KING v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
1. The applicant, Mr Anthony King, is a British national who was born in 1966. He is currently detained at HMP Wandsworth. He was represented before the Court by Mr D. Mladenovic, a lawyer practising in London with Kaim Todner LLP. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott of the Foreign and Commonwealth Office. 2. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 December 2003 the Government of Australia issued two warrants of arrest against the applicant seeking the applicant’s extradition on four charges of conspiracy to supply ecstasy and conspiracy to possess ecstasy with intent to supply. He was accused of being a member of an international gang engaged in a conspiracy to import large quantities of ecstasy into Australia in 2003. The ecstasy intercepted by the Australian authorities as part of their investigation amounted to over 164,000 tablets weighing 31 kg with a street value of 11.4 million Australian dollars. 3. On 17 December 2003 the applicant was arrested under the extradition request at his home in the United Kingdom. On 15 November 2004 a District Judge sitting at Bow Street Magistrates’ Court found that there was a case to answer on all four charges and committed the applicant to await the decision of the Secretary of State. 4. The applicant asked the Secretary of State to refuse to order his return to Australia under section 12 of the Extradition Act 1989. He claimed his involvement in the conspiracy was under duress; if extradited he would be unable to obtain the attendance and examination of witnesses who would give evidence to this effect under the same conditions as witnesses against him, in breach of Article 6 § 3(d) of the Convention. He maintained that he could be prosecuted in the United Kingdom for conspiring to export ecstasy and that if convicted in Australia he would inevitably receive a life sentence with, probably, no right of parole, which would be manifestly excessive. He also argued his extradition would be a disproportionate interference with his family life in the United Kingdom, which consisted of a wife, two children (born in 1998 and 2004) and a mother who was in poor health. 5. On 4 May 2005, while the Secretary of State was considering the applicant’s representations, the Attorney-General’s Department of the Australian Government provided the following information on the applicant’s likely sentence: “While it is possible, given the seriousness of the offences, that Mr King may receive a sentence of life imprisonment, the sentencing Court is required to set a nonparole period unless, having regard to the nature and circumstances of the offence and to the antecedents of the person, the Court is satisfied that it is not appropriate to fix a non-parole period. It would be highly unusual for the Court not to fix a nonparole period. The sentence imposed will depend upon the findings of the Court in relation to matters such as the type and amount of narcotics involved, the role of the defendant in the importation and other particular distinguishing factors. The sentence imposed will also depend upon whether there is a plea of guilty or not guilty and whether any assistance has been provided by the defendant. Comparative sentences imposed in [New South Wales] over the last two years for offences of importation of a commercial quantity of narcotics consisting of MDMA [ecstasy], heroin or cocaine, where the quantity consisted of more than 10 kilograms and a plea of not guilty entered shows head sentences in the range of 15 years to life imprisonment with non-parole period in the range 11 years to 25 years. The maximum penalty of life imprisonment is, of course, usually reserved for the most serious offences.” 6. On 16 August 2005 the Secretary of State ordered the applicant’s extradition to Australia. In reply to the complaint about the likely imposition of a life sentence in the event of conviction, it was noted that it would be highly unusual for Australian courts not to fix a non-parole period, and, in any event, it would not be unjust or oppressive to return the applicant to Australia purely on the basis of the sentence he could receive if convicted of serious criminal offences. As to the argument that the applicant would be unable to plead duress in Australia, no evidence had been submitted to substantiate the claims of intimidation of the applicant and his family or that these mattes were reported to the police. The Australian authorities had confirmed that should any of the applicant’s witnesses be subjected to threats, appropriate action would be taken by the Australian police. They also advised that it was open to the applicant to apply for a suppression order in relation to the names of any witnesses who feared for their safety. If his witnesses were unable or unwilling to attend trial in Australia he could apply to the Australian courts for evidence to be given via video link. It was also possible for evidence not requiring crossexamination to be submitted in the form of a written statement. On this basis, the Secretary of State was satisfied that there was sufficient provision to allow the applicant’s witnesses to give evidence to the Australian courts and there would be no breach of his rights under Article 6 § 3 (d). As to the Article 8 complaint the applicant’s family circumstances were not so exceptional as to engage this provision. In addition, the United Kingdom was obliged to fulfil its international obligations towards its extradition partner. The applicant’s co-accused had already been tried in Australia, and, as such, it would not be unreasonable for the Australian authorities to expect related trials to be conducted in the same jurisdiction. 7. The applicant then made further representations, arguing that there would be a further breach of Article 6 since he would not obtain legal aid in Australia. He renewed his representations on Article 8 and also claimed that the Australian provisions governing the transfer of prisoners were discriminatory and were applied inconsistently and arbitrarily. 8. These further representations were rejected by the Secretary of State on 30 June 2006. As to the legal aid complaint the Australian authorities had confirmed that persons charged with serious criminal offences would normally be granted legal aid if their means were insufficient to engage private legal representatives. If the applicant were to be refused legal aid, he could make an application for a stay of the trial: the relevant Australian case-law (Dietrich v. the Queen (1992 177 CLR 292)) provided that where an accused charged with a serious offence, who through no fault on his or her part was unable to obtain legal representation, applied to the trial judge for an adjournment or stay then, in the absence of exceptional circumstances, the trial should be adjourned, postponed, or stayed, until legal representation was available. If an application that the trial be delayed was refused, and by reason of the lack of representation of the accused, the resulting trial was not a fair one, any conviction of the accused would have to be quashed by an appellate court for the reason that there had been a miscarriage of justice in that the accused had been convicted without a fair trial. Further, the Secretary of State noted that the applicant’s co-accused had been granted legal aid for their trials in Sydney. 9. As to the applicant’s contention concerning the Australian provisions for the transfer of sentenced prisoners, Australia was a party to the multilateral Council of Europe Convention on the Transfer of Sentenced Persons, which was incorporated into Australian domestic law. The applicant, if convicted, would be eligible to apply for transfer. The Secretary of State was satisfied that any application for transfer he might wish to make would receive appropriate and fair consideration. On Article 8, the Secretary of State again found the applicant’s circumstances were not so exceptional as to prevent extradition. 10. On 19 February 2007 the High Court refused permission for judicial review. It refused to interfere with the Secretary of State’s finding that Australia was the appropriate venue for the trial, especially when the alleged co-conspirators had been tried there. On the fairness of the trial in Australia, Lord Justice Latham (with whom Mr Justice Lloyd Jones agreed) accepted that the legal aid authorities in Australia would not fund the travel of defence witnesses but this was remedied by the fact that there was no bar on witnesses giving evidence by video link. He added: “However more importantly, the evidence before this court simply does not raise a scintilla of a suggestion that the Australian judicial authorities will permit a trial to proceed if to do so would be unjust to the applicant. The case of Dietrich has been cited by the Australian authorities to the Secretary of State, who has considered it. As one would expect of Australian jurisprudence, it essentially says that if there is unfairness to a defendant arising out of difficulties from legal aid funding, the court will be astute to exercise such powers as it has to ensure that the trial is ultimately a fair trial or is stayed. I can therefore see no justification for concluding that there will be any breach of Article 6 in the Secretary of State’s decision to return the appellant to Australia.” 11. Four further letters from the Attorney-General’s Department of the Australian Government addressed the applicant’s likely sentence and general sentencing practice for drugs offences. The first, dated 18 November 2005, summarised the trial and sentencing of two co-accused of the applicant, Peter James Henry and Hugh Williams James Gravett. The Australian Government considered Henry to be one of the most senior members of the conspiracy in Australia. He received a “head sentence” of 18 years’ imprisonment and a non-parole period of 11 years. Gravett received a head sentence of 13 years’ imprisonment, with a non-parole period of 8 years and 8 months. The letter noted that it was the prosecution’s case that the applicant’s level of criminality was higher than that of Henry but any sentence would have to be proportionate to that imposed upon the co-accused. Subsequent developments in the cases of Henry and Gravett were set out in the third and fourth letters (see paragraph 13 below). The first letter went on to state that there were only two people in Australia who had been sentenced to life imprisonment without a non-parole period; a third was re-sentenced to life imprisonment without a non-parole period after he breached a life sentence with a non-parole period on his release. The two who were sentenced to life imprisonment without a nonparole period at first instance were the principals in an organisation which had imported 389 kg of heroin. In other cases of the importation of narcotics where life imprisonment has been imposed, but a non-parole had been set, the highest non-parole period has been 30 years’ imprisonment, ranging down to 15 years. 12. The second letter, dated 1 May 2007 and provided in the context of the proceedings before this Court, reiterated that it was unlikely that the applicant would receive a life sentence with no non-parole period. Since his co-accused had already been sentenced, should the applicant be convicted a major concern for a sentencing judge would be that of parity of sentence with those of the co-accused. The letter noted that, in addition to Henry and Gravett, three other co-accused - Hands, Swansson and Alkarim - received head sentences of between 5 and 9 years’ imprisonment with non-parole periods of between 3 and 6 years. A fourth co-accused, Alchikh, the only one to plead guilty, received a discount of one third for that plea and for his assistance to the relevant law enforcement agencies. The discount reduced his head sentence from 18 years’ imprisonment to 12 years. His non-parole period was set at 7 years and 3 months. The United Kingdom Government in their observations (see below) indicated that another co-accused, Susan Saxby, had pleaded guilty and was sentenced to life imprisonment with a recommendation that she serve a minimum of thirteen years before being eligible for parole. The letter from the Australian Government stated that the applicant’s sentence would necessarily be higher than his coaccused to reflect his role as the principal organiser. However, any sentence imposed would not be so much higher as to be out of proportion with the sentences imposed on the co-accused. Should the applicant be convicted, the Crown would not submit to the court that a sentence of life imprisonment without parole was an appropriate sentencing option. The letter also recorded that a person convicted and sentenced to a term of imprisonment could appeal as of right to the Court of Criminal Appeal and, thereafter, seek special leave to appeal to the High Court of Australia. A federal offender was also able to petition the Governor-General to exercise the Royal Prerogative of Mercy to remit or commute part of his sentence of imprisonment. It continues: “It is likely that the Prerogative would only be exercised if there were circumstances that did not exist, or were unknown to the court, at the time the matter was dealt with, which warranted some mitigation of the sentence. A federal offender could also apply for early release on licence under section 19AP of the Crimes Act 1914. The Attorney-General or his Delegate may grant early release on licence where exceptional circumstances exist that warrant early release, for example assistance to law enforcement agencies or health problems that cannot be adequately managed within the prison system.” 13. The third and four letters, dated 4 and 17 August 2009, were also provided in the context of the proceedings before this Court. The letters stated that Gravett, Henry and Swansson had appealed to the Court of Criminal Appeal on the basis that their convictions were without jurisdictional foundation because of the form of the indictments. Their appeals were allowed. At the end of the retrial of Gravett and Henry in spring 2008, the jury was discharged because it was unable to reach a verdict. On 27 January 2009, Gravett pleaded guilty to a charge of attempting to possess a prohibited import. On 20 February 2009, he was sentenced to ten years’ imprisonment with a non-parole period of six years to date from 17 December 2003. Henry’s third trial commenced on 27 January 2009 and, on 19 February 2009, he pleaded guilty to one charge of aiding, abetting, counselling or procuring an attempt to possess prohibited imports. The Crown accepted that plea of guilty in full satisfaction of all charges brought against him. On 14 August 2009 he was sentenced to 11 years’ imprisonment commencing on 17 December 2003 and expiring on 16 December 2014. The non-parole period was seven years commencing on 17 December 2003 and expiring on 16 December 2010. Swansson was also retried and, on 13 May 2009, found guilty of aiding, abetting, counselling or procuring an attempt to possess prohibited imports. He was sentenced to nine years’ imprisonment with a non-parole period of five years and five months to date from 8 July 2008. 14. At the relevant time, extradition arrangements between the United Kingdom and Australia were governed by the Extradition Act 1989. By section 12(1) of the Act, the Secretary of State has a general discretion to order a person’s surrender, including when it would, having regard to all the circumstances, be unjust or oppressive to return the person. The Secretary of State’s decision was open to challenge by way of judicial review, inter alia, on the basis that it was incompatible with a Convention right. This is by virtue of section 6(1) of the Human Rights Act 1998, which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.