Osawe v HM Prison Brixton

Monday, 28th July 2003

1. MR JUSTICE MAURICE KAY: This is an application for a writ of habeas corpus ad subjiciendum. On 7th March 2003, District Judge Tubbs, sitting at Bow Street Magistrates' Court, ordered the applicant to be detained in custody pending a decision of the Secretary of State whether to remove him to Germany pursuant to the Extradition Act 1989 in order that he may face trial there on a charge of manslaughter.

2. A brief history of the matter can be stated as follows. On 26th June 1993, a man known as Muvis Joseph was stabbed to death in a house in Kassel in Germany. The police began to investigate the matter immediately and within a very short space of time, they suspected that the person responsible was someone known to them as Oghionmwam Festus Ogieva-Okumbor, as set out in page 4 of the bundle that was before the District Judge. On 9th July 1993, the German authorities obtained an arrest warrant in respect of that person from the Kassel local court.

3. The applicant is a Nigerian, who was living in Germany from 1989 until at least some point in 1993. He had made an asylum application there, but it was unsuccessful.

4. His account of what then happened is set out in a witness statement from his solicitor. It states:

"He left Germany in early 1993 as his asylum request there was refused and he was to be deported back to Nigeria. He travelled through various European countries before arriving in the UK in 1995. He has had temporary permission to reside here since then while his asylum application has been considered".

5. In the years during which he has been living in this country, the applicant has married. He and his wife have a child and a stable home in London. His wife has mental health problems and consequently he has to care for her and play a large part in the upbringing of their son.

6. As the witness statement of the solicitor stated, the evidence is that the applicant made an application for asylum in this country, he says in 1995. Apparently, it has yet to be determined.

7. The name by which he lives in this country is Mark Richard Osawe. Indeed, there is a suggestion, but no evidence, that when he arrived here in 1995, he was using a false passport in that name. He currently has a Nigerian passport in that name. It was issued on 30th January 1997 and it gives a date of birth in January 1973.

8. His case is that he is properly named and detailed in that passport and that he has never been called or known as Ogieva-Okumbor.

9. Following the events in Germany in June 1993, the German authorities took steps to find the man known to them as Ogieva-Okumbor in Germany. They obtained an "alert for arrest", which was extended annually until June 1999. It seems that throughout that period, they knew of no name for their suspect other than Ogieva-Okumbor and had no reason to suppose that the person that they were seeking was in England.

10. On 5th December 2001, in the Kassel Local Court, a judge issued an International Warrant of Arrest in respect of Ogieva-Okumbor:

"Born 31 March 1969 in Benin City, Nigeria ... current whereabouts unknown".

11. It included the allegation of manslaughter and gave a brief description of the offence. It also referred to the evidence in the form of statements made by six named witnesses.

12. At that time, 5th December 2001, there was still nothing to suggest that the German authorities were aware of any name other than the one contained in that warrant.

13. On 7th January 2003, a Provisional Extradition Arrest Warrant was issued by a District Judge at Bow Street Magistrates' Courts. The obvious inference is that some time, probably during 2002, information had come to hand linking the names Ogieva-Okumbor and Mark Richard Osawe because the Bow Street warrant referred to both names.

14. On 16th February 2003, the applicant was arrested in London for a traffic offence. Later that very day, he was further arrested under the Bow Street Provisional Extradition Arrest Warrant. On 3 April 2003, the Secretary of State gave authority to proceed pursuant to section 7 of the 1989 Act.

15. It referred to the subject in the name of Ogieva-Okumbor, with the further suggestion that he was known under a slight variation of that name and also under the names Mark Richard Osawe and Mike Osawe.

16. All this led to the hearing before District Judge Tubbs on 7th May. We are told that she gave a short judgment, although no transcript of it is available. Indeed, this hearing has to some extent been bedevilled by an absence or the late arrival of certain important documents.

17. The issues raised on behalf of the applicant before the District Judge related to his identity and the alternative claim that it would be unjust to remove him to Germany because it would be oppressive under section 11 of the 1989 Act.

18. The present application to this court is put by reference to the same two headings. I deal first with the issue of identity.

19. Essentially, the applicant is seeking to dispute that he is the person wanted by the German authorities. The procedure under Part 3 of the 1989 Act is dependent upon an authority to proceed, ordered by the Secretary of State, and issued in pursuance of an extradition request. By section 9(1), a person arrested in pursuance of a warrant under the Act must be brought as soon as practicable before a court.

20. This is an accusation case to which the European Convention applies. Consequently, the District Judge's power and duty is as set out in section 9(8) in the following terms:

"Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any representations made in support of the extradition request or on behalf of that person, that the offence to which the authority relates is an extradition crime ... the court, unless his committal is prohibited by any other provision of this Act shall commit him to custody on bail --

(i) to await the Secretary of State's decision as to his return; and

(ii) if the Secretary of State decides that he shall be returned, to await his return".

21. I have deliberately omitted those parts of section 9(8) which arise in non-Convention cases or conviction cases. The effect of the Convention has been to pare to a minimum that which the District Judge is required to consider.

22. There is no dispute in the present case that the alleged offence is an extradition crime. In my judgment, it was not for the District Judge to go behind the authority to proceed. She was entitled to take it at face value. There had not been, and is not, any challenge to it by way of an application for judicial review.

23. If there had been, the Secretary of State would have been a party to those proceedings, as he is not to these. He would have been in a position to explain why the two names are considered to relate to the same person.

24. However, as he is not a party to these proceedings, in the absence of any challenge to the authority to proceed, both the District Judge and we should take the authority to proceed at face value.

25. In his submissions, Mr Dixon has referred to section 7(2). It deals with material which must be furnished with an extradition request and lists, among other things:

"(a) particulars of the person whose return is requested;

(b) particulars of the offence of which he is accused ... sufficient to justify the issue of a warrant for his arrest under the Act;

(c) in the case of a person accused of an offence a warrant ... for his arrest issued in the foreign state".

26. Mr Dixon's point is that the material provided by reference to that requirement did not include those matters in relation to Mark Richard Osawe, date of birth 29th January 1973.

27. This submission seeks to establish that there is no link between the person whose extradition was requested and the person who was before the District Judge. I do not accept this submission. The evidence before the District Judge was that the applicant accepted that photographs submitted by the German authorities, and apparently taken in Luxembourg in 1993, are indeed photographs of him. They bear the name Ogieva-Okumbor, albeit they appear to place his surname ahead of his Christian name.

28. Clearly, the German authorities were and are saying that the person depicted in those photographs is the person whose extradition they seek and, as I have stated, the applicant accepts that he was the person depicted in those photographs.

29. As it happens, there was also evidence before the District Judge from the arresting officer to the effect that he had compared the applicant's finger prints, taken by that officer, with the finger prints of the suspect which had been sent from Germany, and that the comparison was positive.

30. For some reason, Mr Caldwell plays that evidence down. I am not convinced that he need do so. However, even without the finger print evidence, I am entirely satisfied that the District Judge was correct to decide that the requirements of section 9(8) were met and that, if it were necessary for her to go further, the person before her was the person sought by the German authorities.

31. I now turn to the second ground of the application relating to delay. The relevant parts of section 11(3) of the 1989 Act read as follows:

"(3) 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".

32. In Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, lord Diplock explained at page 782 that:

"'Unjust' in that context is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself and 'oppressive' is directed to hardship to the accused resulting from changes in his circumstances during the period to be taken into consideration, although there may be some overlapping between the two concepts".

33. The case for the applicant is that it would be oppressive to return him because the delay is lengthy, it has been caused or contributed to by the inefficiency of the German authorities and, during it, he has established a family life in this country.

34. On the question of delay, Mr Dixon refers to the well known passage from the judgment of Henry LJ in R v Secretary of State for the Home Department ex parte Patel [1995] 7 Admin LR 56, pages 71 to 72.

35. Whilst a considerable delay has occurred in the present case, it has not been established that the German authorities have been culpable in relation to it. It is apparent from the 2001 warrant that up until that time, they did not have any name for their suspect other than Ogieva-Okumbor. There is no evidence that they knew he was in any particular country, or indeed that he was no longer in Germany.

36. I infer, as I have already explained, that further information came to hand somewhere probably during 2002, hence the Bow Street warrant at the beginning of 2003 referring to both names. But I decline to make any further findings about the period 1993 to 2001.

37. If returned and required to stand trial, the applicant will have all the procedural protection of German law underpinned by Article 6 of the ECHR.

38. I have regard to his family circumstances and the outstanding asylum claim, although I know scarcely anything about it except that temporary admission was granted or extended on some basis on 13th September 2001.

39. I also have regard to the passage from Patel. However, each case has to be considered on its own facts. The present case is one based on a very grave allegation and there is no doubt that the applicant would receive a fair trial in Germany.

40. In my judgment, having regard to all the circumstances, it would not be unjust or oppressive to return him. Accordingly, I would refuse his application for habeas corpus.

41. MR JUSTICE CRANE: I agree. I simply wish to add comments on two matters.

42. First of all, in relation to the submissions made in relation to section 7(2), if it was strictly necessary to consider those, I note that section 7(2) does not refer to the necessity for the naming of a person. It simply requires particulars of the person whose return is requested, together with particulars of the offence and in certain circumstances a warrant for his arrest.

43. In circumstances where there may have been a change of name, it may be very difficult for the authorities to name the person whom they wish to request. What is required in my view is that the request should sufficiently identify the person requested and that in turn the authority to proceed should sufficiently identify the person against whom the process is to take place. In circumstances where, as here, there are photographs supplied by the German authorities of the person they seek to proceed against, and fingerprints of that person, it would be difficult to think of better ways of identifying the person concerned. Neither of those methods of identification has in fact been denied by the claimant and he explicitly accepts that the photographs in question are of him.

44. In relation to the question of delay, I have been somewhat concerned about the lack of more complete information from the German Government about the circumstances in which, having not made the link between the claimant and the person suspected until 2002, a link was then made. I note that in a document placed before the court today, emanating from the public prosecutor at Kassel, he says this:

"According to the above information, therefore, up to November 2001 there was only a national search in respect of the accused person since the officials responsible at the public prosecution office until that time were of the opinion that an international alert was not necessary and would have no prospect of success. It can be supposed in retrospect that issuing an international alert at an earlier point in time would have led to an arrest abroad at an earlier time".

45. Here, the passage of time between the alleged offence and today is some ten years and, in those circumstances, I should certainly have been more impressed if that passage of time was fully explained. However, all the specific information that we have, and that my Lord has outlined, indicates that the German authorities pursued this matter in an efficient way and there is no need to suppose that they had any specific reason for making enquiries other than the ones they made earlier.

46. In addition, I am particularly impressed by the fact that, in the light of the information we have about the photographs and the finger print, it is clear for today's purposes that, although this claimant was using the name given by the German authorities at a time when his fingerprints and photographs were supplied to authorities either in Luxembourg or in Germany, he has, since 1995, been using a different name in this country. The inference is that he has changed the name he uses and, in those circumstances, in addition to the factors outlined by my Lord, it seems to me that one can properly say that it would not be unjust or oppressive to return him.

47. In other words, the apparent use of an alias, which, on the information before the court, this man appears to have adopted, makes it difficult for the court to say that it would be unjust for him now to stand his trial or oppressive to return him.

48. MR CALDWELL: My Lord, there is only one matter arising and this is an application for costs from central funds for the respondents in this matter. I understand the claimant is legally aided by a representation order. We do not seek to claim from him, but from central funds.

49. MR JUSTICE MAURICE KAY: What is the statutory basis of the power to award?

50. MR CALDWELL: My Lord, would you allow me a moment?

51. MR JUSTICE MAURICE KAY: Yes.

52. MR CALDWELL: The approach which I would take, my Lords, is that this matter, being a (inaudible) is amenable to the granting of costs from central funds. It may be helpful if we could supply written submissions to the court at a later stage, if required.

53. Certainly, there is the capacity for a defendant's costs order to be made under the Prosecution of Offences Act.

54. MR JUSTICE MAURICE KAY: Yes.

55. MR CALDWELL: 1985.

56. MR JUSTICE CRANE: Is it section 17 of the Act? Chapter 6, 23 in Archbold?

57. MR JUSTICE MAURICE KAY: 17(1)(b)? No. That is in respect of a summary offence.

58. MR CALDWELL: Certainly, there appears to be scope within section 17, or indeed 17(1)(b) for such an order to be made.

59. MR JUSTICE CRANE: As my Lord points out, but you may not have heard it, that refers to a summary offence, and in fact that is against you in a sense because if it specifically refers to a summary offence, one would assume that there needs to be a specific reference to something other than a summary offence for an entitlement to arise.

60. MR CALDWELL: My Lord, may we have liberty to apply at a later stage?

61. MR JUSTICE MAURICE KAY: Does anybody have an extradition text book here?

62. MR CALDWELL: Yes, I am afraid that (inaudible) only deals with the position of the applicant.

63. (Inaudible passage).

64. Within that text at page 221, there is this paragraph:

"If the defendants application is dismissed, then the requesting state can seek an order for costs against the defendant on the usual _inter partes_ basis".

65. The application is not made directly against the claimant, he having the benefit of a representation order, but it may be appropriate, in the court's determination, that costs be met from central funds.

66. MR JUSTICE MAURICE KAY: Does it go on to say that?

67. MR CALDWELL: Those are the last words of the chapter. It provides no further assistance, I am afraid.

68. MR JUSTICE MAURICE KAY: There are recent authorities to the effect that claims on central funds have to fall within the statutory test, as properly construed, and certainly I cannot see anything in section 17 in the Prosecution of Offences Act that helps you.

69. We will make no order at this stage, but you can have liberty to apply on paper --

70. MR CALDWELL: I am very much obliged.

71. MR JUSTICE MAURICE KAY: -- directing us to whatever power you may find that we have.

72. MR CALDWELL: Thank you.