De Sousa v Government of Portugal & Anor [2006] EWHC 455 (Admin)

Case No CO/10518/2005

[2006] EWHC 455 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 1 March 2006

Strand

London WC2

B E F O R E:

LORD JUSTICE AULD

MR JUSTICE SULLIVAN

Between

IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM AND IN THE MATTER OF THE EXTRADITION ACT 1989Claimant

DANIEL ORLANDO DE SOUSAClaimant

-v-

Between

THE GOVERNMENT OF PORTUGALDefendant

THE GOVERNOR OF BRIXTON PRISONDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MS SARAH WHITEHOUSE (instructed by Victor Lissack, Roscoe & Coleman) appeared for CLAIMANT

MR BEN WATSON (instructed by CPS) appeared for DEFENDANT

J U D G M E N T

[1]MR JUSTICE SULLIVAN: The applicant is 58 years old. He is currently committed on bail under an order made by District Judge Workman at Bow Street Magistrates' Court on 8 December 2005 to await the Secretary of State's decision as to returning him to Portugal under section 9 of the Extradition Act 1989.

[2]On 8 February 1988 the applicant was convicted in his absence of drug trafficking and sentenced to 13 years' imprisonment. The offences were alleged to have taken place in November 1986 and January 1987. Extradition proceedings were initiated, and the applicant was provisionally arrested in the United Kingdom on 25 February 1988.

[3]On 5 April the Portuguese authorities initiated extradition proceedings, and authority to proceed was issued by the Secretary of State on 26 April. On 28 June 1988 the applicant was discharged because a prima facie case had not been made out under the Anglo-Portuguese Extradition Treaty of 1892 and the Extradition Act of 1870. In July 1991 and June 1995 the 13-year sentence was reduced upon a pardon and then further reduced upon a further pardon. It is not suggested that the applicant was involved in any way in the pardoning process. These were general pardons issued by the Portuguese State.

[4]On 23 August 2000 the Portuguese Government made a second request for extradition. Authority to proceed was not issued until 10 March 2005, and the applicant was arrested at his home on the Barnsbury Estate in North London on 9 June 2005. When arrested, he said:

"I have lived in the UK for 28 years. I was arrested after returning from holiday in Portugal in 1987. I was arrested by the police in London and taken to court. I was in prison waiting for the papers. I was on remand and then bailed. The papers were no good and it was finished with. This was 18 years ago."

In fact, it was nearly 17 years since the applicant had been discharged on 28 June 1988 in respect of the first extradition request. It is not suggested that he was in hiding during those years. The applicant has lived and worked openly in the United Kingdom since 1977. He was on holiday in Portugal at the time of the alleged offences.

[5]It is plain that the Authorities, both in Portugal and in the United Kingdom, knew or were able to discover without undue difficulty where he lived. For 17 years he heard nothing about the offences which, by the time he was arrested on 9 June 2005, were alleged to have been committed over 18 years previously.

[6]Until this morning, there had been no explanation whatsoever for the delays between June 1988 and August 2000, and between August 2000 and March 2005. There is still no explanation for the latter period of delay. So far as the former period of delay is concerned, this morning the court was provided with a copy of a translation of an explanation from the Portuguese authorities dated 21 February 2006. So far as relevant, the explanation says this:

"As for the time that lapsed between the first extradition request (1988) and the latest (2005). We don't know what kinds of reasons have prevented the fugitive from being apprehended on time. Indeed, we don't have any information on the dismissal of the first request and, during that time, we issued several international arrest warrants, which were all sent to the National Office of Interpol, in view of Daniel's detention. It should be noted that the first information regarding this extradition request reached this court on 14 January 1994, referring that 'the fugitive was never extradited to our country. Indeed, this person was detained in London on 25 February 1988. However, on 28 June 1988, he was released because the extradition was not granted. The diffusion of searches in all other member states of OIPC - Interpol - is maintained'."

[7]That explanation is wholly inadequate. No particulars are given as to when the international arrest warrants were issued during the period after 1988. No information is given as to the attempts made to execute those warrants, nor is any information given as to the response, if any, of the Portuguese authorities to the continued failure to execute the arrest warrants. The explanation is the more inadequate since there is no information to support any suggestion that the applicant had in any way gone to ground in the United Kingdom.

[8]So far as relevant, section 11 of the 1989 Act provides as follows:

"(3) 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) ... (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; or (c) ... it would, having regard to all the circumstances, be unjust or oppressive to return him."

[9]On behalf of the applicant, Ms Whitehouse submits that it would be both unjust and oppressive to return him to Portugal. It would be unjust because the delay of 19 years since the Commission of the alleged offences is wholly unjustified and would prevent the applicant from effectively defending himself for the following reasons. Firstly, he had no opportunity to prepare his defence for the original trial since he was not arrested for the offence and was not aware that the trial was to take place. Secondly, he is now 58 years old and over the last 19 years his memory has faded as to the dates, times, events and circumstances surrounding the alleged offences. Thirdly, it may no longer be possible to obtain certain evidence in support of his defence, since he has lost contact with people who might have assisted in establishing that he did not supply drugs to those persons who claimed that he had. And fourthly, the case against him is in somewhat generalised terms and it is difficult for him to prove a negative, that is to say, that he did not sell drugs to one of his co-accused as was alleged, and that difficulty will be exacerbated by the very long delay that has occurred.

[10]In considering whether it would be oppressive to return the applicant, Ms Whitehouse points to the length of the delay, to the fact that no explanation whatsoever had been given for it until recently, and to the fact that the most recent explanation is not adequate. She makes the point that the delay was not caused in any way by the actions of the applicant himself. This is not a case where he has gone to ground. He has been living openly in the United Kingdom since 1977. She also points to his personal circumstances. The applicant's wife is 66 years old. He is the breadwinner. At the time this application was made, he also was the carer of a nephew who suffered from epilepsy. Sadly, the nephew has now died, but the fact remains that the applicant is the sole carer for his wife. She also points to the fact that he is now 58 years old and therefore there would be the additional hardship of facing the rigours of a trial.

[11]On behalf of the respondents, Mr Watson points out that it is up to the applicant to deduce cogent evidence that it would be unjust and/or oppressive to return him. In summary, he submits that the applicant has failed to discharge that burden. In particular, the applicant has not indicated what his defence might be, other than by way of general denial. This is despite the fact that he knew what allegations were being made against him back in 1988. The applicant has not said what witnesses might now be unavailable or what they might have been able to say. He also points to the fact that Portugal is a signatory to the European Convention on Human Rights, and it is therefore highly unlikely that the applicant would not be given a fair trial if he was returned to Portugal.

[12]In that context, he refers to the observations of Rose LJ in Cook v Government of Spain

[2005] EWHC 1388

Admin:

"It is apparent that, in a Convention case, it is, to put it no higher, highly improbable that this court would hold that a fair trial of the accused in Spain would be impossible."

[13]He also referred to the dicta of Simon Brown LJ (as he then was) in Woodcock v Government of New Zealand

[2004] 1 WLR 1986

. In that case, the applicant was a citizen of New Zealand who had left his home country in 1987 and lived and worked in the United Kingdom since 1990. In 2002 he was arrested pursuant to an extradition request from the New Zealand Government in respect of 19 sexual offences, the majority of which were alleged to have been committed between 1983 and 1985. The Secretary of State issued an authority to proceed. The district judge found that there was a prima facie case against the applicant, and committed him to custody to await the Secretary of State's decision as to his return. The applicant applied for a writ of habeas corpus, contending under section 11(3)(b) of the 1989 Act that it would be unjust or oppressive to return him because of the passage of time since he was alleged to have committed the offences.

[14]In paragraph 20 of his judgment, Simon Brown LJ considered whether the court should address the question of whether the conduct of the trial in New Zealand could be fair after such a lapse in time. He said this:

"20. In my judgment, however, that would not be the correct approach to this provision. Section 11(3)(b) in terms requires this court's decision not upon whether, having regard to the passage of time, it would be unjust to try the accused, but rather whether it would be unjust to return him (albeit, of course, return him for trial). 21. To my mind that entitles, indeed requires, this court to have regard to whatever safeguards may exist in the domestic law of the requesting state to ensure that the accused would not be subjected to an unjust trial there. There are, it should be borne in mind, clear advantages in having the question whether or not a fair trial is now possible decided in the domestic court rather than by us. That court will have an altogether clearer picture than we have of precisely what evidence is available and the issues likely to arise ... If, of course, we were to conclude that the domestic court in the requesting state would be bound to hold that a fair trial of the accused is now impossible, then plainly we would regard it as unjust (and/or oppressive) to return him. Equally, we would have no alternative but to reach our own conclusion on whether a fair trial would now be possible in the requesting state if we were not persuaded that the courts of that state have what we would regard as satisfactory procedures of their own akin to our (and the New Zealand courts') abuse of process jurisdiction."

[15]By contrast, in the present case there is no information before this court as to what procedures might or might not be adopted in the Portuguese courts to deal with what we would term an abuse of process application. On any basis, a trial after 19 years would be far from ideal.

[16]To set against that, it is fair to note that Portugal is a signatory to the Convention and therefore one should at least start from the position that its courts will comply with the requirements of Article 6. In the particular circumstances of this case, and for the reasons which will shortly appear, I think it unnecessary to resolve the question whether, in the absence of any material as to what procedures would be adopted in the Portuguese courts to deal with the issue of potential abuse of process after such a long delay, this court should form its own view on that issue.

[17]The court has to have regard to all of the circumstances, and oppressiveness is a separate head of challenge. Inevitably, of course, there will be a degree of overlap. Whether it would be oppressive to return an applicant will turn very much on the particular facts of the individual case. For this reason, citation of other authorities will not usually be of great assistance. But, in my judgment, there is a helpful passage in paragraph 24 of Simon Brown LJ's judgment in Woodcock. In that case the court concluded that it would not be oppressive to return the applicant, notwithstanding the lengthy delay. In paragraph 24, Simon Brown LJ said this:

"24. These considerations, I have to say, to my mind fall far short of what is necessary to establish a case of oppressiveness. Ms Dobbin referred us to a number of (mostly unreported) authorities in this field but none of them seemed to me to come close to sustaining her argument. There is, for example, all the difference in the world between a requesting state after many years merely resurrecting allegations that have already been put to an accused (as occurred in In re Ward (unreported) 24 February 1994) and, as in the present case, making a host of fresh allegations to which the earlier allegations, in themselves previously thought an insufficient basis for extradition, are then naturally attached. Similarly there is all the difference between a case where the accused 'could well have concluded that he was never going to hear another word about the allegation' (see In re Ward) and the present case in which the applicant cannot possibly argue that in 1996 he was left feeling secure, least of all against complaints which had yet to surface. "

[18]In the present case, it is plain that the requesting state is simply resurrecting the allegations that were put to the applicant in 1988. There is no suggestion that further material has emerged in addition to that which was before the first extradition hearing in 1988. It has to be said that those allegations are, to put it mildly, somewhat general and contain relatively few particulars. It is perhaps unsurprising, in these circumstances, that the applicant's position has been one of general denial. There are few particulars to which he would have been able to respond.

[19]Moreover, there was no reason in the present case why the applicant should not have concluded in 1988 that he would hear nothing more about the allegation. Having issued a general denial, having been discharged by the Magistrates' Court upon the basis that there was no prima facie case, he had every reason to believe that he was not going to hear anything more about the allegation. That assumption would have been reinforced as the years went by by the complete silence on the part of the Portuguese authorities over a period of 17 years. During that time, the claimant got on with his life in the United Kingdom.

[20]Although the allegations against him are serious, they are now very aged and, as I have said, somewhat lacking in particularity. Unlike Woodcock, no new information has been obtained since 1988. In all of these circumstances, I am satisfied that, even if it would not be unfair to return the applicant to Portugal, it would most certainly be oppressive to do so. For that reason, I would allow this application.

LORD JUSTICE AULD: I agree, for the reasons given by my Lord. The court will therefore order the appellant's discharge under section 11(3)(b) of the Extradition Act 1989 and grant the application for a writ of habeas corpus.

[22]I most grateful to counsel for their assistance in this case.

[23]MS WHITEHOUSE: My Lord, I have two applications. The defendant was legally aided in the lower court, but has not been in this court. May I therefore ask for a defendant's costs order? I think I will have to call it legal aid assessment.

LORD JUSTICE AULD: You are not legally aided in these proceedings, did you say?

[25]MS WHITEHOUSE: My Lord, no. The defendant has borne his own costs.

LORD JUSTICE AULD: What is it you say you think you might have to ask for as well?

[27]MS WHITEHOUSE: I think it is not called legal aid assessment. I think it used to be called taxation, but I am not entirely sure.

LORD JUSTICE AULD: I do not know whether you need legal aid taxation when you are not legally aided. No doubt, the costs will have to be taxed in the ordinary way, but that does not require an order of the court.

[29]MS WHITEHOUSE: In that case, may I simply ask for a defendant's costs order, my Lord?

LORD JUSTICE AULD: Mr Watson, what do you say about that?

[31]MR WATSON: I have nothing to say about that. It obviously comes from central funds in these proceedings.