Departmento De Investigacao E Accao Penal De Lisboa Portugal, R (on the application of) v Westminster Magistrates Court [2015] EWHC 1194 (Admin)

Case No CO/4004/2014

[2015] EWHC 1194 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 12 March 2015

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE AITKENS

and

MR JUSTICE SIMON

Between

THE QUEEN ON THE APPLICATION OF DEPARTMENTO DE INVESTIGACAO E ACCAO PENAL DE LISBOA PORTUGALClaimant

Between

WESTMINSTER MAGISTRATES COURTDefendant

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MR BEN LLOYD (instructed by CPS) appeared for Claimant

MR ALUN JONES QC (instructed by Kaim Todner) appeared for Mr Azevedo, Interested Party

J U D G M E N T

LORD JUSTICE AIKENS:

[1]I will ask Mr Justice Simon to give the first judgment.

[2]MR JUSTICE SIMON: This is the claimant's application for permission to bring judicial review proceedings, challenging the decision of District Judge Purdy made on 27 May 2014 in which he refused to give his consent so as to enable the claimant to deal with the interested party for a number of offences of dishonesty.

[3]In November 2012, following extradition proceedings under Part 1 of the Extradition Act 2003 and an unsuccessful appeal to the High Court, the interested party, Mr Azevedo, was extradited to Portugal in order to serve the remaining five and a half year sentence that had been imposed for various offences of dishonesty, involving breaches of trust and forgery. The detail of those offences are set out in the judgment of Sir John Thomas, PQBD (as he then was) in the Divisional Court, reported at

[2012] EWHC 3433

Admin on 10 October 2012. In short summary, there were four distinct allegations of dishonesty relating to Mr Azevedo's stewardship of Benfica Football Club. The "Russian footballers" case relating to a transaction in 1999, the "Euro area" case relating to a sale of land in 1999, the "Darkuna" case relating to activities in 1997, and the "Rebafrea" relating to events which occurred in 1993 and 1994.

[4]In relation to each of these cases, Mr Azevedo had been found guilty and sentenced to terms of imprisonment, the sentences being passed following trials of the cases respectively in April 2002, January 2005, October 2006 and March 2007.

[5]In the course of these long proceedings Mr Azevedo was released on parole on 8 July 2004 and moved to London. European arrest warrants were issued and on 12 March 2012 District Judge Purdy ordered his return. As I noted, there was an appeal to the Divisional Court and after the judgment, dismissing the appeal, he was extradited to serve the remainder of his sentence: five and a half years of the aggregate 11 and a half year sentence which had been passed in respect of the four cases.

[6]The matter now comes before the court because the claimant has made three separate requests for Mr Azevedo to be dealt with for additional offences of dishonesty: Request No 1, 5246/06 is a request to deal with him for eight offences of "qualified fraud"; two offences of "attempted qualified fraud", and four offences of "forgery of a true document". These offences are said to have taken place some time between 2004 up to at least 2008.

[7]Request No 2, reference 7189/08 is a request to deal with him in relation to a single charge of "qualified swindling" alleged to have taken place in 2006. Request No 3, reference 3179/07 relates to an offence of embezzlement and an offence of document forgery occurring between 1998 and 1999.

[8]The consent proceedings were began in the Westminster Magistrates' Court and the hearing took place before District Judge Purdy over a number of days in February 2014. The parties made concluding submissions on 17 April and the district judge handed down his decision, refusing consent, on 27 May 2014.

[9]The matter comes before the court on the claimant's challenge to this decision by way of judicial review and the permission application has been referred to this court by Mrs Justice McGowan.

[10]A request for post-extradition consent under Part 1 of the Extradition Act 2003 is governed by sections 54 and 55 of the Act. Materially the issue is whether a court considering an extradition could refuse to do so on the basis of one of the statutory bars set out in sections 11 to 25. The bar which is material on the present application is that contained in section 14 in relation to the passage of time:

"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have (a) committed the extradition offence (where he is accused of its commission)..."

[11]The concepts of an extradition being "unjust" or "oppressive" have been considered in a number of cases and it is not necessary to refer to these in detail since it could not be said that the district judge did not have them in mind. Indeed, he specifically referred to them. Importantly, he referred to a speech of Lord Brown in Gomes and Goodyer v Government of Republic of Trinidad and Tobago [2009] 1~WLR 1038 in which two points were made clear: first:

[12]"Where the requesting state is a member of the Council of Europe the "unjust" test is only likely to be satisfied if the requested person would not be protected from an unjust or unfair trial in the requesting state.

[13]"2: The test of `oppression' is not easily satisfied:

"Hardship, a comparatively commonplace consequence of an order for extradition is not enough."

[14]Mr Azevedo argued before the district judge that consent should be refused for a number of reasons, only one of which succeeded. Judge Purdy rejected the argument that the request was an abuse of process and the argument under section 21 of the Act, of giving consent, would involve a breach of

article 6 of the European Convention

. However, he held that in relation to the passage of time it would be oppressive to grant the request. Having referred to the case of Gomes and the earlier case of Kakis v Government of the Republic of Cyprus

[1978] 1 WLR 779

he said this:

"Without reiterating Mr Jones's complaints of injustice by virtue of trial elongation and thus an express article 6 complaint, I have very much in mind the oppression by elongation of process as a fact caused by the passage of time leading, as Lord Diplock said in Kakis to return him for trial being "unfair"

. Each case on its own facts. This case, taken as a whole, is more peculiar than most. However, it seems to me significant time has elapsed since complaints were known to the prosecuting authorities and investigations commenced. High profile cases, as this certainly is, attract significant resources to pursue and progress through the judicial system. Mr Azevedo may not have cooperated by admitting wrongdoing but he has certainly fully engaged in the process via Ms Cruz, even when in the United Kingdom. I pause long and hard before finding any of the outstanding three EAWs should not be tried on merit following a fair trial process. The more so for a Council of Europe jurisdiction like Portugal; indeed a founding member. However, I do conclude in mid 2014 that it would be "oppressive" given the passage of time since the alleged commission of the outstanding offences and the opportunity for the judicial authority to move far more quickly than, with respect it has, to consent to these further trials. Indeed I am driven, given my clear view of Mr Azevedo's lack of honesty reluctantly to hold that it would be "unfair" for three further trials to be faced now by virtue of the passage of time. Having however reluctantly come to that conclusion, I "must", per section 14/54, refuse this consent request.

[15]Mr Lloyd submits on behalf of the claimant that the district judge erred or at least arguably erred in at least four respects. First, having rejected Mr Azevedo's submission that he would not receive a fair trial if consent were given, he nevertheless held it would be unfair for him to have to face three further trials due to the passage of time. In effect he conflated the two tests of unjust and oppressive. Secondly, he failed to identify the changes in the circumstances of the accused which had occurred during the relevant period which were such as to render extradition, if there had been such a request, oppressive. This was a matter identified as important in the judgment, in the speech of Lord Diplock in Kakis at page 782. Third, he failed to give any or sufficient weight to the seriousness of the offences for which consent was sought. The alleged amounts involved are well over US$1 million. Fourth, the judge was wrong to have found the claimant should have moved far more quickly. Mr Lloyd submitted that the claimant had explained that EAWs had been made at an appropriate and legitimate stage of the proceedings and, in any event, the dilatoriness of the claimant was not the real issue. The real issue was whether it would have been oppressive due to the passage of time to have extradited him to face these charges.

[16]It is clear that Judge Purdy carried out an extremely thorough and careful analysis of the issues and weighed the relevant matters in the balance. Grounds 3 and 4 are really challenges to the weight the judge attached to particular matters and do not, in my view, give rise to arguable grounds. Nor am I persuaded by the other points. What quite reasonably troubled the district judge was the protracted and fragmented process of prosecuting Mr Azevedo. As already noted, some of the new offences for which consent was sought were then 15 or 16 years old, occurring at much the same time as the offences for which he had already been extradited. Furthermore, significant time had elapsed since the facts were known to the claimant in relation to each of the three requests. The prosecution was well resourced and very closely focused on Mr Azevedo and his dealings as the extradition process for a very large number of similar offences had shown. The Portuguese authorities have explained that they could not for procedural reasons charge and therefore could not issue the EAWs before they did. But this is not dispositive of the issue under section 14. The change of circumstances can be incremental following from dilatory pursuit of prosecutions which may result in what is oppression, after a passage of time.

[17]The judge regarded it as a peculiar case, and it was. He had dealt with the case throughout and had formed no favourable view of Mr Azevedo's honesty. Nevertheless, he felt driven to the conclusion that due to the passage of time it would have been oppressive to extradite him.

[18]Although Mr Lloyd, in his attractive submissions, made progress in closely analysing the judgment of the district judge in relation to this matter, he has not shown, in my view, that there has been an arguable error of law and I would therefore refuse permission to bring these proceedings.

[19]I would also note that the claimant faces an additional objection: delay in issuing the judicial review proceedings. CPR 54.5 requires that a claim form must be filed:

[20]"(a) promptly; and (b) in any event not later than three months after the grounds to make the claim first arose."

[22]The district judge's decision was made on 27 May and the claim form was issued on 26 August 2014, one day within the three month limit. The claim was not complicated and involved a challenge on one relatively confined issue. Although an explanation has now been offered, the delay in circumstances when the request was refused, because of the passage of time, was more than unfortunate. it might well have been reason enough to refuse permission, even if I had not formed the view that it should be refused on the merits. In any event, for the reasons I have given, I would refuse permission.

LORD JUSTICE AIKENS: I agree.

[24]MR JONES: I do apply for costs as the interested party.

LORD JUSTICE AIKENS: Yes, these I assume are the cost of the whole proceedings.

[26]MR JONES: Well, my Lord, no. Below the defendant was legally aided.

LORD JUSTICE AIKENS: These are the costs of just this application.

[28]MR JONES: Yes, my Lord, they are.

LORD JUSTICE AIKENS: Totaling £107,240.41, including VAT.

[30]MR JONES: Yes.

LORD JUSTICE AIKENS: It is a very large sum, is it not?

[32]MR JONES: It is, my Lord. I have been myself once to Portugal - clearly to take instructions from Mr Azevedo. My instructing solicitor, Ms Todner, who sits behind me, has been twice. We have had numerous telephone conversations with Miss Cruz, through whom we seek to take instructions, although they were fragmented. My Lord, I hope it may be of assistance to the court, this is a very complicated case with a very difficult background. If I could just - we had to think very carefully in the acknowledgment of service as well as the layout, to lay out additional grounds which we say should be upheld which, my Lord, includes up-to-date circumstances. For example, your Lordship will have seen that the whole case before Sir John Thomas in 2012 proceeded upon the basis that parole would be granted within a few weeks. Mr Azevedo is still in custody and is still expecting -- he has a parole application in May, but I believe that he is likely to stay in prison until July 2012.

LORD JUSTICE AIKENS: 2016.

[34]MR JONES: 2016. If this matter had proceeded to judicial review we would have been arguing that there was the speciality rule. Your Lordship is --

LORD JUSTICE AIKENS: Just hold on, Mr Jones. This is your application for costs.

[36]MR JONES: Yes.

LORD JUSTICE AIKENS: What is the process by which you are saying these costs should be set?

[38]MR JONES: If your Lordships think that those costs are on the face of them too high then we would say that -- (note handed). It includes £17,000 for translating documents as well.

MR JUSTICE SIMON: But this was an application for permission.

[40]MR JONES: It was indeed, my Lord, yes.

LORD JUSTICE SIMON: And the permission related to a matter that was argued without reference to any evidence. I think there was a short document from you, acknowledgment of service.

[42]MR JONES: Yes.

[43]MR JUSTICE SIMON: Standing back just for a moment, it does seem on the extravagant side, although no doubt the costs were perfectly reasonably incurred, to make an order in your favour on a short permission application of £44,000.

[44]MR JONES: I would respectfully urge the court then to say it ought to be assessed and taxed outside court.

LORD JUSTICE AIKENS: Do you want to say anything, Mr Lloyd?

[46]MR LLOYD: Yes, we would respectfully submit that the issue of fact, as my Lord has observed, is a narrow point that we litigated or sought to litigate at the permission stage and we resist the application for costs. The consequence would be there is no order for costs at the permission stage. If there is to be an order for costs it is limited solely to the need to respond by way of acknowledgment of service. the court will have seen the 2-page note that deals with the issue that we sought to litigate. We have not received, for example, anything, any document that has had to be translated.

LORD JUSTICE AIKENS: In fairness to Mr Jones, the order was made Mrs Justice McGowan that the matter should be adjourned in order that the interested parties should be represented. So there is that.

[48]MR LLOYD: Of course.

LORD JUSTICE AIKENS: By analogy with the proceedings in the civil division, where a permission to appeal application is adjourned in order that the respondent can be represented, then it is fair to say in those circumstances prima facie the respondent is entitled to their costs of that hearing if the permission is refused.

[50]MR LLOYD: My Lord, yes.

LORD JUSTICE AIKENS: So there is that point to bear in mind. Is there anything else you want to add?

[52]MR LLOYD: My Lord, if the court is minded to grant costs we would ask that they are assessed and we be given an opportunity to respond to the figures in writing which we would say we were served with yesterday.

LORD JUSTICE AIKENS: Who would be the assessing body?

[54]MR LLOYD: Having received the application yesterday, I have not yet checked whether the appropriate application is for costs from central funds in relation to this criminal matter essentially. I do not know whether the application is against the Crown Prosecution Service or whether it is an application for costs out of central funds. I understand the application is against the Crown Prosecution Service.

LORD JUSTICE AIKENS: So therefore --

[56]MR LLOYD: I believe the court --

LORD JUSTICE AIKENS: -if we said in principle Mr Jones should have the costs of this hearing and anything reasonably associated with it but we think that the sum claimed is far too large, and it therefore must be assessed, which body assesses it? Does it go to a costs judge or what?

[58]MR LLOYD: I think that the court looks at rule 44. There is to be a --

LORD JUSTICE AIKENS: Really.

[60]MR JONES: Costs judge.

LORD JUSTICE AIKENS: Costs judge.

[62]MR JONES: Yes.

LORD JUSTICE AIKENS: Is there anything else you want to add?

[64]MR LLOYD: No, save to say I have indicated I have not had a chance to respond to this application. I would appreciate, if the court is minded to grant an order for costs, a short period for me to put in a written response to the application.

LORD JUSTICE AIKENS: If we are having to deal with it and we thought that costs should be awarded in principle then of course you would have that opportunity.

[66]MR LLOYD: I am grateful.

LORD JUSTICE AIKENS: But we are at one stage back from that. We are just going to retire for a moment. (A short adjournment)

LORD JUSTICE AIKENS: Mr Jones, we are prepared to accept that on this occasion where it is a renewed application and the judge has ordered that the interested party be represented that you should have some costs of this hearing, but it is limited frankly to the issues which are raised, which are short; they are not factual; they concern the grounds only and that is very limited. So in those circumstances what we are inclined to do is to say we would summarily assess these costs, if you are prepared for that process and Mr Lloyd also. Are you?

[69]MR JONES: Yes.

[70]MR LLOYD: My Lord, I am not, with respect, because I received this document yesterday.

MR JUSTICE SIMON: You can submit that it is too much and you can submit it is much too much.

[72]MR LLOYD: I certainly do that.

LORD JUSTICE AIKENS: And you can say it three times. Is there much more that needs to be said?

[74]MR LLOYD: No, my Lord. Can I make one point of correction? It matters not but this is the first determination of our application; it is not a renewed application.

LORD JUSTICE AIKENS: No, it is not renewed. It is an adjourned one.

[76]MR LLOYD: Yes. So we have not sought to renew against a refusal.

LORD JUSTICE AIKENS: No, no. I understand that.

[78]MR LLOYD: I am grateful.

LORD JUSTICE AIKENS: And there can be no question of this coming out of central funds. It must be an order for costs against the CPS Extradition Unit who will then presumably recover it from the Portuguese authorities themselves for whom they act. Yes?

[80]MR LLOYD: I am sure they will try. Can I make a general observation, if I may. That is, as I observed in the grounds, there is no statutory right of appeal in consent proceedings and so we are forced to use the judicial review route, as it were, which of course involves procedurally the extra step of requiring permission and so on. The Crown Prosecution Service reflected, I would of course submit carefully, before deciding to acknowledge. hence, the delay I have indicated in the notes. But I accept of course, as I say, that the figure sought is eye-watering. We would oppose that amount and if the court is able to make a summary assessment, so be it.

LORD JUSTICE AIKENS: We summarily assess the costs of this renewed hearing, the adjourned hearing rather, at £5,000 plus VAT to be paid by the CPS Extradition Unit within 14 days.

[82]MR LLOYD: My Lord, knowing --