Khan v Central Trial Court No 3 National High Court Spain [2012] EWHC 3231 (Admin)

Case No CO/2231/2012[2012] EWHC 3231 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 4 October 2012
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
MR JUSTICE SILBER
Between
KHANAppellantv
Between
CENTRAL TRIAL COURT NO 3 NATIONAL HIGH COURT SPAINRespondent
ComputerAided 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 J Bannathan QC (instructed by BSB Solicitors) appeared for AppellantMs K Tyler (instructed by the Crown Prosecution Service) appeared for Respondent
Judgment

I. Introduction

[1]Mr Kamran Khan appeals against a decision of District Judge Purdy, made at the Westminster Magistrates' Court on 24 February 2012, ordering his extradition to Spain pursuant to a European Arrest Warrant which had been issued by the Central Trial Court No 3 of the National High Court in Spain on 8 June 2011. It had been certified in this country by the Serious Organised Crime Agency on 21 July 2011.[2]The European Arrest Warrant sought the appellant's return to stand trial on one offence of trafficking in cocaine in Barcelona on 6 March 2005, when the appellant was apprehended at a bus station carrying a suitcase of cocaine worth approximately €345,175, which has a sterling equivalent of about £300,000. This application has been made pursuant to the Extradition Act 2003 (“the Act”), and Spain is a country to which Part 1 of that Act applies.[3]In brief, the appellant contends that it would be oppressive to return him to Spain because of the history of the matter and his personal circumstances, which include the fact that the appellant's son (who lives in England) was born in November 2004, and the appellant is estranged from his son's mother.

II. The History

[4]As I have explained, he was arrested in Barcelona in March 2005 for the offence of being in possession of approximately 3 kilograms of cocaine. He was remanded in custody. At some stage between the appellant's arrest in Spain and his return to the United Kingdom in 2011, Spain sought the extradition of seven other men, and it was alleged that they were linked to the cocaine charge. The extradition did not take place because after a series of abuse applications a district judge in this country declined to extradite the appellant in September 2007.[5]In October 2007, which was two years eight months after his arrest, the appellant was extradited from Spain to the United Kingdom to stand trial for an offence of attempted murder. The surrender of the appellant to the United Kingdom authorities was not opposed by the Spanish authorities. At the time of the request from the United Kingdom authorities for the appellant's extradition, the pretrial interrogation in Spain of the activities of the appellant and others relating to the drug offence was continuing.[6]At that point, the presence of the appellant was not required in Spain. It is unclear whether the detention of the appellant in Spain prior to his extradition to England was as a result of the investigation into the Spanish drug offence or the request by the United Kingdom authorities for the appellant's extradition to this country. In any event, having been returned to the United Kingdom, he stood trial on criminal charges, and in July 2008 he was acquitted and he was released. Then the appellant met his son for the first time, and at that stage his son must have been aged almost four years.[7]In October 2008, the appellant commenced legal proceedings in this country to obtain contact with his son. He was given contact for three hours every fortnight at a contact centre. During the course of the court proceedings, the appellant's contact with his son increased and, by the time of the present extradition proceedings, the appellant was able to have his son to stay with him at his house during the weekend.[8]On 12 September 2011, the appellant was arrested pursuant to the European Arrest Warrant, which is the subject of the present appeal. He then appeared before the Westminster Magistrates' Court. About three weeks after the appellant's arrest, he married his girlfriend of approximately two years. On 7 December 2011, the full extradition hearing took place and the CPS application to adjourn to gather further evidence was rejected. On 6 January 2012, the Crown Prosecution Service emailed further documents from Spain to the district judge, who refused to receive the new material without an application in court.[9]On 3 February 2012, the district judge refused a further application by the Crown Prosecution Service to adduce further evidence and, as I have explained, on 24 February 2012 the order under appeal for the extradition was made.

III. The District Judges Decision

[10]The reasoning of the district judge was first that this was not a case of temporary surrender and second that the appellant was not to be regarded as a fugitive, because at the end of his criminal trial in this country nobody suggested any basis for his further detention. The district judge also found that the Spanish authorities had never withdrawn or abandoned their case against the appellant for drug dealing.[11]Turning the question of the appellant's state of mind and whether he had been given the impression that the Spanish case was concluded, the judge concluded that, on the facts, the appellant had been given the impression that the drug proceedings were not being pursued. In reaching that conclusion, the judge had taken on board the fact that the appellant had travelled widely and openly since 2008 and that was inconsistent with somebody looking over his shoulder. The judge considered the question of the delay in the absence of any explanation which he regarded as unexplained, but must be regarded as unrelated to the attempted murder charge or any suggestion of awaiting its outcome.[12]The judge took the view that the culpability can, in a borderline case, tip the balance, and the question for him was whether the culpable delay in 2012 at the time of the application was such that it was oppressive to extradite. The judge concluded by saying in paragraph 9 of his judgment:
"Hardship, grave and emotionally charged hardship, certainly, but I cannot conclude, given the gravity of the charge and the need to enforce cross border criminal justice, that it is 'unjust or oppressive' to order extradition. I find no other formal bar or procedural challenge otherwise impedes this EAW request."
He therefore ordered surrender.

IV. The Grounds of Appeal

[13]The grounds of appeal are first that the combination of the delay, the failure to explain the culpable delay and the appellant's understandable sense of security when considered in the light of his marriage and his lengthy, fraught and ultimately successful attempt to establish a bond and relationship with his infant son, are such that extradition after so many years would amount to oppression. It is also said that as a result of a decision of the Supreme Court in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] 3 WLR 90 that the appeal in this case should be allowed essentially after taking account of the effect that extradition would have on the appellant's son.[14]The appellant, in his witness statement, has set out further matters which elaborate on the chronology to which I have referred. He also explains that he was told that when he was released from Spain by a prison officer whom he named and his Spanish lawyer that the case against him was finished. Evidence was also provided in a statement of the appellant's solicitor, Emma Lipscombe, who acted for him when he was sent back from Spain to the United Kingdom, in which she explained that at no time was she led to believe by the appellant or the Police or the CPS that there was no remaining obligation for the appellant to return to Spain. It was also explained when the appellant was acquitted in the court in this country in July 2008 he was released without objection by the police officers or prosecution lawyers who were in court. This account has never been challenged.[15]The appellant has also attached weight to the fact that after his release from custody he met the lady who is now his wife and got to know his son with whom he has been in contact for almost three years by the time of his arrest on the European Arrest Warrant, and the position he has now reached with his son coming to stay with him at fortnightly intervals and over Christmas. The appellant gave details of the bond that he has developed with his son. He explains that his relationship with his son is the most important thing to him and that he would never have placed his son in a position at such a young age that he thought he was going to be ripped out from his life. He says that that would be devastating for him. He also explains that his son has a very good relationship with the appellant's wife.[16]By the time the district judge had given his ruling there was material supplied from the court in Spain, which shows that during the complex investigation of the appellant and others for drug trafficking and money laundering, it was decided that the appellant's presence was not needed before the judicial authorities. The appellant explained that the Spanish court did not oppose his surrender and, in the words of a document from the court in Spain, the failure of the Spanish courts to oppose the appellant's surrender to the United Kingdom did not mean, according to the Spanish authorities, the withdrawal of the charges in him, because it was only when the investigation was finished that it was decided to pursue the case against the appellant for drug trafficking. In response to requests from the CPS as to why the judicial investigation had taken so long to conclude, the Spanish authorities said that the case had never been discontinued by October 2011 and that all pretrial procedures had to be completed.[17]Mr Joel Bennathan QC, counsel for the appellant, in his careful and helpful submissions, relies on a number of factors as to why the appeal should be allowed. They include first the delay since March 2005 in seeking the extradition, and also the failure to bring any charges between March 2005 and October 2007 when the appellant was eventually returned from Spain to the United Kingdom; second, the lack of explanation for the delay; third, the culpability in the delay; fourth, the sense of security engendered in the appellant who had been told, as I have indicated, that the case against him in Spain had finished, and that must have been sometime before 2007; the fact that he has developed this relationship with his son; and finally, the change in the appellant's circumstances in that he had got married.[18]Mr Bennathan stresses that the delay of sixandahalf years between the appellant's initial arrest and his arrest on the European Arrest Warrant is extraordinary, particularly in the light of the fact that he spent twoandahalf years in prison in Spain. It is also said by Mr Bennathan that weight must be attached to the failure of the judicial authority to offer any explanation for the delay, and he submits that the district judge ought to have attached importance to it.[19]The conclusion that Mr Bennathan says should be drawn from this is that it would be oppressive to return the appellant for trial due to the years that have elapsed since his release from prison; particularly, these events induced him into a false sense of security. This, he says, is aggravated by the fact that the appellant carried on his life under the belief, as found by the district judge, that he lived a lawabiding life, he started a new family, he has met and married his wife and he has developed a relationship with his young son.[20]In response to this, the case for the respondent is the appellant's circumstances and circumstances of the case are such that extradition would not be oppressive and the district judge was correct to conclude. Miss Katherine Tyler counsel for the respondent said that there was no requirement incumbent upon the district judge to make a finding of culpable delay because it is only relevant to cases on the borderline of oppression, but this is not such a case. She goes on to say that whatever finding the district judge might have made on the question of culpability of delay would not have altered the outcome, and that overall the district judge applied the correct principles.

V. Discussion

[21]The relevant principles have been most recently considered in relation to extradition generally in two cases, one by the House of Lords and one in the Supreme Court. In the case of Gomes v Government of Trinidad and Tobago [2009] 1 WLR 1038, Lord Phillips of Worth Matravers reviewed some of the previous cases and in particular the previous decision of the House of Lords in Kakis v Government the Republic of Cyprus [1978] 1WLR 779. Lord Phillips referred to the speech of Lord Diplock in that case at page 783:
"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. Your Lordships have no occasion to do so in the instant case."
[22]There has been a dispute as to exactly whether or not other members of the Appellate House agreed or disagreed with Lord Diplock, but Lord Phillips explained that Lord Russell and Lord Scarman agreed with the whole of his speech, while Lord EdmundDavies and Lord Keith (who dissented) took a different line in relation to it.[23]What remains clear from that case itself is that, as was explained by Lord Phillips at paragraph 28, it is only in borderline cases where the accused himself is not to blame that culpable delay by the requesting state can tip the balance; quite another to say that it would be (Inaudible) needs to be explored even in cases where the accused is to blame.[24]It must not be forgotten that, as was explained by Rose LJ in Guven v HM Prison Brixton [2005] EWHC 1391 (Admin), the burden is on the applicant to show that on the balance of probabilities the passage of time is such as to make an extradition unjust and oppressive. Indeed, in another case which has been referred to in Miss Tyler's skeleton argument Cookeson v Government of Australia [2001] EWHC 149 (Admin), the appellant was arrested some 12 years after the offence and some eight years after the extradition request had resulted in a warrant. The theft was of a considerable quantity of gold and the applicant had indicated that, if caught, he would plead guilty. Latham LJ, with whom Potts J agreed, said that in those circumstances they would not have regarded the passage of time as being oppressive, but there were some different factors relating to the psychiatric health of the applicant's son.[25]It is clearly established that a critical factor determining whether to order extradtion is the seriousness of the offences. This was made clear by Cranston J in Tappin v The Government of the United States of America [2012] EWHC 22 (Admin). I respectfully agree with his view that the seriousness of the offence raises the burden on the appellant to demonstrate oppressiveness. In the present case, the offence with which the appellant was charged was dealing in a very substantial amount of drugs involved. It is true that, as the district judge found, there were factors which were in the appellant's favour, such as the delay that has occurred in this case and the sense of security engendered in him because he had quite clearly taken the view that he was free and unlikely to be prosecuted for this offence.[26]In my view, the district judge was right to say that in each case, the factual situation has to be considered on its own facts, taking into account all relevant factors which have to be dealt with. I have taken into account the factors that Mr Bennathan has relied on, and I am also very conscious of the fact that the Supreme Court in HH have required courts to take into account the effect of extradition on a child of the person subject to extradition. In that case, Lady Hale explained the court should not just consider the impact on the family life of the person whose extradition was sought but also it had to be considered from the point of view of others who would suffer. Indeed in this case those factors would include the son of the appellant and his wife. So far as the son of the appellant is concerned, there is no evidence of the kind referred to in HH about the adverse effects on him of the extradition, and in any event he does not live with the appellant but with his mother.[27]I have come to the conclusion that, having taken account of all the factors, the decision of the district judge was correct and that the appeal should be dismissed. I have not overlooked the fact that there had not been a finding on the issue of culpability for the delay, but the law has reached a point that the question of the seriousness of the culpability is only, in the words of CalvertSmith J giving the judgment of this court in Secchi v Deputy Prosecutor of the Republic of Italy [2010] EWHC 521 (Admin), a possible balancing factor if it is thought to fall close or on the borderline of oppression (see paragraph 20 of that judgment). This is not such acase. For those reasons, subject to the views of my Lord, this appeal must be dismissed. LORD JUSTICE LAWS: I agree. This is not a case in which the delay relied on by Mr Bennathan could, in my judgment, possibly prevail against the public interest in extradition. MR BANNATHAN: My Lord, I am grateful. Your Lordships of course will appreciate that in order to consider whether, with great respect, an appeal is possible I need to apply to my Lords to certify a point of law of general public importance. I do have in mind two possible points; I have 14 days under the statute to formulate those. LORD JUSTICE LAWS: Do you want to submit those in writing, Mr Bennathan? MR BANNATHAN: My Lord, if I might do so. LORD JUSTICE LAWS: The rule says 14 days, does it? MR BANNATHAN: Yes. LORD JUSTICE LAWS: I am sure you are right, do not trouble with the text. It would be helpful, as I am sure you had anyway in mind, if you supply any drafts to Miss Tyler so that what comes to us is either an agreed text or competing views as to what the question should be. That is not an indication that we will certify, but it would be helpful to have input from both sides. MR BANNATHAN: My Lord, if I supply a draft to my learned friend within seven days I do not need an order, I will do that then she will have a week to consider whether she wishes to submit an opposition. LORD JUSTICE LAWS: Yes. In the meantime, the order we make is to dismiss the appeal, which we do. MR BANNATHAN: Yes. Thank you. LORD JUSTICE LAWS: Thank you. Are there any other consequential matters? MR BANNATHAN: No, my Lord. LORD JUSTICE LAWS: Then we are obliged to counsel for their submissions.

Cited in 1 later judgment