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The Government of the United States of America V Buruji Kashamu: In the Bow Street Magistrates’ Court: Judgment by Tim Workman, Designated District Judge, 10 January 2003:
The United States Government seeks the extradition on two charges that in English law would amount to conspiracy to evade the prohibition of the importation of heroin and a conspiracy to supply heroin. The conspiracies are said to have taken place between January 1193 and June 1995 and are alleged to have involved a very substantial quantity of drugs. Among others involved in the conspiracy are Ellen Wolters, Catherine Wolters and Nicholas Fillmore. These three co-conspirators have all appeared before the court in America and have admitted participation in the conspiracy.
Mr Kashamu an extradition proceedings have had a long and troubled legal history. In an earlier judgment I outlined that history. For the sake of completeness and because I am still addressing the issue of abuse of process I repeat the history here.
On the 29th May 1999 I committed the defendant to await the decision of the Secretary of State with a view to returning him to America on the evidence which was then before me. That committal the subject of an appeal to the Administrative Court heard on the 6th October 2000, the Administrative Court quashed my initial decision when it transpired the United States Authorities have not made full disclosure to the court about the identification procedures the had conducted in the United States. In essence, in May 1999 I was invited to consider evidence from Mr Fillmmore (one of the conspirators) which was to effect that he had positively identified the defendant from a poorly reproduced photograph which was said to have been of the defendant. By the time the matter came before the Administrative Court it had been conceded the photograph was not obtained in the way that it had been described namely by surveillance. Further, it transpired that Mr Fillmore had positively rejected a photograph of far better quality, being a photograph which was undoubtedly that of the defendant. This evidence was not disclosed to me at the original committal hearing. Had that evidence been available I think it is unlikely that I would have been able to apply the Turnball principles and be satisfied there was sufficient evidence of Identification. To that extent the court was misled. When it became apparent that it was likely that the Administrative Court would quash the committal, the American Government sought a further provisional warrant from me having obtained further evidence of identification. I was concerned that I was being asked to issue a further provisional warrant whilst the other committal proceedings were still extant, but I did no on the understanding that the Administrative Court were to be made aware of the existence of the warrant and could give guidance if it was thought necessary.
Mr Kashamu was re-arrested immediately after the Administrative Court judgment and the second committal proceedings began before me. On the 13th March 2001 I gave a preliminary ruling in respect of what I considered to be my responsibilities concerning an application to stay the proceedings on the grounds of phase of process. In essence, I felt that this was a matter which should be dealt with by the High Court through an application for writ of habear corpus, On the 23rd November 2001 the Divisional Court reviewed the Authorities and concluded that this court, rather than the High Court, was the appropriate tribunal for hearing evidence and submissions and finding facts relevant to abuse. As a result, the matter has been returned to me to determine the issue as to whether there should be a stay of the present proceedings on the grounds that to proceed would be an abuse of process of this court.
It is accepted by both the Government and the Defence that this second set of proceedings initiated against Mr Kashamu is not of itself enough to render these proceedings an abuse. It was, however, submitted to me that the degree and policy of the unfairness perpetrated in the first proceedings was so grave that these second set of proceedings could be regarded as abuse. It was further submitted that the detention could be regarded as arbitrary because of the bad faith of the earlier proceedings, or the deliberate abuse of those procedures. The decision of the Administrative Court makes it clear that it is not necessary for the Government to establish that the ultimate trial in another country will be fair nor that the motives of the Government in bringing the prosecution are beyond reproach. It is however necessary for them to satisfy me that the proceedings are not arbitrary, that is that there is nothing which render it unfair to try the defendant. Clearly, issues touching upon because the prosecuting Authorities in America should not be allowed to make a second attempt to commit the defendant because of their deliberate decision to mislead the court in the first proceedings. In this respect I have found as a fact that the United States Authorities were aware that Mr Fillmore had been a good likeness of the defendant in a photograph which he rejected in terms in which he positively stated that the photograph was not one of the co-conspirators. I am satisfied that as a matter of fact this evidence was not conveyed to the Prosecuting Authority in this country. I am told that this evidence was withheld as a result of a misunderstanding of the obligations of the American Prosecuting Authority in terms of disclosure. I am assured that it was not withheld in an effort to mislead the court. I am satisfied that the decision of the American Authorities to withhold that fact was deliberate. I am satisfied that a result of that that decision the court was misled but I cannot be satisfied that there was a deliberate intention on the part of the United States Government to mislead the court.
The Prosecution no longer place any weight upon the evidence of Mr Fillmore’s evidence and indeed for the purposed of this committal I am disregarding that evidence.
It is submitted that the withholding of Mr Fillmore’s full evidence is such that it taints the second set of proceedings and renders the Prosecution arbitrary. If the America Authorities were still intent upon relying on Mr Filmore’s evidence I would have some sympathy with that submission. However, as no weight is no being attached to that evidence I do not see how that can properly affect the second set of proceedings, except in so far as it adds weight to the two further submissions that Mr FitzGerald placed before me.
The second submission is based upon the hypothesis that if Mr Fillmore’s evidence had been presented to this court in its entirety at the first hearing it would be highly unlikely that there would have been a committal. For the purpose of these proceedings I am of the view that it will be highly likely that I would have found that there was no case for the defendant whether a fair trial is possible must be a matter for the trial judge in the event of the defendant being returned.
Mr FitzGerald QC on behalf of the defendant submits that these proceedings are an abuse because the prosecuting Authorities in America should not be allowed to make a second attempt to commit the defendant because of their deliberate decision to mislead the court in the first proceedings. In this respect I have found as a fact that the United States Authorities were aware that Mr Fillmore had been shown a good likeness of the defendant in a photograph which he rejected in terms in which he positively stated that the photograph was not one of the co-conspirators. I am satisfied that as a matter of fact this evidence was not conveyed to the Prosecuting Authority in this country. I am told that this evidence was withheld as a result of a misunderstanding of the obligations of the American Prosecuting Authority in terms of disclosure. I am assured that it was not withheld in an effort to mislead the court. I am satisfied that the decision of the American Authorities to withhold that fact was deliberate. I am satisfied that as a result of that that decision the court was misled but I cannot be satisfied that there was a deliberate intention on the part of the United States Government to mislead the court.
Mr FitzGerald’s submission continues that by applying the reasoning in Regina v Horshan Justice Ex parte Reoves, it would be vexatious and oppressive to permit the Prosecution to pursue the charges which were basically the same as those on which there was earlier no case to answer. I have however distinguished the case of Regina v Horsham Justices and Reeves from the present facts, not merely because these are extradition proceedings, but because the essence of the hypothetical no case to answer in the first set of proceedings would have been on the basis that there was insufficient evidence of identification. In this second committal there is now some evidence of identification which was not presented to the court in the first committal. I am therefore satisfied that the quality of the evidence now presented to me is very different from that presented to the Administrative Court to me on the first committal.
Mr FitzGerald’s submissions do not end there. He addresses the new identification evidence. It is submitted that the evidence of both of the new identification witnesses has to be regarded as suspicious because there is no formal evidence of how the identification exercises carried out by the witnesses did in fact occur. They were shown the same photo spread as the discredited witness Fillmore and it seems that there had been no change in the positioning of the photographs. It is suggested that it is highly likely that both Ellon and Catherine Wolters knew of the Administrative Court’s judgment of the 6th October before they took part in the identification exercise on the 17th and 15th November. It is suggested that if they knew the detail of the judgment they would know the position of the photograph in the photo spread presented to them because it was referred to in the judgment. As further evidence of irregularity, the Defence point to the fact that Ellon Wolters had been offered a plea bargain which seems (by American standards) to have been regarded as extraordinary generous. It is suggested that this agreement was reached shortly before she was asked to identify the photograph.
By the close of the Prosecution’s case I had come to the preliminary view that these issues touch upon the fairness of the trial itself and, if there had been any abuse of process, it would be for the trial judge to consider whether a fair trial is possible rather than whether it is unfair to try the defendant. For my own part, I think these issues are essentially matters of admissibility and credibility rather than abuse of process.
I reached these conclusions on the 28th February 2002 and since that date this court has sat on a number of occasions to hear evidence on behalf of the defence from witnesses who have attended to give depositions. The American Government has also submitted evidence in rebuttal.
I have received evidence on behalf of the Defence from a number of witnesses, which I now summarize. Mr Morohundiya is an officer of the National Drug Law Enforcement Agency in Nigeria, in the course of his evidence he acknowledges that the defendant was an informant of the drug agency and that he was aware of the existence of the defendant’s brother, a man named Alhaji Adewale Adeshina Kashamu. “Alhaji” was a man who was wanted by the agency for drugs offences. He told me that the two brothers has a striking resemblance to each other. He also told me about the policing of the border between Nigeria and Benin.
Maltre Claudine Mougni also gave evidence to me about the enforcement of border controls.
Reuben Nwako gave evidence to me as the former head of the Directorate of Investigations of the National Drug Law Enforcement Agency. He confirmed that the defendant had helped the Agency in providing information as to the fighting of drug crime and that they were also aware of Mr Kashamu’s brother, Adewale Kashamu, who was regarded as a drug dealer.
Bagbonu Gaston the officer in charge of the Interpol Office in Benin gave evidence about the defendant’s assistance to the police, and in particular to the information he provided in relation to his brother and those associated with him. He referred the documents dated 1993 and 1994. If those documents are valid documents there is clear evidence of the assistance the defendant was providing. Mr Coleman on behalf of the United States Government had to challenge those documents, making the allegation that they had been fabricated and only recently inserted into the archives of Interpol in Benin. I could find no evidence to support that contention. I accept the evidence of Mr Gaston. That evidence, coupled with the earlier evidence satisfies me that the defendant was providing the Police and Drug Enforcement Agencies with information about his brother and about the co-conspirators whose evidence of identification forms the basis of the prosecution’s case.
To counter the evidence that the defendant was informing on his brother and co-conspirators and to counter the suggestion that he has been mistaken for his brother, the United States Government have tendered in evidence three letters from the National Drug Law Enforcement Agency dated 21st March 2001, 15th November 2001 and 8th May 2002. In these the Agency vehemently denies that the defendant was an informant and maintains that Alhaji Adewale Adeshina Kashamu had died before the defendant was wanted by the drug agency in 1994. It is suggested that the defendant’s brother died whilst attempting to escape from Customs in 1989. However, in the letter of the 8th May 2002 the Agency acknowledges that Mr Adewale Kashamu had been properly issued with a Nigerian passport in 1990 and that there was no evidence that he died in the custody of Nigerian Customs. Other letters from the National Drug Law Enforcement Agency acknowledge that Mr Kashamu was an informant and that Alhaji Adewale Adeshina Kashamu was the subject of a drug investigation which resulted in the closure of his motor car shop in Lagos.
The Government seek to maintain that the defendant was not an informant and that his brother died in 1989. The suggestion has been put, but denied, that the letters retracting those allegations were either forgeries or were written as a result of pressure from the defendant, probably exerted by the defendant’s lawyer in Lagos. As to the allegation that the letters were forgeries, I have received evidence from handwriting experts. Mrs Maureen Ward Gandy on behalf of the defendant concludes that the letters were “possibly” written by the same writer but in the absence of any further evidence could not say they were “most probably” written by the same writer. Mr Ada John Craske examined the letters on behalf of the American Government and he is unable to come to a conclusive decision.
On that inconclusive evidence from the handwriting experts, I cannot be satisfied that the two “retraction” letters are forgeries. I therefore have to look to the oral evidence that I have received from the officers of the National Drug Law Enforcement Agency. I have concluded that the documents are authentic.
I then have to consider whether they are documents containing statements of truth or whether pressure has been exerted upon the officials which would cause them to write untruthful letters.
I have heard evidence from Mr Rafael Oluyede, who is Mr Kashamu’s lawyer in Lagos. I have also read transcripts of interviews (currently recorded) that he carried out in Lagos with officers of the National Drug Law Enforcement Agency. I am satisfied that Mr Oluyedo put his client’s case forcefully and indicated that High Court proceedings were being contemplated. This may have provided a motive for writing factually inaccurate letters.
The counter-argument advanced by the Defence is that similar but different pressure was being exerted through the United States Government’s agent in Lagos on the Agency to provide incriminating letters.
I have been unable to resolve whether undue pressure was exerted either by the United States Government or by the defendant. I therefore looked at the provenance of the letters and in particular to the letters produced by the Agency, allegedly being letters sent in 1993 and 1994 by the defendant. In respect of those documents I accept the evidence of the various witnesses who have given evidence from the Enforcement Agency and conclude that the letters were written by the defendant in 1993 and 1994.
As a result of the evidence that the Defence has placed before me and the evidence which the Government has tendered in rebuttal, I find the following facts:
1)That the defendant has a brother, Alhaji Adewale Adeshina Kashamu who bears a striking resemblance to that of his brother, the defendant before me.
2)That Burunji Kashamu was an informal to Interpol in Benin, Interpol in Toga and to the National Law Drug Enforcement Agency in Nigeria.
3)He has provided that information since 1993 and has informed upon his brother Alhaji Adewale Adeshima Kashamu and the co-conspirators Fillmore and the Wolters sisters.
4)I am satisfied that Alhaji Adewale Adeshina Kashamu was not killed in 1989 by Customs and I am satisfied that a bank account verified by Alhaji’s address, passport and telephone numbers was being operated as late as October 2000.
5)I am satisfied that the defendant had a proprietary interest in a company known as Kasmal Company Limited which had a Daewoo car dealership but I am satisfied from the documentary evidence that that company was jointly directed by the defendant and his brother.
6)I have been provided with the dates on which the defendant was not in the country of Benin but I found the evidence the relating to the enforcement of the border between Nigeria and Benin unclear and misleading. I have therefore attached little or no weight in it and cannot reach any conclusions as to whether the meetings outlined by the Wolters sisters could or could not have taken place.
In the light of these findings of fact, I have applied the following tests.
In relation to the abuse of process argument, the Defence have to satisfy me that it is more likely than not that the United State Government, through its agents, have acted in bad faith, in this case knowingly bringing and continuing these proceedings when the Government knew that the evidence it was putting forward was untrue and misleading. I have found as a fact that certain of the assertions made by the Government are untrue.
One significant example is in the evidence now before me is the claim that Buruji Kashamu was not an informant. If the Government was aware of that fact and persisted in putting forward such untruthful evidence, it would plainly be evidence to support an abuse of process submission. However, the evidence emanates from an Agency in Nigeria over which the American Government has no authority. It is then passed to America and then to this country and I cannot be satisfied that it was probable that the Government knew that evidence was false. Although I, and no doubt any trial judge, will be concerned at the lack of care by the United State prosecuting authorities in examining and testing this evidence, I am unable to conclude that the Defence have demonstrated that this was probably done with the knowledge of the United States Government. In those circumstances I do not find that there has been an abuse of process.
I now turn to consider the submission that there is now no prime facts case. I am applying the test agreed by Mr. Fitz Gerald and Mr. Coleman that all the evidence taken as a whole must be sufficient to say that there is a case to answer. Mr. Coleman points to my original finding that the evidence originally tendered by the Government in those proceedings amounted to a prime fact case when the Prosecution concluded its case. He submits that the evidence I have now heard from the Defense does not undermine the Identification evidence given by Ellen Wolters and Catherine Wolters. Their evidence, he submits, is still unequivocal and the evidence from the Defense merely gives rise to issue on the credibility of their evidence which is essentially a matter for the trial.
Ellen Wolters’ evidence is far from precise but she claims to have met the man whom she knows as Alhaji sometime between January 1993 and June 1995. On the basis of that meeting, in November 2000 she identifies a photograph of the defendant as being the individual that she knows as Alhaji. In my judgment the evidence of alleged voice recognition in respect of the tape recording has no probative value whatsoever; indeed there is no evidence of whose voice was recorded. Catherine Wolters claims to have met Alhaji on one occasion in January 1993 and possibly on another occasion in November 1993. She was asked to identify the individual she knows as Alhaji in November 2000, some seven years after she last saw him. For the reasons I gave earlier, I attach no weight to the alleged recognition of a voice on a tape recording.
Against that evidence I have to weigh the facts that I have found from the evidence adduced by the Defence. I am satisfied that the defendant has a brother who bears a striking resemblance to him. The brother was not killed in an incident with Customs in 1989 and his name included the name Alhaji. I am satisfied that the defendant’s brother was one of the co-conspirators in the drugs importation which involved Catherine and Ellen Wolters. I am satisfied that the defendant informed both Interpol and the National Drug Law Enforcement Agency of the activities of this group
I am mindful of Mr Coleman’s submission that this is a matter of the credibility of the identification witnesses which should essentially remain a matter for a jury.
I am however satisfied that the overwhelming evidence here is such that the identification evidence already tenuous , has now been so undermined as to make it incredible and valueless. In those circumstances there is then no prime facie case against the defendant and I propose to discharge him.
Tim Workman
Designated District Judge
10 January 2003
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