Duncan v Presiding Magistrate, Malaga, Spain
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston,Lord Justice Beatson |
| Judgment Date | 04 December 2015 |
| Neutral Citation | [2015] EWHC 3466 (Admin) |
| Docket Number | Case No: CO/4137/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 December 2015 |
[2015] EWHC 3466 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson and Mr Justice Cranston
Case No: CO/4137/2015
Malcolm Hawkes (instructed by Janes Solicitors) for the Appellant
Kathryn Howarth (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 24/11/2015
Introduction
The appellant, a British national aged 67, appeals the decision of District Judge Michael Snow of 26 August 2015 ordering his extradition to Spain to stand trial for drug offences pursuant to an accusation European Arrest Warrant ("EAW"). The warrant was certified by the National Crime Agency on 29 April 2015. Ouseley J gave permission to appeal in this case because of the need for the court to consider the relationship between sections 21A(3)(c) and 21B of the Extradition Act 2003 ("the 2003 Act"). The District Judge held that extradition would not be disproportionate to the appellant's Article 8 rights or the proportionality bar in subsection (3)(c) of section 21A. He refused an oral application made at the hearing to adjourn the case under section 21B of the 2003 Act.
Background
The EAW was issued on 13 June 2011 by Judge Andres Rodero Gonzalez, Presiding Magistrate of the Seccion 3a De La Provincial De Malaga, Spain. It states at the outset that the appellant's address is unknown but that his lawyer had informed the judicial authority that he "may be deceased". Boxes B and D both note that the appellant was summonsed but failed to attend trial. The warrant relates to a single offence concerning the trafficking of cannabis under Articles 368 and 370.3 of the Spanish Penal Code, for which a maximum sentence of imprisonment of 5 years, 6 months can be imposed.
Box E of the warrant explains that, from September 2006, Spanish police were investigating an organisation dedicated to the trafficking of drugs and made up of English subjects, operating on the Costa del Sol. In January 2007, a plan was made to transport a quantity of drugs from the Moroccan coast to Spain by means of a boat. In August 2007 a boat was employed for this purpose, containing 60 packages with a total of 1632 kilos of hashish with an average THC (purity) level of 9.1%. Thereafter, a further plan was made to transport a significant amount of this hashish onwards, from Spain to the United Kingdom. On 10 September 2007, a portion of the drugs was transported from Malaga to a warehouse in Cijuela, Granada.
On the following day, the warrant continues, another portion of the drugs was transported from Malaga to the warehouse. On this occasion Spanish police arrested David and Anthony Patrick who were keeping watch outside the warehouse. Upon searching the warehouse, various boxes and packages were found, which contained a total of 3724.76 kilos of hashish, with an average THC (purity) level of 9.5%. Ricardo Blanco, Paul Varley and David Gomez Quincena were found inside the warehouse, carrying out the tasks of transporting and storing the narcotics,
"along with Christopher Duncan, who was charged with transporting the substances, the owner of the IVECO van with registration plate 9722-CKP, which was found in the warehouse and which had been used to transport the narcotics from the south of the province of Malaga to Cijeula."
At Box F the warrant states that there are 13 other accused, additional to the appellant, and that "the purpose of this arrest warrant is to have Christopher Duncan located, arrested and surrendered, wherever he is to be found, to this court in order to stand trial for the crimes imputed to him."
The appellant was arrested on the EAW on 30 April 2015 and served with a copy in both English and Spanish. On the same day he appeared at Westminster Magistrates' Court for his initial hearing. Likely issues raised were section 21A (less coercive measures), section 14 (delay) and section 25 (health). The appellant did not consent to his extradition and the extradition hearing was opened. He was granted conditional bail.
On 22 July 2015, there was a case management hearing. By this time the appellant had served a proof of evidence and a skeleton argument, raising section 25 (health), Article 8 and section 21A proportionality. In relation to section 21A(3)(c), it stated that the Judicial Authority should provide an explanation as to why less coercive measures had not been pursued, and referred in general terms to the European Supervision Order. It also stated that there was anecdotal evidence that Spain had permitted suspects to return to the UK, subject to reporting to the Spanish consulate. The Judicial Authority could have issued a court summons before making the extradition request. That, the skeleton said, was especially appropriate in this case since there was no evidence that the appellant was ever made aware of the trial date.
At the case management hearing those representing the Judicial Authority had been directed to serve further information, should they wish, by 19 August 2015. No information was served by that date, nor has any further information come from the Judicial Authority.
The final extradition hearing took place before District Judge Snow on 26 August 2015. The appellant's evidence was that he is in poor health. He had been diagnosed with Crohn's disease, which manifests itself in persistent, sometimes acute abdominal pain and continual diarrhoea. In a letter dated 15 June 2015 Dr P. Gyawali, a consultant, described how the appellant has undergone three abdominal operations to remove parts of his stomach or intestine. With surgery he had done very well and his Crohn's disease was in remission. There was no reason he could not travel. In the event his condition deteriorated, he would require urgent access to medical treatment.
The appellant's account regarding the offending in the EAW was that he moved to southern Spain in 2002 with the intention of retiring there. In early 2007 he bought an Iveco van, intending to earn some money conducting home removals. He was asked to rent his van to an Englishman whom he met locally to transport cigarettes. On 10 September 2007 he drove the van as agreed to Benavista, but was then asked to drive it to a warehouse near Granada with the explanation that he would be driven back. The van was empty at all times. Upon arrival at a warehouse, he was asked to reverse the van, whereupon plain clothes police arrested him and the others present. He was on remand in Alhaurin prison at Malaga for 6 months. During that time, he was hospitalised on at least two occasions.
In about March 2008, the appellant said that his Spanish lawyer visited him in custody and proposed a bail security of €30,000 or payment within two weeks of a security of €10,000. He could not afford to pay either sum. However, a fortnight later, in about March 2008, the €10,000 had been paid on his behalf, but the appellant was not told by whom. He was released and his UK passport was returned. He was told to attend court within a week to learn his bail conditions. This he did, confirming his address in Estepona, and he was told to report to the police or the town hall once a month. His health deteriorated during his imprisonment and following his release. For this reason in about May 2008 he returned to the UK. He sold his Spanish property and did not leave a forwarding address. In 2009, he was referred to hospital in the UK where he underwent an urgent operation to remove part of his stomach to address a bowel blockage. After discharge from hospital, he returned to live with a friend before being housed in a warden-supervised apartment for the elderly at Hornchurch, where he has resided to the present.
On the appellant's account he believed that the Spanish authorities were no longer interested in prosecuting him, reinforced by his return to Spain on some six occasions without incident up until February 2010. He now feared returning to Spain, particularly since he felt that his condition was not adequately treated there, whether in prison or in the community. He further insisted that, had he been aware of any trial date in Spain, he would have attended. Due to his lack of involvement in the offence overall he assumed that, due to the passage of time, he was no longer of interest to the Spanish authorities.
The District Judge's judgment
After reviewing the evidence, the District Judge made findings that the appellant was a clear fugitive from justice, had left Spain in breach of his bail conditions, and had provided the Judicial Authority with no means of contacting him. He had not contacted the Judicial Authority or his lawyer subsequent to his release. At no time was he informed that he would not be prosecuted. He was wanted for trial in Spain.
With respect to the arguments raised on his behalf, the District Judge first considered Article 8 ECHR. He referred to Polish Judicial Authorities v. Celinski [2015] EWHC 1274 and set out the factors for and against extradition (the seriousness of the allegations and the fact that the appellant was a fugitive on the one hand; the age of the allegations, nine years, the appellant's age and his health on the other). He was satisfied that extradition was not incompatible with the appellant's Article 8 rights:
"[31]… I remind myself that there is a very high public interest in ensuring that extradition arrangements are honoured, as is the public interest in discouraging persons from seeing the UK as a state willing to accept fugitives from...
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...49 The way in which s21B applications should be made and considered was dealt with in Duncan v Presiding Magistrate, Malaga, Spain [2015] EWHC 3466 (Admin), Beatson LJ and Cranston J. It had not been decided in time for the District Judge here to consider it. However, the lateness of the ap......
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