Carl Jerome Mckenzie v Examining Court No 9 Palma De Mallorca and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCOTT BAKER,Mr Justice Simon,MR JUSTICE SIMON,Lord Justice Scott Baker |
| Judgment Date | 04 December 2008 |
| Neutral Citation | [2008] EWHC 3187 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6235/2008 |
| Date | 04 December 2008 |
[2008] EWHC 3187 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Lord Justice Scott Baker
Mr Justice Simon
CO/6235/2008
Mr Martin Henley (instructed by Central Law Practice, Wembley, HA9 6DE) appeared on behalf of the Appellant
Miss Rosemary Davidson (instructed by Crown Prosecution Service) appeared on behalf of the Respondent
I will ask Mr Justice Simon to give the first judgment.
This is an appeal brought by the appellant, Carl McKenzie, under section 26 of the Extradition Act 2003 (“the Act”) against an order made for his extradition to Spain, to which Part 1 of the Act applies. That order was made by District Judge Nicholas Evans on 27th June 2008.
The appellant is a citizen of the United Kingdom, who is accused of a sexual assault which, under section 179 of the Spanish Criminal Code, is treated as rape. His extradition is sought, for the purpose of a criminal trial, by the Examining Court Number 9, Palma de Mallorca, under a European arrest warrant (“the warrant”).
Procedural background
The facts giving rise to the present application are said to have occurred early in the morning of 2nd December 2004. The appellant invited the female complainant for a drink in the Robin Hood public house, Avenida de Magaluf, Mallorca. During the evening they danced together and at some point the appellant is alleged to have pushed her to a lonely area of the dance floor, clutched her and digitally penetrated her vagina. I will come to the circumstances in which the appellant was arrested and came to leave Mallorca later in this judgment.
On 27th October 2006 a warrant was issued by the respondent for the appellant's arrest and a request was made for his return to Spain to stand trial.
On 21st April 2008 the Serious Organised Crime Agency certified the warrant in accordance with section 2(7) of the Act, and on 28th April 2008 the appellant was arrested at his home address in Nottingham. He was then brought before the City of Westminster Magistrates' Court.
The hearing before the District Judge took place on 27th June 2008, when it was argued on his behalf that his extradition would be oppressive by reason of the passage time.
The case before the District Judge
The respondent provided duly authenticated further information on 11th June 2008, which stated that the appellant was arrested on 2nd December 2004 and was produced in court on 3rd December. The document then states:
“… his probation was agreed with the obligation to appear before this Court whenever he were called. …
His prosecution was agreed on 9th June 2005.
In various occasions we tried to summon [the appellant] through the British Consulate in Palma de Mallorca, but he failed to appear without submitting any reason to prevent his presence.
On 25th October 2006 the Judicial Police gave the Court the address of [the appellant] …
(Until 25th October 2006, this address was unknown to the Court).”
The appellant's case before the District Judge was contained in a proof of evidence and addendum, both dated 27th June 2008. In summary his account was as follows. He went with his wife and another couple to a public house. He and his friend John Knight were walking back to the hotel when two policemen, who were walking behind them, shouted out “black man, black man”. The policemen then spoke to John Knight and told him to run, which he did. The policemen then took out their guns and told the appellant to run. He refused and, thinking he was going to be killed, lay down on the ground. The two policemen then kicked him.
The appellant returned to his hotel and told the receptionist that he had been beaten up by the police. The receptionist was unhelpful. However, he managed to get to the hotel lift, where he saw his wife. At this point he collapsed in pain. He told her what had happened to him. Some time later his wife noticed police vehicles outside the hotel. The appellant went to John Knight's room in the hotel, where he thought he would be safe as he was scared he “was going to die”. The police officers came to his room and asked his wife where he was. The next day his wife spoke to someone at the British embassy, who advised them to go to a police station. As he was waiting for a taxi to take him to the police station, the police arrived and detained him. He was held in custody for three days and was then produced in court. He did not understand the court proceedings, but at some point his solicitor turned to the translator and said something. The translator then said to him that there was not enough evidence so he could go. He was handed a piece of paper to sign, which he refused to do. He left the court with his wife and returned to England the next day.
The appellant heard nothing further about this matter except for “something from the embassy”, which was sent to his home address in Nottingham. He said he spoke to the “English embassy” in London and was told there was nothing to worry about. I take these references to be references to the Spanish embassy.
The District Judge heard evidence from the appellant and his wife.
The District Judge's decision
The District Judge found that the charge related to an assault which occurred at about 02.00 hours on 2nd December. The appellant was arrested in the early hours of that day. He was kept in custody until he was brought before the Magistrates' Court the next day, 3rd December. At the hearing he was represented by a lawyer and an interpreter.
The meaning of the phrase “his probation was agreed” in the further information was that he was to be released on what would in this jurisdiction be called bail, with an obligation to make himself available for return to court. I note in this context that the Spanish words for which “probation” is said to be a translation are “libertad provisional”.
The District Judge recited the appellant's account of what happened at court and his wife's evidence that she had received a letter from Spain addressed to her husband, and that she had not done anything to get it translated, other than to telephone the embassy in London to say she had received a letter and did not understand what it said.
The District Judge found that both the appellant and his wife were “unsatisfactory witnesses whose evidence I found quite incredible.” He continued:
“I do not believe the Defendant was unaware of his obligations, as explained by the Judicial Authority, following the hearing in the Magistrates' Court. He knew he should not have left Spain when he did. It seems he either gave a false address or failed to respond when the Judicial Authority/Police tried to summon him.”
The District Judge concluded:
“I am satisfied the Defendant fled Spain and any delay is completely of his making. There is no basis for saying he had been misled by the Judicial Authority. He has failed to establish, on the balance of probabilities, that he would suffer oppression if extradited, let alone suffer oppression by reason of the passage of time.”
Accordingly, he ordered the appellant's extradition to Spain.
The grounds of appeal
The grounds of appeal lodged on 1st July raised three points which it is said “were not fully taken into consideration by the District Judge”: first, an argument based on section 14 of the Act that the extradition is barred by reason of the passage of time; second, an argument based on section 13 of the Act that the extradition is barred by reason of “extraneous considerations”; thirdly, an argument that the extradition would be a disproportionate interference with his fundamental human rights under Article 8, the right to respect for family and private life.
This morning the appellant, by Mr Henley, sought for the first time to introduce new evidence in the form of four witness statements: statements from the appellant and his wife, both of whom had given evidence before the District Judge, and from John Knight and his friend Denise Robb, who had not. The four of them had been on holiday together in December 2004. Mr Henley also lodged a skeleton argument which abandoned the ground based on Article 8 and substituted an argument based on Article 3.
This approach, with the late introduction of new evidence and new arguments which departed from the grounds of appeal, was bound to cause difficulties. This court will be wary of new points being taken for the first time on appeal, not least because it does not know what points were made to or conceded before the District Judge (see the judgment of Leveson LJ in Pilecki v District Court of Legnica [2007] EWHC 2080 (Admin) at paragraph 28. In most cases an appellant's application to introduce new evidence will be met by a refusal, on the basis that the evidence should be deployed before the primary fact-finder and not in order to bolster perceived weaknesses in a case on appeal.
In the present case the introduction of statements posed the additional difficulty that two of the statements were from witnesses who had already given evidence before the District Judge, who had disbelieved them.
Miss Davidson, who appeared for the respondent, did not object to us considering the new material since, she submitted, even if taken at face value, it did not materially assist the appellant. In these...
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