Daly v Federal Republic of Germany

Wednesday, 25th June 2003

1. LORD JUSTICE ROSE: This is an application for Habeas Corpus. The applicant challenges his detention pursuant to an order at Bow Street Magistrates' Court on 7th May 2003 for his committal to await the decision of the Secretary of State for the Home Department in relation to a request from Germany for his extradition. His extradition is sought in relation to charges of attempted robbery and assault with intent to rob, arising from an incident on 18th February 1994.

2. It is said that he entered a snack bar, holding a broken-off wooden chair leg. He placed himself beside a witness, who worked at the snack bar, raised his right arm and attempted to hit the witness on the head. It is said that, in so doing, he acted with the intention of subsequently taking money from the witness and appropriating it for his own use:

"However, the witness managed to ward off the attack and to take the chair leg out of the applicant's hand".

3. The applicant made certain admissions to those investigating this matter, which included an admission that he was present at the snack bar, but that he was drunk at the time.

4. The chronology of events in this case is of importance and bears outlining at this stage.

5. The applicant was arrested on 18th February 1994. He was released from custody three days later and his passport -- as will emerge, he is a native of Ireland -- was not retained.

6. A warrant for his arrest was issued on 22nd August 1994 and, it is said, by evidence filed on behalf of the German Government, with the leave of this court, as late as this morning, that it was not served because he had moved from the address known to the authorities.

7. However, the applicant remained in Germany until 1995, certainly the best part of a year, if not a year, after the events giving rise to the allegations against him. During that time, he says he lived openly in Germany and, on one occasion, in 1995, he was detained by the German police for evading a railway fare. He was kept in custody for several hours. He had his passport checked and he was released.

8. Thereafter, he left Germany and came to England. When he left Germany, he had his passport checked. It was not suggested that he might not leave.

9. Having come to this country, he lived and worked in Brighton for several months. In March 1996 -- that is just after two years after the offences were said to have been committed -- he was, as is revealed by the recent evidence from the German government, placed on the International Wanted Persons List.

10. As Mr Hardy, on behalf of the Governor of Brixton Prison and the Government of Germany, rightly concedes before us, there is not a scrap of evidence to explain why no such step was taken for a period in excess of two years.

11. There is no scrap of evidence before us to explain how, on the two occasions to which we have referred, when his passport was examined in 1995, it came about that he was not informed that he was required to answer these charges. There is no explanation, on behalf of the German government, dealing with their knowledge of, or the way in which they dealt with, the fact that the applicant continued to live in Germany for a year or so after the events of February 1994.

12. The only explanation proffered is that he "cleared off" from the address which he had given in February 1994, an address at which, according to his own evidence, he certainly remained for four months.

13. The fact that, in March 1996, he was put on the International Wanted Persons List was, of course, unknown to the claimant. He, meanwhile, in late 1995, went to Dublin and he lived there openly until the year 2002, working as a concrete finisher. Ireland, as I said at an earlier stage, is the country of which he is a national.

14. In August 2001, he had a son born in Ireland to his then partner. In July 2002, he came to this country again, this time to work in Tamworth in Staffordshire as a concrete finisher on the M42 and, since September 2002, he has lived openly in Lichfield with his current girlfriend.

15. That sojourn was interrupted on 28th February because he was arrested in Staffordshire for alleged theft from a motor vehicle. That ultimately led not to prosecution, but to a caution. But it also led to his arrest by the Staffordshire police on an extradition warrant.

16. The Secretary of State gave his authority to proceed on 9th April and, thereafter, the events, to which I briefly referred at the outset of this judgment, took place.

17. There is no issue between Mr Hardy, on behalf of the respondents, and Miss Sikand, on behalf of the applicant, as to the relevant law. Section 11(3) of the Extradition Act 1989 is pertinent. It provides, omitting immaterial words:

"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that --

. . .

(b) by reason of the passage of time since he is alleged to have committed it . . .

it would, having regard to all the circumstances, be unjust or oppressive to return him".

18. It is common ground that the passage of time has to be measured from the date of the commission of the alleged offence; that if it is unjust or oppressive to return him, there is no room for the exercise of any residual discretion in the court.

19. Where the passage of time is due to dilatory conduct on behalf of the requesting government, it tells in favour of the fugitive. Delay, on the part of the applicant, cannot, save in the most exceptional circumstances, count towards making his return unjust or oppressive. The meaning of "unjust and oppressive" was identified by Lord Diplock in his speech in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779. At page 782, Lord Diplock said:

"'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".

20. The submission which is made by Miss Sikand, on behalf of the applicant, is that it would be both unjust and oppressive for this applicant to be returned.

21. The reasons for the nine-year delay are dealt with in evidence of such sparsity, as I have already identified. The applicant himself is not, Miss Sikand submits, shown to have been in any way responsible for the delay which has occurred, and, if, contrary to Mr Hardy's submission, the evidence suggests dilatoriness on the part of the requesting State, that is a factor to be considered.

22. Miss Sikand admits that the requesting government were well aware, as they must have been, that the applicant is an Irish national and that he was working in Germany at the time when he was arrested by them, on a part-time basis, which might well lead, in due course, to his returning to the country of his origin.

23. But, as I have indicated, there was no attempt to impose conditions upon his movements, nor was his passport retained.

24. As to the fairness of a trial, Miss Sikand points out that nine years will inevitably have diminished the recollection of material witnesses. The applicant's difficulty, on which Mr Hardy places stress, is that, being drunk at the time, as he claimed at the time, his recollection of events may well be no better nine years after the event than it was at the time.

25. That, of course, does not apply to other witnesses, in particular those with whom he may have been drinking. It may be -- one, of course, has no material before this court as to German law -- that the extent of his drunkenness, and how it came about, is a matter of materiality, bearing on his intention, so far as the German courts are concerned.

26. After this lapse of time, Miss Sikand submits, it would be quite impossible to trace relevant witnesses in relation to those matters.

27. As to the admissions in relation to the offences, said to have been made by the applicant, his recollection, such as it is, is that he made those admissions as a result of promises of release by various police officers, whose names, of course, he cannot now remember.

28. It is to be noted that he is a man with no criminal convictions, and it is also to be noted, as Mr Hardy rightly concedes, that this was an attempted robbery of pitifully amateurish skill, even on the version of events propounded by the government of Germany.

29. The applicant himself, in that regard, claims to have a recollection of someone having a knife, that knife having played a part in the disarming process to which I earlier referred. Clearly, nine years after the event, those matters are likely to be, at best, shrouded in the mists of recollection.

30. We are not here dealing with a case, as was the court in the case of Rose, on which Mr Hardy relied, which depends on contemporaneous documents.

31. Miss Sikand further submits that, having regard to the chronology of events, to which I have referred, the applicant has been lulled into a sense of believing that there would be no proceedings against him, having regard to the events which occurred in Germany as long ago as 1995, and the events which have failed to occur, so far as he is concerned, since then.

32. Mr Hardy accepts that the only degree of blame which could be said to attach to the applicant, if indeed any blame could be said to attach at all, would be on the basis that he had "cleared off".

33. He submits that the present case is nearer to Re Rose, to which I have already referred, Unreported, DC, transcript of 14th February 1994, rather than to the case of Sagman, DC, 18th June 2001, which, together with ex parte Patel [1995] 7 Admin LR 56 and R v Secretary of State for the Home Department ex parte Sinclair [1992] Imm AR 293, were authorities on which Miss Sikand relied in support of the general proposition that, if delay is sufficiently long, it is capable of giving rise, in itself, to oppression.

34. Mr Hardy, as I have said, submits that the present case is close to Rose, where extradition was ordered by this court when the applicant was required, in relation to 77 charges of substantial fraud. It is to be noted, as appears from the last paragraph of Kennedy LJ's judgment, that, in that case, the applicant knew that, in 1998, a police investigation had begun and, even by early 1993, "she could hardly have believed that she had heard the last of it".

35. That is very different from the present case, where, on the chronology which I have set out, the applicant could very well have believed that he had heard the last of it.

36. Indeed, Mr Hardy, with characteristic realism, accepted that there may have been induced in the applicant a feeling of security, by reason of the events which I have described.

37. Mr Hardy submits, however, that there would be no injustice or oppression in returning the applicant to Germany.

38. For my part, I profoundly degree. Having regard to the chronology which I have set out, it would manifestly be unfair to return this applicant to Germany, in the face of the inability, as it seems to me, to have a fair trial, and the impression on the applicant's mind resulting from delay. Therefore, for my part, the writ of habeas corpus should go.

39. MR JUSTICE DOUGLAS BROWN: I agree.

40. MISS SIKAND: There is a question of costs.

41. LORD JUSTICE ROSE: Do you have a representation order?

42. MISS SIKAND: My Lord, I am publicly funded, yes.

43. LORD JUSTICE ROSE: I think we are talking about the same thing.

44. MISS SIKAND: I think I need to ask for a detailed assessment. I am not entirely sure. It used to be legal aid taxation, but I think I need to ask for a detailed assessment of costs, but I could be wrong.

45. MR HARDY: My Lord, forgive me. The assessment is the only order that your Lordship needs to make.

46. LORD JUSTICE ROSE: Thank you.

47. That is the order which we do make.

48. MISS SIKAND: I am grateful.

49. LORD JUSTICE ROSE: I understand from the Associate that the public funding certificate has not been lodged. Is it in court?

50. MISS SIKAND: My Lord, I do have an emergency certificate. I do have a copy here.

51. LORD JUSTICE ROSE: If you could lodge that with the court, then most people will be happy.

52. MISS SIKAND: I shall do so.

53. LORD JUSTICE ROSE: Anything else?

54. MISS SIKAND: My Lord, no.

55. LORD JUSTICE ROSE: Thank you very much.