact that no mention was made of the Spanish matter at the time of his British arrest would not have been an indication to him of a feeling of security as was the case with Daley."

The latter is a reference to a case relied on by the appellant at the court below and relied on before this court.

[11]Further, Mr Fidler submits that the District Judge did not give sufficient weight to the fact that the appellant had married in this country. The District Judge said that he had been told that the appellant had been married but had no proof of that fact. Mr Fidler submits that he failed to take that matter properly into account. The District Judge said of that at page 53:

"Against that background, the defendant had married and raised a family. I am told that Mr Owalabi has married but I have seen no proof of that. However, even if that is true, he does not appear to have changed his lifestyle. Since his return from Spain he has appeared in court on five separate occasions charged with twelve offences with three offences taken into account of what may be broadly termed fraud or obtaining by deception, as well as other offences under the Theft Act."

In my judgment, that is a complete answer to the submission made that the District Judge failed to give proper weight to the fact that the appellant had remarried.

[12]Mr Fidler also relies on evidence which he submits has just come to his attention in the form of a statement made by the appellant himself in respect of his wife. Unfortunately for him and his wife, she seems now to suffer from sickle cell disease and the appellant states in his statement dated 19th October 2005 that she is often very unwell. He states that she is currently in Guys and St Thomas's Hospital under observation because there is a risk that she may lose the baby, she being pregnant at this time, due to the stress of these proceedings. It is perhaps worthy of note that this statement is dated, as I have said, 19th October 2005 and is not accompanied by any medical report.

[13]The principal ground, however, on this appeal is that the District Judge was wrong in not concluding that the delay in the appellant's case made it unjust and oppressive to order his return. It is submitted that the delay is unexplained in the sense that the explanation is not an explanation to which weight should be attached. It is submitted, as I have already indicated, that the appellant had altered his lifestyle and reliance is placed on the case of Daley

[2003] EWHC 1838

at page 19. That decision is also included in the court bundle. Mr Fidler relies on passages in the judgment of Rose LJ, principally paragraph 10:

"As Mr Hardy on behalf of the Governor of Brixton Prison and the Government of Germany rightly concede, before us there is not a scrap of evidence to explain why no such step was taken for a period in excess of two years."

In fact, the total delay in that case was one of nine years. At paragraph 19, giving the judgment of the court, Rose LJ said:

"Where the passage of time is due to dilatory conduct on behalf of the requesting government, it tells in favour of the fugitive. Delay on the part of the applicant cannot, save in the most exceptional circumstances count towards making his return unjust or oppressive."

Rose LJ then went on to consider the passage in the case of Kakis v Government of the Republic of Cyprus, to which I have already referred.

[14]The delay in this case is, at most, five and a half years. As the District Judge pointed out, in the cases relied on by the appellant the period of delay was much greater. For my part, I accept that the appellant has remarried but, as the District Judge pointed out in the passage to which I have already referred, he had not changed his lifestyle by ceasing to commit criminal offences. On the contrary, his record of convictions in this country is accepted by Mr Fidler in his skeleton argument to be "terrible".

[15]Where, as here, the appellant seeks to persuade the court that it is unjust or oppressive to return him to the country seeking his extradition on the basis of a changed lifestyle, the court is quite entitled, as the District Judge did, to take into account all the facts surrounding his apparent change of lifestyle. In my judgment, the District Judge was not wrong to take into account his convictions as well as his remarriage. The ruling of the District Judge was clearly expressed in a written judgment which took into account all the relevant facts and circumstances. For my part, I can see no reason to disagree with his conclusions. In my view, his decision was plainly correct. I would dismiss this appeal.

MR JUSTICE OPENSHAW: I agree.

[17]MR MCCOUBREY: My Lords, one matter arises which is that it is unclear to me whether what happens now happens automatically or whether your Lordships have to order it. It is section 36 of the 2003 Act which explains what happens following an appeal.

LORD JUSTICE GAGE: Yes.

[19]MR MCCOUBREY: Section 36(1) states "This section applies if there is an appeal to the High Court", as in this case. Section 36(2):

"The person must be extradited to the category 1 territory before the end of the required period."

The required period is expressed as 10 days following the date upon which your Lordship's decision is final. I am not entirely clear about whether you have to order the --

LORD JUSTICE GAGE: I do not think we have.

[21]MR MCCOUBREY: In which case, it is of no import.

LORD JUSTICE GAGE: I do not want to be in any doubt. If we have to order it, we do so order.

[23]MR MCCOUBREY: I am grateful.

LORD JUSTICE GAGE: Mr Fidler, is there anything you want to say?

[25]MR FIDLER: No. There is one application by me, my Lord. That is for Legal Aid assessment.

LORD JUSTICE GAGE: I suppose in an extradition matter we ought to grant it.

[27]MR FIDLER: I am grateful, my Lords.