Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CALVERT SMITH
Between:
THE QUEEN ON THE APPLICATION OF HARRISON
Claimant
v
SPANISH JUDICIAL AUTHORITY
Defendant
Computer-Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Miss H Pye (instructed by Kaim Todner) appeared on behalf of the Claimant
Mr J Stansfeld (instructed by CPS) appeared on behalf of the Defendant
J U D G M E N T
MR JUSTICE CALVERT-SMITH: This appellant was arrested on 10th March 2011 pursuant to an European Arrest Warrant which had been issued on 19th October 2010 and certified by the Serious Organised Crime Agency on 26th February 2011. Three months or so later, on 23rd June 2011, following a contested hearing, District Judge Zani ordered the extradition of the appellant to Spain.
Two grounds were put forward to the District Judge in opposition to the order, the first based on the passage of time and section 14 of the Extradition Act 2003 and the second based on his medical condition, under section 25. The second ground has been dropped for the purposes of this appeal as a separate ground but is prayed in aid in support of the first ground under the heading of "Oppression".
The appellant was arrested in Spain on 19th August 2000. The European Arrest Warrant describes the circumstances of the arrest as follows in the summary:
"On 19/8/2000 at about 11.30 pm, a civil guard patrol car located a Nissan [the registration number given] leaving the car park of the residential area in ... The car was being driven by Daniel Harrison. Lloyd Seymour Pinnock was the co-driver and Jacque Cardolos, who gave the alias of Mark Chester was sitting in the back. When they noticed the presence of the civil guard the car tried to reverse and that led that it was intercepted by the civil guard and then that Lloyd Seymour passed a bag to the passenger in the back. The bag contained 910 MDMA pills with a net weight of 246.62 grams, an average purity of 34%. At the moment of the arrest Jacque Cardolos tried to run away on foot and was overpowered by the police."
Following his arrest the appellant was held in custody until, it seems, 4th September 2000 when a member of his family deposited money to the value in English money of £10,000 at the Spanish court. Following the deposit of that money the appellant's passport was released.
In his statement, made for the purposes of the extradition hearing and as to which he gave notice, the appellant said:
"I went to Ibiza for a holiday on 19th August 2000. I was then going to start working there, as I met a man who offered me a job in a nightclub, running the music et cetera. On 19th August I was driving in Ibiza when the civil guard stopped me. Upon being stopped both passengers in my car, Mark Chester and Lloyd Seymour, ran away. The police grabbed me and put me on the floor. I was then taken to a police station...
I didn't go on holiday with Lloyd Seymour or Mark Chester, I just met them that day and they asked me to give them a lift as I had a car."
He then described how he appeared at court and having done so was taken back to prison, and once the £10,000 had been paid, he was told he could go and he was released. He alleged, and repeated this in evidence:
"The court in Spain didn't tell me anything, they didn't tell me I had to attend court again or anything to that effect. As far as I am aware everything was resolved once I paid £10,000 to the police. As soon as I was let out of prison I went to my apartment and packed my bags to come home. I wanted to leave as soon as possible. The incident had broken my spirit so I wanted to get home straightaway. I no longer wanted to work at the nightclub and I left a few days after the initial arrest."
He then went on to say that since returning to this country he had been living openly under his real name at his mother's address and then at an address in the same street and that he has five children here in England. He does not live with his family but sees them regularly.
So Mr Harrison's evidence was that he had come to Spain to get a job, but that following his arrest he decided not to take the job up and then came back to this country.
The principal issue on this appeal is the question of the District Judge's finding in respect of the deposit of £10,000 and Mr Harrison's perception of what had happened. In order to supplement the information contained in a warrant the Spanish authorities provided a supplementary statement which read so far as relevant:
"As stated in the European Arrest Warrant he was arrested on 19/8/2000. When he was released he was informed about his duties resulting from that situation since the judicial liability resulting from this case still pending as this case would not definitely be concluded since there is the final judgment with its enforcement.
On 4/9/2000 a bail of 2.5 million Pesetas was paid at the Bank of Bilbao Espana so as to his liability to appear at court which might be in charge of his prosecution whenever he was summoned as well as to ensure his pretrial release. Never a fine. Since so far as no hearing against him has been held.
The very first thing to be done when a person is arrested in Spain is to inform him or her about his or her rights, and about the offence of which he or she is charged. Therefore he was obviously informed about these points. That information is carried out in writing, the arrested subject signing a proof of their rights and dispatched law when arrested. All steps taken with the arrested subject in the civil guard the court of Ibiza were performed before a translator so they are always informed about every question, charge, right and duty." (quote unchecked)
That was the dispute which the District Judge had to revolve and had to resolve, if he were to resolve it against the appellant, to the criminal standard of proof.
Two matters arise. The first is a complaint as to the way in which he expressed himself in his judgment, and as to whether it was clear that he had in fact found to the criminal standard that Mr Harrison was aware that he was effectively bailed and therefore awaiting trial in due course for an offence of possession which carried a sentence of between 3 to 9 years' imprisonment on conviction.
In his judgment on this topic he said this:
Was Mr Harrison a fugitive from justice? The onus in demonstrating that he deliberately absented himself lies with the requesting judicial authority. This must be demonstrated beyond reasonable doubt (see Mitoi v Government of Romania [2006] EWHC (Admin) 1977.)
There is no doubt in my mind that Mr Harrison was aware of the proceedings as by his own clear admission he was arrested, taken into custody, detained and then brought before a court. He was remanded into custody for some three weeks before ... the substantial £10,000 security was deposited on his behalf. He was then given back his passport and returned to the UK. All this happened in August/September 2000. In evidence he said he had not given thought to what had happened to the £10,000, that is to say whether it was refundable or whether it had been forfeited. He said he made arrangements to repay the money to his brother."
Then at the beginning of paragraph 13:
"I think there is a very strong argument Mr Harrison does fulfil the meaning of being a fugitive ... and he was well aware of the proceedings, he having been arrested and subsequently released by the Spanish court albeit his passport had been returned to him, that is not conclusive that the proceedings had somehow come to an end. Mr Harrison chose not to make any enquiries of the Spanish authorities and I suspect they hoped they would simply go away. It is to be noted as previously mentioned the European Arrest Warrant does not appear to have any address for Mr Harrison."
In respect of Mr Harrison's address, in his statement there is no mention of his having left an address with the authorities in Spain and, as Miss Pye pointed out, if he was paying a fine, albeit without there having been any proceedings in court, he would not need to leave an address since the "proceeding" were at an end. On the other hand, the court understands that Mr Harrison claimed in evidence that he had left an address with the authorities, so that the authorities had been to say the least negligent in not writing to the address when they wanted him to come and stand his trial.
It seems to me perfectly clear, first, that the District Judge did apply the proper standard, that albeit the words in paragraph 13 might bear a different interpretation, the combination of paragraphs 10 through to 13 make it absolutely clear he had come to a firm decision on the criminal standard. Secondly, it is clear to me that a person in the position of Mr Harrison would know perfectly well that there were proceedings pending. The idea that one can simply go and have money paid without any kind of sentence from the court or anything of that kind for an offence of possession with intent to supply drugs is absurd. In those circumstances, it seems to me that there is no force in the first ground of appeal.
However, a second ground was raised and I should deal with it. Mr Harrison, as I have already indicated in summarising the facts, has a family in this country. An additional fact to which I have not yet referred is the 10 year delay in the Spanish authorities seeking his extradition, as to which the further information supplied by the Spanish authorities says at paragraph (iv):
"The delay in the proceedings has been caused among other reasons by the change of the court which commenced the case. New courts had to be created due to the amount of cases when a certain number of cases was reached. Under the Spanish law civil and criminal matters have to be separated and therefore civil and criminal laws had to be created with their appropriate deliberate transfer and knowledge of the case by the judges. Also, since the accused subject left the country it always takes longer to communicate any concerning terms."
Clearly, it is regrettable that the proceedings have been delayed as long as they have. However, the court has well in ind that this is a very serious allegation, which in any civilised country would warrant prosecution to conviction if the evidence was available to do so. Secondly, the court has to consider the circumstances of the offender. The submission made by Miss Pye is that the combination of the delay and the defendant's ill-health and his family circumstances do amount to oppression in the terms set out in the authorities, albeit she accepts that it is a very high hurdle to jump.
For his part Mr Stansfeld, on behalf of the respondent submits that the facts surrounding Mr Harrison's case are not in the same league as those present in the case of Wenting v High Court of Valenciennes[2009] EWCA 3528 and are very different from those in Penta v District Public Prosecutors Office Zwolle-Lelystad Netherlands[2011] EWHC 992. With that submission I agree. All cases of this kind involve hardship not only to the requested person but to his family, as do all proceedings which result in the imprisonment of defendants in this domestic jurisdiction. While, of course, there must be some sympathy for the appellant who has been subject to delay caused apparently by listing difficulties in Spain, those difficulties do not amount, in my judgment, to oppression. So this appeal on that ground too would have failed.
MISS PYE: Mr Harrison is legally aided and I apply for a public funding assessment.
MR JUSTICE CALVERT-SMITH: Certainly.