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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Peffer v R [2002] EWCA Crim 2661 (22 November 2002) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2002/2661.html Cite as: [2002] EWCA Crim 2661 |
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COURT OF APPEAL (CRIMINAL DIVISION)
Strand, London, WC2A 2LL | ||
B e f o r e :
MR JUSTICE HOLLAND
and
HIS HONOUR JUDGE FINDLAY BAKER
____________________
TERRY THOMAS PEFFER | Appellant | |
- and - | ||
REGINA | Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Oury Clark) for the Appellant
JAMES CURTIS Esq QC
(instructed by CPS) for the Respondent
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Longmore:
(1) whether the applicant was returned to England pursuant to the procedure for extradition or whether he returned voluntarily;
(2) if he was returned under the procedure for extradition, what the terms of his surrender were "bearing in mind that extradition was sought on two warrants dated 30th November 1988 and 11th October 1989 respectively".
The CPS were able to ascertain the answer to the first question because the Foreign Office had already received the certificate of the Secretary to the Audiencia Nacional setting out the decision of that court on 9th April 1990 which stated that the applicant had appeared on 30th March 1990 and expressed his consent to the surrender under the second warrant and that it had accordingly been resolved to grant the applicant's extradition on the grounds mentioned in that warrant of 11th October 1989, without prejudice to any subsequent decision within the competence of the Spanish government. It thus became accepted on all sides that when the applicant returned on 10th June 1990 he had not voluntarily returned.
"the extradition agreed by Spain was in respect of all offences for which extradition had been asked."
(This exchange was also produced for us at the hearing.) It was, therefore, clear by May 1991 that the Spanish courts had extradited the applicant for, among other offences, the offence of fraudulent trading.
"Like you, we were always satisfied that your return to this Country was as a result of extradition proceedings rather than on a voluntary basis.
We have now been shown further evidence from the British Consulate in Madrid and other documents relating to your extradition, which tend to suggest that the point which was taken when the original application for leave to appeal against conviction was lodged is not perhaps now properly one which can be urged on your behalf.
As you will recall, I discussed with you the distinction to be drawn between the current and old legislation and what seemed to have been the case so far as you are concerned.
As a result of the information which has now been provided, we feel it would be unsafe to proceed in relation to the appeal against conviction and therefore have abandoned that.
As you know, it has in any event proved a helpful means of securing you an earlier date than otherwise would have been the case in relation to your appeal against sentence. Indeed the Court of Appeal recently were indicating they may put the case back because of the appeal against conviction, but we have advised them of the situation, and I am pleased to report that the appeal against sentence will proceed as planned on the 14th June in any event.
Clearly the matter can be discussed at length with Peter Cooper when you see him on Friday, but for the moment I thought I should write and confirm the position."
"that he was advised both by you and Peter Cooper that he was likely to receive a substantial reduction of sentence" but that "if he proceeded with his appeal against conviction CPS would need time to prepare their case, therefore delaying considerably his release."
Mr Cooper, who represented the applicant at his appeal, although asked about the reasons for the withdrawal of the appeal against conviction, could not, before he unfortunately died, recollect anything useful about the matter. The earlier junior, Mr James Dawson, could however say this on 28th November 2000.
"My recollection of the matter is that the Applicant always maintained that after his arrest in Spain there came a point when he did not resist his extradition to the United Kingdom. This was an important part of his mitigation in that it was argued on his behalf that time spent in custody in Spain should be deducted from his sentence by the Learned Judge since there was no provision in law for that time spent to be counted off his sentence.
Grounds of Appeal were settled on the basis that the Learned sentencing Judge had failed to give any or any appropriate credit for time spent in custody.
Before this Appeal was heard the Crown Prosecution Extradition Department contact[ed] Reynolds Dawson expressing a concern over the validity of the extradition. I was instructed to draft Grounds of Appeals and leave to Appeal was granted.
I was sufficiently confident of the strength of the Appeal that I applied for bail on behalf of the Appellant. The Court having heard the Application refused but granted an expedited hearing of the full Appeal.
I was not present at the Appeal and cannot comment on what was discussed."
"Our confidence in an appeal against conviction rose when it was believed that extradition proceedings were invalid. When we discovered that was not the case, the chances of success evaporated."
In passing on that letter to Mr Peffer in prison on 23rd July 1991, Mr Reynolds said:-
"For my own part, I have considered very carefully the full attendance notes in relation to the various conferences which you had with Peter Cooper and James Dawson, and also indeed our last meeting before the final conference." (These attendance notes have all now disappeared.)
It is clear from these letters that the position about the appeal against conviction must have been fully discussed with Mr Peffer and that there can be no question of it having been abandoned without instructions. Indeed, Mr Peffer accepts that he did sign a Form A even though it cannot now be found.
LORD JUSTICE LONGMORE: On 8th November this court (composed of myself, Mr Justice Holland and His Honour Judge Findlay Baker) heard an application to treat a notice of abandonment as a nullity. We dismissed that application and said that we would give our reasons at a later date. This is the date on which I now, on behalf of the court, hand down our reasons. They are in written form and so there is no need to read them out. They can be distributed to anyone who is interested. I have excused the parties from attendance because there is no further order which the court needs, in the circumstances, to make.