Yarrow v Public Prosecutor's Office of Appeal of Crete [2006] EWHC 3388 (Admin)

Case No CO/9186/2006[2006] EWHC 3388 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Monday, 27 November 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE KEENE
MR JUSTICE WALKER
Between
YARROWClaimant-v-
Between
PUBLIC PROSECUTOR'S OFFICE OF APPEAL OF CRETEDefendantTONGEClaimant-v-PUBLIC PROSECUTOR'S OFFICE OF APPEAL OF CRETE(DEFENDANT)
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 A PONTE (instructed by Reynolds Dawson of London) appeared for CLAIMANTMR R McCOUBREY (instructed by Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE KEENE:

[1]These are two appeals under Section 26 of the Extradition Act 2003 ("the 2003 Act") against orders for the extradition of the appellants to Greece, those orders having been made on 30 October 2006 by District Judge Nicholas Evans, sitting at the City of Westminster Magistrates' Court. Greece is a category 1 territory within the meaning of Section 1 of the 2003 Act with the result that the provisions in Part I of that Act apply. Those provisions seek to implement in our domestic law the European Civil Framework Decision on a European Arrest Warrant.[2]In the present case the two European Arrest Warrants issued by the relevant judicial authority in Crete arose from events alleged to have taken place on that island on 3 August 1999 which have given rise to an accusation of attempted murder against both appellants. That is, of course, an extradition offence.[3]The essential facts as alleged are to be found in the district judge's judgment at paragraph 2:
" ..... at about 0500 hours on 3 August 1999 Mr Dictakis was sitting on his stationary motor cycle eating some fast food with two of his friends when he was attacked by Mr Tonge with a broken bottle of beer. The victim was struck in the neck causing a substantial wound, which fortuitously just missed severing the carotid artery. Mr Yarrow faces the same charge as an accessory; he was present at the scene and is accused of aiding and abetting Mr Tonge by encouraging the commission of the offence."
Those, I stress, are the facts as alleged by the requesting authority. Both appellants were arrested shortly thereafter. They were detained in custody before being released on bail. Mr Tonge spent some four months in custody, and Mr Yarrow was released after four days. Both of them returned to the United Kingdom on bail.[4]There was a hearing which then took place in Crete in the criminal court in Rethymnon on 13 June 2000 when a lawyer on their behalf sought an adjournment of trial because the appellants had not received any summons and wished to appear, it was said, in person. The court duly ordered a postponement of the trial.[5]There was then a further hearing on 9 January 2001 at the same court when again the appellants did not appear. According to a summary report of the proceedings, the same defence counsel requested a further postponement on behalf of the appellants because his clients were not present but wished to be present. It appears that this time they had been summoned to appear but had been prevented by bad weather conditions in the United Kingdom. The court again acceded to this request. In the first half of 2001 the court in Rethymnon sought the assistance of the Home Office in London to effect service of the summonses requiring the attendance of the appellants for a new trial date in Crete on 18 September 2001. Those summonses were duly served.[6]However on 18 September 2001 the appellants did not appear, and an order was made for their arrest. The appellants were informed of this by letter from their solicitor in this country, dated 6 February 2002. It is clear, as the district judge in effect found, that they had decided not return to Greece to face trial. They were equally clearly aware that there were outstanding charges against them in that country and had been aware ever since they were bailed.[7]The provisions relating to European Arrest Warrants came into effect in this country on 1 January 2004 and on 9 April 2004 in Greece. The arrest warrant in respect of the appellant Michael Tonge was issued on 21 June 2005 and in respect of the appellant Lee Yarrow on 9 March 2006. Both men were arrested under these warrants on 10 May 2006.[8]In essence, two issues are raised on this appeal. The first arises because it is contended that extradition is barred under Sections 11 and 14 of the 2003 Act by the passage of time. It is necessary only to set out the terms of Section 14 for present purposes. It provides:
"A person's extradition to a category 1 territory is barred by the reason of the passage of time if (and only if) it appears 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)."
[9]The test therefore is whether it appears unjust or oppressive to extradite the appellants or either of them. The district judge, having noted that seven years had passed since the alleged offences, cited the well known passage on these concepts from the judgment of Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, 782:
"'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 of 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 him would not be fair. 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."
[10]The district judge went on to refer to a number of other authorities before emphasising that the appellants were to blame for most of the delay by not answering their bail, failing to respond to the summonses issued for September 2001 and thereafter evading arrest. He consequently applied the principles in Kakis. He noted that there had nonetheless been that passage of time but he observed also that Greece, as a signatory to the European Convention on Human Rights ("ECHR"), was obliged to ensure a fair trial and would have to decide whether that was possible. No specific submissions about any risk of prejudice in respect of the trial were made before the district judge.[11]Before us, it is not contended that the passage of time renders extradition unjust in the sense that it prevents a fair trial. That is not surprising. The appellants have both been well aware of the charges against them throughout the period in question. It is not suggested that they have lost witnesses or relevant documents in the interim or that they themselves cannot now recollect the detail of these events. It cannot therefore be unjust in the sense used by Lord Diplock to extradite them.[12]What is submitted on their behalf is that it would be oppressive to extradite them because of changes in circumstances since August 1999. In that respect, Mr Ponte, who appears for both appellants, relies on their youth at the time. He argues there has since then been a transition from being young adults to more mature adults. He also stresses the fact that they each now have a young daughter. It is also said that no explanation has been given why the European Arrest Warrants were not issued until 2005 and 2006, particularly bearing in mind nothing appears to have been done after September 2001 when the abortive trial was expected to take place on that date. Mr Ponte also contends that the district judge was wrong to say that allegations of mistreatment while the appellants were in custody were a matter for inquiry by the Greek authorities. He submits that there must be some finding about the allegations of ill treatment because that goes to the fairness of the return and, indeed, will be necessary when one turns to consider their Article 3 and Article 5 rights.[13]The district judge in his judgment noted, when dealing with the issue of oppression, that both appellants were adults at the time of the alleged incident. The fact is that the appellant Michael Tonge was aged 21 and the appellant Lee Yarrow was aged 23.[14]It is difficult, I am bound to say, to see that either their ages or such changes in their lives since 1999 render it oppressive for them to be extradited. The mere fact that they have become older and each has become a father does not seem to me to amount to such oppression as to prevent their extradition. I am prepared to assume for present purposes that their allegations of ill treatment are well founded, but I cannot accept that to return them to Crete would, for that reason, be oppressive or unfair.[15]It is argued that the district judge was wrong to put so much of the blame for delay on the appellants.[16]Mr Ponte has drawn our attention to the fact that in late 1999 the appellants made these allegations of ill treatment having occurred while they were in custody in Crete and that is why they were unwilling to return to Crete to stand trial.[17]The human rights aspects of these allegations form the next issue. It seems to me that whatever the motivation of the appellants, and whether they were in a sense justified in fearing their return, the fact remains that they made it difficult for the trial of these charges to take place with as much despatch as one would normally expect. It provides an explanation therefore for the delay that has occurred in seeking their extradition. It is not a question of moral blame but rather whether the delay on the part of the authorities in Greece is sufficiently explained and whether it renders extradition unjust or oppressive. It seems to me that the efforts of the Greek authorities to achieve a trial throughout most of the period up to the issue of the warrants are evident from the chronology which I have set out earlier and the passage of time is sufficiently explained. Nor, for the reasons I have indicated, can I accept that extradition would be oppressive in the sense used by Lord Diplock.[18]The other issue arises from Section 21 of the 2003 Act which prevents extradition if it would be incompatible with the rights of a person in question under the ECHR. Here again, Mr Ponte refers to the appellants' allegation of ill treatment while in custody in Crete in 1999. He puts the argument under two of the Articles in the ECHR. The first is Article 3 of the Convention which provides as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
It is accepted that it is for the appellants to show substantial grounds for believing that the person concerned, if extradited, faces a real risk of Article 3 treatment. That follows from the decisions in Soering v United Kingdom (1989) 11 EHRR 439 and R (Ullah) v The Special Adjudicator [2004] 2 AC 323, 352. Reliance in the present case in seeking to discharge that burden is based on the appellants' own accounts of their treatment in Crete by the police and prison authorities and the alleged lack of safeguards to prevent a repetition, were they now to be extradited to Greece.[19]For the respondent, Mr McCoubrey submits that the district judge applied the right test by looking at the risks of such treatment as they exist now in 2006. While what happened in 1999, whatever that may have been, is not irrelevant, there is no reason, he submits, to believe that seven years later any such treatment would take place. I agree. The past treatment of the appellants is relevant but the material produced in this court does not show that such ill treatment of those in custody at the present time occurs systematically, although there are allegations of overcrowding and out-dated conditions in some prisons in Greece. The evidence, in my judgment, is not sufficient to meet the test of showing that there are material grounds for believing that there is a real risk of Article 3 ill treatment of these two appellants or either of them if they are now returned to Greece. Nor has there been any evidence put before us of psychological or psychiatric harm which would result in either appellant being extradited to a place where they may have been ill treated in the past.[20]The other way in which it is said that the appellants' ECHR rights would be breached is by reference to Article 5 (4) of the Convention. That provides:
" ..... everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if detention is not lawful."
Mr Ponte, in relying on that, does not really seek to bring himself within the strict terms of Article 5 (4). He rather contends that the alleged ill treatment in the past renders their return to Greece an abuse of process which, in turn, renders their detention unlawful and in breach of Article 5 (4). This does not appear to be an argument which he raised below and, if that is the case then, in my judgment, rightly so. I cannot see that the extradition of these two appellants would amount to an abuse of process. They have not been identified or arrested because of such ill treatment. Nor does it seem that their availability now to be returned to Greece to stand trial has been the result of anything that can amount to an abuse of process. However regrettable any such ill treatment that occurred may have been, I cannot see that it gives rise to any potential breach of their Article 5 (4) rights if extradition is now ordered.[21]For those reasons, I consider that the district judge came to The Right Conclusion And i Would Dismiss These Appeals.

MR JUSTICE WALKER: I agree.

LORD JUSTICE KEENE: Are there any consequential applications?

[24]MR McCOUBREY: No.

LORD JUSTICE KEENE: You presumably have a representation order, Mr Ponte.

[26]MR PONTE: Yes.

LORD JUSTICE KEENE: You will need an order for assessment; you may do. In case you do, we will make one.

[28]MR PONTE: Thank you.