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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Giles Richard Morton Carlyle-Clarke, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 1438 (Admin) (16 June 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/1438.html Cite as: [2006] EWHC 1438 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th June 2006

Mr Justice NEWMAN :

1.                   We have before us an application for permission to apply for judicial review and an application for issue of a writ of habeas corpus.  Both applications were adjourned to an oral hearing by Sir Michael Harrison on 19^th January 2006.
2.                   The grounds on which relief is sought are dated 16^th December 2005 and relate to a decision letter dated 28^th October 2005.  The Secretary of State for the Home Department (SSHD), in the exercise of his discretion under paragraph 8(2) of Schedule 1 to the Extradition Act 1989, decided:

(1)               that it would not be unjust or oppressive by reason of the passage of time to return the claimant to the United States of America for trial; and

(2)               that he should order the claimant's extradition.

3.                   The claimant is a 46 year old British national who is wanted for trial in Alabama on charges in connection with large-scale importation of drugs into the USA between 1986 and 1988.
4.                   It is alleged that the claimant participated in a conspiracy, his role being to captain shipping vessels aboard which drugs were smuggled.  On one occasion it is alleged in early 1987, 8,000 pounds in weight of cannabis was smuggled from Jamaica to Florida.  In May 1988 the United States Drugs Enforcement Agency (DEA) commenced an investigation in the Southern District of Alabama, in the course of which a quantity of cannabis and documentary evidence was seized.  In the course of this search in 1988 among the items seized were photographs taken of the wedding in Great Britain of an alleged co-conspirator, Robert Delisser.  The claimant was Delisser's best man at that wedding and one of the photographs shows the claimant in that role at the wedding.
5.                   The search and seizure and subsequent investigation identified about 80 people as being involved in the smuggling and distribution scheme in connection with the drugs.  Over the next few years investigative leads culminated in numerous indictments being filed.  Two alleged co-conspirators of the claimant were indicted on 1^st March 1990 and arrested later that month.  One of these, a Mr Rigsby, agreed to co-operate with the investigating authorities and it would appear first implicated the claimant as a participant in the scheme from information given in July to August 1990.  Others arrested included Howard O'Neal, Michael Beauchemin and Herbert T. Baskin.  An indictment was returned against Mr Delisser on 19^th August 1988.  An arrest warrant was issued.  An application was made to the Cayman Islands government for the extradition of Delisser to the United States.  Delisser had been named by Howard O'Neal and in the course of the defence case in the extradition proceedings in the Cayman Islands, the claimant supplied an affidavit in support of Delisser's case.  The affidavit gave the claimant's name and address in Dorset and his temporary address in Antigua.  It was sworn at St John's in Antigua on 6^th March 1989.  The senior magistrate in the Cayman Islands ruled in favour of the United States government, but Delisser, whilst released on bond, absconded before he could be extradited for his trial.  Beauchemin also implicated the claimant in the conspiracy both in Jamaica and in the United States in or about May 1990.  Beauchemin said that he had been introduced to the claimant by Robert Delisser and that it was agreed that the claimant should deliver 200 pounds of marijuana using the yacht "Can Can".  He also implicated the claimant in a subsequent importation from Jamaica to St Petersburg, Florida as well as in the inspection of a cargo in Elberta, Alabama.
6.                   These events led to the claimant being indicted in the United States of America on 26^th June 1992 and a warrant for his arrest being issued by the US authorities on 6^th July 1992.
7.                   On 10^th December 1997 the claimant was arrested in the United Kingdom pursuant to a provisional arrest warrant in respect of his extradition to the United States of America.  On 20^th February 1998 the claimant was granted conditional bail by Bow Street Magistrates' Court and on 19^th March 1998 the SSHD issued an authority to proceed.
8.                   On 4^th January 1999 the claimant was committed at Bow Street Magistrates' Court after a prima facie case had been found to exist.
9.                   On 19^th January 1999 the claimant applied for a writ of habeas corpus, but the application was withdrawn on 10^th November 1999.  Representations dated 13^th December 1999 and 1^st February 2000 were put forward on behalf of the claimant carrying contentions as to why he should not be extradited to the United States of America.  These were responded to in a letter from the SSHD dated 4^th July 2002.  Thereafter further representations were made on various dates between 6^th September 2002 and 7^th July 2003.
10.               These decisions came under challenge by way of judicial review and a judgment was given in the Divisional Court on 26^th November 2004.  The grounds raised in this application for leave to apply for judicial review repeat, to a very large extent, the grounds which were considered by the Divisional Court in November 2004.
11.               It is clear from the above summary that since a judgment of this court still stands which has already determined that the period of delay to the date of the judgment did not preclude the claimant's extradition, for the argument now advanced on behalf of the claimant to succeed fresh evidence must be shown to exist, which was not before the Divisional Court in November 2004, which arguably requires this court to revisit all the circumstances of the case, and to determine whether it would be unjust or oppressive to allow the claimant to be extradited to the United States of America.

The Fresh Material

12.               The claimant maintains evidence came to light in February 2005 which undermines the previous decision of the SSHD to order the claimant's extradition and the decision of the Divisional Court which upheld it.  At that time the claimant proposed making an oral application for leave to appeal to the House of Lords against the Divisional Court judgment dated November 2004.  However, it is said, that once possessed of the evidence which came into the possession of the claimant's lawyers in February 2005, the claimant, no doubt on advice, decided to abandon the application for leave to appeal to the House of Lords and decided, instead, to advance fresh representations.  Those representations were dated 15^th February 2005.  They were contained in a 14-page note with accompanying attachments and, in particular, included an affidavit of a lawyer in the United States, Mr Thomas Jefferson Deen III, dated 7^th February 2005 and a one-page affidavit from the same deponent dated 14^th February 2005.

Mr Deen's evidence

13.               On 10^th January 2005 Mr Deen received instructions from solicitors acting for the claimant to ascertain the provenance of the wedding photograph which had been included in the extradition papers exhibited to an affidavit of Agent James Baker in 1998.  The upshot of Mr Deen's evidence was that he had had a conversation with Gloria Bedwell, the agent in charge of the United States application for the extradition of the claimant, who had told Mr Deen, in response to a question from him, that the photograph of Delisser and the claimant had been in the possession of the authorities since 1988.  It is this admission on the part of Gloria Bedwell which founds the present application.

The Issue in connection with the Wedding Photograph as it had been considered by the Divisional Court

14.               The existence of the wedding photograph and the fact that it had been in the possession of the US authorities since May 1988 formed part of the attack mounted in the judicial review proceedings concluded in November 2004.  It formed part of the case alleging culpable delay, involving, it was said, lack of action on the part of the US authorities and a failure on their part to inquire into the whereabouts of the claimant, notwithstanding that his address had been known to them from the contents of the affidavit used in the Delisser extradition proceedings in the Cayman Islands.  The view of the SSHD was that the United States authorities had not been guilty of an excusable or culpable delay.  His decision was upheld by the Divisional Court both in respect of the absence of inquiry following the affidavit from the claimant and any lack of action which it was argued should have been taken having regard to the existence of the photograph.  It was argued by the claimant that the US authorities had material from the outset "which they could and should have used to commence their investigation into the complicity of the claimant and to trace him once his involvement became clear from information provided by his accomplices" (paragraph 70 of the judgment of Pitchford J.).
15.               The suggestion that the authorities should have known of the existence of the claimant and his friendship with Delisser was developed by reference to parts of the record of the application for extradition of Delisser.  However, it has to be remembered that the focus of attention in those proceedings was directed towards the complicity of Delisser with two others, namely Billy and Ruby Williams.  The evidence seized in 1988 included an invitation to the Williams to attend the marriage of Delisser to Serena Williams Rees, at which wedding the claimant was the best man.  Pitchford J. noted (see paragraphs 79 and 80 of the judgment) that it was likely that Mr Smellie, counsel for the United States, had not been aware that the claimant was a friend of Mr Delisser and an alleged conspirator with him, otherwise he would have had a lot more to say about reliability of the supporting evidence put forward by the claimant in his affidavit.  The varying trails of inquiry and argument advanced on that occasion by Mr Alun Jones QC to support the allegation of knowledge on the part of the US authorities that they had a photograph of the claimant and reason to believe that he was a co-conspirator in their possession from 1988 led the court to conclude that, whatever their knowledge, it would assume that its significance had not been appreciated.  In paragraph 81, the court observed:

"In my view this serves to emphasise that if the investigating team was in fact in procession [possession] of information about the claim, which I have assumed for present purposes they were, they had not appreciated its significance".

            Having made this assumption of knowledge and then dismissed it as being of no consequence to the allegation of culpable delay, in these proceedings Mr Qureshi has submitted that even if fresh evidence is now available going to the question of knowledge, it cannot support the claim to re-open the issues.

16.               In my judgment, on first reading, it is fair to say that the conclusion in paragraph 81 is sufficient to put the issue presently raised at rest and to be a firm finding against the case mounted by the claimant.  On first reading, therefore, it was not immediately apparent why in paragraphs 82-86 the judge went on to deal with the specific allegation that Miss Bedwell was in possession of the photograph in 1988 (see paragraph 93).  Such considerations led me to observe, at the hearing, that there was an "opaque" quality to this part of the judgment.  It caused the court to reserve its judgment so as to read Pitchford J's judgment at greater leisure.  The constraints on time did not permit a short adjournment for that purpose.  This observation has led to the court being supplied with a complete transcript of the argument before the Divisional Court, preceded by a request for judgment to be delayed until the transcript was available.  This occurred some weeks after the hearing had been completed.  Regrettably this has given rise to delay in this judgment being handed down.
17.               Upon a more considered reading of the judgment and the transcript the position is clear.  The appellant had mounted an attack on the probity of Miss Bedwell and an allegation that the SSHD's decision to accept the USA authorities' explanation was "unduly credulous".  For that reason, Pitchford J. embarked upon a consideration of the argument advanced by Mr Jones and concluded that the attack had been mounted "upon an incomplete and mistaken appraisal of the evidence" (paragraph 105).
18.               It can be seen, therefore, that in this part of the judgment the Divisional Court rejected the assertion in connection with the photographs and concluded that there was no evidence that an identifying photograph had been in the possession of the authorities as a result of the seizure in 1988.
19.               Thus it is that Mr Jones now submits that the fresh evidence undermines the SSHD's explanations as given in July 2002 and November 2003 to the effect that the US authorities had a reasonable explanation for the delay in requesting extradition and undermines the finding of the court, so far as it can be said, that the court concluded that the photograph was not in the possession of the US prosecuting or investigating authorities before 1995.  It is true that the "admission" by Miss Bedwell to Mr Deen allows the point to be made but, so far as the case of delay is concerned, paragraph 81 still stands as determinative.  So far as the related point of bad faith is concerned, that stands to be determined by the US authorities' response to the new allegation and the SSHD's decision on the fresh representations in that regard.

The USA's response to the fresh evidence

20.               The US authorities were provided with a copy of Mr Deen's evidence and, by letter dated 25^th February 2005, Gloria Bedwell on behalf of the US authorities provided her response.  In essence, she stated as follows:

"We stand by our previous representations that the delay has been satisfactorily explained.  Although we had the wedding photographs since the search warrant and their evidentiary value was obvious to us, we still do not know that the person in the photograph was Giles Carlyle-Clarke until after Agent Baker returned from his trip to the United Kingdom in 1995.  When he got the passport photograph of Clarke, we were able to make a positive identification.  Of course at that time, we realized that Giles Carlyle-Clarke was also in the wedding photograph.  According to Agent Baker, some of the cooperating witnesses had previously identified a person called "Giles" as a member of the conspiracy.  Even after he discovered that Giles' last name was believed to be Clarke, as we previously noted in one of our many previous supplemental responses, Agent Baker believed that Clarke was in the United States.  He obtained a drivers licence photograph of a Giles Clarke in Florida, and the person in that photograph was not the person we were seeking.  We did all we could to ensure that our identification of the defendant was solid to avoid prosecution of the wrong person.  I am certain that if we had not taken these steps to ensure the accuracy of the identification of the defendant, Clarke's lawyers would be castigating us for that now, too.  The truth is that we did not know who Clarke was or where he was until after Agent Baker got the information from the United Kingdom in 1995. Period".

21.               Mr Jones now maintains that the latest explanation given by Miss Bedwell fails to explain why she had not disclosed the fact that she had the photograph earlier, for example, in her letter of 8^th January 2003.  Having regard to the broad front on which the attack was earlier based, I am not surprised at all that even if she had it in mind, she did not see it as critical to her response to acknowledge the photograph had been seized in 1988.  It has always to be remembered that responses to allegations will be driven by the focus and content of the allegations which have to be met.  The representations which have been advanced throughout the history of this matter have been unduly lengthy and, at times, intractable.

The Fresh Representations

22.               The fresh representations were sent to the SSHD under cover of a letter dated 15^th February 2005.  The letter was accompanied by a 14-page detailed note.
23.               The claimant's solicitors contended, among other things, as follows:

(1)               The evidence had only become available on 5^th February 2005 and militated against extradition of the claimant to the USA.

(2)               The undertaking proffered by letter dated 2^nd December 1999 (the undertaking) not to invoke paragraph 10 of Schedule 1 to the Extradition Act 1989 was either limited (and had expired by virtue of the effluxion of time) or that the release should be granted in respect thereof.

(3)               An application for the release of full communications made between the Home Office and the US Department of Justice.  The claimant invoked the provision of the Freedom of Information Act 2000 which came into force for relevant purposes on 1^st January 2005.

(4)               That article 8 ECHR had not been properly considered in the context of the decision.

(5)               That the SSHD had applied the wrong approach to the question of the passage of time in reaching the decision.

(6)               That copies of the communications passing between the Home Office and the US authorities including print-outs of emails, copies of any facsimile letters, attendance notes or records of relevant conversations between the Home Office and the US authorities were sought.

24.               The representations in connection with the evidence issue covered the ground which has already been recited above.  It was specifically claimed as follows:

"23. If the new evidence is true, there is no basis for concluding that any of the disputed assertions of the US authorities to which the Home Secretary referred in the first decision letter, were reliable.  All protestations that they could not trace the defendant fall together.  If the photograph was shown to the accomplices in 1988-90, they would be identified the defendant.  The wedding invitation, which was unquestionably in the possession of the US authorities in 1988 … would have led to the simplest of inquiries in Abergavenny, and thus to the defendant in 1988-9, even before he swore his affidavit in the Cayman Islands proceedings in 1989, giving his home address."

25.               It was submitted that Pitchford J. would not have reached the conclusion that he did in paragraph 64 of his judgment in connection with the selection of priorities by the American authorities and it was submitted (i) that the US investigators and prosecutors were guilty of culpable delay and (ii) that the US investigators and prosecutors had misled the Home Secretary and the High Court.

The SSHD's response

26.               The SSHD responded by stating that he had carefully considered the contents of the note and the evidence and what had been said previously by the US authorities and that he considered the response of the US authorities.  He stated that he was satisfied and remained satisfied that the US authorities had not been guilty of culpable delay, which was the core contention being advanced on behalf of the claimant, underpinned by a serious allegation of bad faith as against the authorities.  In any event, he concluded the lapse of time was not such as to render it unjust or oppressive or otherwise unfair to return the claimant to the United States of America.  He was satisfied that the claimant had not displayed any clear or compelling material to support the accusation which had been made of bad faith and that he was satisfied that the US authorities did not appreciate the evidential significance of the wedding photo until after 1995 as stated in the US response.
27.               In my judgment Mr Jones presses for too much in connection with these events.  His argument does not arguably undermine the conclusion reached by Pitchford J. and expressed in paragraph 81 of his judgment.  The judge's analysis of the priorities which were being addressed between 1988 and 1995 is not significantly or in any material way undermined by the fact that the US authorities had the photograph in their possession.  Indeed the fact that they did have it in their possession in 1988 and did not realise its significance is in itself some form of confirmation that, when other issues in connection with a large conspiracy were being thoroughly investigated, inquiries had not given rise to any awareness on their part as to the identity or whereabouts of the claimant.  It would be absurd to suggest that where it is plain that a massive and careful investigation took place the authorities deliberately failed to follow a trail of inquiry to the claimant.  If not deliberate but culpable because they should have realised the significance of the photograph, like Pitchford J, I am entirely satisfied that, before its significance was likely to become apparent, more information was required.  In my judgment, the attack that Mr Jones makes gets no where near establishing an arguable case of bad faith on the part of the authorities.  It follows that I can see no basis for impugning the SSHD's conclusion that there was no bad faith.  There being no bad faith on the part of the US authorities, the SSHD considered the explanation that he had had by way of response from Miss Bedwell and he accepted it.  No sufficient argument has been advanced in this court to challenge the validity of the SSHD's conclusion in this regard and the propriety of him deciding to accept Miss Bedwell's explanation.  The reasons she gave are perfectly capable of dispelling culpability.  They are consistent with the conclusion reached by Pitchford J. and I can see no basis for concluding that the SSHD was acting unreasonably when he accepted the explanation.

Miscellaneous Points

28.               In the light of my conclusion so far as the principal point is concerned, it is not necessary to enter into consideration as to whether the claimant can be regarded as released from the undertaking that he gave in connection with the case of delay.  In my judgment, the one and only point which Mr Jones had to advance before the court upon which an application for permission for judicial review could be based is not arguable.  It follows that the conclusions reached by the Divisional Court in connection with the periods of time prior to that judgment and the conclusion that there had not been culpable delay still stand.  Such further passage of time as has run since the Divisional Court judgment cannot assist the claimant.
29.               By way of a late submission, Mr Jones also sought to rely upon the existence of an application to the Information Commissioner for production of correspondence under the Freedom of Information Act.  In effect, he submitted that that matter is now going to become under challenge and it was likely that there would be judicial review proceedings in connection with that and that the court should have regard to that.  In my judgment it has no bearing upon the application for judicial review.  Indeed, it causes me concern that this case depending, as it does, on an allegation of culpable delay, appears to have taken on a self-fulfilling momentum, driven by a desire to generate delay if a basis can be found for causing it.  I have little doubt that the Freedom of Information Act will now become a generator of further delay.

The application under paragraph 10 of Schedule 1 to the 1989 Act

30.               There was issue drawn between the parties as to whether or not applications under paragraph 10 of Schedule 1 to the 1989 Act can be brought by way of habeas corpus or simply as bare applications under the statute.  The SSHD relied upon the case of Chetta (unreported) CO/1330/97 30^th April 1997 as authority precluding the procedure by way of habeas corpus.  In the light of my conclusion, the claimant is bound by his undertaking in connection with this paragraph, and the conclusions which I have reached in connection with the delay make it unnecessary to determine this aspect of the application.
31.               For all these reasons, I would refuse this application for permission to apply for judicial review.