Lynch v The High Court in Dublin
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AIKENS,MR JUSTICE OPENSHAW |
| Judgment Date | 14 January 2010 |
| Neutral Citation | [2010] EWHC 109 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11046/2009 |
| Date | 14 January 2010 |
[2010] EWHC 109 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Aikens
Mr Justice Openshaw
CO/11046/2009
David Rhodes (instructed by IBB Solicitors) appeared on behalf of the Appellant
Aaron Watkins (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
(As Approved)
: This is a statutory appeal by Raymond Lynch (“the appellant”), against an extradition order made by District Judge Tubbs on 22nd September 2009 under the Extradition Act 2003 (“the Act”).
The Irish Judicial Authority (“the IJA”) issued a European arrest warrant (“EAW”) on 25th March 2009. The Republic of Ireland is a Category 1 territory within section 1 of the Act so that Part I of the Act, as amended, applies to this case. The EAW was received in England and Wales by the Serious Organised Crime Agency, which is a designated authority for the purposes of Part I of the Act. The appellant was arrested in England on 21st April 2009 by a police officer acting pursuant to the EAW.
The IJA seeks the return of the appellant to the Republic of Ireland to stand trial in respect of six offences which it is alleged that he committed against his niece, either in her home or that of her grandparents or, in one case, in a public house, all in the Republic of Ireland.
The alleged offences
All of the offences concerned are alleged sexual assaults. The first offence is said to have occurred in 1989, when the niece was 7 years old. The last is said to have taken place sometime in 1998. One offence would be charged under the Irish common law and carries a maximum penalty of 10 years' imprisonment; the other five offences would be charged under the Republic Criminal Law (Rape) (Amendment) Act 1990. Those offences would carry a maximum penalty of 5 years' imprisonment.
History
The appellant was born on 13th July 1951, and so is now 58 years old. He has been resident in the United Kingdom for the last 30 years, but has travelled to Ireland from time to time.
The complainant first complained of the offences to the Irish police (“the Garda”) on 27th July 2002.
On 13th September 2003 the appellant was arrested by the Garda and questioned in relation to the alleged offences. He was then released. He must then have returned to England.
On 1st December 2003 the Garda made their first inquiry of Interpol. On 11th October 2004 Interpol told the Garda that a person suspected to be the appellant had been arrested on various charges of sexual offences in England, but that he had failed to attend court on 15th April 2003.
In August 2004 a file was submitted to the Irish Director of Public Prosecutions in relation to the case. Between 2004 and 2005 further investigations in relation to the case were made by the Garda. In September 2005 the Irish DPP ordered that there be a prosecution of the appellant.
In March 2006 the Garda made further inquiries with Interpol and also tried to obtain an address for the appellant from his own defence solicitors. The Garda made further inquiries of Interpol and also with the appellant's family as to his whereabouts in 2007.
On 26th November 2008 two arrest warrants were issued by the Cork District Court. On 2nd March 2009 four arrest warrants were issued in the Carrick-on-Shannon District Court. Then, on 25th March 2009, the EAW, signed by Michael Peart J, was issued.
Proceedings before the District Judge
Before District Judge Tubbs the appellant submitted that there were two bars to his extradition under the provisions of Part I of the Act: first, the passage of time since the alleged offences so that it would be unjust or oppressive to extradite him (see section 11(1)(c) and section 14 of the Act); secondly, the physical and/or mental condition of the appellant was such that it would be unjust or oppressive to extradite him (see section 25(2) of the Act).
The District Judge had before her a psychiatric report on the appellant dated 4th July 2009, which had been prepared by Dr Partovi-Tabar. He is a consultant psychiatrist in the NHS since 1993 and currently a consultant with the Berkshire Healthcare NHS Trust. His report was not challenged by the IJA at the hearing before the District Judge but the legal submissions based on it were very much in issue. Neither the appellant nor any other witnesses gave evidence before the District Judge, as is recorded at page 2 of her reserved judgment.
The District Judge concluded as follows:
(1) The appellant knew of the nature of the allegations from the date of his questioning by the Garda in September 2003.
(2) The Irish police had not been dilatory.
(3) The Irish police had given a satisfactory explanation in a letter to the Crown Prosecution Service dated 10th July 2009 and an e-mail dated 16th July 2009 of the reasons why it had taken so long to issue an EAW.
(4) Although the District Judge accepted the findings of the psychiatric report that the appellant had impaired cognitive facilities as a result of chronic alcoholism, she held that she was not bound by the conclusion in the report that the appellant was unfit to plead. That was a matter for the Irish Judicial Authorities to decide because it could not be said that the appellant was “indisputably”, or would “inevitably” be found to be, unfit to stand trial.
(5) Therefore, it was neither unjust nor oppressive by reason of passage of time, or by reason of the current medical and psychiatric condition of the appellant, to extradite him.
The arguments in the appeal
Mr David Rhodes appears on behalf of the appellant in this appeal. He submits, founding himself on section 27(3)(a) of the Act, that the District Judge ought to have decided the questions concerning passage of time and the physical and mental condition of the appellant differently. He submits that she should have concluded on the facts that it would have been unjust and/or oppressive to extradite the appellant. Therefore, the District Judge should have ordered the appellant's discharge. Thus, he submits, the appeal must be allowed.
Mr Rhodes' first submission is that there has been an inexcusable delay of almost 7 years between the time the complainant made her complaint to the Irish police in 2002 and the issue of the EAW in 2009. That has been the result, he submits, of the dilatory approach of the requesting state. He submits that as a result of that inexcusable delay there has been a significant change in the appellant's circumstances. He points particularly to the facts stated in the psychiatric report, namely that the appellant's brother died in 2000, his mother died in about 2003, and a sister died in 2004.
In Mr Rhodes' submission, during this period the appellant's chronic alcohol dependency had spiralled out of control with disastrous consequences for the appellant's physical and mental state. Mr Rhodes relies on the conclusion of Dr Partovi-Tabar's report that the appellant had experienced a “radical change in his mental state with intense forgetfulness, and even inability to communicate normally.”
Mr Rhodes also relies on Dr Partovi-Tabar's diagnosis of a severe depressive illness which has manifested itself in a “severe problem with cognitive function” such that the appellant does not remember any dates. Mr Rhodes does continue to rely on Dr Partovi-Tabar's conclusion that the appellant is unfit to plead and to stand trial. It is Mr Rhodes' submission that, given the date of Dr Partovi-Tabar's report, ie July 2009, the position must be that the appellant's mental and physical state has deteriorated considerably since 2007.
The law
There is, I think, little or no dispute on the applicable legal principles in this area of the law. First, the meaning of “oppressive” and “unjust” for the purposes of sections 14 and 25 of the Act are those set out in Lord Diplock's speech in Kakis v Government of the Republic of the Cyprus [1978] 1 WLR 799 (see 782H-783A). See also the judgment of Simon Brown LJ (as he then was) in Woodcock v Government of New Zealand [2003] EWHC 2668 (Admin) at paragraph 3. Thus “unjust” is directed primarily at the risk of prejudice to the extraditee and the conduct of any trial he might face, whereas “oppressive” is directed to the hardship to...
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