Gomes v. Trinidad and Tobago

The House of Lords held that where an accused has deliberately fled the requesting state and thereby caused delay, he cannot, save in the most exceptional circumstances, rely upon the subsequent passage of time as making his extradition "unjust or oppressive" under section 82 of the Extradition Act 2003 (the provision being materially identical to section 14 for category 1 territories). The court affirmed the core principle in Kakis that delay caused by the accused's own flight is normally excluded from the period to be assessed and that culpable or dilatory conduct by the requesting state is irrelevant to that exclusion where the accused himself is responsible for the delay.

The House followed the reasoning in Krzyzowski that Diplock's leading passage in Kakis (that delay caused by deliberate flight cannot normally be relied on) must be strictly applied. The appellants, found to be classic fugitives, could not show the "most exceptional circumstances" required to displace that rule, and their appeals were therefore dismissed.

This case concerned conjoined appeals by two men sought for trial in Trinidad and Tobago on charges of possession of cocaine for the purposes of trafficking. Both appellants were arrested in the United Kingdom following extradition requests and relied on section 82 of the Extradition Act 2003 to argue that, by reason of the passage of time since the alleged offences, it would be unjust or oppressive to extradite them. They also raised human rights objections under section 87 (article 3) about prison conditions in Trinidad.

• Procedural history: Each appellant unsuccessfully challenged extradition before a District Judge. The Divisional Court allowed appeals and remitted question (A) (whether extradition would be unjust or oppressive by reason of the passage of time) to the District Judge to decide afresh. The District Judge re-heard the remitted matters and found both appellants to be fugitives. The Divisional Court thereafter certified a point of law of general public importance under section 114(4) regarding the correct approach to the passage of time bar, and leave to appeal to the House of Lords was granted.
• Relief sought: A bar to extradition under section 82 (passage of time) and incompatibility with Convention rights under section 87 (article 3) in respect of prison conditions.
• Issues framed by the House: Whether delay caused by an accused's deliberate flight can be relied upon under section 82; whether culpable delay by the requesting state can be taken into account where the accused has also contributed to delay; the proper meaning and application of the concepts "unjust" and "oppressive" in s.82; how far domestic safeguards in the requesting state affect the assessment of whether a fair trial remains possible; and the temporal cut-off for the period to be assessed under s.82.
• Reasoning: The House revisited Kakis and treated Lord Diplock's distinction as central: delay attributable to the accused's flight cannot normally be relied upon, save in the most exceptional circumstances. The court rejected the Divisional Court's approach of allowing "concurrent fault" by the requesting state to be used to offset the accused's responsibility for delay. Krzyzowski was preferred as correctly stating the law. The essential question under s.82 is whether the passage of time has made a fair trial impossible; the burden rests on the accused, and domestic safeguards in the requesting state should be presumed adequate absent clear indicators to the contrary. The article 3 complaint had been re-determined on remittal and the District Judge found no real risk of breach in the maximum security facility, a matter the House did not disturb.

The House concluded that neither appellant, having been found to have deliberately absented himself, could invoke the passage of time to bar extradition and dismissed their appeals.

Appeal dismissed. The House held that the rule in Kakis (Diplock's leading passage) must be strictly applied: delay caused by the accused's deliberate flight cannot, save in the most exceptional circumstances, be relied on under section 82 of the Extradition Act 2003. The Divisional Court's approach of treating "concurrent fault" by the requesting state as sufficient to offset the accused's responsibility was rejected; Krzyzowski was followed. The appellants, found to be classic fugitives, failed to show the required exceptional circumstances and so could not establish a section 82 bar.

Appeal from decisions under the Extradition Act 2003 originating in extradition hearings before District Judges; the Divisional Court (Sedley LJ and Nelson J) had earlier allowed appeals and remitted the passage-of-time question to a District Judge (see remittal and re-hearing). The case engaged a later Divisional Court decision in Krzyzowski v The Circuit Court in Gliwice, Poland [2007] EWHC 2754 (Admin), which the House followed. The Divisional Court certified a point of law on 22 July 2008 and leave to appeal to the House was granted; the House delivered judgment [2009] UKHL 21 on 29 April 2009.