CO/9907/2006 
Neutral Citation Number: [2007] EWHC 288 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Tuesday, 16 January 2007
 
B E F O R E:

LORD JUSTICE THOMAS 

MRS JUSTICE DOBBS 
 
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TOAFIKE CHABABE 
(CLAIMANT) 
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BONN PUBLIC PROSECUTORS OFFICE
(DEFENDANT) 
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MISS N ABDELSAYED (instructed by Vickers & Co of London) appeared on behalf of the CLAIMANT
MISS J NORRIS (instructed by Crown Prosecution Service) appeared on behalf of the DEFENDANT
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J U D G M E N T
1.	LORD JUSTICE THOMAS:  On 3 April 1989 the District Court in Bonn, the Federal Republic of Germany, issued a warrant for the arrest of the appellant on a charge of attempted rape in Bonn on 10 March 1989.  That warrant was never executed.  
2.	In September 2005 the Bonn police received a letter from the appellant's ex‑wife, accompanied by a letter from a refuge at which his ex‑wife was then resident, which notified the Bonn police that the appellant was in England and that he had fled from Germany on 15 April 1989.  In July 2006 a European arrest warrant was issued.  On 23 August 2006 the appellant was arrested at Heathrow Airport.  On 27 October 2006, just over two months later, the extradition hearing took place at the City of Westminster Magistrates' Court.  There was no dispute that the offence with which the defendant was charged was an extradition offence.  
3.	The sole issue before the court was whether there was a bar to extradition by reason of the passage of time under Section 11 (1) (c) of the Extradition Act 2003.  The Deputy Senior District Judge, in a very clear and cogent decision, decided that there was not.  
4.	The appellant appeals to this court under Section 26 of the Act and contends that the conditions set out in Section 27 (3) of the Act are met in that the judge should have decided the issue differently and therefore the appeal should be allowed.  
5.	It is convenient first to set out the relevant legal principles about which there was little dispute before us.  First, under Section 14 of the Act, extradition by reason of passage of time is a bar if it appears that it would be unjust or oppressive to extradite a person by reason of passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large, as the case may be.  
6.	The meaning of the words "unjust" and "oppressive" had been considered by the House of Lords in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 in the context of the Fugitive Offenders Act 1967.  As is clear from a number of cases before this court, the passage in the judgment of Lord Diplock at pages 782 to 783 defining the words "unjust" and "oppressive" is regarded as applicable to the 2002 Act.  The well known passage in Lord Diplock's speech is at page 782:
"'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 the hardship to the accused resulting from changes in 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.  
As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibilities 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."
7.	The further point not in dispute was that the burden of proof, on the standard of proof of the balance of probabilities, rested upon the appellant.  
8.	I turn therefore to apply those principles to the issues in the case.  The principal, and indeed the only factual issue that is before the court, was whether the appellant had fled from Germany to evade arrest.  It was conceded at the outset of the appeal by counsel for the appellant in her very succinct submissions to us that there was no appeal against the finding of the learned Deputy Senior District Judge that there would be any oppression to the appellant in this case.  It was also conceded that there had been no dilatoriness on the part of the authorities of the Federal Republic of Germany in bringing the appellant to justice.  Thus the issue we had to consider was whether in all the circumstances the finding made by the learned Deputy Senior District Judge that the appellant had fled from Germany to evade arrest was a finding that could be successfully attacked.  
9.	The evidence before the judge can be summarised as follows.  First, there was a letter from the Public Prosecutor's Office in Bonn dated 29 September 2006 which stated that the appellant had been pursued on the national territory of Germany, that his place of residence was  unknown and the search was unfruitful.  The prosecuting authorities only learned about his presence in the United Kingdom because of the letter from the ex‑wife to which I have referred.
10.	The second piece of evidence before the learned Deputy Senior District Judge was the letter from the Public Prosecutor in Bonn dated 26 October 2006 in answer to some questions that had been posed to the authorities as a result of a statement that had been put before the court by the appellant.  The principal points in that letter were that the circumstances of the offence were that the claimant had met the appellant at a public house, that she did not know his name and that she had identified him from photographs; that the case against the appellant would be continued by the authorities and they would be able to rely upon the contemporaneous account given by the complainant and photographs of the injuries she had sustained.  The letter also referred to the circumstances of the conviction in 1985 to which I shall refer.
11.	The third piece of evidence before the learned Deputy Senior District Judge was the oral evidence of the appellant.  This can be summarised as follows.  The appellant was a Moroccan by nationality.  He had left Morocco in 1979 when he was 20.  He travelled to Bonn to study and work.  In 1985 he was convicted of an offence described as one of rape and a serious assault by the Cologne court and he was sentenced to 18 months' imprisonment of which he served six months.  He married in Germany in 1986, but ceased to live with that spouse in 1988.  He then ran a bar and a restaurant for 18 months and left Germany in 1990.  When he left Germany he returned to Morocco and ran a family taxi business.  In the period from 1990 to 1993 he made several trips to Germany where he bought cars which he had driven to Morocco for re‑sale.  In 1994 he had commenced a relationship with a teacher of English and went with her to the United States of America where he remained until 2002.  The relationship had broken down in 1997.  
12.	In 2002 he returned to Morocco.  He met an Italian national whom he then married.  When she was pregnant she moved to the United Kingdom.  He had then joined her in January 2003 and a son had been born in April 2003.  That relationship also broke down and they were divorced in 2005.  His wife had gone to a women's refuge.  It was the appellant's evidence that she had post‑natal depression.  There was a dispute between them over custody.  It was in those circumstances, actuated by malice, that she had written to the authorities in Bonn, as I have already mentioned.  
13.	Finally in 2005 he had married again and was living and working, at the time of his arrest, in Hampshire.  
14.	The final piece of evidence, which was sent by the Public Prosecutor's Office in Bonn, was the letter from the manager of the refuge in Brighton together with the manuscript letter written by the ex‑wife.  There is one passage which is very important in that letter which was as follows:
"Mr T Chababe excape (sic) from Germany in April 15 1989 because police was searching for him."
On that evidence the Deputy Senior District Judge concluded that the appellant had fled from Germany to avoid detection and the lengthy delay in proceedings had been caused by that absconding.  She gave cogent reasons for that decision.  She concluded that the warrant had been issued promptly by the authorities in Germany in 1989.  They had no idea where the appellant was.  As to his claim that he had been to Germany several times between 1990 and 1994, she accepted that it was probable that he did.  But on those visits the authorities would have had little chance of detecting him on border crossings, as the only examination of his identity would have taken place on his entry into Spain and not when he crossed between frontiers within the European Union.  The Spanish Government, it was pointed out, would not have been interested in his identification for the purposes of the warrant issued in April 1989.  
15.	The learned Deputy Senior District Judge also went on to explain that the most cogent piece of evidence underlying her finding was that the only real source for the passage in the letter to which we have referred, which identified his escaping from Germany in April 1989 because the police were searching for him, must have been the appellant.  It could have come from no one else.  Indeed the learned Deputy Senior District Judge made it clear that during the course of his evidence the appellant had, as he had accepted, told his ex‑wife of his conviction in 1985; she concluded that the only source of the statement that he had left Germany in 1989 must have been therefore the appellant.  It was on that basis therefore she concluded that he had fled from Germany to avoid detection.  
16.	As I have already indicated, the real issue in this case, and the sole issue, was whether that finding can be successfully attack in this court.  I, for my part, think that despite the attractive arguments put forward by counsel for the appellant there was no prospect that this finding could have been attacked.  Indeed it is clear that it was a finding properly based on the evidence.  My views of that conclusion can be summarised.  First the learned Deputy Senior District Judge had all the advantages of seeing and hearing the appellant.  Secondly, she set out, as I have referred to earlier in this judgment, her reasons for the conclusion.  Those reasons are cogent, clear and powerful.  It is difficult to see where else the ex‑wife could have obtained the information as to the date of his departure from Germany so soon after the offence which he is alleged to have committed other than the appellant.  It was contended before us that the ex‑wife might have made inquiries of the authorities in Germany and obtained the information that way.  That is pure speculation.  There is absolutely nothing to support it.  
17.	In my view, the learned Deputy Senior District Judge was wholly entitled to come to the conclusion on the evidence she heard.  She gave cogent, clear and powerful reasons.  There is, in my view, no basis on which that finding can properly be disturbed.  
18.	In those circumstances it is necessary to turn to consider the further contention made by counsel for the appellant, namely that in this case there are exceptional circumstances which, as Lord Diplock stated in Kakis, would justify a court in deciding that despite the fact that a person had deliberately evaded arrest it would nonetheless be unjust and oppressive to return him.  In the bundle before us there were a number of authorities; these were referred to in the skeleton arguments.  However none of the cases on this issue dealt with the issue of principle.  They were merely the application of the principles of law to which I have referred to the particular facts.  It is therefore unnecessary to refer to them.  
19.	It is therefore necessary purely to ask the question: are there exceptional circumstances in this case?  In my view,  plainly there are not.  First of all, the reason why the case has not proceeded against the appellant is solely due to the appellant's own action on the finding (to which I have referred) in fleeing from Germany.  Secondly, there are contemporaneous documents and statements in the possession of the prosecuting authorities on which they can rely.  If a person chooses to abscond and therefore puts himself in a position where he finds it more difficult to defend the case than if he had at the time remained and defended it, that is entirely a difficulty of his own making and cannot in any way possibly amount to exceptional circumstances.  
20.	In my view therefore the learned Deputy Senior District Judge was correct in the conclusion to which she came, and this appeal should be dismissed.
21.	MRS JUSTICE DOBBS:  I agree.
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