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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> United States of America Government v Tollman & Anor [2008] EWHC 184 (Admin) (07 February 2008)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/184.html
Cite as: [2008] EWHC 184 (Admin), [2008] 3 All ER 150

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Neutral Citation Number: [2008] EWHC 184 (Admin)
Case No: CO/4714/2007
CO/5772/2007

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

Royal Courts of Justice
Strand, London, WC2A 2LL
7 February 2008

B e f o r e :

LORD JUSTICE MOSES
MR JUSTICE OUSELEY

____________________

Between:
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
Appellant
- and -

STANLEY TOLLMAN
and BEATRICE TOLLMAN
1st Respondent
2nd Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

Alun Jones QC and John Hardy (instructed by The Crown Prosecution Service) for the United States Government
Edward Fitzgerald QC and Hugo Keith (instructed by Simmons and Simmons) for Mr Tollman
James Lewis QC and James Hines (instructed by Simmons and Simmons) for Mrs Tollman
Hearing dates: 20th November – 23rd November 2007

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Moses :

    Introduction

  1. This is the judgment of the Court. The caesura between the two appeals and the concision of the latter indicates the contribution of Ouseley J. This is the second occasion that the extradition of Mr and Mrs Tollman to the United States has occupied the Divisional Court for three days. Since the decision of this court on 6 September 2006 R (Government of the United States of America) v Bow Street Magistrates Court [2006] EWHC 2256 (Admin) [2007] 1 WLR 1157 there have been five further hearings before the Senior District Judge, making a total of eighteen hearings. We exclude from that computation a case management hearing on 19 October 2006 and hearings during the course of which the Senior District Judge gave his judgment. The full history leading to the previous decision of this court on 6 September 2006 is set out in the judgment of Lord Phillips CJ. The culmination of the subsequent hearings has been two decisions. On 29 May 2007 the Senior District Judge concluded, pursuant to s.91 of the Extradition Act 2003 (the 2003 Act) that he should order the discharge of Mrs Tollman. On 28 June 2007 he concluded that by virtue of the passage of time it would be unjust and oppressive for Mr Tollman to be extradited and he was discharged in relation to each of the offences of which he has been accused in the United States, pursuant to s.79(3) of the Act. The Government of the United States of America now appeals against both those decisions pursuant to s.105 of the 2003 Act.
  2. In the previous decision of this court Lord Phillips CJ emphasised that one of the objects of the 2003 Act was to ensure expedition (see paragraphs 73, 79 and 80). He stressed the obligation of the parties and those acting for them to co-operate to ensure that objective is achieved (see paragraph 79). The observations of the Lord Chief Justice have had no effect. Even now, the United States Government is faced with yet further proceedings by which Mr and Mrs Tollman propose to resist their extradition. It is unnerving to recall what Thomas LJ said on a renewed application for judicial review by the US Government (the proceedings which led to the decision of this court on 6 September 2006) as long ago as 6 June 2006:-
  3. "The course taken in this case has been defended by none of the parties before us. Why it has come about is not a matter for this court on this application to determine, but plainly the way in which this case has proceeded gives rise to concerns in the way in which cases should be dealt with, so that the extradition process can be determined within a time that is infinitely more expeditious that what has so far happened with this case. In this case, as Mr and Mrs Tollman are in their seventies, it is particularly unjust that so little has been achieved over such a protracted period of time."
  4. The stance taken by the parties since those observations is one of studied intransigence. Neither side has proved other than obdurate in fighting its corner. This uncompromising approach to the litigation is conducive neither to an expeditious, still less a rational, disposal of the issues.
  5. Although the Senior District Judge discharged Mrs Tollman first, pursuant to s.91 of the 2003 Act, it is convenient to deal with the appeal in relation to Mr Tollman first.
  6. The Senior District Judge's decision to discharge Mr Tollman was made pursuant to s.79(1)(c) and s.82 of the 2003 Act. The relevant part of s.79(1) provides:-
  7. "If the judge is required to proceed under this section he must decide whether the person's extradition to the Category 2 territory is barred by reason of –
    (c) the passage of time;
    (3) if the judge decides any of the questions in sub-section (1) in the affirmative he must order the person's discharge."

    S.82 provides:-

    "A person's extradition to a Category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence…"
  8. The judge set out a helpful chronology:-
  9. "1978 The defendant and a Mr Hundley set up Tollman-Hundley hotels
    1987 & 1989 The company negotiated loans with 5 banks
    1989 The company purchases Days Inn of America
    1990 The company defaults on its servicing of the financial loans that had been raised owing to a sudden downturn in business in the hotel industry
    Sept 1991 An "earn-out" agreement is finalised
    Sept 1992 Credit repayment agreement finalised
    1991 – 1993 It is alleged that false representations were made by the conspirators to the First National Bank and the National Westminster Bank
    1993 & 1994 Allegedly false statements and representations were made by the conspirators to the Marine Midland Bank and to the Chemical Bank
    1993-1996 A number of allegedly false representations were made by the conspirators to the Bank of America
    1996 The United States investigation commences
    Nov 2000 Mr and Mrs Tollman's application for Swiss residency was approved
    2001 They move to live primarily in Switzerland but with frequent visits to New York
    Between 3rd & Mr and Mrs Tollman visit New York
    7th Apr 2002  
    17th April 2002 Mr Tollman was indicted by a Grand Jury, together with others, with offences of defrauding the banks, making false statements to financial institutions and tax evasion
    24th April 2002 Arraignment hearing which Mr Tollman does not attend
    July & Nov 2002 Superseding indictments were returned by the Grand Jury
    Jan 2003 The complaint against Mrs Beatrice Tollman alleging tax fraud was laid
    18th March 2003 A request was made for the extradition of Mr Tollman under the 1989 Act
    19th April 2004 Extradition request withdrawn
    6th Aug 2004 Request for a provisional warrant received
    17th Aug 2004 Stanley Tollman is arrested
    Oct 2004 Formal extradition request received
    19th & 20th May 2005 Abuse of process argument at Bow Street Magistrates' Court
    6th Jun 2005 Disclosure ordered
    7th Feb 2006 United States government apply for judicial review
    6th Sep 2006 Administrative Court sets aside orders for disclosure and remits the case to the City of Westminster Magistrates' Court"

  10. We should comment at this stage on what we regard as a significant omission from this chronology. Between 2003-2004 four of Mr Tollman's co-accused were tried for and convicted of the conspiracy for which Mr Tollman was indicted and due to be arraigned in April 2002. They were the co-founder of Tollman-Hundley, Hundley, sentenced to eight years' imprisonment, their General Counsel, Freedman (probation) and their Chief Financial Officer, Cutler, imprisoned but now released and their Finance Vice President, Zukerman, sentenced to 18 months' imprisonment.
  11. The Allegations

  12. Mr Stanley Tollman was born in South Africa in 1930. There he built up a successful hotel and restaurant business. He married Beatrice Lurie in 1954. In the mid-1970s he moved to England but between 1978 and 1989, when he was involved with a hotel business in the United States, he lived there more frequently. His sons went to university there and his wife acquired a farm. He had, with Mr Hundley, and advised by Mr Housmann, who died in April 1997, set up Tollman-Hundley Hotels in 1978. In 1989 Tollman-Hundley borrowed large sums of money by way of syndicated loans from the banks, alleged to be victims of fraud, in order to buy Days Inn of America Inc., which franchised Days Inn Hotels. The debt was guaranteed personally by Mr Tollman and by Mr Hundley.
  13. There were difficulties in servicing this debt, culminating in restructuring by means of a Creditors' Repayment Agreement in 1992. A number of hotels were repossessed. In order to make good the estimated shortfall between the value of repossessed hotels and the total value of the original loans, Mr Tollman and Hundley were required to supply "Deficiency Notes".
  14. At the heart of the bank fraud lies the allegation that Mr Tollman and Mr Hundley, with their associates, conspired to defraud the banks so as to have the loans written off by re-purchasing the debts through straw entities, controlled by Tollman and Mr Hundley.
  15. The third superseding indictment returned by a Grand Jury on 29 April 2003 was based on these allegations. Count 1 alleges a single conspiracy which, in this jurisdiction, would be regarded as a number of conspiracies with separate criminal objectives: bank fraud, false statements to a financial institution, mail fraud and a conspiracy to defraud the Internal Revenue Service by concealing the taxable events of cancellation of the debts sold by the banks.
  16. For the purposes of this count, it is alleged that Mr Tollman and Mr Hundley and others conspired to defraud United States banks by creating the false impression of inability to pay their debts. For this purpose they defaulted on various debts to financial institutions and concealed improvements in their financial circumstances, particularly following their acquisition of $100 million stock in Hospitality Franchise Services which had bought the franchise in Days Inn America at a price far less than that which Tollman and Hundley paid for it. They are alleged to have submitted false financial statements, and transferred control of various assets from their own names into the names of other members of their families. Thereafter they agreed to persuade the financial institutions to sell the debt to corporate entities, Paternoster and Chelsea Acquisitions, which purported to be third parties, but which were in reality shams controlled by Mr Tollman and others.
  17. Further counts in the indictments also cover these allegations, Counts 2-6 alleged bank fraud and Counts 14-18 the making of false statements to a financial institution.
  18. Part of the case against Mr Tollman rests on oral representations between 1992 and 1996 to the banks, made allegedly by employees of Tollman-Hundley, on behalf of Tollman, in order to convince the banks that the purchasers of the debt were independent third parties.
  19. But the case against Mr Tollman is not limited to those oral representations; it also relies on documents signed by Mr Tollman and Hundley giving warranties as to their relationship with the purchasers of the debts.
  20. The Defence

  21. In order to appreciate the strength of the essential assertion on behalf of Mr Tollman that by reason of the passage of time he is prejudiced in the conduct of his defence, it is necessary to deal with his defence as revealed in what he calls an "outline defence case statement". We shall resolve, later, the contention of the United States Government that the statement has no evidential effect.
  22. The essence of Mr Tollman's defence is that he had no intention to defraud and had no knowledge of any fraudulent misrepresentations allegedly made on his behalf. In introducing his defence Mr Tollman described how in the 1980s he established stronger roots in the United States where his wife bought an apartment. He describes a travelling schedule during the course of which he rarely spent more than two weeks in one place at a time (see paragraphs 42-43 of the case statement). He says that in the 1980s nobody referred what he describes as the "specifics of the business" to him and that he was not involved in its day-to-day running. He rarely received copies of documents or drafts of agreement; the details of the deals were never explained or summarised to him. He was content to rely on advisers and:-
  23. "…to simply request a signature page of any documentation for signing." (see paragraph 48)

    He kept no notes, memos or copies of documentation.

  24. After the initial debt restructuring it became apparent that the hotel properties did not generate sufficient cash to service the debt. During the course of negotiations with individual banks over a period of about five years he was still travelling frequently. When he visited the Tollman-Hundley office in New York he would discuss the current situation with Hundley but otherwise would only speak to him infrequently. He says of his visits to the Tollman-Hundley office:-
  25. "Invariably I would be shown a large box of documents, including the writs which had come in. However, not being there on a day-to-day basis made it impossible for me to keep abreast of what was happening on a very regular basis, and it is quite impossible for me to recall now what I signed. As a result I was not close to the detail of what was happening with Tollman-Hundley and the banks." (see paragraph 69)

    He remembers only meeting representatives of one bank, The Chemical Bank, but cannot recall what was said at the meeting. He continues:-

    "When it came to finalising the agreements with the banks to sell the debt, I was simply presented with the signature pages. I was not aware of the specific details of the agreements or the representations contained therein. I do not now recall ever being advised as to the content of the agreements, although I remember being assured, in relation to the First National Bank of Chicago agreement, that it was proper to sign. I cannot now recall who gave me that assurance." (paragraph 71)

    Prejudice

  26. The evidence on which Mr Tollman relied in support of his contention that conduct of his defence to the bank fraud charges was prejudiced by the passage of time rested particularly on a statement from James Webster III, a former Assistant United States Attorney who has represented Mr Tollman since May 2002. Mr Tollman's defence identifies seven points designed to establish the risk of prejudice in the conduct of the defence. Firstly, that much of the prosecution case depends on the memory of individuals. During the process of the prosecution's investigation those recollections which support the prosecution's case will have been preserved whilst exculpatory recollections will have faded. This is of particular importance in relation to the evidence of a Mr James Cohen to the effect that he was instructed to make oral representations to banks by Mr Tollman. Secondly, he contends that it would no longer be possible to reconstruct the factual context lying behind Article 12.1 of the Creditor Repayment Agreement, signed on 30 September 1992 which, according to Mr Webster, is evidence of the bank's willingness to permit Mr Tollman and Mr Hundley to re-purchase their debt for less than its face value. Article 12.1 demonstrates that any misrepresentation was immaterial. One of the negotiators of the Creditor Payment Agreement, Mr Eisendrath, is now dead.
  27. Thirdly, he relies upon loss of recollection, witnesses and documents which might have supported the defence that the banks knew about the HFS Earnout Agreement which had been disclosed in the financial press and thus knew about the improvement in Mr Tollman's financial circumstances as a result of that agreement. Fourthly, he suggests that by reason of the passage of time, many witnesses such as secretaries, executives and employees who might have supported Mr Tollman's asserted lack of involvement in the conduct of the Tollman-Hundley businesses will no longer be able to do so. That difficulty will have been exacerbated by his wife's incapacity.
  28. Finally, Mr Webster relies upon the death of Arnold Tollman. Arnold Tollman would have been able to support his brother's contention that there was no attempt to conceal his relationship to Paternoster and Chelsea Acquisitions, the alleged third parties, and support his contention that they were not sham entities. Further, he would have assisted in resisting the contention that no tax was due on the cancelled debt.
  29. Colin Passmore is head of litigation in Simmons and Simmons and instructed by Mr Tollman. He has studied the evidence of bank witnesses during the course of the trial of Hundley and others between November 2003 and January 2004. He emphasises the inadequacies of their recollection of events many years ago. But he has also listed a large number of witnesses from banks who did not give evidence at the trial and, as he puts it, might have been able to provide important evidence in relation to allegations made against his client. He identifies a number of witnesses whom private investigators have been unable to locate.
  30. Mr Passmore described attempts to speak to a number of former employees who might have been able to provide evidence in support of Mr Tollman's defence who have refused to communicate with Mr Passmore unless the terms of the conversations are communicated to the prosecution.
  31. Finally, George Baronkay, a former senior officer in major lending institutions, gave evidence as to the fact that US banks are unlikely to maintain records for a period longer than six to seven years. He takes the view that it is "doubtful" whether entire records of internal paperwork generated for the purpose of the purchase of debt would be available after this period of time.
  32. The prosecution sought to respond through the evidence of Mr Okula. Mr Okula pointed out that the investigation, which culminated in the indictment, started in 1996 as an internal revenue service administrative investigation. That gave the opportunity for Mr Tollman's personal attorney, Jack Tigue, a prominent white-collar criminal defence attorney in New York, to present written and oral arguments as to why charges should not be laid in relation to tax offences. He cites as an example of Mr Tigue's participation the presence of Mr Tigue and another associate during the course of an interview in February 1997 with Mr Freedman, General Counsel of the Tollman-Hundley companies. He was asked extensive questions about the role played by the allegedly sham entity Paternoster. As Mr Okula puts it, Mr Tollman, through his counsel, became aware as early as 1997 of an aspect of the critical focus of the United States investigation. A former commissioner of the IRS was retained early in 1999 to prepare a detailed written analysis of whether Mr Tollman could properly be charged with attempting to evade the cancellation of debt income. Mr Tigue himself prepared a detailed written analysis of the history of many of the bank loans and debts at the heart of the indictment against Tollman. During the course of that written submission he disclosed that he had gathered and analysed the documents underlying the bank debt which Mr Tollman is claimed fraudulently to have purchased from the banks through the sham entities.
  33. Mr Tollman's lawyers had access to evidence given by a number of secretaries and administrative employees of Tollman-Hundley, including company accountants. Mr Tigue, according to Mr Okula, enlisted someone to represent individual employees of the companies during the administrative and Grand Jury investigations; he attended interviews of a number of such employees and secured them immunity from prosecution provided they gave truthful and full evidence. Mr Okula names some nine employees and accountants employed by the Tollman-Hundley companies who could be expected to assist in establishing the truth of Mr Tollman's defence. In addition, various members of his staff including doorman, live-in staff at his properties in the United States and in London, chauffeurs, the pilot of the private plane and other members of his family would be able to speak of his travelling practices.
  34. Mr Okula describes two important developments in the investigation between late 2001 and April 2002. After initial resistance from Mr Tollman and his wife through Guernsey lawyers and through Mr Passmore, the United States Government succeeded in obtaining documents when Tollman's lawyers ceased their attempts to block disclosure. Those documents revealed what Mr Okula describes as a tax-evasion scheme through Channel Island bank accounts.
  35. The second important development was an interview given by Mr Tollman's brother Arnold in March 2002. Once the documents had been received, Arnold Tollman, who had previously given no hint of activities in Guernsey, confessed to his involvement in what Mr Okula describes as a "massive" scheme to evade taxes through receipt of unreported income in Guernsey bank accounts. Arnold Tollman admitted taking part in extensive tax crime in relation to monies secretly paid to his Guernsey bank account; $300,000 per year was secretly siphoned from the New York accounts of his travel company.
  36. In early 2002, before the return of the 2002 indictment, representatives from Mr Okula's office met Mr Tigue and his partner who attempted to persuade the prosecution authorities not to ask for an indictment. There was discussion as to the question of sentence should Stanley Tollman plead guilty.
  37. Mr Okula places considerable reliance upon the trial which took place between 2003 and 2004. He points out that the bank fraud conspiracy was central to that trial although the existence of that conspiracy was disputed. The verdict of the jury in respect of two of the main defendants, Hundley and Cutler, demonstrates, so he says, the strength of the prosecution's case that there was a conspiracy to defraud.
  38. Decision of the Senior District Judge

  39. The Judge set out his conclusions but did not set out their evidential basis. This has the result that our analysis is, unfortunately, of great length. The judge confined his attention to the events which followed the arraignment hearing, which Mr Tollman did not attend, on 24 April 2002. He assumed that the complexity of the investigation justified a period of six years for investigation and preparation. This conclusion is disputed by Mr Tollman. His only other comment on delay was:-
  40. "I am conscious that the investigation of fraud and the preparation of cases for prosecution are time-consuming exercises, but I note that it was some six years after the investigation had begun that the first indictment was returned by the Grand Jury. It was a further two and a half years before the formal extradition request with which we are now dealing was made. Lengthy and complex extradition hearings, both in this court and in the High Court, have further added to the delay." (paragraph 15)
  41. The judge did not attribute blame for the delay. He recognised that Mr Tollman will be regarded, under United States law, as a fugitive. He rejected the contention that Mr Tollman's failure to attend arraignment was:-
  42. "…evidence that the accused fled the country or that he is therefore responsible for the delay." (paragraph 13)
  43. The essential grounds upon which the senior District Judge concluded that it would, by virtue of the passage of time, now be unjust and oppressive for the defendant to be extradited, was that evidence, which might have been available to the defence had matters come for trial in a timely way, was no longer available. In relation to the bank fraud charges he relied upon the fact that two witnesses had died. The defendant's brother Arnold Tollman died on 19 August 2004, about eight years after the investigation began. He said:-
  44. "It is clear that his evidence is of considerable importance in this case and indeed the United States Assistant Attorney went to considerable and, in my view, inappropriate lengths, to obtain testimony from him. Mr Arnold Tollman played a significant part in the negotiations, preparation and documents, and the making of representations to the banks. The importance of his evidence is apparent from the fact that he was given immunity from prosecution. His evidence may have assisted the prosecution but it is apparent that his evidence may well have assisted the defence greatly." (see paragraph 26)
  45. The second witness was Mr Eisendrath who died on 29 June 2006 who, so the judge found, could have given material evidence about his involvement in the negotiations which led to the Credit Repayment Agreement which, according to the judge, formed a significant part of the defence.
  46. The judge also referred to the evidence from Mr George Baronkay as to the "likely destruction of records retained by the bank which he believed would not have been retained more than six or seven years". Whilst recognising that much of the documentation would have been secured by the prosecution and available for trial, other documents which might assist in establishing Mr Tollman's degree of knowledge and his movements are "probably no longer available". (see paragraph 29)
  47. The judge also accepted the evidence given by Mr Passmore, the solicitor acting for Mr Tollman, as to efforts to trace a number of witnesses the defence might have wished to call who have proved untraceable (see paragraph 30). He remarked on the difficulty witnesses would have in recalling events in the early 1990s and made a passing reference to what he described as "associated trials" in 2003 in which witnesses had acknowledged difficulty in recalling events and conversations.
  48. The judge took the view that Mrs Tollman's mental and physical condition made it unlikely that she would ever be able to give cogent evidence of facts within her knowledge. He referred to the fact that Mr Tollman was aged seventy-seven.
  49. The judge then turned to evidence of the United States Prosecuting Attorney, Mr Stanley Okula's, behaviour. He identified three events which he found reprehensible. Firstly, he found as a fact, contrary to Mr Okula's denial in his affidavit, that Mr Okula had threatened to make Mr Tollman's life as miserable as possible. He had commented that he was looking forward to having "a perp walk" with Mrs Tollman. By this he meant that he intended to walk publicly through the streets of New York, from the processing centre to the courthouse, with Mrs Tollman handcuffed and in leg-irons for the benefit of the press.
  50. The second incident on which the judge relied was Mr Okula's attempts to place Gavin Tollman, Mr Tollman's nephew, in United States custody from Canada, without extradition. In September 2006, the Canadian court had found that that was an abuse of the process of the Canadian court and that Mr Okula had misled that court. The judge disbelieved Mr Okula's claims that this was done with the approval and support of his superiors. The third incident was a threat made to Mr Tollman's son, Brett Tollman, that it "would be easier for Brett if his parents came back".
  51. The judge concluded that, although these actions were reprehensible, they were insufficient to make a finding of oppression which would bar extradition but he said:-
  52. "They are factors to be considered when assessing the overall fairness in reaching a decision as to whether it will be unjust or oppressive to be returned."
  53. Finally, the judge relied upon the evidence of the three doctors as to the health of Mrs Tollman. He accepted that the extradition of Mr Tollman would undoubtedly endanger the health of Mrs Tollman and possibly her life. He concluded, following the decision of this court in Cookeson v Australia [2001] EWHC (Admin) 149 that extradition would inevitably cause oppression to Mrs Tollman and:-
  54. "…through her to Mr Tollman, who is caring for her at the present time after some fifty-three years of marriage."
  55. The judge recorded that he had taken all those factors into account in reaching his conclusion that it would, by virtue of the passage of time, now be unjust and oppressive for the defendant to be extradited.
  56. Principles

  57. Before we turn to the relevant principles we should stress the difficulty of the task facing the judge. How should the District Judge approach the issues? He cannot possibly be expected to form a clear view as to the quality of the prosecution evidence, particularly in light of the fact that one of the essential purposes of the 2003 Act is to remove any obligation on the requesting state to adduce evidence to demonstrate a prima facie case. Even before the introduction of the 2003 Act, the requesting state was never under an obligation to adduce more evidence than was necessary to establish such a case.
  58. Contrast the position of a trial judge in domestic criminal proceeding faced with an application to stay the trial because evidence has gone missing. We bear in mind that Lord Phillips CJ observed that the statutory bar on extradition imposed by s.82 was neither a close nor helpful analogy to the test to be applied for staying a trial on the grounds of abuse of process in domestic proceedings (R v Abu Hamza [2006] EWCA Crim 2918 at paragraph 80).
  59. But that observation was in the context of a complaint as to pre-trial publicity resulting from unjustified delay. In Woodcock v New Zealand [2004] 1 WLR 1979 Simon Brown LJ recalled the domestic approach to staying a prosecution on the grounds of delay. After citation of domestic authorities for the proposition that a stay should only be granted in exceptional circumstances where there really was "evidence" of prejudice, he recorded that he had the gravest doubts as to whether a domestic court would grant a stay. He acknowledged that the jurisdiction he was exercising was statutory. But after citing the approach of the New Zealand courts, he noted that the approach was very similar to that adopted in our courts (paragraphs 18-20).
  60. Whilst we accept that the relevant principles under s.82 are not the same as in an application for a stay, it does not follow that domestic cases provide no assistance to the approach the District Judge should follow. After all, where it is alleged that an accused whose extradition is sought has been prejudiced in the conduct of his defence, the essential question is whether a fair trial of the issues which arise can be achieved.
  61. But we recognise that under s.82, the District Judge should not confine imposition of the statutory bar to exceptional circumstances. Discharge should not be limited to cases where there is "evidence" of prejudice; the question in such cases is whether there is a risk of prejudice. But he should be in a position to assess the strength of the defendant's complaint by analysing the extent to which missing evidence is likely to undermine the prosecution case seeks to adduce or to assist the defence. In domestic proceedings, a judge, in considering whether a fair trial is possible, will bear in mind two important factors: firstly, that the absence of evidence, typically, a lost video film or missing forensic evidence, is likely to hamper the prosecution as much as the defence and secondly, that the trial process itself is equipped to deal with most of the complaints on which applications for a stay are founded (see R v Ebrahim v Feltham Magistrates Court [2001] 2 Cr App R23 at paragraphs 25 and 27). The trial judge is in a position to assess the extent to which a defendant is hampered in the course of the trial and exclude evidence, challenges to which have been impeded by the passage of time.
  62. It seems to us that in assessing prejudice to the accused, there must exist some basis for concluding that he is in a worse and not in a better position in consequence of the lack of availability of witnesses or documents. There must be some foundation, other than mere assertion, for concluding that evidence no longer available might have undermined the prosecution or supported the defence.
  63. The most important principle is, in our view, that the District Judge should apply the terms of s.82. The statutory question is whether it would be unjust or oppressive to extradite the defendant by reason of the passage of time since the alleged commission of the offence. There is a danger in applying the jurisprudence of the court as if it had statutory force. It is to the words of the statute that the courts must look in considering whether there is a statutory bar to extradition. That principle was clearly expressed by Laws LJ in La Torre v the Republic of Italy [2007] EWHC 1370 Admin (at paragraph 37). He emphasised the danger of courts straying too far from the simple words of the statute, summarised the relevant jurisprudence in a few sentences and concluded:-
  64. "An overall judgment on the merits is required, unshackled by rules with too sharp edges."
  65. A judgment as to whether it would be unjust or oppressive would, accordingly, require all the features of this case to be considered; no one feature is dispositive. It will be necessary to consider the US Government's arguments as to why, as a matter of law, Mr Tollman cannot succeed under s.82. But those arguments, expressed as they were in absolute terms, should not disguise the need for a judgment reflecting shades of grey rather than black or white. As Laws LJ pointed out, the issue of injustice is not an issue of black-letter law. We turn to apply those observations to the U.S. Government's grounds of appeal.
  66. Mr Tollman's refusal to attend trial

  67. The U.S. Government argued that Mr Tollman's failure to attend an arraignment hearing for the purposes of his trial on 24 April 2002 disentitled him to reliance upon s.82. The District Judge concluded that since he had left the United States on 7 April 2002, ten days before the Grand Jury returned their first indictment without, as he put it, "hindrance", and had not sought to conceal his whereabouts or to evade arrest, he had not "fled" and was entitled to rely upon s.82 (see paragraphs 12-14).
  68. Evidence from experts called at the hearing before the District Judge established, as the judge found, that under United States law Mr Tollman would be described as a fugitive. Both Professor Beale and James Webster agreed that Mr Tollman would be categorised as a voluntary fugitive since he had voluntarily remained in the United Kingdom and declined to return to the United States. We shall turn later to the effect of that status on any attempt to rely upon delay occurring after the indictment was preferred in the United States. But that categorisation, as the District Judge pointed out, is not relevant to the question whether, in this country, he is barred from reliance upon s.82. The United States Government relies upon the well-known passage in Kakis v Republic of Cyprus [1978] 1 WLR 779. The dictum is cited so often that it tends to be regarded as a mantra:-
  69. "Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts, or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him." (see page 783B)
  70. Mr Fitzgerald QC argues on behalf of Mr Tollman that the test is whether Mr Tollman left the United States lawfully (he cites Gomes and Goodyear v Trinidad and Tobago [2007] EWHC 2012 Admin at paragraph 17 per Sedley LJ; the criticisms of that decision in Krzyzowski v.Circuit Court in Gliwice,Poland [2007] EWHC 2754 (Admin) are immaterial to this decision). The controversy demonstrates the danger of permitting the extremities of opposing arguments to disguise the true statutory test of injustice. Mr Tollman did not flee the United States. He had indeed left the United States lawfully. If Lord Diplock words are read as a statute, he is not, accordingly, barred from relying upon s.82. But Lord Diplock's dictum has no statutory force. It is instructive to consider the rationale lying behind his conclusion that an accused who flees the country cannot rely upon delay. The reason is that, generally, there can be no injustice in requiring the accused to be extradited where delay is caused by his escape. The very fact that the accused invokes justice to prevent his extradition requires consideration of the circumstances which have led to the fact that he is not facing justice in the country from which he has fled. Mr Tollman is not barred by Lord Diplock's dictum. But the circumstances in which he has not hitherto faced justice in the United States and been tried along with his alleged co-conspirators in 2003-2004 require consideration before any conclusion is reached as to whether it is unjust to extradite him. In short, he cannot simply avoid consideration of those circumstances by virtue of his success in evading the bar expressed by Lord Diplock.
  71. The Senior District Judge made no reference to the circumstances in which Mr Tollman found himself in the United Kingdom at a time when he would otherwise have been arraigned, still less to the circumstances in which he was not tried with his co-conspirators. The Judge was correct in concluding there was no bar to Mr Tollman's reliance on s.82. But, in our judgment, he erred in failing to have regard to the circumstances which led to Mr Tollman's absence.
  72. The full circumstances in which Mr Tollman did not appear for his arraignment on 24 April 2002 are described by the prosecutor, Mr Okula, in his affidavit filed 19 April 2007. Before the 2002 indictment was returned there was a meeting, customary in cases of this sort, at the request of Mr Tollman's lawyer, Mr Tigue. He failed to persuade the prosecutor not to ask for an indictment. There was a discussion about sentence. Shortly thereafter, there were discussions between the prosecutor and Mr Tigue as to bail. An agreement in principle, according to the prosecutor, was reached, based on the pledge of three properties occupied by Mr Tollman and his wife in the United States, an apartment in New York, a farm in Connecticut and a property in Palm Beach. When the prosecutor was telephoned by Mr Tollman's lawyer to say that he would not appear, that lawyer, Mr Tigue, told the Magistrate Judge in New York that he had expected his client to be present with his co-accused and said:-
  73. "I spoke to him this morning and he is still in London where he lives. I thought we had pretty much negotiated a bail agreement with Mr Okula and the property that was to be posted was Mrs Tollman's real estate here in New York. Her lawyer raised a last minute objection to the posting of that property as bail. I hope to resolve it today. I have not been able to resolve it with her lawyers because I don't represent her…"
  74. In his outline defence case statement Mr Tollman states that after the first indictment was returned, the prosecutor, Mr Okula:-
  75. "…terminated ongoing discussions with my lawyers about the terms of my bail in the USA. Because of this and the prospect of being held without bail at my age and in my physical condition, I elected to remain in the United Kingdom and deal with the US authorities from here. I neither absconded from the US nor concealed my whereabouts thereafter from the US authorities." (see paragraph 10)
  76. This is true, but it demonstrates that the reason he did not return to face justice in the United States was his fear that he would be denied bail. The important feature of these circumstances is that Mr Tollman does not deny the participation of his own lawyers during the course of investigation, as described by Mr Okula. Nor does he deny the pre-arraignment discussions. All he says in his defence statement is:-
  77. "I now believe the US Internal Revenue Service first began investigating Monty Hundley in August 1996, now over ten years ago. However, it was only six years later that the indictment was first issued against me, in 2002, and it became clear that I would be prosecuted. By this time Bea [his wife] and I were resident in Switzerland and in London, although I continued to visit the US regularly, mainly for business purposes. Indeed, I travelled to the US freely and without hindrance or concern right up to the date of the indictment." (paragraph 9)
  78. It is reasonable to infer that at the time he last left the United States he was well aware of the stage the investigation had reached and the likelihood, to put it no higher, of an indictment being preferred and of the arraignment. His silence as to his anticipation of an indictment and an arraignment is eloquent. He did not flee. He was entitled to leave the United States. But the fact that he did not return to face the indictment with his co-accused is in our judgment a significant factor in assessing the justice of requiring him to return now. This case is quite unlike those cases in which, without any advance notice, an accused hears of the accusation whilst he is lawfully present in another country and faces an accusation many years later which he had no cause previously to fear. That is not to say that Mr Tollman is not entitled to rely upon s.82. Nor are the circumstances in which he was not in New York at the time of his arraignment determinative. All we wish to emphasise is that it is an important factor which the District Judge did not consider. An assessment of the injustice caused by the passage of time must incorporate the fact that time has passed because Mr Tollman chose not to attend his trial because of fears that he would not get bail. He left others to face the trial, which his own lawyers expected him to attend.
  79. We conclude, therefore, that the United States Government is wrong to suggest that Mr Tollman is barred from reliance upon s.82 but the factual circumstances on which the United States Government relies are relevant in determining whether it is unjust to extradite him by reason of the passage of time.
  80. Absence of Equivalent Remedy in the United States

  81. The United States Government contended that under United States law Mr Tollman would have the benefit of procedures which it described as at least as effective as English law and arguably more advantageous, to protect him against any unfairness caused by the passage of time. This argument was based, in part, upon an exaggeration of the effect of a decision of the Divisional Court in Woodcock v the Government of New Zealand (q.v. supra). In that case the evidence before the Divisional Court was that in New Zealand, whatever the length and cause of delay, the central question was whether a fair trial could still take place in the particular circumstances. As we have noted (paragraph 46) Simon Brown LJ observed that that approach was very similar to that adopted in the United Kingdom. In those circumstances, the possibility of the New Zealand court itself staying proceedings, if it decided that a fair trial had been become impossible, should not be ignored. He said of the equivalent section under the Extradition Act 1989 (s.11(3)(b)) that the statute required a decision:-
  82. "…not upon whether, having regard to the passage of time, it would be unjust to try the accused, but rather whether it would be unjust to return him…
    To my mind that entitles, indeed requires, this court to have regard to whatever safeguards may exist in the domestic law of the requesting State to ensure that the accused would not be subjected to an unjust trial there. There are, it should be borne in mind, clear advantages in having the question of whether or not a fair trial is now possible decided in the domestic court rather than by us. That court will have an altogether clearer picture than we have of precisely what evidence is available and the issues likely to arise." (see paragraphs 20 and 21)

    That observation stems from the very difficulty facing a judge in this country to which we have already referred.

  83. Mr Jones QC contends that on the basis of that authority it is for the court of the requesting State to determine whether a fair trial is possible, not for the District Judge. That is an impermissible interpretation of Woodcock. The equivalence of the protection afforded by the courts of the requesting State against prejudice in the conduct of a case due to passage of time is an important factor in considering whether it would be unjust to return the accused. But Woodcock is not authority for the proposition that the courts of this country should absolve themselves of their obligation, under s.82, of considering whether it would be unjust to return an accused.
  84. Again, the extreme stance adopted by the US Government hides a feature of this case which should not be ignored. It was plain, on the evidence, that it would be difficult, if not impossible, for Mr Tollman to rely upon delay in achieving the stay or dismissal of the proceedings against him in the United States. Both Professor Beale and James Webster pointed out that absent bad faith, he would not be able to rely upon pre-indictment delay and there was no evidence of bad faith on the part of the United States Government. So far as post-indictment delay, as the District Judge recognised, he would not be able to rely upon that in obtaining a stay of the proceedings since he had voluntarily absented himself from the trial in 2003-2004. Professor Beale stated, in her second statement dated 26 February 2007, that Mr Tollman's refusal to return voluntarily would:-
  85. "…weigh very heavily against his speedy trial claim." (see paragraph 31)
  86. By a speedy trial claim she was referring to a claim that an accused has been deprived of his right, enshrined in the Sixth Amendment, to a speedy trial and thus that he should not be tried. Mr Webster supported that conclusion in his oral evidence.
  87. Accordingly, the District Judge's conclusion that there was no comparable protection to that available under s.82 was justified. But whilst Mr Tollman will not be able to call upon the procedural processes of the US courts, as Mr Webster describes them, to prevent them hearing the case against him, it by no means follows that, were he to be tried in the United States, he would not be able to deploy the effect of delay in support of his defence. To that extent it is worth recalling the approach a court in this jurisdiction would take to the conflict between prosecution and defence as to the effect of the delay as expressed in R (Ebrahim) v Feltham Magistrates Court at paragraph 25). Brooke LJ stressed that holes in the prosecution case, due to the absence of evidence, may be relied upon by a defendant in arguing that the absence of evidence is no fault of his (see paragraph 27). Nothing in the written evidence of the experts or in the transcripts of their oral evidence suggests that a defendant may not similarly, in the United States, deploy the absence of evidence to his advantage where that absence is due to the passage of time.
  88. As to the trial process, we shall assume, in Mr Tollman's favour, that during the course of a trial in New York the judge has no power to exclude evidence where a defendant has been deprived of a fair opportunity to challenge it, analogous to s.78 of the Police and Criminal Evidence Act 1984 in domestic proceedings. Strictly, it might be thought incumbent on the accused to adduce evidence of how a New York court would approach that issue. But the point was not taken by the U.S. Government in cross-examination. We are content to follow the approach of Walker J in Lisowski v Regional Court of Bialystok (Poland) [2006] EWHC 3227, (paragraph 15) without making any decision of principle.
  89. Evidence no Longer Available: Generally

  90. In the instant appeal, the judge makes no reference to objective material to support the contention that evidence which might have proved favourable to his case is no longer available. There was objective evidence as to the likelihood that contemporaneous documents will have gone missing (for example, Eisendrath and Baronkay). But there is no foundation, other than assertions, for the conclusion that evidence which might be favourable to the accused has gone missing. In many cases that would not be surprising. One who is faced with an accusation, as in R v B [2003] 2 Cr App 197 at para 28, for example, of sexual misconduct alleged many years after the supposed event, could not possibly be expected to produce some hint of evidence which supports his defence. But this case is different. Mr Tollman had the benefit of lawyers long before the first indictment was returned, as Mr Okula says in his affidavit filed on 19 April 2007, in which he reveals the extensive role played by Mr Tollman's attorney in the early stages of the United States investigation. So far as we can see this description of the participation in the investigation and the representations made on his behalf has never been denied by Mr Tollman. In those circumstances one might have expected at least some material, even if not evidence, to support the defendant's contention that that which has gone missing might have been favourable to him. There is nothing. His defence focuses on a number of absent or dead witnesses and missing documents without any material to support the conclusion that it would have benefited his defence or undermined the prosecution.
  91. These circumstances make the case quite distinct from Mr Kakis who could establish that the missing witness would have assisted in supporting his alibi. It was known that that witness, Alexandrou, would have given supporting evidence, had he been willing and available to return to Cyprus, because he had given supporting evidence to the Chief Magistrate (784B). It is true that the House of Lords could not form a view as to the strength of the alibi but it did know that Alexandrou was prepared to support it. In Lisowski, the appellant accused of minor fraud in relation to the purchase of a car engine and a claim under an insurance policy for damage caused by a road traffic accident, named the vendors of the original and replacement engine but had had no contact with either during the ensuing period of approximately ten years. No evidence was adduced to suggest that either of the witnesses or relevant documents might be discovered after so long a period. Thus, Walker J described the risk of prejudice as "far from speculative" (paragraph 16). Similarly, in Ashley-Riddle (transcript 26 November 1993) it was plain that the deceased sister-in-law would have been able to give evidence about the applicant's authority to withdraw money held in trust which he was accused of stealing two years before her death. That evidence was described as a potential and not merely a speculative source of evidence as to the crucial question of honesty (see page 9).
  92. The quest, accordingly, must be for some material to suggest that witnesses who have died or witnesses and documents that are no longer available can be said to be potential sources of potentially favourable evidence. In relation to the frauds on the banks, the main witness identified as potentially assisting the defence is the defendant's brother Arnold Tollman, who died on 19 August 2004 (see paragraph 26 of his decision). It is, accordingly, necessary to analyse the evidence upon which this conclusion is based and whether his death in August 2004, some eight years after the investigation began, can be said to have caused injustice to Stanley Tollman by reason of the passage of time.
  93. Arnold Tollman

  94. In his oral evidence Mr Webster described Arnold Tollman as "a key witness" (see page 409, col 1, Rulings and Transcript). He was the 100% shareholder of Paternoster and 90% shareholder in Chelsea Acquisitions, the companies which, it is alleged, were the vehicles used for defrauding the banks, by purporting to purchase the debts at arm's length and then cancel them. Mr Webster asserts that Arnold Tollman would have assisted his brother's defence by giving evidence that he was not recruited to be the shareholder in Paternoster by his brother, but rather by Monty Hundley. Furthermore, he was never instructed to conceal his role in either of those companies. Thirdly, he could have given evidence that he regarded those two companies as investment opportunities and expected to sell shares in them to investors. His death deprived Stanley Tollman of the opportunity of adducing that evidence. The hope that he would have given such evidence was based on Mr Webster's recollection of evidence Arnold Tollman had given to the Grand Jury in May and June 2000 and in an interview at the offices of Kingsley Napley, his London solicitor, in March 2002.
  95. Prior to his death, Arnold Tollman had been ill and, according to his brother, had been unable to travel (see paragraph 23 of the defence statement). According to Stanley Tollman the only discussion he had with his brother about the purchase of shares was when his brother checked that he had no objection to his helping Monty Hundley. According to Stanley Tollman, he told his brother that he had no knowledge of the specific details of his proposal and that he, Arnold, should look into it himself (see paragraph 80). Stanley Tollman then revealed that due to his brother's poor health and inability to hear he could only talk to him face to face when he, Stanley Tollman, was in New York (see paragraph 81). The timing of the onset of Arnold Tollman's illness is of significance. According to Mr Webster, after Arnold Tollman first started at Paternoster he became very ill. He was, according to Mr Webster, "out of commission" for a significant period of time and Stanley Tollman's son-in-law, Mr Raeymakers, and niece's husband, Mr Smith, were recruited to act as officers of Paternoster in his stead. Both gave evidence at the trial although their evidence that they understood Paternoster to be an investment opportunity did not assist the defendants at that trial and, according to Mr Webster, was only derived from Arnold Tollman (see pages 413 and 451).
  96. The source of the expectation that Mr Arnold Tollman would have been able to give evidence that he regarded Paternoster as an investment opportunity appears to have been a one page note of an interview by his lawyer in October 1997. It is recorded that Arnold Tollman had made several phone calls to family and friends to help raise money for Paternoster. Two and a half years later, in May and June 2000, he testified to the Grand Jury that he had only made one phone call (see page 413). According to Mr Webster, by the time of his interview at his London solicitors in March 2002 Mr Arnold Tollman could no longer recall that single phone call. Mr Webster says that it is clear that his memory had declined significantly over the years. By March 2002 questions had to be written out and put on a screen "in incredibly large letters and some of the questions had to be repeated numerous times and practically shouted to him" (see page 413). Following his death, the jurors were told at the trial in 2003-2004 not to speculate as to what he might have said. But it is apparent that from the time he first agreed to become a 100% shareholder in Paternoster his faculties were declining. As Mr Webster accepted in his written evidence, the sole representatives of Paternoster and Chelsea called before the jury in the absence of Arnold Tollman's testimony were Raeymakers and Smith, whose evidence tended to confirm that the companies were mere shells. Mr Smith testified that he did not know anything about the details of transactions but did not believe he was doing anything wrong, and Mr Raeymakers, who was questioned by way of deposition, gave evidence that his only responsibility was to sign whatever documents he was shown (see paragraphs 173-175).
  97. Thus, the evidence of Mr Webster reveals that during the very time when it is alleged that these frauds were taking place Arnold Tollman became ill. In his interview in March 2002 he said:-
  98. "I had been asked originally to help raise the money. I had subsequently got ill and therefore wasn't involved in the effort, but understood that monies had been raised from other sources and I don't know exactly from where because nobody bothered to tell me from where."
  99. Thus, it is difficult to see how his death in August 2004 deprived Stanley Tollman of evidence which would have assisted his defence "greatly". Arnold had been, apparently, so ill as to play no part in exploiting Paternoster as an investment opportunity and, it seems, is unlikely to have been healthy enough to have given persuasive evidence on his brother's behalf since the 1990s. After all, he had had many years of severe illness (see defence statement, paragraph 23). He was certainly too ill to give evidence by 2002 since he could only be interviewed in London. He was also too ill to give evidence in the 2003-2004 trial.
  100. Quite apart from the effects of his illness, there is the evidence of Mr Okula as to Arnold Tollman's credibility. In May 2001 Arnold Tollman had been given effective immunity from prosecution and evidence was taken from him by the prosecution. He had said that he was asked to sign documents on behalf of Paternoster by Sanford Freedman, General Counsel for the Tollman-Hundley companies. He then left the United States for Monaco. On service of an extra-territorial subpoena Arnold Tollman had said he was too ill to return to the United States to give evidence. Accordingly, the interview in March 2002, to which we have already referred, took place at the offices of Kingsley Napley. The interview was tape-recorded and his lawyers were free to disclose to others involved in the investigation the nature of the questions and answers. During the course of that interview he confessed to involvement in evasion of taxes by receipt of unreported income via bank accounts in Guernsey. Mr Oakley alleges that the evidence reveals the sums to be $300,000 per year from the New York accounts of Trafalgar Tours USA, of which Arnold Tollman was Chairman.
  101. Neither the onset of his illness nor his confession to what Mr Okula describes as massive tax fraud figure in the District Judge's decision. Whilst it is true that his death removed any prospect of Arnold Tollman giving any evidence, the combination of his illness from the early 90s and his confession to tax fraud demonstrate that there was no realistic likelihood of his ever being able to give evidence which would have assisted the defence "greatly". The favourable evidence amounts to no more than the evidence that he was recruited by Hundley and that, as earnest of his belief that the purchase of shares afforded a genuine investment opportunity he could recollect making one telephone call (to his former attorney in South Africa). The potential for favourable evidence was so slim and the chances of his being well enough to give any evidence one way or the other was so small that it seems to us not possible to say that by reason of the passage of time injustice has been caused to Stanley Tollman. Even at the time the alleged frauds were taking place Arnold Tollman appears to have been in no position to have assisted his brother in any meaningful respect.
  102. Other Unavailable Witnesses

  103. In relation to the alleged fraud against the bank the District Judge referred also to Mr Eisendrath as one who had been involved in negotiations leading to the Credit Repayment Agreement of 30 September 1992. He says that he could have given material evidence but he died on 29 June 2006. According to Mr Webster, Mr Eisendrath, of First National Bank of Chicago, was one of only three bank witnesses who could give evidence as to the negotiation of the Credit Repayment Agreement (see paragraph 127 of his first witness statement). But when he gave evidence at the trial he had no recollection of the Earnout Agreement in September 1992. This was a year before the Credit Repayment Agreement was finalised. It is difficult to see why he should have had any better recollection of the Credit Repayment Agreement. Mr Webster does not suggest that he gave evidence about that. Mr Webster says that the Credit Repayment Agreement held "the promise of powerful defences for Mr Tollman on the issue of intent and materiality". He particularly relies upon paragraph 12.1, which he described as a rare provision because it gave a right of refusal to both Mr Tollman and Mr Hundley (see paragraph 118). If he is right about the significance of that provision it is difficult to see why Mr Eisendrath's absence of recollection as to why it was negotiated, matters. It will be open to the defence to rely upon that provision to demonstrate that it specifically contemplated the re-purchase of the debt by Mr Tollman and Mr Hundley. The absence of Mr Eisendrath leaves the field free for the defence to advance such a contention, whatever its strength.
  104. Mr Eisendrath did not give any evidence about the Creditor Repayment Agreement (no witnesses were specifically asked about it either by the prosecution or the defence at the trial in 2003-2004; see Webster at paragraph 124). He had no recollection of the circumstances of the Earnout Agreement the year before. It is not possible to say that his death in June 2006 deprived Mr Stanley Tollman of the benefit of evidence which might have assisted him.
  105. Mr Webster's point appears to be not that the death of Mr Eisendrath created the risk of prejudice and, accordingly, injustice, but rather that the earlier passage of time during which his recollection failed created such a risk (see paragraph 128 of his first statement). This raises the issue as to when the passage of time relied upon as causing injustice starts and when it finishes.
  106. The length of time which the Court must consider

  107. S.82 does not restrict consideration of the effects of the passage of time to that for which either the requesting state or the accused is culpable. If either is to blame for a lapse of time that is relevant to consideration of injustice but not determinative. The section requires the court to focus on the effect of the delay on the accused (see in particular Sedley J at page 8 of Ashley Riddle [1993]). The period runs from the time of the offence to the date of the first occasion when the accused could raise the passage of time as a ground for resisting extradition (see Lord Diplock in Kakis at 782G, R v SSHD ex p Patel [1995] 7 ALR at 69 and ex p Tarling [1979] 1 WLR 1417 at 1425-6). But it must always be recalled that the essential objective is to determine whether the effect of that passage of time is to cause injustice. In considering whether the effect of the passage of time has been to cause injustice to the accused, regard to all the circumstances must be taken into account (see Lord Russell in Kakis at page 785G). Although the provisions of s.82 differ from s.8(3) of the Fugitive Offenders Act 1967 in omitting reference to "all the circumstances", the very concept of injustice must require them to be taken into account.
  108. Those circumstances include the question as to whether the events which are said to cause injustice would have occurred if the trial of the accused had taken place at a reasonable time: as Lord Diplock put it:-
  109. "What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude." (Kakis 783C)

    Mr Fitzgerald QC contended that the prosecution was to blame for the fact that the investigation took nearly six years to complete before the first indictment was returned. But the District Judge appears to have accepted that that was a reasonable period (see paragraph 15). No sound basis has been presented to demonstrate that the trial which did take place between 2003 and 2004 of co-defendants did not take place at a reasonable time. The consequences of that conclusion must not be overlooked.

  110. By that time Mr Arnold Tollman, for the reasons we have given, was in no position, by reason of his health, to be able to proffer any more helpful evidence than that disclosed in his interview in March 2002. Mr Eisendrath's evidence at that trial demonstrates that he was in no position to recall the circumstances of the Earnout Agreement and there is no basis for supposing he could recall the Credit Repayment Agreement. In these circumstances, we are unable to identify any injustice caused by the passage of time thereafter in relation to Eisendrath's evidence. There was, in our view, no basis for saying that the passage of time after 2002 deprived Mr Tollman of the opportunity of calling Mr Eisendrath to give material and helpful evidence.
  111. Other Missing Evidence

  112. The District Judge refers, on the basis of Mr Baronkay's evidence, to:-
  113. "…other documents which might have assisted in establishing Mr Tollman's degree of knowledge and his movements",

    which are probably no longer available. This seems to us to be a matter of speculation. There is no sound basis upon which it can be said that those documents might have assisted the defence. The proposition depends merely upon the assertion of Mr Stanley Tollman. This is not to discount his defence statement on the basis that it was unsworn but merely to emphasise the absence of any objective material to suggest that documents, likely to have gone missing, might have assisted the defence.

  114. This is particularly striking in the light of Mr Okula's unchallenged evidence of the participation of Mr Tollman's lawyers during investigations between mid-1996 until early 1999 and during the subsequent Grand Jury investigation. If there had been any material identified to assist Mr Stanley Tollman one would have expected it to have emerged during that period and at least to have been referred to either in the defence statement or by Mr Webster. Yet there is nothing. Despite the active participation of lawyers representing him and Tollman-Hundley nothing, apparently, has emerged which might suggest that documents likely to have gone missing would assist.
  115. No explanation has been proffered as to why none of the nine employees to which Mr Okula refers (paragraph 17) represented by a lawyer or the six employees living in or visiting the New York apartment might not have been of assistance. As we have recalled, the District Judge makes no reference to the early participation of lawyers on behalf of Mr Tollman and of his companies in the investigation. Nor does he, in the light of those facts, refer to any extant objective material to suggest the absence of favourable documents or witnesses. It is not enough merely to show that witnesses' recollections have faded or that documents have gone missing unless there is some basis, other than mere assertion, that that evidence might have been helpful. Absent any basis for thinking that it might be helpful, where lies the risk of prejudice, let alone the injustice?
  116. The only other identified witness is Mrs Tollman herself. No explanation is given as to how she might assist other than to describe her husband's lack of participation in the running of his commercial affairs. But we have already identified many witnesses who might help as to that issue.
  117. The absence of any objective material also revealed a further difficulty with the evidence both of Mr Webster and Mr Passmore. The District Judge recalls Mr Passmore's evidence as to his efforts to trace a number of witnesses which the defence might wish to call and the difficulty such witnesses will have in recalling events in the early 1990s (paragraph 30-31). But again, the District Judge does not record the basis upon which it is thought that such evidence might be helpful in the context of the absence of any material discovered during the course of the defence lawyer's participation in the investigation back in the 1990s. Moreover, when Mr Webster was cross-examined about work undertaken to discover evidence which might be helpful to the defence, on a number of occasions, he claimed the equivalent of legal professional privilege (he described it as "the work product privilege").
  118. Mr Passmore gave evidence, both in writing and orally, as to witnesses he had tried to identify. In his written statement Mr Passmore describes a number of bank witnesses involved in the initial debt restructuring and sale of the deficiency notes, who did not give evidence at the trial in 2003-2004. In his oral evidence he accepted he did not attempt to speak to any of those witnesses since they became apparent in 2004. Mr Passmore felt bound to restrict his evidence on the grounds of privilege, but gave no basis for suggesting that any of those named witnesses might have assisted Mr Tollman other than his client's assertion. Mr Passmore identified five employees who might have provided evidence in support of Stanley Tollman's defence but two refused to do so and three, on legal advice, were not prepared to do so unless the discussions were shared with the prosecutor Mr Okula. It is not wholly clear to us why that should have inhibited Mr Passmore contacting those witnesses if their evidence related to Mr Tollman's work habits and general work practices (see paragraph 26 of Mr Passmore's statement dated 23 February 2007). But the fact that Mr Passmore has been unable to gain assistance from employees has nothing to do with the effect of the passage of time, but rather with the fact that he does not wish the information he obtains from them to be shared with the prosecutor. The fact that co-defendants will, unsurprisingly, not assist the man whose business led to their downfall is not the effect of the passage of time. In those circumstances, it is difficult to see how it can be said that the non-availability of those identified witnesses creates a risk of prejudice by reason of passage of time.
  119. The mere identification of bank witnesses who did not give evidence is not enough. How is it said they would have helped Mr Stanley Tollman? The argument that they might have done is merely based upon the assertion of Mr Webster and Mr Passmore's client. The fact that former employees will either not assist or only do so if they are free to contact the prosecutor does not create a risk of prejudice unless it can be shown that their evidence might have assisted. Again, that it might have done depends solely on the assertion of the accused.
  120. In short, there is no material to support the conclusion that witnesses who might have been helpful are no longer available. Nor is there any material to support the view that the passage of time has had any effect on their availability or otherwise. If the bank witnesses might have assisted, their potential for support ought to have been identified during the course of the investigation when Mr Stanley Tollman had the benefit of legal representation and of participation by his lawyers.
  121. For the reasons we have given we conclude that the passage of time has not had the effect of depriving Mr Stanley Tollman of the opportunity of adducing evidence beneficial to his defence. In the light of the early participation of his lawyers in the investigation the absence of any material to suggest that unavailable evidence would have been helpful is significant. Further, the non-availability of much of the potential evidence relied upon is not a consequence of the passage of time. It would not have been available at the time of the trial in 2003-2004, even if Mr Tollman had chosen to attend.
  122. The Passage of 16 Years

  123. But that is not an end of the matter. We have to consider the fact that the allegations themselves concern events going back as long as sixteen years may itself cause injustice. The concept of injustice overlaps with the concept of oppression, (782-3 in Kakis). There is no want of authority for the proposition that delay by itself can cause injustice, particularly where such delay is culpable. In Sagman v the Government of Turkey [2001] EWHC Admin 474, a delay of fifteen years, coupled with the absence of any significant attempt to obtain extradition, was regarded as, in itself, oppressive and unjust. Similarly, in Oncel v the Governor of HM Prison Brixton and Turkey [2001] EWHC Admin 1142 a delay of over twenty years following a trial at which the accused was acquitted was itself regarded as unjust and oppressive.
  124. There is controversy between the US Government and the defendants as to whether the delay since extradition was sought in March 2003 up to the first hearing of the objection to extradition on the ground of the passage of time, in April 2007, is the fault of the prosecution or the defence. This dispute, reflecting the manner in which so many other disputes in this case have been conducted, has given rise to a vast amount of allegation and counter-allegation as to the methods deployed by both sides. It is important to recall that despite the two and a half years from the time when the first indictment was returned by the Grand Jury to the formal extradition request, and the lengthy and complex extradition hearings which further added to delay, the District Judge did not seek to attribute blame. The grounds upon which he concluded it would be unjust to extradite Mr Tollman were not the mere passage of time but rather the risk of prejudice due to the non-availability of evidence. Nevertheless, we should consider the passage of time since the hearing on 24 April 2002, which Mr Tollman chose not to attend. We must recognise that significant delay was caused by reason of the decision of the United States Government, having requested extradition on 18 March 2003, not to pursue that request until it was withdrawn over a year later on 19 April 2004. Moreover, once it was withdrawn no request for a provisional warrant was received until 6 August 2004. The explanation for its withdrawal, subsequently given by a representative of the Crown Prosecuting Solicitor on 17 August 2004, was that the initial request had been withdrawn on account of insufficient evidence. The withdrawal of the initial request will, as was asserted on behalf of Mr Tollman, have given him the comfort and expectation, over a period of four months, that he would not have to face trial.
  125. Moreover, the withdrawal of the request and the re-submission so as to take advantage of the coming into force of the 2003 Act (the only case, apparently, in which this has occurred) led to litigation which was only concluded in September 2006 by the decision of the Administrative Court. The Lord Chief Justice commented on the lack of expedition on the part of the U.S. Government in applying for permission for judicial review (see paragraph 49). The decision to withdraw the first request and deploy the 2003 Act was a lawful decision and did not constitute an abuse of process. But we recall that Thomas LJ, at the permission hearing, described it as being "particularly unjust" that so little has been achieved over such a protracted period of time when the Tollmans are in their seventies (paragraph 13).
  126. However, like the Senior District Judge, we do not regard that passage of time as by itself the cause of injustice. Unlike cases in which accusations emerge after many years out of the blue, Mr Tollman cannot have been surprised at a request for his extradition. He had chosen not to attend the arraignment hearing in April 2002 after many years during which lawyers had been instructed to follow the process of investigation and make representations as to why he should not be charged. When he chose not to attend the arraignment he knew he was leaving behind Hundley, Freedman and Cutler, all of whom had been involved in the running of Tollman-Hundley. Of course, he cannot be regarded as a fugitive in the sense meant by Lord Diplock in Kakis. But his behaviour is relevant to consideration of whether it is unjust to expect him to face trial. As each year passed, the burden of his years grew heavier. But it must be recalled that at the time he chose to pay so little attention to his commercial affairs, as he himself asserts, he was already in his sixties. To expect a man of 77 to face trial in relation to offences alleged to have been committed when he was already over 60, does not lead us to the conclusion that it would be unjust to do so. He had the opportunity to identify material to support his case during the course of his investigation; he had the opportunity to participate in the trial in which a conclusion of conspiracy to defraud was made, but chose not to do so and left others to face the consequences. In those circumstances, we do not conclude that the passage of time has caused him an injustice.
  127. This Court's Approach to the Judgment of the Senior District Judge

  128. In reaching a conclusion that it would not be unjust to extradite the defendant by virtue of the passage of time we are conscious that we are differing from the conclusion reached by the Senior District Judge. His conclusion was based on his findings of fact as to the non-availability of witnesses which he considered would have helped Mr Tollman. Appeals under s.105 may be brought either on questions of law or fact (see 105(4)). But where the Senior District Judge has made findings of fact this court should hesitate before reaching a contrary conclusion, particularly in the light of the Senior District Judge's wide experience of extradition cases. Similarly, his value judgment as to injustice must be treated with what Lord Morris in Union of India v Narung [1978] AC 247 described, albeit in relation to the Divisional Court, as "the very greatest respect" (279G).
  129. "No contrary opinion will lightly be formed. But if after due consideration a contrary opinion is in fact formed, those upon whom devolves the duty of considering the matter cannot in my view be absolved or inhibited from expressing their opinion. If they were, there would be little purpose in having an appeal." (279H)

    There is ample authority demonstrating differing views as to justice and injustice in which either the District Judge or the Divisional Court or the House of Lords has reached a contrary view. For the reasons we have given, we are satisfied that the Senior District Judge did make errors of law and of fact in his approach to an appraisal of the significance of the evidence as relied on as showing that extradition would be unjust by reason of the passage of time.

    The U.S. Government's Further Points of Law

  130. The U.S. Government further contend that the judge wrongly discounted Mr Okula's evidence because it was not given orally. The defence had argued that the evidence of Mr Okula should not be admitted. On 24 April 2007 the judge ruled as to Mr Okula's evidence:-
  131. "I shall have to attach such weight to it as I think appropriate. The weight is clearly influenced by the fact that Mr Okula is not here to give evidence or to be cross-examined."
  132. The decision of the judge makes no reference to that ruling. It, apparently, covered not only the evidence Mr Okula gave about the availability of witnesses and documents, but also the specific allegations made against him of oppressive conduct. Mr Jones QC, on behalf of the United States Government, contended that the judge's approach to Mr Okula's evidence offends what he describes as a principle expressed by Laws LJ in Bermingham and Others v Director of the Serious Fraud Office and Others [2006] 3 All ER 239:-
  133. "The prosecutor cannot be penalised, under s.82,87 or by any other route, for limiting the material he places before the court to what is required for the proper execution of the court's function under s.78."

    Mr Jones QC contends that the effect of the judge's ruling is to penalise the US Government for failing to call Mr Okula whose evidence was admissible, pursuant to s.202(3) and (4), since Mr Okula's statement was duly authenticated.

  134. In our view, Mr Jones misconstrues the passage in Bermingham on which he relies. The defence (represented by Mr Jones QC) had contended that the extradition was an abuse of process in part upon the basis that the extradition was sought in bad faith without evidence to support the allegations of fraud against the bank. He "excoriated" the US Government's refusal to disclose any of the evidential material beyond that which was contained in the extradition request. He submitted that whilst not required to produce evidence of the merits, a failure would place the Government at peril of adverse rulings under s.82 or s.87 (compatibility with convention rights). Laws LJ's observation was merely a response to that argument, as he put it:-
  135. "His submission looks for a statutory regime which Parliament has chosen not to provide."

    The observation of Laws LJ has nothing to do with the weight to be given by the judge to evidence given by the Government's witness as to the availability or otherwise of evidence which might assist the defence.

  136. That, however, does not resolve the question as to whether the judge was correct to be influenced by the fact that Mr Okula did not give oral evidence. In that respect we must distinguish between the evidence in relation to prejudice to the conduct of the defence by reason of the passage of time and the evidence in relation to the oppressive conduct alleged against him.
  137. In relation to the criticisms made of Mr Okula's behaviour the judge heard oral evidence from defence witnesses. Mr Okula was at a disadvantage by reason of the fact that he did not give oral evidence, susceptible to cross-examination. Absent such oral evidence there was always the risk, as in fact occurred, that the judge would credit the complaints made by those whom the defence called. The judge was entitled to do so.
  138. The rest of Mr Okula's evidence falls, in our view, into a different category. The rival contentions as to the extent to which Mr Tollman has been prejudiced depended essentially on the District Judge's assessment as to the nature and cogency of the prosecution case and the extent to which other evidence might have assisted. Nothing now turns on this point.
  139. Mr Jones QC also relied upon the fact Mr Tollman did not give evidence. But there was no obligation to do so. He must sufficiently disclose his defence in order to assess whether there is a risk of prejudice to that defence caused by the passage of time. The accused disclosed the nature of his defence to an extent sufficient to assess whether the passage of time caused any injustice.
  140. The Guernsey Tax Charges

  141. The prosecution case against both and Mrs Tollman was that they had failed to include as income in their joint tax returns for 1994-1999 monies paid from the Travel Corporation, a company they both owned or controlled, to bank accounts at the Royal Bank of Canada in Guernsey. Mrs Tollman was alleged to have signed the tax return. The payments were described in the internal working papers of the Travel Corporation group accountants as "consultancy payments".
  142. In his defence case statement Mr Tollman denied that the money described as consultancy payments was personal income. Again, he said he relied heavily on his lawyers and on this occasion, also on his wife. In relation to this defence, two witnesses are now dead. The chartered accountant responsible for the categorisation of the funds as consultancy payments was Derek Evans, who retired in March 1998 and died in December 2002. He would clearly have been an important witness in considering whether his categorisation of the monies as consultancy payments connoted income. A Mr Clark, an accountant and former IRS agent and Group Manager of the Criminal Tax Division, gave written evidence that without further information from Derek Evans, or the now deceased solicitor, Mr Lipkin, responsible for the design and setting up of the Travel Corporation's structure, it was not possible to determine the proper tax categorisation of the "consultancy" payments.
  143. Clearly, Mrs Tollman would also have been a crucial witness. It is obvious the evidence of Evans and Lipkin would have been of significance. They are unlikely to have accepted that, as professionals, they disguised the nature of the payments. The death of Mr Evans, of Mr Lipkin (who was not referred to by the Senior District Judge) and the incapacity of Mrs Tollman, clearly create a risk of prejudice in the conduct of Mr Tollman's defence as to the tax allegations. The significance of those witnesses and, in particular, their potential as supporting his defence, was not the subject of any serious challenge by the US Government. This may, in part, have been due to the late service of the material on which the respondents relied in relation to the Guernsey allegations. But all that was advanced by Mr Hardy on behalf of the US Government was that it neither accepted nor rejected the evidence advanced on behalf of Mr Tollman. We can find no basis upon which to disagree with the Senior District Judge's conclusions in relation to the Guernsey tax charges.
  144. Oppression

  145. Although, as we have said, the concept of injustice and oppression overlap, it is convenient to deal with oppression as a separate ground. Mr Jones QC developed an extensive argument in seeking to challenge findings that the prosecutor Mr Okula's actions were reprehensible. The Senior District Judge did not find that they were of themselves oppressive. Indeed, it is difficult to see how he could have concluded that those actions came within s.82 which restricts the statutory bar to oppression by reason of the passage of time. But the Senior District Judge says that those actions are:-
  146. "…factors to be considered when assessing the overall fairness in reaching the decisions whether it would be unjust or oppressive for Mr Tollman to be returned."
  147. We must say, with respect, we are not wholly clear how the Senior District Judge deployed his finding that Mr Okula's actions were reprehensible in reaching his conclusion. The threats, as reported to Mrs Tollman, are said to have exacerbated her condition. It is difficult to see how they are relevant to the Senior District Judge's conclusion that extradition of Mr Tollman would undoubtedly endanger the health of Mrs Tollman and thus cause oppression through her to Mr Tollman.
  148. The findings were attacked, in part, on the basis of evidence which was not laid before the Senior District Judge as to the inaccuracy of part of the evidence of Mr Robert Fink, on whom the Senior District Judge relied. Mr Fink had referred to an occasion when it was said Mr Okula had behaved in an oppressive manner in court; further evidence from Mr Okula, dated 29 August 2007, by reference to a transcript of the proceedings, shows that Mr Okula was not in court. Further, the approach of Mr Okula to procuring the custody of Mr Stanley Tollman's nephew from Canada did in fact have the support from his superiors, since the approach of the United States to extradition harks back to the days of the bounty hunter. That, of course, does not explain why it was that Mr Okula was found to have misled the Canadian court.
  149. But all of this, although it occupied an inordinate part of the United States Government's complaints, has little, if anything, to do with the instant appeal. Mr Okula's actions cannot form a free-standing basis for the statutory bar, nor do we see they are relevant, other than in the most tangential way. We need not consider whether the fresh evidence was inadmissible.
  150. The real question turns on the Senior District Judge's conclusion that the dangers to the health of Mrs Tollman were her husband to be extradited are such that it would be oppressive for him to be extradited, since he has cared for her after some fifty-three years of marriage. This conclusion is said to be analogous to the factual conclusion in Cookeson v Government of Australia [2001] EWHC Admin 149. In that case, the accused's son suffered a severe schizophrenic illness. His principle carer was the accused and his son had benefited from that care by avoiding more frequent periods in hospital. Latham LJ concluded, with some reservation, that there was a risk that the son would suffer significantly if his father was not available to care for him and that that risk would cause oppression not only to the son but to the accused (see paragraph 31).
  151. The Senior District Judge concluded that the extradition of Mr Tollman would endanger not only Mrs Tollman's health but possibly her life. That risk was a cause of oppression, not just to Mrs Tollman, but to Mr Tollman. If the appeal in relation to Mrs Tollman is to be rejected it is difficult to see how those factual conclusions can be appealed in relation to her husband. We conclude that there is no sufficient basis for challenging Mr Tollman's reliance upon the risk of exacerbation of her medical condition were he to be extradited.
  152. But that does not dispose of this appeal in Mr Tollman's favour. The Senior District Judge made it clear that his conclusion was based on the combination of a risk of prejudice such as to amount to injustice and oppression (see paragraph 43). It is by no means clear what his view would have been had the only ground for resisting extradition been those matters he identified in paragraphs 41 and 42. In the light of our conclusions as to injustice the only basis upon which extradition could be barred under s.82 would be the risk of endangering further Mrs Tollman's health. We cannot, in the light of the Senior District Judge's conclusion as to the oppression caused to Mr Tollman, allow the appeal. We cannot say that the judge ought to have decided the relevant question differently and thus would not have been required to order the person's discharge (see s.1061(a) and (4)). But we can and will direct the judge to decide the relevant question again in the light of our conclusions as to injustice. The judge should decide the relevant question, namely, the question which resulted in the order for the Mr Tollman's discharge, again, in the light of our conclusions. He should consider whether the oppression to Mr Tollman, through endangering Mrs Tollman's health, would of itself be sufficient to maintain his decision to discharge, in the light of our observations as to injustice generally and the risk of prejudice.
  153. The Future

  154. The prospect of yet a further hearing in relation to this extradition is dispiriting. It is not appropriate for us to make further case management decisions; that is a matter for the Senior District Judge. But he will no doubt be concerned to ensure that there is only a short further oral hearing at which any further evidence is produced well in advance and arguments are reduced to writing. We have particularly in mind the need for up to date evidence as to the care which, in fact, Mr Tollman has provided to Mrs Tollman and whether such care is available from other sources. The evidence as to that was not non-existent, but was hardly substantial since the evidence was mainly directed to Mrs Tollman's condition.
  155. Further, there seems to us no reason why the prosecution should not be given the opportunity to obtain evidence on those issues.
  156. We should also comment that were the United States Government to agree not to prosecute Mrs Tollman, particularly in the light of her health and the fact that we have not disturbed the Senior District Judge's refusal to extradite Mr Tollman in relation to those matters with which his wife is charged, she could return to the United States and be cared for there during the period of Mr Tollman's return and during his trial.
  157. Our regret that this appeal does not finally determine the question of Mr Tollman's extradition prompts further observations on the conduct of this litigation. The United States Government is concerned that, if unsuccessful, the accused intends to advance further arguments, firstly as to whether the 2003 Act is consistent with Article 5 of the European Convention on Human Rights and secondly, what are described as "human rights arguments".
  158. This court has no jurisdiction to rule on the propriety of advancing further arguments in support of discharge. The Lord Chief Justice, in his judgment dated 6 September 2006, made clear the procedure which should have been adopted at paragraphs 84 and 112. If there were further arguments besides abuse to be advanced they should have been fully identified and explained, in supporting skeleton arguments, at the time of the case management conference to which the Lord Chief Justice referred at paragraph 112(2). The defence appear to be under the illusion that because the structure of the 2003 Act is to require issues which would lead to discharge to be determined consecutively, and contingent on the resolution of a previous issue, (see, e.g., s.87(1)) it must follow that each argument which is advanced to resist extradition must be considered at separate hearings and only developed prior to that later hearing. Having regard to the enormous demands on the time of the Senior District Judge and those colleagues of his who determine extradition cases, there may be considerable intervals between the determination of one issue and the next. Each issue may itself require a number of days for resolution.
  159. Whilst it is inevitable that the judge's determinations must follow sequentially in accordance with the statutory structure, we do not think it follows that an accused is entitled to wait until the determination of one before advancing his arguments on the next issue which may arise. We suggest that at the outset he should identify each and every point he wishes to make, including points in relation to abuse and human rights, and set out with proper concision the basis of each and every argument. It may be that it will be unnecessary to advance some of those arguments in the light of an earlier favourable determination. We also appreciate that it will not be possible for the judge at the case management conference to allot time and dates for arguments which may never need to be advanced. But at least the court and the requesting state will have full advance notice as to what is involved and the crabbed and contumacious manner in which this litigation has been advanced, from time to time, by both sides, may be avoided.
  160. The difficulties of achieving the statutory objective of a simple and speedy process which the 2003 Act attempted to achieve might also be diminished by greater assistance offered to those responsible for determining extradition cases. Although we have differed, to an extent, from the conclusions of the Senior District Judge, we can only wonder at how he managed to maintain so authoritative a grip upon proceedings littered with detailed, lengthy and diverse written argument, based upon an abundance of factual material. The determination of such extradition cases cries out for assistance analogous to that which is provided to coroners. In cases of this length and complexity we can see good reason why High Court Judges should he appointed as Deputy District Judges and nominated to manage and conduct a case such as this. Such a judge would have an opportunity, not available to the Senior District Judge or to his colleagues, to run a case from beginning to end on consecutive days, hearing all such arguments as arise, and determining them as the resistance to extradition proceeds. But these suggestions are of no assistance in reaching the ever-receding objective of a final conclusion in this case.

  161.  

    Mr Justice Ouseley :

    The Appeal against the Discharge of Beatrice Tollman

  162. The US Government sought the extradition of Beatrice Tollman, a US citizen, on seven charges of defrauding the US Revenue, and making false tax returns. These charges are intimately linked to the tax fraud charges on which her husband's extradition is sought; they are alleged to be co-conspirators in the tax fraud. She is alleged to have received income from companies controlled by her and her husband running to millions of dollars which she fraudulently failed to declare to the US Revenue on her tax returns for the years 1995-2000. She was charged in January 2003 and a warrant was issued for her arrest. She was then nearly 70 years old; the alleged offences were committed when she was in her 60s.
  163. The extradition proceedings followed the same path as her husband's. However, in June 2006 Mr Lewis QC on her behalf indicated at a Divisional Court hearing that an issue might arise in her case in relation to her health. By October 2006, she asserted that it would be oppressive or unjust to extradite her by reason of her health, as provided for in section 91 of the Extradition Act 2003. A similar claim by her husband was not pursued.
  164. Section 91 provides:
  165. "(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
    (2) The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.
    (3) The judge must-
    (a) order the person's discharge, or
    (b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied."
  166. On 29 May 2007, District Judge Workman ruled that Beatrice Tollman should be discharged under section 91. It is against that decision that the US Government now appeals. The High Court's powers on appeal against a decision that a person should be discharged under section 91 are the same under sections 105-6 as for any other discharge decision.
  167. The District Judge referred to the procedural history of the application and the disclosure to the US Government of Mrs Tollman's expert medical evidence, to which we shall have to return. Three doctors were called on her behalf: Dr Pierides, a consultant psychiatrist, Dr Bramham, a clinical neurophysiologist, and Professor Kopelman, a Professor of Neuropsychiatry. The judge accepted their high expertise and their evidence. He said that the physical aspects of her ill-health - serious heart and musculoskeletal problems - were individually insufficient to lead to her discharge but collectively were serious and played a part in the primary aspects of her health problems.
  168. He continued:
  169. "All three doctors conclude that Mrs Tollman is suffering from moderately severe to severe clinical depression. All three doctors also conclude that she is suffering from severe anxiety. The identified impairment of intelligence and reasoning with impairment of memory amount to cognitive impairments of moderate severity. All three doctors conclude that she is suffering from pseudo dementia which results not from primary brain disease but from severe psychological stresses or disorders such as depression or severe anxiety.
    This court has good reasons to view with scepticism diagnoses of dementia. However, all three doctors are satisfied that their diagnosis is accurate and was based upon symptoms or tests that could not be faked or feigned.
    In the absence of any evidence in rebuttal and having heard all three doctors give their evidence, I am satisfied on the evidence before me that Mrs Tollman is suffering from moderately severe to severe clinical depression and cognitive impairments of a moderate severity, particular impairments of intelligence and reasoning which give rise to a medical diagnosis of pseudo dementia."
  170. The District Judge accepted a submission from Mr Jones that the US Courts would take Mrs Tollman's condition into account in deciding whether she should be tried and that appropriate medical treatment could be provided there. However, he concluded that in her present state of health :
  171. "All doctors agree that Mrs Tollman is unable to instruct lawyers in these extradition proceedings and all three doctors were emphatic that she was not in a fit state to give evidence. As she is unable to effectively participate in these extradition proceedings, in the procedures of a trial in the United States of America, or to give evidence, I conclude that it would be unjust to extradite her at this stage. I am also satisfied from the evidence of Dr Pierides that whilst her physical and mental health are deteriorating, she is not at risk at present. However, he makes it clear that if she were to be extradited, her frail state of health would be greatly exacerbated and her life would be at risk."
  172. He rejected the possibility contemplated by section 91 of adjourning the hearing until it would no longer be unjust or oppressive to extradite her, because although pseudo dementia was reversible, "it was clear from all the medical evidence before me that the continuation of the proceedings would have a devastating effect upon the defendant's health." There was evidence that she might never recover and that her mental condition was deteriorating increasingly fast. He thought it unlikely that she would recover her physical and mental health within the near future. Accordingly he ordered her immediate discharge.
  173. This means of course that other arguments which she might have, for example in relation to the passage of time or oppression for other reasons, have not been argued.
  174. The US Government contends in this appeal that the procedure which the District Judge adopted over the medical evidence called on behalf of Mrs Tollman was unfair and deprived it of a proper opportunity to challenge or rebut that evidence. That is its primary ground of appeal. It also argues that the District Judge misdirected himself as to the relevant law and was not entitled to reach the conclusion on the evidence which he had that the test for discharge had been satisfied.
  175. We turn to that primary ground. The three expert reports on behalf of Mrs Tollman were served on the District Judge on 15 March 2007, although he did not read them at that stage. They were not served on the prosecution because Mrs Tollman contended that they were confidential. They would only be served on the Crown Prosecution Service and English counsel if they gave undertakings that the reports would not be disclosed to the US Government. The CPS and Mr Jones did not consider that they should be or could be required to give such undertakings. They adopted the stance that the whole of the reports should be disclosed to them without restrictions as to their ability to show them to the representatives of the US Government and in particular to the Assistant US Attorney in charge of the request, Mr Okula. They refused to engage in any discussions with Mrs Tollman's representatives over which parts of the reports were or were not confidential. They regarded the US Government as their lay client, although at other times referring to it as an interested party. Mrs Tollman's stance was that the US Government was an interested party or rather, as it evolved, an interested person, and not a lay client. Anything confidential but disclosed to the CPS could only be shown to the US Government if the CPS made out a case to the District Judge as to why particular passages from the reports needed to be shown to it. Mrs Tollman's lawyers eventually conceded that parts of the reports were not confidential and that redacted reports could be disclosed without any such undertaking.
  176. The crucial confidentiality issue between the parties was not dissemination of the contents of the reports to the wider public, notwithstanding some of the language of parts of the reports, and the wide ranging nature of the debate. Such an issue might have been resolved with little debate by a section 11 Contempt of Court Act Order, as it eventually was. The crucial issue was their disclosure to the US Government and to Mr Okula in particular in view of the personally vindictive and oppressive approach which he was seen by the Tollmans to have brought to these proceedings and other proceedings involving members of her family. The apparent stance on behalf of Mrs Tollman was that relevant parts could only be disclosed to the US Government after an order by the District Judge, relevance being determined by whether it was necessary for the US Government to see those parts.
  177. On 24 April 2007, the District Judge heard argument, along the lines adumbrated above, over the position of the US Government as interested party or client, and ordered that the reports, and previously withheld medical certificates excusing Mrs Tollman's non-attendance at relevant earlier hearings, be served in full on the CPS but with the areas over which confidentiality was claimed clearly marked. The circulation of those documents was restricted to the CPS, English counsel and any doctor appointed by the CPS to review the medical reports. In effect their content could not be disclosed to the US Government unless the CPS made an application to him for permission to disclose any of the parts marked as confidential. Redacted versions were made available for service on the US Government. The District Judge adopted the position for which Mr Lewis had contended. The section 91 issue was to be heard on 14 May 2007.
  178. Reports, marked with the parts over which confidentiality was claimed, were served on the Court and offered to the CPS on 30 April 2007, together with the redacted version which could be passed on to the US Government without more ado. The CPS declined to accept the unredacted versions of the reports, because it did not consider that it could accept the restrictions imposed by the District Judge.
  179. On 14 May, Mr Lewis on behalf of Mrs Tollman sought an order under section 11 of the Contempt of Court Act 1981 to prevent press publication of confidential medical material. He thought that that would have the effect of preventing disclosure to the US Government. However, after that Order was made, the District Judge indicated that he did not think that the Order would prevent Mr Jones communicating the contents of the reports to the US Government as they were read and cross-examined to in court. Mr Lewis realised that there was therefore no sense in seeking to provide unredacted versions on the terms of the District Judge's previous Order, and he ceased to object to the CPS showing the full version of the reports to the US Government.
  180. The full reports were disclosed at midday that day. Mr Jones initially told the District Judge that the CPS had decided not to have a busy doctor in attendance, and sought deferral of cross-examination, but after reading the reports said that he was prepared to accept the reports as they stood and make his arguments upon them. He told us that his tactical thinking was that that would preclude the experts producing further significant oral evidence in chief. He left open till the next day the possibility that he might wish to call expert evidence in rebuttal. His offer to take the reports as read was not accepted and the three experts were called at 2pm. As he had feared, further extensive, and, he submits, quite different and graver, material was elicited in chief without warning. He cross-examined two of the experts briefly.
  181. The three experts were also asked questions in "cross-examination" by Mr Fitzgerald QC on behalf of Mr Tollman about the effect which extraditing Mr Tollman would have on his wife and about her ability to act as a witness on his behalf, whether she was a defendant or not. This was aimed at supporting an argument that it would be oppressive to return him. This was not an issue which the reports covered. Nor was it part of the section 91 issues with which the hearing was concerned. They gave answers which were of material assistance to Mr Tollman, as must have been anticipated. Mr Jones raised no objection to these questions being asked.
  182. In the light of the new material, particularly about the fitness of Mrs Tollman to give evidence, Mr Jones said that he needed the opportunity to consult doctors appointed by the CPS.
  183. On 15 May 2007, Mr Hardy sought an adjournment of the section 91 proceedings essentially because of the way in which he said the evidence had developed and changed, an argument resisted by Mr Lewis. The CPS had instructed a Dr Joseph, and Mr Hardy said that the CPS, unknown to counsel, had expected him to attend the previous day, but that the CPS had failed to notify him. There was uncertainty over how long a further medical examination of Mrs Tollman and subsequent report would take. The District Judge allowed the CPS until 25 May 2007 to serve rebuttal evidence, against the objections of Mr Lewis who contended that there had been no significant change in the expert evidence. This timetable was dictated by the desire of the District Judge to make progress in the hearing of the passage of time arguments.
  184. On 29 May 2007, at the resumed hearing, no application for an adjournment was made and Mr Jones expressed himself content to have the issue determined on the material before the District Judge and on which Mr Jones then made his submissions. The Court was told that it had not been practicable to obtain medical evidence in the time available. In so far as issues of foreign law arose as to how the factual material might be treated by the US Courts, Mr Jones relied upon the presumption that, in the absence of contrary evidence, foreign law was the same as English law. The District Judge then made the ruling which is under appeal.
  185. In essence Mr Jones submitted that the procedure adopted by the District Judge, permitting Mrs Tollman to serve material upon the CPS and English counsel on terms which meant that it could not be shown to the US Government, was unlawful and that the CPS had had no choice but to refuse to accept that unredacted material. The CPS and Counsel were in effect solicitors and counsel to the requesting state and could not receive material on such terms. Were that practice followed, the US Government would simply instruct lawyers other than the CPS to pursue extradition requests. Any CPS or District Judge decision not to disclose material would be challengeable by the US Government in the UK Courts by way of judicial review. The same problem would apply to any requesting government and any documents over which confidentiality on whatever basis could be claimed.
  186. The way in which the issue was resolved showed the impracticalities of the order made: the hearing on a contested confidentiality matter could not be in private and, subject to a section 11 Contempt of Court Act Order, the representatives of the US Government could then hear the contested confidential material when it was deployed in court and give instructions as to how it wanted to proceed. The US Government's role as a requesting state meant that it should see the material. It could affect a decision whether to continue with the extradition request, or on what evidence to seek on medical condition or treatment, or on how such an issue would be treated in any trial after extradition.
  187. There would have been further delay if there had been a debate before the District Judge, over disclosure of every redacted clause of the reports, and the redactions were very substantial. It would have taken a long time to challenge the disputed order by way of judicial review, and the US Government was keen to make progress with the case, unlike the Tollmans.
  188. The CPS had been entitled to refuse to accept service of the unredacted medical reports on the terms upon which they were served, and its stance had been vindicated by what had happened. The redactions had been so severe that the CPS and Counsel had no forewarning of the substance of the expert material to be deployed against it. They had then faced significant changes as a result of further evidence in chief and the "cross-examination" by Mr Fitzgerald. The CPS needed to make progress with the case and in effect had had no choice in the circumstances but to accept the short adjournment granted and do the best it could. But the procedure had been unfair and the CPS medical case had not been heard.
  189. Mr Lewis submitted that the District Judge was right to seek to maintain the confidentiality of the medical reports and to protect Mrs Tollman's Article 8 rights as best he could, striking a fair balance in the way he had done. The US Government was not a party nor the client of the CPS. In any event, the problems faced by the CPS were entirely of its own making. It had decided not to accept the reports on the basis upon which the District Judge had ordered they be served, and it had flouted his Order. That Order stood until overturned on appeal. The CPS could have had the reports and decided what action to take and it could have gone to the District Judge and asked for passages to be disclosed to the US Government. There had been no significant change in the medical evidence through questions in chief. The CPS had decided to ask for no further adjournments.
  190. It is not necessary for us to resolve the issue as to the true relationship between the authorities of the requesting state and the CPS, whether client and lawyer, agent, interested party or interested person, although there is sound authority supportive of that lawyer-client relationship e.g. R v DPP ex p. Thom CO/2894/94 23 November 1994 applied in R (Raissi) v SSHD [2007] EWCA Civ 243.
  191. The starting point is that the application for which the reports were prepared and deployed was an application for an order of discharge in the extradition proceedings, in which the US was the requesting state. Mrs Tollman did not have to make the section 91 application but chose to do so and to support it by medical reports. The reports at issue were the very ones upon which she sought to rely in court proceedings, in substance against the US Government. Although inevitably they referred to her medical history and earlier treatments, they were not prior reports which she had been forced to disclose through some disclosure process. There was no basis upon which they could be kept from the CPS, their counsel or doctors whom they might consider it wise to instruct, nor did Mrs Tollman's lawyers seek to do so. Their contents, when deployed in court and questioned, could be heard by the members of the public and, subject to a section 11 Contempt of Court Act Order, reported on in full by the press.
  192. On the face of it, the CPS was entitled to use the reports for all proper purposes in the proceedings in which it was engaged on behalf of the US Government. There would normally have been no issue but that showing the reports to the authorities of the requesting state would have been a perfectly proper use of them for the purposes of the proceedings, however that relationship is characterised: client, agent, interested party or interested person. This relationship, if not that of lawyer and client, obviously has its own very particular characteristics. The requesting state has a crucial interest in the tactics and evidence which a defendant may wish to deploy in order to defeat its request for extradition. It may have knowledge of facts particular to the case, or of its own laws and practices which are relevant to issues which may be raised. As the requesting state's authorities have the real interest in pursuing an extradition, their reaction to the nature and strength of evidence may be crucial to the continuance of proceedings. The CPS cannot realistically be expected to conduct these proceedings without taking instructions from the requesting state on behalf of which it is acting. Such an Order as the District Judge made, is unfair to the requesting state. Analogies with the CPS relationship to the police in England in that respect are imperfect, and capable of misleading.
  193. We have been shown no jurisdictional or discretionary basis for the imposition of this barrier by the District Judge, especially in relation to material relied on by one party to the extradition proceedings to advance her case against the requesting state. No statutory provision was identified. Article 8 ECHR does not provide one because the qualifications in Article 8(2) would prevent the medical reports relied on in legal proceedings from being kept from those whose role in the conduct of the proceedings meant that they should have them. The decision in the Pinochet related case of R v SSHD ex parte Belgium [2000] EWHC Admin 293 is of no assistance here. That case concerned the disclosure to a state which was not the requesting state of a report obtained by the SSHD for the purposes of the functions which he had to perform within the then statutory framework.
  194. Mr Jones was entirely right to point out the practical difficulties which such an Order creates as showing that it is without legal foundation. The US Government and other requesting states, facing confidentiality claims on medical and other grounds, could readily instruct private firms to act for them, establishing the solicitor-client relationship which Mr Lewis accepted would have entitled them to see the material. The US Government could challenge by judicial review any decision of the CPS to accept material on the basis ordered by the District Judge and any decision on it which the District Judge made, and could properly expect to see the withheld material for those purposes. In the end, unless there were to be a hearing in private, from which the requesting government were excluded, the material would become available to it though belatedly and after delay. The District Judge was right that a lawful section 11 Order could not prevent the US Government attending and listening to cross-examination about the reports, or the CPS from showing it the reports.
  195. This was not a case in which the parties were exploring ways in which the medical details were to be kept from the press or public at large, by sensitive reference in court for example; that was not the reason for the debate here. The absence of co-operation about the way in which the material might be dealt with in court when being given in evidence did not result from a desire on the part of the CPS to give it wide publicity. Rather it was in order to obtain the material for the US Government contrary to the wishes of Mrs Tollman or to illustrate in advance how impractical was the stance actually adopted on behalf of Mrs Tollman in relation to the US Government. We very much doubt that, but for the particular view which the Tollmans had of the particular Assistant US Attorney here, this unusual issue of confidentiality would have arisen. Any issue of wider publicity could have been resolved separately, perhaps but not necessarily with a section 11 Contempt of Court Act Order.
  196. We cannot rule out that the attitude of a lawyer acting for an opponent might be such that some special personal restriction might lawfully be imposed. But although Mr Okula's supposed attitude may have been the principal part of the motivation for the argument about confidentiality, that was not the basis upon which the argument proceeded. It ranged far more widely leading to the almost total redaction of material from the medical reports when served on the CPS. Besides, there was no substantial evidence that Mr Okula would make improper use of the medical material, even if found to be a vindictive and oppressive prosecutor, and the Tollmans' case on that score is considerably overstated. The District Judge went too far in preventing what was in substance a main party to criminal proceedings seeing what an opposing main party had produced and relied on to win an application it made in those proceedings. Whatever confidentiality might attach to the reports was not a confidentiality which could be protected in that way.
  197. Accordingly, we accept Mr Jones' contention that the Order of 24 April 2007 should not have been made. We also accept that it put Mr Jones and the CPS in a difficult position: should they accept the unredacted material, and create a barrier between themselves and the US Government, whether or not the relationship was truly one of lawyer and client, with all that that might entail for how the extradition proceedings continued? Should they wait for circumstances to show that they were right as to the impracticability of the Order, as they did, and risk that that might leave them short of time to challenge or rebut the material, especially as they were keen for the proceedings to move rapidly to a conclusion? Should they do as envisaged by the Order or challenge it?
  198. We are quite satisfied that the CPS and Mr Jones ought to have sought to make the Order work or to have challenged it, rather than adopting the stance which they did. The District Judge was himself faced with an issue he found difficult to resolve: there was some evidential basis for the confidentiality concern in the light of what the experts said about disclosure to the public and to the US Government, and there was some basis for concern about the attitude and conduct of this particular Assistant US Attorney. The District Judge too wanted to make progress with the complicated and drawn out hearings involving both Tollmans, and to ensure that the reports were seen by at least some people on the other side so that they could make some decisions about how they wanted to proceed. He sought a solution which seemed to hold a fair balance between the parties and to enable the US Government eventually to see the material which the CPS thought it should see and persuaded him it should see, once the CPS had been able to appraise it for itself. The solution proposed by Mr Lewis seemed to him fair and not to prevent fuller disclosure to the US after consideration and argument, although that process could have become very prolonged indeed.
  199. Once the Order had been made, it became the obligation of the parties to try to make it work, rather than to subvert it and its purpose - unless of course they were to challenge it directly which did not happen. Although we appreciate the concern that this would mean yet another trip to the Divisional Court which could delay the passage of time arguments while this argument was resolved, it is for the parties to make the case management orders work if they are not challenged or varied. The response of the CPS and Mr Jones should have been to knuckle down and follow the procedure in the Order. Parties to litigation really have no choice but to do that, however much they disagree with the Order, unless they challenge it and get it suspended meanwhile, or obtain variations in the light of experience of its effect.
  200. We reject however as misconceived Mr Lewis' assertion that the CPS and Mr Jones acted in disobedience to the Order. They were not required to accept service of the unredacted versions; a procedure was laid down which provided for what should be done on behalf of Mrs Tollman and what the CPS could then do if it accepted service. The risk would be that if the CPS did not accept the unredacted versions, it would be the author of its own misfortune if time did not permit it to challenge the evidence in the way it would have wished or to obtain rebuttal evidence.
  201. Indeed, the reaction of the CPS to the Order was no more disrespectful towards it than that of the lawyers acting on behalf of Mrs Tollman, and their complaints about the CPS and Mr Jones are more than a little hypocritical here. The District Judge must surely have envisaged that his Order would be met by a conscientious consideration on behalf of Mrs Tollman of what material in the reports was truly confidential, worrying to Mrs Tollman, and which she wished not to be disclosed to the US Government and to Mr Okula in particular, so that the redactions would have a solid basis. In fact, the redactions were almost total and gutted the reports of anything of any relevance or value to the section 91 application. It is self-evident from reading them that confidentiality could not realistically even be claimed for some redacted parts of the reports, and even less so for the reason that Mrs Tollman would not want the US and Mr Okula to know certain matters about her medical history. The District Judge cannot have expected the blanket deletion of anything medical; he plainly expected a judgment by a self-professedly reasonable Respondent as to what matters she really felt strongly that Mr Okula should not see. His Order made no sense otherwise. No conscientious consideration can have been given to the exercise. Indeed, part of one report which justified withholding the rest of it from the public and the US Government was disclosed but not the part of another report which, dealing with that same issue, took a rather less gloomy view.
  202. Once the reports were disclosed in full on 14 May 2007, the CPS was in a position to make what applications it thought fit for adjournments to prepare better for cross-examination, to obtain expert medical assistance for that purpose and to contemplate thereafter what rebuttal evidence it wished to call. It did not seek an adjournment to give it more time in which to prepare for cross-examination on the reports. Mr Jones decided that he could make its case adequately on the reports as they stood in writing.
  203. We accept Mr Jones' contention that the evidence elicited in chief from two of the three experts by Mr Lewis went considerably beyond elucidation or elaboration. In the case of two experts it plainly raised the gravity of what was being said on behalf of Mrs Tollman considerably beyond the level in the reports. The whole tenor of their evidence was plainly more serious as a result of Mr Fitzgerald's "cross-examination". The fact that the topics for example of fitness to plead were in the written reports is beside the point: what mattered was the degree of gravity and specificity which the experts were attaching to them. But even then Mr Jones did not actually seek an adjournment for the purpose of cross-examination, including for the purposes of taking expert assistance on what points to put. There was no application for an adjournment in order that the views of the US Government be sought for the purposes of cross-examination alone, distinguished from the question of whether expert evidence should be called. Mr Jones' concern related to rebuttal evidence and a further medical examination of Mrs Tollman for that purpose.
  204. Mr Jones may not have been able to conduct his case as he would have wished as a result of the Order and the need for speedier progress to be made in the proceedings. But even if he was in the position he was as a result of the CPS decision not to accept the redacted reports, he could still have sought a short adjournment for the purposes of cross-examination. We take the view that an overnight adjournment if necessary would have furnished a reasonably adequate opportunity in this instance to prepare a vigorous cross-examination on the content of the reports and the changes to the evidence which examination in chief elicited. We have no doubt but that a short adjournment would have been granted, as it should have been if sought. It appears to have been the fault of the CPS that no expert medical assistance was present on the 14 May to assist in briefing counsel for cross-examination. The Order led to no actual unfairness in terms of the ability of the CPS to cross-examine the three experts.
  205. Turning to rebuttal evidence, the decision of the District Judge to grant an adjournment until 25 May for obtaining medical evidence on behalf of the CPS was fair. It was the CPS fault that no doctor was further advanced. The CPS has not shown that it was impractical to instruct a medical expert in the time available. There was some contrary evidence from the Respondent. The CPS did not come up with a realistic timetable for the production of further evidence either. Mrs Tollman was not refusing at that stage to have a further examination, although how she would have reacted to an order is not fully clear. A review of the experts' reports might have been productive anyway without such an examination. Besides, in the end, Mr Jones did not pursue the application for an adjournment to obtain evidence after 25 May 2007. The fact that it would have been opposed is neither here nor there. The District Judge cannot be regarded as having acted unfairly when he proceeded to determine the issue on the material before him, since the CPS accepted that as what he should do.
  206. As Mr Jones recognised, the appeal on this ground really turns on whether he was entitled to adopt the stance which he did in relation to the Order of 24 April 2007. He was not so entitled, even though it was an order which should not have been made. That primary ground of appeal accordingly fails.
  207. The remaining grounds can be dealt with shortly. Mr Jones submitted that Woodcock v Government of New Zealand [2003] EWHC 2268 Admin had altered the law in relation to the way in which section 91 should be approached. The court had to have regard to the way in which the courts of the requesting state would consider her health when deciding whether to try her and how to do so, including whether she would be granted bail. The court had to have regard to the treatment available for her ailments in the country of trial. The section 91 application was really just a disguised assertion that the trial in the US would breach Article 6 ECHR. The argument before the District Judge was that Woodcock meant that, as the courts of the US would consider fitness to plead and health matters, it was for them to decide those matters when Mrs Tollman had been extradited, and it could not be unjust or unfair to return her in those circumstances. It appears that Mr Jones' analysis of Woodcock was influential in his view that the reports of the three experts could be given in evidence without serious challenge by the CPS and without affecting the US Government's prospects of success to any great extent.
  208. Of course, what actually happens in the country of trial over medical treatment, bail, the way in which fitness to plead is assessed, the way in which the ill may be tried are all factors relevant to answering the question posed within section 91. The closer the courts of that country are to applying the same test in the same way as the UK courts, the more potent is the argument that return and trial would not be unjust or oppressive because of the protections there available.
  209. We do not accept that those questions can be answered for the purposes of section 91 simply by saying that in the absence of evidence the law is to be assumed to be the same as in the UK. The more fundamental problem is that section 91 lays a duty upon the UK Court to reach its own view on whether it would be unjust or oppressive to extradite a person because of her physical or mental condition. Woodcock shows that what happens in the country of trial is relevant to but not determinative of how the UK courts should judge the issues.
  210. The District Judge notes the argument from Mr Jones but nowhere states explicitly his conclusions on its application to the case he was considering. The District Judge was faced with an argument that went too far, was too black and white as to the role of the courts of trial. We have set out above the conclusion which he reached on Mrs Tollman's fitness to plead. If that conclusion was open to him on the evidence before him, he was obliged to discharge her. It would have been an abrogation of his duty under section 91 to have allowed her to be extradited on the assumption that the US Courts would reach the same conclusion and the more so were he to have decided that they might not reach that same conclusion. That said, the more measured argument which legitimately follows from Woodcock will usually require a more tailored consideration on the facts of how the trial court would deal with such issues.
  211. However, there is nothing in the District Judge's decision which show that he has made an error of law in his approach to the scope of section 91 in the light of Woodcock and that second ground of appeal also fails.
  212. Mr Jones' final ground of appeal was that the District Judge was not entitled to conclude on the evidence before him that the requirements of section 91 for the discharge of Mrs Tollman were satisfied. The basis of this is not that the strength of the medical opinions which were expressed to him fell below the required standard for section 91 to bite. They did not and that would have been an impossible contention. Taking the reports and the oral evidence at face value, they do indeed provide a sufficient basis for the conclusion reached by the District Judge.
  213. There is some criticism of the level of reasoning expressed by the doctors but there is nothing in that to show that the District Judge made an error of law or fact. It is suggested that in so far as the doctors relied on the "legal wrangling", as Professor Kopelman put it, as a cause of Mrs Tollman's depression, the remedy was in her own hands to cease the proceedings or to speed them up, and complaint was made, in a way which has become too common on both sides, about the tactics of the other. The doctors had not been given a balanced history of how the proceedings had become as prolonged as they had.
  214. The District Judge in our judgment was entitled to accept their evidence as to her reaction to the problems which she faced as she saw them, when analysing a case of depression, without going through the highly contentious and differently coloured accounts of the proceedings in order to establish the truth about all these points, and the innumerable mutual complaints. Had Mrs Tollman been found by the District Judge to be wrong about how the case had come to the pass which it had, it is difficult to see that on the evidence that would have lightened her diagnosed depression. The soundness of her views may go to the ease with which the condition could be reversed or was actually serious, if it existed at all. But if a person is genuinely depressed for objectively unsound reasons, which is not an uncommon state of affairs, the decision-maker still has to deal with the facts of the condition as they are.
  215. We accept however that there may be circumstances in which problems, albeit genuine, may be self-induced through delaying tactics or may be obviously exaggerated, where it may not be unjust or oppressive to extradite the individual. But the CPS does not have a strong enough case here for us to hold that the District Judge erred in fact or law.
  216. Mr Jones also pointed to the way in which Mr Passmore, her solicitor, described her participation in giving instructions and working on the defence in late 2006. Mr Jones submitted that this was inconsistent with Dr Pierides assessment of her ability in that respect in November 2006. The District Judge referred to that argument. But it is clear from his decision that by May 2007, and in the light of all the evidence which he heard, he was satisfied that Mrs Tollman was as ill as he described. There is always room for argument about a diagnosis of this nature. That was properly the subject for cross-examination. The District Judge was plainly entitled to reach the conclusion he did on the material before him, and although we have read and considered it all, there is no error of fact or law which would entitle us to interfere with his decision discharging Mrs Tollman. This last ground of appeal also fails.
  217. Accordingly, the appeal against the decision under section 91 discharging Mrs Tollman is dismissed.


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