Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE RICHARDS
and
MR JUSTICE MITTING
Between :
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THE GOVERNMENT OF THE UNITED STATES OF AMERICA |
Appellant |
|
- and - |
|
|
KEITH STUART ASHLEY WOOD |
Respondent |
MR JAMES LEWIS QC AND MISS RACHEL KAPILA
(instructed by THE CROWN PROSECUTION SERVICE ) for the Appellant
MR ALUN JONES QC AND MR MARTIN HENLEY
(instructed by KAIM TODNER SOLICITORS ) for the Respondent
MR JAMES McCLELLAND (instructed by THE TREASURY SOLICITORS ) for the SECRETARY OF STATE FOR THE HOME DEPARTMENT the Intervenor
Hearing dates: 4 July 2013
Judgment
MR JUSTICE MITTING :
History
Keith Wood (the respondent) was born on 29 November 1961 in Stourbridge and is therefore now 51. The government of the United States of America (the appellant) seeks his extradition to face prosecution for 14 counts of wire fraud alleged to have been committed between 16 December 2002 and 25 May 2004. It is alleged that the victims were defrauded of $170,000.
The respondent was deported from the United States on 14 December 2001. Different versions of what had happened to him before then were put in evidence at the extradition hearing. The respondent said in an unsigned proof of evidence dated 13 June 2012 that he left England for the United States in 1986, where he married, successively, two women. Both now live in the United States as do the three children of the marriages. In a detailed chronology, which Senior District Judge Riddle accepted as correct, the appellant asserted that the respondent was prosecuted by HM Customs and Excise in England and Wales in 1993 for an unknown offence or offences. He absconded, thereby committing an offence under section 6 of the Bail Act 1976. He pleaded guilty to that offence in 2005 and was sentenced to nine months imprisonment for it on 17 November 2005.
Although there is no reason to doubt that the respondent did marry twice in America and has three children by his first two wives and has spent much of his life in the United States before he was deported, we should proceed, as did Judge Riddle, on the footing that the appellant’s chronology is correct.
According to the first affidavit of Michael S Davis, Assistant United States Attorney for the Southern District of Florida, sworn on 21 January 2010, the respondent was convicted of one count of wire fraud in the northern district of New York on 1 August 2000 and of two counts of wire fraud in the northern district of Alabama on 12 January 2001. Mr. Davis did not identify the penalties imposed. He did, however, identify significant features of the offences: the respondent purportedly sold heavy machinery to victims, who, after making initial deposits, did not receive the machinery they had ordered. According to the respondent, he was arrested in July 1999 on six counts of fraud, to which he pleaded guilty and was sentenced to 18 months imprisonment. He served 15 months and was then deported.
The respondent states that after his return to England, he bought and sold construction machinery. The appellant alleges that, between 16 December 2002 and 25 May 2004 he obtained 14 deposits, transferred by wire, from seven different individuals or corporations resident in the United States for heavy machinery which he offered for sale but did not intend to deliver.
On 28 April 2005 a federal grand jury in Miami returned an indictment against the respondent. On 9 March 2006 another federal grand jury in Miami returned a superseding indictment charging the 14 counts of wire fraud which is the subject of the appellant’s extradition request. An arrest warrant was issued.
On 5 July 2006 the respondent was arrested in England. On 17 August 2006 District Judge Evans sent the case to the Secretary of State for the Home Department. On 12 October 2006 he ordered the extradition of the respondent. He appealed to the High Court. On 12 January 2007, his appeal was dismissed by the Divisional Court . By a letter sent after the dismissal of his appeal, the respondent asked the Divisional Court to certify a point of law of general public importance and sought leave to appeal to the House of Lords. Both applications were refused on 22 March 2007.
No step was then taken to extradite the respondent. On 24 April 2007 he applied to Westminster Magistrates Court to be discharged under Section 118(7) of the Extradition Act 2003 because he had not been extradited within the time limit specified in Section 118(2). The district judge refused his application. He appealed to the Divisional Court. On 30 July 2007 it upheld his appeal.
The Secretary of State had fallen into a trap created by an anomaly or lacuna in the drafting of Sections 114 and 118 of the 2003 Act. Section 118(2)(a) requires that a person must be extradited to a category 2 territory within 28 days of “the day on which the decision of the relevant court on the appeal becomes final”. Section 118(4)(a) and (b) provides that a decision of the High Court on the appeal becomes final in two circumstances: when the period for applying to it for leave to appeal to the House of Lords (now the Supreme Court) ends, if there is no such application, and when the period permitted for applying to the House of Lords for leave to appeal to it ends if the High Court refuses leave to appeal. However, no provision was made for what would happen if the High Court refused to certify a point of law of general public importance as well as leave to appeal. Certification is a precondition of the grant of leave, whether by the High Court or by the House of Lords/Supreme Court: Section 114(4)(a). The district judge had held that when the High Court refused to certify, an application for leave to appeal could still be made under Section 114(6) within 14 days of the refusal of leave to appeal by the High Court. The Divisional Court held that that was wrong. Although it did not say so expressly, the necessary consequence of its decision was that a decision on the appeal by the High Court becomes final when it refuses to certify a point of law of general public importance and refuses leave to appeal. That date was 22 March 2007. Therefore, by 24 April 2007, the 28 day period stipulated in Section 118(2) had expired. Accordingly, his discharge was ordered.
Within, at most, a few weeks of his discharge, the respondent began to commit further offences of fraud. He was later to plead guilty in Bristol Crown Court to 15 offences of fraud by false representation, contrary to Sections 1(2)(a) and 2 of the Fraud Act 2006. The offences were committed between 1 September 2007 and 3 July 2009. In his proof of evidence of 13 June 2012, the respondent suggests that there was “some overlap” between these offences and those for which his extradition is sought. There was no overlap in point of time. There may well have been in method.
The respondent says that he met his third wife on 1 June 2008 on a blind date. They soon started to co-habit. He says that in July 2008 he was arrested for some of the Fraud Act offences and, after interview, released on bail. This did not result in a cessation of his offending: four of the offences to which he later pleaded guilty were committed after his arrest.
On 17 July 2009, he married his third wife. She gave birth to their son on 1 August 2009. In a second unsigned proof of evidence dated 17 September 2012, the respondent says that he was “absolutely certain” that if he had “any inclination that the extradition proceedings would ever have come back” he would not “have got married so hasty, let alone get into another relationship or have another child”. Judge Riddle found at the extradition hearing that he had said to the arresting officer on 3 February 2011, referring to the extradition warrant, “Why has it taken so long for them to re-issue it?” He rejected his denial of saying that as a lie. It must therefore follow that Judge Riddle did not accept his protestation that he would not have remarried and fathered a child if he had thought that the extradition proceedings would ever come back, as true.
On 29 August 2009 the respondent was charged with the Fraud Act offences for which he had earlier been arrested and bailed to attend Bristol Magistrates Court on 31 August 2009. On 31 August 2009 he was sent for trial to Bristol Crown Court by the Magistrates Court and remanded in custody. He later pleaded guilty to five offences of fraud by false representation, committed between 15 January 2008 and 3 March 2009. On 12 March 2010, he was sentenced to 45 months imprisonment. All of the offences were noted as having been committed whilst he was on bail.
On 1 April 2010, whilst still serving that sentence, the respondent was arrested for further offences of fraud by representation all committed whilst on bail. He pleaded guilty to 10 such offences in early January 2012. Meanwhile, on 15 July 2011, he was released on licence from the sentence imposed on 12 March 2010. He said in his second proof of evidence that he then returned to live with his third wife and son. On 23 March 2012, he was sentenced at Bristol Crown Court to 18 months imprisonment concurrent for the 10 offences to which he pleaded guilty. He was released on licence from that sentence on 21 December 2012. He had spent all but eight months of the previous three years and four months in prison.
The extradition proceedings
The second request for the extradition of the respondent was not submitted to the United Kingdom until 8 November 2010. In his written ruling, Judge Riddle noted, unassailably, that “it cannot be argued that there is good reason for the very substantial delay in re-issuing proceedings”. What happened was explained in Mr. Davis’s evidence. The original prosecutor died on 29 September 2007. Mr. Davis was assigned to the case on 30 June 2008. As best as he could establish, he first learnt that the respondent was in custody overseas on 12 August 2009, as a result of information supplied by the US Immigration and Customs Enforcement Department. On 17 September 2009, he was told that the respondent was in custody in the United Kingdom. On 25 September 2009, Mr. Davis submitted a draft request for the respondent’s extradition to the Office of International Affairs at the Department of Justice. After making revisions suggested by that office, he submitted an extradition request to a US magistrate on 21 January 2010 and forwarded the request to the OIA. That office submitted the request to the United Kingdom on 8 November 2010. The request was certified by the Secretary of State on 29 November 2010.
Thereafter, the appellant and the UK authorities proceeded with proper expedition. On 13 January 2011, the extradition warrant was issued by District Judge Grant. On 3 February 2011, the respondent was arrested and produced before District Judge Tubbs. She adjourned the proceedings under Section 76B(2) of the 2003 Act until the respondent was released from the sentence of 45 months imprisonment imposed on 12 March 2010 which he was then serving.
Directions for the conduct of the extradition hearing were given by District Judge Purdy on 3 April 2012. The appellant complied with the directions. The respondent did not. Eventually he did, by 13 December 2012.
On 26 February 2013 Judge Riddle began the extradition hearing. He heard evidence from the respondent and submissions from both parties. The respondent adopted his two proofs of evidence and, according to the written reasons of Judge Riddle, stated that he saw his wife and son regularly, even though conditions of his bail prevented him from living with them. Two grounds of resistance were argued on his behalf: abuse of process and oppression under Section 82 of the 2003 Act. Judge Riddle reserved his decision until 8 March 2013, when he handed down written findings of fact and reasons. He rejected the first ground of challenge and accepted the second and so ordered the discharge of the respondent.
At the end of the first day of the hearing, an unusual event occurred. Counsel for the appellant was approached by a man, David Alexander Horton, who had been sitting at the back of the court during the hearing and heard the appellant’s evidence. He said he had material evidence to give about the respondent’s personal circumstances. Counsel arranged for a statement to be taken from him on the same day. He said that he had been in a relationship with the respondent’s third wife since around June 2012. She and her son moved into his house in November 2012. Divorce proceedings were at an advanced stage: a decree nisi would be pronounced on 3 March 2013 (i.e. five days hence). He had been present when she gave divorce papers to the prison liaison officer at the prison at which the respondent was detained on 13 December 2012. He said that he was aware that a police officer had served them on the respondent on 14 December 2012. He said that he was not aware of any meeting between the respondent and his third wife since June 2012 and claimed that the last time the respondent had seen his son was on Friday 11 January 2013, when he turned up unannounced at his son’s school.
The appellant invited the respondent to state whether he wanted Mr. Horton to attend to be cross-examined on 8 March 2013. He did not. The statement was, accordingly, submitted to Judge Riddle for him to take into account before he gave his ruling.
On the issue of oppression, Judge Riddle succinctly and accurately stated the approach which he was required to take by Section 82:
“A person’s extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be… oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence…
“Oppressive” is directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration….
It is established that oppression is more than hardship. There is almost always hardship attached to extradition. Oppression is an ordinary English word and need not be given a technical meaning. It should not be interpreted has having “sharp edges”. In this area other cases really do not help. The facts are not in dispute in any significant way. It amounts to this. Do I, taking all relevant facts in this case into account, think that extradition would be oppressive?”
He started with the importance of honouring extradition arrangements. He then took into account the chronology and in particular the following facts: the allegations dated to October 2002 to July 2004; the respondent was discharged by the Divisional Court on 30 July 2007; since discharge, he had committed the offences of fraud referred to above and was in custody from August 2009 until 21 December 2012. (This was in error: as noted, he was on licence for eight months of that period); and the dates on which the second extradition request was submitted and of the respondent’s arrest. As to his family’s circumstances he stated,
“In July 2009 the defendant married (for the third time) and shortly afterwards his son… is born. There is no statement from his wife and the relationship does not, on the face of it, seem strong. (The respondent) is 41 years old.” (This was an error: he was 51).
He also took into account the nature of the allegations against him in the United States and noted that there were 14 victims (in fact 7 victims who made 14 wire transfers between them) with losses of around $170,000. He noted that they were not offences of violence, but were nevertheless serious allegations.
He described the fact that the defendant was discharged in 2007 because of a failure to comply with time limits as “a very significant factor”. He stated, unsurprisingly for a judge expert in extradition proceedings, that the existence of time limits in such proceedings “is of real importance” and that “the legislators” (words no doubt chosen to include Parliament and EU legislators) intended to ensure that extradition proceedings were conducted in a timely way. He said that he was not particularly concerned about the reasons for delay: “The main question is the effect of delay”. Nevertheless, he stated, for the record, that the appellant was not responsible for the delay up to the respondent’s discharge on 30 July 2007. Nor was the respondent responsible for the delay in issuing proceedings: “He did not flee” and was easily traceable by the UK authorities. Some of the delay in concluding proceedings, however, could be laid at his door: if he had not been a serving prisoner, the extradition would have taken place in 2011. As already noted, the appellant was responsible for the delay in reissuing proceedings.
Judge Riddle noted that the respondent had not been truthful in evidence to him and that his attitude to the offences to which he pleaded guilty at Bristol Crown Court was “particularly unattractive and discourages the view that he can be rehabilitated”. On the other hand, he had reached an age where “as is well known, many criminals stop offending. Having a wife and baby are also recognised factors in rehabilitation, although it must be said that earlier marriages and earlier children have hardly had this effect on him, and he has scarcely lived with his current wife and child.”
Judge Riddle set out his conclusions in the last three paragraphs of his written reasons:
“In those circumstances to send him to another country over allegations that are now ten years old, when he was not at any stage a fugitive, has an oppressive feel to it. Central to that feeling of oppression is the fact that he was discharged in 2007 because time limits for extradition had been breached. Another important factor is that by early 2011 he must have thought that he would hear no more about these proceedings. (I reach that conclusion despite the lies that he told me about not being aware of the possibility of reissue).
None of these factors alone would make out the passage of time bar. The time alone, ten years since the alleged offences, is not enough. The fact that he has earlier been discharged is not enough. The delay in issuing proceedings is an important factor, but it is not alone enough. The fact that he is married and has a small child is a factor, but not a substantial factor (especially as he has been in custody for most of the child’s life and for much of the marriage). The non-violent nature of the offences and the amount of money involved is not, even in combination with other factors, enough. The fact that he has since served comparatively lengthy sentences for similar offences in this country is not enough. However the combination of all these features takes this case beyond hardship and becomes oppression. The factor that weighs most heavily with me is that the original discharge was in 2007, and that in itself was a result of breach of time limits.
This is a marginal case. On very similar facts another court might conclude that there was hardship but not oppression.”
On 8 March 2013, Counsel for the appellant submitted that the witness statement from Mr. Horton should be taken into account. It is not clear from the ruling which he made whether Judge Riddle did accede to that submission. He said that he had prepared his reasons on 27 February 2013, but in the light of the new evidence, had added a paragraph at the end of his judgment which he summarised
“The disputed point was not a significant factor in my original decision, though I did attach some weight to it. There is a broader point, which is that it is now almost commonplace for further information and argument to be put before the court after retiring. Only in the most exceptional circumstances will such information be taken into account”.
The added paragraph reads as follows:
“Since dictating this judgment (shortly after the hearing) further doubt has been cast on his family ties. These were not a significant factor in my original decision (although I did attach some weight to the possibility that a wife and child might help with rehabilitation). The new information, if true, confirms my view that Mr. Wood was not a truthful witness, but overall does not affect my decision”.
Jurisdiction
This appeal is brought under Section 105 of the 2003 Act. Under Section 105(5) notice of appeal must be “given in accordance with rules of court” before the end of 14 days starting with the day on which the order for the respondent’s discharge was made – 8 March 2013. The appellant had until midnight on 21 March 2013 to give notice of appeal. On 19 March 2013, within time, the appellant filed a notice of appeal with the Administrative Court and served it on the respondent. Neither the notice of appeal nor a copy of it was served on the Secretary of State for the Home Department until 25 March 2013. By an application notice issued on 26 June 2013, the Secretary of State applied for permission under CPR 52.12A(1)(b) to make representations at the appeal hearing. We granted permission at the outset of the hearing. The Secretary of State did not thereby become a party to the appeal.
It is common ground and settled law that a notice of appeal to the High Court brought under Parts 1 and 2 of the 2003 Act must be both filed at the Administrative Court and served on any and all respondents within the time limit specified (in England and Wales) in the rules of court and that time may not be extended: Mucelli v. Government of Albania [2009] 1WLR 276 at paragraphs 60, 61 and 74 per Lord Neuberger of Abbotsbury. If notice of appeal is not given in time, the court has no jurisdiction to entertain the appeal.
The rules of court governing appeals under the Extradition Act 2003 are set out in 52 PD D 21.1, to which the rules of general application in CPR 52 are subject: CPR 52.1(4). PD 52 D 21.1(6) provides,
“Where an appeal is brought under Section 105 of the Act, the appellant’s notice must be filed and served before the expiry of 14 days, starting with the day on which the order for discharge is made.”
This does not identify upon whom a notice of appeal must be served. This is achieved by CPR 52.4(3), which requires that an appellant’s notice “must be served on each respondent”. The time limits there specified are replaced by those set out in PD 52 D 21.1(6), but the obligation to serve on the respondent is not. “Respondent” is defined by CPR 52.1(3)(e),
“(i) A person other than the appellant who was a party to the proceedings in the lower court and who is affected by the appeal; and
(ii) a person who is permitted by the Appeal Court to be a party to the appeal”.
Hence, the conclusion of the Appellate Committee in Mucelli reaffirmed in similar language by Lord Mance in paragraph 18 of Halligen v. Secretary of State for the Home Department [2011] 1WLR 1604, that the “notice of appeal” must be served on the respondent.
CPR 52.1(3)(e)(i) requires two conditions to be satisfied before a person is to be treated as a respondent for the purpose of service of a notice of appeal: he must have been a party other than the appellant to the proceedings in the lower court and he must be affected by the appeal. Thus, in a multi-party action, a person who has settled all the claims affecting him in the case in which an appeal is brought is not a respondent for the purpose of the appeal, because he will not be affected by it. Likewise, a person who was not a party to the proceedings is not a party to the appeal even if he would be affected by it. If he wishes to be added as a party, he must apply for permission to be joined under CPR 19.4. If he merely wishes to make submissions, he must apply under CPR 52.12A(1)(b), as the Secretary of State has done.
The Secretary of State was not a party to the extradition hearing before Judge Riddle or to any of the applications which preceded it. Although she will be affected by the appeal to this court, because, if the appeal succeeds, she will have to decide whether or not to order extradition, the dual test in CPR 52.1(3)(e)(i) is not satisfied. Nor does she fall within the definition of respondent in CPR 52.1(3)(e)(ii), because she has neither sought nor been permitted by this court to be a party to the appeal.
Mr. Jones QC for the respondent accepts those propositions, but nevertheless submits that, to give effect to the statutory scheme, she must be served with a notice of appeal under Section 105 in every case in which she may become involved in the proceedings. He submits that the default position is that she must be served unless it is clear that she will not be. He does not rely on PD 52 D 21.1(12), which provides,
“Where an appeal is brought under Section 103, 105, 108, or 110 of the Act, the appellant must serve a copy of the appellant’s notice on –
the Crown Prosecution Service; and
the Home Office
if they are not a party to the appeal, in addition to the persons to be served under Rule 52.4(3) and in accordance with that rule.”
He is right not to do so. The rule does not require that the notice of appeal is served on a party: it requires that a copy of the notice of appeal is served on someone who is not a party. Further, if it did have that effect, service would be required “in accordance with” Rule 52.4(3) which requires an appellant’s notice to be served,
“on each respondent –
as soon as practicable; and
in any event not later than 7 days,
after it is filed.”
A copy of the appellant’s notice was served on the Secretary of State not later than 7 days after it was filed.
33. Mr. Jones’s submission is squarely founded on Halligen. The essential facts were as follows. On 4 November 2010 the City of Westminister Magistrates’ Court ordered that his case be sent to the Secretary of State for her to decide whether he should be extradited. The Secretary of State ordered his extradition on 22 December 2010. The letter notifying him of that decision informed him of his right under Section 108 to give notice of appeal within 14 days to the High Court. It pointed out explicitly that “the giving of such notice requires both filing and service of the appellant’s notice within such 14 days” and that under the rules “any papers filed at the High Court must also be served upon the Home Office and the Crown Prosecution Service”. We have not seen the letter and it is not clear to us whether the Secretary of State intended thereby to refer to PD 52 D 21.1(12) or gave expression to a belief that both the Secretary of State and the CPS (as agents of the requesting state, the Government of the USA) were parties to the proceedings in the lower court and so were respondents as defined by CPR 52.1(3)(e)(i). In fact, the Government of the USA had been a party to the extradition hearing which had resulted in the decision of the court to send the case to the Secretary of State. There was, however, no appeal against that decision. The only decision challenged was that of the Secretary of State and the only respect in which it was challenged was that he had not ordered Mr. Hallingen’s discharge under Section 208 of the 2003 Act (extradition against the interests of national security) – one of the limited grounds which the Secretary of State was required to decide under Section 93. Accordingly, it was not obvious that the Government of the USA/CPS was a respondent upon whom service of the appellant’s notice was required for it to be “given”.
34. Lord Mance does not explain how the Supreme Court arrived at the conclusion that the CPS was a respondent. It was simply assumed that it was:
“20. The position in Halligen is more problematic. Again his notice of appeal was filed with the court in time, but notice was required to both the Secretary of State and the Crown Prosecution Service…
21. However, Mr. Halligen faces the further difficulty that he has to show that notice of an appeal was given to the Crown Prosecution Service.”
Lord Mance went on to conclude that no notice of appeal was in fact given to the CPS.
35. We have received conflicting submissions from Mr. Lewis QC for the appellant and Mr. McClelland for the Secretary of State about the route by which the Supreme Court arrived at that conclusion. Mr. Lewis submits that the government of the USA was a party to the proceedings which led to the challenged decision and so was properly treated by the Supreme Court as a respondent. Mr. McClelland submits that the Supreme Court proceeded on the erroneous assumption that PD 52 D 21.1(12) required the appellant’s notice to be served on the CPS as a respondent.
36. Mr. Jones does not submit that the reasoning in Halligen requires us to find that the Secretary of State must be served as a respondent for an appellant’s notice to be effective. Nevertheless, he submits that the outcome is in accordance with the scheme of Part 2 of the 2003 Act. A decision to extradite requires two stages: a decision of the Magistrates’ Court to send the case to the Secretary of State; and a decision by her to order extradition. The proceedings are composite. At all stages after the extradition hearing in the Magistrates’ Court, both the requesting territory and the Secretary of State are, or should be treated as, parties to the proceedings and must be served as respondents to any appeal. This argument has force when the appeal is brought under Section 103. An appeal against a court’s decision to send the case to the Secretary of State may be brought before the Secretary of State has made her decision, but must not be heard until after she has: Section 103(5). Notice of appeal can be given before the Secretary of State has made her decision, but need not be: an appellant has until 14 days after that decision has been made before giving notice, even if the only ground of appeal is that the court erred in its decision to send the case to the Secretary of State: Section 103(9). This analysis is consistent with the decision of the Supreme Court in Halligen that the CPS/Government of the USA was a respondent and may be the explanation for it.
37. However, it has no application to an appeal under Section 105. The only decision against which an appeal is brought is the judge’s decision to order the requested person’s discharge. The only proceedings giving rise to that order were those before the court. The Secretary of State was not a party to those proceedings. It follows that, for the purposes of an appeal under Section 105, unless she has been joined in the proceedings below by an order of that court, she is not a respondent and need not be served with the appellant’s notice. The only obligation of the appellant is that set out in PD 52 D 21.1(12): to serve a copy of the appellant’s notice within the time limit specified in CPR 52.4(3). Further, even if that obligation is not fulfilled, it does not go to the jurisdiction of the High Court to hear the appeal.
38. Given that conclusion, it is unnecessary for me to express any view about the reasoning and decision of the Divisional Court in Aldhouse v. Royal Government of Thailand [2012] EWHC 191 (Admin) that it was not necessary to serve the Secretary of State in an appeal under Section 103 in which the only decision challenged was that of the court to send the case to the Secretary of State.
Oppression
39. Section 82 of the 2003 Act provides,
“A person’s extradition to category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be …. oppressive to extradite him by reason of the passage of time since he is alleged to have –
(a) committed the extradition offence…”
40. Judge Riddle’s statement of the principles upon which that issue was to be decided was taken from a paragraph in Lord Diplock’s speech in Kakis v. Government of the Republic of Cyprus [1978] 1WLR 779 at 783 C – D,
“As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. So where the application for discharge under Section 8(3) is based upon the “passage of time” under paragraph (b) and not on the absence of good faith under paragraph (c), the court is not normally concerned with what could be an invidious task of considering whether mere inaction on the part of the requisitioning government or its prosecuting authorities which resulted in delay was blameworthy or otherwise.”
41. Mr. Jones submits that the universal practice of courts since Kakis of approaching the issue of oppression on the basis set out in Lord Diplock’s speech overlooks the more holistic approach taken by the House of Lords in Union of India v. Narang [1978] AC 247 and requires qualification when the conduct of the requesting state, including its delay, is culpable. I do not accept that submission. Kakis was decided after Narang. Two members of the Appellate Committee, Lord Edmund Davies and Lord Keith of Kinkel heard both appeals. Narang was cited and expressly considered in Kakis. Lords Edmund Davies and Keith expressed opinions in Kakis which reflected the views of the House of Lords in Narang and differed in content and emphasis from those of Lord Diplock. Nevertheless, Lord Diplock’s analysis, which formed part of the ratio decidendi of the case, was expressly adopted by the majority in Kakis: Lord Russell of Killowen at 785 F and Lord Scarman at 790B. Judge Riddle was bound to follow that approach, as are we.
42. Lord Diplock’s formulation is not, however, rigid. What he said was that the question of where responsibility lies for the delay “is not generally relevant”, not that it cannot be or never is. It is not difficult to envisage circumstances in which it might be. The conduct of a requesting state would be relevant if its judicial or prosecuting authorities told a person suspected of having committed an offence that he would not be prosecuted and was free to leave its territory. It might then not be difficult for the requested person to establish that he had since conducted his life on the footing that he could rely on those statements. Not much time might need to have passed before it would become oppressive for him to be extradited. But, even in such a case, it would be necessary for the requested person to establish that the passage of time, in the light of the conduct of the requesting state, had resulted in some effect which would make it oppressive to extradite him.
43. Mr Jones also submits that it is not necessary for a requested person to establish an “extreme case” before a court could find that it would be oppressive to extradite him. Again, he relies on the observations of Lord Edmund Davies in Narang at 285 F – G. I accept this submission. It would be at least odd that, when considering an individual’s Article 8 rights, which often substantially overlap oppression issues, the court must not adopt an “exceptionality” test, but must do so when considering oppression. What the court must do is to apply the statutory test as explained by Lord Diplock in Kakis and nothing more.
44. In any case in which the passage of time is relied upon, it is first necessary to establish how much time has passed. Judge Riddle put the time at ten years since the alleged offences. I respectfully suggest that he somewhat overstated the position. The alleged offences constituted a course of conduct which ended on 25 May 2004. The appellant’s extradition request was submitted to the United Kingdom on 8 November 2010. The delay between then and the conclusion of the extradition hearing on 8 March 2013 was, as Judge Riddle accepted, and as I have set out at paragraphs 16 and 17 above, entirely the responsibility of the respondent. In the end, it may not matter whether that period is discounted at the end or the beginning of the judgment on oppression; but, in a case such as this, in which all of the delay since the making of the extradition request is the responsibility of the requested person, it is preferable to identify, at the start, the period of delay for which the respondent is not responsible.
45. In the passages of his judgment which I have set out in paragraph 25 above, Judge Riddle identified six factors which he took into account. I will deal with them in turn.
(i) Time: For the reasons explained, I think the delay is better taken as 6 ½ years than ten.
(ii) I accept that the fact that he was discharged on 30 July 2007 is a relevant factor, but I would not give it much weight. For the reasons explained, the respondent was the fortunate beneficiary of an understandable mistake by the Secretary of State. As Judge Riddle found, he did not believe then that that would be an end of the matter.
(iii)I agree with Judge Riddle’s conclusion that the delay in making the extradition request (“the delay in issuing proceedings”) is an important factor and, as he said earlier in his judgment, was without good reason.
(iv) I understand Judge Riddle’s conclusion that the fact that he was married and had a small child was a factor, but not a substantial factor. I would, however, go further than he did in analysing this factor. It was the fact upon which the respondent placed greatest weight in resisting extradition, as explained in paragraph 12 above. He sought to create the impression that, despite his imprisonment in the United Kingdom, there remained a viable family life with his third wife and child, which he would not have entered into but for his belief that extradition proceedings would never come back. He lied both about that belief and about his current circumstances. The unchallenged evidence of Mr. Horton, which was, or should have been, admitted, for the reasons explained below, destroyed what was left of his case on this important issue.
(v) If Judge Riddle was of the view that the non-violent nature of the offences and the amount of money involved were factors capable of counting in the respondent’s favour, I disagree. As he noted, the offences alleged are serious. The amount of money is not, in my opinion, insubstantial. There is a significant public interest in ensuring that he stands trial on these charges.
(vi) If Judge Riddle did decide that the fact that he had served comparatively lengthy sentences for similar offences in the United Kingdom was a factor capable of giving rise to oppression, I disagree. If, by reason of his earlier observations, he thought that it would be oppressive to deprive the respondent of the opportunity of rehabilitation, after his release from the most recent sentence, again I do not agree. For the reasons given by Judge Riddle and emphasised above, the respondent had done nothing to show that he had begun to be rehabilitated after many years of persistent and repeated fraudulent activities.
46. What the history of the respondent’s activities set out above demonstrates is that the passage of time has had no impact upon him. At the end of the 1990s, he was committing fraud by pretending to sell heavy machinery to American citizens and companies and obtaining substantial deposits from them for goods that were never delivered. He was not deterred by his conviction and imprisonment in the United States. If the allegations against him as set out in the extradition request are well-founded, he resumed committing precisely the same type of offence within two years of his deportation from the United States. The abortive extradition proceedings against him in 2006 – 07 did not cause him to re-evaluate his way of life. He began committing similar offences within weeks of his discharge and continued to do so for almost two years. He was not deterred by being arrested and bailed in the midst of that offending. Nor was he deterred by forming a relationship and co-habiting with the woman who was to become his third wife. Even by the time of the extradition hearing, there was no evidence that he had changed his spots: Judge Riddle found that his attitude to the UK offences was “particularly unattractive and discourages the view that he can be rehabilitated”. In summary, the only proven effect of the passage of time has been that it gave the respondent further opportunity to commit serious offences of fraud in and from England. I am satisfied, by a wide margin, that it would not be oppressive to extradite the respondent. In my judgment, Judge Riddle’s conclusion to opposite effect was wrong.
47. In the remarks cited in paragraph 26, made immediately before he handed down his judgment on 8 March 2013, Judge Riddle suggested that only in the most exceptional circumstances would information put before the court after retiring be taken into account. I note his comment that this practice is “now almost commonplace” and agree with his wish to discourage it. It may be possible to do so by directions given at or before the start of the hearing, but, as a matter of jurisdiction, there is nothing to prevent a party from putting evidence in a Part 2 case before judgment is handed down. This conclusion follows from the wording of Section 140(1),
“The extradition hearing is the hearing at which the appropriate judge is to deal with a request for extradition to a category 2 territory”.
The relevant judge will not “deal” with the request until he has made a decision upon it. Consequently, the extradition hearing only concludes at that stage.
Abuse of process
48. Judge Riddle dealt shortly with the submission that, by re-issuing the extradition request after the discharge of the respondent on 30 July 2007, the appellant had committed an abuse of process. He stated, as Mr. Jones accepted, that it is not in itself abusive to issue a second extradition request following the failure of the first. He concluded that there was no evidence of any bad faith or improper motive on the part of the US authorities and that he accepted the explanation for the request given by Mr. Davis. He said that delay, even unjustified delay, “does not constitute a stand-alone ground of abuse of process”.
49. Since the judgment of the Divisional Court in Bermingham v. Director of the Serious Fraud Office [2007] QB 727, it has been accepted that an abuse of process jurisdiction exists in extradition cases, to protect the integrity of the statutory scheme. This is because the statutory power to consider abuse contained in the Extradition Act 1989 (see, for example, Section 11) is not replicated in the 2003 Act. I accept that there is such a power and that it is to be exercised for the purpose of protecting the integrity of the statutory regime.
50. It is not necessary to speculate upon the circumstances in which the power might be exercised. The facts of this case do not get anywhere near establishing an abuse of process. All that has happened is that, for the reasons explained, the first extradition request failed. There was then a delay of 3 ½ years before a second request was made. The delay has been explained, but not excused, by Mr. Davis. If the respondent’s circumstances and conduct had been different, it might have become oppressive to extradite him. But the fact of unexcused delay of the length in issue here does not require the court to step in to prevent abuse of the statutory scheme. That scheme does not require an extradition request to be made at any particular time. The later it is made, the more likely a finding of injustice or oppression will be; but where all that is relied upon is re-issue and unjustified delay, there will be no abuse of process. In a Part 2 case, Section 82 provides, exclusively, for the manner in which the consequences for the requested person are to be evaluated. There is no need to make use of the residual abuse of process jurisdiction. Even if there were, on the facts, there is no basis for doing so.
Conclusion
51. For the reasons given, I would allow the appeal under Section 106(1)(a) and quash the order discharging the respondent, remit the case to Westminster Magistrates’ Court with a direction to send the case to the Secretary of State under Section 106(6)(c) and order that he be remanded on bail under Section 106(9), to appear at 10.00 am on Thursday 11 July 2013 at Westminster Magistrates’ Court for that Court to determine whether he should be remanded in custody or on bail to await the decision of the Secretary of State.
LORD JUSTICE RICHARDS
I agree.