Austins v Spain & Anor

LORD JUSTICE LAWS: This is an application for the issue of a writ of habeas corpus. The application is directed to an order made in the Bow Street Magistrates' Court on 26th April 2004, by which the applicant was committed on bail to await the decision of the Secretary of State whether he should be returned to Spain in compliance with a request for his extradition issued by the Spanish authorities.

Because the request was made before the Extradition Act 2003 was passed, the material statute is the Extradition Act 1989. The application to this court is brought under section 11(3)(b) of the 1989 Act, which provides that the court shall order the applicant's discharge if it appears to the court that it would in all the circumstances be unjust or oppressive to return him by reason of the passage of time since he is alleged to have committed the offence in question or become unlawfully at large.

The background to the case is as follows. The applicant, who is now some 30 years of age, was arrested on 11th June 1993, having been found to be in possession, along with another young man, of some 29 kilograms of cannabis on a train from Malaga to Barcelona. He was remanded in custody, he was brought before the appropriate Spanish criminal court, and in January 1994, after trial, he was sentenced to a prison term of 4 years, 2 months and one day, and a fine of 60 million pesetas with three months in default. That sentence was declared to be final under the applicable Spanish procedure on 11th February 1994.

On 10th January 1995 he was released from the young offender institution where he was detained, being entitled to three days' leave. He should have returned therefore on 13th January 1995. He failed to do so. Instead he came back to the United Kingdom. In his statement he says that he decided not to return because he had been told earlier that he would be unlikely to be granted parole, having apparently spent a night in an unauthorised place when he had been on leave on a previous occasion. It appears that at the time when he absconded he had something like 30 months left to serve. He states that he became addicted to heroin when detained in Spain, he felt very isolated and lonely, he could not speak the language, and he had psychiatric difficulties.

Back in the United Kingdom he quickly acquired a substantial criminal record. He had in fact committed some offences before going to Spain in 1993. In November 1995 he was fined for offences relating to cannabis. In June 1996 a community service order was imposed for a motor vehicle offence, burglary and possession of cannabis. In September 1996 he was fined £500 for violent disorder. In April 1997 he was put on probation for further drugs offences. In November 1997 he was again put on probation, this time for breach of the community service order imposed in June 1996. In 1998 he was dealt with for various road traffic offences, including dangerous driving, and also for two offences of burglary for which he received three years' imprisonment. In May 1999 he was sentenced to a consecutive term of three years for incitement to supply heroin. He states that he was released on 20th December 2002, is now drug free, and is seeking to rebuild his life with the assistance of a stable and responsible partner. This morning a statement from that lady was added to the papers before us.

After the applicant's failure to return to custody on 13th January 1995, the Spanish authorities naturally instituted inquiries, and it came to light before very long -- I understand with the assistance of Interpol -- that he was living at Telford in Shropshire. By February 1996 Interpol London was pressing the Spanish authorities to decide whether or not to seek the applicant's extradition.

On 4th April 1996 the President of the relevant Court of Barcelona submitted to the Foreign Minister at Madrid documentation to support a request for extradition. At some date before 9th December 1996 a formal request to the British authorities was made. The papers were, however, seemingly returned and submitted on no less than three occasions. Ms Malcolm tells us that they took place in 1998, June 2002 and November 2003.

The documentation before us is incomplete and the information we have is a little hazy but it would appear that these various postponements were connected with the necessity for formal proof that the applicant was unlawfully at large. Such proof was not finally furnished until 2003. On 7th January 2004 the Secretary of State issued an authority to the Chief Magistrate to proceed in conformity with the provisions of the Act of 1989. Accordingly, the applicant was arrested on 12th February 2004 on a warrant issued out of the Bow Street Magistrates' Court on 20th January 2004.

Ms Dobbin, who has represented the applicant with elegance, force and economy, submits as follows: (1) the offence was committed more than 10 years ago and the applicant absconded from the young offender institution over nine years ago. (2) His whereabouts have been known or ascertainable effectively over the whole period since then, not least, ironically, because of his frequent contact with police and courts arising from his continuing course of crime. The delay perpetrated by the Spanish authorities between 1996 at least and 2003 is of itself an engine of oppression. (3) There is a statement from the applicant's solicitor, Mr Freeman, that he recollects an occasion when the applicant was being sentenced for violent disorder -- that was on 20th September 1996 -- when certain inquiries were made at the instance of HHJ Mander, in consequence of which it was reported that the applicant was not wanted either by Interpol or the Spanish authorities. Ms Malcolm for the Government of Spain accepts that the applicant may have been given false information in that respect. (4) In light of all these factors, and the applicant's recent efforts to rehabilitate himself, Ms Dobbin says that section 11(3)(b) of the 1989 Act is fulfilled and it would be oppressive to return him to Spain.

I should observe in passing that in Kakis v Cyprus [1978] 1 WLR 779, their Lordships' House held that the term "unjust" in the predecessor statute to that of 1989 was directed primarily to the risk of prejudice to the accused in the conduct of a forthcoming trial. Plainly that assumes a case in which the applicant's trial has not yet taken place. The question in this case is, and is only, whether it would be oppressive to remove the applicant to face the balance of a lawful sentence. The reference to injustice in the subsection does not arise.

It is also to be noted -- and this has played a not unimportant part in the course of the argument -- that section 12(3) of the Act of 1989 prohibits the Secretary of State from ordering a fugitive to be returned while he is serving a sentence of imprisonment or detention in the United Kingdom or, in the case of a person charged with an offence, until the charge is disposed of or withdrawn.

Ms Dobbin submits that section 12(3) cannot assist the respondent. There was, she said, nothing to stop the Spanish authorities from proceeding properly and seeing to it that the applicant -- perhaps when he was in prison -- was made aware of the prospect of his extradition. Ms Malcolm submits, on the other hand, that it is highly relevant that by force of section 12(3) the applicant could not have been removed between 6th October 1995 and 5th June 1998, or again between 24th June 1998 and 20th December 2002. Those dates appear from the chronology put in by Ms Malcolm, together with the record of the applicant's previous convictions.

This is not an easy case. In my judgment the Spanish authorities could and should have proceeded with very much more expedition than they did. They knew from an early stage where the applicant was living in the United Kingdom. I find it frankly bizarre that years could go by in which the process ground to a halt simply for want of formal proof that the applicant was unlawfully at large. But it is important to remember that section 11(3)(b) was not enacted as a means of imposing discipline on states making dilatory requests for extradition. We are concerned, and only concerned, with the question whether by force of the passage of time it would be oppressive to return the applicant to Spain.

It is true that he has now settled with a steady reliable partner. This has happened relatively recently. But the inescapable fact is that through his own criminal career in this country he could not have been removed in effect at any time save for a small window between October 1995 and December 2002. That is the effect of section 12(3). In light of it Ms Dobbin very fairly accepts that the real thrust of her case is that he was not warned earlier of the possibility that he might be extradited, and there is in addition the suggestion that in September 1996 it was said he was not wanted by the Spanish authorities.

We have to consider all the circumstances of the case as I have outlined them. They include the circumstance that this is not merely an instance of a man who refuses to return to a country where he is to face trial. This applicant had already been tried and sentenced. In effect he escaped from custody. He knew perfectly well that he had a substantial time yet to serve. It seems to me that that dimension of the case weighs heavily against the applicant.

I have considered all the factors which I have described. In the end the matter is one of judgment, if not impression. Looking at the whole case, I have to say that in my view oppression is not shown here, and I would decline this application.

MRS JUSTICE HALLETT: I agree.

LORD JUSTICE LAWS: Thank you very much for your assistance.