Law Reports

Extradition—Request for extradition—Passage of time

Gomes v Government of Trinidad and Tobago Goodyer v Government of Trinidad and Tobago [2009] UKHL 21, All ER [2009] All ER (D) 228 (Apr)

House of Lords, Lord Phillips, Lord Rodger, Lord Brown, Lord Mance
and Lord Neuberger, 29 April 2009

An accused who has deliberately fled from a jurisdiction where his trial is pending cannot generally rely on the passage of time due to the delay of the extraditing state in bringing him to justice as a bar to his extradition.

Edward Fitzgerald QC and Ben Cooper (Instructed by IBB Solicitors) for G. Alun Jones QC and Ben Cooper (Instructed by Kaim Todner) for GO. David Perry QC and Mark Summers (instructed by the Crown Prosecution Service) for the Government of Trinidad and Tobago.

Each of the two appellants, Goodyer, a UK national, and Gomez, a citizen of Trinidad and Tobago, was wanted by the Government of Trinidad and Tobago for trial there on charges of possession of cocaine for the purposes of trafficking.

Their alleged offences were committed at different times and in different circumstances. Each was arrested in the UK following an extradition request by Trinidad. Each unsuccessfully argued before the district judge at their respective extradition hearings, pursuant to ss 79(1)(c) and 82 of the Extradition Act 2003 (EA 2003), that it would be unjust or oppressive to extradite him by reason of the passage of time since his alleged offence.

Following further hearings the appeals were dismissed and the Divisional Court certified that a point of law of general public importance was involved in the decision, and leave to appeal was given by the House of Lords.

Certified question
The certified question concerned whether the law on the passage of time bar to extradition as set out in ss 14 and 82 of EA 2003 was correctly stated by the Divisional Court in an earlier hearing concerning the instant appellants (Goodyer and another v Government of Trinidad and Tobago [2007] All ER (D) 138 (Aug)) or whether the case of Krzyzowski 2007] All ER (D) 366 (Nov)), which considered Goodyer and disapproved of its approach to the passage of time bar, should be followed.

Lord Brown:
The decision of the House of Lords in Kakis v Government of Republic of Cyprus [1978] 2 All ER 634 lay at the very heart of the appeal.

His Lordship considered that decision and held that if an accused like Goodyer deliberately fled the jurisdiction in which he had been bailed to appear, it simply did not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether that was losing the file, or dilatoriness, or, as would often be the case, mere inaction through pressure of work and limited resources. Their lordships would not regard any of those circumstances as breaking the chain of causation (if that was the relevant concept) with regard to the effects of the accused’s own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not “of his own choice and making”.

Sound reasoning
There were sound reasons for such an approach. Foremost among them was to minimise the incentive on the accused to flee. There was always the possibility, often a strong possibility, that the requesting state, for want of resources or whatever other reason, might be dilatory in seeking a fugitive’s return.

If it was then open to the fugitive to pray in aid such events as occurred during the ensuing years—for example the disappearance of witnesses or the establishment of close-knit relationships— it would tend rather to encourage flight than, as had to be the policy of the law, discourage it. Second, deciding whether “mere inaction” on the part of the requesting state was blameworthy or otherwise could be an invidious task. And undoubtedly it created practical problems. Generally it would be clear one way or the other whether the accused had deliberately fled the country and in any event, as was held in Krzyzowski, given that flight would in all save the most exceptional circumstances operate as an almost automatic bar to reliance on delay, it would have to be proved beyond reasonable doubt (just as the issue whether a defendant had deliberately absented himself from trial in an inquiry under s 85(3) of EA 2003).

But it would often be by no means clear whether the passage of time in requesting the accused’s extradition had involved fault on the part of the requesting state and certainly the exploration of such a question might not only be invidious (involving an exploration of the state’s resources, practices and so forth) but also expensive and time consuming.

It was one thing to say that in borderline cases, where the accused himself was not to blame, culpable delay by the requesting state could tip the balance; quite another to say that it could be relevant to and needed to be explored even in cases where the accused was to blame.

His lordship went on to consider the facts and held that neither appellant could rely on the passage of time since their respective offences, nor could there be any question of regarding their extradition as either unjust or oppressive.

The appeals would therefore be dismissed.