Davis & Anor v Court of Instruction No2 Benidorm, Alicante, Spain [2008] EWHC 853 (Admin)

Case No CO/2836/2007Case No CO/11/586/2007[2008] EWHC 853 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 1st February 2008
Strand
London WC2
B E F O R E:
LORD JUSTICE MOSES
MR JUSTICE SULLIVAN
Between
ROY DAVISAppellantMARK GRIFFITHSAppellant-v-
Between
COURT OF INSTRUCTION NO 2 BENIDORM, ALICANTE, SPAINRespondent
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 Jacob Hallam (instructed by Hallinan Blackburn Gittings & Nott) appeared for CLAIMANT, DavisMr B Brandon and Mr Ben Watson (instructed by Reynolds Dawson) appeared for CLAIMANT, GriffithsMiss Melanie Cumberland (instructed by the Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE MOSES:

[1]This is an appeal from a decision of District Judge Wickham of 19th December. She ordered the extradition of these two appellants in response to a European arrest warrant issued by a judge in Benidorm, Alicante, Spain, and certified for the purposes of Part 1 of the Extradition Act 2003 by the Serious Organised Crime Agency.[2]The facts that gave rise to the request concerned an allegation that both of these appellants had been involved in an offence of murder in Benidorm. It was alleged that Griffiths was one of the murderers and was also guilty of an offence of attempted homicide. It was alleged that Davis had procured the killing on payment of the sum of £10,000. But it should be noted that the alleged offence in Benidorm took place in the early hours of 21st August 1996. The arrest warrant in respect of Griffiths that is in question in this case was issued on 21st August 2007. In respect of Davis it was issued on 23rd August 2007. The arrests took place, in the case of Griffiths on 23rd August 2007; and in the case of Davis on 13th September 2007.[3]The issues which arise in this appeal pursuant to section 26 of the Extradition Act 2003 are two-fold. Firstly, whether the appellants can rely on the passage of time between 1996 and the date when these proceedings were brought before the district judge in contending that it would be unjust and oppressive to order their extradition. Secondly, if they can, whether the extradition of the appellants would be unjust and oppressive. The district judge decided that the circumstances in which both accused left Spain were such that they could not rely upon section 14 of the 2003 Act. She further decided that, if she was wrong about that, it would neither be unjust nor, in the case of Davis, oppressive, to order their extradition.[4]As I have said, extradition was sought pursuant to an European Arrest Warrant. Both of these appellants rely upon section 11 (read with section 14) of the 2003 Act. Section 14 provides:
"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 - (a) committed the extradition offence (where he is accused of its commission), or (b) become unlawfully at large (where he is alleged to have been convicted of it)."
[5]A question arises which, so far as I am aware, has not previously been determined: is an accused entitled to rely upon section 14 where he has fled from the state authorities in the country requesting extradition but not done so so as to evade prosecution the offences for in respect of which the extradition is sought. In short, does the application of the well-known principle in Kakis apply, even though the accused is not fleeing from arrest and prosecution for the offences in respect of which his return is sought?[6]So far as the appellant Griffiths is concerned, the relevant part of the chronology is that, following the alleged offence on 21st August 1996, two protected witnesses implicated him, the first in November 1996 and the second on 16th January 1997.[7]Just over two months later, on 3rd April 1997, the authorities decided to continue with proceedings in respect of the murder against the appellant Mark Griffiths, together with another man who will figure in this story, Paul Flavell. In consequence of that decision, on 14th April 1997 a domestic arrest warrant was issued against those two, Mark Griffiths and Paul Flavell.[8]Mark Griffiths, so he says, was living in a caravan on a beach supporting himself with cash but otherwise apparently not drawing himself to the attention of the authorities. But on 20th June 1997, two months later, he was arrested in Baza, Spain, not far from Benidorm. He was arrested in a vehicle with 120 kilograms of cannabis in the back. But one day later, apparently before Spanish authorities had appreciated that he was also wanted and was the subject for a domestic arrest warrant, he escaped from custody, he says unaware of the caution against him of murder and not in order to escape from any involvement in the murder, and he went, apparently, to live in the United Kingdom.[9]So far as the appellant Davis is concerned, the position is different. He was arrested about a day after the offence of murder was committed because it was suggested that he had made several death threats to the deceased. Some two days later he was, however, released from police custody on conditions of reporting to court. The protected witnesses implicated Griffiths and Flavell but they did not implicate Davis. Accordingly, on 3rd April 1997 a decision was taken to discontinue proceedings against him for the murder although to continue with the proceedings against Griffiths and Flavell, leading to the issue of domestic arrest warrants against them but not in respect of Davis.[10]Davis was arrested, however, for cannabis offences in April 1997 and placed in custody. Some two years passed whilst he was in custody. In October 1999 he was released and bailed to attend the sentence hearing at a later date. No doubt it was expected that the sentence was unlikely to exceed the period in respect of which he had already been in custody. He did not return for his sentence hearing but went to the United Kingdom in October 1999 and subsequently changed his name by deed poll to William Reade. Nothing further then happened in respect of either of these appellants for many years. Subsequently it appears that another man allegedly involved in the murder surfaced, a man called Fredericks, and an international arrest warrant in respect of Flavell and Fredericks was issued on 3rd October 2005. In consequence, on 10th July 2006 Flavell was arrested in Germany on an European arrest warrant and, on 25th July 2006, application for his extradition to Spain was made.[11]On 7th September 2006 the man Flavell appeared before the issuing judicial authority and was remanded in custody. Apparently in December 2006 Fredericks made a statement and was again remanded in custody, like Flavell. On 9th March 2007, Flavell went to a Spanish court and made a statement implicating both Griffiths and Fredericks in the murder, giving a detailed account of the facts. He also gave evidence that the appellant, Davis, was involved in the murder as an abettor; it was alleged he procured the murder for money.[12]It was in consequence of that statement from Flavell in March 2007 that first, an initial European arrest warrant was issued in respect of Griffiths on 12th March 2007 and subsequently an arrest warrant was issued in respect of Davis on 25th April 2007. Some two months later, Griffiths was arrested and on 16th August Davis was arrested at his home address.[13]The point I have identified as to whether it is relevant that an accused has evaded arrest for a reason unconnected with the offences in respect of which his extradition is sought arises because of the principle that an accused's flight from the requesting state disentitles him from reliance on the statutory bar.[14]Yet again, it is necessary to remind oneself of the words cited so oft in the speech of Lord Diplock in Kakis, cited as if they were the words of a statute; namely, "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 on as a ground for holding it to be either unjust or oppressive to return him." (See Kakis v Government of the Republic of Cyprus [1978] 1WLR 779, 782).[15]In Kryszowski v Circuit Court in Gliwice, Poland [2007] EWHC 2754 Admin Longmore LJ described that principle as operating as "an almost automatic bar to reliance on delay" (see paragraph 16). At paragraph 28 Mitting J said:
"... I do not see how delay on its part can properly be taken into account [in the circumstances described by Lord Diplock], save in an exceptional case."
[16]But the words so often recited in the speech of Lord Diplock are not statutory. Mr Kakis did not flee. The statutory question, as Laws LJ reminds us in La Torre v Republic of Italy [2007] EWHC 1370, is whether it would be unjust by reason of the passage of time to extradite the accused. The statute makes no provision for disqualifying one who has fled from reliance upon the statutory bar. The courts, in focusing on the words of the statute, should, I suggest, move away from the language of entitlement and qualification. An accused can rely upon the words of the statute set out in section 11 and section 14. The point of principle identified by Lord Diplock is that if he has caused the delay he simply will not succeed in his reliance. There are, as Laws LJ remind us, no black line rules to be applied for the purpose of evaluating injustice. Thus, although the court in Kryszowski refers to exceptional cases, in doing so the purpose is only to point out that it will require unforeseeable and very peculiar circumstances in which it can be said that injustice will arise where the cause has been triggered by the accused himself. As Mitting J explains, there may be an exception to "cater for the handful of cases in which serious injustice or oppression would otherwise result." (see paragraph 29).[17]As the House of Lords has reminded us in Huang, to describe a case as "exceptional" provides no standard by which such cases are to be measured.[18]An accused who has created the very injustice which he seeks to invoke simply has no cause for complaint and it is for that reason his attempt to rely upon the statutory bar will not succeed. Lord Diplock's trichotomy flight, concealment or evasion from arrest, are paradigms of delay caused by the accused's own actions. Where an accused knows he is wanted for a crime in one state and flees to another, it is not possible to discern any injustice in requiring him to return even after time has passed from the moment when he might reasonably have been expected to be tried.[19]At the other end of the spectrum are cases where an accused has lawfully left the requesting state many years before, ignorant that any accusation will be levelled against him and is then faced with a warrant or request many years later, out of the blue. Between those extreme examples will lie a whole range of cases requiring different evaluations as to whether there is injustice in compelling return according to their different circumstances. The danger in treating Lord Diplock's words as statutory is that the middle ground is overlooked if the focus is restricted to the extremities. The instant appeal of Griffiths affords an example of this erroneous approach.[20]Mr Brandon, for the appellant Griffiths, argues that there was no evidence that he had deliberately fled from Benidorm. By "deliberately" he meant knowing that he was wanted for murder, the offence identified in the European arrest warrant. There was no connection between the reason for his flight and the domestic arrest warrant for the murder.[21]I agree. Whatever the suspicion that Griffiths had fled because it would be inevitable that he would be associated with the man wanted under the domestic arrest warrant, there was no basis for concluding that he knew anything about that arrest warrant.[22]I also agree that it was not proved that there was a link between Griffith's flight and the domestic arrest warrant. The district judge sought to make such a connection. She said that the defendant, together with Flavell, "were involved in drug-trafficking at the same time in the same place and with those same people who stand accused in the extradition offences." That means that their individual flights from Spain in October 1997 and October 1996 are causal links with these proceedings or are capable of being so (see pages 8 and 9 of her decision).[23]It is true, as I have said, that Griffiths was arrested with 120 kilograms of cannabis in his car and there was an association, as shown in their own statements, between Davis, Flavell and others in the murder. That association was no doubt related to drug-trafficking. But there was no evidence that the connection through drugs was such as to lead to any sure inference that Griffith's flight was a flight from the murder accusation.[24]The circumstances of his flight, accordingly, do not disentitle him from reliance on section 14; but they do make his complaint of injustice difficult to sustain. True it is that it was not proved he was aware of the domestic arrest warrant. But the mere fact that he was ignorant of that murder accusation does not mean that the circumstances in which he left were irrelevant. There are many cases where after the passage of considerable time it will not be unjust to return an accused, even where that accused has left the requesting state lawfully, and even where he is wholly unaware of any accusation at all. The accused may have left years before a vital piece of evidence is discovered, a piece of evidence which might have even been unascertainable previously: DNA is an obvious example.[25]In the instant case, the circumstances in which Griffiths left were highly material in considering whether it is unjust to return him. He did not leave lawfully. He left to escape the authorities. Though he was not living in this country under an assumed name and had frequently brought himself by his offences to the attention of the authorities in this country, his flight from Spain made it much more difficult to establish his whereabouts and to secure his return. There is no evidence that the Spanish authorities knew where he had gone to or where he was living. His flight did prevent execution of the domestic arrest warrant.[26]Those factors are relevant to the question of injustice, though they are not dispositive. But their circumstances do distinguish, to a material degree, his case from that of an accused who has left a requesting state lawfully.[27]That was, however, the position in relation to the appellant Davis. As I have said, in April 1997 proceedings against him for murder were discontinued. He had remained in Spain in custody for two more years, and he then failed to attend for sentence for other offences. But, contrary to the decision of the district judge, his flight had no effect whatever on the commencement of these proceedings. The decision of the Spanish authorities to commence proceedings against him were not delayed because he had fled. No decision to accuse him of being an abettor to the murder had been made until after the witness Flavell emerged in March 2007 and then blamed Davis for procuring the murder. Unlike the case of Griffiths, Davis was not wanted for murder until 2007, and although he had changed his name, the only delay was the five months between March and August 2007 when he was arrested.[28]Accordingly, in my judgment, the district judge erred in concluding that Davis was not entitled to rely upon the statutory bar under sections 11 and 14. His flight from Spain had no effect on the proceedings against him. I conclude, therefore, that the district judge was wrong to say that neither of them were entitled to rely upon section 14. Griffiths was in difficulty in his reliance on section 14; he was not in any way disqualified from doing so. Davis was in no difficulty at all, since his leaving Spain had no effect on the Spanish decision to prosecute.[29]I turn, then, in those circumstances, to the assertions of both of these appellants that it would be unjust for them to return. In the case of Griffiths, he says that important alibi witnesses which would show that he was not present at the time of the murder and the attempted murder are now missing. The district judge was not satisfied that they could no longer be found. In my judgment, she was right so to conclude. The evidence as to the attempts to find them was sparse. The evidence that there would be real difficulty in doing so was again sparse.[30]Mr Griffiths in his proof referred to two witnesses, one Girlane Santos with whom he had lived but who had returned to Brazil. He said of her that she and her daughters had been deported back to Brazil, and:
"I am currently making enquiries with a male who lives in our area that used to have a close relationship with one of Girlane's daughters, and is still in contact with her. I had hoped that though this line of enquiry we may be able to get a contact number for Girlane, who would be able to provide a statement over the telephone to the effect that on the night of this murder and attempted murder that I was with her and Chris Wienfield. However, I have not made any progress to date."
That demonstrates that there is a means of contacting Girlane Santos, and the method of doing so has not been exhausted.[31]So far as the other witness is concerned, he was an alibi witness, a man called Chris Wienfield. Apparently he was, and for all anyone knows is still, in Bournemouth. He is German with a Jamaican accent; it is unlikely, therefore, to be difficult to distinguish him from most of the inhabitants of Bournemouth. Apparently he was at one stage living with the appellant's brother-in-law.[32]Further, one must bear in mind that the question, as Hughes LJ pointed out in Government of Croatia v Spanovich [2007] EWHC 1770 Admin 23, is whether it is fair to return the accused, not whether a fair trial is possible. In those circumstances it is highly relevant, although not determinative, that in Spain the court will be able to consider any prejudice due to delay (see also Woodcote v New Zealand [2004] 1 WLR 1979).[33]Those factors, taken with the appellant Griffith's own responsibility for the passage of time due to his flight from the Spanish authorities, lead me to the conclusion that the district judge was correct in concluding that there was no injustice by reason of the passage of time in returning the appellant Griffiths to the Spanish authorities.[34]The case of Davis is different, because the only delay for which he is in any way responsible was one of five months. The allegation that he procured the murder depends upon the witness who has now emerged from Germany, Flavell. But the district judge was wrong to think that Griffith's alibi witnesses would be of no great benefit to Davis. They may be highly significant to the case of the appellant Davis because if their evidence is credible it would seriously undermine Flavell's evidence that Davis was responsible with others for the murder.[35]But there is no evidence that the authorities in Spain had been guilty of dilatory behaviour in seeking the extradition of Flavell from Germany which was the trigger for the fresh evidence against Davis. Thus there is no basis for saying they are responsible for late emergence of that important evidence. In those circumstances, it seems to me that the district judge was correct to say there would be no injustice caused by reason of the passage of time in extraditing Davis: once the Spanish authorities had sufficient evidence they sought his arrest.[36]The further point on which the appellant Davis relied before the district judge was his unfortunate ill-health, particularly related to diabetes -- he is now 59 -- but there was ample evidence that within Spain he would receive adequate medical treatment; and, accordingly there is no basis for disagreeing with the district judge that it would not be oppressive to return him.[37]For those reasons I would dismiss these appeals.

MR JUSTICE SULLIVAN: I agree.

[39]MR WATSON: I appear on Mr Griffiths s this morning can I ask for legal said assessment in this case?

LORD JUSTICE MOSES: You may, you may have it.

[41]MR HALLAM: My application is in relation to Davis; and, my Lord, as far as the reference for the Kakis quote it is page 783A and B.

LORD JUSTICE MOSES: Thank you very much.