Kakis v Government of the Republic of Cyprus

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Diplock,Lord Edmund-Davies,Lord Russell of Killowen,Lord Keith of Kinkel,Lord Scarman
Judgment Date18 May 1978
Judgment citation (vLex)[1978] UKHL J0518-2

[1978] UKHL J0518-2

House of Lords

Lord Diplock

Lord Edmund-Davies

Lord Russell of Killowen

Lord Keith of Kinkel

Lord Scarman

Kakis
(Appellant)
and
Government of the Republic of Cyprus and Others
(Respondents) (On Appeal from a Divisional Court of the Queen'S Bench Division)

Upon Report from the Appellate Committee to whom was referred the Cause Kakis against Government of the Republic of Cyprus and others, That the Committee had heard Counsel as well on Wednesday the 19th as on Thursday the 20th days of April last upon the Petition and Appeal of Kyriakos Mariou Kakis of 47 Linslade House, Whiston Street, London E.2 praying that the matter of the Order set forth in the Schedule thereto namely an Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 16th day of December 1977 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; and Counsel having been heard on behalf of the Government of the Republic of Cyprus and the Governor of Her Majesty's Prison at Pentonville and the Secretary of State for the Home Department the Respondents to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 16th day of December 1977 complained of in the said Appeal be, and the same is hereby, Reversed except so far as regards the provision for taxation of Costs in accordance with Schedule 2 to the Legal Aid Act 1974 and that the Cause be, and the same is hereby, remitted back to a Divisional Court of the Queen's Bench Division of the High Court of Justice with a Direction that Mr. Kakis is entitled to discharge pursuant to section 8(3) of the Fugitive Offenders Act 1967: And it is further Ordered, That the Respondents the Government of the Republic of Cyprus do pay or cause to be paid to the said Appellant the Costs incurred by him in the Courts below and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Costs incurred by the Appellant in respect of the said Appeal to this House be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974.

Lord Diplock

My Lords,

1

This is an appeal against the refusal by the Divisional Court on 16th December 1977 to make an order under section 8(3) of the Fugitive Offenders Act 1967 preventing the extradition of the appellant, Mr. Kakis, to Cyprus to stand his trial for the murder of a Mr. Photiou which he is alleged to have committed at Larnaca in Cyprus as long ago as 5th April 1973. He was first arrested in London on 28th March 1977. The extradition proceedings before the Chief Metropolitan Magistrate ended on 12th September 1977. They resulted in an order of committal to Pentonville Prison to await the directions of the Secretary of State under section 9 of the Fugitive Offenders Act.

2

In the course of the hearings at Bow Street Mr. Kakis gave evidence that on 5th April 1973 he was at home at the time that Photiou was killed; and this alibi defence was supported by the oral evidence of two witnesses—his wife and a Mr. Alexandrou who had emigrated from Cyprus to England in 1975 and is now settled here. It was also submitted on his behalf that the offence of which he was accused was an offence of a political character so as to render him immune from extradition under section 4(1)(a) of the Act. Evidence as to the political situation in Cyprus from 1973 onwards was given in support of this submission, which was however rejected by the learned Chief Magistrate.

3

Upon the application to the Divisional Court for a writ of habeas corpus, Mr. Kakis relied upon two separate grounds on which he claimed to be entitled to be released from custody. The first was that relied on before the magistrate, viz. the political character of the offence. The second was one which had not been open to him before the magistrate, viz. the lapse of time since he was alleged to have committed the offence. The latter ground is dealt with by Section 8(3) of the Act which empowers the High Court to order the applicant to be discharged from custody:

"if it appears to the court that … (b) by reason of the passage of time since he is alleged to have committed it [sc. the offence of which he is accused] … it would, having regard to all the circumstances, be unjust or oppressive to return him."

4

The Divisional Court (Lord Widgery LCJ, Cumming-Bruce LJ and Park J.) held that on the evidence neither ground for ordering Mr. Kakis to be released from custody had been made out. Before your Lordships' House the contention that the offence of murder with which Mr. Kakis is accused (but which he denies) was of a political character was abandoned and the argument has been confined to the appellant's claim to be entitled to be discharged under section 8(3)(b) of the Act.

5

My Lords, this subsection has so recently been the subject of detailed consideration by this House in Reg. v. Governor of Pentonville Prison. Ex parte Narang [1977] 2 W.L.R. 862, that I can go straight to the chronology of those events which in my view have significance in reaching a conclusion as to whether or not the passage of time since 5th April 1973 has made it unjust or oppressive to return Mr. Kakis to Cyprus to stand his trial for a murder committed on that date.

6

On 5th April 1973 in Larnaca, three men, of whom it is alleged Mr. Kakis was one, shot down and killed a Mr. Photiou. The other two were members of a militant political organisation EOKA B and so was Mr. Kakis. It had been proscribed by the government then in power in Cyprus under the presidency of Archbishop Makarios; the victim, Mr. Photiou, was a member of a pro-Makarios political party known as EDEK.

7

A warrant for the arrest of Mr. Kakis was issued on that same night but he escaped to the mountains where he joined a band of fellow members of EOKA B and remained there with them in hiding for fifteen months until on 15 July 1974 they emerged to take part in the coup which ousted the Makarios government and replaced it temporarily by a government controlled by EOKA whose aim was to achieve the union of Cyprus with Greece. This led within a few days to the invasion of Cyprus by the Turkish army and the disruption that followed it.

8

After the coup Mr. Kakis was able to move about freely and openly in that part of Cyprus that was not under Turkish control. He decided to emigrate with his family to England and to establish himself here. He was granted by the Cyprus Government an exit permit for this purpose and left with his family for England on 9th September 1974.

9

On 7th December 1974, Archbishop Makarios returned to Cyprus. He proclaimed an amnesty. Mr. Kakis understood himself to be included among those to whom the amnesty applied. So confident was he that this was so that he returned to Cyprus in mid-January 1975 and remained there for two or three weeks winding up his affairs in the island. He was granted by the Cyprus Government a visa to enter Cyprus for this visit and an exit permit to return to England after it.

10

On 2nd August 1975, Mr. Alexandrou, the witness upon whom Mr. Kakis relies for his alibi at the time of the murder, left Cyprus for England. He too had been a supporter of the coup of 7th July 1974. He feared that the opposition which by that time was being shown to the amnesty in the House of Representatives might result in a change of policy and he thought it safer to come to England where he had already sent his wife and children. He has now established himself in business here.

11

On 30th October 1975, the House of Representatives justified Mr. Alexandrou's fears. They voted in favour of prosecuting those concerned in the unsuccessful coup; and thereafter the policy of refraining from prosecuting political oponents of the government for crimes which they had committed before the coup was abandoned. It had been adopted in the interests of pacification in an endeavour to heal old wounds.

12

On 11th February 1976 the Attorney-General of Cyprus ordered that extradition proceedings should be brought against Mr. Kakis for the murder of Mr. Photiou on 3rd April 1973. On 10th March 1976 the necessary documents under the Fugitive Offenders Act 1967 were sent by the Cyprus Government to the Foreign and Commonwealth Office in London.

13

For reasons into which it is unnecessary to enter, save to mention that Mr. Kakis was in no way responsible for them, it took until 15th February 1977 before an authority to proceed under Section 3 of the Fugitive Offenders Act 1967 was issued by the Secretary of State. As already mentioned, it was on 28th March 1977 that Mr. Kakis was arrested in London; and on 16th December 1977 that the application to the Divisional Court for habeas corpus was refused.

14

My Lords, the passage of time to be considered is the time that passed between the date of the offence on 5th April 1973 and the date of the hearing in the Divisional Court on 15th December 1977, for that is the first occasion on which this ground for resisting extradition can be raised by the accused. So one must look at the complete chronology of events that I have summarised above and consider whether the happening of such of those events, as would not have happened before the trial of the accused in Cyprus if it had taken place with ordinary promptitude, has made it unjust or...

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