Brian Richards v Government of Ghana
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt,Mr Justice Simon |
| Judgment Date | 16 April 2013 |
| Neutral Citation | [2013] EWHC 1254 (Admin) |
| Docket Number | CO/7289/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 April 2013 |
[2013] EWHC 1254 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Simon
Mr Justice Leggatt
CO/7289/2012
Mr P Garlick QC (instructed by Stokoe Partnership) appeared on behalf of the Claimant
Ms Gemma Lindfield (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
1. This is an appeal under section 103 of the Extradition Act 2003 against the decision of the Chief Magistrate, made on 2 July 2012, to send the appellant's case to the Secretary of State for the Home Department for her decision on whether the appellant should be extradited to Ghana. The appellant is a Jamaican national, who lives in this country. The crime of which he is accused is attempted murder.
The Alleged Offence
2. The offence was allegedly committed on 7 February 2005. It appears that at that time the appellant was living in Ghana and was in a relationship with a lady called Ms Sally Kanbonaba. The alleged victim, Mr Nadim Zakkour, worked for Ms Kanbonaba and in fact introduced the appellant to her. Initially the appellant and Mr Zakkour were friendly with each other, but it appears that their relations became strained.
3. At the time of the incident Miss Kanbonaba was away and the appellant and Mr Zakkour got into an argument about whether Mr Zakkour should take her car to the garage. It is alleged that the appellant took out a pistol and shot Mr Zakkour twice. Mr Zakkour fell to the ground and started to bleed profusely. He was taken to hospital where he had emergency treatment and one of his kidneys was removed. It is said that the appellant asked one of Miss Kanbonaba's servants to accompany him in the car and drove to the British High Commission, where he was last seen entering the building.
4. According to his evidence at the extradition hearing, the appellant left Ghana the same day. He went to Nigeria, from where he returned to this country, using someone else's passport. When he left Ghana he knew that Mr Zakkour was seriously injured, though he says he did not know how serious the injuries were.
The Extradition Proceedings
5. On 9 February 2005, an arrest warrant was issued by the Circuit Court in Accra. In May 2008 a diplomatic note was issued and in August 2008 a certificate was issued by the Secretary of State for the Home Department, pursuant to section 70 of the 2003 Act. After a number of adjournments the extradition hearing commenced in February 2012 before the Chief Magistrate. The hearing was adjourned on several occasions and was finally concluded on 2 July 2012 when judgment was given.
6. For the purposes of the Extradition Act, Ghana is a Category 2 territory. Under Part 2 of the Act, which applies in this case, the judge is required to proceed in a series of steps. The first step relevant for present purposes is that the judge must decide under section 79 of the Act whether extradition is barred for any of four reasons, one of which is the passage of time. It was submitted before the Chief Magistrate that extradition is barred in this case by reason of the passage of time. The Chief Magistrate rejected that submission.
7. If the judge decides, as the Chief Magistrate did, that there is no bar to extradition, he must proceed under section 84 of the Act, except in the case of certain countries which have been designated by the Secretary of State for the purposes of that section. Ghana has not been designated by the Secretary of State for the purposes of section 84, and the Chief Magistrate therefore proceeded under that section. This required him to decide whether there was “evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him.”
8. It was accepted below that the evidence before the Chief Magistrate satisfied this test. This required the Chief Magistrate to proceed under section 87, and to decide whether the appellant's extradition is compatible with his rights under the European Convention of Human Rights. Before the Chief Magistrate it was argued that the appellant's extradition is incompatible with his rights under Article 3 of the Convention on the ground that the appellant's imprisonment in Ghana, pending trial and if convicted, would involve inhuman or degrading treatment or punishment. It was also argued that extradition would be incompatible with the appellant's rights under Article 8 to respect for his private and family life. The Chief Magistrate rejected those arguments, from which it followed that he was required to send the case to the Secretary of State for her decision whether the appellant is to be extradited.
The Appeal
9. In the appellant's grounds of appeal, dated 7 July 2012, it is contended that the Chief Magistrate ought to have decided differently the three issues which were disputed at the extradition hearing. First, it is said that the Chief Magistrate ought to have decided that extradition was barred by the passage of time. Second, it is said that he ought to have decided that the appellant's extradition would be incompatible with his rights under Article 3 of the European Convention, because of the conditions in which he would be detained. Third, it is said that the Chief Magistrate ought to have decided that the appellant's extradition would be incompatible with his rights under Article 8 of the Convention.
10. This appeal was originally listed for hearing in January of this year. Shortly before the hearing, however, some new evidence was served consisting of a witness statement from the alleged victim, Mr Zakkour, dated 26 November 2012, on which the appellant wished to rely. As a result of the service of that evidence the respondent applied for, and was granted, an adjournment of the hearing of this appeal. The purpose of the adjournment was to allow enquiries to be made of the authorities in Ghana to find out whether they were aware of the new statement made by Mr Zakkour, and to seek their comments.
11. On 11 April 2013, information was received to the effect that neither the Prosecution Division, nor the Ghana Police Service, had been aware of that statement. It is said that the Ghana Police Service has been notified to contact Mr Zakkour, but they have not yet done so.
12. Mr Garlick QC, who has represented the appellant below and on this appeal, seeks to rely on the statement of Mr Zakkour and to argue, as a further ground of appeal, that its effect is such that the evidence, taken as a whole, is now insufficient to meet the test set out in section 84(1) of the Act.
Is Extradition Barred by Passage of Time?
13. Although it does not correspond to the order in which Mr Garlick presented the appellant's case this morning, I propose to consider the issues in the order that they arise under the 2003 Act. I will deal first, therefore, with the question whether the Chief Magistrate ought to have decided that under section 79 of the Act the appellant's extradition is barred by reason of the passage of time. Section 82 of the Act provides:
“A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have—
(a)committed the extradition offence (where he is accused of its commission)…”
14. The Chief Magistrate dealt with this issue at page 8 of his judgment as follows:
“I can deal with this briefly. This defendant is not entitled to rely on the passage of time bar. He is a classic fugitive. He shot a man twice and then almost immediately left the jurisdiction. This is not a borderline case. Even if it were, the Ghanaian authorities have not misled Mr Richards into thinking that there would be no extradition. The return of his passport by the UK authorities cannot be taken to indicate that there would be no extradition proceedings, and this defendant was never told that. I will deal later with article 8, but the facts relied on there would not in any event amount to oppression.”
15. In his skeleton argument for this appeal Mr Garlick submitted that, on the basis of both the passage of time since the alleged offence was committed and the new evidence, it would be unjust or oppressive to return the appellant to stand trial in Ghana where he would spend many months in custody on remand in what are said to be appalling conditions (which I will come to later) whilst awaiting trial.
16. In so far as reliance is sought to be placed for this purpose on the sufficiency or insufficiency of the evidence, or on prison conditions in Ghana, such reliance is in my view misplaced. The question under sections 79(1)(c) and 82 of the Act is not whether it would be unjust or oppressive as a general matter to extradite the appellant, but whether it would be unjust or oppressive to do so by reason of the passage of time. Thus, as I think Mr Garlick accepted in the course of argument, the only relevant question at this stage is the effect of the passage of time since the offence was allegedly committed.
17. In Gomes v Government of Trinidad and Tobago [2009] 1 WLR 1038, the House of Lords affirmed the principle that a person who deliberately flees a country to avoid facing the consequences of an alleged crime cannot, save in exceptional circumstances, rely on subsequent delay in extraditing him to say that it would be unjust or oppressive to return...
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