Gomes (Appellant) v Government of Trinidad and Tobago (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice) Goodyer (Appellant) v Government of Trinidad and Tobago (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice) (Conjoined Appeals)

Under sections 14 and 82 of the Extradition Act 2003, a person who deliberately flees, conceals his whereabouts or evades arrest cannot rely on the resulting passage of time, save in the most exceptional circumstances. Subsequent delay or fault by the requesting state ordinarily leaves the consequences of flight attributable to the fugitive. Communicated abandonment of the prosecution, or a similarly justified sense of security, may provide an exception.

Extradition is unjust where the passage of time makes a fair trial impossible. The court must consider safeguards in the requesting state and presume that a treaty partner will administer justice unless the accused establishes otherwise. Oppression requires more than ordinary hardship. The relevant period does not necessarily end at the initial extradition hearing.

Gomes v Government of Trinidad and Tobago; Goodyer v Government of Trinidad and Tobago concerned conjoined appeals by two men sought for trial in Trinidad on cocaine-trafficking charges. Each had left Trinidad while subject to criminal proceedings and was subsequently found in the United Kingdom. They resisted extradition under section 82 of the Extradition Act 2003, relying on the passage of time, and under section 87, relying on prison conditions and article 3 of the European Convention on Human Rights.

The Divisional Court, in [2007] EWHC 2012 (Admin), allowed their first appeals and remitted both issues. On remittal, District Judge Purdy found beyond reasonable doubt that both men were fugitives. He found neither a passage-of-time bar nor a real risk of article 3 ill-treatment. Their appeals were consequently treated as dismissed.

The certified question was whether fault by a requesting state could permit a fugitive to rely on delay which his own flight had caused, contrary to the approach adopted in Krzyzowski v The Circuit Court in Gliwice, Poland [2007] EWHC 2754 (Admin).

1. Disposition. In the report prepared by Lord Brown of Eaton-under-Heywood as the considered opinion of the Appellate Committee, the Committee unanimously dismissed both appeals. Each appellant was a deliberate fugitive and could not invoke the passage of time since his alleged offences. No injustice, oppression or exceptional circumstance was established.

2. Delay caused by flight. The Committee held that Lord Diplock's rule in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 must be strictly applied. Delay caused by the accused's flight, concealment or evasion cannot ordinarily support a bar under section 82 of the Extradition Act 2003. A requesting state's later loss of a file, dilatoriness, inaction or resource difficulties does not make the state concurrently responsible for the consequences of the fugitive's conduct. The Committee approved the approach in Krzyzowski v The Circuit Court in Gliwice, Poland [2007] EWHC 2754 (Admin) and rejected the contrary approach taken by the Divisional Court in the present litigation.

3. Exceptions and proof. The Committee held that the causal effect of flight might cease where the requesting state deliberately communicated a decision not to pursue the case, or where a comparable circumstance justified the fugitive's sense of security. The express exception for the most exceptional circumstances also remained available; permanent unfitness to plead might provide an example. Because deliberate flight almost automatically prevents reliance on delay, the requesting state must prove it beyond reasonable doubt.

4. Injustice and safeguards. The Committee stated that the essential question is whether the passage of time has made a fair trial impossible. The requested court must consider the safeguards available in the requesting state and should presume that justice will be done by a state participating in reciprocal extradition arrangements. The accused bears the burden of displacing that presumption. The section 82 standard is demanding, but it is not the flagrant-denial-of-justice standard applicable to an article 6 challenge under section 87.

5. Oppression and the relevant period. The Committee stated that ordinary hardship does not amount to oppression, although the gravity of the alleged offence is relevant when evaluating changes in the accused's circumstances. The statutory period begins with the alleged offence, or with the date on which a convicted person became unlawfully at large. It does not invariably end at the initial extradition hearing, although an accused who deliberately prolongs proceedings can expect little benefit from the additional delay.

1. House of Lords: In Gomes v Government of Trinidad and Tobago; Goodyer v Government of Trinidad and Tobago [2009] UKHL 21, the Appellate Committee unanimously dismissed both appeals and held that the appellants could not rely on passage of time caused by their flight.
2. High Court, Divisional Court: Following the remitted determinations, section 104(7) of the Extradition Act 2003 required the appeals to be treated as dismissed. On 22 July 2008 the court certified a point of law of general public importance concerning the competing approaches to the passage-of-time bar.
3. District Judge on remittal: On 24 April 2008 District Judge Purdy found beyond reasonable doubt that both appellants were fugitives. He found no bar under section 82 and no real risk that detention in Trinidad's maximum security facility would contravene article 3 of the European Convention on Human Rights.
4. High Court, Divisional Court: On 22 August 2007, in [2007] EWHC 2012 (Admin), Sedley LJ and Nelson J allowed the appellants' first appeals and remitted the passage-of-time and prison-conditions questions for redetermination.
5. Extradition proceedings: The respective District Judges sent both cases to the Secretary of State, who ordered the appellants' extradition to Trinidad.