Zdinjak v Republic of Croatia [2012] EWHC 1554 (Admin)

Case No CO/9502/2011[2012] EWHC 1554 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 3 April 2012
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
MR JUSTICE WILKIE
Between
ZDINJAKClaimantv
Between
REPUBLIC OF CROATIADefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr R Menon, QC and Ms R Hill (instructed by Russell Cooke) appeared for ClaimantMr J Jones (instructed by Crown Prosecution Service) appeared for Defendant
J U D G M E N T

LORD JUSTICE LAWS:

This

[1]is an appeal brought pursuant to section 103(1) of the Extradition Act 2003 against the decision of District Judge Coleman made in the City of Westminster Magistrates' Court on 28 September 2011 to send the appellant's case to the Secretary of State under section 87(3) of the Act for her to decide whether the appellant should be extradited to Croatia.[2]The Secretary of State ordered his extradition on 3 November 2011. The extradition proceedings (which are governed by Part 2 of the 2003 Act) arise out of the appellant's conviction in his absence at the Vukovar County Court in Croatia on 5 February 2009 for an offence of war crime against the civilian population contrary to Article 120(1) of the Basic Criminal Code of the Republic of Croatia. He was sentenced to 6 years' imprisonment. On 17 November 2009, his conviction and sentence were confirmed by the Supreme Court of Croatia again in his absence. The particulars of the offence allege acts done many years before during the civil war in the former Yugoslavia. It was said that between 4 October 1991 and 18 May 1992 the appellant had been involved in expelling non-Serb civilians from the village of Miklusevci in Croatia and inflicted beatings on three named civilians. Apparently the appellant is himself neither Serb nor Croat but Ruthenian. The District Judge, on page 4 of his judgment, observes that in the course of the civil war Ruthenians "...were not necessarily identified with one side or the other...".[3]On 21 April 2010 the Vukovar County Court issued an arrest warrant for the appellant. On 14 July 2010 the Croatian Ministry of Justice requested his extradition from the United Kingdom. On 1 September 2010 the Secretary of State issued his certificate under section 70 of the 2003 Act confirming that the request was valid. An arrest warrant was issued out of the City of Westminster Magistrates' Court on 21 October 2010. On 16 November the appellant was arrested at the address where he was living in Tooting. He was remanded on conditional bail. A contested extradition hearing took place before District Judge Coleman on 13 May and 8 July 2011. The appellant's extradition was resisted and his discharge sought on five grounds: double jeopardy (section 80 of the 2003 Act), extraneous considerations (section 81), passage of time (section 82), physical or mental conditions (section 91) and abuse of process arising under the common law. In his judgment, given as I have said on 28 September 2011, the District Judge ruled against the appellant on all five grounds. In this statutory appeal the appellant contends that the judge was wrong in relation to all five and, in addition, asserts that he was wrong to hold as he did that if extradited the appellant would be accorded a fair trial in compliance with Article 6 of the European Convention on Human Rights. It is common ground that if he is extradited the appellant, having been convicted and sentenced in his absence, will be entitled within one year of his extradition to a retrial on the merits.[4]I turn to the issue relating to double jeopardy. Section 80 of the 2003 Act provides:
"A person's extradition to a category 2 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction if he were charged with the extradition offence in the part of the United Kingdom where the judge exercises his jurisdiction."
[5]On 29 June 1994, at a military court in Osijek, the appellant was convicted in his absence of an offence of armed rebellion, contrary to Article 2441 of the Croatian Criminal Code. In fact it seems that he had been charged with genocide. The Croatian authorities have provided a copy of the judgment which was accordingly available to the District Judge as it is before us. The document is somewhat discursive. Mr Menon QC for the appellant has included in his skeleton argument a succinct and as far as I can see accurate summary which, subject to some minor adaptations, is as follows. The offending occurred between 27 September 1991 and 18 May 1992 in the village of Miklusevci in the municipality of Vukovar. It was carried out with the intention of overthrowing the state and the establishment of the Republic of Croatia, separating the area from the territory of Croatia and annexing it to Greater Serbia. The defendants were involved in artillery attacks, killing and injuring a number of people and causing substantial destruction of property. After they had taken control of the area they organised its territorial defence. Many non-Serbs were ill-treated, threatened, beaten and forcibly expelled. Some were tortured and some killed. Their properties were seized and occupied. Their personal belongings were looted and robbed. The primary objective of the occupying authorities was the ethnic cleansing of Miklusevci.[6]The appellant, having been convicted in his absence, was sentenced to 8 years' imprisonment. In 1996 a general Amnesty Act was passed in Croatia. On 13 October 1997, pursuant as I understand it to that Act, the Osijek County Court ordered a suspension of the execution of the sentence of imprisonment for some but not all of the 1994 defendants. They did not include the appellant. In a letter to the Home Office of 11 May 2011 the Croatian Ministry of

Justice say of the October 1997 decision of the Osijek court that it:

"...has not the relevance for the charges against [the appellant] due to the fact that according to the Article 3 Paragraph 1 of the General Amnesty Act the amnesty is excluded for the perpetrators of the most serious violations of humanitarian law having the characters of war crimes, specifically the criminal act of war crimes against the civilian under Article 120 of the Basic Criminal Code of the Republic of Croatia."
[7]This letter was, as Mr Menon is at pains to point out, the first acknowledgement by the Croatian authorities of the appellant's 1994 conviction. However the letter also states that on 23 November 1998 the County Court in Osijek in fact proceeded to grant a suspension of the execution of his sentence to the appellant and the other defendants not covered by the order of 13 October 1997. A translation of the court order of 23 November 1998 is with the papers. In fact the appellant had left Croatia for the United Kingdom over five months earlier in June 1998. A further letter from the Croatian Ministry of Justice, dated 6 July 2011, asserts that the General Amnesty Act in fact applies to the appellant's 1994 sentence because the offence for which he was then dealt with, armed rebellion, contrary as I have said to Article 2441 of the Code, was covered by that Act. The letter of 6 July 2011 also sought to draw out differences of fact and law between the Article 244 offence and the Article 120 offence of which the appellant was convicted in 2009. I shall deal with those matters in addressing the double jeopardy issue directly.[8]The appellant's essential case on double jeopardy is that the 2009 conviction, which has of course led to these extradition proceedings, was founded on essentially the same facts as the conviction in 1994 despite this being alleged, pursuant to Article 244 in the one case and Article 120 in the other. As with the 1994 case, we have a record of the 2009 judgment. Again, I may deploy counsel's summary. The allegation was that between 4 October 1991 and 18 May 1992 the appellant and 11 others, 9 of whom were among his co-accused in 1994, were guilty of war crimes against civilians in Miklusevci. They occupied the village, expelled at least 92 non-Serbs, and engaged in intimidation, inhumane treatment, assaults, killings, looting and robbery. The specific allegations against the appellant were that he was involved in the expulsion of non-Serbs from Miklusevci, inflicted serious bodily harm upon three named individuals, and robbed one of them of his Renault 5 motorcar.[9]The rule against double jeopardy includes, but is not limited to, those cases where a plea in bar of autrefois convict or autrefois acquit may be raised by a defendant as of right. The plea in bar is strictly only available where the later alleged offence is the same as the earlier both in fact and law (see Connolly v Director of Public Prosecutions [1964] AC 1254 per Lord Devlin, 1349 to 1340). But the law also recognises a broader discretionary jurisdiction to stop a prosecution based on substantially the same facts as were relied on against the defendant in an earlier prosecution (see Connolly per Lord Pearce at 1362 and 1364). Such a second prosecution will generally be an abuse of the process, but may be permissible in special circumstances where it will not be so characterised (see Connolly per Lord Devlin at 1360). It is clear from Fofana [2006] EWHC (Admin) 744 that both the narrow plea in bar and the wider jurisdiction to stop a second prosecution as abusive are embraced within the double jeopardy rule as applied by section 80 to extradition proceedings under Part 2 of the 2003 Act (see per Lord Justice Auld at paragraphs 18 and 22).[10]This is plainly not a case where the appellant is entitled to rely on the 1994 conviction as a plea in bar as of right. The question is as to the court's wider discretionary jurisdiction to discharge the appellant on the ground that the 2009 proceedings are abusive as constituting a second prosecution on substantially the same facts. The letter of 6 July 2011 from the Croatian Ministry of Justice, to which I have already referred, asserted as I have said that there were differences of law and fact between the 1994 and 2009 cases. As regards the law that is plainly right. Armed rebellion contrary to Article 244 is a different offence from war crime contrary to Article 120. As the letter states, these provisions of the Code protect "different constitutional values". Article 244 is concerned with the safety of the Croatian state; Article 120 with "values protected by international law". As for differences of fact, the letter does no more than set out some of the detailed particulars from the two judgments. It seems to me inescapable that the two cases were based on substantially the same facts and Mr Jones has conceded as much this morning. They were both directed at the expulsion of non-Serbs from the village of Miklusevci between September/October 1991 and May 1992 and associated atrocities. At least 9 other persons were also defendants in both prosecutions. Some specific particulars are described in the 2009 judgment which do not appear in the 1994 judgment but it is plain that in substance the two cases are concerned with the same events.[11]What follows? Mr Jones for the respondent this morning relied first on R v Thomas [1985] QB 604. There, the appellant had been prosecuted in Italy. He was in the United Kingdom at the time; indeed, he was a British citizen. There was evidence that he could not have been extradited to Italy. He was then re-prosecuted effectively for the same case in this jurisdiction. Macpherson J giving the judgment of this court stated:
"6.1.1(b) However, the Crown, both in the court below and in this court, takes a more fundamental point and argues that the plea in bar should not be, and simply is not, available when in truth and in reality the accused has not been in peril or in jeopardy abroad at all... "...6.1.1(g) But That case and Connelly v Director of Public Prosecutions [1964] A.C. 1254 were "domestic" cases and it is to be stressed that the accused man undoubtedly faced and was in reach of the court on each of the two relevant court appearances in each case. This court accepts the Crown's argument and the ruling below of Judge West-Russell that this appellant was never truly in jeopardy abroad. If the accused had been before the court in Italy and had been acquitted or convicted, then he would have been able successfully to plead autrefois acquit or convict. But where an accused man is absent, and takes no part whatsoever in the foreign proceedings, and indeed maybe even only faintly conscious if not ignorant of the fact that the foreign proceedings are on foot, it would in our judgment be wholly contrary to the principles underlying the pleas in bar and unjust that a conviction recorded in such circumstances should inhibit the English court. Those principles are based on the idea that a man shall not be twice in peril or in jeopardy. Unless the relevant conviction has or can reasonably have some effect, as of course it would have if the accused were in reach of the court which tried him, we believe that the principles set out in Connelly's case simply do not bite."
[12]In my judgment the present case is significantly different. Here, both prosecutions were in the same jurisdiction in Croatia. The appellant was in Croatia at the time of the first. Here, however, lies an important factual area about which we have not a great deal of evidence. He was in the village of Miklusevci. It appears that the village remained under Serbian control until a date in 1995. It then came under the administration of the United Nations and was so administered until January 1998. It is not clear to what extent the Croatian authorities exercised any state or judicial functions in the area during that period. From January 1998 it was unequivocally under Croatian jurisdiction. As I have said, the appellant was in Miklusevci. He remained there, as I understand it, until June 1998 when he came to this country. It seems to me that if it is desired on behalf of the Croatian authorities to assert that he was not in any jeopardy in relation to the first set of proceedings, it would be incumbent upon them to establish that circumstance by evidence. It seems clear that it is at least the case, and I understand Mr Jones to accept this, that between January 1998 and June 1998 he would have been amenable to arrest in detention at the hand of the Croatian authorities. In these circumstances, I do not consider that the Croatian authorities have established that there was here no jeopardy in relation to the first separate proceedings. Thomas therefore is distinguishable and does not, in the result, assist Mr Jones.[13]Mr Jones next submits that as a matter of international humanitarian law the double jeopardy rule does not apply at all. Where in the first prosecution the facts alleged have been characterised as an "ordinary crime" and it is then proposed to try the defendant for a "war crime" albeit on the same or substantially the same facts. Mr Jones refers in his skeleton to Article 10(2)a of the Statute of the International Criminal Tribunal for the former Yugoslavia, which is in these terms:
"2. A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if: (a) the act for which he or she was tried was characterized as an ordinary crime..."
[14]Article 92(a) of the Statute of the International Tribunal for Rwanda, and Article 92(a) of the Statute of the Special Court for Sierra Leone are, we are told, in the same terms. It is also submitted by Mr Jones that by international humanitarian law an amnesty may not be granted or will not be effective in relation to a war crime.[15]I do not consider that these special features of international criminal jurisdictions can determine the application of section 80 of the 2003 Act in a case such as the present. Section 80 itself makes no exception where the extradition offence is or is in the nature of a war crime. If it was intended on what must be taken to be high policy grounds to exclude the double jeopardy rule in such cases, I would expect the statute to say so. I do not think it would be right for this court to read in an exception on the strength of an asserted analogy with procedures in the international tribunals. In any event the fact that an international tribunal's exercise of its jurisdiction is or may be uninhibited by national processes or procedures is by no means a sure guide to the scope of the double jeopardy rule as it applies to successive prosecutions in a state's own municipal courts. The international practice will have its own rationale which may by no means simply be read across to section 80. I note moreover, as Mr Menon has reminded us this morning, that Article 4(1) of the 7th Protocol to the European Convention on Human Rights provides:
"No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same state for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that state"
. It seems to me not without significance that the draft of the Convention should limit the expression of this rule to successive proceedings in the same jurisdiction.[16]In all these circumstances I do not consider that anything in international law gives rise to special circumstances that would justify the application of the double jeopardy rule in this case.[17]There was also a submission from Mr Jones that the 1994 conviction was not "final". Mr Jones has rightly abandoned that contention and I need say no more about it.[18]In the result then, in my judgment, this appellant was put in double jeopardy by the second set of proceedings. I would hold that section 80 operates as a bar to his extradition and allow the appeal on that ground.[19]I must however deal with the other grounds. I turn first to abuse of process asserted as a separate head. Quite aside from double jeopardy seen as an instance of abuse, Mr Menon submits that the Croatian authorities have acted in bad faith by making no reference to the 1994 conviction in the original extradition request, and only acknowledged that conviction when in effect confronted with evidence about it from the appellant. Mr Menon has not developed this submission orally this morning but as I understand it has not abandoned the arguments raised in his skeleton. The District Judge said, page 9 in the judgment, that he was concerned by the Croatian authorities' failure to mention the 1994 conviction and subsequent amnesty, but once the appellant had raised it they had been "perfectly cooperative" in the provision of documentation relating to it. He found no evidence of any intention to mislead the court. I greatly doubt whether it would have been evident to the Croatian authorities that the 1994 conviction would have been significant in assessing the merits of the extradition request at any rate at the time they made that request. At all events, in my judgment, the evidence does not begin to establish bad faith on the part of the Croatian authorities. There is nothing in this ground of appeal.[20]I turn next to "extraneous considerations". Section 81 of the 2003 Act provides:
"A person's extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that - (a)the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or (b)if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions."
[21]The appellant has deployed reports from two experts, Professor Caplan and Professor Blitz, who have produced a large amount of material to seek to demonstrate shortcomings in Croatia's human rights record in general and its judicial system (especially with reference to its treatment of Serbs) in particular. Their material is succinctly summarised by the District Judge at page 6 of his judgment and at somewhat greater length at paragraphs 57 to 62 of Mr Menon's skeleton. At subparagraph 3 on page 6, the District Judge said:
"3. Professor Blitz criticised Croatia for being unable to 'upgrade its judiciary'. He said the judicial training was not of a high standard and this affected the quality of judges and justice. There had been some improvements but he felt that the quality of justice was undermined by political corruption and bias. He stated that the Judiciary did not operate in a professional independent environment but was influenced by politicians. As to a retrial for Mr Zdinjak, the fairness of such a hearing would depend greatly on the identity of the judge. In other words, it was a matter of luck whether the trial would be fair or not."
Then this appears at paragraph 62 of Mr Menon's skeleton:
"Ultimately, one cannot ignore the inherently political motivation for the pursuit of alleged war criminals by Croatia and the other Balkan states. As Professors Caplan and Blitz conclude at para 36 of their first report, 'war crimes trials have taken place against a backdrop of a wider ethno-political struggle over victimhood and blame for the wars in Croatia, Serbia and Bosnia Herzegovina, with all three countries seeking to indict minorities associated with particular states (on the grounds of ethnicity) and to pursue cases of war crimes and genocide against their neighbour states at the International Court of Justice'."
[22]I do not consider that the appellant has made out a case under section 81. Croatia is a member of the Council of Europe and thus a signatory to the European Convention on Human Rights and next year is due to join the European Union. This court has consistently upheld extradition requests from Croatia in respect of accusations of war crimes (see Travica [2004] EWHC (Admin) 2747 and Spanovic [2009] EWHC (Admin) 723). In the latter case, Openshaw J, delivering the judgment of this court, said:
"68. It is true that there has in the past been considerable prejudice against ethnic Serbs and there may have been a time when they did not receive a fair trial. It is clear, however, from the material before us that there have been considerable improvements. This was first noted by this court in Travica v Croatia [2004] EWCA 2747 (Admin), in which Laws LJ analysed the descent into nationalism during the regime of President Tudjman and the 'steady amelioration' since elections brought into power a new regime determined to rejoin the mainstream of European states. There are some continuing doubts but now even the ICTY has delegated some of the Yugoslav war crimes cases to the Croatian courts. From 1993 to 2006, the Supreme Court has dealt with 263 cases of war crimes, yet no final judgment has been challenged before the ECHR. 69. On the material before us, we are satisfied that Croatia will provide a fair trial to the appellant, even though he is a person of Serbian ethnicity accused of war crimes against Croatians."
[23]Some support for this position is also given by the decision of the ICTY in Ademi v Norac (14 September 2005) to which our attention was drawn this morning: see paragraph 56. Thus the picture is one of progressive improvement. The appellant is moreover a Ruthenian and not a Serb. Professors Caplan and Blitz themselves assert that the quality of the appellant's trial in Croatia would depend greatly on the identity of the judge. I do not consider that the appellant has shown that the District Judge was wrong to reject his case under section 81.[24]I will next take the appellant's ground of appeal based on Article 6 of the European Convention. Section 87 requires the extradition judge to order the requested person's discharge if his extradition would not be compatible with the Convention Rights, including of course the Article 6 right to a fair trial before an independent and impartial tribunal. In order to make good a case in relation to Article 6 the appellant must show a real risk of a flagrant denial of justice in the event of his extradition. That means that he must demonstrate a real risk of "nullification or destruction of the very essence" of the Article 6 right EM (Lebanon) [2008] 3 WLR 931.[25]The appellant's suggestion at paragraph 68 of Mr Menon's skeleton, that the conviction in the Hague in April 2011 of General Gotovina and General Markac raised the political stakes and will have an adverse impact on future war crimes trials in Croatia, is speculation. In fact we are told that that case is at the appeal stage so is not yet a final decision. More generally I refer to the reasons I have given for rejecting the appellant's s.81 case.[26]I turn to the contention that the appellant's extradition would be unjust or oppressive by reason of his physical or mental condition. If it so appears, the extradition judge must discharge the requested person: section 91 of the 2003 Act. The appellant suffers from a number of ailments including a rare and serious blood disorder called Polycythaemia Rubra Vera. His care is being managed at St George's Hospital Tooting, as I understand it by Dr Coomes. He now apparently needs monthly venesections - double the previous level. This is said to indicate a haematological deterioration. Dr Coomes's up-to-date prognosis is guarded and uncertain. The appellant is also said to be suffering from PTSD which has been worsened or reactivated by the extradition proceedings. Professor Robbins says his mental state would deteriorate rapidly if he were returned to Croatia. There is a recent report from Professor Robbins dated 21 March 2012 in which he describes severe PTSD and moderate depression with suicidal ideation. The professor opines that it is highly unlikely that psychiatric treatment in Croatia would lessen the risk of suicide.[27]There is a recent letter, dated 26 March 2012, from the Croatian authorities. It says: "Upon the request of [the appellant] and pursuant to the provision of Article 16 of the aforementioned regulations, he will be provided with health care immediately upon his receipt to the prison if necessary. Moreover, in case there is preliminary knowledge on health issues of the person in custody, that due to their seriousness require hospitalisation and continuous treatment by a specialist which cannot be secured in the prison, the person in custody can be sent to the treatment in the Zagreb Prison Hospital, pursuant to Article 16(6) of the aforementioned regulation. The Zagreb Prison Hospital is a penal institution within the imprisonment system administration that provides persons in custody, as well as persons convicted by means of an enforceable decision, with health care. In addition to the aforementioned pursuant to Article 16(1) of the regulations and upon approval of a competent judge ... a person in custody can be visited or examined by the doctor that he chooses. Health care and health care services can be provided in the period of detention by the health care service, ie the prison doctor in a prison or the prison hospital in Zagreb at the expense of the criminal proceedings. In case the person in custody is diagnosed with a disease that requires a certain therapy, the continuance of the therapy will be provided in an appropriate way by means of the same or equivalent medications and health care will continue as long as there is need for it according to the doctor's opinion. The health care in penal institutions is in compliance with the health care level provided to free persons. The types of health care that cannot be provided within the prison system will be provided in civil hospitals." (Quote unchecked) It seems to me that in medical terms the appellant will be properly looked after if he is returned. There is nothing to show that his health will undermine the injustice of any retrial if the case under section 91 is not made out.[28]There remains the issue 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 - (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)."
The respondent accepts (Mr Jones' skeleton paragraph 37) that the period of time to consider is the period since the alleged offence in 1991/1992. The judge was therefore in error at page 9 of the judgment in holding that the time ran from 17 November 2009 when the appellant's conviction was upheld by the Supreme Court. Mr Menon submitted this morning that there was culpable delay from April 1996 when the indictment that ultimately led to the 2009 conviction was laid. That indictment in fact alleged genocide under Article 119; though the conviction, as I have said, was under Article 120. The appellant asserts no specific point of prejudice save by reference to the political situation in Croatia. In Goodyear v Gomes [2009] 1 WLR 1038, this was said: "31... the test of oppression will not easily be satisfied: hardship, a comparatively commonplace consequence of an order for extradition, is not enough... 35...Council of Europe countries in our view present no problem. All are subject to article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial - whether by an abuse of process jurisdiction like ours or in some other way." (See also Woodcock v Government of New Zealand [2004] 1 WLR 1979).[29]Mr Menon this morning has relied on Sagmen (Divisional Court June 2001) O v The Republic of Turkey [2001] EWHC (Admin) 1142 and Wenting v High Court of Valenciennes, France [2009] EWHC (Admin) 3528: all cases of long delay held to be a bar to extradition. Mr Menon submits that the appellant was not a fugitive, did not evade arrest, and did not know that he had been or was being prosecuted for genocide before he left Croatia in June 1968. He submits that the fact that the allegations relate to the bitter events of the civil conflict make it all the less likely that defence witness may be available. Reliance is placed on the appellant's family ties here and his physical and mental health to show that his extradition would be oppressive. As regards those matters, I note that any Article 8 contention has been abandoned and I have rejected the freestanding ground based on the appellant's health.[30]It is said moreover that the appellant must have nurtured a sense of false security. It is plain and needs no elaboration that the period of time since the alleged offending is very long indeed. I am not satisfied that the Croatia authorities could not have got the second prosecution and the extradition request on their feet sooner. It is however clear that a good deal of time was taken by the authorities in revising in absentia convictions from the early 1990s (see the status report from the OSCE of 18 November 2010 to which reference has been made this morning). I do not consider there is much force with respect in Mr Menon's submission that any time taken by that activity hardly assists the respondent in the present case because a decision to prosecute the appellant had been taken anyway in April 1996. The fact is that the authorities were looking overall at these earlier convictions. However it may well be said that the delay is not fully explained.[31]In the end it seems to me that given the stance taken in the Gomes case (paragraph 35) to the recourse that a defendant may have to proper procedures in the imminent jurisdiction of a State signatory to the European Convention on Human Rights, the passage of time ground is not made out. In all these circumstances, I would allow this appeal on the ground only that the appellant's extradition is barred by the double jeopardy rule pursuant to section 19 of the Act of 2003.[32]MR JUSTICE WILKIE: I agree that this appeal should be allowed by the reasons given by my Lord, Laws LJ.[33]MR JONES: My Lord, given that this is the second time in a year that this issue of double jeopardy, in circumstances where the person may or may not (Inaudible) arisen I do have an application to certify a question.

LORD JUSTICE LAWS: You have got a draft question?

[35]MR JONES: Yes.

LORD JUSTICE LAWS: Prepared in advance of the hearing, probably.

[37]MR JONES: I have prepared it during the course of your Lordship giving judgment.

LORD JUSTICE LAWS: I'm only teasing, Mr Jones. Has Mr Menon seen it?

[39]MR JONES: He hasn't. I was proposing to read it out and then hand it around.

LORD JUSTICE LAWS: Yes, read it out so it goes on the record.

[41]MR JONES: May a person be said to have been "in jeopardy" for the purposes of the rule against double jeopardy (section 80 of the Extradition Act 2003) when: A) the previous conviction was entered in the person's absence and when he was never arrested nor detained in relation to that conviction, and/or; B) when the previous conviction will not and cannot be executed due to an amnesty, and/or; C) whether previously convicted of an "ordinary crime" and the second set of proceedings for an international crime, ie war crimes and/or genocide.

LORD JUSTICE LAWS: Mr Menon, do you say anything first about whether in principle there should be a certificate and secondly as to the form of the question?

[43]MR MENON: In terms of the form of the question I need a little bit of time to consider it, but in terms of any points should be certified in my submission, this case is clearly distinguishable on the facts from Thomas and there is no point of general public importance arising from the fact of this case that requires consideration by the court above.

LORD JUSTICE LAWS: What about the form of the question? You say you need some time to consider it. I appreciate it has only just been drafted. If you indeed need time then we will deal with the matter in writing at a later date but it is obviously desirable to deal with it now if possible. Why don't we rise for 5 minutes? (A short adjournment)

[45]MR MENON: My Lords, I am grateful for time. Can I deal with the three distinct parts of the question, one-by-one. The first is, may a person be said to be in jeopardy for the purposes of the rule against double jeopardy when the previous convictions entered in the person's absence and when he was never arrested or detained in relation to that conviction. In our submission that's a straight factual question with no legal principle arising. The same in relation to the second question, may a person be said to be in jeopardy for the purposes of a ruling of double jeopardy when the previous conviction will not and cannot be executed due to an amnesty. We make the same point in relation to that. In relation to the third and perhaps most important question, whether a person can be said to have been in jeopardy for the purposes of the rule or (Inaudible) jeopardy, where the previous conviction is for an ordinary crime and the second set of proceedings for an international crime, ie a war crime or genocide, my Lord has given an unequivocal judgment that the statutes of the international tribunals do not apply in the national courts. At section 80 of the 2003 Act, does not make any distinction between ordinary and war crimes. There is no conflicting authority on either of these points.

LORD JUSTICE LAWS: No, but it is something of a novel point, is it not?

[47]MR MENON: On the facts --

LORD JUSTICE LAWS: I haven't come across it before.

[49]MR MENON: It is certainly novel but whether it qualifies to the extent that it should be certified, we submit it should not. Ultimately of course it is a matter for my Lords.

LORD JUSTICE LAWS: I see. Have you anything else to say about the test as a textual matter rather than as a matter of principle?

[51]MR MENON: No.

LORD JUSTICE LAWS: Can you pass it up then, Mr Menon, and we will see where we get to. (Handed). It is probably going to be more convenient if we go out again. We both need to look at it together. You obviously haven't got a second copy?

[53]MR JONES: Shall I reply now, briefly?

LORD JUSTICE LAWS: I was going to invite you after we come back in.

[55]MR JONES: Very briefly.

LORD JUSTICE LAWS: Hot off the press, yes.

[57]MR JONES: The issue of amnesties and double jeopardy does come up fairly regularly in extradition, in Albania, for example, there have been amnesties, so in my submission, the interplay between amnesties and double jeopardy is something which is of general importance and which the Supreme Court should consider. The particular context of this case, yes, it has its own facts, but war crimes cases in Croatia may often exhibit this feature. The armed rebellion conviction amnesty followed by extradition for war crimes. It may be that they were all thought to be refused in future on that basis, but it may be that the higher authority should consider --

LORD JUSTICE LAWS: I don't really understand b), Mr Jones. I will read it out again: May a person be said to have been "in jeopardy" for the purposes of section 80 ... b) when the previous conviction will not and cannot be executed due to an amnesty. Is the implicit suggestion that the double jeopardy rule only applies in some way if the appellant is in jeopardy from both sets of proceedings at the same time? Because that's plainly not going to be the case where you have got successive prosecutions. After the first the chap may have served his sentence. He is then no longer in jeopardy, he is then re-prosecuted. He is clearly a candidate for the double jeopardy rule. But unless you are submitting that he has to be in jeopardy from both at the same time, what's the relevance of the fact that the jeopardy of the first one comes to an end by force of an amnesty? Do you see what I mean?

[59]MR JONES: I was trying to imagine the situation without the amnesty. If one had the conviction for armed rebellion and that was still operative, and then one had extradition leave sought for the war crimes conviction, in that situation one wouldn't have the amnesty but one would still have a live issue as to whether or not -- his extradition is sought for the war crime not for the ordinary crime, so it occurred to me that the amnesty played an operative part in making it a live issue.

LORD JUSTICE LAWS:

[60]Supposing you had had this case, facts all the same, but there had not been an amnesty, they had just chosen to re-prosecute him under Article 120. Your opponent would have had the same arguments about double jeopardy.[61]MR JONES: Yes, but where as he might succeed there, he might not if there has been an amnesty.

LORD JUSTICE LAWS: We will just look at the text together and come back in a minute. (A short adjournment)

LORD JUSTICE LAWS: We propose to grant the certificate in the terms drafted. Our provisional view is however that we would refuse leave to appeal but I don't think Mr Menon actually submitted to us. Forgive me, you have not made any submissions about that which you are entitled to do.

[64]MR JONES: My Lord, I am aware that the practice of this court is typically to leave it to the Supreme Court to decide.

LORD JUSTICE LAWS: Yes, if we give the certificate, then it leaves it open to you to ask the Supreme Court.

[66]MR JONES: Yes, indeed, my Lord.

LORD JUSTICE LAWS: Do you want to say any more about that?

[68]MR JONES: No, my Lord.

LORD JUSTICE LAWS: Very well, we will certify, but refuse leave. My Lord reminds me that does leave a practical question: what happens to this appellant in the meantime? He is presumably not to be sent away until, on your undertaking, to apply to the Supreme Court.

[70]MR JONES: Everything remains as if he has been discharged. I believe I am right to say that he should be discharged. May I just check?

LORD JUSTICE LAWS: Having allowed appeal we are obliged to quash the extradition order and discharge him, are we not?

[72]MR JONES: Yes, section 1045, that is quite right.

LORD JUSTICE LAWS: We will have to make that order. What happens to him pending any possible appeal by the Croatian authorities to the Supreme Court?

[74]MR JONES: Nothing, he is simply free to go.

LORD JUSTICE LAWS: There's no procedure by which you can apply to the court to detain him in the meantime?

[76]MR JONES: He is on bail in any event. If the court makes a direction under subsection 1b, I think given that the order is quashed --

LORD JUSTICE LAWS: Yes, he is free to go.

[78]MR JONES: I am not going to make an application to the contrary. I know the lower court, pending an appeal, one can apply for a remand in custody on bail. I don't see a like provision in that section and I am certainly not seeking any.

LORD JUSTICE LAWS: You are not making any application to us so we will make whatever the usual order following a successful appeal. Discharge and the extradition order quashed. Any other matters?

[80]MR MENON: May I ask for an order that legal aid is assessed in the ordinary way?

LORD JUSTICE LAWS: You are not asking for an adverse order against Mr Jones' client?

[82]MR MENON: No, I don't think that's appropriate.

LORD JUSTICE LAWS: You are asking for just --

[84]MR MENON: Detailed assessment.

LORD JUSTICE LAWS: Legal Services Commission, yes, certainly.

[86]MR MENON: Thank you.

LORD JUSTICE LAWS: Mr Jones you had better have your text back. Can counsel very kindly co-operate to find a clean copy for the associate?

[88]MR MENON: Yes.[89]MR JONES: Yes.

LORD JUSTICE LAWS: We are obliged to counsel for their learned submissions.

Cited in 2 later judgments