R Parker v The Republic of Argentina

Hearing dates: 17 April 2013

The Appellant, Anthony Parker, is a British citizen who was born in Italy. The respondent, the Republic of Argentina, has requested the extradition of the Appellant under Part 2 of the Extradition Act 2003 (the 2003 Act). On 23 December 2011, Senior District Judge Riddle, sitting at the City of Westminster Magistrates' Court, sent the case to the Secretary of State for a decision as to whether the Appellant should be extradited. The Appellant appeals against that decision pursuant to section 103 of the 2003 Act.

The appeal proceeded on three grounds: (i) no prima facie case had been made out; (ii) it would be oppressive to extradite the Appellant because of the effect on his mental and physical health of pre-trial detention in the sort of conditions likely to be experienced in Argentina; and (iii) there was a real risk of unreasonable delays before trial, which time would also be spent in custody without entitlement to seek bail, which would be a flagrant violation of Articles 5 and 6 ECHR.

The history of the extradition proceedings is set out in a judgment of the Divisional Court (Laws LJ and Swift J) on 15 February 2013, [2013] EWHC 226 (Admin), refusing to permit the Appellant to rely at this hearing on an expert report dealing with the duration and conditions of pre-trial detention, to which the Argentinian authorities had replied. Permission was refused because this evidence could have been obtained for presentation to the Senior District Judge; the Court was also not persuaded that it would have led to a different finding on the issues of oppression under s91 Extradition Act 2003 or of potential breach of Articles 5 and 6 ECHR.

The Appellant was arrested on 26 November 2010 on a warrant issued by the Magistrates' Court, and has been remanded in custody in HMP Wandsworth since that date. There were at least 16 hearings, also involving a change of counsel and solicitor, before the Senior District Judge delivered his decision on 23 December 2011. The Appellant remains in custody in HMP Wandsworth.

The background

I take this summary of the background from the earlier Divisional Court judgment:

"The circumstances giving rise to the extradition request occurred on the night of 3 December 2008, when an unattended suitcase containing five parcels of cocaine was found in the departure lounge at Ezeiza airport in Buenos Aires. A review of CCTV footage taken at the airport led the Argentinian authorities to suspect that the appellant had left the suitcase there some time before it was discovered and had then boarded a plane for Frankfurt. When he arrived at Frankfurt, he was searched but no drugs were found on him. He was released and returned to the UK. The Argentinian authorities want to question the appellant about the incident with a view to prosecution."

The prima facie case

There is ample evidence that the suitcase contained packages of cocaine. The issue upon which Mr Bisgrove for the Appellant contends that no prima facie case has been made out is the identity of the person who left the suitcase unattended in the check-in area of the airport.

It is not in issue but that where the requesting state must show a prima facie case, as here, the judge must decide that issue by applying the test in R v Galbraith [1981] 1 WLR 1039: is the evidence presented by the requesting state, taken at its highest, such that a reasonable jury properly directed could properly convict on it? Where, after the rejection of any evidence which was worthless, the strength or weakness of the case depends on the view formed of the reliability of witnesses or on some other matter which falls within the jury's province, and on one possible view of the facts there is such evidence, then the matter should be left to the jury; ie there is a prima facie case.

This has been applied in the context of extradition in R v Governor of Pentonville Prison ex parte Osman (No.1) [1990] 1 WLR 277 at pp299–300, and approved in R v Governor of Pentonville Prison ex parte Alves [1993] AC 284, at p292.

Because the issue on the prima facie case turned on identification evidence, Mr Bisgrove also referred us to R v Turnbull [1977] QB 224, and the special need for caution. Where the quality of the identifying evidence was poor, eg where it depended solely on a fleeting glance or on a longer observation made in difficult circumstances, the judge should withdraw the case unless there was other evidence supporting the correctness of the identification. This is not an authority readily applied to the identification evidence in this case which depends on an examination of CCTV footage, and a view as to whether the person who leaves the suitcase containing the cocaine is the Appellant.

The Senior District Judge said this:

"Surveillance footage was inspected. This showed that the man who left the suitcase had dispatched other luggage through the Lufthansa desk of a flight bound for Frankfurt. Two witnesses analyse the CCTV tapes on 11 February 2009. Walter Harriott, an Airport Security Police Officer, gave sworn testimony that "the passenger is seen entering the airport premises carrying two pieces of luggage: a carry on, or wheeled suitcase and a piece of hand luggage. The former he left behind on a luggage trolley in the hall after checking in". This same witness was able, by a process he describes, to compare the physical features of the subject and positively identify the person who abandoned the suitcase as being Mr Anthony Parker. Another witness, Juan Picone, scrutinised the tapes several times and confirmed that the individual who had left the suitcase on the trolley and the passenger going through immigration booth No 12 were in fact the same person. Other evidence confirms that the person who had checked in at booth 12 at departures identified himself with this defendant's details."

The Judge also viewed the CCTV footage itself, and I can accept that the stills we have seen are likely to be of a lower quality than the CCTV footage itself. He concluded that this footage "in no way undermines" the evidence of the witnesses who concluded that the footage showed the same man throughout.

Mr Bisgrove divided the stills into four groups for the purpose of his analysis: 1: the first 14 taken between 19.25 and 19.38 show a man, A, who, as Mr Bisgrove accepted, at least could reasonably be concluded to be the Appellant arriving at the airport, with the hand luggage resting on the top of the wheeled case, his jacket over his left arm, and in a white shirt untucked from this grey trousers; he accepted that it would be reasonable to conclude that it was the same man throughout this sequence; 2: still 15 at 20.17 showing a man queueing for check-in with similar looking luggage, attire and general but blurred appearance to A; 3: stills 16–19 taken between 21.04 and 21.05 which by inference show the period when the suitcase was left in the check-in area, by someone who is either distant or blurred but has general similarities in dress, jacket over the left arm and appearance to A; still 17 is particularly relevant, and 4: stills 20–23 taken between 21.28 and 21.40, which Mr Bisgrove accepted also show a man who could reasonably be concluded to be the Appellant, without a bag, going through airport security, jacket over the left arm, white shirt untucked. This followed an examination of immigration security cameras for someone who looked like the person who had left the suitcase in the check in area as seen on the CCTV footage for that area.

The method used by the two witnesses to identify the man in the stills as the same one throughout was careful scrutiny of the tapes with repeated viewings. They did not use any technique such as facial mapping. There is no evidence one way or the other about the luggage with which the Appellant arrived at Frankfurt en route to London, although one of the witnesses implies that a piece of hand luggage was checked in; nor is there evidence which I can see about what was checked in by the Appellant, if anything.

Mr Bisgrove submitted, as he had submitted unsuccessfully to the Senior District Judge, that the images were too poor to permit of any reasonable conclusion that the person in the second and third sets of stills was either A or the Appellant. Even if A was also the person in the second set of stills, there was too great a lapse of time between that set and the crucial third set for any continuity. Other men could be seen in similar dress. Any conclusion that the man in the third set of stills was the same as in the first, last or even second set would be fatally contaminated by the assumption that it was the same person.

The appeal can only be allowed only if this court concludes that the Judge below ought to have decided the issue differently. For my part, I am not persuaded that he ought to have decided this issue differently. The issue is quite straight forward. I accept that the man in the second and third set of stills cannot be identified directly from them as the Appellant, although the man in the first and last set can reasonably be concluded to be him. To my mind,...