Extradition: Prosecution Reversal after 20 years Oppressive
On an appeal made against an extradition order to send the case to the Secretary of State for her decision on the appellant’s extradition, the question specified by section 104(3) of the Extradition Act 2003 was: ought the judge below to have decided the question before him differently, and if he had decided that question differently, would he have been required to order [the appellant’s] discharge?
In Lauri Love v Government of the United States of America[1] it was said that the words “ought to have decided a question … differently” gave a clear indication of the degree of error which had to be shown.
The appeal had to focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed.
The true approach was more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong.
An appellate court was entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, so that the appeal in consequence should be allowed.
The appellant in the current case was said to have committed three counts of rape and three counts of indecent assault between 1977 and 1980 in the family home of the alleged victims on the Royal Air Force Station at Akrotiri in the SBA: Dennis Barber v Administrator of the Sovereign Base Area of Akrotiri and Dhekelia, British Overseas Territory [2021] EWHC 2858 (Admin): Swift J
The aggrieved were sisters born in 1967 (aged 9 to 13) and 1969 (aged 7 to 11).
The allegations were first made in May 1998 to police in England. By November 1998 the complainant and all relevant witnesses had been interviewed. The appellant was interviewed under caution in March 2000.
The case was referred to the Attorney General and Legal Adviser (AGLA) to the SBA who considered in 2001 there was no reasonable prospect of a conviction and there would be no prosecution. The appellant was informed that there would be no further police action in relation to the matter.
In January 2017 a further investigation was conducted this time by the Royal Air Force Police who, initially at least, had no knowledge of the AGLA’s decision in 2001 that the appellant should not be prosecuted.
Six of thirteen people interviewed as part of the first investigation (including the appellant) were interviewed from scratch. Others were interviewed. The appellant was charged at a second interview in November 2017. The appellant’s legal adviser at that stage disclosed an email confirming that the case from 1998 would not be prosecuted.
There was no doubt that material from the first investigation had been either lost or destroyed, but it could not be said that this would inevitably preclude the possibility of a fair trial.
But the District Judge in Westminster Magistrates’ Court was wrong when he rejected the submission that it would be oppressive 20 years later to order extradition.
The 2001 decision not to prosecute by the AGLA himself was unqualified, and the prejudice consequent upon any reversal self-evident. A prosecutor’s responsibilities when, as here the allegations were grave, were very weighty indeed. They were solemn events
In the meantime, the appellant had come to care full-time for his partner C. they had been together since 1996. She suffered from rheumatoid arthritis and osteoarthritis, and since 2000 her health had progressively deteriorated. She was now 80 years old and completely reliant upon the appellant’s assistance.
It was clear to the appellate court that it would be oppressive to the appellant for him to be prevented from continuing that care and the appeal would succeed on that ground.
District Judge Ikram was also wrong to conclude that extradition would be a justified interference with the appellant’s and C’s article 8 rights.
Although the public interest that the United Kingdom honour extradition arrangements it had made was strong, that interest was outweighed taking account of the 2001 decision not to prosecute, the passage of time since that decision, the unexplained reversal of that decision and the very significant impact of extradition which would render the appellant unable to continue to care for C and leave C without the benefit of that care.
Accordingly, the article 8 ground of appeal also succeeded and the District Judge’s order set aside.
[1] [2018] 1 WLR 2889 Divisional Court (Burnett CJ and Ouseley J)