Neutral Citation Number: [2015] EWHC 3466 (Admin)
Case No: CO/4137/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 4th December 2015

Before:

LORD JUSTICE BEATSON AND MR JUSTICE CRANSTON
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Between:

	Duncan	Appellant	
	 and 		
	Presiding Magistrate, Malaga, Spain	Respondent	
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Malcolm Hawkes (instructed by Janes Solicitors) for the Appellant
Kathryn Howarth (instructed by Crown Prosecution Service) for the Respondent

Hearing date: 24/11/2015
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Judgment
Mr Justice Cranston: 
Introduction
1.	The appellant, a British national aged 67, appeals the decision of District Judge Michael Snow of 26 August 2015 ordering his extradition to Spain to stand trial for drug offences pursuant to an accusation European Arrest Warrant (“EAW”).  The warrant was certified by the National Crime Agency on 29 April 2015.  Ouseley J gave permission to appeal in this case because of the need for the court to consider the relationship between sections 21A(3)(c) and 21B of the Extradition Act 2003 (“the 2003 Act”).  The District Judge held that extradition would not be disproportionate to the appellant’s Article 8 rights or the proportionality bar in subsection (3)(c) of section 21A.  He refused an oral application made at the hearing to adjourn the case under section 21B of the 2003 Act.
Background
2.	The EAW was issued on 13 June 2011 by Judge Andres Rodero Gonzalez, Presiding Magistrate of the Seccion 3a De La Provincial De Malaga, Spain.  It states at the outset that the appellant’s address is unknown but that his lawyer had informed the judicial authority that he “may be deceased”.  Boxes B and D both note that the appellant was summonsed but failed to attend trial.  The warrant relates to a single offence concerning the trafficking of cannabis under Articles 368 and 370.3 of the Spanish Penal Code, for which a maximum sentence of imprisonment of 5 years, 6 months can be imposed.
3.	Box E of the warrant explains that, from September 2006, Spanish police were investigating an organisation dedicated to the trafficking of drugs and made up of English subjects, operating on the Costa del Sol.  In January 2007, a plan was made to transport a quantity of drugs from the Moroccan coast to Spain by means of a boat.  In August 2007 a boat was employed for this purpose, containing 60 packages with a total of 1632 kilos of hashish with an average THC (purity) level of 9.1%.  Thereafter, a further plan was made to transport a significant amount of this hashish onwards, from Spain to the United Kingdom.  On 10 September 2007, a portion of the drugs was transported from Malaga to a warehouse in Cijuela, Granada.
4.	On the following day, the warrant continues, another portion of the drugs was transported from Malaga to the warehouse.  On this occasion Spanish police arrested David and Anthony Patrick who were keeping watch outside the warehouse.  Upon searching the warehouse, various boxes and packages were found, which contained a total of 3724.76 kilos of hashish, with an average THC (purity) level of 9.5%.  Ricardo Blanco, Paul Varley and David Gomez Quincena were found inside the warehouse, carrying out the tasks of transporting and storing the narcotics,
“along with Christopher Duncan, who was charged with transporting the substances, the owner of the IVECO van with registration plate 9722-CKP, which was found in the warehouse and which had been used to transport the narcotics from the south of the province of Malaga to Cijeula.”
5.	At Box F the warrant states that there are 13 other accused, additional to the appellant, and that “the purpose of this arrest warrant is to have Christopher Duncan located, arrested and surrendered, wherever he is to be found, to this court in order to stand trial for the crimes imputed to him.”
6.	The appellant was arrested on the EAW on 30 April 2015 and served with a copy in both English and Spanish.  On the same day he appeared at Westminster Magistrates’ Court for his initial hearing.  Likely issues raised were section 21A (less coercive measures), section 14 (delay) and section 25 (health).  The appellant did not consent to his extradition and the extradition hearing was opened.  He was granted conditional bail.
7.	On 22 July 2015, there was a case management hearing.  By this time the appellant had served a proof of evidence and a skeleton argument, raising section 25 (health), Article 8 and section 21A proportionality.  In relation to section 21A(3)(c), it stated that the Judicial Authority should provide an explanation as to why less coercive measures had not been pursued, and referred in general terms to the European Supervision Order.  It also stated that there was anecdotal evidence that Spain had permitted suspects to return to the UK, subject to reporting to the Spanish consulate.  The Judicial Authority could have issued a court summons before making the extradition request.  That, the skeleton said, was especially appropriate in this case since there was no evidence that the appellant was ever made aware of the trial date.
8.	At the case management hearing those representing the Judicial Authority had been directed to serve further information, should they wish, by 19 August 2015.  No information was served by that date, nor has any further information come from the Judicial Authority.
9.	The final extradition hearing took place before District Judge Snow on 26 August 2015.  The appellant’s evidence was that he is in poor health.  He had been diagnosed with Crohn’s disease, which manifests itself in persistent, sometimes acute abdominal pain and continual diarrhoea.  In a letter dated 15 June 2015 Dr P. Gyawali, a consultant, described how the appellant has undergone three abdominal operations to remove parts of his stomach or intestine.  With surgery he had done very well and his Crohn’s disease was in remission.  There was no reason he could not travel.  In the event his condition deteriorated, he would require urgent access to medical treatment.
10.	The appellant’s account regarding the offending in the EAW was that he moved to southern Spain in 2002 with the intention of retiring there.  In early 2007 he bought an Iveco van, intending to earn some money conducting home removals.  He was asked to rent his van to an Englishman whom he met locally to transport cigarettes.  On 10 September 2007 he drove the van as agreed to Benavista, but was then asked to drive it to a warehouse near Granada with the explanation that he would be driven back.  The van was empty at all times.  Upon arrival at a warehouse, he was asked to reverse the van, whereupon plain clothes police arrested him and the others present.  He was on remand in Alhaurin prison at Malaga for 6 months.  During that time, he was hospitalised on at least two occasions.
11.	In about March 2008, the appellant said that his Spanish lawyer visited him in custody and proposed a bail security of €30,000 or payment within two weeks of a security of €10,000.  He could not afford to pay either sum.  However, a fortnight later, in about March 2008, the €10,000 had been paid on his behalf, but the appellant was not told by whom.  He was released and his UK passport was returned.  He was told to attend court within a week to learn his bail conditions.  This he did, confirming his address in Estepona, and he was told to report to the police or the town hall once a month.  His health deteriorated during his imprisonment and following his release.  For this reason in about May 2008 he returned to the UK.  He sold his Spanish property and did not leave a forwarding address.  In 2009, he was referred to hospital in the UK where he underwent an urgent operation to remove part of his stomach to address a bowel blockage.  After discharge from hospital, he returned to live with a friend before being housed in a warden-supervised apartment for the elderly at Hornchurch, where he has resided to the present.
12.	On the appellant’s account he believed that the Spanish authorities were no longer interested in prosecuting him, reinforced by his return to Spain on some six occasions without incident up until February 2010.  He now feared returning to Spain, particularly since he felt that his condition was not adequately treated there, whether in prison or in the community.  He further insisted that, had he been aware of any trial date in Spain, he would have attended.  Due to his lack of involvement in the offence overall he assumed that, due to the passage of time, he was no longer of interest to the Spanish authorities.
The District Judge’s judgment
13.	After reviewing the evidence, the District Judge made findings that the appellant was a clear fugitive from justice, had left Spain in breach of his bail conditions, and had provided the Judicial Authority with no means of contacting him.  He had not contacted the Judicial Authority or his lawyer subsequent to his release.  At no time was he informed that he would not be prosecuted.  He was wanted for trial in Spain.
14.	With respect to the arguments raised on his behalf, the District Judge first considered Article 8 ECHR.  He referred to Polish Judicial Authorities v. Celinski [2015] EWHC 1274 and set out the factors for and against extradition (the seriousness of the allegations and the fact that the appellant was a fugitive on the one hand; the age of the allegations, nine years, the appellant’s age and his health on the other).  He was satisfied that extradition was not incompatible with the appellant’s Article 8 rights:
“[31]… I remind myself that there is a very high public interest in ensuring that extradition arrangements are honoured, as is the public interest in discouraging persons from seeing the UK as a state willing to accept fugitives from justice. The request of the [Judicial Authority] should be accorded a proper degree of mutual confidence and respect. These are serious allegations, the [appellant] is a fugitive from justice. The [appellant] has no immediate family in this jurisdiction who are reliant upon him. His health can be adequately treated in Spain.”
15.	Turning to section 21A(1)(b), proportionality, the District Judge said that he would apply the dicta in Miraszewski v. Torun District Court [2014] EWHC 4261 (Admin).  He considered the three factors in section 21A(3).  First, as to seriousness, section 21A(3)(a) the allegations were very serious, involving the trafficking of substantial quantities of cannabis, the appellant had high culpability in respect of all matters and significant harm would potentially be caused.  Secondly, section 21A(3)(b), there was no evidence as to the likely penalty on conviction, but it was highly likely that a substantial term of imprisonment would be imposed and there was a clear public interest in prosecution.  As to the third factor, section 21A(3)(c), the possibility of the Judicial Authority taking less coercive measures, the District Judge referred to Miraszewski and the evidential burden being on a requested person.  That approach had not been superseded by the introduction of the European Supervision Order.
16.	The District Judge then dealt with the oral request made by the appellant’s counsel, for the first time at the final hearing, that the Judicial Authority consider less coercive measures under section 21B(3).  He said:
“[38] … These requests are made with increasing frequency in extradition cases and frequently are left to the day of the final hearing. Often they are accompanied by a submission that the court is required to adjourn the hearing pending a response to the request, which if acceded to, leads to a delay of many months and the wastage of valuable hearing time. It also leaves the court process open to manipulation by unscrupulous defendants.
[39] I am concerned that the requests are being used as a device to undermine the correct approach to paragraph 21A(3)(c) which I have set out above.”
After setting out section 21B(4), and the provisions of the Criminal Procedure Rules, that the Overriding Objective is that cases be tried justly, dealing with the prosecution and defence fairly and with the case efficiently and expeditiously, he continued:
“42. I do not accept that making an oral application on the day of the hearing complies with the parties obligation under Rule 1.2(1)(a) [of the Crim PR] to prepare and conduct the case in accordance with the overriding objective. Late requests ambush the [Judicial Authority] and can lead to unnecessary and costly adjournments. If a party wishes to make a request it must do so early in the proceedings, giving the [Judicial Authority] time to respond, if appropriate well in advance of the hearing. The party who makes the request should set out that request in writing and the grounds for it.”
17.	The District Judge concluded that the appellant’s request, that the Judicial Authority consider less coercive measures, did not comply with section 21B and therefore section 21A(4) did not apply.  If it had applied, he would have to consider whether it was necessary to adjourn the proceedings.  He had an obligation to exercise his discretion judicially.  The skeleton argument of 21 July 2015 raised the issue of less coercive measures, so counsel clearly had it in mind and could have made the section 21B request at that time.  No reason had been given as to why the request was not made then.  The appellant’s health and age, upon which the request was founded, did not prevent him from travelling to Spain.  He became a fugitive from justice when he left Spain in breach of his bail conditions in early 2009 and he had evaded the Judicial Authority since.  Taking those factors into account, the District Judge would have been satisfied that it was unnecessary to adjourn since the appellant had not satisfied the evidential burden in respect of section 21A(3)(c).  Taking into account the matters set out in section 21A(3), he was satisfied that it was not disproportionate to order the appellant’s surrender.
Article 8 ECHR: disproportionate interference with private life
18.	Mr Hawkes’s argument on Article 8 ECHR was that the District Judge failed to take all factors into account in the balancing exercise.  While he correctly identified the four year delay between the issuing of the EAW (13 June 2011) and its certification (29 April 2015), he failed to take that period into account and the overall period of 8 years since the commission of the offence.  Moreover, he failed to consider the question of pre-trial delay.  Mr Hawkes contended that although the appellant was clearly unlawfully at large, as a UK national, he did no more than return to his native country and live an open and readily discoverable life.  There was no evidence that he had ever concealed his whereabouts.  There was the question of the appellant’s parlous physical health, not simply the issue of adequate treatment in custody in Spain.  The fact was that there would be a likely lengthy period of pre-trial detention, in a matter which failed to come to trial for a considerable period previously, which was wholly unnecessary and apart from anything else would bear heavily on his health.
19.	The District Judge conducted the balancing exercise for Article 8 laid down in Polish Judicial Authorities v. Celinski [2015] EWHC 1274 (Admin).  Delay is certainly a factor which feeds into that balance: H (H) v. Deputy Prosecutor for the Italian Republic, Genoa [2012] UKSC 25, [46], per Lady Hale.  Nonetheless, the District Judge concluded that given the way that the appellant had left Spain in breach of bail and without leaving a forwarding address, delay was not the crucial feature the appellant portrayed.  The seriousness of the drugs allegations weighed heavily in the balancing exercise in his case.  The appellant’s health is a concern, although Mr Hawkes had to concede that it did not reach the section 25 threshold.  The District Judge was very aware of it and took it into account in the Article 8 balance.  In my judgment, the appellant has failed to show that the District Judge’s decision was wrong regarding Article 8 ECHR.
Section 21A: proportionality and less coercive measures
20.	Mr Hawkes submitted that the District Judge ought to have considered the possibility of less coercive measures and ought to have established whether the Judicial Authority had considered the alternatives to extradition such as interviewing the appellant by video-link, issuing a summons, or confirming whether they would be prepared to use the European Supervision Order.  The latter would ensure any pre-trial period in Spain was reduced to a minimum.  Mr Hawkes added that the District Judge should also have considered whether there was evidence that the decision to issue an EAW was reached after due consideration of proportionality and the possibility of any alternatives to extradition.  A failure to afford an explanation should, in the circumstances of the instant case, lead inexorably to a finding that extradition would be disproportionate given the appellant’s health, that he may not be entitled to free healthcare on domestic bail, and that there may be a very lengthy period before the matter comes to trial.
21.	It is clear that the proportionality bar in section 21A(1)(b) operates in accusation cases as an additional and separate bar to human rights considerations in section 21A(1)(a).  But it is also clear from Miraszewski [2014] EWHC 4261 (Admin) that the burden is on a requested person to demonstrate that less coercive measures are available under section 21A(3)(c).  Here there was no indication that the Spanish Judicial Authority would consider less coercive measures.  Why should they want to interview him?  As the District Judge said, drawing on the warrant, he was wanted to stand trial.  Why should they issue a summons?  The seriousness of the alleged offending and the appellant’s leaving Spain in breach of his bail conditions militated against that.  Mr Hawkes’s reference to the European Supervision Order fails to take the matter further.  It operates post-extradition in that Article 21(1), Framework Decision 2009 states that extradition should not act in conflict with it: see Komar v. District Court of Torun, Poland [2015] EWHC 2547 (Admin).  In my view there was no realistic possibility that the Spanish Judicial Authority would take measures that would be less coercive than extradition.  That was the end of it.  The District Judge correctly concluded that extradition in this case met the free-standing proportionality test under section 21A.
Section 21B: request for temporary transfer/arrangements to speak
22.	 Like section 21A, section 21B of the 2003 Act was introduced for accusation EAWs by means of the Anti-social Behaviour, Crime and Policing Act 2014.  Section 21B(2)(3) enables either the Judicial Authority or a requested person to make a request (a) that the requested person be temporarily transferred to the requesting state, or (b) that arrangements be made to enable the requested person to speak with representatives of an authority in the requesting state.  Should the request be refused, that is the end of the matter.
23.	The procedure laid down in the section is as follows.  Section 21B(1)(b) provides that the section applies if “at any time before or in the extradition hearing, the appropriate judge is informed that a request…has been made”.  Section 21B(4) then provides “the judge must order further proceedings in respect of the extradition to be adjourned if the judge thinks it necessary to do so to enable” the requested person or the requesting state “to consider whether to consent to the request”.  An adjournment under this subsection must not be for more than 7 days”.  In the event that the parties consent to the request, section 21B(5) allows for any further adjournment of the extradition proceedings to facilitate the process of temporary transfer, or to enable arrangements to be made to enable the requested person to speak with representatives of an authority in the requesting state.  A person is only able to make one request for temporary transfer and one request to speak with the authorities of the issuing State whilst remaining in the UK: s.21B(8).  Under section 21B(9), if a request is made before the date for the extradition hearing has been fixed, an adjournment can extend to the date so fixed.
24.	Mr Hawkes submitted that it was wrong for the District Judge to refuse to adjourn to permit a response to the section 21B application.  First, the District Judge’s approach to section 21B of the 2003 Act was incorrect in law: a request may be made “at any time before or in the extradition hearing”.  Even if the District Judge was right that rule 1 of the Criminal Procedure Rules – the overriding duty to deal with cases justly – acts to override the provisions of section 21B, there was no comparison in terms of injustice to suggest that a delay in extradition proceedings should outweigh its severe consequences, particularly where, as in this case, the appellant is seriously unwell.  Moreover, Mr Hawkes submitted, there was no evidence as to the length of any adjournment: the length of hearing to deal with section 21B would have been short and easily accommodated at the Westminster Magistrates’ Court.  Further, the District Judge was wrong to find that there was any legal requirement to make a section 21B application in writing, particularly when the issues had expressly been set out in the appellant’s skeleton argument in July, and the application did no more than require those acting for the Judicial Authority to liaise with them.
25.	As a practical matter, Mr Hawkes rejected the suggestion that applications for section 21B adjournments were being made frequently, or in an attempt to disrupt the extradition process.  If a judge has suspicions that the application is being used as a device to derail the proceedings, he has full means of enquiry, before raising the issue in his judgment.  Mr Hawkes suggested that there was nothing to prevent the court from proceeding to all but conclude an extradition hearing and to adjourn for judgment to accommodate a section 21B adjournment.  On the basis of his experience, Mr Hawkes said that a judgment hand down may easily be accommodated at Westminster Magistrates’ Court, since most judges do not read out their judgments in full, only summarising the content,  so there would be no significant delay to proceedings.
26.	There are three conclusions which I draw from the statutory language of section 21B.  First, the judge has a discretion whether to adjourn or not (“if the judge thinks it necessary” in section 21B(4)).  That discretion must be exercised judicially and there is a duty on the judge to give reasons explaining why the discretion has been exercised in a particular way.
27.	Secondly, the request must be clearly expressed and particularised.  That follows because either the requested person or the Judicial Authority needs to know what is being asked of them, since the section contemplates that the other party will be able to respond within 7 days.  For example, if the request is made by a requested person to enable him to speak with representatives of an authority in the requesting state, the Judicial Authority needs to know which authority (e.g., the police, the probation service, the prosecutor, the court); what purpose is it envisaged will be served (e.g., to explain the breach of a suspended sentence, to request an iron letter (a guarantee of safe passage for questioning), to avail oneself for questioning, to explain the requested person’s innocence); and how it is contemplated that contact is to be made (e.g., telephone, video link).  There is no requirement that a request under section 21B should be in writing, but given the need for clarity and particularisation it seems almost inevitable that it will take that form.
28.	Thirdly, the timing and appropriateness of the request will have a bearing on whether the judge considers it necessary to grant the adjournment.  Section 21B(1)(b) contemplates that a request may be made as late as the extradition hearing itself.  I accept Mr Hawkes’s submission that it cannot always be expected that a requested person will be in a position to raise a potential section 21B application at their initial hearing.  There may be a dearth of information save for that contained in the warrant and a lack of time to consider whether to set it in train.  Legal aid is not in place and that issue may not be resolved for some weeks, if at all.  However, it is open to the District Judge, at the case management hearing, to direct that any section 21B application must be made in a manner to avoid any unnecessary adjournment, particularly at the final hearing.  (The court was told some District Judges regard it as necessary when a section 21B application is made to adjourn every 7 days for mention of the case.  If this is so, I observe that this will avoid this).  Under the legislation, that cannot preclude late applications being made where, subsequently, there are indications that the Judicial Authority may be open to a temporary transfer or communication with the requested person.  As I have indicated, whether the District Judge decides to grant an adjournment will turn upon the nature of the application, the reasoning behind it and the explanation for its timing.
29.	In the present case I cannot accept that the District Judge’s refusal to adjourn under section 21B was flawed.  The request did not need to be in writing.  However, the skeleton argument served on the day of the case management hearing focused on the failure of the Judicial Authority to utilise less coercive measures in relation to section 21A; the District Judge rightly determined that it contained no request under section 21B.  When the request under section 21B was made orally at the final hearing, the District Judge rightly interpreted it not as a mandatory provision requiring him to adjourn.  He then determined that the application did not comply with the parties’ obligation under the Criminal Procedure Rules and that the request that the Judicial Authority consider less coercive measures did not come within the terms of section 21B.
30.	Even if the request had come within the terms of section 21B(3), less coercive measures was in the contemplation of counsel when the skeleton argument was lodged and no explanation had been provided as to why a section 21B(3) request had not been made at that stage; the requested person’s age and health did not, on the evidence, prevent him from travelling to Spain; he was wanted to stand trial; and the requested person was a fugitive.  In other words, I cannot conclude that the District Judge was wrong to refuse to adjourn having regard to the terms of the request made by the appellant’s legal representative, the timing of that request and the factual circumstances of the case.
Conclusion
31.	For those reasons I would dismiss the appeal.
Lord Justice Beatson:
32.	I agree.