Scottish Sheriff Court Decisions

Court reference 2B1004/09

 

IN THE SHERIFF COURT OF LOTHIAN AND BORDERS AT EDINBURGH

 

UNDER THE EXTRADITION ACT 2003 Part 2

 

COMMONWEALTH OF AUSTRALIA v JOHN THOMAS O'NEILL (date of birth 13/10/59) whose domicile of citation has been specified as 22C Esplanade Greenock PA16 7RU

 

Act Ms. R Lunny for the Lord Advocate on behalf of the Commonwealth of Australia

Alt I G Mitchell QC instructed by Mr. Fisken, Solicitor of Messrs Hamilton Burns, Solicitors, Glasgow

 

Edinburgh 11^th June 2010

 

The Sheriff having resumed consideration, DETERMINES that the extradition of the accused to the Commonwealth of Australia is barred by the passage of time; ANSWERS in the AFFIRMATIVE the question in section 79(1)(c) of the Extradition Act 2003 and accordingly in terms of section 79(3) of the said Act orders the discharge of the said John Thomas O'Neill.

 

 

NOTE

Introduction

[1] This case involves a request under Part 2 of the Extradition Act 2003 from the Commonwealth of Australia for the extradition of John Thomas O'Neill to face trial on charges of armed robbery and harbouring an escaped prisoner and to serve the remainder of a sentence of imprisonment in respect of a charge of robbery. The robbery was committed in1979 and the accused was sentenced to four and a half years' imprisonment in February 1980. Following release on parole the accused failed to appear at court for breach proceedings and parole was cancelled on 24 April 1986 with 875 days of the original sentence still to be served.

 

[2] The alleged offences involve a robbery with a firearm said to have occurred on 5 February 1986 when Aus. $ 7,595 was stolen and the harbouring of an escaped prisoner between December 1985 and 6 February 1986.

 

[3] An extradition request signed by the Australian Minister of Home Affairs on 10 November 2008 and was certified by Scottish Ministers on 24 August 2009. A warrant of arrest was issued by my colleague on 14 September 2009 and the accused appeared at Edinburgh Sheriff Court on 23 October 2009. The accused did not consent to extradition on the basis that it would be unjust and oppressive to extradite him by reason of the passage of time in terms of sections 79(1)(c) and 82 of the 2003 Act.

 

 

Procedural History

 

[4] The case first called at Edinburgh Sheriff Court on 23 October 2009. The accused accepted that he was the person referred to in the warrant but did not consent to extradition. He was granted bail and sundry procedure took place thereafter until the Full Hearing commenced on 1 June 2010. In the interim parties had made further inquiries and produced helpful chronologies. After hearing parties on the history of this case and the relevant law I made avizandum until today's date as I wished to read in full the agreed documentation and give a decision in writing bearing in mind the serious nature of the charges and the length of time the case had taken from April 1986 until October 2009 to come to court.

 

Procedure at the Extradition Hearing

 

[5] The accused's position had been clear from the outset. A large folder of documentation had been lodged on his behalf at the Preliminary Hearing on 28 May 2010. Furthermore Counsel for the accused had produced a detailed timeline to bring together and comment on the chronologies lodged by parties. Accordingly, I asked Ms Lunny on behalf of the Lord Advocate clarify the position of the requesting state.

 

[6] I had in terms of section 78(2) of the 2003 Act noted that I had received the relevant documents from the Secretary of State namely:-

(a) in terms of section 70(9) the request and certificate mentioned at para [3] above and the relevant Order in Council, The Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 SI 3334.

(b) the accused's particulars were annexed to the request including a photograph and fingerprint. The accused had accepted he was the person named in the request at the outset of these proceedings.

(c) in relation to the offences of armed robbery and harbouring an escaped prisoner which the accused was sought for trial there was annexed to the request a certified copy of the indictment.

(d) as regards the offences mentioned in (c) above there was a certified copy of an arrest warrant signed by an Australian magistrate on 23 November 2005.

(e) in relation to the robbery offence there was annexed to the request a transcript of proceedings in the Supreme Court of Western Australia at Perth dated 14 January 1980 when the accused pleaded guilty to the charge of robbery with two accomplices, being a younger brother and a cousin. Details of the offence are contained in the transcript. The robbery was committed on 8 August 1979. There is a further transcript recording the sentence of four and a half years' imprisonment imposed on the accused on 11 February 1980. The accused had to serve at least two years of this sentence before being eligible for parole. An affidavit accompanying the request records that the accused was released from this sentence on 18 December 1981 but parole was cancelled on 23 July 1982. The accused was re-arrested on 9 September 1985 but released on parole again on 11 November 1985. Following his failure to appear at court parole was cancelled on 24 April 1986 and a certified copy of the parole board's warrant for that date was produced. The request indicated the accused had 875 days of this sentence still to serve.

Accordingly I was able to answer the questions posed at section 78(4) and (7) of the 2003 Act in the affirmative and moved on to consider section 79.

 

 

 

Submissions on behalf of the Lord Advocate

 

[7] In relation to the challenge to extradition that this was barred due to passage of time under sections 79(1)(c) and 82 of the 2003 Act, Ms Lunny referred to a chronology which had been supplied by the Australian Attorney-General's Department by letter dated 26 May 2010. On behalf of the Lord Advocate it was conceded there had been an inexcusable delay on the part of the requesting state. Matters had been further delayed due to certain administrative issues but it was clear the accused was a fugitive from justice and ought not to benefit from his actions having flown from the jurisdiction when facing trial on serious charges and being required to serve the balance of a sentence for breaching parole.

 

[8] When the accused failed to appear at court in respect of the armed robbery and harbouring charges in April 1986 a warrant was issued and his whereabouts remained unknown for some time. However in 1988 it was discovered that the accused had returned to the United Kingdom; the accused had emigrated to Australia with his family in 1967 when he was a child.

 

[9] It was a matter of agreement that the accused had been interviewed by Australian Police in Manchester in February 1988 and preparations for an extradition request were put in hand by the Australian authorities. However in July 1988 the accused was convicted on two counts of robbery in Manchester and sentenced to ten years' imprisonment. As a result the Australian authorities understandably did not proceed with an extradition request and the papers were filed away in July 1988 with a view to making application for extradition at the completion of the accused's sentence..

 

[10] On 27 March 1990 at the Royal Courts of Justice in London the accused's convictions for robbery were quashed due to a miscarriage of justice and the accused was released from prison and returned to Scotland initially to live in the Paisley area and latterly in Greenock.

 

[11] The only information Ms Lunny had for the period between 1988 and receipt of the present request in 2009 was that in mid October 2004 Western Australian Police received information about the accused's whereabouts in Scotland and had his identity and location in Scotland confirmed by Strathclyde Police in early November 2004. The requesting state's position was that from November 2004 to August 2005 the Western Australian Police communicated with the Office of the Director for Public Prosecutions (Western Australia) regarding the prosecution of the accused "for one or more of the outstanding offences alleged against him."

 

[12] Thereafter between August 2005 and November 2008 the Western Australian Police and DPP "worked with the Australian Attorney General's Department in gathering the necessary information for the extradition request." On 12 December 2008 a formal request for the accused's extradition was made to the UK authorities.

 

[13] Ms Lunny referred me to the leading cases in this context namely Kakis v Government of the Republic of Cyprus [1978] 1 W.L.R. 779; [1978] 2 All ER 634 (HL) and Gomes v Government of the Republic of Trinidad and Tobago [2009] UKHL 21. By reference to Gomes at paragraph 38 Ms Lunny suggested the relevant period for calculating the period of time for consideration under section 82 of the 2003 Act was from 23 April 1986 when the accused failed to appear for a court hearing in respect of the armed robbery and harbouring offences and the date of the extradition full hearing namely 1 June 2010, a period of twenty three and a half years. In respect of the breach of parole charge the accused had been unlawfully at large since 24 April 1986, the date of the parole board warrant.

 

[14] I was referred to the classic definition of the phrase "unjust and oppressive" as it now appears in section 82 of the 2003 Act, in the speech of Lord Diplock in Kakis at [1978] 1 W.L.R. pp782 and 783:-

[1] "Unjust" I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.

[2] As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. So where the application for discharge under section 8 (3) is based upon the "passage of time" under paragraph (b) and not on absence of good faith under paragraph (c), the court is not normally concerned with what could be an invidious task of considering whether mere inaction of the requisitioning government or its prosecuting authorities which resulted in delay was blameworthy or otherwise."

 

[15] Ms Lunny highlighted the facts that the accused had failed to turn up for trial, fled the country and his whereabouts were unknown to the Australian authorities for a considerable time. In Kakis Lord Diplock had indicated delay which was not brought about by an accused is" not generally relevant" His Lordship had concluded that "mere inaction by the requisitioning government or its prosecuting authorities which resulted in delay [that] was blameworthy or otherwise" did not normally concern the courts.

 

[16] I was referred to the case of Gomes and Goodyer (supra) in the opinion of the Committee at paragraph 26:-

"If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct."

In the present case the accused had fled the jurisdiction and even if the extradition file had been overlooked in the 1990s that was not relevant having regard to the passage of time. Ms Lunny referred to a letter from the Director of Public Prosecutions for Western Australia sent to Crown Office on 26 May 2010 by the Australian Government which indicated the mechanisms to cater for potential prejudice when an accused is prosecuted for offences said to have occurred some considerable time ago. These mechanisms were designed to ensure a fair trial and such proceedings would not be permitted if a fair trial appeared" impossible" or the continuation of proceedings would be "unjustifiably vexatious and oppressive".

 

[17] Apart from the chronologies given in the affidavits accompanying the extradition request and the letter of 26 May 2010 Ms Lunny had no further explanation from the requesting state for the long delay in submitting the request. Ms Lunny noted that in Kakis (supra) Their Lordships had to consider a period of five years from the date of the alleged offence. By a majority they deciding not to order extradition as they considered the passage of time would detract from the fairness of the trial if the accused was deprived of evidence supporting his alibi. In Gomes the period was 10 years and in Goodyer it was six years. In neither of those cases was the passage of time seen as preventing extradition. While the period of time in the present case was much longer it was for the court to consider all of the circumstances to determine whether it would be unjust and/or oppressive to extradite.

 

[18] Finally I was asked to look at the whole period of time. Clearly there was a period from 1986 to 1988 where the requesting state was unaware of the accused's whereabouts. There had been good reason not to press ahead with an extradition request in 1988. Ms Lunny had no explanation for inaction by the requesting state from 1988 to 2004. It would appear that a "Crimewatch" television programme had led to a reawakening of interest in the accused in Australia in 2005 and there may have been changes in personnel in the relevant departments. Similarly Ms Lunny had no information to offer for the time taken from 2004 to December 2008 to prepare and make the extradition request.

 

 

 

Submissions on behalf of the accused

 

[19] Counsel began by acknowledging the fair and balanced approach taken on behalf of the Lord Advocate. He then outlined the legal propositions he wished to make at this stage of the hearing. I was referred again to the speech of Lord Diplock in Kakis (supra) at page 783A and the "room for overlapping" the terms "unjust" and "oppressive" to cover all case where return "would not be fair".

 

[20] Counsel noted that "unjust" was regarded as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself. While he accepted there were certain procedural safeguards in place in Australia the risk of prejudice was a matter this court had to consider.

 

[21] In the speech of Lord Diplock in Kakis (see para 14 above) His Lordship had distinguished between two situations which in subsequent cases including Gomes (supra) paragraph 19, had been referred to as Diplock para 1 and 2. (I have added these paragraph numbers in para [14] above for ease of reference.) While Counsel accepted that like Goodyer the accused had deliberately fled the jurisdiction in which he had been bailed to appear (c.f. Gomes paragraph 26), there had been subsequent circumstances which broke the "chain of causation". In Gomes paragraph 26 the Committee had concluded:-

"Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not "of his own choice and making."

 

[22] Counsel referred me to the speech of Lord Edmund-Davies in Kakis at page 785 where His Lordship was unable to concur with Lord Diplock in the passage now known as Diplock 2. Lord Edmund-Davies stated:-

"In my respectful judgment, on the contrary, the answer to the question of where responsibility lies for the delay may well have a direct bearing on the issues of injustice and oppression. Thus, the fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return, whereas the issue might be left in some doubt if the only known fact related to the extent of the passage of time, and it has been customary in practice to advert to that factor: see, for example, Reg. v. Governor of Pentonville Prison, Ex parte Teja [1971] 2 Q.B. 274 , 290, per Lord Parker C.J. and the speeches in this House in Reg. v. Governor of Pentonville Prison, Ex parte Narang [1978] A.C. 247 ."

It was Counsel's submission in the present case the requesting state had been "inexcusably dilatory."

 

[23] Counsel then referred to Gomes (supra) at paragraph 24 where the requesting state "may be regarded as blameworthy for having lost the extradition file and the accused could rely on part at least of the period following his flight in seeking to make good his case for a section 82 bar to extradition." At paragraphs 25 and 26 the Committee said:-

"In support of this approach the Divisional Court sought to rely on two cases in particular: Osman (No.4) [1992] 1 AER 579 and La Torre v Italy [2007] EWHC 137 (Admin). As explained in Krzyzowski , however, it is clear that neither authority in fact seeks to qualify in any way the clear ruling contained in Diplock para 1 (nor, of course, could they properly have done so). Rather they are directed at Diplock para 2 and conclude, in cases where the extraditee himself has not been responsible for the delay: "Culpable delay on the part of the state may certainly colour that judgment [as to whether it would be unjust or oppressive to extradite him by reason of the passage of time] and may sometimes be decisive, not least in what is otherwise a marginal case (as Lord Woolf [then Woolf LJ] said in Osman (No 4) )."-Laws LJ in La Torre at para 37, in effect adopting the minority view expressed by the House in Kakis.

True it is that Laws LJ then added: "An overall judgment on the merits is required, unshackled by rules with too sharp edges." If, however, this was intended to dilute the clear effect of Diplock para 1, we cannot agree with it. This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not "of his own choice and making".

 

It was Counsel's submission that "Diplock paragraph 1" applied for the period from February 1986 when the accused fled the jurisdiction until February 1988 when the Australian authorities knew the accused's whereabouts and ought to have been able to keep him in view.

 

[24] However from the chronology produced by the requesting state after the accused's conviction and 10 years' sentence of imprisonment in July 1988 the Western Australian Police constructed a master file "regarding the outstanding matters against [the accused] and it was lodged at file room pending and further action against [him]." Thereafter the only information provided between the period July 1988 and October 2004 was that the accused "remained of law enforcement interest to Western Australia Police in relation to the outstanding criminal matters." Counsel submitted that the accused had not hidden or changed his name or appearance during this time. Newspaper articles from March and April 1990 from the Daily Record and Manchester Evening News were produced reporting the quashing of the 1988 conviction of the accused. He had co-operated with these articles and his name, photograph and address were disclosed. It was conceded however that in those pre-Internet times the Australian authorities were unlikely to have picked up on these articles.

 

[25] It may be that the quashing of the accused's 1988 conviction by the Court of Appeal in 1990 came as a complete surprise to the authorities and no information was produced to suggest that the Australian government was advised of the position. Counsel submitted that it would have been prudent for the Australian authorities to have checked on the position regarding his sentence after about 5 years to see if he had become eligible for parole. Failing that, to have checked the position after 10 years when the sentence ought to have been concluded would have been the obvious step. After the turn of the century when no further action had been taken regarding the extradition request the accused could have reasonably concluded that the Australian authorities had lost interest in the matter. In the event it appeared that the Australian authorities had renewed their involvement in the case around 2004/5 but had not made a formal request for extradition until the end of 2008.

 

[26] Counsel referred again to the passage in Gomes (supra) at paragraph 26 (which I have quoted at para [21] above). I was shown an article from The West Australian newspaper which had appeared in the edition of 23 May 2005, entitled:-

"Bandit can evade return to WA", it referred to the extradition offences in the following way:-

"A notorious bandit who fled overseas after allegedly robbing two banks with one of [West Australia's] worst armed robbers could escape justice because the Director of Public Prosecutions does not support his extradition.

A raid by more than 20 officers at a City Beach house, including now State Minister Bob Kuccra, in 1986 led police to charge John Thomas O'Neill with harbouring an escapee and two counts of armed robbery."

After narrating the history of the case the article continued:-

"WA police, who were told of O'Neill's 1988 conviction, planned to wait until he was released before seeking his extradition. But he fell off the radar when he won his appeal.... In October 2004, police at Crime Stoppers section received a letter with information about O'Neill's whereabouts in Scotland, prompting city detectives to request his extradition. The DPP rejected the request, saying because of the time that had elapsed since the crimes and O'Neill's family situation he could successfully fight the application."

It was Counsel's view that the publication of a decision by the Australian authorities to take no action in 2004 was akin to a bar following the intimation of such a decision to an accused.

 

[27] Counsel could only assume that at some point after the publication of the newspaper article there had been a change of view by the Australian authorities or perhaps a change of government or personnel which led to the request presently before the court after a period of preparation which had taken from August 2005 to November 2008.

 

[28] Counsel accepted that the accused had fled the jurisdiction of the Australian authorities in 1986 and as a result fell firmly within "Diplock paragraph 1". However from early 1988 the Australian authorities knew where the accused was and the circumstances thereafter seemed to fall into "Diplock paragraph 2". Counsel submitted the passage of time which the court should consider was in the region of 21 1/2 years from 19 February 1988 when the accused was traced to England and interviewed by Australian Police until 23 October 2009 when he had been arrested in connection with the present proceedings. Counsel contrasted that timescale to the period of 8 years between the dates of the alleged offences and the extradition request in H M Advocate v Headrick 2005 SCCR 787. In that case Sheriff Stoddart had held that the degree of culpability of the state authorities, taken along with the difficulties the accused would face conducting his defence, combined to create unfairness that because of the passage of time it would be unjust and oppressive to extradite the accused.

 

[29] In the present case Counsel submitted that if the accused was to be returned to Australia to face trial on the armed robbery and harbouring charges he was likely to be at risk of prejudice in the conduct of the trial due to the delay. I was referred to Woodcock v Government of New Zealand [2004] 1 WLR 1979, Simon Brown LJ at paras 17-18 and 20-22. His Lordship had noted that the principle in English law is that a stay on the grounds of delay should only be granted in exceptional circumstances and that judges should be assiduous to ensure that there really is evidence of prejudice to the extent that a fair trial could not be held. The court would have to determine whether it would be unjust to return the accused. While the court could rely on safeguards in the domestic law of the requesting state if this court were to conclude that a fair trial in the requesting state would be impossible then the request would have to be refused.

 

[30] Counsel then turned to the question of oppression and referred to "The Law of Extradition and Mutual Assistance" (2^nd ed. 2007) by Nicholls, Montgomery and Knowles at para 5.68:-

"In considering the question of oppression, the court should keep in mind what, in real terms, the period of delay amounts to. In R v Secretary of State ex p Patel (1995) Admin 7 LR 56 there had been a delay of 31/2 years in making the extradition request from the start of enquiries into offences occurring several years previously. The High Court held that the Home Secretary had erred in his approach to this delay under the Extradition Act 1989, and that the delay was such that the only reasonable conclusion was that it would be unjust or oppressive to return the defendant. Henry LJ said at pp51-2:

Wherever law is practised, justice is reproached by delay. There is a real danger that those of us who have spent a lifetime in the law have become inured to delay. So too layman associate the law with delay, and their expectation of it may harden them to the fact of it. So the years trip off the tongue, and so we reach a position where a citizen may be surrendered to face a trial in another state for matters at least 9 years stale without examination of the reasons for the length of the delay or consequences of it... So it is we are left with a delay period... of 9 years to nearly 12 years, with yet some time to pass before trial. It is a salutary to look back over one's life to evaluate the real length of that period, so as not to regard it just as a figure on a piece of paper."

 

[31] I was then directed to a further delay which had occurred between 10 November 2008 when the extradition request was signed by the Australian Minister for Home Affairs and 24 August 2009 when a certificate under section 70(1) of the 2003 Act was signed by Scottish Ministers. Thereafter a warrant under section 71(2) and 72(3) of the 2003 Act was issued by my colleague on 14 September and the accused was arrested on 23 October 2009 and appeared at Edinburgh Sheriff Court on the same date. I was referred to a series of communications between Government Departments which highlighted the delay from January to August 2009. Counsel referred to this delay as having been occasioned by a "turf war" between the Home Office and the Scottish Government. It is apparent the accused's whereabouts had been identified by the UK authorities shortly after receiving the request. This exercise confirmed that he had lived at the same address in Scotland since 1993 yet it took the best part of a year to arrest him and bring to his notice that he was still being pursued by the Australian authorities for the various offences.

 

[32] I was then provided by Counsel with a list of the changes in the accused's situation which had occurred since he became a fugitive in 1986. After his 1988 conviction had been quashed by the Court of Appeal in England in 1990 the accused had returned to Scotland where he had been born. On December 1991 at Greenock Sheriff Court the accused was sentenced on indictment to 9 months' imprisonment for assault and was fined for minor Road Traffic offences. In November 1998 the accused was fined a total of £325 at Glasgow Stipendiary Magistrates' Court in respect of charges of assault and breach of the peace. Since then the accused had not come to the adverse attention of the authorities. He had married his partner of over 30 years in 1996 and they have 3 children and 7 grandchildren. His wife runs a shop in Gourock and his son is the licensee of a public house. The accused assists in the running of these businesses. His wife has been in poor health recently. The accused has been on the Register of Electors since 1994 and since 1990 has lived openly in Paisley, Gourock and latterly Greenock. The accused is regarded as a respected and reputable member of the local community, has been involved in charitable work and is a respected member of his church.

 

Discussion

 

[33] At first glance the period from February 1988 until now is a very lengthy one but the dictum by Lord Diplock in Kakis is clear in cases such as this where the accused deliberately fled from the jurisdiction. In Woodcock (supra) Simon Brown LJ at paragraph 29 considers whether delay per se is unjust and oppressive:-

"I could not help noting Rose LJ's observation at para 19 [of In re Sagman [2001] EWHC Admin 474] that "no case is known to counsel, or to the court, where an extradition has been ordered after a lapse of so long a period as 15 years." There may or may not previously have been such a case. In my judgment, however, there can be no cut off point beyond which extradition must inevitably be regarded as unjust or oppressive. It hardly needs me to point out that trial after 20 years or more is far from ideal. Sometimes, however, it may nevertheless be appropriate to extradite an accused for that purpose."

 

[34] In the present case the delay is on either calculation in excess of 20 years. In considering the longer period from February 1986 when the accused fled the jurisdiction now seeking his return, there require to be in Lord Diplock's words in Kakis (supra) at page 783 "the most exceptional circumstances" to refuse extradition (c.f. Gomes (supra) at paragraph 29).

 

[35] There appear to be a number of exceptional circumstances in this case that require to be considered before determining whether a fair trial on 1986 offences could be held at this distance. This is not a case where historic allegations of criminal conduct have emerged. The offences alleged in the request were fresh ones when the accused absconded while on bail. Within two years of that event the Australian authorities knew the whereabouts of the accused namely in custody in England awaiting prosecution for serious charges for which he received a substantial jail sentence in July 1988. The Australian authorities cannot be criticised for filing away their papers when this news was conveyed to them, as the effect of that conviction was that the accused was out of their reach for a significant period of time.

 

[36] If this change in the accused's circumstances can be considered such as to re-classify him as falling into "Diplock paragraph 2" of Kakis (supra) page 783C then particularly as the years unfold from 1988 with no action apparent from the Australian authorities, this would appear to be a situation where the court has to concern itself with "the invidious task of considering whether mere inaction of the requisitioning government or its prosecuting authorities which resulted in delay was blameworthy or otherwise."

 

[37] A similar approach was adopted in Gomes (supra) at paragraphs 26-30 (see para [23] above). In the present case it does not appear that the Australian authorities lost the extradition file. Most of the original documents have been produced with the extradition request. For example in relation to the unexpired portion of sentence the original parole board warrant from 1986 is produced although perhaps significantly the 1986 warrant for the accused failing to appear is not with the request and instead an initiating warrant for the 1986 charges dated November 2005 is produced. What appears to have happened was that the case was filed away after the accused conviction and 10 years' sentence in 1988 and no steps were taken to bring the matter up for review at a later date-after 5 years or indeed 10 years. There is no suggestion made by the accused that the Australian authorities were alerted following the accused's conviction being quashed in 1990. Such newspaper articles that the accused was able to produce contemporaneously reporting his acquittal are unlikely to have found their way to the Australian authorities. There has been no suggestion made that the Australian authorities were under pressure of work or limited resources.

 

[38] The best description for the period from 1988 to 2004 comes from The West Australian newspaper referred to at para [26] above that the accused "fell off the radar" of the Western Australian police. The accused does not appear to have hidden himself in the intervening period and featured in newspaper articles at the time of his acquittal in 1990 and was convicted of offences in Scotland in 1991 and 1998. He has apparently lived in the Paisley/Gourock/Greenock area of the West of Scotland openly for the last 20 years and has become a respectable and reputable member of the community.

 

[39] It is very much a feature of police, prosecution agencies and indeed courts to regularly review outstanding warrants and often, save in the most serious cases after a suitable period of time when a missing accused cannot be traced a decision is taken to withdraw the warrant and take no further proceedings. Although pace Lord Diplock absconding from criminal proceedings cannot be condoned recognition has to be taken of the fact that an accused has not "come to the attention" of the police for a significant period which suggests either that he has left the jurisdiction or has been taking care to comply with the law.

 

[40] If none of the above circumstances are said to "break the chain of causation" see Gomes (supra) paragraph 26 then consideration has to be given to the period from October 2004 when the accused's particulars re-appeared on the Western Australia Police's radar and November 2008 when the extradition request was sent to the United Kingdom. This in itself is a very lengthy period (c.f. Patel (supra) where a 31/2 year period was the subject of adverse criticism).

 

[41] The only information that the Lord Advocate was able to secure from the Australian authorities for this period was that by November 2004 they had prompt confirmation from Strathclyde Police of the accused's identity and present whereabouts. There followed a 10 month period where the Western Australian Police and the Office of the DPP (Western Australia) "communicated with each other". After that a further 31/4 years elapsed during which time the Western Australian Police and DPP "worked with the Australian Attorney General's Department in gathering the necessary information for the extradition request." The resultant dossier which forms the extradition request is not a large volume. It was signed by the Australian Minister for Home Affairs on 16 November 2008. The main affidavit by the DPP is dated 8 April 2008. The Western Police affidavit is dated 17 April 2008 although a further affidavit required to be produced on 28 November 2008 to correct an error. There are transcripts from the court in January and February 1980 recording the accused's plea of guilty and sentence in respect of the outstanding parole sentence, the warrants, a copy of the indictment for the outstanding charges and photograph and fingerprints of the accused. The parole warrant is the contemporaneous document from February 1986 but the warrant for the outstanding offences is a fresh initiating one dated November 2005. There is no explanation why this simple and straight forward case should take four years to assemble. Scottish Government documents were produced which record after notification in 2004 that the Australian authorities intended to issue a request for extradition nothing further was heard from them despite Scottish officials writing to them "on a number of occasions asking for confirmation as to when [they] would receive that extradition request and having heard nothing we eventually closed our file."

 

[42] It is conceded that at no time did the Australian authorities advise the accused that they were no longer pursuing him for the offences now contained in the extradition request. It is however significant that The West Australian newspaper should carry a story indicating that proceedings had been abandoned in either late 2004 or early 2005 in other respects the newspaper story appears to be an accurate report of events to date. The only information proffered is that between November 2004 and August 2005 Western Australian authorities were dealing with the case and from August 2005 to November 2008 the Western Australian DPP and the Australian Attorney General were "gathering the necessary information". I do not find this a satisfactory situation at all. Just because a person has deliberately flown the jurisdiction it does not mean that the authorities can take an undue amount of time and afford no priority to process the case.

 

[43] Scots Law is clear that if the prosecutor publicly renounces the right to prosecute an individual he is barred from subsequently re-raising the proceedings ; Thom v H M Advocate 1976 JC 48; H M Advocate v Stewart 1980 JC 84. Even if no such decision to abandon proceedings was taken in or around 2005 given the period of time which had elapsed since the alleged offences, the Australian authorities required to act promptly if they seriously hoped to secure the return of the accused to face trial.

 

[44] The Australian authorities cannot be blamed for the delay which occurred between December 2008 and October 2009 but it is inexcusable for there to have been a further delay of 9 months while officials bickered and pondered over which Minister could competently sign the certificate. Section 141 of the 2003 Act is clear that Scottish Ministers should be involved where an accused is sought by a category 2 territory and resides in Scotland. Such an individual can expect his case dealt with in Edinburgh rather than London or Belfast. Among the documents produced from the Scottish Government was an e mail dated 16 February 2009 which stated "Given the age of this case I am reluctant to suggest a deadline but am grateful to you for prioriting (sic) this." Sadly papers were not sent to Ministers until mid August 2009 albeit the relevant certificate was swiftly granted.

 

Decision

 

[45] Where an accused absconds from the jurisdiction then depending upon the seriousness of the offences the authorities may pursue him for a considerable time. In those circumstances, quite properly in terms of "Diplock paragraph 1" an accused who deliberately flouts the law in this way cannot expect to secure an advantage or preference. If he is returned for trial then steps have to be taken to ensure a fair trial notwithstanding the effects of the passage of time on the memories of witnesses and the loss of other evidence in the interim.

 

[46] In a similar vein such an accused cannot claim advantage simply by pouring over a chronology of the period of time involved seeking to find flaws in the steps taken to trace and bring the accused to justice.

 

[47] In the present case after a two year period the Australian authorities knew where the accused was and could have made arrangements to prepare an application for extradition at some stage of the period from 1988 onwards when they understood the accused was serving a 10 years' sentence in England. Nothing was done for a period of 14 years until information was received about the Accused's current whereabouts which was quickly verified. Despite the extreme age of the case by that stage an inordinate and unexplained delay took place from November 2004 to December 2008 before the extradition request was properly submitted. This delay occurred yet the case appears to be a simple and relatively straight forward matter. The papers are not voluminous and the work which would be required to finalise the request could have been carried out in a few months not years. In terms of Patel (supra) given the period of time which had already elapsed only an immediate request for extradition could have stood any chance of success.

 

[48] The fact that the accused was released from a 10 years' sentence in 1990 was perhaps sudden and unexpected and there is no evidence to suggest the UK authorities advised the Australian authorities of what had transpired. Nevertheless it is clear that the accused's case was forgotten about for over 15 years until the authorities were prompted by receipt of an anonymous letter. By this stage almost 10 years had elapsed from when the requesting state could reasonably have expected to have secured the accused assuming he had served his sentence from 1988 until release on parole. In terms of "Diplock paragraph 1" and the concept of oppression one must re-assess the accused's case in light of his changed circumstances and the time that had elapsed since he was aware of the Australian interest in his extradition in 1988.

 

[49] It follows also from "Diplock paragraph 2" that this is a case where the court has to concern itself with the "invidious task" of considering the inaction by the requisitioning state from 1988 until 2008. The limited chronology which has been obtained from the Australian authorities leaves many questions unanswered. There is no doubt from the information provided that the accused was involved in serious criminal activities in Australian until he absconded in 1986. This behaviour seems to have continued in the UK until the early 1990s and there is a further conviction of note in 1998 but nothing adverse since then. The accused has lived openly in the United Kingdom for the last 20 years and for most of that time has lived in a small part of the West of Scotland. He was not difficult to trace in the United Kingdom at any time after February 1988.

 

[50] I am of the view that this is a most exceptional case (c.f. Lord Diplock in Kakis (supra) at page 783B. Even although the need for extradition arose initially through the accused's "choice and making", after March 1990 the ensuing delay has not been the accused's fault. He could of course have contacted the Australian authorities on his release from prison. However he was open with the press and his whereabouts were known to the police in Scotland thereafter or readily ascertainable.

 

[51] The circumstances to which I have referred in my view clearly "break the chain of causation" (c.f. Gomes (supra) paragraph 26). In the special circumstances of this case where there has been a long and unexplained delay, culpability on the part of the requesting state and doubt cast on the motivation for the request, I consider that I do not require to prolong matters to determine whether the accused would suffer prejudice at any trial due to the passage of time. As was said in Woodcock (supra) see para [33] above:-

"trial after 20 years or more is far from ideal".

However sometimes such trials are inevitable due to the particular gravity of the crimes and the date when a sufficiency of evidence to institute proceedings became apparent to the authorities. In the present case the information was gathered in the aftermath of the alleged offences. No doubt some witnesses have died or disappeared in the interim. A decision could properly have been made by the Australian authorities in 2004/5 to take no further action.

[52] Instead some 6 months after The West Australian newspaper article a fresh initiating warrant was sought in November 2005 for the 1986 offences in respect of which the accused had failed to appear at court on 23 April 1986. Unfortunately however as and when the decision was taken to submit the request, matters moved forward at a glacial pace, despite the significant period of time which had already elapsed. No other action is apparent from the papers submitted until April 2008 when the main affidavits were sworn which verified the court documents and police records. Nothing further is apparent until November 2008 when a correction appears and the case was finalised for submission to the Minister.

 

[53] The statement of Australian law submitted with the chronology specifies challenge could be taken to further proceedings on the basis that the continuance would be an abuse of process due to either a fair trial of the accused being impossible or continuation of the prosecution would be unjustifiably vexatious and oppressive. I accept that there are good safeguards in place were the accused to be extradited and these could result in the Australian courts granting a permanent stay of proceedings.

 

[54] My task however is to consider the request in terms of the scheme set out in Part 2 of the 2003 Act and associated case law. It appears to me that the accused would have had an arguable case had such a request been made in 2005 by reason of the delay which had elapsed since 1990. Since then the authorities in the requesting state appear to have compounded matters by taking a further 3 years until the end of December 2008 to make the request for the extradition of the accused. Regrettably there was also an unnecessary delay in this country of almost a further year before the accused was arrested and became aware he was still sought for matters which had arisen in 1986. Embarrassing though this latter period is I am of the view that even if this request had been brought before this court promptly in early 2009 my decision would have been the same.

 

[55] Having considered at some length the unfortunate history of this case since the accused's flight from Australia in February 1986 I am of the view that:-

(i) the period of time from 1988 to 2004 where no action was taken by the requesting state, coupled with

(ii) the unexplained lack of progress from November 2004 to December 2008 to process what appears a simple application for a straight forward case,

(iii) the absence of a denial that a decision was taken by the Australian authorities in 2004 not to seek the extradition of the accused,

(iv)the fact that the accused has lived openly in Scotland since 1990 and been of good behaviour for more than 10 years

it would be oppressive to order the extradition of the accused by virtue of the passage of time which elapsed from March 1990 until October 2009.

I do not consider it necessary in these circumstances to determine whether the accused would face injustice if extradited to face trial. Accordingly I order the accused's discharge in terms of section 79(1)(c) and (3) of the 2003 Act.