Gomes v Republic of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Sir Brian Leveson |
| Judgment Date | 25 February 2015 |
| Neutral Citation | [2015] UKPC 8 |
| Date | 25 February 2015 |
| Docket Number | Appeal No 0085 of 2013 |
| Court | Privy Council |
[2015] UKPC 8
Privy Council
From the Court of Appeal of the Republic of Trinidad
Lord Mance
Lord Sumption
Lord Reed
Lord Hughes
Sir Brian Leveson
Appeal No 0085 of 2013
Appellant
Paul Garlick QC Frances Ibekwe
(Instructed by Simons Muirhead and Burton Solicitors)
Respondent
Aidan Casey
(Instructed by Charles Russell Speechlys)
Heard on 19 January 2015
On 14 August 2010, after a retrial before Lucky J and a jury at the Port of Spain Assizes, the appellant, Rick Gomes, was convicted upon two counts of possession of a dangerous drug (cocaine) for the purpose of trafficking, possession of a firearm and possession of ammunition. He was sentenced to 13 years' imprisonment with hard labour on the first count with concurrent terms of five years, five years and three years imprisonment with hard labour respectively. His appeal against conviction to the Court of Appeal of the Republic of Trinidad and Tobago (Weekes, Yorke-SooHon and Narine JJA) was dismissed. There was no appeal against sentence and by dismissing the appeal against conviction, the sentences were affirmed.
On 18 March 2014, the Board (Lord Kerr, Lord Clarke and Lord Toulson) refused the appellant leave to appeal against conviction but, on the basis of arguments not previously advanced, granted leave to appeal against sentence. The written grounds were that the appellant's sentence should have been reduced so as to give credit for the time that he spent on remand in custody, pending extradition, both in the United Kingdom and in Trinidad and Tobago and that, both for that reason and in any event, the current sentence is manifestly excessive. In the circumstances, the facts and, more important, the chronology of the proceedings require analysis.
As long ago as 15 May 1998, when executing a search warrant at the appellant's home, police officers observed the appellant and another seated at opposite sides of a table on which there were 17 packets each containing a white powder later found to be cocaine. Using two sets of different car keys found in the appellant's trouser pocket, the police searched both cars. Under the driver's seat in one car, there was a firearm and ammunition; in the boot of the other was a further packet also containing cocaine. Forensic analysis revealed that the 17 packets consisted of 18.7 kilograms of powder which represented 8.41 kilograms of cocaine at 100% purity; the single packet consisted of 999.6 grams of power which represented 377 grams of cocaine at 100% purity. The appellant was charged with the offences and remanded in custody.
On 4 November 1999, Volney J severed the firearms charges and a trial proceeded on the drugs charges. On 14 December 1999, for reasons which do not require elaboration, the judge upheld a submission of no case to answer in respect of which the State intimated an intention to appeal. The appellant was then granted bail on the firearms charges and, two days later, in breach of his bail and knowing of the intended appeal, he left the country.
On 11 February 2000, the Court of Appeal (de la Bastide CJ, Sharma and Ibrahim JJA) allowed the State's appeal and ordered a retrial: the appeal was heard in the absence of the appellant although there were newspaper notices of the hearing. A domestic arrest warrant was issued but, notwithstanding efforts both locally and abroad, the appellant could not be located. It was only on 5 May 2006 that the appellant was arrested at Heathrow Airport in London: this arrest was pursuant to the activation of an Interpol red notice. On 5 June 2006, Trinidad and Tobago requested his extradition.
There then commenced a process of extradition in the UK. This was hotly contested and the initial basis for the request can best be summarised in the language of Lord Brown of Eaton-under-Heywood in the House of Lords which ultimately determined his appeal (see [2009] UKHL 21; [2009] 1 WLR 1038, para 16):
"Prior to his leaving Trinidad on 16 December 1999, Gomes had been held on remand for 19 months at Frederick Street prison, a prison which Lord Ramsbottom had unequivocally condemned in 2001 as not ECHR compliant. It was not, however, on this account that Gomes explained his decision to flee the country in breach of his bail conditions. Rather he claimed to have been threatened with death, the police being so upset at his acquittal …"
District Judge Purdy (who had heard the extradition request) "roundly rejected" this explanation and sent the case to the Secretary of State who, on 9 March 2007, ordered his extradition. The appellant then appealed to the Divisional Court on the grounds of delay and (because of prison conditions in certain prisons in Trinidad and Tobago) a real risk of breach of article 3 of the European Convention on Human Rights. On 22 August 2007, the Divisional Court (Sedley LJ and Nelson J) remitted the case to the District Judge to consider section 82 of the Extradition Act 2003 (whether it would be unjust or oppressive by reason of the passage of time to return the appellant to Trinidad for trial) and, if not, whether the prison conditions in the maximum security facility in Trinidad would be such as to breach article 3's prohibition against inhuman and degrading treatment. It is important to underline that shortly before the Divisional Court hearing, Trinidad had provided a diplomatic assurance that the appellant would not be held either on remand or, if convicted, as a prisoner, in Frederick Street prison (see [2007] EWHC 2012 (Admin), para 6).
When the case came back before the District Judge, following Krzyzowski v The Circuit Court in Gliwice, Poland [2007] EWHC 2754 (Admin), he expressed himself sure that the appellant was "a classic fugitive". Having been guilty of deliberate flight, he could not rely on the passage of time to defeat extradition and there were no exceptional circumstances to justify a different course. He also decided that detention in the maximum security facility involved no real risk of breach of article 3.
By virtue of section 104(7) of the 2003 Act, further appeals were taken as having been dismissed by the Divisional Court whereupon the appellant appealed to the House of Lords: on 29 April 2009, that appeal was dismissed and, on 22 May 2009, an application to the European Court of Human Rights for a stay of extradition pending an application to the Court was refused. The appellant then submitted further representations to the Secretary of State as to why he should not be extradited and, when they were...
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Sheldon Bain v The Queen
...Callachand v R [2008] UKPC 49 considered; Romeo Da Costa Hall v R [2011] CCJ 6 (AJ) considered; Gomes v The State of Trinidad and Tobago [2015] UKPC 8 applied; 10. The sentence of eighty years was manifestly excessive. In all the circumstances, including the time spent by the appellant on......
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Sheldon Bain v The Queen
...Callachand v R [2008] UKPC 49 considered; Romeo Da Costa Hall v R [2011] CCJ 6 (AJ) considered; Gomes v The State of Trinidad and Tobago [2015] UKPC 8 applied; 10. The sentence of eighty years was manifestly excessive. In all the circumstances, having been given full credit for the time sp......
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