Thomas Mcgurk v Provincial High Court of Alicante, Spain
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston,Lord Justice Burnett |
| Judgment Date | 14 March 2016 |
| Neutral Citation | [2016] EWHC 536 (Admin) |
| Docket Number | Case No: CO/6243/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 March 2016 |
[2016] EWHC 536 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Hon. Lord Justice Burnett
and
The Hon. Mr Justice Cranston
Case No: CO/6243/2015
Gemma Lindfield (instructed by Kaim Todner Solicitors Ltd) for the Appellant
Hannah Hinton (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 02/03/2016
Introduction
This is an appeal against the decision of District Judge Goldspring ("the District Judge"), made on 3 December 2015, to order the appellant's extradition to Spain. That is pursuant to an accusation EAW issued by the President of the Third Division of the Provincial High Court of Alicante, Spain, on 8 September 2014 and certified by the National Crime Agency on 19 September 2014. The appellant is effectively sought for the purposes of a prosecution for rape of a young woman in 1999. He raises three grounds: passage of time under section 14 of the Extradition Act 2003 ("the 2003 Act"), Article 8 of the European Convention on Human Rights and abuse of process. There is a cross-appeal by the Judicial Authority on the District Judge's reasoning that the appellant was not a fugitive, which it has not been necessary to consider.
Background
The appellant was born in 1967 in Scotland. In 1989 he was imprisoned in Scotland for four years for rape. On his account, he went to live in Spain in 1999 to work in a bar and to do club and bar public relations work.
The EAW alleges that on 27 March 1999 the appellant attacked a female tourist from Finland, living in the UK, who was on holiday in Benidorm. It is alleged that he picked her up at a bar, she was intoxicated, they returned to where he was staying, he propositioned her sexually, she tried to escape through the window, he used force to prevent that, and he then forced himself upon her and raped her. During the assault she sustained serious injuries requiring hospital treatment. The Framework list in the warrant is ticked for sexual assault and serious injuries.
The appellant was arrested. It appears that on 31 March 1999 he was interviewed by the investigation judge at Court 4, Benidorm. On 3 April 1999, he was bailed with a condition that he pay 200,000 pesetas security (approximately €1,000). He was also required to attend a Spanish Consulate in the UK on the first and fifteenth day of each month. The address the Spanish authorities recorded was a Scottish address. There is no record of the appellant complying with the reporting condition. The District Judge rejected the appellant's account that he did not provide security, did not have to report twice monthly and never signed a bail form. The appellant gave evidence that he provided the Spanish authorities with his address in Blackpool as well as that of his mother's home in Scotland.
In March 2000, the Spanish court ordered that a letter of request be sent for the appellant to be interviewed in the UK. That was routed through the UK Central Authority, located in the Home Office, which handles such requests. As a result, the Lancashire police interviewed the appellant in Blackpool in December 2000 about the alleged offence. His solicitor was present. He was informed about the indictment but declined to answer questions. He was originally on police bail but that was later discharged. The Spanish court never received any notification of the conclusion of the investigation pursuant to the letter of request. In 2001, the appellant was in custody for 8 weeks for an offence committed here, and in 2006 he served 15 weeks of intermittent custody over 30 weekends for other offending. (Although out of chronological order, I note that in 2012 he was sentenced in England to 14 months' imprisonment, reduced to 12 months on appeal, for perverting the course of justice: see [2012] EWCA Crim 2113.)
In April 2008, the Spanish court sent a further letter of request to inform the appellant that it had completed its investigation. Through error, the UK Central Authority did not act on the request until November 2009. The Spanish court was informed by the UK Central Authority that the materials had been served by post but that no confirmation of receipt had been received. The following year, in August 2010, the court was again informed that the UK Central Authority had received no confirmation of receipt.
On 22 February 2011, the Prosecution Office in Spain issued its provisional conclusions, effectively a charging advice, directing that an oral trial be held in May 2012. A letter of request was issued to the UK to summon the appellant but the UK Central Authority notified the Spanish court that the appellant could not be located. The address being used was the appellant's Scottish address. The Scottish police had visited the address in December 2011 but reported that he no longer lived there. On the appellant's account, his mother continued to live there and then, after her death, his sister. Given the impossibility of holding the trial, the matter was referred to the Spanish Prosecution Office for confirmation of the limitation period applicable to the allegations. In May 2014, the Prosecution Office advised that the offence was not time-barred. A national arrest warrant was issued following court hearings on 22 May and 11 June 2014. That was followed by the EAW several months later.
Following a request for further information from the Westminster Magistrates' Court, the Spanish Judicial Authority stated on 6 May 2015 that the last contact with the complainant was her court statement of 3 April 1999. The Spanish Judicial Authority had sent a summons to her at her UK address in November 2011 but there had been no reply. The summons was confused. It did not ask her to attend the trial fixed for May 2012. It summoned the appellant. The Spanish reply of 6 May 2015 also stated that it did not know whether the complainant would give oral evidence at trial, as required by Spanish law. If she did not do so, the public prosecutor might not uphold the charge.
The District Judge's conclusions
Before the District Judge the appellant adopted his proof of evidence and was cross-examined. In his proof of evidence, the appellant said:
"I explained that I had met a girl and that we had gone back to my apartment where we had consensual sex and that she had fell from the bed and hit her head with the set of drawers that were by side of the bed. I called a friend who knew an English speaking doctor, I took her to the private surgery where she was treated for the head injury. She was given stitches and she was discharged, she then asked me to take her back to her hotel which I did. I walked her to her hotel, we kissed and cuddled goodbye and that is the last time I saw her. I was arrested either the following day or the day after."
There was also a report from Miguel González, a Spanish lawyer based in Málaga, Spain. He gave oral evidence as well, via Skype. Sr. González's evidence was that the complainant would be summoned to attend the trial. If she failed to attend the court could decide to proceed in her absence. The prosecution could read her statement, but because of Article 24 of the Spanish constitution the appellant could not be convicted on that evidence alone. The medical evidence was not direct evidence and in the absence of corroboration could not prove rape. Sr. González said that in his opinion it was completely pointless to hold a hearing at which the sole and principal witness did not attend. He also stated that the delays in the case were serious and unacceptable, although he had not seen the file. Sr. González added that if the appellant were convicted, in his opinion any sentence would be reduced considerably under Article 21.6 of the Criminal Code, from possibly 10 years to one year.
The District Judge also had a letter from the Spanish Judicial Authority, dated 29 September 2015, along the same lines as the report of Sr. González.
After summarising the relevant law and evidence, the District Judge set out his findings. He said that there was clear evidence that the appellant was released on conditional bail, which he breached. Moreover, there was insufficient evidence that the appellant had received the 2012 summons for trial. The District Judge then said:
"[63] Although I have some hesitation as to his state of mind regarding the progress proceedings it is clear that there is at least room to accept that [he] believed, with foundation that the proceedings were not being proceeded with. The letter from his solicitors suggested that [after the Blackpool interview] the matter had been NFA'd may well have related to the UK police not [pursuing] the case as an extra territorial case rather than a declaration that Spain had decided not to proceed but one can well understand that coupled with the very lengthy delay gave [the appellant] a reasonable belief that the proceedings had ended."
In considering passage of time in section 14, and whether it would be unjust or oppressive to extradite the appellant, the District Judge said the long periods of inactivity had not been explained. Although it was a reasonable inference that there was difficulty tracing the complainant, resulting in some delay, that did not provide a complete answer as to why there had been such a lengthy delay. It was 16 years since the alleged offending and the appellant was last interviewed about the case over 14 years ago. If he were to be returned a trial, if it ever occurred, might take...
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...The activation of the sentence is the risk to which the person has knowingly exposed himself." 31 In the second case, McGurk v. Provincial High Court of Alicante, Spain [2016] EWHC 536 (Admin), the accusation EAW contained an allegation of rape dating back to 1999. In a judgment with which......
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