Harjette v Central Investigating Court Number 2 Madrid Spain [2014] EWHC 4415 (Admin)

Case No CO/4687/2014[2014] EWHC 4415 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 8 December 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
EDWARD GEORGE HARJETTEAppellantv
Between
CENTRAL INVESTIGATING COURT NUMBER 2 MADRID SPAINRespondent
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 G Irwin (instructed by Keppe & Partners) appeared for AppellantMr B Keith (instructed by the Crown Prosecution Service Extradition Unit) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Blake given on 3 October 2014 directing that the appellant be extradited to Spain to stand trial for a number of offences of fraud.[2]He was involved with some 14 other defendants in substantial fraud emanating from Nigeria. It is not necessary to go into the details. Suffice it to say that there has been produced from the Spanish authority a very substantial judgment given in September 2014 which sets out the convictions and the basis I assume of the convictions of those who were in Spain and the sentences that were imposed upon them. Albeit the appellant has made a statement in which he denies that he was guilty of any offending, if convicted he would receive, judging by the sentences imposed upon the other defendants and the indication of the involvement of each in the frauds, of something, as Mr Irwin suggests, between 2 and 3 years' imprisonment. Certainly, if convicted, a prison sentence is a virtual certainty having regard to what was imposed on the others, and for a relatively substantial period, albeit of course the Spanish court would no doubt have regard to any mitigating factors, and the mitigating factors which would be highly material relate to the appellant's physical health.[3]He was diagnosed, as it is said accidentally, in the sense that it was picked up when he was seeking medical advice for another matter, with prostate cancer. Sadly, that cancer had spread from the prostate and now is affecting his lungs and bones. The treatment which he is undergoing in this country is at best palliative. The condition is terminal and there is no issue as to that. It is very difficult to give any prognosis as to how long he may have having regard to such treatment as is available. What he has been having is hormonal treatment. This is within a trial known as STAMPEDE.[4]It is far from clear to me precisely what he does within that trial or whether he receives any treatment which is peculiar to that trial. Judging by the information in the doctors' reports that I have seen it would appear that the hormonal treatment is treatment that he would in any event be receiving independently of the STAMPEDE trial. The point is that the STAMPEDE trial is not available in Spain. But it would seem, although it is not entirely clear, that the hormonal treatment may be available. I say may be because regrettably the Spanish authority failed to give information that was requested by the CPS back in May this year. What was said to the authority was that the appellant had been diagnosed in October 2013 with advanced prostate cancer that had spread to other parts of his body including lungs and bones and that the illness was terminal and the doctors had advised him in 2013 that he had some 12 to 18 months left to live. It in fact has been indicated in the latest report from his oncologist, Dr Frim, that he could survive for up to 4, even 5, years but I am told by Mr Irwin that the problem is that he is now suffering considerable pain from the bone cancer despite the radiotherapy treatment that he has had and which was intended to alleviate the pain and which cannot apparently be repeated. In the circumstances there is a real fear that the effect of the hormonal treatment is likely to be coming to an end, as it were, which would mean that the prognosis must be less optimistic, if that be the right word, so that there is a real fear that he has no great time left to live. However, as I say, it is not entirely clear from the information available, and since there has been no answer from the Spanish authorities about it, whether hormonal treatment, if that is still to be regarded as possibly having effect, would be available in Spain.[5]The request attached three letters from his doctors setting out the diagnosis, the reference to the STAMPEDE trial and the letter which indicated that that trial was not available in Spain and they were asked whether because of the diagnosis they were still seeking his surrender to stand trial. They were also asked why the warrant had not been issued until March 2014. So far as that is concerned, the offences took place in 2010 but it was not until 2012 that the Spanish authorities were in a position to indicate that prosecution was to take place. It is clearly a complex fraud, if only because in the end 14 defendants were before the court, and there is no reason to doubt that it reasonably took some 2 years for the investigations to proceed to a prosecution. It was known that the appellant was in this country. Some of the main evidence against him relates to interception of calls made, some of them when he was in this country. But it took some 2 years for the warrant to be issued and regrettably the Spanish authorities have not vouchsafed a reply to the request to give a reason as to why the warrant was not issued earlier. They were also asked whether the trial did proceed in April 2014. The fact that eventually the judgment was provided in September indicates that there were trial proceedings, although it is not entirely clear precisely when those took place. Possibly I think they were concluded in May before the judgment was given.[6]I make one comment. In the bundle before me there are a significant number of pages of this judgment but all in Spanish. No translation was provided. Mr Irwin tells me that regrettably he was not provided with this judgment until very recently. There has been a translation of the relevant parts dealing with what happened to the co-defendants. That has been provided by Mr Keith through his own efforts via Google Translate and there is gratitude to him for the efforts that he has made in that regard. I think he is not, as I understand it, a Spanish speaker himself. However, it is very unfortunate and a waste of time and money for the court to be burdened with so many pages in Spanish without any translation and without anyone until Mr Keith did what he did to extract from the judgment what might be relevant in considering the case against the appellant. However, as I say, it has been at least possible to show that this was a very substantial fraud indeed, with lots of money involved and, as I say, the level of sentences that have been imposed upon those who have been convicted.[7]The question is accordingly whether it would either be oppressive within the meaning of section 14 of the Act or disproportionate within Article 8 of the European Convention in the circumstances to extradite this appellant.[8]Section 21A of the 2003 Act was in force but it is clear that this was a serious offence which would carry imprisonment and accordingly there is no separate proportionality to be considered within the meaning of section 21A.[9]It occurred to me to wonder at one stage whether section 21B could be made use of but no-one has suggested that that would be appropriate in the circumstances of this case and certainly no arrangements have been made with the Spanish authorities in relation to that and that should, if it was material, have been done before the District Judge's decision.[10]The District Judge in a detailed ruling decided in the end that it would not be disproportionate or oppressive to extradite the appellant. He said that he was troubled by the failure of the judicial authority to respond to the request from the CPS but he went on:
"However upon reflection I see no reason to conclude from this that the judicial authority would not honour their treaty obligations in this regard and that his cancer treatment would not continue. Sadly prostate cancer is a common condition for a man of the requested person's age and I have no reason to believe that the judicial authority in Spain will not be able to provide appropriate medical treatment for him."
[11]With respect to the District Judge, that perhaps does not reflect the true state of this appellant. It is not a case of prostate cancer being a common condition. Certainly that may be so. Simple, if I may put it that way, that is to say a prostate cancer which has not spread, is undoubtedly something that can be treated and I have no doubt would be treated in an appropriate fashion in Spain. But, as I have already indicated, this is far from a simple prostate cancer; it has spread to his lungs and to his bones, most particularly to his bones, and the result of that is that it is undoubtedly terminal, that he is likely to be in intense pain, which may well not be able to be properly ameliorated and so will suffer very considerably as a result. The prognosis, as I have said, is far from sure but, as Mr Irwin has said, what he fears is if extradited and dealt with in Spain it may well be that he effectively will not have his family around him at all at his death and is likely not to survive any prison sentence that might be imposed upon him on conviction.[12]The District Judge further indicated in relation to the STAMPEDE trial that it had not affected the treatment that he had received. As he put it:
"On the evidence before me withdrawing from that trial would not affect the manner he would be treated or his prognosis."
[13]He has taken that from the report of the oncologist treating him, Dr Frim, in which she said in terms in paragraph 5 of her report that if he withdrew from the STAMPEDE trial it would not have any negative consequences in respect of his treatment and prognosis because he is receiving the same treatment as patients who have not entered into the trial. That relates to the standard hormonal treatment that he was receiving but it is not clear from earlier correspondence from Dr Frim whether the hormonal treatment would be available in Spain, and the failure of the Spanish judicial authority to answer the request has left it unclear. So for the District Judge to indicate that the treatment would not be affected is certainly not clear and there may be an error of fact in what he has indicated in paragraph 5.[14]The judicial authority was asked thoroughly reasonable questions so that the court here could assess whether in reality this was a case where the physical condition of the appellant was such as would justify exceptionally a decision that he should not be extradited to stand trial for what undoubtedly are serious matters. The court therefore has been left in some doubt as to what the reality is so far as the availability of the treatment that he needs to ensure that the palliative care is kept at its best level. Furthermore, the latest development suggests sadly that it may well be that the prognosis is far less optimistic than it could possibly have been and one is back to the 18 months to 2 years, which would take us to the end of next year.[15]In all the circumstances, and I am particularly influenced, as I have said, by the failure of the Spanish authorities to co-operate with the authorities here, I am persuaded that this is an exceptional case and that it is right that he should not be extradited having regard to his condition. His family life here of course would be interfered with were he extradited and that is sufficient to base a decision that it would be disproportionate. That is a slightly lower hurdle, if I can put it that way, than that applicable in deciding whether it would be oppressive, and in all the circumstances I am persuaded that that is the better way of approaching the matter.[16]In those circumstances, as I say, exceptionally I propose to allow this appeal.[17]MR IRWIN: My Lord, it only remains for me to ask for Mr Harjette's costs.

MR JUSTICE COLLINS: The costs below?

[19]MR IRWIN: The costs here and below. He is not in receipt of public funds.

MR JUSTICE COLLINS: They come out of Central Funds, do they not? Is that right?

[21]MR KEITH: Your Lordship does not have a power to order costs in this court.[22]MR JUSTICE COLLINS: Not in this court. I think I can only order them below.[23]MR KEITH: Yes. So Mr Harjette is entitled to defence costs in the lower court.[24]MR IRWIN: I cannot remember the sum of the order against him.[25]MR JUSTICE COLLINS: It seems crazy and I do not understand why but I think Mr Keith is right that I do not have power to order costs here. I do have power under section 62 of the Act to award costs and I think, as I say, it is Central Funds, and certainly you can have those. You will have to give the necessary information to whoever it is that is responsible. But unless you can find provision that enables me to give costs here, I am afraid, harsh and unfair as that may seem, I do not have any power.[26]MR IRWIN: I am grateful.

MR JUSTICE COLLINS: If you check and you find that I do, feel free to put that in writing.

[28]MR IRWIN: I will. I have not been before the Administrative Court on a case that was not publicly funded before, so I will check.[29]MR JUSTICE COLLINS: Usually there is legal aid in these cases but not always. Feel free to put it in if you find some provision that enables me to do that. You had better notify Mr Keith as well but I do not think, as I say, I am afraid, that there is.