Wenting v High Court of Valenciennes

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMaurice Kay LJ,Lloyd Jones J
Judgment Date15 December 2009
Neutral Citation[2009] EWHC 3528 (Admin)
Date15 December 2009
Docket NumberCO/12133/2009

[2009] EWHC 3528 (Admin)

IN THE HIGH COURT OF JUSTICE

Royal Courts of Justice

The Strand

London

WC2A 2LL

Before: Lord Justice Maurice Kay

and

Mr Justice Lloyd Jones

CO/12133/2009

Between
Roy Wenting
Appellant
and
High Court of Valenciennes (A French Judicial Authority)
Respondent

Mr Aaron Watkins (instructed by Tuckers Solicitors, London W1T 6AF) appeared on behalf of the Appellant

Miss Rebecca Hill (instructed by CPS, Special Crime Division, London EC4M 7EX) appeared on behalf of the Respondent

1

Tuesday 15 December 2009

LORD JUSTICE MAURICE KAY
2

Mr Justice Lloyd Jones will give the first judgment.

MR JUSTICE LLOYD JONES
3

MR JUSTICE LLOYD JONES:

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1. This is an appeal by Mr Roy Wenting pursuant to section 26 of the Extradition Act 2003 against a decision of District Judge Riddle dated 13 October 2009 ordering his extradition to France. The extradition of Mr Wenting, a Dutch national, is sought by the French issuing judicial authority pursuant to a European Arrest Warrant issued on 4 August 2006 and certified on 8 July 2009.

5

2. France is a designated Category 1 territory pursuant to section 1 of the Extradition Act 2003. Accordingly, Part 1 of that Act applies, as modified by the provisions of the Extradition Act 2003 (Multiple Offences) Order 2003 and the Police and Justice Act 2006, schedule 13.

6

3. The appellant was provisionally arrested on his arrival in the United Kingdom at Gatwick Airport on 7 July 2009. On 8 July the European Arrest Warrant was certified and served on the appellant.

7

In a reserved judgment delivered on 13 October 2009 District Judge Riddle ordered his extradition to France. By this appeal the appellant challenges the order for his extradition on the ground that his extradition to France would be oppressive owing to the passage of time, as provided by section 14 of the 2003 Act. Accordingly, he seeks his discharge under section 27(5) of the Act.

8

The History

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4. On 17 March 1989 the appellant, who was then aged 31, was arrested on entering France at Saint Aybert whilst travelling in a vehicle which contained 585 grams of cocaine. He was caught red-handed. He made full admissions of guilt. He was charged with two offences, importing prohibited drugs and being involved in the smuggling of prohibited drugs. He admitted both offences. Nevertheless, he was remanded in custody to await trial for a period which exceeded two years.

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5. On 9 April 1991 he was released on bail by an examining judge. His brother, who also lived in the Netherlands, acted as surety. The order recorded that the appellant acknowledged having committed the offences and also explained that the appellant was not responsible for the length of time which had been taken by the investigations. The judge emphasised that the appellant would be required to comply with any summons of the court. So with the full consent of the French authorities the appellant returned to his home in the Netherlands, where he lived at his mother's address. He provided the French authorities with accurate details of that address, so that his whereabouts were fully known. Thereafter, the appellant lived openly in Holland. His mother remained at that address. He was therefore contactable at that address until the death of his mother, which occurred very recently during the course of these proceedings. He complied with his conditions of bail.

11

6. It is a curious feature of this case that, notwithstanding the grant of bail and notwithstanding the fact that it has not been suggested that there was any breach of bail, on 14 June 1991 the French authorities issued an International Arrest Warrant for the appellant. This was before any trial was scheduled to take place. Then by letter dated 19 February 1992, the French authorities summoned the appellant to attend his trial on 4 May 1992. The letter was sent to the address which had been provided by the appellant. The judicial authority has expressly accepted that the appellant did not receive this letter before 4 May 1992.

12

7. The appellant subsequently received a letter dated 23 May 1992 from the Public Prosecutor in Amsterdam, which stated:

“I am hereby sending you a summons from the French authorities with the translation.

Due to an incorrect address and the time it took to translate the document, you unfortunately receive this summons after the date of the hearing.”

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The enclosed document was the summons to attend the trial on 4 May 1992, which had already passed.

14

8. Notwithstanding his failure to attend on 4 May 1992, the appellant had been tried, convicted and sentenced to a term of five years' imprisonment.

15

9. In these proceedings the District Judge found that the appellant subsequently learned that the trial had proceeded in his absence and that he had been sentenced to five years' imprisonment. The evidence below of the appellant, which the District Judge stated he had no reason to doubt, was that he was not told to surrender himself and was not given details as to whom he should contact.

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10. Shortly after the trial on 4 May 1992, the International Arrest Warrant, which was already in existence, was confirmed on 11 May. On 4 December 1992 the International Arrest Warrant was notified to the Public Prosecutor's Office. On 14 December 1992 the judgment became enforceable. On 29 December 1992 the arrest warrant was registered on the Schengen Information System.

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11. The appellant maintains that no further communication was ever sent by the requesting authority to the appellant, despite its having his correct home address. Furthermore, he maintains that at no point was he told that he was required to surrender to the French authorities or how that should be effected. This evidence of the appellant before the District Judge is not challenged and it is not contradicted by any other evidence. No such summons was ever received. Moreover, the appellant maintains that he was told by the Probation Services in the Netherlands, with whom he was in contact following his release from pre-trial custody in France, and also by his Dutch lawyer, to wait to be summoned to serve the sentence. The District Judge recorded that evidence in his judgment, observing that no corroboration of that advice had been provided.

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12. Years passed. On 4 August 2006 the French authorities issued a European Arrest warrant for the appellant. He was arrested on entering the United Kingdom at Gatwick Airport on 7 July 2009.

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13. Section 14 of the 2003 Act (as amended) provides:

“…. A person's extradition to a category 1 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:

(a) committed the extradition offence (where he is accused of its commission) or

(b) become unlawfully at large (where he is alleged to have been convicted of it) ….”

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14. Reference has been made to the fact that if the appellant were to return to France he would be entitled to a retrial, given that his first trial took place in his absence in circumstances where he had not been notified of the date of the trial. However, the appellant has always admitted the offences with which he has been charged. He does not seek to challenge the sentence imposed.

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15. The appellant's case is limited to oppression resulting from the intervening passage of time. In support of that contention he relies on a number of matters: the fact that since 1992 he has lived a blameless and hard-working life; he has never since come to the attention of the police; he relies on the length of time which has passed; in that time he has built up his own business maintaining and servicing catering equipment, and he is also responsible for running a property business; his long-term partner with whom he lives in the Netherlands was diagnosed last year with lung cancer and her condition is deteriorating; she is unable to run the businesses on her own because of her illness; and the appellant stands to lose the businesses he has built up over a number of years.

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16. The District Judge rejected the submission that the extradition of the appellant would be oppressive. He considered that the appellant had been in a position in which he had three choices: to accept the sentence and surrender himself to the French authorities; to appeal; or to do nothing and to hope to be troubled no further. The appellant had taken the last course. The correct course, in the District Judge's view, would clearly have been to contact the French authorities and arrange to surrender himself. The appellant may have hoped that nothing further would happen, but he must always have been aware that, potentially, he...

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