Horvath v Government of the Czech Republic

LORD JUSTICE ROSE: There is before the court an application for habeas corpus. The applicant, a Roma from the Czech Republic, challenges his detention, pursuant to an order for committal made at the Bow Street Magistrates' Court on 7th October 2002 that he await the decision of the Secretary of State for the Home Department on a request for his extradition by the Government of the Czech Republic.

It is said that he was convicted for living off the earnings of prostitution, stealing and obtaining and conspiring to obtain by deception three vacuum cleaners, and falsely pawning them -- all of those offences being said to have been committed as long ago as 1995.

The theft and sale of the three vacuum cleaners is said to have taken place on the 5th and 6th June, and the living off immoral earnings in late August.

On 1st February 1996, the applicant was charged with these offences. Thereafter, he remained, until 1998, at the address of his parents, with whom he was living. In 1998, he married and moved to a new address with his wife, still in the town of Plzen, where he had been living with his parents. He lived there, as he had done with his parents, openly.

On 2nd March, he entered the United Kingdom and, on arrival, applied for asylum. The Czech authorities were immediately notified that the applicant had come to the United Kingdom. It was not, apparently, until 1st September 2000 that they issued a warrant for his arrest, in the light of that knowledge.

An arrest warrant was issued in Plzen on 25th September 2001 and, on 30th May 2002, an extradition arrest warrant was issued from Bow Street. Pursuant to that, on 17th July, the applicant was arrested in Tyneside and, on 12th August, the Czech Republic submitted a request for his extradition.

On 28th August, the Secretary of State issued an authority to proceed and, as I have said, pursuant to that, on 7th October, the Magistrate ordered the applicant's committal to await the Secretary of State's decision for extradition.

On behalf of the applicant, Mr Hines submits that there are, cumulatively, four matters which would render the extradition of the applicant, pursuant to section 11(3) of the Extradition Act 1989, unjust or oppressive.

First of all, Mr Hines submits that the charges are by no means grave. That in relation to the three vacuum cleaners, which Miss Dhir, on behalf of the Czech Republic, does not suggest are of any great value, can, as it seems to me, properly be described as "trivial". The offence of living off immoral earnings, as an offence, is clearly not a trivial offence. That said, there are features of it which, certainly by comparison with some offences of that kind which find their way before the English courts, does not make it one of the gravest.

To Miss Dhir's submissions in relation to that, I shall come in a moment.

The second matter on which Mr Hines relies is the passage of time in the separate periods: first, between 1995 and 2000; and, secondly, between 2000 and 2002.

So far as the first of those periods is concerned, as I have said, the applicant until 1998 was living with his parents at the address known to the authorities, from when he was charged at the beginning 1996. Thereafter, he lived at another address in the same town, and did so, on the evidence, openly.

There is, on the face of it, no explanation in the evidence, such as it is, on behalf of the Czech Republic, as to why it was not possible to notify the applicant in relation to the criminal trial. It is said that he was "ordinarily invited to attend". It is also said that it was not possible to summons him.

It is said that he did not try to appear in February 1999 at the main trial, although ordinarily invited; nor did he appear in April 1999 or September 1999, and it was not possible to summon him to the main trial in October 1999.

That is the extent of the explanation for the period of eight years which has elapsed between the commission of these alleged offences and today.

Mr Hines submits that the third factor to which the court should have regard is that it would be unjust to order his return, bearing in mind that it is already almost eight years since the more serious of these offences is said to have been committed, and, as appears from the warrant of arrest at page 13 of the bundle, it was not even known at that time what the date, or dates, of the alleged offence at the end of August were. Inevitably, there must be a deleterious effect upon the memories of the relevant witnesses in relation to what happened at that time, bearing in mind this is not a case which depends, for example, upon documentary records, kept contemporaneously with the conduct which is said to give rise to the criminal offence.

Fourthly, Mr Hines submits that it would be oppressive to return the applicant, bearing in mind that, at the time when the criminal conduct is alleged against him, he was only 19 years of age, and he is now 27. Furthermore, in the intervening period of eight years, he has acquired responsibility to a wife, to their two children and to the two children of his wife by a previous relationship.

It is pointed out that, both during the period that the applicant lived in the Czech Republic, until the year 2000, and since he has lived in this country, he has not, apparently, fallen foul of the law by committing any other criminal offences. It appears that the limitation period in relation to these offences is probably three years.

If that probability is well-founded, it would follow that the applicant, at the time when the three-year limitation period expired, was still living with his parents. He was certainly still living in the town where he had lived throughout in the Czech Republic.

There is before the court no evidence indicating the sentences which were passed on the co-accused, said to have been convicted in relation to the immoral earnings offence. So no assistance is to be derived from that direction as to the gravity, or otherwise, of those offences.

On behalf of the Government of the Czech Republic, Miss Dhir points out, rightly, that the applicant, being accused of extradition crimes, within the Act, is liable to extradition. He was lawfully arrested, and lawfully committed by the District Judge, on 7th October.

She submits that none of the offences with which the applicant is charged is trivial, although I suspect she recognised that that was a submission which had rather more force in relation to living on immoral earnings than dealing, as is alleged, with the three vacuum cleaners.

She submitted that neither the allegedly trivial nature of the offences nor the passage of time since they are said to have been committed is such as to render it unjust or oppressive to return the applicant to the Czech Republic.

So far as the offence of immoral earnings is concerned, Miss Dhir draws attention to the fact that the applicant is said to have acted in concert with another teenager in persuading a 16-year-old girl to have sexual intercourse with three different men for money on two occasions, including one occasion when she had intercourse with two men.

As to delay, she submits that the applicant has caused the delay, since his failure to appear for trial in February 1999, despite having been, in relation to that occasion, "ordinarily invited" to do so. She also emphasises that he did not appear in April, September or October 1999, the last occasion being that on which the accomplices were tried and convicted.

It is said by Miss Dhir that the only reason why the Czech Republic were unable to find the claimant was because he had failed to notify them of his change of address and had then come to this country without notifying the Czech court.

She submits, so far as injustice is concerned, that there is no evidence that witnesses are no longer available to give evidence. As to the quality of the evidence, the case is uncomplicated. The victims no doubt made contemporaneous statements, and, if there are defects in the victims' recollection, that will operate to the benefit of the applicant.

She points out that the applicant has not identified any potential defence witnesses who may not now be able to give evidence, or to give evidence unimpaired by the passage of time.

Finally, Miss Dhir submits that unpleasant and unwelcome consequences of extradition affecting an individual do not, of themselves, constitute oppression.

As it seems to me, the combination of circumstances in this case is such that it would be oppressive and unjust to return this applicant to the Czech Republic. As Latham LJ pointed out in the judgment which he gave in Kalvenas v Government of Lithuania [2002] All ER, 7th October 2002, paragraphs 19 and 20, the fact that the applicant is young is capable of being a material consideration when assessing the extent to which delay will result in oppression.

The contrast between the 19-year-old who is said to have behaved in the way earlier described and the 27-year-old, who is now the subject of extradition proceedings, is plainly, by reference to the matters to which I have already referred, very great.

The offence of living off immoral earnings, I accept, is not a trivial offence, although the particular details of it, as I have already said, in so far as details are provided in the documentation emanating from the Government of the Czech Republic, does not place it, in my judgment, high in the scale of seriousness in that category of offence.

The delay which has occurred in this case, giving rise not only to the dramatic change in the applicant's circumstances, to which I have already referred, is, as it seems to me, simply not explained by the material submitted on behalf of the Czech Republic Government.

There is no explanation as to what "ordinarily invited" means. There is no explanation as to how that differs, as apparently it does, from "summoned", and there is, as it seems to me, no explanation as to why, between the time of these offences in 1995 and the time when he was charged with them at the beginning of 1996, no further steps in relation to possible proceedings against him were notified to him during the two years or more that he continued to live at the address which the authorities had from the time when he was charged.

It follows, I am unable to accept Miss Dhir's submission that it was the applicant who brought that first period of delay upon himself.

Nor, as it seems to me, as to the subsequent period of delay, when the Czech Republic knew that the applicant had come to this country in the year 2000, is there an adequate explanation for the period of time which thereafter elapsed between March 2000 and the time when the arrest warrant was issued in September 2000, leading to the extradition arrest warrant in May 2002, bearing in mind that the applicant during that period, on the evidence, was living openly in this country.

Accordingly, and for the reasons earlier set out in relation to the fading of recollection, and the personal circumstances of the applicant, I, for my part, conclude that it would be unjust and oppressive to return the applicant to the Czech Republic and, accordingly, I would grant this application for habeas corpus.

MR JUSTICE HENRIQUES: I agree.

MR HINES: My Lord, the applicant has the benefit of a representation certificate. Would your Lordships say a defendant's costs order in respect of his travel?

LORD JUSTICE ROSE: From Manchester, perhaps, is it?

MR HINES: Yes.

LORD JUSTICE ROSE: That is not the same side of the Pennines as Tyneside.

MR HINES: No, my Lord.

LORD JUSTICE ROSE: A defendant's costs order in relation to his travel? An applicant's costs order?

MR HINES: An applicant's costs order, yes.

LORD JUSTICE ROSE: I do not see any reason why he should not.

MR HINES: I am obliged.