Crean v Government of Ireland [2007] EWHC 814 (Admin)

Case No CO/1715/2007[2007] EWHC 814 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 20 March 2007
Strand
London WC2
B E F O R E:
LORD JUSTICE LAWS
MR JUSTICE BEATSON
Between
ANTHONY CREANClaimant-v-
Between
THE GOVERNMENT OF IRELANDDefendant
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 ZIA NASIM (instructed by Butt Solicitors) appeared for CLAIMANTMR ROBIN MCCOUBREY (instructed by Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE BEATSON: This is an appeal pursuant to section 26 of the Extradition Act 2003 against the decision of Senior Judge Workman on 22 February 2007 at the Westminster Magistrates' Court, ordering the extradition to Ireland of the appellant, Anthony Crean.[2]There are three issues: first, whether the request for extradition complied with the requirements of section 2(4)(c) of the Extradition Act; secondly, whether extradition is barred under sections 11(1)(c) and 14 as being unjust or oppressive by reason of the passage of time since the offences; thirdly, whether extradition is barred under section 21 as being incompatible with the appellant's rights under Article 8 of the European Convention.[3]The appellant's extradition is sought by the High Court of Ireland to answer five charges of indecent assault. The complainant is his sister-in-law and the charges relate to alleged conduct between January 1984 and December 1988 when the complainant was a child aged between 11 and 15 years old. The complainant did not complain to the authorities until 20 November 2002 when she was aged 29. Thus, between 18 and 22 years had elapsed since the dates of the alleged offences.[4]A document sent under cover of a letter from the office of the Irish Director of Public Prosecutions states that the complainant did not complain earlier because she thought no one would believe her and because her family relationship with the appellant inhibited her. It was only after receiving counselling that she felt able to make a complaint. An investigation followed the complaint, and, in April 2003, the police file was sent to the office of the Irish DPP. The DPP requested further information, including an additional statement which was obtained on 26 May 2003. The file was re-submitted to the DPP on 28 October 2003. At that time, the appellant, who had been living in England since November 2002, was contacted and advised of the allegations. He declined to be interviewed.[5]In August 2004, the DPP's Office sought further information and a further statement from the complainant. These were obtained. In January 2005, it was decided to prosecute. Warrants for the appellant's arrest were issued by the Bantry District Court on 10 February 2006. A European Arrest Warrant seeking the appellant's extradition was issued by the High Court of Ireland on 27 June 2006. The appellant is charged with five offences of indecent assault on the complainant at times when she was staying at his house, a specified address in Bandon, County Cork. The European Arrest Warrant states that the house was close to the complainant's school, that she stayed at the house on occasion, and that she used to baby-sit her sister's child.[6]Three of the charges are that the appellant removed the complainant's bra and fondled her breasts; two are of digital penetration. Four of the charges relate to conduct alleged on a date unknown in four separate periods of 12 months: that is, from 1 January 1984 to 31 December 1984; from 1 January 1986 to 31 December 1986; from 1 January 1987 to 31 December 1987; and from 1 January 1988 to 31 December 1988. The fifth charge relates to alleged digital penetration on a date unknown in a period of two years; from 1 January 1984 to 31 December 1985.[7]The warrant states that indecent assault is an offence at common law and summarises its ingredients. The warrant was certified by the Serious Organised Crime Agency on 19 July 2006 and the appellant was arrested on 5 December that year. The appellant's statement says that he was informed of the extradition request in November 2006. The appellant challenged the validity of the warrant on three grounds. The grounds are the same as the grounds of appeal to this court.[8]The first is non-compliance with section 2(4)(c).

(c) of the 2003 Act states that the warrant must contain:

"particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of law of the category 1 territory under which the conduct is alleged to constitute an offence."
The complaint was and remains that the charges lack particularity in relation to the times the alleged offences took place and are too vague to satisfy the requirements of the provision.[9]Secondly, it was argued that extradition was barred by virtue of sections 11(1)(c) and 14 of the 2003 Act.

(c) provides that:

"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."
[10]Section 11(3) provides:
"If the judge decides any of the questions in subsection (1) in the affirmative he must order the person's discharge."
[11]Section 14 governs the interpretation of section 11(1)(c). It states:
"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)."
[12]Thirdly, it was argued that the extradition was incompatible with the appellant's rights under the European Convention. Section 21 of the Act provides that the judge is required to decide whether a person's extradition would be compatible with the person's Convention rights, and section 21(2) provides that, if the judge decides that extradition is incompatible with those rights, he must order the person's discharge.[13]The appellant's statement that was before the senior district judge sets out his history and the circumstances in which he moved to live in England in November 2002 with his new partner and their child. The statement denies the allegations and denies that he left Ireland to escape investigation or prosecution. The statement states that he left because of threats and intimidation. The statement also says that the local social services in the part of England he lives told him that they had been informed by the police that the Irish authorities had indicated there would be no extradition request. The statement does not say when he was told that. I observe that the submissions now made on his behalf, in Mr Nasim's very helpful skeleton argument, differ in stating that it is said that the Irish authorities told the social services that they were unable to get a warrant.[14]The district judge decided that extradition was not barred on any of these grounds. Of the complaint of lack of sufficient specificity, he said that, while precise dates are clearly desirable in a charge of criminal conduct, it is also clear that, in cases such as these, human memory is unable to recall precise dates. Since the location of the alleged offences is specified, the judge was satisfied that the charges complied with the provision.[15]Of the second ground, the judge said that delay in the reporting of allegations of sexual offences against children is not uncommon. He was satisfied, having considered the lapse of time, that it was not unjust or oppressive to return the appellant to face his trial. He stated that the trial judge would safeguard the appellant from any unfairness that might arise in the course of the trial. The judge stated that, since there was no reason to believe that a trial in Ireland would be unjust or oppressive, extradition was not incompatible with Article 6.[16]On Article 8, he considered the decision of this court in R(Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin) and concluded that the appellant's case was not one of the wholly exceptional cases referred to by Laws LJ at paragraph 118. It was only in such a case that this court stated ordering extradition was potentially disproportionate to the legitimate aim and strong public interest in honouring extradition treaties made with other states. Since 2002 the appellant had established a home in England with his present partner and child. The judge was satisfied that he had not left Ireland to escape the present charges, but concluded that extradition was not incompatible with his Article 8 rights. We agree with the judge's clear and succinct reasons.[17]With regard to the first ground, the charges are particularised in terms of the conduct alleged and the place it occurred. They are as particularised in terms of the time of the offences as many similar charges of historic child abuse in this jurisdiction. Many charges of other forms of criminal conduct are also framed in terms of a date unknown within a stated period of time rather than a precise date. There is no requirement, for example, in the indictment rules to specify the date of the offence. The term "time" in section 2(4)(c) does not mean that it is necessary to specify a date, nor did Mr Nasim argue that it was. He accepted that he could have no objection to a three-month period. Accordingly, his objection was to the length of time. There is no indication in the material before us that it was possible to provide further specificity or further particulars, and in that sense this case differs from Rackham [1997] 2 Crim App R 222, one of the authorities on which he relies.[18]Moreover, had the framers of the 2003 Act wished to require a date or a precise time frame, it was open to use the word "date" or to indicate the time frame required. The legislator has not done that. This statute has been said to have been intended to remove technical objections from extradition procedures, while at the same time preserving the rights of those whose extradition is requested. There is no reason for construing section 2(4)(c) narrowly or for concluding that the charges in this warrant are insufficiently particularised.[19]With regard to the second ground based on sections 11 and 14, the district judge concluded that there was no evidence of oppression and that the trial judge would be able to safeguard the applicant from any unfairness that arose in the course of the trial. He did not however specify why he considered this to be the case. His reason was that Irish law contains safeguards. It is not apparent from the material before us that there was evidence of Irish law before him but Mr McCoubrey, who appeared on behalf of the Government of Ireland, told me there was.[20]Since the judge's decision, the Office of the Irish Director of Public Prosecutions has provided further information in a letter to the Serious Organised Crime Agency dated 16 January 2007. In this letter, which is witnessed by a Judge of the High Court of Ireland, it is stated that an accused person in Ireland can seek leave to apply to the High Court by way of judicial review for an order prohibiting his trial on the basis of passage of time; that one of the grounds for such a case would be that he cannot get a fair trial because witnesses are no longer available or evidence is lost due to the vintage of the case. The letter states that many judicial review cases in the High Court are cases of this nature, where the accused is claiming he cannot get a fair trial because of the passage of time. The letter also refers to the discretion given to a trial judge by section 7 of the Irish Criminal Law (Rape) (Amendment) Act 1990 to warn the jury of the dangers of convicting on uncorroborated evidence alone. The letter states that in practice this direction is usually given by trial judges. The letter also states that case law indicates that the judge should ideally direct the jury as to the problems witnesses can have recalling events which happened many years ago, that the jury can only convict if they are satisfied to the criminal standard of proof, and that the trial judge in his charge to the jury must advise them that when two views are possible on the evidence, the jury should adopt that which is favourable to the accused. The letter also refers to the entitlement of a defendant to remain silent at his trial and not to give evidence, and that the trial judge generally points out to the jury that inferences are not to be drawn by them as a result of a decision not to give evidence. It is thus clear that Irish law has safeguards available to a person who is accused of offences of some age -- safeguards similar to those in this jurisdiction.[21]I observe, as did the court in Woodcock v Government of New Zealand [2004] 1 WLR 1979, that in this jurisdiction a stay on the grounds of delay is only granted in exceptional circumstances and where there is real evidence of prejudice so that a fair trial could not be heard. In that case, Simon Brown LJ (as he then was) doubted whether a stay would have been awarded on the facts of Woodcook's case had it been a domestic case. I have no doubt that had this been a domestic case, one would not have been awarded on its facts. The issue, as seen from the decision in Woodcock and the earlier case on the Fugitive Offenders Act 1967 of Kakis v Cyprus [1978] 1 WLR 779, is not whether the trial would be unfair, but whether it would be unfair to return the person accused to face trial. This court has to take into account matters such as the safeguards in the requesting state's criminal process.[22]Although it may be the case, as Paul Walker J observed in Lisowski v Regional Court of Bialystock [2006] EWHC 3227 Admin 13 that this approach has not been taken in cases involving European Arrest Warrants, it is, in my judgment, apposite in such cases. Section 14 of the 2003 Act poses the question whether it is "unjust or oppressive to extradite" the accused person by reason of the passage of time since he is alleged to have committed the offence. It, like the Fugitive Offenders Act, does not refer directly to the trial.[23]As far as oppression is concerned, there is an overlap with unfairness, but the focus is on hardship to a defendant from changes to his circumstances. The appellant relies on the delay by the complainant in reporting the matter until after he left Ireland; the delay between the decision to prosecute in January 2005 and the issuing of the European arrest warrant in June 2006, a delay of 18 months; and the delay between issuing the European Arrest Warrant and his arrest in December 2006, although his whereabouts were known to Irish Police and had been known since his arrival in this country. The district judge found, as I have observed, that the appellant had done nothing to hide his whereabouts.[24]The written submissions also rely on communications between the Irish authorities and the Bedfordshire Social Services about the allegations. They informed them of the allegations in 2002 and the social services said that in May 2003 the Irish authorities told them they were unable to get a warrant. It is said that in May 2004 the Irish authorities did not respond to queries raised by the social services and a Bedfordshire police officer.[25]A gap of three years and five months from the institution of the investigation to the decision to prosecute in a historic sex abuse case is not, in my judgment, such as to be inexcusably dilatory. These cases are complicated and need careful examination.[26]As far as the communications between the Irish authorities and the Bedfordshire Social Services are concerned, the only material before us is what is in the appellant's statement. There is no evidence beyond that. But insofar as reliance is placed on that, the indication was not of a lack of desire to prosecute, but an inability at that time to get a warrant. This is a very different case from those cases in which the requesting Government has shown indifference to the possibility of extraditing a person for years. In this case, it is not said that there are difficulties in getting witnesses, as was the case in Lisowski. The Irish authorities have stated that all the witnesses are available. The appellant has not pointed to any difficulty in getting witnesses on his behalf. Accordingly, that is not a reason for not proceeding.[27]I turn to ground 3. It is accepted that extradition interferes with the appellant's Article 8 rights. I do not consider that the appellant is assisted by the guidance in HB [2006] EWCA Civ 1713 about the law in relation to delay in an immigration context, in particular by Buxton LJ's useful summary on the effect of delay in removing a claimant in paragraph 24. That is because any delay by the requesting state in this case is not so extreme as to fall within sub-paragraph (4), that is extreme cases of national disgrace or the system having fallen down. The position in relation to this context is governed by the decision in Bermingham and by my Lord, Laws LJ's, observations in that. The facts of this case come nowhere near the truly exceptional circumstances in which it is arguable and may be disproportionate to remove, pursuant to our obligations under extradition treaties.[28]For these reasons, this appeal is dismissed.

LORD JUSTICE LAWS: I agree entirely. In my judgment, none of the three grounds has the least merit.

[30]MR MCCOUBREY: My Lords, may I venture to correct three brief matters.

MR JUSTICE BEATSON: Yes.

[32]MR MCCOUBREY: One is of substance; two are perhaps less important. The information from the Irish Judicial Authority about the safeguards available to an accused in these circumstances was before the district judge.[33]MR JUSTICE BEATSON: It is true. That is why I said "as it does not appear from the material before it". But I will correct that.[34]MR MCCOUBREY: Certainly Senior District Judge Workman made no reference to it, but it was before him.[35]The other two very brief points: first, your Lordship referred to section 2(4)(3) of the 2003 Act and 2(4)(c) on other occasions. Lastly, Kakis v Government of Cyprus was decided under the Fugitive Offenders Act 1967, rather than the 1989 Extradition Act.

MR JUSTICE BEATSON: Right.

[37]MR MCCOUBREY: I am sorry to point that out.

MR JUSTICE BEATSON: It is very helpful, and those points will be put right.

[39]MR MCCOUBREY: I am very grateful.

LORD JUSTICE LAWS: Thank you.

[41]MS NASIM: Thank you, very much

Cited in 2 later judgments