McGurk v Provincial High Court of Alicante, Spain

This is an appeal against the decision of District Judge Goldspring (“the District Judge”), made on 3 December 2015, to order the appellant’s extradition to Spain. That is pursuant to an accusation EAW issued by the President of the Third Division of the Provincial High Court of Alicante, Spain, on 8 September 2014 and certified by the National Crime Agency on 19 September 2014. The appellant is effectively sought for the purposes of a prosecution for rape of a young woman in 1999. He raises three grounds: passage of time under section 14 of the Extradition Act 2003 (“the 2003 Act”), Article 8 of the European Convention on Human Rights and abuse of process. There is a cross-appeal by the Judicial Authority on the District Judge’s reasoning that the appellant was not a fugitive, which it has not been necessary to consider.

The appellant was born in 1967 in Scotland. In 1989 he was imprisoned in Scotland for four years for rape. On his account, he went to live in Spain in 1999 to work in a bar and to do club and bar public relations work.

The EAW alleges that on 27 March 1999 the appellant attacked a female tourist from Finland, living in the UK, who was on holiday in Benidorm. It is alleged that he picked her up at a bar, she was intoxicated, they returned to where he was staying, he propositioned her sexually, she tried to escape through the window, he used force to prevent that, and he then forced himself upon her and raped her. During the assault she sustained serious injuries requiring hospital treatment. The Framework list in the warrant is ticked for sexual assault and serious injuries.

The appellant was arrested. It appears that on 31 March 1999 he was interviewed by the investigation judge at Court 4, Benidorm. On 3 April 1999, he was bailed with a condition that he pay 200,000 pesetas security (approximately €1,000). He was also required to attend a Spanish Consulate in the UK on the first and fifteenth day of each month. The address the Spanish authorities recorded was a Scottish address. There is no record of the appellant complying with the reporting condition. The District Judge rejected the appellant’s account that he did not provide security, did not have to report twice monthly and never signed a bail form. The appellant gave evidence that he provided the Spanish authorities with his address in Blackpool as well as that of his mother’s home in Scotland.

In March 2000, the Spanish court ordered that a letter of request be sent for the appellant to be interviewed in the UK. That was routed through the UK Central Authority, located in the Home Office, which handles such requests. As a result, the Lancashire police interviewed the appellant in Blackpool in December 2000 about the alleged offence. His solicitor was present. He was informed about the indictment but declined to answer questions. He was originally on police bail but that was later discharged. The Spanish court never received any notification of the conclusion of the investigation pursuant to the letter of request. In 2001, the appellant was in custody for 8 weeks for an offence committed here, and in 2006 he served 15 weeks of intermittent custody over 30 weekends for other offending. (Although out of chronological order, I note that in 2012 he was sentenced in England to 14 months’ imprisonment, reduced to 12 months on appeal, for perverting the course of justice: see [2012] EWCA Crim 2113.)

In April 2008, the Spanish court sent a further letter of request to inform the appellant that it had completed its investigation. Through error, the UK Central Authority did not act on the request until November 2009. The Spanish court was informed by the UK Central Authority that the materials had been served by post but that no confirmation of receipt had been received. The following year, in August 2010, the court was again informed that the UK Central Authority had received no confirmation of receipt.

On 22 February 2011, the Prosecution Office in Spain issued its provisional conclusions, effectively a charging advice, directing that an oral trial be held in May 2012. A letter of request was issued to the UK to summon the appellant but the UK Central Authority notified the Spanish court that the appellant could not be located. The address being used was the appellant’s Scottish address. The Scottish police had visited the address in December 2011 but reported that he no longer lived there. On the appellant’s account, his mother continued to live there and then, after her death, his sister. Given the impossibility of holding the trial, the matter was referred to the Spanish Prosecution Office for confirmation of the limitation period applicable to the allegations. In May 2014, the Prosecution Office advised that the offence was not time-barred. A national arrest warrant was issued following court hearings on 22 May and 11 June 2014. That was followed by the EAW several months later.

Following a request for further information from the Westminster Magistrates’ Court, the Spanish Judicial Authority stated on 6 May 2015 that the last contact with the complainant was her court statement of 3 April 1999. The Spanish Judicial Authority had sent a summons to her at her UK address in November 2011 but there had been no reply. The summons was confused. It did not ask her to attend the trial fixed for May 2012. It summoned the appellant. The Spanish reply of 6 May 2015 also stated that it did not know whether the complainant would give oral evidence at trial, as required by Spanish law. If she did not do so, the public prosecutor might not uphold the charge.

Before the District Judge the appellant adopted his proof of evidence and was cross-examined. In his proof of evidence, the appellant said:

There was also a report from Miguel González, a Spanish lawyer based in Málaga, Spain. He gave oral evidence as well, via Skype. Sr. González’s evidence was that the complainant would be summoned to attend the trial. If she failed to attend the court could decide to proceed in her absence. The prosecution could read her statement, but because of Article 24 of the Spanish constitution the appellant could not be convicted on that evidence alone. The medical evidence was not direct evidence and in the absence of corroboration could not prove rape. Sr. González said that in his opinion it was completely pointless to hold a hearing at which the sole and principal witness did not attend. He also stated that the delays in the case were serious and unacceptable, although he had not seen the file. Sr. González added that if the appellant were convicted, in his opinion any sentence would be reduced considerably under Article 21.6 of the Criminal Code, from possibly 10 years to one year.

The District Judge also had a letter from the Spanish Judicial Authority, dated 29 September 2015, along the same lines as the report of Sr. González.

After summarising the relevant law and evidence, the District Judge set out his findings. He said that there was clear evidence that the appellant was released on conditional bail, which he breached. Moreover, there was insufficient evidence that the appellant had received the 2012 summons for trial. The District Judge then said:

In considering passage of time in section 14, and whether it would be unjust or oppressive to extradite the appellant, the District Judge said the long periods of inactivity had not been explained. Although it was a reasonable inference that there was difficulty tracing the complainant, resulting in some delay, that did not provide a complete answer as to why there had been such a lengthy delay. It was 16 years since the alleged offending and the appellant was last interviewed about the case over 14 years ago. If he were to be returned a trial, if it ever occurred, might take another extended period of time to conclude. The District Judge summed up, “that the vast majority of the delay is culpable on the part of the [Judicial Authority].”

The District Judge then stated that the combination of the long period of inactivity and the information from his solicitor who acted for him at the time of the Blackpool police interview may well have engendered a false sense of security in the appellant. His circumstances had not changed to a great extent, if at all, save that he was older and had suffered some anxiety as a result of these proceedings. He had continued to offend on a fairly regular basis in this jurisdiction. Although he was not a fugitive in the true sense of the word and was allowed to leave Spain, it was on conditions of bail which he breached, albeit he had voluntarily attended the police interview in the UK. While the Spanish authorities asserted that not being able to trace him led to the proceedings being unsuccessful, that was only part of the picture.

In relation to whether it was unjust to extradite the appellant through passage of time, the District Judge rejected that challenge:

Likewise, as to oppression, the District Judge concluded:

Rejecting the Article 8 challenge the District Judge referred to the public interests in favour of extradition. In this case the allegation of rape, where a significant amount of violence was used, amplified the public interest in extradition. Whether the Spanish prosecutor was able to prove the case with the complainant potentially untraceable was a matter for the Spanish court. Moreover, the appellant had not led a blameless life during the 16 years since the allegation, amassing six convictions, some of which were very serious and resulted in considerable custodial terms, including a period of 12 months for perverting the course of justice. Against that were the factors in favour of discharge. Delay weighed heavily in the balance for discharge. On the most part it was culpable delay by the Spanish Judicial Authority. However, in a case like this delay was not a trump card. The District Judge said:

Finally, the District Judge considered whether there was abuse of process as a result of the delay on the part of the Spanish Judicial Authority – delay following the appellant’s arrest, in completing the investigation, in summonsing the appellant and in issuing the EAW. He concluded that there was no bad faith or other requisite abuse on its part. In fact the Spanish Judicial Authority seemed to have adhered faithfully to their own procedures and Article 6 ECHR.

Ms Lindfield focused on the delay in the case and the spirit of the Framework Decision on the European Arrest Warrant 2002/584, as amended, which was to facilitate the speedy extradition of persons within the EU. She submitted that in light of the passage of time it would be unjust and oppressive to extradite the appellant. The delay was due to the dilatory conduct of the Spanish authorities. The appellant had been arrested twice in connection with this matter. The first time, some 16 years ago in Spain, the second, some 14 years ago in Blackpool. He was on police bail for 8 months in Blackpool and was then informed that there would be no further action. Moreover, his whereabouts in the UK had been known to the public authorities throughout the whole period. The material received from the Spanish Judicial Authority did not adequately explain the significant delays in the proceedings. The District Judge had been correct to regard most of the delay as culpable delay.

On that basis, Ms Lindfield submitted that it was wrong in those circumstances for the District Judge not to conclude that the appellant’s extradition would be oppressive and unjust. He had regarded it as a borderline case but had concluded that it would not be unjust or oppressive. The fact that the complainant had not responded to any communication or attended for trial only further served to strengthen the injustice. The last contact with her had been in 1999 and there was no explanation as to how the Spanish authorities proposed to find her. The oppression caused by the passage of time to the appellant was compounded since he had heard nothing about the matter for some 14 years. It was unknown how long he would be on remand awaiting trial if he were extradited. She cited R (on the application of O’Connell) v. Judicial Authority of Santa Cruz de Tenerife [2010] EWHC 2957 (Admin), Campbell v. Public Prosecutor of the Grande Instance Tribunal of St. Malo, France [2013] EWHC 1288 (Admin) and Rahman v. County Court of Boulogne Sur Mer, France [2014] EWHC 4143.

As to Article 8 ECHR, Ms Lindfield submitted that it was a disproportionate interference in the appellant’s private and personal life to be extradited. That he did not have dependants should not place him at a disadvantage. He was a UK national with a strong private life here. In the balance against extradition were the extremely serious delays and the absence of the complainant so far in the preparations for the trial. Admittedly, set against this was the fact that the allegation was serious, but Ms Lindfield continued that this should not be overplayed, and the evidence of the expert was that any sentence on conviction will be drastically reduced by virtue of the delays in the case.

Finally, Ms Lindfield contended that abuse of process was established in circumstances where the appellant was arrested so long ago and questioned twice in the matter, and where the complainant has failed to engage with the proceedings. She cited Collins J in Jackowski v. Regional Court in Ostroleka [2012] EWHC 3935 (Admin), [14], that incompetence might result in abuse of process if it were a strong case. There was patently a strong case that the Spanish authorities had been incompetent in finding the appellant and taking proceedings against him.

The central issue in this case is delay, since the alleged rape occurred in 1999 when the appellant was charged. The obvious starting point is section 14 of the 2003 Act, since that specifically recognises that the passage of time may defeat the extradition request. Section 14 of the Extradition Act 2003 provides:

The first issue with section 14 is whether the appellant brought about the delay in the extradition proceedings by fleeing the country, concealing his whereabouts or evading arrest. The court must satisfy itself that a person who invokes delay in section 14 is not the person who caused the delay. If the delay is a result of his own actions, in other words, if he is in what has become in the accepted terminology a fugitive, he is not entitled to rely upon the passage of time to suggest that extradition would be either oppressive or unjust, save in the most exceptional circumstances: Kakis v. Government of Cyprus [1978] 1 WLR 779, 783.

The District Judge did not address this issue directly, although he did find, contrary to the appellant’s own evidence, that the appellant had been subject to conditional bail in Spain and that he had breached it by failing to report regularly to the nearest Spanish consulate in the UK. Had he done so of course, he would have been more easily traceable. The District Judge concluded that the appellant was not a true fugitive and permitted the appellant to invoke passage of time. In my view, that finding can stand in the circumstances of this appeal.

The next issue to be considered under section 14 is whether the Spanish Judicial Authority is responsible for any of the delay. That is because all the circumstances must be considered to judge whether the unjust/oppressive test is met, and culpable delay on the part of the state may tip the balance: La Torre v. Italy [2007] EWHC 1370 (Admin), [37]; Spanovic v. Croatia [2009] EWHC 723 (Admin), [18]; Gomes v. Government of Trinidad and Tobago [2009] UKHL 21; [2009] 1 WLR 1038, [27]. In this case the Spanish Judicial Authority had sent a letter of request for the appellant’s interview in this country and he had been questioned by the police in Blackpool in December 2000. He did not answer questions but was released on police bail, which was later cancelled. The Spanish Judicial Authority then took another six or so years to complete its investigation. When it sought to have the appellant summoned, the UK Central Authority failed to act for 18 months, it seems through incompetence for which it later apologised, and then could not locate the appellant, even though in 2000 he had been interviewed in Blackpool and thereafter appeared before the courts in the UK for other offending and served sentences of imprisonment. Unsurprisingly, the District Judge concluded that there was significant culpable delay and associated with it was the false sense of security which the appellant, perhaps mistakenly, built up.

The upshot is that when the District Judge considered whether it would be oppressive or unjust to order the appellant’s surrender to Spain, he did so on terms favourable to the appellant, namely that he was not a fugitive from Spanish justice and that, for a significant part of the delay, the Spanish Judicial Authority was culpable. The question for us is whether, against that background, the District Judge ought to have decided the unjust/oppressive issue differently and whether it should be re-determined in the appellant’s favour.

In my view it cannot be said that the District Judge was incorrect as regards injustice, in other words, that the passage of time would not deprive the appellant of the right to a fair trial. Spain’s adherence to the ECHR and its membership of the EU undercut any such suggestion. Moreover, the evidence from the lawyer, Sr. González, was that the trial would be pointless without the evidence of the Finnish complainant. His evidence was that the court could not convict upon a statement of an absent witness if that was the sole evidence. In this case, it is not clear either way whether the complainant will appear at any trial. The November 2011 summons to her at her UK address is, on its face, confusing, since although directed to her it summonsed the appellant. If the complainant had received it, she might reasonably have ignored it. So although a trial might be pointless in her absence, she might be traced and be willing to give evidence.

That leaves oppression. In making an overall judgment as regards oppression, one aspect is the gravity of the offending: Mariotti v. Italy [2005] EWHC 2745 (Admin), [26]; Pesut v. Republic of Croatia [2015] EWHC 46 (Admin), [40]. Here the alleged rape, with its associated violence, is especially serious. Moreover, there must be a causal link between delay and oppression, and the burden of proof is upon a requested person on the balance of probabilities to establish the oppressive effect of time passing: Brzeski v. Poland [2012] EWHC 1138 (Admin), [22]. Although in this case the District Judge considered that the matter was finely balanced, he concluded that the passage of time had not had the required causative effect. In the passages quoted earlier in the judgment, he noted that the appellant was living very much as he had done during the years since 1999. In my view his conclusion on oppression is not flawed.

Delay enters in the consideration of whether Article 8 ECHR precludes extradition. Delay since the alleged offending may both diminish the weight to be attached to the public interest and increase the impact upon private and family life: HH v. Deputy Prosecutor of the Italian Republic [2010] UKSC 25, [8(6)], per Baroness Hale. However, in a case as serious as rape the delay in my view weighs relatively lightly in diminishing the public interest in return, and the real issue is the impact of delay upon the development of family and private life.

Here the District Judge considered delay as an important factor in the balance he conducted in accordance with the Divisional Court’s decision in Celinski & others v. Polish Judicial Authorities [2015] EWHC 1274. He considered other factors as well, such as the appellant not having dependants or strong family connections. In my view, this was clearly relevant: this is not the case so familiar to this court of the 18 year old shoplifter from Poland or the Baltic States, now a family man with children having lived for a decade in this country, being sought by the relevant judicial authority. I cannot regard the District Judge’s conclusion on Article 8 – that the public interests in extradition outweighed the factors against – as being wrong.

Finally, delay by the Spanish Judicial Authority is raised on the appellant’s behalf as constituting abuse of process. Abuse of process in the extradition context has a narrow ambit. In the context of the EAW scheme, built as it is on mutual respect, that is especially so. In Symeou v. Public Prosecutor’s Office in the Court of Appeals, Patras, Greece [2009] EWHC 897 (Admin), [33]-[34], Ouseley J explained abuse of process in the context of extradition as follows:

For those reasons I would dismiss the appeal.

I agree.