Coton v High Court of Dublin, Ireland

MR JUSTICE CRANSTON: This is an appeal from a decision that the appellant be extradited to Ireland pursuant to a European Arrest Warrant. The arrest warrant is an accusation warrant in relation to offences arising from a serious attack on the appellant's former husband. In brief, the son of the appellant had opened the front door of the family home in Crumlin in Dublin and three men wearing balaclavas had brushed past. Two were armed with a knife and another with a lump hammer. The appellant herself and her daughter Sharon, who had arrived back home, had been tied up by the intruders. When he returned there was then an attack on the former husband. He subsequently died. However, the medical evidence was that the death could not be attributable to the injuries he suffered as a result of the attack. In the warrant, the appellant, along with Sharon, is accused of organising the attack. In the warrant applying to the appellant the offences are set out as causing grievous bodily harm with intent to murder and what is in Ireland, as in this jurisdiction, a section 18 offence under the Offences against the Person Act 1861.

The matter came before District Judge Snow. He heard evidence from the appellant, from her current husband, from her stepson, and from her brother-in-law. There was also evidence from the police in Ireland by means of a witness statement. The District Judge set out the background and explained, as is common ground, that there had been a trial listed in Ireland, where the four attackers, who had been apprehended, pleaded guilty. The appellant herself was to give evidence for the prosecution at that trial but because of the pleas that was not necessary. The evidence as to what was said at the time to the appellant was disputed. The Irish police contended that she was never told that subsequent proceedings would not be taken against her. She contended that she was told by the police she was free to leave. The District Judge rejected her account in 1989.

In any event, she came to this country, lived here, and soon after married her current husband. She lived in Coventry from that date. She was on the electoral roll. She applied for a passport at the Irish High Commission here in 2002, and as part of that presented the death certificate of her former husband. She applied for a CRB check in 2011. In the ensuing 23 years she returned to Ireland on a number of occasions to Ireland. Sharon returned to live in Treland a number of years ago. As for the Irish authorities, they circulated her details to the police in this country shortly after the incident. In 2006 there was evidence that they had attended a funeral in Ireland in the anticipation that she would attend. In fact she did not do so.

On the basis of the evidence that he heard, the District Judge found that the evidence of the appellant's witnesses lacked credibility. He concluded that the appellant had become a fugitive, in other words, she had fled Ireland in order to avoid possible prosecution there. The judge addressed the alleged inactivity of the Irish authorities. He reminded himself of the close relations between this country and Ireland. He agreed with the submission on behalf of the Irish authorities that sometimes one of the most effective ways to avoid detection is to live under a married name and to avoid trouble. At paragraphs 37 to 40 of his judgment he concluded that it would not be unjust or oppressive to extradite the appellant to Ireland. He cited the decision of Cleere v The High Court of the Republic of Ireland [2009] EWHC 2759 (Admin). While accepting that extradition would cause hardship to the appellant and her immediate family, the judge said:

In his submissions, Mr Keith contended, first, that the case should be adjourned. There is to be a judicial review on behalf of the appellant's daughter before the High Court in Dublin tomorrow. The basis is that it would be unlawful or irrational for the prosecution authorities to proceed against the daughter so long after the event. Mr Keith submitted that what would happen as a result of the judicial review could have a very significant bearing on the prosecution of the appellant. The most appropriate course would be to adjourn this hearing so that the outcome of that judicial review would be known.

In my view, there is no basis for an adjournment. The vagaries of litigation are such that that judicial review might not come on tomorrow. In any event, the details of that judicial review are not in evidence before me. The arguments in relation to the daughter might well be different from those relevant to this appellant. Even if the daughter were successful I cannot assume that the same approach would be adopted in relation to this appellant. Accordingly, I refuse the adjournment.

Secondly, Mr Keith attacked the findings of the District Judge, in particular that the appellant is a fugitive. Mr Keith submitted that the District Judge was simply wrong in relation to a number of his findings. First of all, in relation to what the brother-in-law may or may not have told the appellant, that was hearsay upon hearsay. The findings of the District Judge in relation to whether the appellant was hiding could not be sustained given the way that she had openly lived in Coventry for the past 23 years. It was plain that she had not attempted to hide from the authorities, and that was evidenced in particular by the fact that she had attended the Irish Embassy in 2002 to obtain a passport.

Mr Keith also informed me, although he could not produce the correspondence, that in 2010 her solicitors had written to the Irish judicial authorities after the arrest of Sharon. That had not produced any immediate response on their part in relation to the appellant. However, in his submission, here was the appellant, yet again, revealing her presence and her details, were the Irish authorities keen to pursue her. Mr Keith also suggested that for some reason the District Judge had taken against the appellant at the outset and that that infected his approach to the evidence he heard.

In my view, the District Judge heard the evidence and was thus in a good position to assess the credibility of the witnesses, including the appellant. There is no basis on which it can be said that the conclusions he drew were not open to him on that evidence. There is no need for me to canvas the various findings that the District Judge made. However, I note that his judgment is structured in such a way as to set out the facts which were not in contention but also to make plain that certain points were in dispute. To my mind, that gives no support at all to a submission that this judge had somehow taken against the appellant and that that infected his findings.

However, if the District Judge is wrong in relation to his finding that the appellant is a fugitive, to my mind there are still no grounds for the conclusion that it would be oppressive for her to be extradited. There were submissions by Mr Keith that there was culpable neglect on behalf of the Irish authorities, that they demonstrated manifest incompetence, given that the appellant was living openly in this country and she could quite easily have been proceeded against many years ago. Even accepting that, which I do not, it seems to me that the balance comes down in favour of extradition.

In the course of his judgment, the District Judge cited Cleere v The High Court of the Republic of Ireland. That was a case where the Irish authorities were seeking the extradition of a person accused of offences against a 10-year-old boy in 1973 and 1974. The focus was on whether it would be oppressive to extradite him. In the course of the judgment, Scott Baker LJ canvassed the authorities and concluded that it would not be oppressiveto extradite, given the gravity of the offences for which the extradition was sought. Mr Keith submits that that case is distinguishable. It is not unusual for historic sex cases to be prosecuted in this jurisdiction, and no doubt in the Irish Republic, many years after the offending. But the principles stated by Scott Baker LJ (as he then was) were general principles and were not confined to historic sex cases.

The leading authorities (such as Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779) set out the test for injustice and oppression by passage of time. In the course of his speech, Lord Diplock identified the relevance of delay and that what matters is the effect that it might have if a trial is not conducted with ordinary promptitude. It is clear, in my view, that in that case the decision to discharge turned both on injustice and oppression. In Gomes & Goodyear v Government of the Republic of Trinidad and Tobago [2009] UKHL 21; [2009] 1 WLR 1038, the test of oppression was said by the Privy Council not to be easily satisfied and required hardship greater than that which would inevitably be inherent in the act of extradition.

In this case, I am unable to accept that the threshold of oppression has been crossed. There will be hardship and difficulty caused to the appellant as a result of extradition, in particular because she has lived in this country for a substantial period. But I am not persuaded that the decision on this point by the District Judge is erroneous in any way, even putting into the balance that the Irish authorities may be culpable for some of the delay which has occurred. To allow the appeal would be to allow the appellant to avoid possible prosecution for what is patently a serious offence. It will be up to the Irish authorities to consider any abuse of process application because of the delay in pursuing matters. As the District Judge quite rightly pointed out, the relations between the two jurisdiction is especially close. Apart from the fact that the Republic of Ireland is a member of the European Union and an adherent to the European Convention on Human Rights, this court places a very high degree of trust in the competence and the sense of justice which operates in the Irish judiciary.

On this basis, I dismiss the appeal.

Anything more?

MR KEITH: My Lord, detailed assessment of costs.

MR JUSTICE CRANSTON: Of course.