Geary v Government of Canada [2008] EWHC 304 (Admin)

[2008] EWHC 304 (Admin)Case No CO/7941/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 31st January 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MAURICE KAY
MR JUSTICE WALKER
Between
ROBERT GEARYClaimantv
Between
GOVERNMENT OF CANADADefendant
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 E Fitzgerald QC and Mr B Cooper (instructed by Messrs Kaim Todner Solicitors) appeared for ClaimantMr J Hardy and Ms R Kapila (instructed by the Crown Prosecution Service) appeared for Defendant
J U D G M E N T

LORD JUSTICE MAURICE KAY:

The

[1]appellant is a British citizen from Northern Ireland. He is the subject of an extradition request by the Government of Canada. Canada is a category 2 territory within the meaning of the Extradition Act 2003. The 12 allegations against the appellant are of sexual and related offences against four different women who worked as prostitutes in the Winnipeg area. They relate to matters in the summer of 1999. The appellant was arrested at his home in Winnipeg on 8th October 1999. Later that day he was charged with four offences against one of the women. By 16th November he had been charged with offences against the other three.[2]On 24th to 26th May 2004, there was a preliminary hearing at which the appellant was represented by a local lawyer. The proceedings appear to have resembled old style committal proceedings in our domestic context. The complainants attended and gave evidence. Soon after that, the appellant applied for and obtained an Irish passport. On 1st August 2000, he, his wife and children moved to Dublin via London. He was deliberately fleeing the Canadian jurisdiction to avoid trial. His case is that he could no longer afford the fees of his lawyer and he was ineligible for legal aid.[3]Between August 2000 and his arrest in Cambridge on 30th October 2004 in relation to a sexual offence committed in this country, the appellant lived, travelled and worked at various locations. His work is concerned with aircraft maintenance. He worked in Belfast from November 2000 until August 2001. He moved to Cambridge, where he worked for a few weeks, followed by employment for a month in Aberdeen. In January 2002, he worked briefly in Frankfurt. In March he had short employment at Stansted Airport. In April he worked in Basel and in May in Guernsey. In June, he commenced another job in Cambridge. In June 2004, his employment with that employer, Marshall Aerospace, was put on a permanent footing. During those four years, 2000 to 2004, the appellant also visited Northern Ireland, Hungary, Spain and Malta for family, social and holiday purposes. He appears to have had relationships with three different women during that period of time, one of whom is Hungarian.[4]Following his arrest on the local matter in Cambridge, the appellant was traced by the Canadian authorities via Interpol. He was arrested in relation to the Canadian matters whilst in custody. He has remained in custody since that date. On 20th October 2005, he was convicted following a retrial in Cambridge Crown Court and, on 12th December 2005, he was given an extended sentence of seven years, of which the custodial element was four years. It seems that he has served that and that he is presently in custody by reference to these extradition proceedings.[5]The extradition hearing at City of Westminster Magistrates' Court took place on 21st November 2006. District Judge Workman sent the case to the Secretary of State with a view to the return of the appellant to Canada under Part 2 of the 2003 Act. On 29th August 2007, the Secretary of State ordered the appellant's extradition.[6]The proceedings in this court are in the form of an appeal under section 103 of the 2003 Act. At the outset of the hearing, Mr Hardy, on behalf of the Canadian government, took a jurisdictional point. It was to the effect that service on the Canadian government via the Crown Prosecution Service had been effected out of time and that, on the authority of Mucelli v Government of the Republic of Albania [2007]EWHC 2632 Admin, there is no power to extend time. Moreover, although there is power to dispense with service under CPR 6.9, Mucelli also establishes that, in an extradition case under the 2003 Act, dispensation will generally be inappropriate.[7]These points had not been indicated until the day before the hearing. The evidence as to when service was effected is incomplete in that the employee of the appellant's solicitor, who was responsible for service, has left the firm. We canvassed with counsel how we might proceed. With the agreement of the parties, we have heard the substantive appeal. As we have decided to dismiss it on the merits, we do not propose to rule on the jurisdictional point. Again, this course has the agreement of the parties.[8]The substantive appeal is narrower than the hearing before the District Judge. Mr Fitzgerald QC limits it to the question of whether it would be unjust or oppressive to extradite the appellant by reason of the passage of time. Section 82 of the 2003 Act provides:
"A person's extradition to a category 2 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)."
The District Judge held that it would not be unjust or oppressive to extradite the appellant.[9]It is well established that the "unjust or oppressive" formula bears the same meaning in the 2003 Act as it was found to have in earlier legislation. In Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, Lord Diplock, with whom a majority of their Lordships agreed, said at pages 782 to 783:
"'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 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 the 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]Mr Fitzgerald does not, indeed cannot, seek to avoid the continuing authority of Kakis. However, he seeks to put a gloss on it by reference to the decision of this court in Goodyer and Gomes v Government of Trinidad and Tobago [2007] EWHC 2012 (Admin). There, Sedley LJ said this at paragraphs 19 and 21:
"There would ... be an asymmetry ... between taking the cause of delay into account to the accused person's detriment when it is his fault, but leaving it out of account when it is the requesting state's fault. It seems to us more appropriate to regard the respective faults of the offender and the state as merging at the point where it is no longer reasonable for the requesting state not to have located the offender. From that point it becomes increasingly likely that the sense of security engendered by state inaction will render extradition oppressive. "... s.82 in our judgment requires [the decision maker] to give as much weight to the effects of the passage of time as he or she judges right given that both sides have been to blame for it. The want of concealment of Goodyer following his return will be an important factor in the light of Kakis and the subsequent decisions of this court. We do not accept Mr Fitzgerald's submission that the lapse of some 9 years by itself necessarily – that is, as a matter of law - makes extradition of Gomes oppressive; but it is clearly a factor of some weight in the ultimate decision."
The intervening material used by Sedley LJ to support that approach included the speech of Lord Edmund Davies in Kakis when he said, at page 785, that he was unable to concur with a passage in the speech of Lord Diplock. Lord Edmund Davies added: ""In my respectful judgment, on the contrary, the answer to the question where responsibility lies for the delay may well have a direct bearing on the issues of injustice or oppression. Thus the fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return, whereas the issue might be left in some doubt if the only known fact related to the extent of the passage of time, and it has been customary in practice to advert to that factor." Sedley LJ also placed some reliance on the judgment of Laws LJ in La Torre v Italy [2007] EWHC 1370, paragraphs 36 to 37, where Laws LJ said: "Culpable delay on the part of the State ... will often be associated with other factors, such as a false sense of security on the extraditee's part ... An overall judgment on the merits is required, unshackled by rules with too sharp edges."[11]These and other authorities have been considered most recently in this court in Krzyzowski v the Circuit Court in Gliwice, Poland [2007] EWHC 2754 (Admin). Longmore LJ questioned the approach of Sedley LJ and his reading of the authorities before concluding, at paragraph 21:
"... the judge was right to hold that his ruling of deliberate flight concluded the matter unless it could be said that the circumstances of this case were 'most exceptional' to use Lord Diplock's words. The circumstances of the present case are not exceptional in any way and I would therefore uphold the judge's decision."
To that Mitting J added, at paragraph 28:
"I have no difficulty with the concept that the 'chain of causation' may be attenuated in a case in which the extraditee flees justice and goes into hiding, but his whereabouts subsequently become known to the requesting state. Culpable delay thereafter on the part of the requesting state can be taken into account, as happened in Kakis; but where the whereabouts of the extraditee remain unknown to the requesting state, I do not see how delay on its part can properly be taken into account, save in an exceptional case. This court remains bound by the reasoning in Kakis, which compels that result."
In the end, Mr Fitzgerald is content to rest his case on that formulation.[12]In my judgment, whether one applies the unadulterated words of Lord Diplock or the formulation in Krzyzowski, which Mr Fitzgerald does not disavow, the result in the present case is the same, which is hardly surprising in view of the fact that both members of the court in Krzyzowski expressly considered themselves bound by Kakis. Quite simply, the appellant in this case cannot bring himself within section 82. The essence of Mr Fitzgerald's submission is that the Canadian authorities were culpably responsible for the delay, at the very least between 14th August 2000 and 16th March 2002, when they requested Interpol to check for the appellant in England, Ireland, France and Germany. They had known of his Anglo-Irish origins from the outset and they knew of his flight to London.[13]What the Canadian authorities knew and the difficulties they faced are apparent from the affidavits of Sheldon Tessler, a Crown Attorney in the Manitoba Department of Justice. His evidence is that, on 2nd October 2000, the appellant had applied for unemployment benefit in Belfast and that information came to the knowledge of the Canadian authorities but "no further information respecting his whereabouts could be ascertained at that time." On 9th January 2002, the police in Winnipeg received information that the appellant had been at Frankfurt Airport on the previous day. On 28th February 2002, a police liaison officer in Berlin was contacted and advised about the warrant for the arrest of the appellant. As well as the information about his presence in Frankfurt on 9th January, a photograph of the appellant was provided and a request was made for investigation with a view to extradition. It was ascertained that a male of the same name as the appellant, but with a different date of birth, was working for Bostonair in Frankfurt. On 16th March 2002, Interpol in Canada was requested to check for the appellant in England, Ireland, France and Germany. On 19th June 2002, information was received that the appellant had been employed by an aircraft company near Bremen in Germany. It was confirmed that in January 2002 he had been working for Bostonair at Frankfurt Airport but he had left work, somewhat suddenly, shortly after a security clearance procedure was introduced in respect of new employees. Through Bostonair the Canadian authorities obtained an address for the appellant in Belfast. Enquiries suggested that a passport used by the appellant was invalid. Information was received about a bank account in Cambridge. No further information was received until 24th November 2004, when the police in Winnipeg received notification from the Cambridge police via Interpol in Ottawa that the appellant had been located and was residing in Cambridge prior to his arrest by the Cambridge Police.[14]The appellant disputes some of the interpretations placed on the information by the Canadian authorities. However, there is no reason for the court not to accept that the evidence of Mr Tessler is a full account of the state of information over that period of time nor as to the content of the information and the interpretation put upon it, whether or not that interpretation was entirely correct. Unsurprisingly the Canadian authorities considered that the appellant's elusiveness arose out of the deliberate relocations of a fugitive from justice. That is strenuously denied by the appellant. He explains his movements as the innocent mobility of a working man who also happened to have a Hungarian lady friend. However, even if one accepts that the appellant's many relocations were solely motivated as he says, the difficulties faced by the Canadian authorities should not be underestimated. They knew that he had flown to London and that he had claimed unemployment benefit in Northern Ireland for a few weeks in October and November 2000. However, they did not know the details of his subsequent movements as I have previously summarised them. When they next began to receive information from Berlin in January 2002, their enquiries over the next six months simply emphasised their problems. I do not consider that they were significantly culpable. Nor for that matter was the period of delay particularly long.[15]On the authorities, the period of time upon which we must focus is from the date of the alleged offences in the summer of 1999 until the hearing in the Magistrates' Court on 21st November 2006. The position from the summer of 1999 until the appellant absconded in August 2000 was one of normal progress through the Canadian criminal justice system. The delay between November 2004, when the appellant was arrested in Cambridge, and November 2006 was the inevitable result of the English prosecution and, as I have said, I acquit the Canadians authorities of significant culpability for the intervening passage of time. Moreover, I do not accept Mr Fitzgerald's essential submission that the passage of time, such as it was, and regardless of where blame lay, has created injustice or oppression in this case. In his most recent witness statement the appellant offers a wide-ranging and detailed critique of the prosecution case against him. It is clear that he has a good recollection. His defence is that the complainant has wrongly identified him. Mr Fitzgerald submits that the passage of time has handicapped the appellant's ability to establish alibis. He refers to the appellant's evidence that he can no longer produce a dated and timed receipt from a petrol station in the Winnipeg area from a purchase at 16.05 on 14th August 1999. There is evidence that his lawyer's file in Winnipeg, in which that receipt was held, was destroyed in 2006 as a result of flood damage at the lawyer's office.[16]I am wholly unimpressed by this point. Precise times are not an issue in this case. Two of the charges relating to one of the complainants are alleged to relate to events "on or about 14 August". The case for the prosecution is that the appellant met the complainant "at approximately 4.30 on 14 August". The petrol station and the meeting place are, on the appellant's evidence, "about 15 to 20 km" apart. I do not consider this to be a major matter. It is essentially a jury point. It is important to keep the context in mind. The identification processes were finalised within a reasonable time after the appellant's prompt arrest. He had professional assistance up to and including the preliminary hearing and the natural inference is that minds were focused on his defence. Indeed, that is confirmed by his own most recent statement.[17]The fact of the matter is that, but for his decision to abscond, the appellant would have been tried in Canada in November 2000. The significant blame for the subsequent passage of time is his alone. It is neither unjust nor oppressive to return him to Canada now. I would dismiss this appeal and uphold the decision of the District Judge.

MR JUSTICE WALKER: I agree.

[19]MR COOPER: My Lord, may I confirm that there are no points that the appellant wishes to apply to be certified, and so that does resolve this matter. I have spoken to my learned friend from the Canadian government and we have agreed that the order will be no order for costs save for legal aid taxation.

LORD JUSTICE MAURICE KAY: Well, thank you for that clarification. I think the Administrative Court Office have become concerned about the running of time in this case, if you did want to take the matter further. I accept entirely, of course, what you say, that that is not the intention. The difficulty arises as to whether time would have run from Tuesday, when we told you we were going to dismiss the appeal, or from today, when the judgment has been given. The question is whether the decision was made and communicated on Tuesday and today has simply been the giving of reasons or whether today is the decision day and, notwithstanding the recent statutory revision to civil proceedings in general, the provisions in the Extradition Act seem still to cause time to run from the moment that the decision is given, so that, if the decision was in fact given on Tuesday, that would have been the day when time began to run. From an abundance of caution, it would seem to be sensible to say something in the order about when time is to run from.

[21]MR COOPER: My Lord, yes.

LORD JUSTICE MAURICE KAY: Which of the two dates it is does not seem to matter very much, so long as it is clarified. I think the language used on Tuesday was not the appeal is dismissed but we would be dismissing the appeal on Thursday.

[23]MR COOPER: Yes, that is what I recall.

LORD JUSTICE MAURICE KAY: Any preferences as between Tuesday and today?

[25]MR COOPER: I think that my preference would be for today, given that the judgment was given for the first time today, and therefore its reasoning has come to light --

LORD JUSTICE MAURICE KAY: Well, can it state in the order, for the avoidance of doubt, the relevant date for the running of time for the purposes of section 118(5) is today, 31st January.

[27]Thank you both very much.[28]MR COOPER: I am grateful.

Cited in 1 later judgment