CO/3028/2015 
Neutral Citation Number: [2015] EWHC 3030 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Monday, 12 October 2015
 
B e f o r e: 

MR JUSTICE MITTING 

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Between: 
EMBERSON 
Appellant

v 

COUNTY COURT OF BOULOGNE‑SUR‑MER, FRANCE 
Respondent 
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Miss Mary Westcott (instructed by Lansbury Worthington) appeared on behalf of the Appellant

Mr Daniel Sternberg (instructed by the CPS Extradition Unit) appeared on behalf of the Respondent

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J U D G M E N T
1.	MR JUSTICE MITTING:  The appellant is a 34‑year‑old British citizen.  He has no previous convictions other than the conviction in absentia which gives rise to this case.  His extradition is sought by a conviction European Arrest Warrant issued by the Deputy Public Prosecutor of the County Court of Boulogne‑sur‑Mer on 11 April 2014 to serve an 18‑month sentence of detention imposed by the criminal court in Boulogne on 17 January 2013 for two related offences of VAT fraud involving non‑payment of a little over €1.9 million due for the period 1 March to 31 August 2008.  
2.	The appellant was tried in his absence.  His conviction was based on proof to the satisfaction of the court that he was the manager of a cash and carry alcohol warehouse in Sangatte.  He denies having anything to do with the warehouse and asserts that he has been the victim of identity theft, possibly when identity documents were stolen from his car in Essex in 2006.  
3.	The warrant was certified by the NCA on 8 September 2014.  The appellant was arrested on 28 February 2015 at Gatwick Airport on his return from Canada.  He had spent about 18 months (apart from a short interval back in the United Kingdom) in either the United States of America or Canada before that.  It is not suggested that by going to the United States or to Canada he was doing anything other than going about his lawful business.  It is in particular not suggested that he was seeking to escape justice by doing so.
4.	After a contested extradition hearing, District Judge Grant ordered his extradition on 22 June 2015.  The appellant appeals with permission granted by Cranston J.  Three grounds of challenge were advanced before the district judge, only two of which are pursued on appeal: first, that it would be unjust or oppressive by reason of the passage of time to extradite him (see section 14 of the Extradition Act 2003); secondly, that he would not be entitled to a retrial or rehearing at which he would have the witnesses against him examined (see section 20(8)(b)).  The district judge found that the appellant was not a fugitive, but that it would be neither unjust nor oppressive to extradite him and that he would be entitled to a retrial or rehearing at which he could have the witnesses against him examined.  
5.	A good deal of evidence about one or more interviews conducted by English‑speaking officials with the appellant in 2010 or 2011 and correspondence sent to him in French about an investigation into the alleged criminal offences was given.  The primary relevance of this evidence was and is as to whether or not the appellant was a fugitive, an issue which has been decided in his favour.  
6.	It is first necessary to identify what the relevant period of delay was.  Ms Westcott, for the appellant, submits that the district judge appears to have treated the relevant period as that between his trial in France and the extradition request; a short period.  In fact, as Lord Diplock makes clear in Kakis v the Government of the Republic of Cyprus [1978] 1 WLR 779, it is the period between the facts which give rise to the request (namely the alleged offence) and the request which is the relevant period.  That period in this case is either 6 1/2 years up to the arrest or just under 7 years up to the extradition hearing. 
7.	The burden of proof is on the appellant on the balance of probabilities to establish either injustice or oppression.  I deal first of all with injustice, and I do so jointly with the closely related issue of whether or not he would be entitled to have the witnesses against him examined as is required by section 20(8)(b).  It is not known ‑ there is no requirement for it to be stated ‑ on what basis the French prosecutor sought to prove that the appellant was the manager of the warehouse.  If proof was based on witness evidence, it is of course essential that the witnesses can be examined, and in the French procedure confronted, to test their claim that it was the appellant who was the manager.  This cannot be a "fleeting glance" case; identification has to be based on claimed knowledge of the appellant over a significant period of time by a witness or witnesses.  
8.	Ms Westcott faintly submitted that someone described in the warrant as the fully fledged manager of the warehouse might have been managing it from England.  That seems to me, with respect to that suggestion, to be far‑fetched.  The reality is that if to any significant extent the identification of the appellant as the manager of the warehouse was based on eyewitness evidence then, provided that the witnesses are telling the truth, they must know and be willing to state whether the individual with whom they would be confronted (the appellant) was or was not the manager.  Accordingly, the passage of time in relation to evidence of that kind has not, on any reasonable view, had any impact on the likelihood that justice will be done.
9.	If proof was based on documents (for example on the completion of company or employment forms), especially documents which included photographs, and/or employment tax records, then either the documents will speak for themselves or, to the extent that the identification of the appellant is based on the handwriting in which documents were created, can be the subject of handwriting comparison.  A case based in whole or in part on documentation, therefore, it seems to me is unlikely to be affected much, if at all, by the passage of time.
10.	Ms Westcott submits that the appellant may have been prejudiced by an inability to demonstrate, sufficient at least to raise a reasonable doubt in his favour, that he was employed as he says in England in the security industry during the time that he is said to have been a manager in Sangatte.  The difficulty with that submission is that the appellant did not say so in his witness statement.  He might, for example, have said that he worked as a security guard in a variety of nightclubs, that they no longer exist, that their operators can no longer be traced, and accordingly he has difficulty in demonstrating that he worked with them during the relevant period.  That would still leave HMRC records as being available to him.  He might conceivably have said that he worked in the informal economy, and that tax was not properly accounted for on his earnings.  But it was for him to demonstrate and produce evidence that that was so, not for the district judge to speculate as to whether or not it might have been so.  He has not produced prima facie evidence of that kind.  Accordingly, it would have been difficult for the district judge to conclude, and is difficult for me to conclude, that the passage of time has caused him any such prejudice.
11.	Although the basis for the prosecution has only been dealt with laconically in the warrant and in the further information provided, an analysis of the type of information available to both sides of the kind which I have undertaken demonstrates, in my view, that the passage of time cannot have had any material impact on the appellant's prospects of raising sufficient doubt about the prosecutor's case to result in his acquittal if, as he contends, he had nothing to do with this warehouse.  That conclusion might of course have been different if the case against him did depend, as it may do, on eyewitness evidence and he did not have the opportunity of examining the witnesses against him or having them examined, because in those circumstances section 20(8)(b) would require an extradition court to discharge him.  
12.	The issue was considered in Zeneli v Public Prosecutors Office Lyon [2014] EWHC 2239 (Admin).  Ouseley J, giving the first judgment of the court, with whom Elias LJ agreed, noted that in 2003 the Strasbourg court in Abdelali v France (43353/07) held that French procedure on a retrial was not Article 6 compliant because it prevented both fugitive defendants and defendants living abroad from challenging the pre‑trial investigative stage of proceedings, during which confrontations between witnesses and an accused person and the opportunity for the accused to have witnesses against him examined occurs.  In a decision of the Court of Cassation of 16 January 2013, Abdelmajid, the court expressly applied the reasoning of the Strasbourg court in Abdelali, and according to Ouseley J's summary said that French law as applied by the Court of Cassation was now that the accused had to know that he was wanted voluntarily to become a fugitive and to escape legal proceedings in order to lose the opportunity of applying for a nullification of the referral order, i.e. following upon the investigation of the investigating judge.  The district judge concluded on that material that the appellant would have the opportunity of having witnesses against him being examined.  On the material which he had, that finding was, it seems to me, unimpeachable.  
13.	If the appeal had only turned upon that, I would have determined that issue in the manner that I have indicated and dismissed the appeal.  However, the appellant also relies on oppression.  He has adduced fresh evidence, without opposition from Mr Sternberg for the requesting Judicial Authority, about the condition of the grandparents with whom he lives.  Both are in their 70s; both are in varying degrees of frail health; each depend upon each other for support and upon the support of their grandson, the appellant.  Their circumstances command sympathy.  However, by themselves, they do not amount to anything more, as the district judge found, than hardship of the kind that inevitably will occur when extradition is ordered.  Although the district judge considered the issue under Article 8, Ms Westcott wisely makes no submission that he did not therefore also, by necessary implication, make findings upon which the issue of oppression can be properly addressed.
14.	She submits, however, that the district judge should have found oppression to be established by reason of the passage of time for a number of reasons.  Some of them I can deal with briefly, because I agree with the district judge that they do not amount to any ground for refusing extradition.  First, the appellant had been diagnosed with skin cancer in his shoulder and has had two operations to deal with it.  Secondly, he contracted a failed marriage as a result of an introduction over the internet to a woman residing in the United States, a marriage which failed in short order.  Thirdly, his financial position is more precarious than it would have been but for the existence of the warrant, because he has only, by reason of his bail conditions, been able to obtain part‑time rather than full‑time employment.  He relies also on his rekindled relationship with a lady whom he wishes to marry but has not yet done so because these proceedings remain outstanding, and he also relies on the issue of his grandparents' circumstances to which I have already referred.  None of those things, in my judgment, could justify a refusal to extradite on the ground of oppression, still less to require an appellate court, me, to overturn a district judge's decision that extradition should proceed.  
15.	What has troubled me is the question of bail.  The district judge dealt with this issue in his judgment in the following terms.  Having referred to British Embassy guidance, to which Ms Westcott referred in her submissions to him, he said:
i.	"I am unable to say whether there is likely to be considered pending any further hearing that Mr Emberson's failure to act responsibly in respect of the correspondence sent to him by the French authorities has placed him in the unfortunate position whereby he is clearly at much greater risk of being remanded in custody whilst seeking to appeal against conviction or seeking a retrial, rather than being on bail whilst awaiting the original trial."  

16.	He appears to have included that possibility simply under the category of hardship rather than oppression.
17.	I would ordinarily be reluctant to upset the judgment of the district judge on that ground and do not intend to do so without further enquiry.  The requesting Judicial Authority do not appear to have been asked expressly whether, if the appellant were to be extradited to await a rehearing or retrial, it would support or oppose the grant of bail to him; and, if it supported the grant of bail or did not oppose it, what terms it might propose for the grant of bail.  
18.	The grant or withholding of bail (or in French classification "provisional liberty") is of course a matter for the relevant court and is not a decision upon which the prosecutor can bind the judgment of the court.  But no doubt the opinion of the prosecutor, if favourable to the grant of bail upon terms that could accommodate the insistence of the French authorities that the appellant stands trial, but also his own circumstances (i.e. being a man of limited means) would, in my judgment, carry great weight.  It certainly would with me.
19.	In the absence of an assurance to that effect, then it seems to me that the only evidence available to the court is that which Ms Westcott put in before the district judge: the advice of the British Embassy to British nationals faced with criminal proceedings in France.  Under the heading "What provision is there for bail?" the Embassy's advice was: 
i.	"French penal procedure may allow the person charged with an offence or under investigation to remain at liberty (liberté provisoire e.g. remanded on bail). However, because of the difficulty of guaranteeing that the accused will present themself for further investigation and trial if they are not a resident of France, foreigners charged with an offence are almost invariably placed on remand. Applications for bail are also unlikely to be accepted in the case of a person who faces serious charges."

20.	The district judge's conclusion, therefore, that it was likely that the appellant would face difficulties in an application for provisional liberty was fully justified.
21.	Given that it is accepted that he is not a fugitive, even though, as the district judge found, he had dealt foolishly with correspondence in French coming from the French authorities, and given that the appellant has never sought to hide from British or French authorities, and has not in practice had the opportunity of putting his case to the investigating and trial judges, it seems to me that it very well may be oppressive to extradite him to France in circumstances in which he will not be admitted to bail, or where the chances of him being admitted to bail on remand are very small.  
22.	Accordingly, and unusually, this seems to me to be an appropriate case in which at this appellate stage I should ask that the CPS to ask the requesting Judicial Authority for a statement of the stance that they would adopt before the court in France to an application for bail by the appellant.  While the CPS is doing that (and for the avoidance of doubt rather than because I think otherwise), it would be prudent if the requesting Judicial Authority were to confirm that the appellant would have the opportunity of confronting and of having examined any live witness against him, and if not, why not.
23.	For those reasons, I dismiss the ground of appeal under section 14 on the ground of injustice only.  I adjourn determination of the section 20(8)(b) issue and the issue of oppression under section 14.  I will reserve the issue to myself.  I will receive submissions on by when the request that I have indicated might be made will be made, and by when a response to it should be received.  
24.	The ball, I think, is in your court, Mr Sternberg, is it not? 
25.	MR STERNBERG:  My Lord, yes.  I do note my Lord's comments earlier that those representing the appellant will need to take his instructions in relation to what they may or may not be able to offer in terms of bail.  Did my Lord have in mind that that exercise should take place before any request is sent to the French authorities, or in the alternative should they simply be asked to indicate what conditions would be acceptable to them and then it is a matter for the appellant if he can meet them? 
26.	MR JUSTICE MITTING:  I think what would be helpful is if Ms Westcott's side could produce a one‑page statement of the appellant's circumstances for the requesting Judicial Authority to consider, so that it is making an informed decision about its stance on bail.  
27.	Ms Westcott, does that make sense? 
28.	MS WESTCOTT:  It does.  Effectively a shorthand written bail application with suggested conditions. 
29.	MR JUSTICE MITTING:  Yes.  You should also, I think, set out in short order what the appellant's circumstances are, because there is no point in suggesting that bail should be granted on a financial security if his ability to raise a security in a large sum is non‑existent. 
30.	MS WESTCOTT:  Yes.
31.	MR JUSTICE MITTING:  I think he has to face the fact that the French authorities are perfectly entitled to try him on this charge, provided that it is not oppressive to do so.  This is not a get‑out‑of‑jail‑free card; it may amount to securing a provisional liberty card, but not beyond that.  The French authorities are perfectly entitled to try him for this offence and I will support their wish to do so, unless it is oppressive.
32.	MS WESTCOTT:  We can prepare that document by the end of the week if that helps with the timetable.  Mr Sternberg is suggesting six weeks to ensure a response. 
33.	MR STERNBERG:  I want to avoid a situation where we set a short timetable and then I have to come back to the court and say we are waiting. 
34.	MR JUSTICE MITTING:  Quite.  Let us deal with the first.  What is Friday?
35.	MR STERNBERG:  The 16th. 
36.	MR JUSTICE MITTING:  So by 4 pm on Friday the 16th your side, Ms Westcott, will provide a short statement of the appellant's circumstances, financial and otherwise, relevant to bail and his proposal for conditions of bail.  
37.	You then want six weeks after that in which to respond? 
38.	MR STERNBERG:  Yes, because I will have to prepare the request myself.  That can be done during the passage of this week.  It will need to be polished in light of whatever comes from Mr Emberson, and then there will have to be time for translation.  It would be my intention to send a note of my Lord's judgment to the French authorities so they have the full context of the request, and that is why I ask for six weeks.
39.	MR JUSTICE MITTING:  Yes.  Well, that seems to me to be entirely reasonable.  Then if the response is that the prosecuting authority will submit that bail should be available on these terms or will not oppose the grant of bail on these terms, then I think I can deal with it on paper, can I not? 
40.	MR STERNBERG:  Yes. 
41.	MR JUSTICE MITTING:  I would propose to deal with it on paper unless a request comes from either side for a further oral hearing.  The request that I have made for an assurance about the opportunity of confronting and examining witnesses is just that: a request.  My decision is not conditional on answering that, but plainly it will be of assistance to everybody if the Judicial Authority were to answer that question.
42.	MR STERNBERG:  If of course the answer to the question in relation to bail is that the prosecutor is unwilling or unable to support the grant of bail, then I imagine we will have to be re‑listed for further submissions. 
43.	MR JUSTICE MITTING:  Yes, but not for a long hearing.  I will have the transcript of my ruling.  I will then simply have to make up my mind on a difficult question ‑ not legally difficult, but a difficult matter of judgment.  I do not anticipate that either of you will need more than a few minutes each to make submissions about it. 
44.	MS WESTCOTT:  I simply rise.  Did my Lord have in mind a specific format for the short statement?  Something signed by the appellant, or signed by my instructing solicitors?
45.	MR JUSTICE MITTING:  I suspect the French authorities would like something signed by both, would they not?  One shows that it is authentic and the other one shows that it binds the person on whose behalf it is made.  Anything else?
46.	MR STERNBERG:  Not for me. 
47.	MS WESTCOTT:  We can assist with the order if that would help. 
48.	MR JUSTICE MITTING:  Do you want a speedy transcript? 
49.	MR STERNBERG:  If I can have one at public expense I would be extremely grateful. 
50.	MR JUSTICE MITTING:  Being an extradition appeal, there is a transcript anyway.  It is simply can it come reasonably quickly.   
51.	MR STERNBERG:  If it can be expedited.  I am most grateful.