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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Oncel v Governor of HM Prison Brixton & Anor [2001] EWHC Admin 1142 (19 December 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/1142.html Cite as: [2001] EWHC Admin 1142, [2002] ACD 17

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IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice The Strand London
		Wednesday 19 December 2001

Wednesday 19 December 2000

1. THE LORD CHIEF JUSTICE: This is an application for habeas corpus. It raises more than one point of some little difficulty in relation to extradition. The court is particularly grateful for the clarity and succinct manner in which counsel, Mr McGuinness QC on behalf of the applicant, and Mr Hardy for the respondent have presented the argument to us.
2. The application is as a consequence of the applicant having been committed at Bow Street Magistrates' Court on 16 November 2000 to be returned to the Republic of Turkey to stand trial on a series of charges. Those charges fall into two groups: those committed on about 13 February 1980, and those committed on or about 14 March 1980. The first offence is one of conspiracy. The second offence is one of robbery. Both those are the February offences. Then there is an offence of kidnapping, a further offence of kidnapping, an offence of aggravated burglary, and an offence of stealing jewellery from a dwelling-house when armed with a firearm, an imitation firearm or a weapon of offence.
3. It is accepted that the offences under English law are extraditable offences, and that the applicant's extradition is requested. But there are three arguments which are advanced before us for contending that it would be wrong to extradite the applicant. The first is that the applicant has already been tried and acquitted of the offences and therefore it would constitute double jeopardy if he were to be retried. The second is the passage of time which has occurred since the alleged commission of the offences. The third is the political character of the offences.
4. It is not necessary to do more than set out the facts in outline. The applicant is alleged to have committed the offences on the dates which have already been identified. He was then tried and acquitted by the Military Court of a Court Martial District on 22 January 1982. On 15 December 1982 the matter came before the Supreme Court of Military Appeal who abrogated the decision of the District Military Court. The applicant had left Turkey before that happened, but he was aware that the decision was under appeal. A warrant for his arrest was issued on 29 November 1983. Having left Turkey, the applicant resided in Germany. Extradition proceedings were initiated in that country, as a consequence of which he moved to this country. In 1986 he was convicted of an immigration offence of overstaying his permission to remain here, following which he remained in this country.
5. In 1991 the Turkish authorities issued information through Interpol relating to the applicant, stating that it contained his fingerprints on 17 September 1986 in London, United Kingdom. Presumably those fingerprints were connected with the immigration offence of which the applicant had been convicted, to which reference has already been made. The Turkish authorities indicated that his extradition was requested from any country. This was followed in turn by the applicant being arrested on 8 May 2000 in consequence of a warrant for arrest issued by the Bow Street Magistrates on 9 February 2000.
6. On 27 June 2000, the authority to proceed was given by the Secretary of State. That was followed by the committal order of 16 November 2000 and the present habeas corpus proceedings.
7. During the sixteen years in which the applicant has lived in this country, he has married, been divorced and is at present receiving treatment for a heart condition under the National Health Service. In his statement he adds that he believes that if he were to return to Turkey and to be convicted he could receive a sentence of life imprisonment.
8. The relevant statutory provision in respect of the first ground relied upon by the applicant is contained in section 6(3) of the Extradition Act 1989, which provides:

"a person accused of an offence shall not be returned, or committed or kept in custody for the purposes of return, if it appears to an appropriate authority that if charged with that offence in the United Kingdom he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction."

9. Having regard to the language of section 6(3), Mr McGuinness advances his argument in a very straightforward manner. He says that it is not in dispute that the applicant was acquitted by the Military Court of the Court Martial District; he has therefore been in jeopardy and, in accordance with the English approach to double jeopardy, the applicant is entitled to rely on section 6(3).
10. In support of his contention he refers to the very well-known statement of Lord Morris of Borth-y-Gest in the leading case of Connelly v Director of Public Prosecutions [1964] AC 1254. At page 1305 of that case Lord Morris set out nine principles in relation to autrefois acquit which were intended to encapsulate the English approach to that plea in bar. Lord Morris stated:

"In giving my reasons for my view that the direction given by the learned judge was entirely correct, I propose to examine some of the authorities and to state what I think are the governing principles. In my view, both principle and authority establish: (1) that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted; .... (9) that, apart from cases where indictments are preferred and where pleas in bar may therefore be entered, the fundamental principle applies that a man is not to be prosecuted twice for the same crime." (my emphasis)

11. Later at page 1307 Lord Morris added:

"The principle seems clearly to have been recognised that if someone had been either convicted or acquitted of an offence he could not later be charged with the same offence or with what was in effect the same offence. In determining whether or not he was being so charged the court was not confined to an examination of the record. The reality of the matter was to be ascertained. That, however, did not mean that if two separate offences were committed at the same time a conviction or an acquittal in respect of one would be any bar to a subsequent prosecution in respect of the other."

12. Trying to give effect to the approach indicated in this case illustrates the problems that arise due to the different procedural approach to the trial of criminal offences in different jurisdictions. In this country if a defendant is acquitted of an indictable offence by a jury in the Crown Court, then as the law stands at present there is no question of that person being retried for that offence. In special circumstances the Attorney General can appeal. Although the appeal can clarify the law, it cannot result in a conviction being entered against the alleged offender. On the other hand, there are situations where retrials can take place in this jurisdiction. If, instead of being acquitted, the defendant is convicted, there can be an appeal (and regularly is) which results in the conviction being set aside and a retrial is then ordered by the Court of Appeal, Criminal Division. In that situation the defendant has to undergo the stresses of two separate trials. In theory at any rate this process could result even in three trials of an offender. Furthermore, in the case of offences which are tried summarily, there is an appeal by way of case stated to the Divisional Court. Again, the fact that the offender has been acquitted does not prevent this court directing a conviction or a rehearing.
13. On the limited material which is before this court as to the position in Turkey, it seems to me that the fact that a person is acquitted is no bar to an appeal which can result in a subsequent conviction. It will result in a subsequent conviction because, as here, the appeal court will order a retrial.
14. How do we treat that situation under the guidance provided by section 6(3)? The section specifically indicates that there is to be consideration of what would be the situation if the person concerned was charged with that offence in the United Kingdom and sought to rely on the principle of autrefois acquit. Although the position has to be governed on the basis that the person is being charged with the offence in the United Kingdom, it does not necessarily follow that the United Kingdom will treat what has happened in another country such as Turkey in exactly the same way as we would treat what occurred in Turkey if the same facts had occurred in the United Kingdom.
15. What is critical is whether there is more than one prosecution involved. In Turkey, as I understand the position, there is one prosecution, but a prosecution process is not necessarily brought to an end as a result of an acquittal at first instance. That can be followed by a retrial, as will happen to the applicant if he is returned to Turkey. It is not right to regard the applicant as being in double jeopardy because he remained in jeopardy, even though he had been acquitted. He remained in jeopardy, as he was aware, because he knew that there was a right of appeal which was being initiated, and that that right of appeal could result in his being tried again. That being so, it seems to me that the argument advanced by the applicant under section 6(3) is not one which assists him. I accept the submission of Mr Hardy that it is only when the prosecution process reaches finality with an acquittal that the plea in bar is available.
16. We were referred to the unreported decision of this court in Foy v Governor of HMP Brixton (14.4.2000). That dealt with a different situation where there had been a conviction and not an acquittal, and where what was in issue was whether the extradition proceedings should have been regarded as extradition proceedings in respect of somebody who was being extradited to face a charge or extradited as a person convicted, but nonetheless the approach of Kennedy LJ in that case is in accord with the approach that I have indicated to the different question that is before this court.
17. The next issue that it is necessary to consider is the question of delay. As the outline of the facts which I have set out indicates, the period of time which has elapsed since the applicant was first charged is in excess of twenty years. The relevant statutory provision here is that contained in section 11 of the Extradition Act 1989. Section 11(3) provides:

"Without prejudice to any jurisdiction of the High Court, apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that --

....

(b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or

....

it would, having regard to all the circumstances, be unjust or oppressive to return him."

18. There is a distinction between the test to be applied as to whether it would be unjust to return an applicant from that which is laid down where the question is whether it is "oppressive" to return him. The distinction between circumstances which would make it unjust to return an applicant from those where it would be oppressive to do so was considered by Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 2 All ER 634. At page 638 Lord Diplock stated:

"'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 on 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 delay due to such causes are of his own choice and making. Save in 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 responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effects; or, rather, the effects of such 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 s8(3) is based on the 'passage of time' under para (b) and not on absence of good faith under para (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."

19. In relation to that passage it is to be noted that the case put forward by Mr McGuinness here relies primarily on oppression rather than lack of justice, though it is fair to say that it is bound to be more difficult to try an offender after the period which has elapsed here than it would have been if that period had not lapsed (although it has to be remembered that at least for a part of the period which has elapsed the applicant has brought the delay upon himself).
20. At page 644 in Kakis, in regard to oppression Lord Scarman said this:

"The oppression in returning him for trial would arise because during the years that have elapsed since the end of July 1974 events have conspired to induce in the appellant a sense of security from prosecution. Yet during these years he has not led the life of a fugitive from justice. On the contrary, he has settled in this country openly and, as it must have appeared to him, with the assent of, or at the very least without objection by, the authorities in Cyprus."

21. Mr McGuinness says that can be said to be the position which applied to the applicant, at least from shortly after his conviction in this country in 1986.
22. We have been referred to a number of other authorities as to section 11(3), but I consider that the passages I have cited from Kakis adequately reflect the correct approach here.
23. In considering that approach it is important, because of the concluding words of section 11(3), to look at the position as a whole. Although the applicant is not able to rely on a technical defence of autrefois acquit under section 6(3), it seems to me that he is entitled to pray in aid, when the court is applying section 11(3), the fact that when he left Turkey he had been acquitted of the offence, and that acquittal had not then been set aside. He has already undoubtedly undergone one trial. Although because of the different procedures in Turkey this was not the end of the matter, it would be wrong for an English court, in applying section 11(3), not to have in mind the general approach of the courts in this jurisdiction that it as undesirable that a defendant should be tried twice for the same offence, albeit that in certain circumstances that can occur.
24. Having regard to all the circumstances, the facts to which I have referred in relation to the applicant, the conclusion that I have come to is that, after this very substantial period of time, it would be unjust and oppressive for the applicant to be returned to Turkey to face the offences of considerable age with which he is charged. In coming to that conclusion I take into account that those offences which were committed in March 1980, in my judgment, can be regarded as being of a political character.
25. That brings me to the remaining ground relied upon by Mr McGuinness. Here the relevant statutory provision of the 1989 Act is section 6(1) which provides:

"A person shall not be returned under Part III of this Act, or committed or kept in custody for the purposes of return, if it appears to an appropriate authority --

(a) that the offence of which that person is accused or was convicted is an offence of a political character."

26. This ground upon which the applicant relies applies to the offences alleged to have been committed in March 1980, but does not apply to the offences of kidnapping because they are expressly excluded from being regarded as offences of a political character by section 1 and Schedule 1 to the Suppression of Terrorism Act 1978. However, in relation to the offences which are relevant, it is of importance to see what the Government of Turkey say about the offences. I refer to the statement contained in translation in the bundle of documents before us dated 16 May 2000. This indicates that the applicant participated in decisions taken on 14 March at the place of offence at the address in Istanbul, Bodur Sok,

"with an aim to bring to a more active state the right political vision against the left political vision, that the named person was having a position of administration and planner in the organisation, established with an objective to reach to these aims, that he was determined together with METIN GEGIN the persons and places, presenting the targets of the actions and was giving information to the other accused persons, having the mission of the realisation of the actions, as well as has assisted in the realisation of the action of the plundering of the dwelling of the complainant...."

27. Later it is stated:

".... by these acts he has entered to a criminal organisation, that has established a formation, directed within the action of this organisation and having an aim to commit offences, that has executed the functions of the manager within the so established by him formation ...."

28. Then it is stated:

"The maximal punishment, which may be adjudged according to the [relevant] articles of the Turkish Criminal Code in the brought lawsuit due to the offence of establishment of a formation with an aim to commit offences with political and social aims, is a heavy imprisonment ...."

29. There are similar statements. I refer, for example, to page 102 of the bundle which is before us where it is stated:

"TO WHOM IT MAY CONCERN

.... [the applicant] who is accused of forming band to commit crime, kidnapping with political aim and usurpation by weapon."

30. Making allowance for the difficulties caused by the need for translation, it appears to me that the offences with which we are here concerned are ones which at least attract additional punishment, and therefore have additional gravity, because of the political aim with which they have been committed. The applicant himself in his statement says that he joined the National Party of Turkey. He says that he had joined when he was still a student; that he had been elected within the party to sit as a counsellor; and that he helped members of the party and was a conduit between the YNHP and the main party in providing assistance to them. From the general flavour of the material provided by the applicant and by the Government of Turkey it seems to me that it would be right -- indeed the only way in which it would be possible to characterise these offences as being ones of a political character.
31. Accordingly, in relation to some of the offences which I have identified, the applicant is entitled to rely on section 6(1)(a). It follows that I would give judgment in favour of the applicant on his application which is before us and grant the relief which is sought.
32. MR JUSTICE OUSELEY: I agree. In order for reliance to be placed on section 6(3), the applicable conviction has to be final. Finality of that acquittal or conviction is to be judged by the process in the requesting state. In this case the acquittal that had occurred had been overturned on appeal and a retrial was awaited. Where a conviction has been overturned on appeal and a retrial awaited, the plea of autrefois convict cannot apply. Where in this country a magistrates' court acquittal is overturned on appeal and a retrial awaited, there is no acquittal that can be relied on in bar.
33. Here there was simply a continued unresolved jeopardy that arose out of a single prosecution process in Turkey that had not reached finality. That, however, is a very powerful point when it comes to the application of section 11(3). To contemplate a retrial, particularly one following an acquittal some 20 years after the original trial took place, of a man who is now aged 57, and who has been in this country for a number of years, fits readily within the concept of oppression in all the circumstances.
34. It is also important to bear in mind that at least at some point in the early nineties the Turkish authorities were alerted to the potential presence of the claimant in this country because the Interpol bulletin of 1991 draws attention to that fact, and there has been no explanation offered (at least explicitly) for the delay that took place in seeking the extradition of the claimant in the period 1983 to 1991, and from 1991 onwards. Moreover, this is not a case where it can be said that the claimant has always been evading the process. He may have left Germany as extradition was sought, but he has been settled in this country for too long for it to be said that he has made himself so scarce that the Turkish authorities have had no means of finding him.
35. Lastly in relation to the political aspect, whilst, understandably, the claimant, who denies involvement in the offences, does not himself claim that his offences were political, he is nonetheless entitled to draw attention to the material put forward by the Turkish authorities. As my Lord has said, even allowing for some problems in translation, the references to insurrection by weapon give rise very clearly to an assertion that this was a civil armed rebellion in order to change or control the political complexion of the government from one which the claimant disfavoured to another one which would be amenable to his political concerns.
36. For those reasons I agree with what my Lord, the Lord Chief Justice, has said.
37. MR McGUINNESS: My Lords, the applicant is not in fact in relation to this matter in custody, he having been committed on bail. He is not present today. I have to tell the court that he was, I am instructed, arrested at about ten o'clock last night and is at present in custody at Marylebone Police Station, being interviewed in respect of other criminal matters, including deception, possession with drugs with intent to supply and, I am told, possession of counterfeit currency. That is why he does not appear in court today.
38. My Lord, having been that disclosure, nevertheless I ask for costs. The applicant is not in possession of a Legal Services Certificate. He qualifies, subject to the discretion of the court, for an application for costs out of central funds under section 16 of the Prosecution of Offences Act 1985, and on his behalf I ask for such an order.
39. THE LORD CHIEF JUSTICE: Those are the usual orders that are made in a case of this nature? We do not make it against the requesting state?
40. MR McGUINNESS: No, my Lord.
41. MR HARDY: My Lord, that is indeed the case.
42. THE LORD CHIEF JUSTICE: And you are not opposing the application?
43. MR HARDY: I have no locus to oppose it out of central funds.
44. THE LORD CHIEF JUSTICE: Out of central funds.
45. MR McGUINNESS: Thank you, my Lord.
46. THE LORD CHIEF JUSTICE: Thank you very much. As we have indicated, we are grateful for your help.