Goodyer and Gomes v Government of Trinidad and Tobago

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date29 April 2009
Neutral Citation[2009] UKHL 21
Date29 April 2009

[2009] UKHL 21

HOUSE OF LORDS

Appellate Committee

Gomes
(Appellant)
and
Government of Trinidad and Tobago
(Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)
Goodyer
(Appellant)
and
Government of Trinidad and Tobago
(Respondents) (Criminal Appeal from Her Majesty's High Court of Justice) (Conjoined Appeals)

Appellant (Gomes):

Edward Fitzgerald QC

Ben Cooper

(Instructed by IBB Solicitors)

Appellant (Goodyer):

Alun Jones QC

Ben Cooper

(Instructed by Kaim Todner)

Respondents:

David Perry QC

Mark Summers

(Instructed by Crown Prosecution Service)

Ordered to Report

The Committee (Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood, Lord Mance and Lord Neuberger of Abbotsbury) have met and considered the cause Gomes (Appellant) v Government of Trinidad and Tobago (Respondents) (Criminal Appeal from Her Majesty's High Court) and Goodyer (Appellant) v Government of Trinidad and Tobago (Respondents) (Criminal Appeal from Her Majesty's High Court) We have heard counsel on behalf of the appellants and respondent. The report has been prepared by Lord Brown of Eaton-under-Heywood.

1

This is the considered opinion of the committee.

2

Each of the two appellants, Benjamin Goodyer, a UK national, and Rick Anthony Gomes, a citizen of Trinidad and Tobago, is wanted by the Government of Trinidad and Tobago (hereafter Trinidad) for trial there on charges of possession of cocaine for the purposes of trafficking (7.5 kg in Goodyer's case, two or three times that amount in Gomes's case). Their alleged offences were committed at different times and in different circumstances. What, however, they have in common is that each was arrested in the UK following an extradition request by Trinidad and each unsuccessfully argued before the District Judge at their respective extradition hearings, first, pursuant to sections 79(1)(c) and 82 of the Extradition Act 2003 (the Act), that it would be unjust or oppressive to extradite him by reason of the passage of time since his alleged offence (five and a quarter years in Goodyer's case, eight and a half years in Gomes's case), and, secondly, pursuant to section 87 of the Act, that his extradition would not be compatible with his Convention rights under article 3 given Trinidad's appalling prison conditions.

3

Each having appealed to the Divisional Court under section 103 of the Act against the respective District Judge's decisions under section 87(3) to send their cases to the Secretary of State for her decision whether to extradite them, it was ordered that their appeals be heard together because they raised similar issues.

4

On 22 August 2007 the Divisional Court (Sedley LJ and Nelson J) allowed their appeals and, pursuant to section 104(1)(b) of the Act, remitted the case to the district Judge to decide again two questions, namely (A) whether it would be unjust or oppressive by reason of the passage of time to return either defendant to Trinidad for trial and, if not, (B) whether, were either defendant to be returned, his prison conditions in the maximum security facility (MSF) in Trinidad would be such as to breach article 3's prohibition against inhuman and degrading treatment. Question (B) referred to the MSF because, on the eve of the Divisional Court hearing, Trinidad had given a diplomatic assurance that the men, if returned, would be held there (both on remand and, if convicted, as prisoners) and not in their original prisons. In the event, the District Judge, having heard very extensive evidence about conditions at the MSF, including from Lord Ramsbottom, a former HM's Chief Inspector of Prisons, who had visited Trinidad for the purpose, decided that detention there would involve no real risk of an article 3 breach, and we need say no more about that particular question.

5

As to the re-determination of question (A), the Divisional Court thought it relevant not only that both appellants were alleged to have fled Trinidad in breach of their bail conditions but also that Trinidad itself was thereafter guilty of culpable delay in seeking their extradition (at any rate in Goodyer's case where Trinidad admitted to having lost the prosecution case file for perhaps as long as three years). Having cited the opinions of the House in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 (to which we shall return), the Divisional Court's judgment included the following:

"It seems to us that, whether the concurrent fault of the requesting state is regarded as keeping the chain of causation intact, albeit attenuated, or is regarded as an exceptional circumstance, it is wrong for the reasons given by Lord Edmund-Davies to leave it out of account. (para 17)

There would also be an asymmetry, if we may respectfully say so, between taking cause of delay into account to the accused person's detriment when it is his fault, but leaving it out of account when it is the requesting state's fault. It seems to us more appropriate to regard the respective faults of the offender and the state as merging at the point where it is no longer reasonable for the requesting state not to have located the offender. From that point it becomes increasingly likely that the sense of security engendered by state inaction will render extradition oppressive. (para 19)

For all these reasons, difficult though it will be for the decision-maker, section 82 in our judgment requires him or her to give as much weight to the effects of the passage of time as he or she judges right given that both sides have been to blame for it." (para 21)

6

Section 82 of the Act provides:

"82. Passage of time

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), or

  • (b) become lawfully at large (where he is alleged to have been convicted of it)."

Trinidad is a category 2 territory under the Act.

7

The remitted case was heard by District Judge Purdy (who had originally heard Gomes's case but not Goodyer's) on 24 April 2008. Before he did so, however, another constitution of the Divisional Court (Longmore LJ and Mitting J) on 23 November 2007 in Krzyzowski v The Circuit Court in Gliwice, Poland [2007] EWHC 2754 (Admin), decided that the views expressed by the Divisional Court in the present case were inconsistent with Kakis and wrong and that the district judge in Krzyzowski had been right to hold that once the suspect had been found guilty of deliberate flight he could not rely on the passage of time save in the most exceptional circumstances.

8

District Judge Purdy, despite Sedley LJ's ruling that question A was to be decided "in the light of this judgment", noted the later decision in Krzyzowski and held that Longmore LJ's judgment in that case "correctly states the law founded on long established and frequently applied principles set out in Kakis." Having heard a number of witnesses and considered a good deal of material ("contained in several large files") on the various issues before him, the judge rejected the respective appellants' accounts of having been free to leave Trinidad and instead expressed himself sure to the criminal standard of proof that each appellant was "a classic fugitive". "On one view", he said, "that leads to answering question A without more in the negative". He nevertheless went on to consider, in Goodyer's case, whether Trinidad's admitted loss of the file for several years, and, in Gomes's case, whether the death in 2005 of a prospective defence witness, Monica Buns, gave rise to a bar to extradition under section 82, in each case holding not.

9

By virtue of section 104(7) of the Act, the appellants' appeals were therefore to be taken as having been dismissed by the High Court (i.e. the Divisional Court). It may be doubted whether in fact the judge's conclusion on question A would have been any different had he adopted Sedley LJ's rather than Longmore LJ's approach to the law. Be that as it may, however, the Divisional Court on 22 July 2008, pursuant to section 114(4) of the Act, certified that a point of law of general public importance was involved in the decision, namely:

"Whether the law on the passage of time bar to extradition as set out in sections 14 and 82 of the Extradition Act 2003 is correctly stated in Goodyer and Gomes v Government of Trinidad and Tobago or whether Krzyzowski v The Circuit Court of Gliwice, Poland which considers Goodyer and disapproves of its approach to the passage of time bar should be followed."

(Section 14 makes identical provision to sec 82 with regard to category 1 territories.)

Leave to appeal was given by the House on 11 December 2008.

10

Before addressing the certified question it is convenient next to indicate a little more about the facts of the appellants' cases.

Goodyer

11

Goodyer, then aged 23, was arrested on 21 November 2002 at an airport in Trinidad en route to Heathrow: the cocaine had been found in a samsonite handbag in his luggage; he denied all knowledge of it. After two months on remand, he was bailed on 31 January 2003 to appear on 28 February 2003 with a condition of thrice weekly reporting. Following his failure to surrender to bail, a domestic arrest warrant was issued on 24 April 2003. It was at some point after this that the prosecution file (containing Goodyer's address in the UK) went missing and it was not until 22 June 2006 (a month or two after it was re-located) that Trinidad requested Goodyer's extradition. He had in the meantime been living at his home address (his mother's house) in Essex (save for serving a sentence of nine months' imprisonment imposed at Isleworth Crown Court on...

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