Azcarate v United States of America [2006] EWHC 2526 (Admin)

Case No CO/6425/2006[2006] EWHC 2526 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 6 October 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE BEAN
Between
MARIO GERMAN AZCARATEClaimant-v-
Between
THE GOVERNMENT OF THE UNITED STATES OF AMERICADefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR BEN BRANDON (instructed by Bark & Co) appeared for CLAIMANTMR GARETH PATTERSON (instructed by CPS) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE BEAN: By a request dated 23 August 2005, the Government of the United States of America sought the extradition of Mario German Azcarate, a Colombian national, on charges of cocaine trafficking and money laundering in the period from 1982 to 1991, pursuant to an arrest warrant issued by the United States District Court for the Northern District of California. The United States is a category 2 territory under the Extradition Act 2003. Part 2 of the Act therefore applies.[2]The Secretary of State issued a certificate under section 70 on 6 September 2005. There was and is no dispute about identity, nor about the documents which were required at the initial stages of the extradition hearing pursuant to section 78. The extradition hearing was originally fixed for 21 October 2005. At the request of the defence it was refixed for 10 January 2006. A further delay at the request of the defence was granted in December, and a third hearing date fixed for 20 March 2006, when the case came on before District Judge Tubbs. That hearing was effective but adjourned part heard until 4 May 2006, and the district judge's reserved judgment was delivered on 22 May.[3]The district

judge said:

"In the end there is only one issue and that is whether Mario Azcarate's extradition is barred by reason of the passage of time under section 79(1)(c) and section 82 of the Act."
[4]We have been shown the skeleton arguments which both sides placed before the Magistrates' Court. Other issues were raised in writing, but evidently Ms Dobbin of counsel, who appeared then for the appellant and who has substantial experience of extradition law, decided not to pursue them in argument. The district judge found that the appellant's extradition was not barred by the passage of time. I shall return to her reasoning later in the judgment. No human rights argument was raised before her, nor has it been before us under section 87. She therefore sent the case to the Secretary of State pursuant to section 87(3).[5]The Secretary of State ordered the appellant's extradition, notice of that decision being served on the appellant by a letter dated 19 July 2006. An appeal was lodged on 2 August 2006, but only against the decision of the district judge.[6]Mr Ben Brandon, who appears for the appellant in this court, instructed by fresh solicitors who had not had conduct of the case before the district judge, applied for an adjournment of this hearing. Essentially, his grounds were twofold: firstly, the defence wished to explore the availability of further potential defence witnesses; secondly, and this was the principal point in his application made orally to us, there was nothing in the evidence of the Government of the United States to show that the prosecution still had witnesses available to support each charge. As to the first point, the history of the proceedings in the Magistrates' Court which I have set out indicates that the defence have had plenty of opportunities over a period of months to gather evidence, and it is not easy to see in any event what the availability of unspecified defence evidence could demonstrate at this stage.[7]As to the second point, Mr Brandon accepts, as he must, that a category 2 requesting state is under no obligation to establish a prima facie case. Nevertheless, he points to the authority of Woodcock v the Government of New Zealand [2004] 1 WLR 1979 in which this court (Simon Brown LJ, as he then was, and Royce J) said that:
"... if the court concluded that the domestic court of the requesting state would be bound to hold that a fair trial of the accused was impossible then it would be unjust to return him."
[8]He argues that it is apparent from the requesting state's evidence that an important -- perhaps the principal -- co-operating witness giving evidence against the defendant, a Mr Urrutia, has, since the events which form the subject matter of the charges, himself served a sentence of imprisonment in the United States and been deported to Colombia at the conclusion of that sentence, and is extremely unlikely to be available to give evidence for the prosecution in the United States proceedings. Nothing is said either way about the availability of the other co-operating witnesses, one of whom is named as a Mr Weil, and the other is simply referred to anonymously as CW1. It may even be that Mr Weil and CW1 are one and the same person.[9]Mr Brandon submitted that an adjournment should be granted and the United States Government be required to state in writing that they do indeed have admissible evidence on each charge on which it is proposed that the appellant should be extradited. I do not think there is anything in this point. Mr Urrutia's evidence, if indeed he is unavailable to give oral evidence at trial, will be inadmissible against the defendant. Amendment VI to the US Constitution gives a defendant on a criminal charge the right to cross-examine witnesses testifying against him. There can therefore be no equivalent to the hearsay provisions of our own Criminal Justice Act 2003.[10]As to the other witnesses, it seems to me that the Woodcock case is distinguishable. In that case, the requesting state had to show, and had shown, a prima facie case. Mr Brandon valiantly seeks to draw a distinction between the obligation to show a prima facie case and the obligation to demonstrate to the satisfaction of the court that there are identified witnesses still available to give oral testimony so that a trial will actually take place. But it would be odd, in my view, if a state not required to show a prima facie case were nevertheless required to give the names of witnesses who were going to testify on a particular charge. There is, in any event, in the material furnished by the requesting state at least one charge, namely count 3, which will not depend on co-operating witnesses at all. That allegation is simply that numerous law enforcement officers who entered and searched the appellant's home in California on 12 December 1991 found there more than half a kilogram of cocaine, which the prosecution therefore say was sufficient evidence in itself of possession with intent to supply. I do not know what the defendant's defence to that charge is, but that charge at least will not depend on the evidence of lay witnesses.[11]As to counts 1 and 2, each of these is referred to as being a count where the government will satisfy its burden of proof by the testimony of "co-operating witnesses" (plural), and I cannot see any basis for requiring a further statement as to the availability of such witnesses to give oral evidence at the trial. I would therefore refuse an adjournment.[12]Mr Brandon's substantive arguments were based on the passage of time issue, that is to say whether extradition is barred by the passage of time pursuant to sections 79(1)(c) and 82 of the Act. Section 82 provides that extradition is barred by reason of the passage of time in a category 2 case if and only if it appears that it would be unjust or oppressive to extradite the person concerned by reason of the passage of time since the commission of the offence or since he has allegedly become unlawfully at large.[13]Mr Brandon's arguments are, in effect, that the appellant could not receive a fair trial. This is probably best classified as an injustice argument rather than an oppression argument, although it is not necessary, as it seems to me, to go into the distinction.[14]To get one small point out of the way, Mr Brandon argues in his skeleton that, while it is common ground that the appellant fled the jurisdiction of the United States to Colombia knowing of at least one charge against him, namely the State charge of possession of cocaine with intent to distribute it, the appellant says that he was unaware of the Federal charges involving larger quantities of cocaine and money laundering as well. This issue was not raised before the district judge. Indeed, in her judgment, she simply says:
"Mr Azcarate admits that he left the USA in breach of his bail bond and in the knowledge of criminal proceedings against him."
[15]It is possible to envisage a case in which an offender becomes a fugitive from a country in which he has committed a minor offence (and knows he is wanted for that offence) and his extradition is later sought on a far graver and wholly unconnected charge. But this is not such a case. The appellant on his own admission knew that he was wanted as a drug dealer, and I do not consider it as a point of any substance to distinguish between knowledge of one count of drug dealing and another, or between knowledge of a charge concerning the drug dealing itself and another concerning laundering of the proceeds of that crime.[16]Mr Brandon's other submissions about passage of time are based either on the potential unavailability of defence witnesses or the potential unavailability of prosecution witnesses. As he realistically accepts, so far as defence witnesses are concerned the application is unparticularised and it is wholly speculative to say in those circumstances that, by reason of the passage of time since the appellant committed the offences and fled the jurisdiction of the United States, he will be unable to present his defence properly. Moreover, as Lord Diplock said in the well-known case of Kakis v Republic of Cyprus [1978] 1 WLR 779:
"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."
[17]As to potential unavailability of prosecution witnesses, again, for the reasons given earlier, this is a speculative point on the material available to us.[18]Like the district judge, I am prepared to assume that, notwithstanding Lord Diplock's observations in Kakis, if it can be shown that the requesting state has been guilty of culpable delay, that may affect the court's attitude to the request. This was indeed the principal point -- almost the only point -- argued before the district judge, and her findings were as follows.[19]On 12 December 1991, a search was carried out at the appellant's address. On 27 December 1991, he was released from jail on a bail bond. He was aware of a subsequent hearing on 19 August 1992, but failed to attend it. He had deliberately left the country despite his bail bond, knowing he should appear in court. He left the jurisdiction to avoid the criminal proceedings. By the time a grand jury filed an indictment against him the following year, charging 11 counts of cocaine trafficking and money laundering, the indictment could not be proceeded with as he had fled to Colombia. Colombia did not extradite its nationals to the United States.[20]He was told there that a warrant had been issued against him and that he was required to surrender, but he did not. He continued to live in Colombia safe from extradition for many years. He had no intention of ever returning to the USA. He was under no misapprehension, and nothing had been done by the United States authorities to lead him to believe, that the United States had dropped the proceedings. It is not in dispute that it was only in October 2004 that the US authorities learned that he was in custody in the United Kingdom.[21]The district judge concluded that no action, error or omission on behalf of the US authorities in this case amounted to culpable delay. The delay in the proceedings flowed directly and solely from the appellant's determined efforts to avoid ever having to face trial in the USA on these charges.[22]These were findings which the district judge was clearly entitled to make. I agree with them, and with her conclusion that it would be neither unjust nor oppressive to return Mr Azcarate to the United States for trial. I would therefore dismiss the appeal against the district judge's decision.[23]That being so, the fact that the notice of appeal said nothing about the decision of the Secretary of State and it is now past the statutory time limit for an appeal against the order made by the Secretary of State is an academic issue since no separate point arises on that order. I would therefore simply say that the appeal should be dismissed.

LORD JUSTICE MAURICE KAY: I agree. The order will therefore recite the refusal of the adjournment and the dismissal of the appeal. Thank you both very much.