Mucelli v Albania
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Mr Justice Aikens,Lord Justice Hooper,Mr Justice Maddison |
| Judgment Date | 19 May 2009 |
| Neutral Citation | [2009] EWHC 1030 (Admin),[2008] EWHC 1024 (Admin),[2007] EWHC 2632 (Admin) |
| Docket Number | Case No: CO/6536/2007,Case No: CO/2843/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 May 2009 |
[2007] EWHC 2632 (Admin)
Lord Justice Richards and
Mr Justice Aikens
Case No: CO/6536/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Ben Cooper (instructed by Shearman Bowen & Co ) for the Appellant
Melanie Cumberland (instructed by the Crown Prosecution Service ) for the Respondent
Ben Watson (instructed by The Treasury Solicitor ) for the Interested Party
Hearing dates: 3 and 9 October 2007
Judgement
The appellant seeks to challenge a decision made on 4 June 2007 by District Judge Anthony T Evans, sitting at City of Westminster Magistrates' Court, to send the appellant's case to the Secretary of State for a decision on whether the appellant should be extradited. The request for extradition came from the Government of Albania, which is a category 2 territory within the meaning of the Extradition Act 2003. The case is therefore governed by Part 2 of the Act.
The request relates to a count of murder committed on 13 June 1997 and a further count of possession of firearms. The victim lived in a flat in Tirana with the appellant's aunt. A few days prior to the killing there had been an argument over gold coins. On the day of the killing the appellant's wife visited the flat, spoke to the victim and then went out of the building. About 10 minutes later the appellant arrived with a large sports bag and went into the building. Some time later witnesses heard gunshots and saw the appellant walking down the stairs and putting a sub-machine gun into his bag.
Criminal proceedings were commenced on the same day by the District Prosecutor's Office at Tirana. Both the appellant and his wife were charged with murder. They left Albania but were tried in their absence, in a series of hearings between 15 April and 25 September 1998. The appellant's wife was acquitted. The appellant himself, who was represented at trial by a lawyer, was convicted and sentenced to 25 years' imprisonment on the murder count and to 1 year's imprisonment on the firearms count. An order for the execution of the sentence was issued on 15 October 1998. It was not until 6 February 2007, however, that the appellant was arrested pursuant to a provisional arrest warrant. The full extradition request followed on 28 February 2007.
The district judge's decision
The contested issues in the extradition proceedings were these. First, under s.79(1)(c), the judge had to decide whether the appellant's extradition was barred by reason of the passage of time: by s.82, 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 committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be). Secondly, since the appellant had been convicted in his absence, the judge had to decide, under s.85(3), whether the appellant had deliberately absented himself from his trial. If the answer to that question was in the negative, then the judge had to decide the alternative question, under s.85(5), whether the appellant would be entitled to a retrial on his return. An affirmative answer to one or other of the questions under s.85 would take the judge to s.87, under which he had to decide whether extradition would be compatible with the appellant's Convention rights under the Human Rights Act 1998.
In his decision the judge said that in order to answer those questions it was necessary to look first at the evidence. He had heard evidence from the appellant himself and from the appellant's mother.
The gist of the appellant's account was that he left Albania in October 1997 for economic reasons. He left on a false Greek passport and worked for some time in Greece and Italy before coming to the United Kingdom. He was adamant in evidence in chief that he arrived in this country on 22 February 1998, but was forced to concede in cross-examination that it was in fact on 22 October 1998. He said he had come for a better life, not because he was in trouble. After 6 months in this country he was given leave to stay here. He denied knowing any of the witnesses in the case against him and said that he had never owned a gun, had never been to Tirana and had never met his aunt who lived there.
The judge did not believe or accept that evidence. He referred to various inconsistencies in it. He said that the reality was that the appellant had been living a lie for the whole of his time in this country. The appellant had used a variety of false names and given a false date of birth. It was apparent from a psychiatric report on him that, in the account given to the doctor, the appellant had invented yet another identity for himself, this time as a Kosovan.
The judge also mentioned that it had been the intention of the defence to call the appellant's wife as a witness, but after receipt of the psychiatric report, in which the appellant had made no mention to the doctor of his wife, the case was adjourned for further instructions to be taken and the wife was not called.
The appellant's mother was called, but the judge described her evidence as confused and confusing. He referred to inconsistencies between it and the appellant's own evidence and what the appellant had told the doctor. The judge attached no weight to the mother's evidence.
It was in the light of his findings on the evidence that the judge considered the questions he had to decide.
As to the first question, passage of time, he pointed out that in a category 2 case the request is made through government and diplomatic channels, and that until the whereabouts of the defendant are known that request cannot be made. He continued:
"It can safely be assumed that the defendant had been circulated as wanted by the Albanian authorities. However, this would have been under his known name of Mucelli, not the various aliases he assumed. His assumed dates of birth and, indeed, nationality would not have been known to the Albanian authorities. It would only have been after his arrest on the Provisional Warrant that his whereabouts would have been known to the Albanian authorities. Thereafter, they acted with commendable speed. The delay is due entirely to the efforts of the defendant in assuming new identities and travelling through Europe and finally obtaining leave to stay in this country which again was done on the basis of lies He cannot rely on the bar of passage of time."
On the second question, the judge said that there was no doubt that the appellant deliberately left Albania to avoid the consequences of his actions. The judge did not accept for one moment the explanation of leaving for economic reasons and to have a better life. When told that the arresting officer had a warrant for his arrest for murder, the appellant's immediate reaction was not to express surprise or to question this, as would be expected if he knew nothing of it, but to try and force his way past the officers and escape. The judge went on:
"I am satisfied that he left Albania to avoid prosecution. He must have been aware that a trial would follow and it is clear that he did not wish to attend …. [T]he defendant must have been aware that a trial would follow with inevitable consequence if convicted. [This], I am satisfied, was what he was trying to avoid."
The judge then referred to Government of Albania v Bleta [2005] EWHC 475 (Admin), [2005] 1 WLR 3576, which he either distinguished on the facts or declined to follow (I shall examine his reasoning further when considering the relevant ground of appeal), before concluding:
"I am satisfied in this case that the defendant's motive for fleeing Albania was to avoid his trial in due course. He knew that he would face trial if caught and this he was determined should not happen at all costs. The fact that he would not know its eventual date and place are, in this context, irrelevant, as due regard must be had to the practices and procedures of different jurisdictions."
The judge said that if that conclusion was not right and the appellant did not deliberately absent himself, he had to consider the question of the right to a retrial. Distinguishing Bleta (on a basis that I shall again examine when considering the relevant ground of appeal), the judge concluded that he was satisfied by a "guarantee" given in letters from the Albanian authorities that the appellant would be entitled to a retrial if extradited.
Turning finally to s.87, the judge found that the appellant's extradition would not give rise to a breach of his Convention rights.
The judge therefore sent the appellant's case to the Secretary of State for a decision on whether the appellant should be extradited. On 18 July 2007 the Secretary of State ordered the appellant's return to Albania.
The grounds of appeal
The appellant advances three main grounds of appeal: (1) that the judge erred in finding that the appellant deliberately absented himself from his trial; (2) that the judge erred in finding there to be an adequate guarantee that the appellant would be afforded a retrial if extradited; and (3) that the judge erred in finding that the appellant had caused in whole or in part the delay in the commencement of the extradition proceedings and that it would not be unjust or oppressive to extradite him.
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