Yolanda Shakilla Cleveland v The Government of the United States of America
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate,Lord Justice Leggatt |
| Judgment Date | 18 March 2019 |
| Neutral Citation | [2019] EWHC 619 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1824/2018 |
| Date | 18 March 2019 |
[2019] EWHC 619 (Admin)
THE RT. HON Lord Justice Leggatt
and
THE HON. Mr Justice Holgate
Case No: CO/1824/2018
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Alex Bailin QC and Mr Nicholas Hearn (instructed by Lawrence & Co, Solicitors) for the Appellant
Mr David Perry QC and Ms Catherine Brown (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 31 January 2019
Approved Judgment
Introduction
Yolanda Cleveland appeals against the decision of District Judge Crane sitting at the Westminster Magistrates Court on 26 February 2018 to order her extradition to the United States of America pursuant to a request made on 18 April 2017 and certified by the Secretary of State for the Home Department on 8 June 2017. She appeals with the leave of Garnham J. The request relates to 10 offences contained in an indictment issued in May 2015 and relating to a single incident on 14 February 2008. The indictment contains allegations of murder, aggravated assault, and possession of a firearm during the commission of a felony. Permission to appeal was limited to a single ground, namely;
“the District Judge erred in concluding that the conduct in the [extradition request] discloses an extradition offence pursuant to section 78(4)(b) and section 137(2) [of the Extradition Act 2003]”
The judge refused permission to appeal on a second ground, namely the extradition request failed to provide sufficient particulars of the Appellant's conduct to satisfy section 78(2)(c) of the 2003 Act.
Section 78(4)(b) required the judge to decide whether “the offence specified in the request is an extradition offence”. The only issue was whether the conduct alleged in the request “would constitute an offence under the law of the relevant part of the United Kingdom…” (section 137(3)(b)), or in other words an issue of dual criminality.
Factual background and the conduct alleged
The facts of the alleged case against the Appellant have been summarised in an affidavit in support of the extradition request sworn by the District Attorney. The victim of the alleged murder was Cleveland Carter. On 14 February 2008 at about 14:30 he was driving a car in Albany, Dougherty County, Georgia. His partner Brittany Coleman was in the right front passenger seat and her two daughters were in the rear of the car. Ms Coleman says that just after she and Mr Carter had left her grandmother's home, he told her that they were being followed by the “boys who were trying to get him”. She believed the motive for the pursuit to be a dispute about some marijuana that she was holding for Mr Carter. She says that Mr Carter asked her to look at a car that was following them. She saw a blue/green Honda Civic with tinted windows carrying 2 individuals.
When Mr Carter stopped his car for a red traffic signal at a junction, the Honda Civic pulled into a lane next to and to the left of Mr Carter's car. Neil Adam Smith, also known as “E” or Elderin Smith, was the driver of the Honda Civic and the Appellant was sitting next to him in the front passenger seat. The front passenger window of the Honda (i.e. the window next to the Appellant) was lowered and the driver fired several shots through the open window in the direction of Mr Carter and Brittany Coleman. Mr Carter was hit, became unconscious and lost control of his car. Ms Coleman grabbed the steering wheel and managed to bring the car to a stop. Mr Carter died at the scene.
Police officers nearby reported hearing about 5 gun shots. At least two witnesses stated that they saw the driver of the Honda fire a gun and that his name was E or Elderin Smith. Another witness says that the Appellant was the person sitting in the right front passenger seat of the Honda.
The results of an autopsy performed on Mr Carter confirmed that he died as the result of a gunshot wound to the head. Forensic examination of the bullet recovered from his body revealed that it was a .40 calibre metal jacket bullet, consistent with having been fired from (inter alia) a Glock .40 calibre pistol.
On 14 February 2008, the police were told by the Appellant's brother, Michael Edwards, that both Mr Smith and the Appellant had been staying with him at an address in Albany and that Elderin Smith carried a pistol at all times. He also stated that at some time after 15:00 on 14 February 2008, he saw Mr Smith and the Appellant arrive at that address; they were both upset and uneasy and remained there for only a few minutes before leaving in a blue Honda. Mr Edwards heard Mr Smith say that he and the Appellant were going to Atlanta, Georgia together.
The police then searched this address. In the bedroom which had been occupied by Mr Smith and the Appellant the police found a gun case for a .40 calibre Glock semiautomatic pistol. Mr Edwards and one other person identified the gun as belonging to Mr Smith and the Appellant. The police were able to trace the gun case to a Sports Store in Albany. There they were told that the Appellant had purchased a .40 calibre Glock semi-automatic pistol and 50 rounds of .40 calibre full metal jacket 180 grain ammunition.
During the evening of 14 February, police officers searched the last known address of Mr Smith and the Appellant in Albany. An occupier of the residence told them that Mr Smith and the Appellant had stopped there earlier that afternoon in a blue Honda Civic, they had run inside, grabbed several items and then left. While in the house Mr Smith was overheard saying that he had just shot someone. The occupier also stated that Smith and the Appellant had left Albany.
Vehicle registration records show that on 14 February 2008 the Appellant was the registered owner of a blue 2000 Honda Civic car registered in the state of Florida. This car is said to match the description given by eye-witnesses of the car they had seen at the scene of the shooting and from which the gun was fired. On 25 August 2008 the car registered to the Appellant was found in Florida.
On 11 August 2009 Mr Smith left the United States on a flight from Los Angeles bound for Heathrow Airport. There is no record of the Appellant leaving the United States, but the US Authorities believe that she left with Mr Smith under an assumed identity.
The District Attorney supplied further information in a letter dated 18 October 2017. In response to the question “is there evidence as to where the other bullets which were discharged went” he answered “yes. In addition to the bullet which struck Mr Carter in the head, the driver's side window was shattered; this was most likely the result of the other shots fired….”.
The District Attorney answered the question “what is the forensic evidence that is said to link [the Appellant] to the offending?” by saying “the bullet that killed Mr Carter was a .40 calibre metal-jacketed round, which matched the types of bullets and handgun required to fire such projectiles purchased by [the Appellant] prior to the murder.” He added that the Appellant bought the Glock gun on 31 January 2008 about two weeks before the killing of Mr Carter. He concluded by stating that the behaviour of Mr Smith and the Appellant following the killing represented a “radical departure from the daily routine of the Defendants, and their absconding from the city of Albany, is evidence that they knew or had reason to believe that they would be sought in respect of the murder of Mr Carter.”
The indictment contains a number of allegations against the Appellant which may be summarised as follows:-
i) Count 1 – “malice murder”. On 14 February 2008, Mr Smith and the Appellant, individually and as parties concerned in the commission of a crime, unlawfully, and with malice aforethought, caused the death of Mr Carter by shooting him in the head with a hand-gun;
ii) Count 2 – “felony murder”. On the same date, Mr Smith and the Appellant, individually and as parties concerned in the commission of the crime of aggravated assault, caused the death of Mr Carter, by shooting him in the head with a hand-gun, a deadly weapon, an instrument that when used offensively is likely to cause serious bodily injury or death;
iii) Count 3 – “aggravated assault”. Mr Smith and the Appellant, individually and as parties concerned in the commission of a crime made an assault upon the person of Mr Carter with a deadly weapon by shooting at him with a hand-gun;
iv) Counts 4, 5 and 6 – “aggravated assault”. These counts alleged that Mr Smith and the Appellant, individually and as parties concerned in the commission of a crime, committed aggravated assaults (as defined under count 3) upon each of Ms Coleman and her two daughters;
v) Counts 7, 8, 9 and 10 – possession of a fire-arm during the commission of a felony. On the same date, Mr Smith and the Appellant individually and as parties concerned in the commission of a crime had within arm's reach of their person a fire-arm during the commission of the crimes of murder, felony murder, aggravated assault. Count 7 relates to the shooting of Mr Carter. Counts 8, 9 and 10 relate to shooting at Ms Coleman and her two daughters.
Mr David Perry QC submitted on behalf of the Respondent that extradition has been sought on the basis that count 1 would equate to murder under the law of England and Wales relying upon an intention to kill. Count 2 would equate to manslaughter and count 3 would equate to at least an offence under section 20 of the Offences Against the Person Act 1861. Counts 4, 5 and 6 equate to offences of affray contrary to section 3(1) of the Public Order Act 1986 because (as the judge held) it would suffice that, although Mr Carter and not the other occupants of his car was the intended...
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