CO/4375/2002
Neutral Citation Number: [2003] EWHC 372 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Friday, 14th February 2003
B E F O R E:
LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE HENRIQUES
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THE QUEEN ON THE APPLICATION OF MILAN BIKAR AND JAN BIKAR
(CLAIMANT)
-v-
THE GOVERNOR OF HM PRISON BRIXTON
(DEFENDANT)
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Computer-Aided Transcript of the Stenograph Notes of
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190 Fleet Street London EC4A 2AG
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MR J HARDY appeared on behalf of the CLAIMANT
MS A DHIR appeared on behalf of the DEFENDANT
Friday, 14th February 2003
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J U D G M E N
1. MR JUSTICE HENRIQUES: These are applications by Jan Bikar and Milan Bikar for writs of habeas corpus, directed to the Governor of HM Prison Brixton, where the applicants were held pursuant to their committal by Justices sitting at Bow Street Magistrates' Court on 24th July of last year on a charge of theft, to await the decision of the Secretary of State as to the applicants' return to the Czech Republic. The committal before the Magistrates was not contested. The applicants have been granted conditional bail.
2. On the evening of 4th February 1998, the applicants, together with others, stole some 22 plates of aluminium from the wall of a cowshed. The value of the plates in sterling was approximately £164.60. At the time of committing the acts of theft, both applicants were subject to suspended sentences of imprisonment imposed in the Czech Republic for similar offences. Both applicants were convicted in their absence before the District Court of Rokycany on 30th October 2001. At the same hearing, both applicants were also convicted of committing a similar offence on or about 23rd April 1999, whilst the applicant, Milan Bikar, was also convicted, with another person, of two similar offences in June 1999, and of committing a burglary on 25th July 1999.
3. The applicant, Jan Bikar, was sentenced to a total of 18 months' imprisonment, with surveillance. The applicant, Milan Bikar, was sentenced to 30-months' imprisonment, with surveillance.
4. Two issues arise in this application. The first issue is triviality. In short, it is contended that the offence of stealing 22 plates is trivial and, accordingly, section 11(3) of the Extradition Act requires the applicants' discharge. Section 11(3) of the Extradition Act 1989 provides, so far as is material:
"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 in respect of which the applicant's return is sought that --
(a) by reason of the trivial nature of the offence . . . .
It would, having regard to all the circumstances, be unjust or oppressive to return him".
5. It is submitted that triviality is a term to be measured by United Kingdom standards. It is said the provision is intended to prevent extradition in cases regarded by the United Kingdom as trivial.
6. Secondly, it is submitted that triviality is to be applied to the nature and quality of the theft, and the theft only. (That is the theft of the aluminium plates).
7. It is further submitted that, where a finding is made that an offence is trivial, that would bring into operation a presumption that it would be at least oppressive for the offender to be returned.
8. We have been referred by Mr Hardy to the Practice Note, Mode of Trial: Guidelines, 92 Cr App R 142 and, rhetorically, we have been asked to consider whether Justices would accept or decline jurisdiction, Mr Hardy's submission being that none of the five factors set out in the Practice Note would justify the committing of the applicants for trial.
9. I, for my part, do not consider that that is the correct approach in determining triviality. Mr Hardy's submission continues along these lines, that if the Justices had accepted summary trial, their powers would be limited to six months' imprisonment. It was then submitted, by way of skeleton, although not persisted in today, that since six months' imprisonment is half the qualifying term for an extradition crime, as defined in section 2 of the Act, by inference, this offence should be deemed to be trivial.
10. Section 2 of the Act defines "extradition crimes", and an extradition crime means "conduct in the territory of a foreign state which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of 12 months or any greater punishment". Theft is punishable with a sentence of seven years' imprisonment and is thus an extraditable crime.
11. The argument that, because the applicants may have received -- indeed would have received, had Magistrates accepted jurisdiction -- a sentence of six months or less, is, in my judgment, misconceived.
12. The statute poses the question: can the applicant, on the balance of probability, establish that the offence is trivial?
13. We have been referred by Ms Dhir to the Collins English Dictionary definition of trivial, namely "as of little importance, petty or frivolous". The Oxford Concise Dictionary defines trivial as "of little value or importance".
14. I, for my part, do indeed consider it right and proper to have regard to the nature and quality of the act. In cases of dishonesty, it is, likewise, important to have regard to the value of goods stolen, or the value of any fraud that the fraudster was engaged in perpetrating.
15. We have been referred to the case of R v Chief Metropolitan Magistrate ex parte Government of the Republic of Singapore, together with R v Governor of Pentonville Prison ex parte Tarling, Cr App R 70, 77. In the Divisional Court hearing, submissions were made to Shaw LJ, which are set out at page 103 of that judgment. Mr Bateson's submissions in this regard were as follows. First, the court should look at the maximum penalty prescribed for a similar offence, and also the likely punishment to be imposed in case of conviction. For the relevant offences, the appropriate penalties should be financial only.
16. Secondly, he said, there was no evidence that any shareholder had been prejudiced and that the company accounts were designed primarily for the information of the shareholders and not for the information of the public. Thirdly, that the applicant's involvement was of a minor character. Fourthly, that the applicant was not qualified in accountancy and had relied throughout on professional advice.
"We are of the opinion that", stated LJ Shaw, "whilst the maximum penalty may sometimes offer guidance as to whether an offence is of a trivial nature, it does not generally in itself provide an apt test. In the present instance, substantial fines might be imposed on conviction. Moreover, company accounts are not required solely for the information of the shareholders. The investigating public is concerned to rely upon them as providing a true and fair picture of the financial state of a company in which members of the public might be interested to invest. That such a picture is provided is of the utmost commercial importance. As to the applicant's involvement, this court has considered all the points advanced on his behalf, that his visit to Singapore was brief, and of course there was the fact of his reliance upon others, in particular lawyers and accountants, but after all, the applicant was Chairman of the company. He presented the accounts and he cannot in the view of this court properly cast responsibility onto the shoulders of his ultimate Director, Mr Booker, or those of other Directors. The fact that the applicant has no accountancy qualification does not mean that he is lacking in business acumen. This court can find no justification for regarding the offences charged as being of a trivial nature, nor can it come to the view that Mr Tarling's responsibility in relation to them was necessarily minimal. That must be a matter to be dealt with and considered when he comes to be tried".
17. It is manifest from that decision that each case must be considered on its own facts, the particular circumstances being important.
18. I, for my part, have concluded that the offence of stealing property, valued at £164, is not a trivial offence. It is an offence of dishonesty. It is a significant offence and it is an extraditable offence, and fails to reach the level of triviality by some distance.
19. The second issue that arises is one of jurisdiction. It is submitted that, because the applicants had been convicted in their absence and sentenced in their absence, they cannot be committed to await the decision of the Secretary of State as persons accused because, having already been convicted and sentenced, the principle of autrefois convict would apply.
20. Such contention flies in the face of decided authority, and the fact that the affidavit of Michael Brunskill states that, if returned to the Czech Republic, they will be able to exercise their right of appeal against their convictions and request a new trial.
21. The question arises as to whether or not these are final convictions. In Foy v Governor of HM Prison [2000] EWHC Admin 329, Kennedy LJ, sitting with Butterfield J, very carefully analysed the history of the law relating to fugitives who had been convicted in their absence, but can if returned apply to have their convictions set aside. In that case, the applicant, if returned to France, was entitled to have his conviction set aside. It followed that, if charged in the United Kingdom, he would not be entitled to be discharged under any rule of law relating to previous convictions.
22. Accordingly, this court found that he was rightly regarded, for the purposes of section 6(3) of the 1989 Act, as a person accused. Section 6(3) provides that:
"A person accused of an offence shall not be returned, or committed or kept in custody for the purposes of return, if it appears to an appropriate authority that if charged with that offence in the United Kingdom he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction".
23. Mr Foy was not entitled to be discharged, nor, for reasons which are indistinguishable, save that the Czech Republic can be read in substitution for France, was either of these applicants entitled to be discharged, since, if returned to the Czech Republic, they will be able to exercise their right of appeal against their convictions, and request a new trial.
24. Mr Hardy also submits that the conclusion in Foy as to section 6(2) was obiter and manifestly wrong, although he does not go so far today as to ask us to review the credentials of Foy, and did not anticipate our reaching any contrary conclusion.
25. For the sake of completeness, however, section 6(2) reads:
"A person who is alleged to be unlawfully at large after conviction of an extradition crime shall not be returned to a foreign state . . . or committed or kept in custody for the purposes of a return to a foreign state . . . if it appears to an appropriate authority --
(a) that the conviction was obtained in his absence; or
(b) that it would not be in the interests of justice to return him on the grounds of that conviction".
26. The section was reviewed at some considerable length in the judgment in Foy. Kennedy LJ stated at page 4 of that judgment:
"As Mr Hardy submits, the 1989 Act was intended to simplify the procedure where the request for extradition emanated from another Convention state, and so, he submits, the hybrid category of someone convicted in contumacy was swept away. If a person was convicted in his absence his return should be sought as a person convicted, and he can then if he wishes pray in aid section 6(2). But, as Mr Hardy recognises, section 6(2) was never intended to give additional relief to a convicted fugitive who if extradited would be entitled to have his conviction set aside. Such a person did not need further protection".
27. Mr Hardy submits that where, as here, a person has been convicted, he cannot be committed as a person accused simply because he has a right to a retrial, or at least the right to apply for a retrial. If he has been convicted, and that conviction is entered in absence, then section 6(2) of the Act, so he submits, can be brought into play.
28. It is clear from the judgment in Foy that Mr Hardy then recognised that section 6(2) was never intended to give additional relief to a convicted fugitive who, if extradited, would be entitled to have his conviction set aside. The court in Foy was fully informed of the relevant arguments.
29. Mr Hardy submits that Foy's case is different from the present. In the case of these applicants, the convictions recorded against them are categorised as "final" by operation of Czech law. He refers in particular to a number of documents contained in our bundle.
30. On reading those documents, it is manifestly plain that this was not a final judgment. At page 60 of our bundle, which contains the court's rationale, the final appeal instruction:
"It is possible to appeal against this judgment within eight days from the day of delivery to the Regional Court . . . in writing, it is necessary to submit nine copies of it".
31. At page 69, the Proposition Report of the District Court in Rokycany:
"I would like to point out that, according to paragraph 306a of the Criminal Code, if the criminal case against the escapee finished by the final judgment of conviction and then the reasons for the case against the escapee passed, the first degree court cancels this judgment on the condition the convict submits the proposition within the period of eight days after the delivery of the judgment".
32. The letter at page 72 from the Ministry of Justice of the Czech Republic sets out both sides of this contention. The final paragraph:
"Pursuant to section 306a of the Czech Criminal Procedure, the proceedings against the fugitives ended with final judgment".
33. The letter then continues to state what is meant by "final judgment":
"After . . . the reasons for which the proceedings against fugitives will pass over, this Court shall, on the basis of a request of the sentenced person filed within eight days from the date of delivering the judgment, overrule this judgment to the extent set forth in section 306 paragraph 2 of the Czech Criminal Procedure, and the main hearing will take place again".
34. A letter dated 30th May 2002 states:
"A person convicted and sentenced upon final judgment resulting from the proceedings in absentia has [the] right to request a new trial. It is important to point out that under Czech law a court delivers only one decision -- judgment -- in which it must at the same time make both a statement determining guilty and a statement specifying punishment.
If such a person requests a new trial a court must revoke (cancel) a whole judgment, for example, both a statement determining guilty and a statement specifying punishment, and hold the main hearing once again under request of the defendant".
35. Having regard to that documentation, I am plainly of the conclusion that this was not the final judgment, since the conviction could be set aside on return and, accordingly, these applicants can be dealt with as persons accused, as the court decided in Foy. Accordingly, in my judgment, these applications are without merit and should fail.
36. LORD JUSTICE ROSE: I agree. The applications are, therefore, dismissed.
37. MR HARDY: My Lords, two matters arise.
38. My Lord, Henriques J in the course of his judgment presumed that the applicants were in custody. They are in fact on conditional bail, and I just raise that. No doubt, that would be dealt with by editing in any event. The other matter is assessment, and I make application for it.
39. LORD JUSTICE ROSE: Assessment?
40. MR HARDY: It used to be taxation.
41. LORD JUSTICE ROSE: Yes. You are not suggesting that we embark upon it, are you?
42. MR HARDY: No. In the normal course.
43. LORD JUSTICE ROSE: Yes. There will be assessment under the representation order of the claimant's costs.
44. MR HARDY: I am grateful.
45. LORD JUSTICE ROSE: Thank you.