52 I infer from this and the Minister's endorsement of the memorandum that she probably did form the opinion, in the course of making her decision on 30 March 1999, that the three offences were serious ones, ie, not trivial in nature.
53 But Mr Sheil does not suggest, either in his affidavit or in any of the information he prepared for the Minister, that he looked at any material touching on just what were the facts and circumstances of these three offences before making these comments, save in so far as there was such material in the attachments to his submission of 26 March 1999, which he lists in par 5 of his affidavit. The material provided by the applicant's solicitor, which Mr Sheil attached to his Ministerial submission, emphasises the need for the Minister to obtain information as to those facts and circumstances and to consider whether the three offences were trivial ones. It was also said in that material from the solicitor that none of the three charges involved the receipt by the applicant of any money or other benefit or that anyone suffered any financial or other detriment. This was supported by the Lord Chancellor's answer to the question as to "the amount of money involved" in these three charges, which was before the Minister.
54 Against this background, it is of particular significance that, as appears from his attachment G, Mr Sheil relied only on three matters, ie, on the determination of the Serious Fraud Office to proceed in relation to the three charges (no doubt against the background of his knowledge that, as the Serious Fraud Office said in its letter to the Attorney-General's Department of 23 May 1997, it is only concerned with investigating and prosecuting allegations of serious or complex fraud, less serious frauds being the province of the Crown Prosecution Service and the police) and on the fact that each carries a maximum punishment of ten years' imprisonment and that "the alleged conduct involved substantial amounts of money", in expressing his opinion to the Minister that the charges cannot be said to be trivial in nature.
55 The third of these considerations is unfortunately erroneous or cannot be said, by reference to any of the material before the Court, to be an accurate comment with respect to any of the three extradition offences (although it would have been perfectly accurate in relation to the original five extradition offences in respect of which a similar comment was made in the Departmental memorandum of 10 July 1998 at p 2: one of the conspiracy offences which, by 30 March 1999 the United Kingdom authorities had abandoned, involved the allegation that the applicant and his co-accused had conspired to deprive the victim of valuable property, including the large sum of Ł25,000).
56 The second consideration, the maximum imposable penalty, that Mr Sheil drew to the Minister's attention is relevant to the consideration the Minister was required to give to whether the offences were trivial in nature. But, for the reasons already given, the Minister could not properly form a view on that issue without knowing, in addition, something of the actual circumstances of the three offences.
57 That the Serious Fraud Office only prosecutes the more significant frauds, the first consideration upon which Mr Sheil relied in expressing his view to the Minister about the non-trivial nature of these three offences, is a matter relevant to that issue. It was the only material that entitled the Minister to reach a conclusion to that effect and it was of only slender significance.
58 If, as I think likely, the Minister also had regard to Mr Sheil's erroneous statement about the offences involving substantial amounts of money in considering the matters she was required by reg 7 to advert to when she made her surrender decision, the only result is that, while the Minister did consider whether the offences were trivial in nature, she may have reached a wrong conclusion on that matter. But, as the Full Court in Foster pointed out at par [66], there is no reviewable error simply because the decision-maker makes a wrong finding of fact.
59 Even if the Minister's surrender decision can be said to be made in circumstances in which she did not merely make an error of fact by relying on what Mr Sheil had to say about the money involved in the offences, but instead, took into account an irrelevant consideration in concluding that the offences were serious, rather than trivial ones, such a flawed approach to the making of the decision does not mean that the surrender decision itself is necessarily flawed with reviewable error because it is not by itself determinative of anything for or against surrender. The Minister still has to make a discretionary judgment on all the circumstances of the case and form the opinion that they show that surrender for the offence would impose too severe a punishment on the person before being required to refuse surrender.
60 The matter of severity of punishment is the next question for consideration.
61 Injustice to the accused, in the form of risk of prejudice in relation to the conduct of the proposed trial, and hardship to the accused resulting from his own personal circumstances, are matters to be considered in determining whether surrender would be unjust or oppressive: cf Sackville J's discussion of the words "unjust" and "oppressive" in s 34(2) the Extradition Act 1988 (Cth) in New Zealand v Venkataya (1995) 57 FCR 151 at 165. As to the question of the severity of punishment, surrender itself can hardly qualify as a punishment; it is the consequences that will flow from surrender and, in particular the punishment the person is likely to receive if convicted of the extradition offence, that must, I think, be the focus for consideration when the question is whether surrender will be too severe a punishment. That the severity of the punishment is to be considered by the Minister "having regard to all the circumstances" is, I think, an indication that what is here relevant is not just the theoretical maximum punishment imposable under the law of the extradition country, but also the actual facts and circumstances of the particular extradition offence: it is that which will govern, in large part, what the fugitive's situation will be, if ultimately sentenced for the extradition offence.
62 That reg 7 requires the Minister to form an opinion on the severity of punishment "having regard to all the circumstances" cannot, however, entitle the Minister here to have regard to the punishment he might receive if convicted of any of the thirteen offences additional to the three extradition offences. Although the Minister must form the opinion as to the severity of punishment "having regard to all the circumstances", the question can arise only when the Minister is determining whether a person should be surrendered "in relation to a qualifying extradition offence". I would therefore read the phrase "having regard to all the circumstances" as limited to those circumstances that relate to the qualifying extradition offence or offences. Otherwise the restriction imposed by the Parliament by s 22(3)(d) on extradition would be deprived of its intended effect.
63 There is reason to think that the Minister failed to advert to the punishment issue that she was required by reg 7 to take into account in so far as she was prevented from doing that by the lack of any information before her to indicate the likely punishment this applicant would receive if extradited to the United Kingdom and convicted there only of the three extradition offences. There was much in the material before her to which I have referred which emphasised the importance of the Minister considering the question of the severity of the punishment to which the applicant would be exposed by surrender, having regard particularly to the fact that he would only be prosecuted on three of the original five offences for which he was eligible for surrender and had spent so long in custody awaiting extradition. That material was such as to require her to give consideration to the question raised by reg 7 of the severity of punishment that surrender of the applicant might involve before she could validly make her decision for the applicant's surrender. There is no reason to doubt the ready availability of such information. There would appear, from the ease of communication between the Department and the Serious Fraud Office revealed by the evidence, no difficulty in obtaining an informed opinion from that Office as to the punishment the appellant would be likely to receive if convicted in the United Kingdom of only the three extradition offences.
64 Mr Sheil, in the memorandum and attachments he prepared in March 1999 for the Minister's consideration, did not, however, give any consideration to the issue of the likely severity of punishment or put any material before the Minister on that issue, save incidentally, in so far as he observed that each offence carried a maximum punishment of ten years' imprisonment and, erroneously, that "the alleged conduct involved substantial amounts of money", as reasons why the offences could be considered to be other than trivial in nature. In some cases, eg, where serious violence to the person or fraud involving persons being deprived of large sums constitutes the gravamen of the extradition offence, the Minister may need nothing more than that to form the opinion that a significant sentence of imprisonment is likely to be imposed if the fugitive is convicted. But, here, where the information, so far as it goes, indicates that the prosecuting authorities are only entitled to proceed against the person, if extradited, on a small number of charges not on their face stamped with the character of serious offences, the Minister cannot be in a position to discharge her obligation under the law to consider the punishment question in exercising her discretion to surrender or not surrender if all she knows is what Mr Sheil here had to say.
65 The severity of punishment issue was considered by the Minister's advisers who prepared the submission with recommendations of 10 July 1998 and attachment B to that submission, on which the Minister relied to make her earlier surrender decision of 24 July 1998: this material was included with Mr Sheil's memorandum and was before the Minister when she made her decision of 30 March last. However, I do not regard what was then said as providing information that the Minister could properly act on to form a view on the punishment issue now in question for two reasons. First, the comments in the 10 July 1998 memorandum did not deal with the punishment likely to be imposed if the applicant were convicted of only the three offences that are all that remain of present relevance, but rather with the five offences, as a group, which included the conspiracy charge that involved the loss to the victim of valuable property including Ł25,000 in cash. The Minister was well able to conclude that this offence, even without the other four, was likely to attract substantial punishment. That the only three charges still of relevance will do that is not at all obvious. Secondly, the comments in attachment B to this July 1998 memorandum, in contrasting (in pars 22 and 24) the likely sentences the five offences would attract in the United Kingdom with the sentences that would be imposed by an Australian court and then (in par 25) suggesting that it is unnecessary to form a view on the sentences a United Kingdom court would be likely in fact to impose on the applicant, wrongly divert attention from the comparison that is required to be made by reg 7, viz, a comparison between the actual sentence the United Kingdom court is likely to impose and the circumstance of present relevance - the punishment the applicant had already suffered by way of loss of liberty while awaiting extradition.
66 The Minister has not given any reasons for her decision of 30 March 1999. She is not obliged to do so. But as Watkins LJ pointed out in R v Secretary of State for the Home Department; Ex parte Sinclair [1992] Imm AR 293 at 301, while the failure to give reasons where there is no obligation to do that does not of itself attract judicial review of a Minister's surrender decision, the absence of reasons does not necessarily leave the decision immune from such a challenge. A failure to give reasons when the evidence shows the advice given to the Minister did not advert to a relevant consideration leaves uncontradicted the inference that that consideration was overlooked when the decision was made.
67 I find that the Minister had no information before her on the likely punishment the applicant would receive, if convicted of the three extradition offences, and so could not do what she was required by reg 7 to do when she made her decision of 30 March 1999, viz, have regard to whether surrender would be too severe a punishment for him.
68 However, after only one month in custody awaiting extradition, the applicant applied for and was granted bail under s 15(2) the Extradition Act 1988 (Cth). The only reason the applicant was imprisoned for thirteen and a half of the total of the fourteen and a half months he spent in custody up to the time of the Minister's decision of 30 March 1999 was that, after being granted bail on 13 May 1997, he breached his bail conditions, absconded and, when finally located, was taken back into custody in February 1998. Almost all of the time he has spent in custody and which he says the Minister failed to take into account, thereby invalidating her surrender decision, was the result of his own breach of the terms on which he was given his freedom in May 1997. I do not wish to say that, where a person bailed in extradition proceedings breaches his bail conditions with the result that he spends a period of time back in custody awaiting extradition, that person may not be able to show that there are special circumstances which require the Minister to take into account his loss of liberty, even though self-inflicted. But where, as here, nothing more is relied on than its duration to show that a quite substantial period spent in custody awaiting extradition is such as to make surrender too severe a punishment for the person, and if it further appears, as is also the case here, that that was brought about by the person's own deliberate conduct, I do not think that is a matter which the Minister is under any obligation to consider in order to discharge her duty under reg 7. Otherwise a fugitive able to get bail could, when facing extradition on less serious charges, deliberately create a situation in which he could defeat an otherwise proper extradition. That in making the decision the Minister did not advert to something which, if she had adverted to it, could not have affected her decision in favour of surrender, cannot provide a ground for invalidating that decision.
69 If I am wrong in thinking that the Minister is not bound to have regard to the quite long period the applicant has spent in custody awaiting extradition, I think that (save in an exceptional situation) the fact that a circumstance that should be adverted to was created by the offender's own deliberate conduct would make it so insignificant a circumstance that failure to take it into account could not be said to have materially affected the decision: see Peko-Wallsend at 40.
70 On the material before me, the only period in custody that the applicant could be entitled to have taken into account by the Minister on the severity of punishment issue in making her surrender decision was the initial period of one month before the applicant was granted bail. But, in the absence of explanation for why the grant of bail was delayed and in the absence of something to show that such a relatively short period of loss of liberty may fall severely on the particular fugitive, that will ordinarily be too insignificant a circumstance to be capable of materially affecting the decision the Minister made. That it may have been overlooked cannot invalidate the decision: see Peko-Wallsend.
71 The time the applicant has spent in custody since his re-arrest in February 1998 has been protracted in considerable part because he has taken legal action to challenge various of the steps taken in the extradition process. I do not consider that a person should, by doing nothing more than pursue his legal rights in a court system that cannot offer litigants immediate hearings be said to have inflicted the relevant loss of liberty upon himself, at least where, as is the case here, his conduct of the litigation cannot be said to involve an abuse of the process of the Court.