Jaffar, R (on the application of) v The Secretary of State for the Home Department & Anor

The claimant, Fouad Khaled Jaffar, challenges the decision by the Secretary of State to order his extradition to Spain to face criminal charges for the equivalent under Spanish law of conspiracy to defraud. The charges relate to the period between 1988 and 1992 when Mr Jaffar was an officer of Grupo Torras SA, a Spanish company owned by the Kuwait Investment Office. He is alleged (and has been found in civil proceedings in this country) to have conspired with others to defraud Grupo Torras out of many millions of dollars. He resists extradition on two grounds: first, that the criminal charges against him which are the subject of the extradition request are time barred under Spanish law; and second, that by reason of the passage of time since he is alleged to have committed the offences it would be unjust or oppressive to return him to Spain. The Secretary of State determined both issues against Mr Jaffar. The question for us is whether her decision was Wednesbury unreasonable and therefore unlawful.

Mr Jaffar, now aged 67, was born in Kuwait but has lived in the United Kingdom since 1958, marrying a British wife (now deceased) in 1971. Their two children were born in the United Kingdom and are British citizens. In 1994 Mr Jaffar became a British citizen by naturalisation.

The Kuwait Investment Office (“KIO”) was the controlling shareholder in Grupo Torras SA (“GT”), which it used as an investment vehicle for Kuwaiti Government funds in Spain. Mr Jaffar was the deputy chairman and general manager of the KIO from 1 July 1984 until 21 April 1990 and was a director and vice president of GT from June 1986 until 26 May 1992. He was also a director of various other associated companies.

On 8 January 1993 GT commenced Spanish criminal proceedings against Mr Jaffar and others by filing a complaint which went on to give rise to the first and second extradition committal charges (see [10] below). Mr Jaffar filed various objections to the Spanish criminal proceedings, but these objections were not successful and on 11 February 1994 the Spanish court formally accepted the complaint. The Spanish criminal proceedings were extended on 18 November 1996 to encompass the matters which are the subject of the third to fifth charges. As a result of Mr Jaffar’s absence from Spain, the criminal proceedings did not proceed further against him, but they did proceed against other defendants including Mr Javier de la Rosa, the vice-chairman of GT, with the results described at [35] to [39] below.

Meanwhile in 1994 GT commenced civil proceedings against Mr Jaffar and others in the Commercial Court in London. On 24 June 1999 Mance J gave judgment in GT’s favour after a trial lasting many weeks: Grupo Torras SA v. Al-Sabah [1999] EWHC 300 (Comm), [1999] CLC 1469. Mr Jaffar was represented by Simmons & Simmons, a well known firm of City solicitors, and by leading and junior counsel, and participated fully in the proceedings during the interlocutory stages and until day 25 of the trial. We were told that he personally made as many as 52 affirmations in the course of the proceedings. I would infer that those acting for him left no stone unturned in their efforts to ensure that his case was fully set out and that whatever evidence was available from other witnesses which would support his defence was before the court in the form of written witness statements.

On day 25, however, which was before Mr Jaffar was called to give oral evidence, but must have been after his counsel had an opportunity to cross examine at least the principal GT witnesses, Mr Jaffar and his legal team withdrew from the proceedings. They maintained that this was due to Mr Jaffar having been declared bankrupt, but Mance J did not accept that this was the true explanation. He found that the withdrawal was "without doubt" precipitated by the disclosure of damaging documents produced by a Swiss investigating judge in criminal proceedings against another defendant in Switzerland: see page 1475C.

In the result Mance J gave judgment against Mr Jaffar for a total sum in excess of US $450 million and found that he had personally benefited from the fraud to the tune of US $47.5 million: see pages 1561F-G and 1679C-E. Of course, this was a finding to the civil and not the criminal standard of proof, and in any event is not binding in the Spanish criminal proceedings or in these extradition proceedings, but it demonstrates that (subject to his limitation defence under Spanish law) there is at the very least a powerful case for Mr Jaffar to answer.

The extradition process began on 6 June 2001, when the Spanish authorities requested Mr Jaffar’s extradition. At that time the applicable legislation was the Extradition Act 1989 and that remained the position after the coming into force of the Extradition Act 2003 as a result of transitional provisions contained in statutory instruments. On 20 November 2001 the Secretary of State issued an Authority to Proceed, the formal opening stage in extradition proceedings under the 1989 Act.

There were five extradition committal charges which accompanied the Authority to Proceed. These did not necessarily correspond precisely to the criminal charges which Mr Jaffar would face on return to Spain. Rather, their purpose was to demonstrate to the court at the committal hearing that the conduct alleged against Mr Jaffar amounted to an “extradition crime” – that is to say, using the terminology of section 2 of the 1989 Act, that if such conduct had occurred within the United Kingdom, it would have constituted a criminal offence punishable by 12 months’ imprisonment or more.

There is an issue whether the transactions which have given rise to the charges against Mr Jaffar can be regarded as a single continuing offence (“delito continuado”) under Spanish law, but without prejudice to that issue (the significance of which is explained at [31] below) it is convenient to summarise them very briefly as follows, giving them the labels which they have been given in the Spanish and the English proceedings:

Although it is common ground that the Pincinco transaction was included within the fifth extradition committal charge, that charge is expressed in very general terms as a single “umbrella charge” of conspiracy to defraud covering the whole period from 1987 to 1992. It therefore includes also the conduct covered by the first four charges. It would appear that this demonstrates an intention on the part of the Spanish authorities from an early stage to prosecute all of the conduct alleged against Mr Jaffar as falling within a single continuing conspiracy (and thus as a delito continuado), although the concept of delito continuado is not expressly mentioned in the extradition request or in the Spanish charges. It is clear that they intend to do so now.

The summary above is no more than the briefest summary of transactions which were extremely complex. They were found by Mance J to be deliberately complex with a view to covering the conspirators’ tracks (see [1999] CLC 1469 at 1480A). With the exception of INPACSA, which did not form part of the English civil proceedings, the full story is told in his judgment, but it need not be rehearsed further here.

The original Authority to Proceed turned out to be defective and had to be quashed and replaced but eventually, on 4 November 2002, Bow Street Magistrates’ Court committed Mr Jaffar on bail to await the Secretary of State’s decision on extradition, pursuant to section 9(8)(a) of the 1989 Act. Mr Jaffar then applied for a writ of habeas corpus pursuant to section 11 of the 1989 Act. The grounds of this application were the same as those currently relied on, namely that the charges against Mr Jaffar were time barred under Spanish law (for which purpose reliance was placed on evidence given by Señor Ernesto Diaz-Bastien, a Spanish advocate experienced in criminal law and procedure in an international context), and that by reason of the passage of time it would be unjust or oppressive to return him to Spain.

The case was heard on 25 November 2003. This court (Lord Woolf CJ and Mackay J) dismissed Mr Jaffar’s application (Jaffar v. Governor of HM Prison Brixton [2003] EWHC 3077 (Admin)). In summary, it did so because as matters then stood: (1) at least one of the charges (INPACSA) was not time-barred and the position regarding the other four was not clear; that being so, limitation was better determined by the Secretary of State than on an application for habeas corpus (see in particular [14], [23] and [28] of the judgment); and (2) return to Spain would not be unjust or oppressive (see [31]).

It is Mr Jaffar’s case that a later decision of the Spanish Constitutional Court has shown that INPACSA (as well as the other charges) is indeed time barred. He points out also that a further 9 ¼ years has passed since the decision of this court on his habeas corpus application during which, he says, the injustice and oppression which would be caused by his return to Spain have increased substantially.

On 10 December 2003 the Secretary of State notified Mr Jaffar that he was contemplating making an order for his return. Accordingly, from January to August 2004 Mr Jaffar submitted to the Secretary of State three sets of representations pursuant to section 13(2) of the 1989 Act, explaining why his return to Spain should not be ordered.

This case was opened to us on the basis that the Secretary of State then forgot about Mr Jaffar’s case from January 2004 to December 2008, a period of almost five years. Indeed the Secretary of State accepted this, describing it as a regrettable administrative oversight. In fact, however, it became apparent during the course of the hearing that in January 2004 Mr Jaffar had expressly requested the Secretary of State to defer making a decision on his extradition until the conclusion of the Spanish criminal proceedings against Mr de la Rosa and others, including any appeals, which it was acknowledged might take several years. Those proceedings were not finally concluded until April 2009, although in September 2007 there was an important decision on appeal of the Spanish Supreme Court, holding that in Mr de la Rosa’s case the Oakthorn 1 and 2 and Pincinco charges did constitute a delito continuado and were not time barred. However, it seems that this only came to the Secretary of State’s attention in October 2008 when the Spanish prosecutor asked for an update on the progress of the extradition proceedings.

There was of course no point in requesting a deferral of a decision in Mr Jaffar’s case until after the conclusion of the proceedings against Mr de la Rosa unless Mr Jaffar accepted, implicitly at least, that the decision of the Spanish courts in Mr de la Rosa’s case was going to determine, or at any rate provide material guidance as to, Mr Jaffar’s position.

On 3 December 2008 the Secretary of State finally made an order for Mr Jaffar’s return to Spain. However, in response to a threat of proceedings for judicial review and in view the passage of time since the earlier representations in 2004, the Secretary of State agreed to reconsider Mr Jaffar’s case in the light of fresh up-to-date representations. Those representations (which included further evidence from Señor Diaz-Bastien) were submitted on 23 February 2009, 31 July 2009, 17 June 2011 and 25 November 2011. In addition, during 2010 and 2011 Mr Jaffar made an application to the Spanish courts for the dismissal of the criminal proceedings against him on limitation grounds, and consequently the cancellation of the extradition request. Again at Mr Jaffar’s request, the Secretary of State agreed to defer a further decision on extradition in the hope that an authoritative decision on limitation would be made by the Spanish courts. Mr Jaffar’s application in Spain was taken as far as the Spanish Constitutional Court, but it was rejected on the basis that a decision on limitation could not be made unless Mr Jaffar was personally present in Spain.

The Secretary of State then made a further decision, on 25 January 2012, confirming the order for Mr Jaffar’s return. This was challenged by way of this judicial review claim, lodged on 12 March 2012. The grant of permission on the papers by Ouseley J on 25 April 2012 prompted Mr Jaffar to invite the Secretary of State to reconsider the decision, which she agreed to do. As part of that process of reconsideration, the Secretary of State sought the opinion of Señor Jorge Ramos (a lawyer within the Spanish Prosecutor’s office, although not involved in the prosecution of Mr Jaffar), responding to the evidence on limitation given in the first four witness statements of Señor Diaz-Bastien. Señor Ramos’s report was provided to Mr Jaffar for comment in November 2012 and led eventually to further reports on behalf of Mr Jaffar from Señor Diaz-Bastien and another Spanish advocate, Señor David Velázquez Vioque, and a final response by Señor Ramos.

On 8 February 2013 the Secretary of State made a decision to maintain the order for return. So far as limitation is concerned, the reasoning in this decision supersedes in their entirety the earlier decisions of 3 December 2008 and 25 January 2012. However, the 8 February 2013 decision does not address the issue of injustice and oppression as a result of the passage of time and on that issue the Secretary of State’s reasoning is to be found in the 25 January 2012 decision.

The Secretary of State’s power to make an “order for return” is contained in section 12 of the Extradition Act 1989:

“(1)

Where a person is committed under section 9 above and is not discharged by order of the High Court …, the Secretary of State … may by warrant order him to be returned unless his return is prohibited, or prohibited for the time being, by this Act, or the Secretary of State decides … under this section to make no such order in his case.

(2)

Without prejudice to his general discretion as to the making of an order for the return of a person to a foreign state, Commonwealth country or colony or to the Hong Kong Special Administrative Region –

(a)

the Secretary of State … shall not make an order in the case of any person if it appears to the Secretary of State … in relation to the offence, or each of the offences, in respect of which his return is sought, that

(i)

by reason of its trivial nature; or

(ii)

by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or

(iii)

because the accusation against him is not made in good faith in the interests of justice,

it would, having regard to all the circumstances, be unjust or oppressive to return him; …”

It is common ground that in exercising her discretion under section 12, the Secretary of State must not make an order for extradition if so doing would breach a provision of the underlying extradition treaty, here the European Convention on Extradition 1957. In the present case the only treaty provision of direct relevance is Article 10, which provides:

“Extradition shall not be granted when the person claimed has, according to the law of either the requesting or the requested Party, become immune by reason of lapse of time from prosecution or punishment.”

Accordingly there were two issues for the Secretary of State, namely (1) whether according to Spanish law Mr Jaffar “has become immune” from prosecution by reason of lapse of time, and (2) whether by reason of the passage of time since he is alleged to have committed the offences it would, having regard to all the circumstances, be unjust or oppressive to return him to Spain.

I record that Mr John Hardy QC for Mr Jaffar did not repeat before us the submission rejected in Atilla v. Government of Turkey [2006] EWHC 1203 (Admin) that when an issue of limitation is raised, the Secretary of State must not order extradition unless she is satisfied to the criminal standard of proof that the foreign proceedings are brought in time, although he indicated that he might wish to make such an argument if this case were to reach a higher court. Before us he accepted that it is for the person claimed to satisfy the Secretary of State that it is more likely than not that the proceedings are time barred.

There was some debate before us as to whether (when the issue is raised) the Secretary of State is always required to make a decision on limitation one way or the other, or whether there exists a category of case where the arguments are so finely balanced that it is open to the Secretary of State to order extradition without making a decision either way, leaving the decision on limitation to the courts of the requesting state. Jack J adverted briefly to this possibility at [25] of his judgment in Atilla (“It is possible that the material before the Secretary of State as to an issue under Article 10 might be such that no rational view could be formed”) but it was unnecessary to consider the point further because the Secretary of State in that case had made a reasoned decision.

If it mattered, and despite Jack J’s deprecation at [21] of his judgment in Atilla of the concept of a burden of proof in this context, my view would be that the Secretary of State must make a decision under Article 10, but that it is for the person claimed, in this case Mr Jaffar, to persuade her that it is more likely than not that he “has become immune” by reason of limitation. Accordingly in a case where the arguments are genuinely so equal that it is impossible to say that either conclusion is more likely than the other, the Secretary of State’s decision should be, not that it is impossible to make a decision, but that the person claimed has failed to show that he has become immune and, other things being equal, he should therefore be returned. (Those other things, of course, include that there will be a fair trial of the limitation issue in the foreign court, as it is accepted that there will be in the present case). I would reach that provisional conclusion for three reasons: (1) it gives effect to the “has become immune” language of Article 10; (2) Article 10 is an exception to the general public policy in favour of extradition; and (3) there will be no injustice in leaving the decision to the foreign court, which will generally be in a much better position than the Secretary of State to resolve disputed points of fact and apply its own laws to those facts. In practice, however, the result is likely to be the same whichever approach is adopted, namely that an order for return will be made.

In my judgment, however, and whatever the position may have been in relation to the Secretary of State’s decision of 25 January 2012, this issue does not now arise. As shown below, the only possible reading of the decision of 8 February 2013 is that the Secretary of State has now made a positive decision that Mr Jaffar does not have a limitation defence to any of the charges which he faces in Spain. For the reasons given below I would reject the submission of Mr Hardy that the Secretary of State has unlawfully failed to make a decision on the question of limitation (as he put it, “effectively … ‘passing the buck’, and relinquishing her authority and duty to perform her statutory functions”). The Secretary of State’s further observations as to what the position would be if it were impossible to make a decision one way or the other represent a fallback position which will not arise unless her primary conclusions can be successfully challenged.

The Secretary of State’s decision to make an order for return under section 12 of the 1989 Act can be challenged by a claim for judicial review, for which the permission of the court is required: see section 13(6). On an application for judicial review, the Court’s role is a supervisory one, but in a context where the liberty of the subject is concerned. In R v. Secretary of State for the Home Department, ex parte Patel (1995) 7 Admin LR 56, Henry LJ described the court’s role in these terms:

“The statutory question that the Minister had to answer was whether it would be unjust or oppressive to return the applicant by reason of the passage of time in all the circumstances of the case. That was a question profoundly affecting the liberty of the subject … Therefore the Minister must exercise his discretion with the greatest care, just as the reviewing court must approach their task with the care that a matter concerning the liberty of the subject requires, while never losing sight of the fact that their task is one of review not appeal.”

Although this was directed to the court’s approach to a decision by the Secretary of State on the passage of time issue under section 12(2)(a)(ii), it is common ground that the same approach applies to a review of the Secretary of State’s decision on limitation under Article 10 of the Convention.

It is common ground between the Spanish law experts that (1) the Spanish Penal Code provides for limitation periods to operate in respect of criminal offences; (2) time runs in general from the date when commission of the offence is complete and is interrupted when proceedings are begun; (3) the limitation period applicable to the offence of conspiracy to defraud is five years unless the conspiracy can be regarded as a (or as part of a) continuing offence or delito continuado; (4) in the case of a delito continuado the applicable limitation period is ten years, not five; (5) in order to constitute a delito continuado there must be a series of events, making one extended crime; and (6) this test must be applied specifically to each individual defendant in order to determine whether their particular involvement in the alleged offence(s) constitutes a delito continuado.

The experts disagree, however, on what acts constitute the commencement of proceedings in order to interrupt limitation. Señor Diaz-Bastien and Señor Velázquez say that Spanish law on this question was transformed by decision 29/2008 of the Constitutional Court dated 20 February 2008 which the former describes as “a landmark judgment". They say that the effect of this judgment is that, contrary to what was previously understood, limitation will only be interrupted once the Spanish court formally accepts the criminal proceedings by a judicial decision ordering the start of proceedings, either by way of investigation or as a charge. Señor Ramos, however, maintains that decision 29/2008 decides nothing more than that limitation is not interrupted by the mere filing of a complaint without anything more, and that the requirement of a degree of judicial knowledge and control of the proceedings so as to enable the offender to understand that proceedings against him have begun may be satisfied in a variety of ways.

Señor Velázquez referred briefly in his report to legislation coming into force in December 2010 which provided explicitly that limitation is only interrupted when the proceedings are formally accepted. He relied on this as supporting his interpretation of decision 29/2008. However, a note which he provided to us after the hearing shows that the legislation has adopted a more nuanced position. It provides (1) that proceedings are deemed to be brought when a reasoned judicial decision is handed down, but also (2) that the running of limitation is suspended for a maximum of six months when a complaint is filed. However, neither Señor Diaz-Bastien nor Señor Ramos even mention this legislation as casting light on the correct interpretation of decision 29/2008. For my part I find it hard to see how legislation which tracks a careful middle way between two extreme positions which may be found in the prior case law is relevant to the interpretation of that case law. In his post hearing note Señor Velázquez appears to go further, suggesting also for the first time that the 2010 legislation may apply retrospectively to Mr Jaffar’s case. Señor Ramos has not had an opportunity to comment on that suggestion and it was not made by either Señor Velázquez or Señor Diaz-Bastien in their reports provided to the Secretary of State. Accordingly, even if the suggestion that the 2010 legislation may apply directly to proceedings commenced against Mr Jaffar more than 16 years before its coming into force may have force as a matter of Spanish law, on which I express no view, the Secretary of State’s decision cannot be impugned on this ground.

The experts disagree also on how the principles described above should be applied to the charges against Mr Jaffar.

In order to make sense of the rival positions and to explain in more detail the issues which the Secretary of State had to determine it is necessary to set out some of the twists and turns of the criminal proceedings in Spain against Mr de la Rosa and others to which some reference has already been made.

As already noted, the criminal complaint was filed on 8 January 1993 and at that stage was concerned with the INPACSA and Croesus transactions only. Mr Jaffar appeared as a party on 26 January 1993 and filed various writs on 5 February and 3 August 1993 opposing the admission of the complaint. The complaint was formally admitted on 11 February 1994. On 18 November 1996 the Spanish public prosecutor extended the scope of the criminal proceedings in Spain to encompass the Oakthorn 1 & 2 and Pincinco transactions. It seems that, essentially for reasons of convenience, the various transactions were then to some extent dealt with separately.

The trial of the allegations relating to INPACSA and Croesus began on 25 March 2003. On 11 April 2003 the Audiencia Nacional held that the INPACSA allegations were not time-barred, but that the Croesus allegations were. It has not been explained why the two transactions were treated differently. An appeal was lodged against that decision. On 24 July 2006 the Spanish Supreme Court determined that Mr de la Rosa and two other defendants stood convicted of the INPACSA allegation, which was not time-barred, applying a decision of the Constitutional Court (decision 63/2005) on what was required to interrupt limitation. The Supreme Court held, in summary, that (1) time ran from 29 November 1988; (2) time was interrupted before the date upon which the criminal complaint was held admissible; and (3) the proceedings were therefore within the five year limitation period. This was a final decision with respect to these defendants.

However, in the same decision, the Supreme Court overturned the first instance decision that the Croesus allegations were time barred, and sent the case back for trial before the Audiencia Nacional. On 1 April 2008, the Audiencia Nacional convicted Mr de la Rosa but this decision was itself appealed to the Supreme Court, which held on 8 April 2009 that the Croesus allegations were time barred so far as Mr de la Rosa was concerned. It held that the lower court had been wrong to approach the Croesus allegations as part of a delito continuado which would have had the effect of extending the limitation period to ten years.

These three transactions, which had been introduced into the Spanish proceedings in 1996, were considered together. On 11 September 2007 the Supreme Court held in Mr de la Rosa’s case that these transactions fell within the scope of the delito continuado doctrine, and therefore, with a limitation period of ten years, were not statute barred.

The Secretary of State’s conclusion in her decision of 8 February 2013 was that none of the allegations against Mr Jaffar were time barred. In the paragraphs which follow I set out the process of reasoning which led her to this conclusion.

It is convenient to begin, as the Secretary of State did, with the Oakthorn 1 and 2 and Pincinco transactions, which represent the most straightforward case. Because these allegations had only been introduced into the Spanish proceedings on 18 November 1996, which was therefore the earliest date on which the running of limitation could have been interrupted, and because this was more than five years after the commission of these offences was complete, these charges can only ever have been viable in the event that they constituted a delito continuado with a ten year limitation period. The decision of the Secretary of State was that they did. Her reasoning was as follows.

First, the Secretary of State noted that the Spanish Supreme Court had already held in its decision dated 11 September 2007 (see [39] above) that these transactions, which were dealt with together in proceedings against Mr Jaffar’s co-defendants, were not time-barred because they formed a delito continuado such that the limitation period was ten years, and therefore the proceedings were commenced in time. The Secretary of State did not consider that there was any proper basis to distinguish Mr Jaffar’s case from that of his co-defendants. Although Señor Diaz-Bastien and Señor Velázquez insisted that the case of each defendant had to be considered separately, a point with which Señor Ramos agreed, no reason was suggested why the facts relating to Mr Jaffar would or might lead to a different conclusion. The Secretary of State might have added that at an earlier stage Señor Diaz-Bastien had insisted that there were no material differences between Mr Jaffar’s and Mr de la Rosa’s position: see further [60] below.

Ultimately Señor Diaz-Bastien’s and Señor Velázquez’s only reason for suggesting that these transactions would not be regarded as a delito continuado was that there had been no specific mention of this concept in the extradition request. However, they did not identify any principle of Spanish law which would prevent the prosecution authorities or the court from treating these transactions as a delito continuado in the event of Mr Jaffar’s return to Spain, and the prosecutor clearly intended to approach the case in this way. Señor Ramos’s opinion, in contrast, was that the delito continuado concept did not have to be set out in the extradition request in order for it to be relied on against Mr Jaffar.

Faced with these competing assertions, the Secretary of State concluded that the delito continuado doctrine could apply to Mr Jaffar, essentially because there was no good reason to suppose that the absence of any reference to the delito continuado concept in the extradition request precluded the Spanish prosecutor or court from applying this doctrine either as a matter of extradition law or domestic law.

Finally, the Secretary of State noted that the facts of the underlying allegations appeared to satisfy the test in Spanish law for a delito continuado – and they were, of course, considered together in the civil proceedings in London.

Unless this conclusion can be successfully challenged, and subject to the issue of injustice and oppression due to the passage of time considered below, it means that Mr Jaffar must be extradited, at least in relation to the Oakthorn 1 and 2 and Pincinco charges. Together these represent by far the gravest of the charges which he faces, at least in monetary terms.

In relation to the Croesus transaction the representations made to the Secretary of State had focused on the issue whether the limitation period was five years or ten years from November 1988, which depended on whether this transaction formed part of a delito continuado. This required the Secretary of State to consider the effect of the decision by the Spanish Supreme Court dated 8 April 2009 in Mr de la Rosa’s case (see [37] above) that this allegation did not form part of a delito continuado, so that a five year limitation period applied. Señor Diaz-Bastien and Señor Velázquez relied upon this decision for their conclusion that the same result would be reached in Mr Jaffar’s case, while Señor Ramos regarded the decision as relating only to a specific issue (Croesus) considered in isolation. In that connection it is clear from the judgment itself that as a result of the complex procedural history of the Spanish criminal proceedings the only matter being dealt by the Supreme Court was the Croesus transaction, which it considered in isolation from the other transactions.

The Secretary of State concluded that the proceedings which Mr Jaffar would face if returned would be distinguishable. Instead of the Croesus allegation being considered in isolation as it had been in Mr de la Rosa’s case, the Croesus allegation would be considered together with (at a minimum) the Oakthorn 1 and 2 and Pincinco transactions. Therefore the reasoning and decision of the Supreme Court judgment dated April 2009 would not apply. Accordingly, there would be no reason in principle why the Croesus allegation could not be regarded as part of a delito continuado. The question would be whether on its facts it should be so regarded. The Secretary of State's view was that it should be. The factual allegations against Mr Jaffar concerning Croesus overlapped with the allegations relating to the Oakthorn 1 and 2 and Pincinco transactions which had already been held to constitute a delito continuado in the Supreme Court decision dated 11 September 2007.

As the INPACSA offence was complete by September 1988, a five-year limitation period would have expired in September 1993. By this time the proceedings relating to INPACSA against Mr Jaffar and others had been lodged (on 8 January 1993), and the court had dealt with various objections made by Mr Jaffar, but the formal decision to accept the proceedings was only made on 11 February 1994. The delay was because the investigating judge initially refused to accept the complaint, and his refusal to do so had to be overturned on appeal by the court (the Audiencia Nacional). Accordingly, in the case of this transaction two questions arose for the Secretary of State to consider, namely (1) whether the applicable limitation was five or ten years and (2) if five, whether proceedings were sufficiently commenced by September 1993. (I observe that it would appear that this latter question could also have arisen in relation to the Croesus transaction, but for reasons which were not explained it does not appear to have been raised in the context of Croesus: ultimately, however, this does not make any difference to the result).

As to the first of these questions, the view of Señor Diaz-Bastien and Señor Velázquez that the applicable limitation period was five years appears also to have been the view of the Spanish prosecution authorities in July 2009, when the Secretary of State asked for their view, although they also took the position (not supported by Señor Ramos) that time only began to run in 1992, when the criminal conduct was discovered. Señor Ramos, on the other hand, considered that if the charge relating to INPACSA was prosecuted together with the remaining charges, in accordance with the view of the Spanish prosecuting authorities that the facts of the alleged offending as a whole demonstrate "a preconceived plan to decapitalise a business group, and to obtain illicit profits for the various defendants", the various different operations (including INPACSA) can all be seen as "manifestations of this plan that overlapped and crisscrossed each other”, in which case they fall within the legal concept of a delito continuado, with a limitation period of ten years.

As to the second question, the view of Señor Diaz-Bastien and Señor Velázquez was that the criminal proceedings were only commenced when the Spanish court formally accepted them on 11 February 1994, after the expiry of the five year limitation period. Señor Ramos disagreed, and considered that by September 1993 there had been a series of actions of a substantial nature in which Mr Jaffar had participated, and which were known and controlled by the Spanish judge, which confirmed that the proceedings had begun with the necessary knowledge and judicial control so as to interrupt the running of limitation.

The Secretary of State’s analysis of the first question was similar to her approach to the other transactions: (1) there was no legal bar on the application of the delito continuado concept if it could be established on the facts, (2) in contrast with the position of other defendants, there was every reason to believe that the Spanish prosecutor would seek to prosecute Mr Jaffar for all of the charges together in a single proceeding, and (3) the facts themselves, considered as a whole, could properly be considered to form part of a delito continuado. Accordingly, a ten year limitation period applied.

Alternatively, on the second question, the Secretary of State considered that even if the INPACSA allegation did not form part of a delito continuado, there would be no reason to distinguish Mr Jaffar’s case from those of his co-defendants where the Spanish Supreme Court had held on 24 July 2006 (see [37] above) that the five year limitation period had been interrupted in time. The only question, therefore, would be whether this decision was no longer good law as a result of the decision 29/2008 of the Constitutional Court (see [32] above). As to this, the Secretary of State agreed with Señor Ramos and the Spanish prosecutor that it did not: the Constitutional Court had stated in terms that its decision was limited to a ruling that the lodging of a document with the court on the last day of the limitation period was not sufficient to interrupt the running of time. The case therefore did not represent the major change in the law which Señor Diaz-Bastien and Señor Velázquez suggested.

As explained at [33] above, no suggestion was made to the Secretary of State that the 2010 legislation was applicable to Mr Jaffar’s case. In any event, however, it appears to me to be clear from that legislation as explained by Señor Velázquez that even if the filing of a complaint against Mr Jaffar on 8 January 1993 did not have the effect of permanently interrupting the running of limitation, it would have had the effect of suspending the running of limitation for a period of six months, with the consequence that even if limitation was only finally interrupted on 11 February 1994 when the court accepted the complaint, the proceedings were in time, because that was less than five years and six months after the commission of the offence was complete.

As I understood it, Mr Hardy advanced essentially three reasons why the Secretary of State's decision on limitation was unreasonable.

The first, already mentioned, was that the Secretary of State had failed to make a decision. That submission was made in Mr Hardy's skeleton argument, but was not pursued orally. It may have had some force in relation to the earlier decision of 25 January 2012, although it is unnecessary to decide this as that decision has now been superseded so far as limitation is concerned. As shown above, it has no force in relation to what is now the relevant decision dated 8 February 2013.

Next Mr Hardy submitted that it was irrational for the Secretary of State to prefer the evidence of Señor Ramos over that of Señor Diaz-Bastien and Señor Velázquez. He made clear that he was not impugning the integrity of Señor Ramos, but he did call into question his independence, suggesting that as a prosecutor employed by the International Cooperation Unit of the State Attorney General's Office, Señor Ramos was "bound to toe the party line” or to “sing from the same hymn sheet” as the Spanish prosecutor, so that his evidence was not deserving of weight. In contrast, he described Señor Diaz-Bastien and Señor Velázquez as “independent experts of real status” who had reached their conclusions independently of each other.

I do not accept that the Secretary of State approached her decision by seeking to decide which of the rival experts’ evidence she preferred. On the contrary, I accept the submission of Mr Ben Watson for the Secretary of State that it is clear from her decision that she (or those advising her) considered carefully the competing views of the experts, together with the underlying Spanish law material on which they relied, and reached her own independent decision.

In any event, even if the Secretary of State had expressed a general preference for the evidence of Señor Ramos, it must be remembered that the question for the court would not be which expert should be preferred but whether it was Wednesbury unreasonable for her to prefer the evidence of one expert rather than another. Unless there is some evident flaw in the evidence of an expert on foreign law, for example because the expert is not appropriately qualified or is manifestly partisan, or because his reasoning or conclusions do not make sense or are plainly not supported by the material on which he relies, it must be a fairly rare case where the court could so conclude. In the present case Señor Ramos is clearly qualified to give the opinions which he gives and there is no reason to suppose that he is merely "toeing the party line”. On the contrary, his report is expressed in moderate terms, acknowledging for example that the question whether Mr Jaffar’s conduct amounts to a delito continuado cannot be answered with certainty at this stage and will depend upon analysis of all the facts as eventually proved, and it is striking that in at least one respect (the question whether time only begins to run once the wrongdoing is discovered: see [50] above) he does not adopt the position of the Spanish prosecutor.

Moreover, it were a question of deciding which expert's evidence to prefer, the Secretary of State would have been entitled, in my view, to consider that at least some doubt existed as to important aspects of Señor Diaz-Bastien’s evidence. His first three reports were submitted before the decision of the Spanish Supreme Court dated 11 September 2007 holding that the Oakthorn 1 and 2 and Pincinco transactions constituted a delito continuado. In these reports, dated 12 June 2003, 14 November 2003 and 28 June 2004, Señor Diaz-Bastien somewhat surprisingly did not even mention the possibility that these transactions might amount to a delito continuado. Instead he insisted that all of the charges except INPACSA (this being before decision 29/2008 by the Constitutional Court) were time barred on the basis of a five-year period, and that “the facts and history of the case are identical as between [Mr Jaffar] and the other Defendants” in the Spanish proceedings. The Supreme Court decision dated 11 September 2007 showed him to be wrong about the applicable limitation period and, in a reversal of his previous position, he was driven in his fourth report dated 18 February 2009 to suggest that there might be material differences, although none was identified, between the position of Mr Jaffar and the other defendants. I reach no final conclusions about all this, but it would not have been unreasonable for the Secretary of State to have been unimpressed by this evidence.

Finally, Mr Hardy submitted that the Secretary of State’s reasoning and Señor Ramos’s evidence (which he described as “circular and ill-reasoned”) were so manifestly wrong as to be Wednesbury unreasonable. I do not agree. In my judgment the Secretary of State’s reasoning which I have set out above and those parts of Señor Ramos’s evidence on which it was based are entirely convincing and are supported by the Spanish law material provided to the Secretary of State. But it is unnecessary to go so far. It is sufficient to say that the Secretary of State’s conclusion that Mr Jaffar has not become immune from prosecution by reason of lapse of time was properly reasoned and was a rational conclusion which she was entitled to reach.

I turn now to the question whether the Secretary of State was entitled to reach the conclusion that it would not be unjust or oppressive to return Mr Jaffar to Spain by reason of the passage of time since the commission of the alleged offence or offences. The meaning of the words “unjust or oppressive” in this context (strictly, in the context of the identical words in section 8(3) of the Fugitive Offenders Act 1967) was considered by the House of Lords in Kakis v. Government of the Republic of Cyprus [1978] 1 WLR 779. Lord Diplock said at pages 782H to 783D:

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from change in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.

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 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 of the requisitioning government or its prosecuting authorities which resulted in delay was blameworthy or otherwise.”

This well known passage was reaffirmed by the House of Lords in Gomes v. Government of the Republic of Trinidad & Tobago [2009] UKHL 21, [2009] 1 WLR 1038. That was a case where the alleged offender had deliberately fled from the jurisdiction of the state where he was wanted. The House of Lords held that in such a case it would only be in the most exceptional circumstances that the fugitive could rely on injustice or oppression caused by the passage of time, and that in general only a deliberate decision by the requesting state, communicated to the fugitive, not to pursue the case against him or some other circumstance which would justify a sense of security on his part should allow him to assert that the effects of further delay were not of his own choice and making.

In the present case Mr Jaffar did not deliberately flee from Spain. He has at all times been resident in this country and has not attempted to conceal his address. On the other hand, he has known since 1993 that he was required to face criminal charges in Spain resulting from his conduct as a director and officer of a Spanish company, and has known since 2001 that his extradition was sought. There has never been any suggestion that these extradition proceedings would not be pursued by the Spanish authorities, and Mr Jaffar has known since December 2008 that the Secretary of State’s decision at that time (albeit that she agreed to reconsider it) was that he should be returned. He has done everything possible to resist that extradition.

So far as injustice is concerned, Mr Hardy accepted that Mr Jaffar would receive a fair trial in Spain, in accordance with the requirements of Article 6 of the European Convention on Human Rights, to which Spain of course is a party, which includes the right to trial within a reasonable time. Whether such a trial is now possible will be a matter for the Spanish courts to determine.

The argument therefore focuses on whether events have occurred which would make it oppressive to return Mr Jaffar to Spain where, ex hypothesi, he will receive a fair trial. Mr Hardy relied primarily on the sheer length of time, now over 22 years, since the alleged offences were committed, and suggested that for far too long Mr Jaffar has remained in a state of uncertainty and anxiety about his fate. He added that during the intervening years memories had faded and many "key witnesses" had died. Finally, he submitted that it was likely that Mr Jaffar would be held in custody pending his trial, and while arguments about limitation made their way through the Spanish appeal process, which might take several years, and that in view of his advancing years Mr Jaffar might find such imprisonment more difficult to cope with than would have been the case at some earlier time.

The Secretary of State’s decision on this aspect of the case is set out in her decision letter dated 25 January 2012 in the following terms:

“In the event, however, the Secretary of State however [sic] does not consider that the passage of time is such that she ought [to] withdraw the existing order on the grounds that it would be ‘unjust’ or ‘oppressive’ (or be otherwise unlawful) to surrender Mr Jaffar. In particular, the Secretary of State has had regard to the following:

i.

Mr Jaffar’s extradition is sought in order that he can stand trial in Spain -- a long-standing member of the EU (and now a member of the EAW scheme) where the Secretary of State is satisfied that the courts will protect Mr Jaffar’s rights under Article 6 (including his right to trial within a reasonable time);

ii.

at all times, Mr Jaffar has been fully aware of the criminal investigation and subsequent proceedings in Spain, yet he deliberately chose not to engage with those proceedings beyond his first appearance on 26 January 1993;

iii.

the underlying criminal allegations relate to a massive fraud committed over a number of years; and

iv.

as well as being aware of the criminal proceedings in Spain, Mr Jaffar actively engaged (although ultimately to limited effect) in the civil proceedings brought with respect to (the majority of) the same allegations here in London.”

In my judgment the four matters listed were undoubtedly true, and were matters which the Secretary of State was entitled to take into account. (I do not regard Mr Jaffar’s somewhat unrealistic suggestion in February 1999 that he was prepared to give evidence in England rather than returning to Spain as constituting engagement with the Spanish proceedings: his proposal does not read as if it was expected to be taken seriously and in any event giving evidence is not the same as standing trial). Mr Hardy suggested that the Secretary of State was wrongly treating Mr Jaffar as if he were a fugitive who had deliberately fled the jurisdiction in order to evade the proceedings, but I do not accept this. It is not what her letter says. Moreover, this conclusion was reached despite the Secretary of State's acceptance of at least partial responsibility for some of the delay between January 2004 and December 2008 although, as explained at [17] above, that was unnecessarily generous to Mr Jaffar in circumstances where the Secretary of State had been asked to defer a decision.

A useful starting point is the decision of this court on Mr Jaffar’s application for habeas corpus in 2003. Lord Woolf CJ dealt with the issue as follows:

“29.

… Mr Nicholls submits that in this case it would be oppressive and unjust to return the applicant. He points to the fact that fifteen years have now elapsed since the offence is alleged to have been committed. He further relies on the fact that two witness[es] have died. He identifies the dates on which they died and the evidence which they would have given. It is right to point out that their evidence would only be corroborative of the evidence upon which the applicant relies, which he could give himself. Their evidence relates to matters within his knowledge.

30.

In addition, although a long period of time has elapsed, it must be borne in mind, first, that these are serious charges. In relation to Charge 1, with which I am primarily concerned, the amount of money which is alleged to have been the subject of the fraud was very substantial indeed. The nature of what is alleged against him has been known by the applicant for a substantial time. It has been the subject of complex civil process in this jurisdiction before the Commercial Court between 1993 and 1999 (or thereabouts). There is no doubt, as is accepted by Mr Nicholls, that the applicant's alleged responsibility would largely depend upon documentary evidence rather than oral evidence.

31.

Looking at the situation as a whole, I have come to the conclusion that it would not be unjust or oppressive to order the applicant's return. The lapse of time in a complex matter of this sort does not have as great a prejudicial effect upon him as it would be [sc. have] in different types of proceedings. It is accepted in this case that the Spanish authorities have not dragged their feet, or otherwise failed to proceed with due expedition. It is also accepted that they are acting in good faith. I have therefore come to the conclusion that the application for habeas corpus should be refused.”

This represents a decision that, as matters stood in 2003, it was not unjust or oppressive to order Mr Jaffar’s return. I see no reason to doubt that assessment, even if it were open to us to do so. Nor in my judgment has the position changed in the meanwhile. It remains the case that GT was the victim of a major fraud, that there is an apparently powerful case for Mr Jaffar to answer, that he has known the allegations against him for many years, that the important evidence is likely to be documentary, and that he has chosen not to engage with the Spanish proceedings. Moreover, there is no reason to doubt that all of the evidence from the Spanish criminal proceedings to date and from the Commercial Court trial before Mance J will be available.

In any event, while extradition more than 20 years after the commission of the alleged offence must be unusual and demands careful scrutiny, “there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive", as Simon Brown LJ pointed out at in Woodcock v. Government of New Zealand [2003] EWHC 2668 (Admin), [2004] 1 WLR 1979 at [29]. It remains necessary to consider whether injustice or oppression is established as a matter of fact.

Although a further 9 ¼ years have passed since judgment in the habeas corpus proceedings, much of that delay was requested by Mr Jaffar, first by suggesting that the Secretary of Sate should defer a decision until the Spanish proceedings against Mr de la Rosa were concluded, and then while he attempted to obtain a decision on limitation from the Spanish courts. In the absence of powerful countervailing factors, he cannot therefore claim to have suffered oppression as a result of this further delay. While it may not have been Mr Jaffar’s fault, in that he was entitled to make representations and to ask the Secretary of State to defer a decision, much of this further delay was undoubtedly caused by him -- for example, it has been clear since September 2007 that at least the Oakthorn 1 and 2 and Pincinco charges were not time barred in Spain and that this alone was sufficient to require Mr Jaffar to be extradited (see [39] and [41] to [46] above), but Mr Jaffar has continued to resist this conclusion.

I am unimpressed by the matters referred to at [66] above which are said to amount to such oppression. I do not accept that Mr Jaffar’s position on return would be any worse now than it would have been in 2003 when this court held that it would not be unjust or oppressive to return him. As for the death of potential witnesses, Mr Hardy identified six individuals, one of whom died in 1991 before the fraud was discovered and who could never therefore have been a witness, while the remaining five died on dates between 1998 and 2002. No specific prejudice arising from the absence of these witnesses was advanced in argument. Mr Hardy acknowledged that no statements had been taken from any of these potential witnesses at any stage in the Commercial Court proceedings, despite the fact that, as indicated at [5] above, those proceedings were defended by Mr Jaffar until day 25 of the trial. To my mind that can only be for one of two reasons. Either the individuals concerned were unwilling to provide evidence or it was considered unlikely that they would have anything to say which would help Mr Jaffar’s defence. The possibility that Mr Jaffar has been prejudiced by any of these deaths is remote. In any event all of the supposed potential witnesses had already died before the decision of this court on the habeas corpus application in 2003.

The prospect that as a result of the delay Mr Jaffar may have to spend some of his declining years in prison did not form part of his representations to the Secretary of State and she cannot therefore be criticised for not having had regard to this. In my judgment, however, it is a factor of no weight. That is the result of his choice to resist extradition for as long as possible. While I would accept Mr Hardy’s submission that Mr Jaffar was under no legal obligation to return voluntarily to Spain and has been entitled to take such steps as the law allows to resist his extradition, the inevitable consequence of his decision to do so has been that the uncertainty about his fate has continued longer than it would otherwise have done and that, in the event of his extradition now, the Spanish authorities may well think it sensible to take steps to prevent his absconding. That too is the result of his own choice. It cannot make it oppressive to order his return.

In my judgment, therefore, the Secretary of State's decision on this issue was reasonable and not open to challenge.

For the reasons given above, and applying the heightened degree of scrutiny appropriate to review of a decision concerning liberty, I would reject Mr Jaffar’s challenge to the Secretary of State’s decision to order his return to Spain.

I agree.