Judgments - Gomes (Appellant) v Government of Trinidad and Tobago (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice); Goodyer (Appellant) v Government of Trinidad and Tobago (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice) (Conjoined Appeals)

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27.  There are sound reasons for such an approach. Foremost amongst them is to minimise the incentive on the accused to flee. There is always the possibility, often a strong possibility, that the requesting state, for want of resources or whatever other reason, may be dilatory in seeking a fugitive’s return. If it were then open to the fugitive to pray in aid such events as occurred during the ensuing years—for example the disappearance of witnesses or the establishment of close-knit relationships—it would tend rather to encourage flight than, as must be the policy of the law, discourage it. Secondly, as was pointed out in Diplock para 2, deciding whether “mere inaction” on the part of the requesting state “was blameworthy or otherwise” could be “an invidious task". And undoubtedly it creates practical problems. Generally it will be clear one way or the other whether the accused has deliberately fled the country and in any event, as was held in Krzyzowski, given that flight will in all save the most exceptional circumstances operate as an almost automatic bar to reliance on delay, it will have to be proved beyond reasonable doubt (just as the issue whether a defendant has deliberately absented himself from trial in an inquiry under section 85(3) of the Act). But it will often be by no means clear whether the passage of time in requesting the accused’s extradition has involved fault on the part of the requesting state and certainly the exploration of such a question may not only be invidious (involving an exploration of the state’s resources, practices and so forth) but also expensive and time consuming. It is one thing to say—as Lord Edmund-Davies said in Kakis and later Woolf LJ said in Osman (No. 4) and Laws LJ in La Torre—that in borderline cases, where the accused himself is not to blame, culpable delay by the requesting state can tip the balance; quite another to say that it can be relevant to and needs to be explored even in cases where the accused is to blame.

28.  The Divisional Court’s suggestion that there would be “an asymmetry” in a “concurrent fault” case in taking account of the accused’s fault but leaving out of account the requesting state’s fault seems to us, with respect, misconceived. In the ordinary way the accused gets the benefit of the passage of time (unless he has caused it) irrespective of any blameworthiness on the part of the requesting state. Why then, save perhaps in a rare borderline case, consider whether the requesting state itself should in addition be found at fault?

29.  We are accordingly in no doubt that it is Krzyzowski, rather than the Divisional Court’s judgment in the present case, which correctly states the law on the passage of time bar to extradition. The rule contained in Diplock para 1 should be strictly adhered to. As the rule itself recognises, of course, there may be “most exceptional circumstances” in which, despite the accused’s responsibility for the delay, the court will nevertheless find the section 82 bar established. The decision of the Divisional Court (Hobhouse LJ and Moses J) in Re: Davies CA 443/96, (unreported, 30 July 1997), discharging a defendant who had become unfit to plead notwithstanding his responsibility for the relevant lapse of time, may well be one such case. In the great majority of cases where the accused has sought to escape justice, however, he will be unable to rely upon the risk of prejudice to his trial or a change in his circumstances, brought about by the passing years, to defeat his extradition.

30.  We recognise, of course, that in a section 82(b) case the defendant will by definition have been “unlawfully at large” and will generally, therefore, be subject to the rule in Diplock para 1. Given, however, that in these cases he will by flight have brought upon himself such difficulties as may then ensue from the passage of time, we see no reason why he should not be required to accept them—again, save in the most exceptional circumstances. He, after all, will not merely be accused of the crime but will actually have been convicted of it.

31.  The other main question discussed at some length during the argument is what approach should be adopted to the concepts of injustice and oppression within the meaning of s.82. This is, of course, touched on in the first sentence of Diplock para 1. And, so far as concerns oppression, it is worth noting too Lord Diplock’s statement (at p284) that: “the gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would render his return to stand his trial oppressive". That said, the test of oppression will not easily be satisfied: hardship, a comparatively commonplace consequence of an order for extradition, is not enough.

32.  With regard to the concept of injustice, the law has moved on since Kakis, in part because of the developing abuse of process jurisdiction over the past 30 years. It is unnecessary to rehearse this at length. Rather it is sufficient to refer to the judgment of the Privy Council delivered by Lord Bingham of Cornhill in Knowles v US Government [2007] 1 WLR 47, in particular para 31 where the Board approved the Divisional Court’s judgment in Woodcock v Government of New Zealand [2004] 1 WLR 1979 from which it extracted and endorsed the following propositions:

“First, the question is not whether it would be unjust or oppressive to try the accused but whether . . . it would be unjust or oppressive to extradite him (para 20). Secondly, if the court of the requesting state is bound to conclude that a fair trial is impossible, it would be unjust or oppressive for the requested state to return him (para 21). But, thirdly, the court of the requested state must have regard to the safeguards which exist under the domestic law of the requesting state to protect the defendant against a trial rendered unjust or oppressive by the passage of time (paras 21-22). Fourthly, no rule of thumb can be applied to determine whether the passage of time has rendered a fair trial no longer possible: much will turn on the particular case (paras 14-16, 23-25). Fifthly, ‘there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive’ (para 29).”

33.  The second of those propositions, it will be noted, invites consideration of whether, in any particular case, “a fair trial is impossible", and that indeed we regard as the essential question underlying any application for a s.82 bar on the ground that the passage of time has made it unjust to extradite the accused. As was pointed out in Woodcock (para 17), a stay on the ground of delay in our domestic courts is only properly granted when “there really is evidence of prejudice to the extent that a fair trial could not be held". We acknowledge that in Kakis, Diplock para 1 speaks of “the risk of prejudice to the accused in the conduct of the trial itself". But Viscount Dilhorne’s leading speech in Narang the previous year had used the language of impossibility:

“I see nothing in the material before this House to lead to the conclusion that as a result of the passage of time it would be impossible for [the two accused] to obtain justice, and, that being so, I am unable to conclude that by reason of the passage of time their return would be unjust or oppressive.” (p.276)

34.  The third of the Knowles’s propositions requires a requesting state to have regard to the domestic law safeguards in the requesting state. As Woodcock observed (para 21), the domestic court of the requested state has obvious advantages in deciding whether or not a fair trial is now possible: “That court will have an altogether clearer picture than we have of precisely what evidence is available and the issues likely to arise". The Divisional Court added, however, that “We would have no alternative but to reach our own conclusion on whether a fair trial would now be possible in the requesting state if we were not persuaded that the courts of that state have what we regard as satisfactory procedures of their own akin to our (and the New Zealand courts’) abuse of process jurisdiction".

35.  Woodcock was concerned with extradition to New Zealand and evidence was adduced there of an approach in New Zealand very similar to our own. Knowles concerned the extradition of a Bahamian to the United States. What, however, of extradition to countries of whose judicial systems we know less and in which, it is submitted, we should have less confidence? Council of Europe countries in our view present no problem. All are subject to article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial—whether by an abuse of process jurisdiction like ours or in some other way. Insofar as Keene LJ’s judgment in Lisowski v Regional Court of Bialystok (Poland) [2006] EWHC 3227 (Admin) suggests the contrary, it should not be followed. Trinidad itself should similarly be assumed to have the necessary safeguards against an unjust trial; the Privy Council is, after all, its final Court of Appeal.

36.  More difficult, no doubt, are certain other category 2 territories or indeed, a country like Rwanda with whom, we are told, ad hoc extradition arrangements have recently been made pursuant to s.94 of the Act. We conclude, however, that even with regard to these countries the presumption should be that justice will be done despite the passage of time and the burden should be on the accused to establish the contrary. If there is such a likelihood of injustice, almost certainly this will be apparent from widely available international reports. Whilst we cannot agree with Mr Perry QC’s submission on behalf of Trinidad that the test to be satisfied is that of a risk of a flagrant denial of justice such as would give rise to an article 6 bar under s.87, we would nevertheless stress that the test of establishing the likelihood of injustice will not be easily satisfied. The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multi-lateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. As has repeatedly been stated, international cooperation in this field is ever more important to bring to justice those accused of serious cross-border crimes and to ensure that fugitives cannot find safe havens abroad. We were told that the sec. 82 (or sec. 14) ‘defence’ is invoked in no fewer than 40 per cent of extradition cases. This seems to us an extraordinarily high proportion and we would be unsurprised were it to fall following the committee’s judgment in the present case.

37.  Mr Fitzgerald submitted that the House should adopt the approach taken by the Privy Council in State of Trinidad and Tobago v Boyce [2006] 2 AC 76 where, despite ruling that the trial judge had wrongly directed the accused’s acquittal, the Board refused to order a retrial and accordingly dismissed the appeal. Delivering the opinion of the Board, Lord Hoffmann (at para 27) noted that nine years had elapsed since the incident (of alleged manslaughter) and said:

“Their Lordships consider that in ordering a new trial after an acquittal, an appellate court should be satisfied that it will be fair in the sense that there is not (by reason, for example, of fading memory or missing witnesses) a materially greater risk of an inaccurate verdict than there would have been if the case had been properly left to the jury at the first trial.”

Insofar as the approach formulated there is less exacting than that of the impossibility of a fair trial, that is appropriate when the question is whether to retry an accused after he has already been tried once and acquitted; not so, when the question is whether to extradite the accused to stand trial for the first time.

38.  The final question discussed before the House was the period of time for consideration under s.82. It starts, of course, with the date of the alleged offence (s.82(a)) or when the fugitive became unlawfully at large (s.82(b)) (a fugitive tried in his absence without having deliberately absented himself from his trial falling for this purpose under s.82(a)). Mr Perry submits that the period ends with the extradition hearing—and certainly the period considered by Lord Diplock in Kakis (p.783) ended on 16 December 1977, the date of the Divisional Court’s decision. Given, however, s.104(4) of the Act (making provision for evidence on appeal “that was not available at the extradition hearing”) and recognising that any appeal court would be bound to have regard to the further passage of time and any factual developments when considering a human rights challenge under s.87, we would not regard the date of the initial extradition hearing as a final cut-off point. If, however, the accused were to be regarded as having deliberately spun out the proceedings for his own purposes, he could hardly expect to take much advantage from the additional passage of time.

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