Zigmund v The Government of Slovakia

LORD JUSTICE KENNEDY: Walker J will give the first judgment.

MR JUSTICE WALKER: The appellant is a national of Slovakia. He was arrested in the Czech Republic in 1995 in relation to offences of robbery and extortion said to have been committed both in the Czech Republic and in Slovakia.

After being detained in the Czech Republic for 18 months he was released, but on return to Slovakia he was arrested again, detained and brought to trial. He was acquitted, but his acquittal was appealed by the prosecutor. I should say that the acquittal occurred on 23rd September 1997. As I mentioned, it did not result in his release from custody, but pending the appeal to the Supreme Court he was released from prison by order of that court in March 1998.

On 14th October 1998, the acquittal was cancelled by the Supreme Court and the Regional Court, which had acquitted the appellant, was ordered to hear the case again. By that time, however, the appellant and his family had moved to this country. This led to an extradition request by the Government of Slovakia seeking his return. The Regional Court issued an international arrest warrant on 23rd January 2001. Under the Extradition Act 2003 District Judge Pratt, at Bow Street Magistrates' Court, on 24th August 2004, committed the appellant in custody to await the decision of the Secretary of State for the Home Department on that request. On 24th March 2005 the Secretary of State ordered the appellant to be extradited to Slovakia.

We have heard today an appeal against both those decisions. In her helpful skeleton argument Miss Dobbin, who appears for the appellant, identified three issues. I can summarise them as follows: (i) whether the extradition should be barred by double jeopardy under section 79(1)(b) of the Act on account of his conviction in the Czech Republic; (ii) whether it would be unjust or oppressive to extradite by reason of passage of time since the offences were alleged to have been committed in 1995, that is under section 82 of the Act; (iii) the basis upon which the requesting state asserts jurisdiction over conduct that took place in the Czech Republic and whether the offences are said to be extra territorial or intra territorial for the purposes of section 137 of the Act.

All three issues were matters which the appellant was entitled to raise before the district judge, although only one of them, passage of time, was in fact raised. None of them are points which the Secretary of State was obliged under sections 93 to 95 of the Act to consider.

It was submitted by Mr Keith, who appears on behalf of the Secretary of State, that if there is any merit in any of the points it would be open to the court to allow the appeal under section 104(1)(a) and (5), or to direct the judge to decide again the relevant question, or questions, under section 104 (b).

In such circumstances the decision of the Secretary of State to order extradition would fall away. If there were no merit in the points then the decision of the Secretary of State would stand. In those circumstances the Secretary of State did not address the merits of the appellant's arguments before us. Both the appellant and the Government of Slovakia, for whom Mr Caldwell appears, accepted that this was an appropriate course.

I can deal with issue 1 shortly. It was raised at a time when the appellant's current legal advisers did not have extensive information about what had happened in the Czech Republic and in the Republic of Slovakia. Once the suggestion of an acquittal having taken place in the Czech Republic was advanced, steps were taken to investigate that matter. That led to a letter, dated 11th July 2005, from the Judicial Co-operation in Criminal Matters Division of the Ministry of Justice of the Slovak Republic. The director of that division wrote and stated:

Miss Dobbin accepts that in these circumstances the inference that there had been some determinative dealing with the matter by the courts of the Czech Republic cannot be sustained and accordingly she has abandoned issue 1.

Issue 2 can be divided into two questions. First, are there matters which, if they had not arisen through delay caused by the appellant, would make it oppressive to return the appellant? Second, is it an answer that those matters are attributable to the actions of the appellant? On the first question I mention briefly some of the factors that were identified by Miss Dobbin. First, a period of time was needed in order to get the matter resolved in the Czech Republic. That involved 18 months in custody and it was only after that that the appellant was properly prosecuted in Slovakia, again involving a period of time.

I must say, for my part, that the total period of three years, in order to reach an acquittal, does seem to me to be comparable with the sort of period that regrettably can be found to occur in this country. Miss Dobbin added that in this case there was the unusual factor that the appellant was held in custody after acquittal. Looking at that from the United Kingdom point of view, that is an unusual factor, but it is explicable in this case by the provisions of Slovak law which enable the prosecutor to appeal. It is clear that the Supreme Court looked into that matter and concluded that it was appropriate to release the appellant before the full hearing came on before them.

Miss Dobbin recognised that on the question of oppression she had to counter the regrettable fact that the appellant had been convicted of a criminal offence in this jurisdiction. This resulted with him spending a period of nine months imprisonment and subsequently being on licence. Drawing our attention though to section 82 of the 2003 Act which deals with oppression, Miss Dobbin said that the way it is worded means the trouble in this jurisdiction cannot obscure circumstances which indicate oppression.

She then turned to some very strong points which were that the reason for the appellant and his family coming here, if the appellant is to be believed, is that his brother was killed and this was done in circumstances which caused a reasonable fear for the safety of the appellant and his family. They decided en masse to leave the Republic of Slovakia. The children have done well here. The entire family has settled here. In a witness statement the appellant has explained to us that he wishes to put the events which led to him being imprisoned here behind him and to get on with his life. That, I should say, is highly commendable. It is, and I certainly accept this, hugely troubling for him to return to the Republic of Slovakia.

Miss Dobbin said that as the appellant had spent such a long period of time in custody in both the Czech Republic and the Republic of Slovakia, one would have expected the utmost expedition by the Republic of Slovakia. In relation to the appellant coming to this country she stressed that this was not a case where false documents were used. The appellant and his family came here openly and there would be records of their immigration here.

Finally, on this issue, Miss Dobbin made two points. The first was as to whether there could be a fair trial. There were witnesses on each side and there would be issues as to whether they would still be available and would be able to remember. I recognise that, but equally it seems to me that there is considerable force in the submission made by Mr Caldwell in answer that the particular facts of this case involved matters which those who may be witnesses are unlikely to have forgotten.

The second point made, when concluding her submissions on this aspect, was that there is a document which suggests that other defendants may not have been proceeded with. We have very little information about that document and it seems to me to be too slender a basis upon which to reach any conclusion.

Those then are the matters relied upon in support of the submission that return would be oppressive. I do not find it necessary to reach a conclusion on the question whether those matters, if not attributable to the appellant, would make it oppressive to return him. It seems to me that those matters which occurred prior to the appellant coming to England could not possibly amount to sufficient by way of oppression to make it appropriate to refuse the appellant's return. If we look at what has happened since coming to this country, it seems to me very important to have regard to the circumstances, so far as they affect the Government of Slovakia, when the appellant came to this country.

This was examined by District Judge Pratt. He said that he had before him a letter from the presiding judge which indicated that after being released the appellant was to reside at a certain address and notify any change of address to the authorities. The appellant told District Judge Pratt that that was absolutely not the case and that he was a free man. The appellant's wife, however, told District Judge Pratt, in the clearest possible terms, that she knew that they were to reside at a certain address and to notify any change of address to the authorities. District Judge Pratt concluded that that was indeed the position. He also concluded that the appellant having left the Republic of Slovakia in August 1998, it became impossible for the Slovakian authorities to serve on the appellant notification of the prosecutor's successful appeal against his acquittal.

It seems to me that this shows that delay that occurred between October 1998, when the Supreme Court cancelled the acquittal, and January 2001, when the Slovakian authorities issued the international arrest warrant, was plainly caused by the appellant's own failure to comply with the requirements of the Slovakian authorities. He has brought that delay upon himself.

Miss Dobbin properly referred us to the cases which had arisen under the predecessor statute concerning the passage of time being brought about by the person who opposes extradition. She referred us, in particular, to the decision of the Divisional Court in Regina v Governor of Brixton Prison and another, ex parte Osman (No 4) [1992] 1 All ER 579. Lord Woolf, in that case, summarised the principals identified by Lord Diplock in the case of Kakis and the Government of the Republic of Cyprus 1 WLR [1978] 779. Lord Woolf said this:

On the face of it, this appellant appears to me to be plainly within the principle that an applicant, who has brought delay upon himself by his own acts, cannot complain in general terms, about delay.

Miss Dobbin suggests that it is possible to distinguish the case of Osman. She rightly points out that section 82 of the statute is not absolute in its terms. It does not lay down any specific rule about delay being sought and induced. That said, Miss Dobbin recognises that authorities on the predecessor statute to the 2003 Act are relevant to the construction of this section, and it does seem to me that the principle identified by Lord Woolf is very well-established indeed. I find it difficult to see any basis upon which the circumstances of this case can amount to any good reason for refusing to apply that principle.

Miss Dobbin referred to the unusual factor that in this case the appellant had had to remain in custody while his acquittal was the subject of an appeal by the prosecutor. I accept that that is an unusual factor. It might be that it could be seen as being akin to circumstances which could arise in this country where someone is kept in custody while some issue is determined, but it does not seem to me that it can possibly amount to a good reason for taking any approach other than that identified by Lord Woolf.

Accordingly, it seems to me that the answer to the second question identified must be yes. It is an answer to the matters that are relied upon by way of oppression that those matters are attributable to the actions of the appellant. Accordingly I, for my part, would decide issue 2 against the appellant.

That leaves issue 3. On that Miss Dobbin told us, and this does not appear to be in dispute, that of the three charges identified in the international arrest warrant, the first and third involved conduct which took place entirely in the Czech Republic. Miss Dobbin accepts that the conduct comprised in the second charge took place entirely in the Republic of Slovakia, accordingly issue (3) arises only in relation to the first and third charges.

Her essential point is that the international arrest warrant did not explain the basis of jurisdiction over matters which had taken place in the Czech Republic. She acknowledged that the Republic of Slovakia had relied upon section 137(4) of the 2003 Act and she accepted that because no part of the conduct occurred in the United Kingdom it must follow that section 137(4) comes into play. She submitted, however, that this subsection does not involve true dual criminality, for under the subsection, by contrast with section 137(3), it is not necessary to show that both the requesting state and the United Kingdom would assume extra-territorial jurisdiction.

Miss Dobbin accepted that this point was not taken before the district judge. It can, however, be taken in this court. In that regard, there was no suggestion by Miss Dobbin that we should disregard new material lodged in this court. Indeed, it would have been unjust for us not to do so, given that the point was not taken in front of the district judge.

It seems to me that highly relevant to this point is the letter of 11th July which I mentioned earlier. Miss Dobbin said it was not sufficient. It did not explain whether the European Convention of 1972 was self-executing under the law of Slovakia, nor did it explain how the facts of this case fell within the treaty.

It seems to me that there is a number of answers to this point. The first, and general answer, is that issues of this kind are highly likely to be fact sensitive. In this particular case we have an appellant who was legally represented at a trial in the Regional Court where one could expect that any question, as to jurisdiction, would have been raised and resolved. Indeed one would have expected it to be raised and resolved as a preliminary issue. Further, as my Lord, Kennedy LJ, pointed out in argument, not only was the matter the subject of a trial, there was an appeal. It would have been a complete answer on appeal for the Supreme Court, in relation to charges 1 and 3, if the Regional Court had not had jurisdiction. It flies in the face of common sense to think that there was any real point as to jurisdiction when that was not taken either in the Regional Court or in the Supreme Court.

Turning to the letter of 11th July 2005 itself, this is a letter which has been prepared and signed by the Director of the Division of Judicial Co-operation and Criminal Matters. It is not something which has been prepared and produced by an official of relatively low standing. The letter makes reference to what the competent authorities did, namely, a decision by them to accept the transfer of the case from the Czech Republic. The information in the letter is said to be according to what has been provided by a competent judge. As a matter of common sense one sees that the three charges are closely linked and thus that the matters that took place in the Czech Republic appear to be closely linked with what occurred in the Republic of Slovakia. When one adds to that the known history that the Czech Republic and the Republic of Slovakia had previously formed part of a single state Czechoslovakia, it appears to be almost common sense that the courts of Slovakia should have jurisdiction over the whole of the matters which the appellant had to answer.

Miss Dobbin submitted that the requesting state should be explicit as to the basis of jurisdiction and that this was especially so because, harking back to her earlier submission, under section 137(4) there was no true double criminality. It seems to me that this case may demonstrate the value of not insisting that the United Kingdom would assume extra territorial jurisdiction in all instances.

Where there has been a transfer of a criminal case under the European Convention of 1972, it makes eminent sense that a country, where one of the accused is found, should extradite that accused if the case is an appropriate one for extradition, to the transferee state. It would be contrary to common sense for the court to be required to extradite the accused to the transferee state, the state which has determined that it is appropriate that a fellow party to the Convention should be the state that deals with the matter.

We were taken by Miss Dobbin to the decision of the Divisional Court in R (Castillo) v Kingdom of Spain [2005] 1 WLR 1043. At paragraphs 24 and 25 Thomas LJ referred to the obligation of a state making a request under the Convention to set out a description of the conduct which is alleged constitutes the offence, or offences, for which extradition is requested. I would not wish to be thought, in any way, as detracting from the importance of what is said by Thomas LJ there, but it seems to me that that is very different from the question of jurisdiction. It will, of course, be very important that in cases where there is any reason to query the jurisdiction of the requesting state that state should set out, in such detail as is appropriate, the basis upon which it asserts that jurisdiction. For example, if because of something particular about the crime, or something particular about the defendant, the requesting state, has jurisdiction over acts which were not done in its territory, then it would be sensible for that to be set out in a request.

Where, however, as here there has already been a trial at which the appellant took no issue as to jurisdiction, it seems to me that there can be no basis for complaint. In those circumstances I consider that the arrest warrant in this case gave sufficient demonstration that the offences in question were punishable in the Republic of Slovakia by a term of imprisonment of the necessary length and that all the requirements of the statute were met. In those circumstances I, for my part, would dismiss this appeal.

LORD JUSTICE KENNEDY: I agree. I need only add this: it is clear from the statement prepared for the purposes of this hearing that the appellant, on 15th June 2005, was represented at his trial in Slovakia. He says in paragraph 20: "I did not speak to my lawyer after I was acquitted..." and that at the end in paragraph 32: "My original lawyer at the trial Miss Vera Cesova is now retired." Accordingly, as my Lord has indicated, if the point now sought to be argued as to jurisdiction was of any validity, it is a point which plainly would have been taken by those who were representing him at the trial. As it is, it only comes to the attention of this court late in the day.