Case No: CO/3459/2005
Neutral Citation Number: [2005] EWHC 2175 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 13 October 2005

Before :

LADY JUSTICE SMITH
MR JUSTICE SIMON
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Between :

	Brian John Beresford	Claimant	
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	The Government of the Commonwealth of Australia	Defendant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
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Mark Summers (instructed by Tuckers) for the Claimant
Miss Clair Dobbin (instructed by CPS) for the Defendent

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Judgment
Smith LJ : 

 Introduction
1.	This is an appeal brought under section 103 of the Extradition Act 2003 (the Act) against the decision of District Judge Evans, sitting at Bow St Magistrates Court on 22nd March 2005, to send to the Home Secretary the case for the extradition to Australia of the appellant, Brian John Beresford.  On 22nd May 2005, the Home Secretary ordered the appellant’s extradition to face trial on charges of sexual abuse which allegedly occurred in Australia during the years 1983 to 1987.   
Allegations of Fact 
2.	The allegations of sexual abuse have been made by F, who is now aged 32, and is the daughter of a woman who, for some years in the 1980s cohabited with the appellant. F is not the appellant’s daughter but, at the material times, he was in loco parentis to her. In December 2002, F made a formal complaint to the police in Western Australia that the appellant had sexually abused her on many occasions over a period of about four years when she was between the ages of 11 and 15.   
3.	The conduct alleged against the appellant would, had it occurred in the United Kingdom at that time, have comprised the offences of rape and indecent assault under the Sexual Offences Act 1956.  It would now be charged as rape, sexual assault and sexual activity with a child under the Sexual offences act 2003. Under the Criminal Code of Western Australia 1913, which was current at the time of the alleged offences, the conduct would comprise offences described as rape, indecent dealing with a girl under 13, indecent assault and unlawful carnal knowledge.  
History of Proceedings 
4.	A warrant was issued for the appellant’s arrest on 19th March 2004 by the Stipendiary Magistrate for the State of Western Australia. An extradition request was signed in Canberra in July 2004 and was presented to the British Government in December 2004.  Australia is designated as a Category 2 territory for the purposes of the Act.  Accordingly, Part 2 of the Act applies to the handling of the request.  On 21st January 2005, the Home Secretary issued a certificate under Section 70 of the Act and sent the case papers to the District Judge at Bow St Magistrates Court. A warrant was issued for the appellant’s arrest and was executed on 14th February 2005. 
5.	The extradition hearing commenced on 15th March 2005 and was adjourned to 22nd March.  Because Australia has been designated under section 84(7) of the Act, it did not have to demonstrate that there was evidence sufficient to make out a prima facie case that the person sought to be returned was guilty of the offences to be charged.  Section 78(4) of the Act required the requesting state to provide evidence to satisfy the English Court that the offences charged were ‘extradition offences’, as defined in Section 137.  That meant that, in the case of offences alleged to have been committed within the Category 2 territory, as here, the requesting state had to describe the conduct alleged so that the English Court could determine whether the conduct amounted to an offence which, under English law, would be punishable with at least 12 months imprisonment or other detention.  The requesting state had also to provide evidence that the conduct is punishable to at least that extent in that state. At the hearing in March 2005, the district judge’s first task was to decide whether the request satisfied the relevant technical requirements.  It was not suggested by the appellant’s representatives that the request was in any way defective.  It appears that the District Judge was satisfied that the request was in order.  His next task was to consider, under the provisions of Section 79 of the Act, whether there was any bar to the appellant’s extradition by reason of the rule against double jeopardy, extraneous considerations, the passage of time or hostage taking considerations.  No submissions were made on the applicant’s behalf under section 79.  Accordingly, the District Judge ordered that the case papers be sent to the Home Secretary pursuant to section 87(3) of the Act.  He did not give extended reasons for his decision.  No criticism is made of that.  There was no need for him to do so, as there were no contentious issues for him to decide.  
6.	Before the Home Secretary considered whether or not to order the appellant’s extradition, the appellant made representations as to why he should not be extradited. Notwithstanding that, the Home Secretary ordered his extradition. It appears that shortly thereafter, the appellant instructed new solicitors.  This appeal was lodged, as of right, against the District Judge’s decision.  
The Notice of Appeal 
7.	The notice of appeal sought to raise four points that had not been raised before the District Judge.  Three of them alleged that there were technical defects in the Government of Australia’s request such that the requirements of section 78 were not satisfied.  The fourth ground alleged that there was a bar to extradition in that, due to the passage of time since the alleged abuse is said to have taken place, it would be unjust or oppressive to extradite the appellant to face charges in relation to events so long ago. 
8.	On receipt of the notice of appeal, and in the light of the allegations that the request had been defective, the respondent re-examined the material it had submitted. Shortly before the appeal hearing was due to begin, the respondent provided further affidavit evidence which remedied the alleged defects.  At the start of the hearing of the appeal, Mr Summers, who appeared for the appellant, accepted that, with the new material, the requirements of section 78 were satisfied.  He withdrew the first three grounds of the appeal.  
9.	Mr Summers then sought to introduce a new ground which had emerged from the further evidence filed by the respondent.  Miss Dobbin, who appeared for the respondent did not object, despite the fact that the point was not covered in the appellant’s skeleton argument and she had not had the opportunity to consider it in advance of the hearing.  We permitted Mr Summers to argue the new ground and it is convenient to deal with it first, before considering the main ground of appeal, the effect of the passage of time. 
The New Ground of Appeal   
10.	As a new ground of appeal, Mr Summers contended that, in respect of one particular allegation of abuse, there was evidence that the description provided in the original request was incorrect and that, if he had known the full facts, the District Judge would not have been satisfied that this allegation amounted to an extradition offence.  This allegation was that the appellant had had sexual intercourse with the complainant in the presence of her mother.  This is said to have occurred in 1984 when the complainant was aged 11.  The description of the conduct set out in the request was apparently based upon the complainant’s witness statement.  It was said that the complainant was lying naked on top of the bed in which the appellant and the complainant’s mother usually slept.  The appellant crouched over the complainant and tried to put his penis into her vagina but had difficulty in inserting it. The complainant tried to prevent him by clenching her buttocks. Only the tip was inserted.  On the appellant’s instruction, the complainant’s mother, who was by the side of the bed, took hold of the penis and tried to push it inside.  That description was of conduct which was plainly capable of amounting to an extradition offence.  However, it had been alleged in the notice of appeal that this alleged offence could not be proved in Australia without corroborative evidence from some independent source.  This had been the third ‘technical’ ground of appeal. In response to that allegation, the respondent produced evidence that corroboration was not now necessary for proof of this offence.  That evidence had been accepted by the appellant and the ground of appeal abandoned.  However, the respondent also contended that, in any event, corroboration was available. A statement had been taken from the complainant’s mother, who confirmed that, on an occasion in 1984, she had been present in the bedroom when her daughter was naked on the bed. The mother said that she saw the appellant expose his erect penis to the complainant and that it was ‘fondled’. The mother also stated that the appellant had admitted to her in 1984 that he was abusing the complainant and that he wanted to be ‘the one to take her virginity’. 
11.	Mr Summers accepted that there had been no obligation on the respondent to disclose the content of the mother’s statement or indeed any evidence of the offences; a description of the conduct alleged was enough to satisfy the requirements of the Act. However, now that the respondent had chosen to disclose evidence, he submitted that the court must have regard to it.  He contended that the mother’s evidence was inconsistent with the complainant’s and that, as there were two different accounts of the incident, we could not be satisfied that the conduct amounted to an extradition offence.    
12.	Mr Summers referred us to R (Castillo) v Kingdom of Spain and another [2005] 1 WLR 1043, a case under the Extradition Act 1989, involving a request for extradition made under the European Convention on Extradition. Under the relevant provisions, the requesting state was not obliged to produce evidence to show a prima facie case; it had only to describe the conduct alleged.  The offences charged included attempting to cause grievous bodily harm and attempted murder. However, the Court had been given access to the dossier compiled by the Spanish Court responsible for the investigation and it was apparent that the description in the request of the conduct alleged was not a fair or accurate reflection of the evidence in the dossier.  There was no basis in the dossier on which the applicant could properly have been charged with attempting to cause grievous bodily harm or attempted murder.  The question arose as to whether this mis-description gave rise to an inference that the Government of Spain had acted in bad faith.  If it did, the Court could refuse extradition under section 11(3) of the 1989 Act, which provided a bar to extradition if the accusation against the person sought was not made in good faith in the interests of justice. The Divisional Court (Thomas LJ and Silber J) held that the mis-description did not give rise to an inference of bad faith. In any event, as the other allegations in the request had been fairly and accurately described, the applicant would not be discharged.  Mr Summers accepted that the case of Castillo was not on all fours with the present case. However, he drew attention to a passage from the judgment of Thomas LJ, who, at paragraph 43, stated that in cases in which it is not necessary for the requesting state to make out a prima facie case, it is of the utmost importance that the description of conduct alleged should be framed with the greatest care.  This is essential for the protection of the person sought.  Mr Summers sought to persuade us that the existence of two different accounts of an allegation demonstrated, if not bad faith, at least a lack of clarity and certainty and submitted that we could not be satisfied this allegation amounted to an extradition offence.  
13.	Miss Dobbin submitted that the new material was irrelevant.  There was no need for the mother’s evidence to have been disclosed.  The description of the conduct given in the original request was sufficient to justify the conclusion that it amounted to an extradition offence.  There was no suggestion that the description of the conduct in the original request did not accurately reflect the complainant’s evidence. The fact that other evidence existed which did not fully support the complainant’s account did not in any way invalidate the original description. In any event, the mother might have been unwilling to give a frank account of her own role in the matter.  
14.	In my view, this new ground of appeal is misconceived.   It is accepted that an Australian extradition request does not have to provide evidence or to show a prima facie case.  It need only describe the conduct alleged.  That has been done and there is no suggestion that the complainant’s evidence has not been fairly and accurately reflected in the request.  The conduct described amounts to an extradition offence.  The fact that a witness (who might or might not be called) does not fully support the complainant’s evidence does not undermine the propriety of the request.  I would reject that ground of appeal. 
The Main Ground of Appeal 
15.	The main ground of appeal is that extradition would be unfair or oppressive because of the delay since the offences are alleged to have taken place.  Mr Summers submitted that there had been unreasonable and culpable delay both on the part of the complainant, who had delayed in making a complaint, and also on the part of the authorities in Australia.  As a result of this delay, it will be impossible for him to have a fair trial. Accordingly his extradition would be unjust.    
16.	The respondent has provided evidence describing the course of events and seeking to explain and justify the passage of time before extradition proceedings were begun.  As I have said, the complainant did not make her first official complaint until December 2002.  The respondent explained that the complainant had felt unable to make a complaint until that time.  Mr Summers accepted that it is very common for persons who have been sexually abused as children to delay making a complaint for many years after the events; often a complaint is not made until the complainant is well into adulthood.  He acknowledged that there are psychological reasons why this delay occurs and he did not seek to challenge the respondent’s claim that such reasons existed in this case.  The respondent had also explained that one reason why the complainant had been reluctant to come forward was that she was concerned that her mother might be prosecuted for aiding and abetting the sexual offence which had taken place in her presence.  Mr Summers accepted that, for many complainants that would be an understandable concern.  However, he contended that this complainant was in an unusual position; she had become a police officer in 1991 at the age of about 20. She would have been in a better position than most to find out that it is possible to arrange immunity from prosecution. Yet she had not acted until December 2002.  The appellant had filed evidence suggesting that, although the complainant had not made an official complaint until 2002, she had in fact made allegations about him at an earlier date.  Mr Summers did not seek to rely on that evidence, wisely, in my view, as it comprised no more than supposition.  Mr Summers accepted that he could not criticise the complainant for not coming forward while she was a young recruit in the police force. But he submitted that, with the passing years, it had become increasingly unreasonable for the complainant to delay in making her report.  This had resulted in several years’ culpable delay. 
17.	I, for my part, am not satisfied that the complainant has acted unreasonably or that any delay on her part is culpable.  I do, of course, accept that the delay has been long and that this could have a potentially adverse effect on the appellant’s position. I will return to that issue in due course.  
18.	Mr Summers also alleged that there had been culpable delay by the respondent. However, he could not challenge the evidence provided by the respondent describing the various stages of the proceedings.  When the complainant made her report in December 2002, it was investigated. It was necessary for immunity from prosecution to be arranged for the mother. The case was referred to the Director of Public Prosecutions (DPP) on 19th May 2003.  In due course, immunity was granted and the mother provided a witness statement on 28th September 2003.  On 9th January 2004, a formal application was submitted to the DPP for extradition proceedings to be commenced.  On 15th March 2004, the application was approved and a warrant for arrest was issued four days later.  The request was submitted to the UK authorities in December 2004 and a certificate was issued by the Secretary of State on 21st January 2005.  Mr Summers drew attention to the fact that the Extradition Act 2003 came into force on 1st January 2004 and, on that day, Australia became a designated Category 2 territory.  It had been known for some months that this would happen.  Before 1st January 2004, the Australian Government would have had to support a request with a prima facie case. After that day, it did not.  Mr Summers invited the Court to infer that the respondent had deliberately delayed issuing the request in order to avoid the need to present evidence to show a prima facie case. 
19.	I, for my part, do not consider that there has been any significant delay by the Australian authorities. Still less does there appear to be any sound basis on which it could be held that there has been any deliberate delay. It is true that the case does not appear to have proceeded as a matter of urgency and the effect of the totality of the long passage of time must be considered. 
20.	As a result of this passage of time, submitted Mr Summers, the appellant will be unable to defend himself if returned to face trial.  The appellant has filed evidence in which he claims that witnesses who would have been able to give relevant testimony are no longer available.  Also, he claims that documentary evidence which would have been available to him if his trial had taken place some years ago has now been destroyed.  I do not propose to set out this evidence in detail.  Suffice it to say that none of the evidence which the appellant claims has been lost could demonstrate his innocence.  At its highest, the evidence these people might have been able to give appears to me to be peripheral to the issues in the case.   
21.	Miss Dobbin submitted that the appellant’s position, having to defend himself long after the alleged events occurred, is not significantly worse than it would be if the appellant had remained in Australia and had been charged soon after the investigation had been completed in late 2003.  The respondent has filed evidence explaining that, in Australia, the courts have the power to stay a prosecution if there has been such delay as would render it impossible for the defendant to have a fair trial.  It is apparent from the evidence that the jurisdiction is similar to that which operates in the courts of England and Wales. If the appellant had remained in Australia and had been charged with these offences, he would no doubt have submitted to the trial judge that the delay was such that he could not have a fair trial. If the appellant is returned to face trial, it will still be open to him to seek a stay on the ground that a fair trial is no longer possible. Save for the fact that a further two to three years have passed, the appellant’s position is the same as it would have been had he remained in Australia. Given that the delay before complaint has been so long, the additional delay caused by extradition is slight.  In any event, if the appellant is returned to face trial, the totality of the delay and the effect on the fairness of trial will be considered by the court.    
22.	Miss Dobbin submitted that the question for this court is whether, by reason of the passage of time, it would be unjust or oppressive to extradite the appellant. The question is not whether it would be unjust for him to be tried.  That this is the correct approach was confirmed in Woodcock v The Government of New Zealand [2004] 1 WLR 1979 (at page 1985 D-H). Accordingly, submitted Miss Dobbin, given that there is jurisdiction in Australia for the court to stay the proceedings in an appropriate case, it is not for this court to attempt to assess whether the passage of time has made it impossible for there to be a fair trial. That is a task for the trial judge, who will be in a far better position to make that judgement than this court can be.   Miss Dobbin also reminded the court that, in England and Wales, the Court of Appeal (Criminal Division) could and sometimes did allow an appeal and set aside a conviction on the ground that, with the benefit of hindsight, it appeared that the accused had not had a fair trial as the result of delay.  She submitted that such would also be the case in Australia.   
23.	In response to these submissions, Mr Summers submitted that the evidence about the way in which the jurisdiction to stay proceedings is exercised shows that it is very limited and that there is virtually no chance that an application to stay will succeed.  I accept that the evidence suggests that a stay is rarely granted where the offences to be tried are very serious. However, that is also the case in England and Wales. The grant of a stay on the ground of delay is rare.  He also pointed to the absence of any evidence about the approach of the appellate courts in Australia to an appeal based on an allegation that the trial had been unfair due to delay. However, it is true that there is no evidence on this specific point. I did not understand him to suggest that it would not be open to the appellant to launch an appeal on such a ground in the event that he was tried and convicted.     
24.	Mr Summers also submitted that the case of Woodcock was very different from the instant case on its facts.  Although the court had ordered extradition in that case, it should not follow that it would be just to return this appellant.  I, for my part, accept that there are some differences between the facts and circumstances of the two cases. The detailed differences do not matter because the principle is clear. The question for us is whether, by reason of the passage of time, it would be unjust or oppressive to return the appellant to Australia to face trial.  It seems to me that Miss Dobbin is right to say it is not for this court to seek to make a fine judgment about the effect of the loss of defence evidence on the fairness of the trial. That should be a matter for the trial judge. If the appellant had been able to point to some cogent piece of evidence which would, if available, have provided a defence, I for my part, might have been prepared to hold that it would be unjust to return the appellant.  But that is not this case.  As I have said, the evidence which the appellant claims has been lost by the passage of time is peripheral to the issues.  That is not to say that the evidence might not have been of some assistance to him.  But, in my view, the effect of its loss must be for the trial judge to assess.  
25.	In my judgment, the appellant has not shown that, by reason of the passage of time, it would be unjust to return him to face trial in Australia. The appellant has not raised any ground on which this court might find it to be oppressive to return him to face trial. Accordingly, I would dismiss this appeal. 
26.	Simon J.  I agree.