Owens v Court of First Instance Marbella, Spain [2009] EWHC 1243 (Admin)

[2009] EWHC 1243 (Admin)

Case No CO/2118/2009

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Friday, 15th May 2009

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE BEAN

MR JUSTICE LLOYD JONES

Between

GARY SAMUEL OWENSClaimant

Between

COURT OF FIRST INSTANCE MARBELLA, SPAINDefendant

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Mr Mark Summers (instructed by Messrs Hayes Law) appeared for Claimant

Miss Clair Dobbin (instructed by the Crown Prosecution Service) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE LLOYD JONES: This is an appeal by Gary Samuel Owens pursuant to section 26(1) of the Extradition Act 2003 against a decision of District Judge Tubbs sitting in the City of Westminster Magistrates' Court on 26th February 2009 ordering his extradition to Spain.

[2]By a European Arrest Warrant issued on 6th August 2007, the extradition of the appellant had been requested by the Court of First Instance Number 4 of Marbella, Spain. Spain is designated as a category 1 territory pursuant to section 1 of the 2003 Act. Thus Part 1 of the Act applies as modified by the Extradition Act 2003 (Multiple Offences) Order 2003 and as amended by Schedule 13 to the Police and Justice Act 2006.

[3]The appellant's extradition is sought in respect of two Spanish criminal offences; premeditated murder contrary to section 138 of the Spanish Criminal Code and premeditated robbery with violence contrary to Article 242 of the Spanish Criminal Code. The European Arrest Warrant was submitted to and received by the Serious Organised Crime Agency, an authority designated by the Secretary of State for the purposes of Part 1. On 27th February 2008, the warrant was certified by SOCA under subsections (7) and (8) of section 2 of the 2003 Act. On 18th March 2008, the appellant was arrested. The extradition hearing commenced on 2nd April 2008 and was adjourned part heard. The District Judge heard evidence on 11th December 2008 and on 20th January 2009. On 26th February 2009, District Judge Tubbs ordered the appellant's extradition pursuant to section 21(3) of the Act. On 4th March 2009, within the permitted period, the appellant lodged the present appeal against that decision pursuant to section 26 of the 2003 Act.

[4]The proceedings before the District Judge were conducted in private and her judgment has not been made public. Before us, the appellant sought an order that the proceedings be conducted in private and that the judgment should not be made public. That application was supported by Ms Dobbin on behalf of the respondent. It appeared to us that, while it was appropriate that certain matters should be dealt with in private hearing, it was not necessary for the entire hearing to be in private. As a result, we have held an open hearing followed by a private hearing pursuant to CPR 39.2(3)(g). This judgment will address those matters which are capable of being dealt with in public. A confidential annex to the judgment will deal with the matters heard in private session.

[5]The appellant is sought in respect of the murder and robbery of Torbjorn Langaas Reia on 22nd February 1991 at his home in Marbella, Spain. On 8th July 1992, Mr Reia's body was recovered from a well in Marbella. The appellant was arrested on the island of Tenerife in 1991 and brought before the court in Marbella. He was remanded in custody while the Spanish authorities investigated the matter. On 18th January 1993 he was released on bail, although he was still considered a suspect in the murder. It was a condition of bail that he appear before the court in Marbella when required. It is common ground between the parties that Mr Owens absconded from Spain. After he absconded the Spanish authorities informed Interpol about his precise whereabouts on 3rd September 1996. Interpol was unable to locate him until 15th November 2004. Issue 1: The validity of the warrant

[6]The first ground of appeal concerns the validity of the warrant. The appellant submits that the warrant issued in this case fails to comply with the requirements of subsections (2) and (4) of section 2 of the 2003 Act and Article 8.1(e) of the Framework Decision 2002/584/JHA in that it contains insufficient information in the description of the offences alleged. This was not a matter which was argued below but both parties accept that a question which goes to a possible error of jurisdiction on the part of the court below must be capable of being raised upon an appeal; see Boudhiba v National Court of Justice Madrid

[2007] 1 WLR 124

at paragraph 15. It is further accepted that if the warrant does not comply with section 2 of the Extradition Act 2003 it is not a Part 1 warrant and it is void ab initio; see Office of the King's Prosecutor, Brussels v Cando Armas

[2006] 2AC 1

per Lord Hope at paragraph 28. The statutory provisions

[7]Section 2 of the 2003 Act states:

"(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains— (a) the statement referred to in subsection (3) and the information referred to in subsection (4)..." ... (4) The information is— (a) particulars of the person's identity; (b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence; (c) 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 the law of the category 1 territory under which the conduct is alleged to constitute an offence; (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it."

[8]The provisions of Part 1 of the 2003 Act, which were enacted pursuant to the duty of the United Kingdom to transfer into national law the provisions of the Framework Decision, must so far as possible be interpreted in a way consistent with the Framework Decision. While a national court may not interpret a national law contra legem, it is required to interpret its legislation so far as possible in the light of the wording and purpose of the Framework Decision in order to obtain its objectives; see

Case C-105/03

Criminal Proceedings v Pupino

[2006] QB 83

paragraphs 43 and 47, Dabas v High Court Madrid

[2007] 2 AC 31

per Lord Bingham at paragraph 5.

[9]In Office of the King's Prosecutor v Cando Armas it was noted by Lord Hope, at paragraph 26 of his speech, that section 2 departs from Article 8 of the Framework Decision. Article 8 sets out the required contents of the European Arrest Warrant for the purposes of the Framework Decision:

"1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: ... (e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person."

[10]In his speech in Cando Armas, Lord Hope also emphasised that strict compliance with the provisions of the Act is important. At paragraph 23 and 24 he observed:

"The system has, of course, been designed to protect rights. Trust in its ability to provide that protection will be earned by a careful observance of the procedures that have been laid down. 24. ... But the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute."

[11]In Ektor v National Public Prosecutor of Holland

[2007] EWHC 3106 (Admin)

, this court considered in some detail the provisions relating to a description of the offence required in the European Arrest Warrant. Cranston J, in delivering the judgment of the court, observed at paragraph 7:

"... the Council Framework Decision requires the warrant to set out a description, not in legal language, of how the alleged offence is said to have occurred. In particular, the description must include when and where the offence is said to have happened and what involvement the person named in the warrant had. As with any European instrument, these requirements must be read in the light of its objectives. A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place."

[12]In the present case, the warrant includes the following description of the offences in box E:

"On 22 February 1991, Gary Owens, acting in collaboration with other charged persons in this case, stole a quantity of jewellery and credit cards from the residence of Torbjorn Langaas Reia and Ivonne Anna Christine Bertlin, after which they murdered Torbjorn Langaas Reia and hid the body in a well in Marbella."

The other persons who are alleged to have taken part in this joint enterprise are identified elsewhere in the warrant.

[13]On behalf of the appellant, Mr Summers makes his submissions under the following headings. First, what is alleged to have happened. Here, he draws attention to section 2(4)(c), which requires particulars of the conduct alleged to constitute the offence, and to the words of Article 8.1(e) which requires a description of the circumstances in which the offence was committed. He complains that the warrant contains no particulars so as to enable the appellant to understand even in broad terms how the murder was committed. In this regard, he refers to the judgment of Dyson LJ in Von der Pahlen v Government of Austria

[2006] EWHC 1672

Admin at paragraph 21, where the Lord Justice concluded that a broad omnibus description of the alleged criminal conduct, for example obtaining property by deception, will not suffice.

[14]Secondly, Mr Summers makes submissions in relation to the defendant's participation in the offence. Here he draws our attention to section 2(4)(c) which requires particulars of the circumstances in which the person is alleged to have committed the offence, and Article 8.1(e) which requires a description of the degree of participation in the offence by the requested persons. Mr Summers complains that no particulars are provided as to what the appellants are alleged to have done in the murder. In particular, he complains that it does not make clear whether he was physical present, whether he entered the venue, whether he administered blows or whether he possessed a weapon. Here he relies on the judgment of Moses LJ in Vey v Office of the Public Prosecutor of the County Court of Montlucon, France

[2006] EWHC 760

Admin, where Moses LJ observed that there must be a clear statement of the circumstances in which the appellant is alleged to have committed the offence. Similarly, with regard to the alleged robbery, Mr Summers complains that no particulars are provided as to what the appellant is alleged to have done in the robbery.

[15]Thirdly, Mr Summers submits with regard to the requirement as to where the alleged offence occurred (the requirement to be found in section 2(4)(c), which requires particulars of the place at which he is alleged to have committed the offence and Article 8.e, which requires a description of the place the offence was committed) that no sufficient particulars are provided. The warrant, he accepts, discloses that the body was ultimately hidden in Marbella. However, Mr Summers complains that the warrant contains no particulars as to where the murder had occurred. Moreover, he submits that even if it were to be inferred that the murder occurred in the residence of Torbjorn Langaas Reia and Ivonne Anna Christine Bertlin, there are no particulars provided as to where that residence is. Similarly, with regard to the robbery, he complains that there are no particulars as to where it is alleged to have happened in that there are no particulars as to where the residence of Torbjorn Langaas Reia and Ivonne Anna Christine Bertlin is.

[16]It is clearly essential that the description in the warrant of the facts relied upon as constituting an extradition offence should identify such an offence with a degree of particularity so that the individual to whom it relates may understand the essential nature of the allegations made against him. However, the authorities include warnings against imposing too onerous a burden in this regard on requesting judicial authorities. Ms Dobbin on behalf of the issuing judicial authority has drawn our attention to the following passage in the speech of Lord Hope in Dabas at paragraph 18:

"These provisions show that the result to be achieved was to remove the complexity and potential for delay that was inherent in the existing extradition procedures. They were to be replaced by a much simpler system of surrender between judicial authorities. This system was to be subject to sufficient controls to enable the judicial authorities of the requested state to decide whether or not surrender was in accordance with the terms and conditions which the Framework Decision lays down. But care had to be taken not to make them unnecessarily elaborate. Complexity and delay are inimical to its objectives."

I would accept that the requirement for particularisation must be placed in the context of a legislative scheme designed to eliminate undue complexity.

[17]In Fofana and Belise v the Deputy Prosecutor Thubin Tribunal de Grande Instance de Meaux, France

[2006] EWHC 744

, Auld LJ observed at paragraph 39:

"Providing that the description in a warrant of the facts relied upon as constituting an extradition offence identifies such an offence and when and where it is alleged to have been committed, it is not, in my view, necessary or appropriate to subject it to requirements of specificity accorded to particulars of, or sometimes required of, a count in an indictment or an allegation in a civil pleading in this country. Allowance should be made for the fact that the description, probably more often than not, was set out in a language other than English, requiring translation for use in this country, and that traditions of criminal 'pleading' vary considerably from one jurisdiction to another. As Laws LJ observed in Palar, at paragraph 8, while emphasising the need for conduct said to constitute the extradition offence to be specified in a warrant: '... the background to the relevant provisions made in the 2003 Act is an initiative of European law and ... the proper administration of those provisions requires that fact to be borne firmly in mind. ... the court is obliged, so far as the statute allows it, to proceed in a spirit of co-operation and comity with the other Member State parties to the European Arrest Warrant scheme...'"

It seems therefore that a balance must be struck between the requirement of particularity and the requirement that the conduct be stated concisely and simply. In determining the degree of particularity required in the description of the offence in the warrant, it is necessary to balance these competing considerations while at all times being mindful of the need to avoid unfair prejudice to the person whose extradition is sought.

[18]Approaching the present case on this basis, I have come to the conclusion that the criticisms advanced by Mr Summers are unfounded. The description in the warrant meets the requirements of the statute and the Framework Decision. It does so in terms which enable the appellant to understand the criminal activities in which he is alleged to have participated. It makes clear the date on which the alleged offences took place, 22nd February 1991. It makes clear that the appellant, acting with others who are named, stole a quantity of jewellery and credit cards from the home of Torbjorn Langaas Reia and that thereafter they murdered Torbjorn Langaas Reia and hid his body in a well in Marbella. Unlike the situation described by Dyson LJ in Von der Pahlen, the particulars are not limited to an omnibus description of the alleged criminal conduct, for example murder and robbery. In that case, the descriptions in the warrant were grossly defective. For example, in relation to the first charge, a charge of fraud, the warrant gave no details of the victims of the alleged fraud, the number or size of the alleged payments other that in total they exceeded €50,000 or the nature of the fraudulent misrepresentations alleged.

[19]Furthermore, the present case is in my judgement readily distinguishable from Vey. There a child had suffered head injuries in an attack and later died. There was no clear statement in the arrest warrant as to what was alleged against the accused. The warrant simply recited allegations which had been made against three possible defendants. It recited that Mme Vey's son had admitted the offence before withdrawing his confession and accusing his father. Later, he had accused his mother, whose extradition was now sought. The court considered that there was no clear statement whatever of the circumstances in which the appellant was alleged to have committed the offence nor of her conduct. Moses LJ observed that:

"The space in the warrant provided for describing the circumstances of the offence and the level of participation of the wanted person, is mainly taken up with an account of the arrest, questioning, confession and accusations of the appellant's son. Those matters merely add to doubts concerning what precisely the circumstances were in which the appellant was alleged to have committed the offence of murder. ... The most which can be said is that there was an accusation by the appellant that she was:- 'the author of the knocks received by the victim.'"

He considered that there was no information of the circumstances in which the appellant was alleged to have committed the offence and no statement of her conduct alleged to constitute the offence. All that the European Arrest Warrant revealed was a history of accusation. In fact it was impossible to understand from the description in the warrant what the requesting authority was alleging against Mme Vey.

[20]Contrary to the submission of Mr Summers, I do not consider that it is necessary in the present case to provide particulars as to the precise manner in which the killing was carried out. This may well not be known to the prosecuting authorities, particularly where, as here, the body was not recovered for over a year. Furthermore, I do not consider that in the present case it is necessary that the warrant particularise the precise acts performed by the appellant in pursuance of the alleged joint enterprise. It is enough that the joint enterprise alleged is described in the terms of the warrant and that he is alleged to have acted as part of that joint enterprise. In contrast with Von der Pahlen and Vey, the description in the warrant in the present case, in my judgement, encapsulates the allegations against the appellant in a concise way and adequately conveys to the appellant sufficient particulars of the murder and robbery of which he is accused.

[21]So far as concerns the place in which the offences are alleged to have occurred, I consider that on any fair reading the description of the alleged offences does make clear that they are alleged to have occurred in Marbella. The present case is very different from R (on the Application of Pillar) v Bow Streets Magistrates Court

[2006] EWHC 1886 (Admin)

, where the warrant wholly omitted any reference to where the offences were alleged to have been committed. Angelino de Canha v Government of Portugal, a decision of this court on 7th July 1997 (CO/0769/97), can be distinguished on precisely the same ground.

[22]While bearing in mind the importance of adhering to the procedures laid down by the Act, I have come to the clear conclusion that the requirements of the statute and the Framework Decision in relation to the description of the alleged offences have been complied with here. There is no lack of particularity in the description of the offences contained in the warrant and the appellant can be under no misapprehension as to the substance of the charges he faces in Spain.

[23]This is sufficient to answer the appellant's first submission and this is the basis on which I would dismiss the first ground. It is not necessary therefore to consider the extent to which, if at all, it may be appropriate to have regard to extraneous matters, in particular the state of knowledge of the accused, in deciding whether the description of an offence in a warrant is sufficiently particularised. This was a matter touched on in argument but not fully developed, nor, as I understand it, were we taken to all the authorities which might bear upon it. Accordingly, I express no view on that matter. Issue 2: The passage of time.

[24]The appellant submits that it would be unjust and oppressive to return him to Spain by reason of the passage of time. Section 14 of the 2003 Act, as amended, 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)..."

[25]The appellant points to the fact that over 18 years have passed since the alleged offences. He submits that the magnitude of the delay is such that it would be both unjust and oppressive to return him to Spain after so many years. It would be unjust because at this distance in time it would be virtually impossible for the appellant to defend himself against these allegations. It would be oppressive because of the sense of security created by the inaction of the Spanish authorities and the changes in the appellant's personal circumstances.

[26]It is convenient to set out the following chronology. The offences are alleged to have occurred on 22nd February 1991. On 2nd April 1991 the appellant was arrested in Tenerife and transferred to custody in Marbella. His home was searched. On 3rd and 5th April 1991 the appellant's testimony was taken. On 8th July 1992 the victim's body was recovered from a well in Marbella. On 14th and 31st July 1992 and the 23rd September 1992 the appellant's further testimony was taken. On 18th January 1993, the appellant was granted conditional bail but not released from custody because he was unable to meet the financial condition. On 14th June 1993, a processing writ was issued, commencing summary proceedings against the appellant and others. On 15th June 1993, the appellant's further testimony was taken before the Spanish court. On 5th October 1993, the appellant was granted conditional bail with no financial conditions and he was released from custody. There were conditions of bail that he notify the authorities of his residence and that he report to the court. On 10th January 1994, the appellant's reporting requirements were reduced from twice monthly to once a month. On 11th May 1995, a further processing writ was issued by the Spanish court.

[27]At some point thereafter the appellant left Spain. Attempts to serve the writ on the appellant and to take further testimony from him were unsuccessful because the appellant had left his address without notifying the court. In November 1995, the appellant wrote to the Spanish court through his Spanish attorney, and also directly, declaring that he was living in England and providing the address. However, the appellant did not maintain contact with his lawyer or the court in Spain after November 1995 and he did not inform either on the number of occasions on which he changed his rental address thereafter.

[28]On 20th November 1995, a detention order was issued in respect of the appellant. On 16th February 1996, a search and capture order was issued to Interpol. On 16th July 1996, the appellant was declared in contempt of the Spanish court and police inquiries were initiated as to his whereabouts. On 3rd September 1996, the Spanish court made a request to Interpol to confirm the information contained in the letter which it had received from the appellant. On 15th November 2004, Interpol informed the Spanish authorities of the appellant's whereabouts in the United Kingdom. On 14th January 2005, an international search warrant was issued and on 6th August 2007 the European Arrest Warrant was issued.

[29]In Kakis v Government of the Republic of Cyprus

[1978] 1 WLR 779

, Lord Diplock formulated the governing principles in relation to the passage of time in extradition cases as follows:

"'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."

The second paragraph of the relevant passage reads as follows:

"As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. So where the application for discharge under section 8(3) is based upon the 'passage of time' under paragraph (b) and not on absence of good faith under paragraph (c), the court is not normally concerned with what could be an invidious task of considering whether mere inaction of the requisitioning government or its prosecuting authorities which resulted in delay was blameworthy or otherwise. You Lordships have no occasion to do so in the instant case."

All the other members of the committee agreed with Lord Diplock's first paragraph. Lord Russell of Killowen and Lord Scarman agreed with the whole of Lord Diplock's speech. However, Lord Edmund-Davies was unable to concur in the second paragraph quoted above.

[30]In the present case, the District Judge directed herself in accordance with Kakis and considered these matters in some detail. She concluded that, first, the defendant had not established on the balance of probabilities that it would be unjust by reason of the passage of time for him to be extradited to Spain and, secondly, that the defendant had not established on the balance of probabilities either that the hardship caused by his extradition would amount to oppression or that hardship would arise by reason of the passage of time. Accordingly, she did not find that the defendant's extradition was barred by reason of the passage of time within section 14 of the Act.

[31]Since the decision of the District Judge in the present case, the House of Lords has delivered its decision in Gomes v Government of Trinidad and Tobago and Goodyer v Government of Trinidad and Tobago on 19th April 2009. (It is now reported at

[2009] 1 WLR 1038

). It takes the form of a report of the Appellant Committee prepared by Lord Brown of Eaton-under-Heywood in which all the members of the Appellate Committee sitting on the appeal concur. It is of critical relevance to the present case because it makes clear that in cases of deliberate flight the ability to invoke passage of time as a means of resisting extradition will be extremely limited.

[32]As the House of Lords explained in Gomes, the two paragraphs of Lord Diplock's speech in Kakis are concerned with different situations. The first establishes that the accused cannot pray in aid what would not have happened but for the additional passage of time for which he is responsible. The second expressly postulates that the delay is not brought about by the acts of the accused himself. If it is, then the question of blameworthiness on the State's part simply does not arise. In Gomes, the House of Lords emphasised that the clear effect of the first paragraph of Lord Diplock set out above should not be diluted:

"This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not 'of his own choice and making'."

(at paragraph 26) "The rule contained in Diplock para 1 should be strictly adhered to. As the rule itself recognises, of course, there may be 'most exceptional circumstances' in which, despite the accused's responsibility for the delay, the court will nevertheless find the section 82 bar established. The decision of the Divisional Court (Hobhouse LJ and Moses J) in Re: Davies CA 443/96, (unreported, 30 July 1997), discharging a defendant who had become unfit to plead notwithstanding his responsibility for the relevant lapse of time, may well be one such case. In the great majority of cases where the accused has sought to escape justice, however, he will be unable to rely upon the risk of prejudice to his trial or a change in his circumstances, brought about by the passing years, to defeat his extradition." (at paragraph 29)

[33]The appellant in the present case seeks to avoid the application of the undiluted Kakis principle in relation to accused who have fled the jurisdiction by two routes: one is addressed in this open judgment. The other I shall address in the confidential annex to this judgment.

[34]The appellant maintains that the present case does not fall within the exclusionary principle concerning delay brought about by the acts of the accused himself stated in Gomes because, following his flight from Spain, the appellant immediately made his whereabouts known to the Spanish court and offered to attend any court hearings. This, it is submitted, means that the consequences of the subsequent passage of time cannot be regarded as having been caused by the appellant's flight. In this regard the appellant draws attention to the following matters. On 26th October 1995, he faxed his Spanish lawyer, informing him that he and his wife had left Spain, stating that he was willing to fly to Spain to attend any subsequent court hearings, offering to report to the Spanish embassy in London and providing his address and telephone number in the United Kingdom. In fact, it was the address of his parents in law, with whom he and his wife were then staying. He asked his lawyer to communicate these matters to the court. On the same day he wrote to the court enclosing a copy of his fax to his lawyer reiterating that he had provided his address in the United Kingdom. The Spanish authorities accept that they were in receipt of this correspondence.

[35]Mr Summers on behalf of the appellant submits that the District Judge was simply incorrect to observe that the appellant's flight had made it much more difficult to establish the appellant's whereabouts. Indeed, on this basis Mr Summers goes so far as to submit that there was no need to extradite the appellant at all. All that was required at that time was a request and the appellant would have returned to Spain for the purpose of any further hearings. However, while it may be the case that the appellant's parents in law continued to live at the address provided for some years after that, the appellant subsequently moved to different rented accommodation in the United Kingdom on some six occasions without informing his Spanish lawyer or the Marbella court about this. Indeed, the appellant did not maintain contact with his lawyer or the Spanish court after November 1995.

[36]I am simply unable to accept that these matters, even when taken at their highest, enable the appellant to avoid the application of the exclusionary principle. The matters on which he relies are simply insufficient to support the conclusion that the effects of the passage of time following his flight from Spain were not of his own choice and making. To my mind this case falls squarely within the principle enunciated by Lord Brown in Gomes. Having fled from Spain, it simply does not lie in his mouth to complain that Spain should share responsibility for the delay because of dilatoriness or inaction on its part. Furthermore, the matters relied upon by the appellant do not in my judgment give rise to the most exceptional circumstances of the kind contemplated by the Appellate Committee in Gomes so as permit passage of time to act as a bar, notwithstanding that the passage of time has been brought about by the accused himself. The reference in Gomes at paragraph 29 to Davis, where Hobhouse LJ and Moses J discharged a defendant who had become unfit to plead, notwithstanding his responsibility for the passage of time, gives some idea of the extremely unusual circumstances where the exclusionary principle may be disapplied.

[37]When the present appeal is considered in the legal context of the principles stated in Gomes, it becomes clear that this appeal cannot succeed. As in the case of Goodyer, this appellant deliberately jumped bail and fled the jurisdiction. Even if it is accepted for the purpose of argument that the subsequent passage of time has been due in part to the delay of the Spanish authorities, this cannot be considered as breaking the chain of causation. The passage of time has been a direct result of the appellant's own conduct. The House of Lords in Gomes made clear that only a deliberate decision by the requesting State communicated to the accused not to pursue a case against him or some other circumstances which would similarly justify a sense of security on his part, notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not of his own choice and making. In the present case the appellant is unable to point to any matters or circumstances which could bring him outside the scope of the principles stated by the House of Lords.

[38]This is sufficient to dispose of this second ground of appeal when considered in conjunction with the matters in the confidential annex. However, in deference to the arguments of counsel, I propose to say something briefly in relation to the submissions on injustice and oppression. Injustice

[39]In Gomes, the House of Lords concluded that the law has moved on since Kakis, in part because of the developing abuse of process jurisdiction over the past 30 years. In Knowles v United States Government

[2007] 1 WLR 47

, the Privy Council approved the judgment of the Divisional Court in Woodcock v Government of New Zealand

[2004] 1 WLR 1979

, from which it extracted the following propositions, which is endorsed:

"First, the question is not whether it would be unjust or oppressive to try the accused but whether ... it would be unjust or oppressive to extradite him ... Secondly, if the court of the requesting state is bound to conclude that a fair trial is impossible, it would be unjust or oppressive for the requested state to return him ... But, thirdly, the court of the requested state must have regard to the safeguards which exist under the domestic law of the requesting state to protect a defendant against a trial rendered unjust or oppressive by the passage of time ... Fourthly, no rule of thumb can be applied to determine whether the passage of time has rendered a fair trial no longer possible: much will turn on the particular case ... Fifthly, 'there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive'..."

In Gomes, the House of Lords emphasised that the question whether in any particular case a fair trial is impossible is the essential question underlying any application on the ground the passage of time has made it unjust to extradite the accused (see paragraph 33).

[40]The appellants submissions on injustice can be summarised as follows.(1) The delay is such that the appellant can no longer receive a fair trial.

(2) This is not a document intensive fraud case but one which relies on human memory and recollection of events and conversations. In particular, it relates to the appellant's ability to account for his whereabouts on 22nd February 1991. The delay which has occurred will have dimmed his recollection and prevented proper consideration of trial issues. It will also have inhibited the tracing of witnesses still able to recollect specific events.

(3) Following his arrest in April 1991, the appellant was detained incommunicado for about a year. During that time he was given very little information about the circumstances of the allegations against him.

(4) The appellant has consistently maintained that at no time prior to receipt of the European Arrest Warrant in 2008 was he made aware of the date of the alleged murder

(5) The appellant has been deprived of the opportunity to investigate and secure evidence of his alibi defence.

(6) The fact that Spain is a member of the Council of Europe and therefore assumed to be capable of protecting an accused against an unjust trial is nothing to the point because it would be impossible to secure a fair trial in any jurisdiction having regard to the passage of time.

[41]It is to be noted that the appellant has not been able to identify a single person or piece of evidence which would no longer be available to him because of the passage of time. The essential point made by the appellant is that he has been deprived of an opportunity to investigate and secure evidence of his alibi defence. However, on his own account, the appellant knew at the very outset what happened to Mr Reia and who was responsible for murdering and torturing him. He was arrested in respect of Mr Reia's disappearance very shortly afterwards. He had plenty of time to consider what his defence would be to any charge that he had been involved in Mr Reia's disappearance and, following the discovery of the body in 1992, his death. The appellant has long been aware that he sold items which belonged to the deceased. He gave evidence about the alleged offences on at least four occasions before the court. He had ample time in Spain after his release to consider his defence and to track down witnesses. He had the benefit of legal representation in Spain. In these circumstances, even if it were open to the appellant to rely on the passage of time, he is not able to show that his extradition would, as a result, have been unjust or that it is impossible for him to obtain a fair trial. Oppression.

[42]In Gomes, the House of Lords concluded that the test of oppression will not easily be satisfied: "hardship", they said, "a comparatively commonplace consequence of an order for extradition, is not enough" (paragraph 31).

[43]The appellant's submissions in relation to oppression may be summarised as follows:(1) For twelve and a half years the appellant lived openly in the United Kingdom and heard nothing from the Spanish courts.

(2) The passage of time and the inertia of the Spanish authorities led the appellant to conclude, with justification, that the matter had been concluded. As time passed, an increasingly credible sense of false security was created. In these circumstances, it would be manifestly unfair to return him to Spain to stand trial.

(3) The appellant also made submissions based on the hardship that would be caused to the appellant's son.

[44]To my mind, there is no basis for the appellant's suggestion that the passage of time entitled him to a sense of security that he was no longer wanted in connection with these allegations of murder and robbery. As Ms Dobbins submits on behalf of the requesting authority, these are extremely serious charges and are highly unlikely to have simply disappeared in the intervening period. In any event, the House of Lords has now made clear in Gomes that only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part, notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not of his own choice and making. There is nothing of this sort in the present case.

[45]So far as the impact of the extradition request on the appellant's son is concerned, this is highly regrettable: he is an innocent victim. However, the appellant and his wife must have understood the risk that they were taking in fleeing from Spain and the possible impact that this might have at a later date if the appellant were apprehended. Here again the effects of the passage of time are of the appellant's choice and making.

[46]Finally, I should record that I address further submissions on behalf of the appellant which we heard in private session in a confidential annex to this judgment. For the reasons there set out, these further matters do not affect my conclusion that in the present case it would be neither unjust nor oppressive by reason of the passage of time to order the extradition of the appellant.

[47]Accordingly, I would dismiss the appeal.

[48]MR JUSTICE BEAN: I agree. We will now sit in camera and I will ask my Lord to deliver the confidential appendix to his judgment. (The judgment continued in chambers)

MR JUSTICE BEAN: Mr Summers?

[50]MR SUMMERS: My Lord, two applications I make at this stage. First, for legal aid taxation of the appellant's costs.

MR JUSTICE BEAN: Yes.

[52]MR SUMMERS: And secondly this: I have 14 days in which to consider an application to this court to certify a point of general public importance. I have in mind ground of appeal number 1 and I wonder whether in those circumstances the court may order expedition of the transcript of at least the open part of this judgment and direct that it be made available within seven days. (pause)

[53]MR JUSTICE BEAN: We are very happy to order expedition of the transcript but we think, Mr Summers, if you want to make an application for a certificate you ought to make it now. Neither of us will be sitting again at the Royal Courts of Justice for six months. It is much more difficult to do these things on paper or by email and unless you -- well, and not only neither of us will be sitting at the Royal Courts of Justice but neither of us will be sitting anywhere near one another. So you could find me at Croydon or my Lord somewhere else in the country but it really will be very difficult.

[54]MR JUSTICE LLOYD JONES: Mr Summers, is your concern that you want to study the transcript before you make the application?

[55]MR SUMMERS: My concern is simply this: that I want the application to be a reasoned one and by reference to the transcript it is more likely to be a reasoned one but I am content to make the application now. Of course, the court can address it now or reserve its position.

MR JUSTICE BEAN: Mr Summers, bear with me a moment. (pause)

[57]MR JUSTICE LLOYD JONES: I had hoped, Mr Summers, that my Lord and I might both be in the building on the first day of next term but we will not be.

[58]MR JUSTICE BEAN: So be it. So I think we had better hear your application now. If you wanted to supplement that in due course in writing that might be one way of dealing with it.

[59]MR SUMMERS: Well, my Lord, the application I would make relates to ground of appeal, number 1, and I do not seek, of course, to undermine my Lord's judgment or to go behind it in any way in this application. But it is right to say that the particulars that this court has upheld under section 2(4)(c) and Article 8.1(e) are, I think, the scantest that have come before this court before, especially in respect of the murder allegation. We would seek certification of a point of general public importance on the issue of whether such particulars do in fact meet the terms of Article 8.1(e) and section 2(4)(c) of the Act. We would submit that it is of general public importance, involving as it does issues of statutory interpretation in accordance with Article 34 of the Treaty on the European Union, involving as it potentially does the vexed issue of supplementing particulars in a warrant. But we do say that the issue of particulars and in particular the issue of the location of the conduct, notwithstanding of course the judgment of the court that one can conclude further from the entirety of that paragraph that all the conduct occurred in Marbella, we say that in light of the case law that preceded my Lord's judgment this does raise an issue of public importance: how is the Act to be interpreted in such cases.

MR JUSTICE LLOYD JONES: What case are we referring to? The two cases --

[61]MR SUMMERS: The Canha case and the Pillar case.

[62]MR JUSTICE LLOYD JONES: Well, those two cases included no indication at all as to where the offence had taken place.

[63]MR SUMMERS: I understand that and I do -- of course, this is always a difficult application to make.

[64]MR JUSTICE LLOYD JONES: Please do not feel inhibited in any way. I just want to just understand the point.

[65]MR SUMMERS: I understand, of course, that the cases that have gone before have been utterly silent as to where offences have occurred. The court knows the point I make in respect of the body being found in the well in Marbella not being referable back or of assistance in determining where the offences occurred. We would respectfully seek to disagree with the court's conclusion on this issue before their Lordships' House if we were permitted to petition their Lordships' House. But we say the issue of location is but one aspect of the single question that has been answered by this court this morning: does that sparse description of conduct provided in this warrant meet the terms of Article 8 or section 2(4)(c) which in turn raises fundamental questions as to the rationale behind section 2(4)(c) and indeed Article 8 and fundamental questions that we respectfully submit their Lordships' House ought to consider as to exactly how much particularity is required by this provision in the circumstances and bearing in mind in particular that this is a decision that will break new ground by way of particularity.

[66]We do submit this is the appropriate case in which their Lordships should be invited to give guidance on the appropriate degree of particularity that is required by section 2(4) of the Act. It is an issue upon which their Lordships' House have not yet been troubled. The judgments pertaining to this have emanated entirely from this court and this being the high watermark, if our submission is right, as to the absence of particularity, this is, we say, the right case in which their Lordships' House should at least be petitioned for leave to appeal on this particular appeal. That is the application I would make. Of course, I would draft the question in due course if the court were minded to certify.

MR JUSTICE BEAN: Yes, of course.

[68]MR JUSTICE LLOYD JONES: Do you want us to deal with this now or do you want to have the opportunity to supplement that in writing --

[69]MR SUMMERS: I am content. I understand the difficulties that the court is in. I doubt very much that there would be much more that I would be able to add to my submissions by reference to the transcript and in the circumstances, yes, I am content for the court to deal with it now.

MR JUSTICE BEAN: Yes, thank you. (A Short Break)

[71]MR JUSTICE BEAN: Mr Summers, we are not prepared to certify a point of law of general public importance. We do not think there is one. The question under section 2, as my Lord said in his judgment, came down to whether on any fair reading the description of the alleged offences makes it clear that they are alleged to have occurred in Marbella and our view of the critical four and a half lines in the arrest warrant was that they did make it clear and that the question of supplementing from extraneous information therefore never arose and we do not think that that is a question of law which their Lordships would wish to be troubled with or really a point of law at all.

[72]But thank you very much for you assistance. Are they are any other applications?