Campbell v Public Prosecutor of the Grande Instance Tribunal of St-Malo, France [2013] EWHC 1288 (Admin)

[2013] EWHC 1288 (Admin)

Case No CO/3944/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20 May 2013

Before

MR JUSTICE KEITH

Between

Owen CampbellAppellant

Public Prosecutor of the Grande Instance Tribunal of St-Malo, FranceRespondent

Mr Mark Summers (instructed by Birnberg Peirce & Partners) for Appellant

Mr Ben Keith (instructed by the Crown Prosecution Service) for Respondent

Hearing Hearing date: 10 May 2013

Judgment

Introduction

[1]On 27 November 2012, the appellant, Owen Campbell, was arrested pursuant to a European arrest warrant which had been issued on 22 October 2012 by the Public Prosecutor of the Grande Instance Tribunal of St-Malo. The warrant had been certified by the Serious Organised Crime Agency (“SOCA”) on 21 November 2012. The warrant is what is colloquially called a conviction warrant. It sought Mr Campbell’s extradition so that he could serve a sentence of 18 months’ imprisonment for an offence (to put it colloquially) of smuggling counterfeit cigarettes. This was the second European arrest warrant issued for Mr Campbell’s arrest, and from now on, it will be referred to as EAW2. An extradition hearing took place at Westminster Magistrates’ Court on 12 February 2013. District Judge Coleman reserved judgment, and on 28 March 2013 he ordered Mr Campbell’s extradition to France. Mr Campbell now appeals against that order. The principal ground of appeal is that Mr Campbell’s extradition to France would be an abuse of the extradition process, but in that context it is necessary to remember that France has been designated as a category 1 territory pursuant to section 1 of the Extradition Act 2003 (“the Act”). Accordingly, Mr Campbell’s extradition is governed by Part 1 of the Act.

The facts

[2]The facts upon which Mr Campbell’s conviction was based are set out in EAW2. On 21 February 2005, a lorry driven by Donal McCormack en route to Ireland was stopped in Brittany. It contained boxes of mineral water. Hidden in those boxes were counterfeit cigarettes. The lorry belonged to a haulage contractor called Buret. The consignment had been delivered to Buret by another haulage contractor whose manager was Philippe Lelandais. Subsequent investigations revealed that this was the fifth consignment of mineral water which had been taken by Mr McCormack to Ireland in one of Buret’s lorries since the previous June. Those investigations also revealed that Mr Campbell had been at Buret’s depot when each of the consignments had left the depot, and had been “directly supervising the operations”. A search of the premises of the contractor for whom M Lelandais worked revealed documents linking him to Mr Campbell, and showing transfers of funds from Mr Campbell to M Lelandais. The last consignment, i.e. the one which was intercepted, consisted in all of 2,063 “tonnes” of counterfeit cigarettes valued at €486,555. The reference to 2,063 tonnes in EAW2 was a mistake. It should have referred to 2,063 kilos.

The procedural history

[3]The argument that Mr Campbell’s extradition to France would be an abuse of the extradition process relates to the procedural history of his case. A domestic warrant for Mr Campbell’s arrest was issued by a French examining magistrate on 23 February 2009. That warrant was not executed, and on 4 June 2009 the first European arrest warrant (“EAW1”) was issued by the Public Prosecutor of the Grande Instance Tribunal of St-Malo. It was what is colloquially called an accusation warrant. Such a warrant is issued “with a view to [the person’s] arrest and extradition … for the purpose of being prosecuted for the offence [specified in the warrant]”: see section 2(3)(b) of the Act which is in Part 1. That warrant was not certified by SOCA at the time, and Mr Campbell was not arrested pursuant to it. Instead, he was tried in his absence by the Correctional Court of St-Malo. No evidence has been filed by the French authorities explaining why it was decided to do that. In due course, Mr Campbell was convicted of smuggling counterfeit cigarettes, and on 26 November 2009 he was sentenced to 18 months’ imprisonment. The French authorities accept that Mr Campbell was not summoned to appear in the French courts to answer the charge, and he was not informed of the date or the venue of the trial which resulted in his conviction and sentence in his absence.

[4]It is not known what happened to EAW1 until 1 September 2012 when it was certified by SOCA. Mr Ben Keith for the requesting authority suggested that what might have happened is that the details of the warrant may have been sent to SOCA shortly after it had been issued, and SOCA only certified it in 2012 when Mr Campbell’s whereabouts became known. That is unlikely to have been the case, though, since date stamps on the English translation of EAW1 show that it was translated into English on 15 February 2011 and that the English translation of it was received by the Grande Instance Tribunal of St-Malo a few days later. On 17 October 2012 Mr Campbell was arrested pursuant to the warrant at Birmingham Airport. He was kept in custody overnight, and he was produced at Westminster Magistrates’ Court the following day. There he was granted conditional bail, but the conditions for his bail were not satisfied until the following day when he was released.

[5]That brings me to EAW2. As I have said, that was issued on 22 October 2012, which was three days after Mr Campbell’s release on bail. Again, no evidence has been filed by the French authorities about why it was issued, but I can infer, I think, that it was thought that in the light of Mr Campbell’s conviction, he could not lawfully be extradited on an accusation warrant, and that he could only lawfully be extradited on a conviction warrant. Such a warrant is issued, amongst other things, “with a view to [the person’s] arrest and extradition … for the purpose of … serving a sentence of imprisonment … imposed in respect of the offence [specified in the warrant]”: see section 2(5)(b) of the Act. Because EAW2 was the warrant on which it was proposed to seek Mr Campbell’s extradition to France, SOCA informed Westminster Magistrates’ Court on 21 November 2012 that EAW1 had been withdrawn, and the court ordered Mr Campbell’s discharge pursuant to section 41(3) of the Act. Mr Campbell claims that he was not notified of that beforehand, and that the court did not inform him of his discharge as required by section 41(4) of the Act. On the same day, as I have said, EAW2 was certified by SOCA, and Mr Campbell was arrested pursuant to it at his home in the early hours of 27 November 2012. The decision of the French authorities to seek Mr Campbell’s extradition on a conviction warrant when he had been convicted in his absence in circumstances where he had been blameless for his absence is the basis on which it is said that the French authorities have abused the extradition process.

[6]The delay between the issue of EAW2 on 22 October 2012 and Mr Campbell’s discharge on 21 November 2012 is another element in the argument. Once it had been thought that Mr Campbell could not lawfully be extradited under EAW1, and that EAW1 had to be withdrawn, the magistrates’ court should have been informed of that, so that Mr Campbell could have been discharged immediately. The consequence of not doing that until 21 November 2012 was that Mr Campbell remained during that time subject to the conditions of his bail. There has been no evidence about what those conditions were, so I cannot say whether they were onerous or not. Again, no evidence had been filed on behalf of the French authorities explaining this lapse of time. On the face of it an explanation was called for once the point was made that SOCA may have waited until the day on which EAW2 was certified before informing the magistrates’ court that EAW1 had been withdrawn, so that Mr Campbell could not “regulate his own position” before he was arrested again, this time pursuant to EAW2. However, it is unnecessary for me to spend any time on this feature of the alleged abuse. Mr Mark Summers for Mr Campbell did not suggest that the appeal could succeed on this element of the abuse alone: all it did was to aggravate the previous abuse alleged on the part of the French authorities.

The basis of the argument on abuse

[7]So was the extradition process abused by the French authorities in seeking Mr Campbell’s extradition on a conviction warrant when he had been convicted in his absence in circumstances where he had been blameless for his absence? The test for abuse of the extradition process has been described in various ways in the authorities, usually by reference to the nature of the abuse being alleged, but the core of it is that the requesting authority has behaved in such a way in relation to the extradition process that to extradite someone in the particular circumstances of the case would offend the court’s sense of justice, invariably but not necessarily because the defendant has either been unfairly prejudiced in his attempts to resist his extradition, or will be unfairly prejudiced on his extradition, whether in the trial itself or in the events leading up to it. The conduct complained of will usually involve bad faith or the deliberate manipulation of the process to make it more difficult for the defendant to resist his extradition or to make him less concerned to do so.

[8]The case which is said to show that the conduct of the French authorities in this case can and should be regarded as amounting to an abuse of the extradition process is Federal Public Prosecutor, Brussels, Belgium v Bartlett

[2012] EWHC 2480 (Admin)

. The extradition of the defendant in that case from the UK to Belgium was sought under an accusation warrant so that he could stand trial with a number of co-defendants on charges of drug trafficking, money laundering and involvement in a criminal organisation. He challenged his extradition in the English courts. His extradition was ordered on all charges with the exception of the money laundering charges. He appealed against the order for his extradition, as did the requesting authority on the refusal of the English courts to order his extradition on the money laundering charges. Both appeals were dismissed by the Divisional Court, and the Supreme Court refused an application for permission to appeal. In the meantime, the trial of the defendant and his co-defendants had proceeded in his absence, and the conclusion of the extradition proceedings in the UK occurred shortly before the ending of the trial. The problem for the Belgian authorities, as they saw it, was that if the defendant was extradited before the end of the trial, the case would have to start all over again. To avoid that happening, the Belgian authorities continued for the time being to seek the defendant’s extradition under the accusation warrant, but they then issued a conviction warrant on the day following his conviction and sentence seeking his extradition on that warrant. And since the allegations on which he had been convicted included the money laundering charges, his extradition on the conviction warrant was sought on those charges as well. The issue which the English courts had to decide was whether the Belgian authorities’ attempts to have him extradited on the conviction warrant amounted to an abuse of the extradition process, despite the fact that the Belgian authorities acknowledged that the defendant’s convictions would have to be set aside, and that he would have to be re-tried.

[9]The Divisional Court upheld the decision of the district judge that on these facts the Belgian authorities had abused the extradition process. Three of the things which informed its thinking are relevant for present purposes. First, as Thomas P said at [31(vii)], the defendant was “in no ordinary sense of the word a convicted person. He may have formally been convicted, but his conviction was consequent upon a procedure under which on any objective basis it was unfair to convict him. No court could therefore regard him as a convicted person.” Secondly, the appropriate way to have secured his extradition was to continue to seek it under the accusation warrant. As Thomas P said at [31(vi)], “[t]here was no reason why the accusation [warrant] could not have been used by the Public Prosecutor; indeed using that [warrant] after the conviction of others was plainly the right course.” Thirdly, the defendant would be worse off if he was extradited under the conviction warrant than he would have been if he had been extradited under the accusation warrant. He would be deprived of the specialty protection by which he could resist being tried on the money laundering charges, and he would be in custody until such time as the Belgian courts set aside his conviction and granted him bail.

[10]Mr Campbell’s position is really no different from that of the defendant in Bartlett. In both cases, the defendants were convicted in their absence, when they had a valid reason for being absent. In Bartlett, it was because the defendant was contesting his extradition in the English courts. In the case of Mr Campbell, it was because he had not been summoned to attend the trial, and had not been notified of the date and venue of his trial. If the defendant in Bartlett could not be regarded as a convicted person, nor can Mr Campbell. And if the extradition of the defendant in Bartlett could only have been sought on the original accusation warrant, the same is true of Mr Campbell. The irony in Mr Campbell’s case is that the French authorities were right to seek his extradition in 2012 initially on EAW1, the accusation warrant, even though they subsequently thought – wrongly in the light of Bartlett – that they should have been seeking his extradition on a conviction warrant, which was why EAW2 was then issued.

[11]There is nothing to suggest that there was in Mr Campbell’s case a deliberate manipulation of the extradition process, but the fact is that Mr Campbell’s extradition is now being sought on the sort of warrant which Bartlett held was inappropriate. Mr Campbell’s extradition would therefore be an abuse of the extradition process if, as a result of his extradition being sought on a new conviction warrant (EAW2) instead of on the original accusation warrant (EAW1), he was being unfairly prejudiced in this country in his attempts to resist his extradition, or will be unfairly prejudiced in France in his trial or in the events leading up to his trial.

Prejudice in France

[12](i) No entitlement to a retrial. There are four ways in which it is said that Mr Campbell would be prejudiced on his return to France under EAW2 which would not have been the case had he been returned under EAW1. The most obvious, of course, would be if his conviction were to stand. If it were, he could not be extradited. He could only be extradited if he would be entitled to a retrial. That is the effect of sections 20(5) and 20(7) of the Act. The evidence on the topic is said to be unclear. Box D of EAW2 referred only to Mr Campbell having “the possibility to be judged again”. And when further information was sought from the French authorities, they said that he could “request” a new trial within ten days of his return to France. It is said that at no time did the French authorities say that once he had requested a new trial, he would be entitled to one. I do not agree. Box D of EAW2 went on to say that Mr Campbell had ten days after his arrival in France “to lodge an objection … to the judgment in absentia when he … is personally informed of the judgment”, and importantly it added that “[s]uch opposition entitles him to be judged again in his presence”. The word “entitles” shows that the French authorities have no discretion in the matter. Once Mr Campbell has lodged his “objection” to his conviction in his absence – and he can do that simply by telling the prison governor that – he is entitled to a retrial.

[13](ii) Immediate remand in custody. If Mr Campbell was returned to France under EAW2, he would be placed in custody immediately. After all, he would be treated as a convicted and sentenced prisoner. He would have to await the setting aside of his conviction and sentence before he could apply for bail. On the other hand, if he had been returned to France under EAW1, he would have been entitled to apply for bail immediately. I see the theoretical force of this argument, but for all I know there may be no difference in practical terms. It may be that Mr Campbell can lodge his objection to his conviction in his absence as soon as he sets foot in France, and that he will then be taken immediately before a magistrate or a court which will set aside his conviction and decide the question of bail there and then. I cannot just assume that Mr Campbell would be in custody for longer than he would have been if he had been returned to France under EAW1. I note that prejudice of this kind was regarded as significant in Bartlett, but that was because, as Thomas P said at [31(x)], “the next hearing of the Belgian court at which [the issue of the defendant’s bail] would be decided is not for some time”. I cannot assume that that would be the case here. In those circumstances, if this had proved to be decisive to the outcome of the appeal, I would have adjourned the hearing of the appeal to enable the French authorities to provide information about how soon Mr Campbell’s conviction would be set aside and the question of his release on bail would be considered.

[14](iii) Compliance with Art. 6. Both EAW1 and EAW2 set out the articles in the French Customs Code which were relevant to Mr Campbell’s case. One of them was Art. 418, but that is said to have been mentioned only in EAW2, not EAW1. It is true that it is not specifically mentioned in EAW1, but EAW1 talks of “Art. 414 et al”, which could well refer to Art. 418. But assuming for the moment that Art. 418 was not referred to in EAW1, it is said that Mr Campbell will be prejudiced in a trial to which Art. 418 applies in a way in which he will not be in a trial to which Art. 418 does not apply.

[15]Art. 418 provides:

“Goods in the category of those which are prohibited from entry or heavily taxed or subject to domestic consumption taxes should be deemed to have been smuggled goods and goods in the category of those whose exit is prohibited or subject to rights shall be deemed to be an attempt to export contraband when, even when accompanied by a document certifying their placing under a suspensive customs procedure with an explicit obligation to have them go through a customs office, such goods have bypassed customs without fulfilling that obligation.”

The evidence of a French lawyer, Mme Malaury Ripert, is that Art. 418 “creates a presumption of guilt and reverses the burden of proof which is normally incumbent on the accuser (that is to say the prosecutor) and not Mr Campbell”. It is said therefore that if Mr Campbell is tried in a trial to which Art. 418 applies, the trial would not be compatible with his right under

Art. 6(2) of the European Convention on Human Rights

to be presumed innocent until proved guilty.

[16]I note Mme Ripert’s evidence, and had I had to consider whether to accept it, I might well have questioned it. Since the allegation against Mr Campbell relates to the exportation from France of the cigarettes rather than their importation, it is the second part of Art. 418 which is relevant. It looks to me as if it merely provides that items which are exported can be regarded as having been exported unlawfully even if there is documentary proof that they were held with a view to proceeding through customs. But even if Art. 418 reverses the burden of proof because it deems the cigarettes to have been exported unlawfully, Mme Ripert’s evidence does not state how French law deals with provisions which reverse the burden of proof to make them Art. 6(2) compliant. For all I know, the French courts have the same mechanisms as we have to enable us to read down provisions to make them Art. 6(2) compliant. The answer would be to do that which the Divisional Court did in Okendeji v Government of the Commonwealth of Australia

[2005] EWHC 471 (Admin)

, which is to adjourn the hearing of the appeal to give the French authorities the opportunity to file evidence about(a) whether Art. 418 would in fact apply to Mr Campbell’s retrial if he were returned to France under EAW2,

(b) whether it is in truth a provision which reverses the burden of proof and requires Mr Campbell to prove his innocence, and

(c) if so, whether the French courts would seek to ensure that it was applied in such a way as made it Art. 6(2) compliant, and if so how.

[17]Mr Summers did not feel able to argue against such a course if the issue proved to be decisive to the outcome of the appeal. Although this would amount to new evidence on an issue which was before the district judge, the issue only arose because in the course of the hearing the district judge had enquired about the various provisions of the French Customs Code referred to in the two warrants. It was after the conclusion of the hearing and in the period during which the district judge had reserved judgment that Mme Ripert’s advice was sought and sent to the district judge, and it was only then that the possibility of one of those provisions amounting to a reverse-burden provision came to light. Of course, this argument is a separate ground of appeal in itself. If the reference in EAW1 to “Art 414 et al” is to be regarded as including a reference to Art. 418, there is no difference between EAW1 and EAW2 in this respect, and the foundation of this part of the argument that Mr Campbell’s extradition to France under EAW2 would be an abuse of the extradition process disappears. Instead, the argument would be that Mr Campbell’s extradition to France (whether under EAW1 or EAW2) would be barred under section 21(2) of the Act (which again is in Part 1), which prohibits someone’s extradition where it would be incompatible with their Convention rights.

[18](iv) A more severe sentence. One of the articles in the French Customs Code referred to in EAW2, but not specifically mentioned in EAW1, is Art. 419. Again, the question arises whether the reference in EAW1 to “Art. 414 et al” is to be regarded as including a reference to Art. 419, but if it is not to be so regarded, it is said that Mr Campbell’s sentence if he is convicted following a trial to which Art. 419 applies could be more severe than one following a trial to which Art. 419 does not apply. That is because Mme Ripert’s evidence is that Art. 419 “… expressly provides [that Mr Campbell] will be condemned to the same penalty as the person who has provided the merchandise to him and who may have a more important role than Mr Campbell. In addition this article contravenes (is in contradiction with) in my opinion the principle of personalisation of penalty which allows to take into account all the surrounding circumstances, the situation, and the personal circumstances of the accused for fixing the penalty.” There is no question of Art. 419 not being Art. 6 compliant, and so this argument is dependent on the correctness of the assertion that Art. 419 is not included in the words “Art. 414 et al” in EAW1. If that issue proved to be determinative of the outcome of the appeal, I would have adjourned the hearing of the appeal to give the French authorities the opportunity to file evidence about whether Art. 419 would in fact apply to Mr Campbell’s retrial if he were returned to France under EAW2.

Prejudice to the extradition process

[19](i) Lack of sufficient information in EAW2. There are two ways in which it is said that Mr Campbell has been unfairly prejudiced in his attempts to resist extradition under EAW2 which would not have been the case had his extradition been sought under EAW1. The first arises because the information to be given in a conviction warrant is different from that to be given in an accusation warrant. The information which section 2(6)(b) of the Act requires to be given in a conviction warrant includes “particulars of the conviction”, whereas the information which section 2(4)(c) requires to be given in an accusation warrant is “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”. The prejudice which Mr Campbell is said to have suffered is that he has been denied the information which he would have been given if his extradition had been sought under an accusation warrant.

[20]I cannot go along with this argument at all. With one possible exception, EAW2 gave all the information which an accusation warrant would have been required to give. The possible exception relates to the four previous consignments. Information about the “place” where those previous consignments had been collected from was given, namely Buret’s premises. The only information which was not given was the “time” (by which is meant, I think, the date) when those previous consignments had been collected from Buret’s premises. But that presupposes that the offence which Mr Campbell is alleged to have committed relates to all five consignments. In fact, the warrant said in box E (wrongly called box C in the translation) that it relates to only one offence, and the only sensible reading of the warrant in the light of that is that the offence relates solely to the consignment which was intercepted, the evidence of Mr Campbell’s involvement in the four earlier consignments being(a) part of the evidence for which his involvement in the last consignment was to be inferred, and

(b) relevant to the gravity of his involvement in the last consignment. I have not overlooked the fact that the warrant said in box C that Mr Campbell and Mr McCormack were convicted of smuggling the goods between 1 and 21 February 2005, but that is not inconsistent at all with the offence relating only to the last consignment. The arrangements for the despatch of that consignment had to have been made beforehand, and the period of 1 to 21 February 2005 must have been intended to cover that.

[21]The offence for which EAW2 sought Mr Campbell’s extradition was described in box E as “smuggling highly taxed goods with two aggravating features”, namely that the goods were “dangerous for public health” and that the offence was committed by “an organised gang”. Moreover, box E classified the offence as one of “fraud” rather than “counterfeiting and piracy of products”. It is said that the information given in EAW2 does not enable Mr Campbell to know whether he is being prosecuted for dealing in counterfeit goods or for tax evasion. It is argued that that ambiguity would have caused the warrant, if it had been an accusation warrant, to fall foul of what the Divisional Court decided in Dhar v National Office of the Public Prosecution Service of the Netherlands

[2012] EWHC 697 (Admin)

. In that case, an accusation warrant in which the defendant was accused of money laundering referred to funds received by the defendant which “were paid to suspected drug-traffickers in the Netherlands”. It was unclear whether these funds related to funds which had in the past been paid to drug-traffickers, or whether they had only been paid to drug-traffickers after they had been through the defendant’s hands. That ambiguity was held to be fatal to the warrant because it meant that the defendant did not know the role he was alleged to have played in the enterprise.

[22]I do not think that there is any ambiguity here. The allegation is unquestionably tax evasion. That fits in both with the description of the offence and with the way it is classified. The fact that the cigarettes were described in the section of the warrant which set out the facts of the case as counterfeit did not mean that the fact that they were counterfeit was an ingredient of the offence. The fact that they were counterfeit either was just part of the narrative or constituted the aggravating feature of dangerousness since they would not have been made with the quality control associated with the manufacturing methods of recognised manufacturers.

[23]There is a subsidiary argument here which is a separate ground of appeal and is not dependent on the argument that the French authorities abused the extradition process. It is that the conviction warrant on which Mr Campbell’s extradition was being sought, EAW2, did not contain sufficient particulars of his conviction. In Sandi v Craiova Court, Romania

[2009] EWHC 3079 (Admin)

, Hickinbottom J said at [34]:

“… adopting a purposive approach, in a conviction warrant case, the requested person will need to have sufficient details of the circumstances of the underlying offences to enable him sensibly to understand what he has been convicted of and sentenced for – and to enable him to consider whether any bars to extradition might apply. In the light of that, and having regard to Article 8(1) of the Framework Directive, I consider that it will almost always be necessary for a conviction warrant to contain the number of offences for which the requested person has been convicted – and some information about when and where the offences were committed, and the requested person’s participation in them, although not necessarily in the same level of detail as would be required in an accusation warrant. Furthermore, commonsense dictates that it is likely that more particulars will be appropriate in more complex crimes such as fraud than in crimes such as simple theft. However, there is no formula for appropriate particularisation. Each case will depend upon its own facts and circumstances.”

[24]The argument is that the information given in EAW2 left Mr Campbell in the dark about what he was supposed to have done. For example, he did not know when the four previous consignments had been delivered, nor the route which was used, nor whether they all went to the same destination in Ireland, nor who the people were who were actually involved in their despatch and delivery, nor whether they were delivered successfully or whether they were intercepted. It is said that the absence of information of that kind prevented Mr Campbell from being able properly to consider whether there were any other bars to his extradition. For example, without knowing the details of the other four consignments or the route they took, it is not known whether the prosecuting authorities in any other country have been involved in the case, such as to engage the issue of double jeopardy. It is also said that the absence of this information prevents Mr Campbell from asserting his speciality rights in France and arguing that the case he has to meet is wider than the offence for which he was extradited. I cannot accept any of these arguments for the same reason as that in [22] above for saying that Mr Campbell has not been prejudiced in this respect by his extradition to France not having been sought under EAW1. His extradition is being sought for one offence relating to the consignment which was intercepted on 21 February 2005, and the evidence relating to the four earlier consignments is relevant only to(a) the proof of his involvement in the last consignment and

(b) the context in which he should be sentenced for that offence.

[25](ii) Passage of time. Section 14 of the Act (which again is in Part 1) 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 committed the extradition offence or 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).”

Since Mr Campbell’s extradition is being sought on a conviction warrant, he can only argue that it would be unjust or oppressive to extradite him as a result of the passage of time since his conviction on 26 November 2009. If his extradition had been sought on an accusation warrant, he could have argued that it would be unjust or oppressive to extradite him as a result of the passage of time since 21 February 2005 when he is alleged to have committed the offence. However, Mr Campbell will only have been prejudiced by his extradition having been sought on a conviction warrant rather than on an accusation warrant if it would have been unjust or oppressive to extradite him as a result of the passage of time since 21 February 2005, but not as a result of the passage of time since 26 November 2009. I therefore address the question whether it would have been unjust or oppressive to extradite him as a result of the passage of time since 21 February 2005. (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).”

[26]The law on whether the passage of time makes it oppressive or unjust to order someone’s extradition is now tolerably clear. Oppression and injustice are different concepts. As Lord Diplock said in Kakis v Government of the Republic of Cyprus

[1978] 1 WLR 779

(which concerned a provision similar to section 14, namely section 8(3) of the Fugitive Offenders Act 1967) at pp. 782H-783A:

“‘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.”

Oppression is quite a strong word. As Lord Brown said in Gomes v Government of the Republic of Trinidad and Tobago

[2009] 1 WLR 1038

at [31], “the test of oppression will not be easily satisfied: hardship, a comparatively commonplace consequence of an order for extradition, is not enough.”

[27]Having said that, the bar to extradition in section 14 is not limited to cases of “extreme” or “exceptional” injustice or oppression. That would be to put a gloss on the language of section 14 which is not there. That was the thinking behind some of the observations made in another case on section 8(3) of the 1967 Act, Union of India v Narang

[1978] AC 247

, in particular the comments of Lord Edmund-Davies at p. 285F and Lord Keith’s citation with approval at p. 294B-D of what Viscount Radcliffe had said in Zacharia v Republic of Cyprus

[1963] AC 634

at p. 638. That means that the district judge was wrong in the present case to treat as significant that there were “no exceptional features” which could lead him to conclude that there would be injustice or oppression.

[28]There are three other factors which need to be mentioned. First, as Lord Diplock said in Kakis at p. 784G, “[t]he gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would render his return to stand his trial oppressive”. Secondly, as Woolf LJ (as he then was) said in R v Governor of Brixton Prison ex p. Osman (No.4)

[1992] 1 All ER 579

at p.587f-g, culpable delay on the part of the requesting authority may tip the balance in a borderline case. Thirdly, it is sometimes easy to be insensitive to long periods of delay. As Henry LJ said in a memorable passage in R v Secretary of State for the Home Department ex p. Patel (1995) 7 Admin LR 56 at pp.71H-72E:

“Wherever law is practised, justice is reproached by delay. There is a real danger that those of us who have spent a lifetime in the law become enured to delay. So too laymen associate the law with delay, and their expectation of it may harden them to the fact of it. So the years trip off the tongue, and so we reach a position where a citizen may be surrendered to face trial in another state for matters at least nine years stale without examination of the reasons for the length of that delay or the consequences of it. Of course, delay is often inevitable – for instance where crimes are concealed or not detected, or the criminal is in hiding, but that is not this case … So it is we are left with a delay period … of nine to nearly 12 years, with yet some time to pass before trial. It is salutary to look back over one’s own life to evaluate the real length of that period, so as not to regard it just as a figure on a piece of paper. And when in all the circumstances of this case, we additionally consider the six years of false security included in that period, and then set that against the bland few lines dealing with lapse of time in the affidavit in support of the Minister’s decision … , we conclude that the Minister’s decision cannot stand. We judge the irresistible inference to be drawn from the facts in this case is that it would be unjust and oppressive to surrender the applicant, and that the Minister could not properly have reached any other conclusion.”

[29]The delay in this case has been substantial. It may not have been on 21 February 2005 that the French authorities had evidence of Mr Campbell’s involvement in the enterprise, but there is nothing to suggest that it was not soon after that that the evidence came to light. There was then a delay of about four years before anything was done to secure his attendance at his trial, and then another three and a half years before anything was done to secure his extradition. In the meantime, there had been a significant change in Mr Campbell’s circumstances. His unchallenged evidence was that his wife gave birth to their daughter in November 2008. His wife is the principal breadwinner. Last December she was due to change jobs, and that was going to mean that she would be spending more time away from home. Mr Campbell works only part-time so that he can take primary responsibility for the day to day care of their daughter. His return to France now would have a profound impact on his daughter’s relationship with him, his wife will have to give up her job to care for their daughter, and that would impact on their finances, as well as their ability to maintain the mortgage repayments on their house. Had Mr Campbell been informed of the allegations in 2005 – or at any time in the next three years or so – he and his wife would have postponed having any children, and he could have gone to France without any lasting impact on his family. Much of this, of course, applies to many people whose extradition is sought, and it would not, of course, be enough to make their extradition disproportionate to their or their families’ right to respect for their family and private life protected by

Art. 8 of the Convention

. But Art. 8 does not come into play here. The issue here is injustice or oppression as a result of the inordinate delay.

[30]This is, I think, quite a borderline case, but two things tip the case over the line into making it one of injustice and oppression. First, the delay is not just inordinate. It is completely unexplained as well, and the fact that it is unexplained suggests a degree of culpability on the part of the French authorities. Secondly, I do not minimize the charge which Mr Campbell faces, but it is not of the utmost gravity. These facts combined with the significant change in Mr Campbell’s circumstances in recent years lead me to conclude that the passage of time since 21 February 2005 would have made it oppressive and unjust for Mr Campbell to be extradited to France now if his extradition had been sought under an accusation warrant. It would not have been either oppressive or unjust to do so if the relevant period had been since 26 November 2009, and that difference means that it would be an abuse of the extradition process for Mr Campbell to be extradited now.

Conclusion

[31]For these reasons, this appeal must be allowed, and the order of District Judge Coleman for Mr Campbell to be extradited to France on EAW2 must be set aside.