Extradition

Norris (Appellant) v Government of United States of America and another (Respondents)

Thu, 04 Mar 2010 17:01:43 GMT

The United States Government is seeking the extradition of the appellant, Mr Norris, so he may be tried on an indictment charging him with obstruction of justice. He had originally faced a further charge of price fixing. The House of Lords ruled in 2008 ([2008] UKHL 16) that the conduct alleged in relation to the price fixing charge was not capable of amounting to an extradition offence as it was not a crime under English law when it was committed. His case was then sent back to the district judge to decide whether he should be extradited on the remaining charges in the indictment.

Dare v. Spain (11/02/2010)

Wed, 24 Feb 2010 22:18:06 GMT

The Appellant (D) appealed against an order for his extradition to Spain on the basis of passage of time (section 14). Spain sought D's extradition in respect of three charges of rape of a minor. D had been arrested in 1993 in Spain in respect of the alleged offences. Sometime later, D was charged and granted bail subject to a condition that he had to report to a Spanish court every fortnight. In 1995 the bail was varied so that D was allowed to visit the United Kingdom for two weeks with the bail conditions continuing. Whilst in the UK, D was arrested and imprisoned for 18 months. During D's imprisonment the Spanish authorities were informed that D was in prison. On D's release in 1996 he did not return to Spain nor did the Spanish authorities try and secure D's return. In 2001 D was charged with offences in the UK and was imprisoned in respect of those offences until 2003. Spain issued a European Arrest Warrant in 2009. The District Judge found that D was a classic fugitive and was not therefore entitled to contend that it would be unjust to extradite him because of the passage of time. The District Judge went on to state that even if D could rely on the passage of time, a period of 19 years did not mean that it would be unjust to extradite him as the trial. HELD: In the instant case there was a very powerful argument that once D's imprisonment had expired, he was under a duty to report to the Spanish authorities as a person on bail pending a trial. In the circumstances of the instant case, the passage of time that had occurred did not mean that it would be unjust to extradite D. Appeal dismissed.

Bolibok v. Poland (05/02/2010)

Wed, 24 Feb 2010 22:17:25 GMT

The Appellant (B) appealed against an order for his extradition to Poland. B submitted that he had been convicted in his absence and did not deliberately evade the proceedings. HELD: The instant hearing was not a re-hearing in relation to the evidence. The role of the court was to review the District Judge's decision in relation to fact and law. The evidence from the Judicial Authority of B's awareness and presence at the trial was powerful. The District Judge heard B's evidence. He had taken all relevant matters into account. Appeal dismissed.

Kwasny v. Poland (05/02/2010)

Wed, 24 Feb 2010 22:16:45 GMT

The Appellant (K) appealed against an order for his extradition to Poland. K made no challenge to the District Judge?s substantive findings. The European Arrest Warrant was issued for the purpose of executing a six-month custodial sentence imposed in Poland. As a result of the passage of time since initial arrest, K effectively spent nine months in custody; three months more than he was required to serve in Poland. K submitted that it would be unfair and wrong to send him back to Poland to serve his sentence imposed there in addition to the nine months that he had spent in custody. HELD: K did not challenge the substantive decision so the appeal was dismissed. However, due to the lengthy delay between the making of the extradition order and the appeal hearing K had effectively served three months more than that required to serve in Poland. Given the exceptional circumstances in the instant case, justice would be served if the requesting state withdrew the arrest warrant. Appeal dismissed.

Dula v. The Netherlands (04/02/2010)

Wed, 24 Feb 2010 22:15:44 GMT

The Appellant (D) appealed against an order for his extradition to the Netherlands on the basis of conviction in absence (section 20). D had been convicted and sentenced to four years' imprisonment in his absence in the Netherlands. At the time of the trial D was a prisoner at a Polish prison. The Judicial Authority produced documentation that D had been personally served with a trial summons and with documents in Polish and Dutch informing him of the trial and his right to be legally represented. D signed a receipt for the documents. D was then informed by letter of his conviction and of his right to appeal. D again signed a receipt acknowledging that he had received the documents but took no action. HELD: The District Judge was entitled to find that D had deliberately absented himself from the trial. The mere fact that a person was in custody at the time of a trial did not mean that he could not be said to have deliberately absented himself. Whether such a person had deliberately absented himself from th e trial was dependent on the specific facts of each case. In the instant case, it was apparent that D had been summoned to trial and given explanatory notes regarding the proceedings. Appeal dismissed.

R (on the application of Mann) v Westminster MC, SOCA & a Portugese Judicial Authority 19th January 2010 Ex Tempore

Thu, 04 Feb 2010 15:15:07 GMT

The appellant (S) appealed against a decision of a magistrates' court to order his extradition to Poland. S initially sought to resist extradition on the grounds that extradition was inappropriate given the passage of time and that extradition would amount to a disproportionate interference with his rights under the European Convention on Human Rights 1950 art.8. In support of the art.8 point S made a statement to the effect that he was the only carer for his mother-in-law who suffered from a variety of ailments. This statement was placed before the magistrates' court but S's then legal representatives abandoned the art.8 and passage of time claim so that the extradition request was not resisted and an order for his extradition was made. S contended that (1) the decision of his former legal representatives to abandon his art.8 claim was taken without proper instruction and negligent; (2) it was open to him to rely on a new statement as to his mother-in-law's medical condition and her reli ance on him as a carer.

HELD: (1) In extradition cases, where an individual subject to an extradition request sought to make allegations of negligence against his former legal representatives, the procedure followed in the Court of Appeal Criminal Division was to be adopted. In the instant case, no notice of the allegations had been given to S's former legal representatives and although S might be deemed to have waived legal privilege he had not done so. (2) It was inappropriate to allow S to rely on the new statement. It was clear that the court could only entertain the statement if it amounted to fresh which, if it had been, would have resulted in the Judge deciding the art.8 point in S's favour. Nearly all the evidence contained in the new statement had been available in the statement made by S that had been before the magistrates' court. (3) The decision of S's former legal representatives that S's case did not begin to pass the high threshold required for the establishment of a breach of art.8 was entirely c orrect.

Benko v Hungary 17th December 2009 Ex Tempore

Thu, 04 Feb 2010 15:06:15 GMT

The appellant (B) appealed against a decision of the district judge to order his extradition to the respondent requesting state, Hungary. B had been convicted of a number of offences in Hungary, one of which followed a trial in his absence. Before the district judge, the issue for determination concerned the Extradition Act 2003, and whether B was entitled to a retrial pursuant to s20(5) and the rights set out in s.20(8), including free legal representation. The evidence before the court was in the form of two letters from a judge of the Hungarian judicial authority which stated that B might request a retrial under Hungarian law and exercise any guaranteed rights in the retrial, including the involvement of legal representation. The district judge held that B was entitled to a retrial and free legal representation.

HELD: Section 20(5) required the court to decide whether a convicted person sentenced in his absence was entitled to a retrial. "Entitlement" concerned the right under the law of the requesting state and it was not necessary to consider what a requesting state might do in practice. Where a requesting state was a member of the Council of Europe there would be no problem in establishing the s.20 criteria, as all of them were signatories to the European Convention on Human Rights 1950 and were to be assumed capable of protecting against an unjust trial pursuant to art.6.

Wenting v France 15th December 2009 Ex Tempore

Thu, 04 Feb 2010 15:05:22 GMT

The appellant (W) appealed a decision of a district judge to order his extradition to the respondent requesting state, France. W had been caught with drugs entering France some 20 years before the date of the instant hearing and had immediately pleaded guilty to drugs offences. W was kept in custody for two-and-a half years before being released on bail to return to his family address in Holland. Thereafter, albeit that W was on bail, the French authorities issued an international arrest warrant for him. W was later tried in his absence and sentenced to five years' imprisonment. W was not informed of the trial until shortly after it had actually taken place. Thereafter, W did not attempt to return to France.

HELD: It was clear that W had left France with authority and that there was no evidence that he had been expressly called to return to France or that he had breached his bail conditions. Accordingly, given that W had not fled France, concealed his whereabouts or evaded arrest he fell within the second category of delay case identified in Kakis v Cyprus (1978) 1 WLR 779 HL. In all the circumstances of his case it would be oppressive to extradite him. Appeal allowed.

Gradica v Public Prosecutor's Office Attached To the Court of Turin [2009] EWHC 2846 (Admin) (11 November 2009)

Tue, 29 Dec 2009 23:00:17 GMT

The Appellant (G) appealed against an order for his extradition to Italy for offences of attempted murder and unlawful possession of weapons, on the basis that he had been convicted in his absence, had not deliberately absented himself and would not now be guaranteed a full re-trial, in breach of his Article 6 Convention rights. HELD: Although the requesting authority had provided evidence that re-trial rights were discretionary they also confirmed that Italian law had been interpreted in compliance with Convention principles including a series of domestic law guarantees. There were adequate assurances that the Italian court would afford G his Article 6 Convention rights. Appeal dismissed.

Louca v A German Judicial Authority [2009] UKSC 4 (19 November 2009)

Tue, 29 Dec 2009 22:58:48 GMT

The Appellant (L) appealed against a decision of the Divisional Court dismissing his appeal against extradition orders made pursuant to a European Arrest Warrant. L’s extradition was sought for prosecution in Germany for offences of tax evasion. L challenged the validity of the European Arrest Warrant, pursuant to Section 2(4)(b) of the Extradition Act 2003, on the basis that it did not include details of two earlier European Arrest Warrants which had now been withdrawn. The Divisional Court had held that the reference to ‘other warrants issued’ in Section 2(4)(b) was concerned with domestic warrants on which the European Arrest Warrant was based and not other European Arrest Warrants. L submitted that ‘other warrants’ must have been intended to include prior European Arrest Warrants as well as domestic warrants if only in order to found potential abuse of process arguments. HELD: Abuse of process and other “due process” factors were comprehensivel y covered by Sections 11 to 20 and Section 21 of the Extradition Act 2003 and thus there existed no reason to read Section 2 as requiring details of other European Arrest Warrants to be included. Appeal dismissed.

Nowak v. District Court in Koszalin, Poland (20/11/2009)

Tue, 29 Dec 2009 22:57:09 GMT

The Appellant (N) appealed against an order for his extradition to Poland pursuant to Article 2 and 3 of the ECHR on the basis that he believed that if returned he would be at risk of physical attacks from a known and influential gang to whom he and a business partner owed money. N was sought by Poland for the purpose of prosecution for several offences including theft, robbery, wounding by stabbing and fraud. The requesting authority provided written confirmation that there was no connection between N and the gang and that they posed no threat. N submitted that the District Judge had failed to deal with various aspects of his evidence including the death of his business partner. HELD: It was regrettable that the District Judge had failed to deal with some of N’s evidence but this did not lead to the conclusion that the District Judge should have decided the question of N’s convention rights differently. N could give the same evidence at his trial in Poland. Appeal dismissed.

Sandi v The Craiova Court, Romania [2009] EWHC 3079 (Admin) (27 November 2009)

Tue, 29 Dec 2009 22:56:02 GMT

The Appellant (S) appealed against the District Judge’s decision to send his case to the Secretary of State for a decision on whether or not his extradition should be ordered on the basis that he was convicted in absence, he was not deliberately absent and he would not now be entitled to a re-trial. His extradition was sought for the purpose of executing a twenty-year custodial sentence for offences of murder and illegal possession of a firearm. The Secretary of State ordered S’s extradition in September 2008. The District Judge heard evidence from S and was served written evidence from the requesting state. S denied being present at his trial and stated that he had not instigated the subsequent appeal. The requesting state confirmed that S had been in custody at the relevant times and was properly informed of the hearings. The District Judge concluded that S was aware of his trial and was convicted in his presence. Any absence had been voluntary. On appeal, S further contended that his ‘trial’ had not been concluded until at the appeal court and thus for the purpose of Section 85 of the Extradition Act 2003, he was convicted in his absence, not having deliberately absented himself. The requesting state submitted that the appeal was not part of the trial process in the sense contemplated by Section 85. HELD: The District Judge was entitled to reject portions of S’s evidence. For the purpose of Section 85, S’s trial was at the court of first instance. S was present at least for the key parts of his trial and any absence was entirely voluntary on the advice of an experienced lawyer instructed on his behalf. Appeal dismissed.

Kozluk v. Poland (30 November 2009)

Tue, 29 Dec 2009 22:53:19 GMT

The Appellant (K) appealed against the decision of the District Judge not to order his discharge from proceedings concerning his extradition to Poland. K is a Polish national sought for the purpose of executing a ten-month custodial sentence for a transport safety offence in Poland. K was arrested pursuant to a European Arrest Warrant in July 2009. His extradition hearing was set for 22nd July but was subsequently adjourned on several occasions in order to allow K’s application for legal representation to be processed. On 27th August 2009 K applied to be discharged in accordance with Section 8(7) of the Extradition Act 2003, on the basis that his extradition hearing had not been commenced within the required 21 days (Section 8(4)) and that there was no reasonable cause for the delay. The District Judge dismissed K’s application for discharge on the basis that the relevant District Judge, although she had not stated so in open court, had had it in her mind to open the extraditio n hearing and that the delay had arisen as a result of the process of enabling K to secure representation which was reasonable (Section 8(7)). HELD: An extradition hearing did not formally commence simply by the process of the case being called on in court. Something had to be said or done to show that the extradition hearing had been started. An adjournment did not amount to a step in the extradition proceedings sufficient to deem the extradition hearing formally open. Thus K’s extradition hearing had not been commenced within the 21 days required by the Extradition Act. The District Judge was however entitled to conclude that the difficulty in securing legal aid was a reasonable cause for the delay. Appeal dismissed.

Lendvai v. Veszprem City Court of Hungary (7 December 2009)

Tue, 29 Dec 2009 22:52:38 GMT

The Appellant (L) appealed against an order for her extradition to Hungary on the basis of extraneous considerations, (Section 13), in that she is a lesbian of Roma origin. L contended that if extradited she would be at risk of discrimination and would not receive a fair trial (Article 6). L also raised Articles 3 and 8 of the ECHR on the basis that she was vulnerable to self-harm and had lived in the UK for four years with her partner and their two daughters. HELD: There was no merit in L’s claim that due to her sexual orientation or her Roma origin, she would be prejudiced, nor was there any compelling evidence that L would not receive a fair trial in Hungary. Pursuant to Article 8, L’s partner and children could relocate and thus there was no adverse impact on L’s private life. Further, there was no compelling evidence that L suffered from any mental illness and following the requesting state’s concession that it would comply with Convention obligations, Article 8 was not engaged. Appeal dismissed.

Kerr Shanks or Howes v. The Lord Advocate [2009] HCJAC 94

Thu, 10 Dec 2009 21:24:29 GMT

This was an appeal under section 103 of the Extradition Act 2003 where the appellant has made an application to have the appeal allowed on the ground that her mental condition is such that it would be unjust or oppressive to extradite her. The issue was not raised in the extradition hearing before the sheriff, however, the court here considered it appropriate for the issue to be raised. Section 91 of the Act applies where it appears to the judge that "the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him". Here the court was provided with oral and written evidence from two psychiatrists, Dr Pradeep Pasupuleti and Dr Fionnbar Lenihan relevant to the application. It was submitted on behalf of the appellant that the apprehended deterioration in the appellant's health following upon any extradition, and the risk of suicide, meant that extradition would be oppressive. It was submitted on behalf of the respondent that the level of risk involved did not meet the high threshold required. Here the court considered whether it would be unjust or oppressive to extradite a requested person as not a technical issue of law, but, rather, that judgement required the court to form an overall view upon the facts and circumstances of the particular case. Here the court considered whether the appellant's extradition would be unjust or oppressive.

Islam v Paphos District Court of Cyprus [2009] EWHC 2786 (Admin) (06 November 2009)

Thu, 03 Dec 2009 16:58:11 GMT

The appellant (X) appealed against a decision that he should be extradited to the respondent requesting state, Cyprus. A European arrest warrant had been issued in Cyprus for X's arrest in relation to allegations that whilst there he had, with three other men, withdrawn or attempted to withdraw money using false credit cards. The warrant set out seven categories of offences which X was accused of committing, including conspiracy for committing a felony. It stated that the warrant was linked to 20 criminal offences and gave particulars of facts alleged in a narrative describing the circumstances in which the offences had allegedly been committed. In ordering extradition, the judge found that the overall charge was for conspiracy to commit criminal offences and that there was no requirement for the course of conduct to be broken down and attached to the specified Cypriot offences. X submitted that (1) the warrant did not comply with the Extradition Act 2003 s.2(4)(c) as it did not make clear the nature and extent of the allegations against him; (2) the warrant failed to specify how the 20 offences were spread across the seven identified categories so a court was prevented from identifying each extradition offence. HELD: (1) Sufficient particulars had been given. They provided sufficient evidence to entitle the judge to conclude that X had been a party to a joint criminal enterprise in Cyprus and that he had conspired with the other men to engage in criminal conduct. The requirements in s.2(4)(c) were therefore satisfied. (2) The dual criminality requirement in s.64(3) was met. Equivalent offences existed under the law of England and Wales. For the purposes of that section the conduct constituted an offence of conspiracy and the reference to other Cypriot offences which might be charged did not invalidate the warrant. Failure to state that each of the offences in the warrant applied to each of the charges, or ot herwise apportion them did not, in the instant case, invalidate the warrant. That would introduce an unwarranted degree of technicality into the construction of the warrant. Moreover, X was not prejudiced by the absence of such particulars.

Hubner v District Court of Prostejov Czech Republic & Anor [2009] EWHC 2929 (Admin) (03 November 2009)

Thu, 03 Dec 2009 16:55:19 GMT

The appellant (H) appealed against the decision of a district judge to order his extradition to the respondent requesting state, the Czech Republic. The conduct relied upon in the European arrest warrant was that H was alleged to have filled his car with petrol and left the garage without paying for it. The value of the petrol was £20. H contended that the offence was too trivial to warrant extradition. He submitted that the Criminal Procedure Rules 2005, which applied in principle to extradition cases, had the effect of providing a defence to extradition where the offence was trivial as, pursuant to the overriding objective in r.1.1, cases had to be decided justly, and it would be unjust, having regard to the gravity of the instant offence, to extradite him. The Rules undoubtedly applied to extradition hearings, how ever, they were not to be used to modify or change Parliament's intention so as to create an additional exception to the Act. Appeal dismissed.

Sandru v Government of Romania [2009] EWHC 2879 (Admin) (28 October 2009)

Thu, 03 Dec 2009 16:52:00 GMT

The appellant (S) appealed against a decision of a district judge to order his extradition to the respondent requesting state, Romania. S had received a suspended sentence of three years' imprisonment in Romania for an offence of theft based on his stealing 10 chickens from a neighbour. S then left Romania and, following the prosecution's appeal, his suspended sentence was annulled and replaced by one of three years' immediate imprisonment. S had no knowledge of that sentence until his arrest under a European arrest warrant. Before the district judge, S had contended that his extradition would be contrary to his rights under Art 8 ECHR. The judge held that returning S to Romania involved no breach of his human rights. S contended that his extradition would be disproportionate, given the effect it would have on his private life, the trivial nature of the offence and the length of sentence imposed upon him.

HELD: The court was required to decide whether the inevitable interference with a person's private life caused by his extradition was proportionate to the legitimate aim and weight to be accorded to honouring extradition treaties, which would be the case unless striking and unusual facts arose. There was a marked lack of evidence in S's case as to anything that could constitute a striking or unusual feature: his wife was Romanian and it was not suggested that she could not return to Romania with him; he had no children; he suffered no ill health; he had no caring responsibilities in the United Kingdom; there were no other factors preventing S's return. Further, the triviality of an offence or a disproportionately lengthy sentence could not bring a case within the ambit of art.8. It was not open to the UK courts to say that an offence was so trivial or a sentence so disproportionate to the offence that extradition was not appropriate. Appeal dismissed.

Romanowski v Poland (28 October 2009) Ex Tempore

Thu, 03 Dec 2009 16:50:08 GMT

The appellant (R) appealed against the decision of a district judge to order his extradition to the respondent requesting state, Poland. The Polish government had sought R's extradition in respect of an offence of robbery, and the district judge had duly ordered his extradition. R contended that extradition ought not to have been ordered, because the warrant had contained details of a second offence relating to a breach of bail, which was not an extradition offence and details of which were not properly particularised under s2. HELD: On any view, looking at the warrant it was perfectly plain that it concerned the alleged commission of a robbery with a specified maximum sentence of 15 years' imprisonment, and not the second offence, which was the reason why details of that offence had not been provided. The district judge had, therefore, rightly ordered R's extradition for the robbery offence. If R wished to contend that he ought not to be sentenced for the bail offence, that was a matter f or the Polish authorities.

Gibek v Poland (27 October 2009) Ex Tempore

Thu, 03 Dec 2009 16:48:05 GMT

The appellant (G) appealed against a decision of a district judge to order his extradition to the respondent requesting state, Poland. He asserted that the judge had been wrong to conclude that his removal was in breach of Art 8. HELD: The disturbance caused to the Defendant’s family life, even though he is the primary carer for his wife who has leukaemia, is insufficient to amount to circumstances that would render his extradition a disproportionate interference with his rights under the European Convention on Human Rights 1950 art.8. Appeal dismissed.

Louca (Appellant) v A German Judicial Authority (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice), [2009] UKSC 4

Wed, 25 Nov 2009 13:51:04 GMT

The appellant, Mr Louca, was a Cypriot national whose arrest in England and surrender to the Federal Republic of Germany for trial of six alleged offences of tax evasion was sought by the Office of the Public Prosecutor of Bielefeld pursuant to a European Arrest Warrant. The warrant was certified by the Serious Organised Crime Agency (“SOCA”) pursuant to s.2(7) of the Extradition Act 2003. Mr Louca challenged its validity on the ground that it contained no reference to two previous European arrest warrants (likewise certified by SOCA), but referred only to a domestic German arrest warrant. A reference to any previous European arrest warrants, was, he submitted, essential under s.2(2)(a) and (4)(b) of the 2003 Act, which, read together, required a warrant to contain “particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence”.

Senior District Judge Workman rejected Mr Louca’s challenge in September 2008, and the Divisional Court dismissed his appeal in November 2008.

The question certified by the Divisional Court was: “Whether the reference to ‘any other warrant’ in ss.2(4)(b) and 2(6)(c) of the Extradition Act 2003 properly construed is a reference to any other domestic warrant on which the European arrest warrant is based”.

The Supreme Court agreed with Divisional Court and unanimously held that the reference was to any domestic warrant on which the European arrest warrant was based, and not to any other European arrest warrant which may have been issued on the basis of any such domestic warrant. Accordingly, Mr Louca’s appeal was dismissed.

Borovkov v Viru County Court, Estonia [2009] EWHC 1893 (Admin) (15 June 2009)

Mon, 02 Nov 2009 11:10:17 GMT

The appellant sought to appeal an order for his extradition on the basis that his extradition ought to have been barred by reason of passage of time. The offences for which he was sought were of rape, committed in 1999 when B was 16 years old. At the time he was interviewed on a number of occasions and released on bail. Information from the IJA then did not disclose what had happened between Jul 2002 and Aug 2004 when B was served with a summons to appear at his trial. He did not attend. B denied ever receiving the summons. The District Judge found that B had fled and that it would not be unjust to try him, the evidence for the case having been preserved. Nor would it be oppressive to extradite him, notwithstanding the inevitable hardship that would face B and his family. HELD: The District Judge had not been wrong to order extradition. Even if he may have failed to acknowledge that some of the delay was the fault of the IJA, the question for the appeal w as whether he ought to have decided a point differently and that was not made out. Nothing else on the facts brought the case within the remit of those which might be considered ‘most exceptional’. Appeal dismissed.

Dunne v High Court Dublin, An Irish Judicial Authority [2009] EWHC 2003 (Admin) (09 July 2009)

Mon, 02 Nov 2009 11:08:00 GMT

The Appellant (D) sought to appeal an order for his extradition on the basis that such an order would breach his human rights under Articles 2 and 3 (those issues having been raised at first instance). After the first instance hearing, counsel and solicitors had withdrawn from the case. Before counsel had withdrawn, D was given an Appellant’s notice. D filed a notice in time. The Administrative Court Office did not issue until three days later. D then served it on the CPS two months later (by way of recorded delivery). However, it was not received and hence the Respondent was not served. HELD: The Court held that whilst nothing in the rules precludes service on the Respondent of an Appellant’s Notice which has not been issued, the rules in relation to the timing of service are clear (i.e., within 7 days of the extradition order) and the court did not have jurisdiction to hear the appeal. In any event, in consideration of the Art 2 and 3 issues, D&r squo;s submissions came nowhere near to establishing that any of the appeal grounds were tenable. Appeal dismissed.

Szubryt v District Court In Kielce, Poland [2009] EWHC 1894 (Admin) (30 June 2009)

Mon, 02 Nov 2009 11:07:31 GMT

The Appellant (S) appealed an order for his extradition on the basis of section 14 (delay) and section 21(human rights) Art.8 and the psychiatric condition of his wife. HELD: The late admission of the Appellant’s psychiatric evidence was not objected to and though the court was concerned by its late admission, where there were differences between the two expert psychiatrists reports, it adopted assumptions favourable to the Appellant. On that basis the court found that, as regards the psychiatric prognosis for S’s wife, his extradition would be likely to result in a significant decline in her mental state leading to a need for outpatient treatment, hospitalization and a low risk of suicide. Nothing in the reports suggested the impact on the children would reach a high level of severity. Such facts would mean it would not be disproportionate to extradite S as the facts of his case did not reach the threshold of ‘striking and unusual facts’. As to section 14, it was conceded th at in circumstances where an Appellant has been found to have fled the jurisdiction, he will only be able to rely on the bar if his case is one of the ‘most exceptional circumstances’, a threshold higher than that of Art.8. As a result, because the Art.8 case failed, the section 14 argument also failed. Appeal dismissed.

Luczak v Poland, Extempore (9 October 2009)

Mon, 02 Nov 2009 10:53:00 GMT

The Appellant (L) appealed against an order for his extradition on the basis that the conduct did not satisfy the dual criminality test. The EAW alleged that L had unlawfully alienated moveable property on which a Polish Inland Revenue official had "levied an attachment", and that L's conduct was an offence against economic relations. HELD: The conduct failed the dual criminality test. It was unclear what was meant by "levied an attachment". In particular, it could not be said that the phrase was akin to a ‘walking possession agreemen’ as for such an agreement to come into existence a bailiff had to have peacefully entered a creditor's home and the creditor had to sign a form agreeing to walking possession. The occurrence of those requirements was not disclosed by the conduct described in the warrant. Appeal allowed.

Nanarova v Czech Republic, Extempore (6 October 2009)

Mon, 02 Nov 2009 10:50:00 GMT

The Appellant (N) appealed against a decision ordering her extradition to the respondent requesting state on the basis that the conduct for which she was wanted did not constitute an extradition offence, and her extradition would be incompatible with her rights under Art.8. The EAW conduct was endangering the morale of a juvenile and intentionally allowing them to miss school. The Art.8 argument arose as a result of the disabilities of one of her children. HELD: The conduct described in the arrest warrant amounted to an extradition offence, namely the persistent failure to ensure that the children attended school. The reference to the conduct, ensuring proper upbringing of children and intentionally failing to send the children to school, were aspects of the conduct amounting to the extradition offence. There were no exceptional circumstances in the instant case and N's extradition would not amount to a disproportionate interference with her art.8 rights. N's disabled child could rely on the support and help from the other siblings in the Czech Republic. Appeal dismissed.

Jansons v Latvia [2009] EWHC 1845 (Admin) (18 March 2009)

Wed, 28 Oct 2009 11:33:39 GMT

J appealed an order for his extradition on the basis of Section 21 and 25 of the EA 2003, in particular, that he was a suicide risk. He had previously attempted suicide in custody to avoid extradition to Latvia and nearly succeeded. Uncontested psychiatric evidence stated that if extradited to Latvia, he would commit suicide. The reports stated J was emotionally unstable and suffering from a moderate severe depressive episode and PTSD all of which would deteriorate if he was extradited. Evidence was provided to show that if extradited he would be properly cared for in Latvian custody though the evidence did not specifically address that type of care. The court affirmed the six factors which required consideration in assessing whether there was an Art.3 claim which it concluded would be problematic. However, it held that the appeal could succeed on a section 25 basis because, on any view of the evidence, there was a substantial risk J would commit suicide. The same line of reasoning could be applied to Art.8.

Appeal allowed.

Friesel v Government of the United States of America [2009] EWHC 1659 (Admin) (17 June 2009)

Wed, 28 Oct 2009 11:30:45 GMT

F was a citizen of the respondent requesting state and had gone to Israel shortly before charges were brought against him and several others for fraud. He then moved to the United Kingdom where he married a British citizen. He was eventually arrested 11 years after his departure from the United States of America. The US sought his extradition by way of a letter, which the district judge decided was admissible. F claimed that his extradition would be unjust given the long delay, and oppressive because of his personal circumstances, that the US was responsible for the delay, the requesting state's letter of request was inadmissible as it contained hearsa and the district judge should have applied the criminal standard of proof when considering whether F had fled to Israel.

HELD: (1) Delay could not be relied upon in extradition proceedings if it had been caused by the person deliberately fleeing the requesting state and concealing his whereabouts, unless the circumstances were exceptional. (2) The Criminal Justice Act 2003 s.114 was directed at criminal proceedings in the strict sense of that term. Its purpose was to protect the rights of persons being tried before a jury or by magistrates. Equivalent protection for a person's rights relating to hearsay evidence was contained in the authentication provisions of the EA 2003, s82. Those provisions provided a valuable method of ensuring that information provided to a judge considering extradition could be relied upon. The requesting state's letter had been properly admitted by the district judge. It had been authenticated under s.202, and was not to be discounted on the basis that it contained hearsay evidence, although the district judge did have to take the hear say into account in the weight that she gave its contents. (3) When a party invoked passage of time as a bar to extradition he had to establish on the balance of probabilities that there was injustice and oppression through passage of time. However, where a requesting state sought to use a person's deliberate flight as automatically conclusive on the question of delay, the onus was on the requesting state to establish to the criminal standard of proof that the accused had deliberately fled. In the instant case, the district judge had decided the matter on a straightforward application of the EA 003 s.82. F's contribution to the delay had simply been one factor to be considered. Consequently there had been no need for the district judge to apply the criminal standard. Her task had been to decide whether F's case under s.82 had been made out on the balance of probabilities. Her analysis and application of the law had been correct.

Appeal dismissed

Henderson v Court of Appeal of Aix En Provence [2009] EWHC 1701 (Admin) (26 June 2009)

Wed, 28 Oct 2009 11:27:00 GMT

The court had no jurisdiction to entertain an appeal against an extradition order where the notice of appeal was served outside the time limit provided for by the EA 2003. . The reality was that H's submissions overlooked the fact that he had already had a hearing before a district judge where any and all points as to the validity of the warrant or as to the non-fulfilment of the UK's obligations could have been raised. Domestic proceedings allowed an extradition appeal only if a tight timetable was adhered to. There was nothing in the Framework Decision 2002/584 or EU law or the European Convention on Human Rights 1950 that precluded the application of time limits to extradition appeals or that compelled there to be an extradition appeal.

Appeal dismissed.

Hoholm v The Government of Norway [2009] EWHC 1513 (Admin) (26 June 2009)

Wed, 28 Oct 2009 11:24:21 GMT

Where an issue was not raised at an extradition hearing he was in general entitled to raise that issue on appeal to the Divisional Court, even though the issue was not raised at the extradition hearing. The dual criminality issue was not raised before the district judge. The fact that the district judge decided that the conduct contained in the warrant constituted an extradition offence did not mean that the dual criminality issue was raised before him within the meaning of the EA 2003 s.104. Section 104 did not in terms compel the court to allow an appellant to raise an issue that was not raised at an extradition hearing: its provision was negative, precluding the court from allowing an appeal if the applicable statutory conditions were not satisfied. However, it was significant that s.104 distinguished between a new issue and new evidence. H did not seek to adduce any new evidence and her appeal was therefore not affected by the requirement that new evidence should not have been available at the extradition hearing.

The substantive issue turned on whether the conduct to which s.137(2) of the Act referred was that described in the basis for the request for extradition or that which was the subject of the charge. It was the latter. On that basis the offence with which H was charged was an offence of keeping a child abducted which was not, in the case of a parent, an offence under UK law. Accordingly, the conduct alleged in the warrant did not satisfy the dual criminality test.

Appeal allowed.

Baranauskas v Ministry of Justice of the Republic of Lithuania [2009] EWHC 1859 (Admin) (02 July 2009)

Wed, 28 Oct 2009 11:23:11 GMT

Prison conditions in Lithuania were not such as to give rise to strong grounds for believing that a vulnerable prisoner would face a real risk of inhuman or degrading treatment if extradited to Lithuania. The report relied upon by B by the European Committee for the Prevention of Torture was based upon what had become old evidence by the date of the instant hearing. Further, Lithuania was well aware of the criticisms that had been made of it and that it had given specific undertakings in respect of B. Lithuania was a signatory to the Convention and other international agreements. Accordingly, it could not be said that Lithuania was not aware of its obligations to respect individuals' human rights, including those of vulnerable prisoners.

Appeal dismissed.

Bary & Anor, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 2068 (Admin) (07 August 2009)

Wed, 23 Sep 2009 14:54:59 GMT

The claimants (B and F) applied for judicial review of the respondent secretary of state's decision to extradite them to the United States of America. B and F had been accused by the US government of participation in terrorist acts and the US sought the extradition of B and F having categorised F as a specially designated global terrorist. Proceedings were initiated under the Extradition Act 1989. F and B were committed to await the secretary of state's decision as to their return to the US and the secretary of state issued warrants authorising extradition. B and F submitted that (1) they would be subjected to special administration measures upon arrival in the US and, if convicted, would be held in ADX Florence on a life sentence without parole in extremely harsh conditions contrary to their rights under art.3; (2) the SS had given no consideration to whether the natural forum for the trial was the UK; (3) US assurances could not be relied upon by the secretary of state because they were not effective as a matter of law. F argued that (4) his status as a specially designated global terrorist constituted an unnecessary public prejudgment of his guilt, and that by virtue of his nationality he would be prejudiced in contravention of the 1989 Act. HELD (1) Imposition of special administration measures did not cross the high art.3 threshold for inhuman or degrading treatment. The importance of maintaining extradition in a case where a fugitive would not otherwise be tried was highly important when identifying whether the threshold had been crossed. There was no doubt that prison conditions were tough, especially on those inmates considered to be a hazard to public safety, but they were not sufficient to constitute a breach of either B or F's art.3 rights. Further, there was access to the US courts if the prison authorities acted unlawfully. (2) In reality, a criminal trial in the UK was neither viable nor appropriate. (3) No instance had been drawn to the court's attention wherein the US had failed to honour any assurances or undertakings given in extradition proceedings and that, of itself, provided a sure guide that the US's diplomatic assurances would be honoured. (4) The fact that F had been specially designated on a list of global terrorists added nothing to what the jurors at his eventual trial would already know.

Application dismissed.

McKinnon, R (on the application of) v Secretary of State for Home Affairs [2009] EWHC 2021 (Admin) (31 July 2009)

Fri, 31 Jul 2009 13:53:00 GMT

The claimant (M) applied for judicial review of the decision of the defendant secretary of state to order his extradition to the US. M had admitted using his home computer to hack into computers of the US government. A DJ sent M's case to the SSHD, who subsequently ordered M's extradition. M made a fresh claim to the SSHD on health grounds, relying on fresh evidence that he had Asperger Syndrome. The reports stated that the degree of stress of imprisonment, in particular if it were to occur in another culture, would cause him to suffer a serious deterioration in his mental health. HELD: Although an individual who suffered from Asperger Syndrome would be likely to suffer a serious deterioration in his mental health if he was extradited, his case did not approach the severity required to infringe the European Convention on Human Rights 1950 art.3. Further, it was particularly difficult for a person to establish a breach of art.3 where the conduct that was envisaged was, as in the instant case, not the deliberate infliction of harm by agents of a foreign state but neglect or a lack of resources on the part of that state.

Application refused.

Kolanowski v Circuit Court In Zielona Gora [2009] EWHC 1509 (Admin) (18 June 2009)

Wed, 17 Jun 2009 23:00:00 GMT

Conduct described in a European arrest warrant constituted an extradition offence. It was implicit that the deliberate failure by K to return a car to its owner following a failure to make payments and was summonsed to return the car by an apparently appropriate body, was a criminal offence. The fact that the individual concerned, suffered from a heart condition, was insufficient in the circumstances to make his extradition oppressive. The heart condition required that he be fitted with an implantable cardioverter defibrillator. That procedure was performed and K was advised at a medical appointment some 10 days before the instant hearing that he should avoid stress, stay under long-term cardiac care and not travel by air for a period of six months. However, it could not be oppressive to extradite him. The offences of which K had been convicted had attracted significant custodial sentences. Whilst the seriousness of the offences was one factor to be taken into account, so were other circumstances, such as the fact that K had obtained a deferment of his sentences but not returned to serve them. Moreover, any submission that the existence of a health condition rendered it oppressive to return an individual faced a high hurdle; the return would have to involve circumstances approaching a breach of Article 3. In the circumstances of the instant case it was, with the consent of Poland, appropriate to defer extradition for a period of six months from the date of his last pre-hearing medical appointment. Appeal dismissed

Atkinson & Anor v Supreme Court of Cyprus [2009] EWHC 1579 (Admin) (17 June 2009)

Tue, 16 Jun 2009 23:00:00 GMT

The word "trial" in the Extradition Act 2003 did not refer to a single event and it was appropriate to construe "trial" as meaning a continuing process that only came to an end when a final decision was made in criminal proceedings that formed the basis of an extradition request. That included the appeal. Misinformation given by a legal adviser to an individual subject to an extradition request would not make that individual's decision to absent himself from a trial not deliberate for the purposes of s.20(3) of the Act. Further, whilst the advice given to X by their Cypriot lawyers that they would succeed was poor, it was not on the facts material to their non-attendance before the appellate court. X had had a full art.6 compliant trial at the Cypriot court of first instance and the proceedings before the appellate court only considered whether the findings of fact made by the court of first instance ought to have, as a matter of law, resulted in a conviction. They coul d play no part in that and it was impossible to say that they had been prejudiced or that the trial process as a whole failed to comply with art.6. Appeal dismissed

Owens v City of Westminster Magistrates' Court [2009] EWHC 1343 (Admin) (08 June 2009)

Sun, 07 Jun 2009 23:00:00 GMT

A refusal by the High Court to certify a question for the House of Lords following an unsuccessful extradition appeal to the High Court did not of itself make the High Court's decision final or abridge the period of 14 days allowed for making an appeal against the High Court's decision as it was open to an individual to seek to certify a different question within the 14-day period allowed for by s.32(5) EA 2003. Moreover, to make the running of the required period of 10 days under s.36(3) dependent upon when, within the 14-day period, certification was refused would introduce uncertainty and undue technicality. There would have been reasonable cause for the delay in removing O, namely that there had been an administrative error as to the date from which time began to run. In considering whether there was reasonable cause for delay under s.36(8), regard had to be had to the purpose behind the Framework Decision 2002 of ensuring an expeditious simplified system of extradition between Member States. The Framework Decision did not exclude the power of a Member State to include a clause in its relevant statute permitting delay, in a strict timetable, for reasonable cause. In the circumstances of the instant case, in particular having regard to the seriousness of the alleged offences, any short delay that occurred, even if caused by administrative error, was reasonable.(Obiter) It was not necessary in order to dispose of the instant proceedings to determine the appropriateness of the procedure of seeking a writ of habeas corpus to challenge the decision reached in respect of X. However, in future cases the observations of Richards L.J. at para.8 and 9 of Gronostajski should be borne in mind. If the court had decided that its judicial review jurisdiction should have been invoked instead, permission to apply for judicial review would have been granted, but the application for judicial review refused. Applica tion refused

Onwuzulike v Government of the United States of America [2009] EWHC 1395 (Admin) (05 June 2009)

Thu, 04 Jun 2009 23:00:00 GMT

A judge had correctly ordered the extradition to the United States of a British man alleged to have committed advanced fee fraud at a high level. Although the judge had stated that the relevant guidance in relation to forum did not apply, he had still observed the spirit of the guidance; although the Metropolitan Police played a large role in collecting the evidence, it was highly mobile. X was the principal witness and it was not clear if there would be other witnesses. Although X would have received a higher sentence in the US there was no evidence of the likely sentence. The judge did not fall into error. There was no arguable Article 8 point to be made out. Only in exceptional circumstances should a requested state find that extradition was disproportionate with the offender's art.8 rights. X had little prospect of resisting extradition on the grounds of art.8, especially as there was the possibility of repatriation to serve any prison sentence under international agreements. There wa s no abuse of process. The judge would not have reached a different conclusion even if he had followed the guidance. Appeal dismissed

Gabriel v Court of First Instance and Instruction No 1 of Cadiz, Spain [2009] EWHC 1282 (Admin) (03 June 2009)

Tue, 02 Jun 2009 23:00:00 GMT

The appellant (G) appealed his extradition on the basis that the warrant was not valid as his conduct was insufficiently particularised and the United Kingdom could not be satisfied that he was an accused person wanted for prosecution rather than just for questioning. The EAW, issued in respect of G for offences against public health due to drug trafficking, described that a leisure vessel had been moored in a Spanish marina and the crew had left it without being seen by security. A search of the vessel found over EUR 2.6 million worth of hashish and a passport and driving licence in G's name. HELD: (1) European arrest warrants must be read as a whole and due allowance made for the effects of translation. The warrant did inform G of the offence that he was wanted in connection with, and his alleged role was that he was crew of the vessel on which the drugs were concealed. The warrant did not have to set out all of the evidence against G and the judge was not concerned with wheth er G had a case to answer. Investigating the merits of the prosecution would not return a neutral decision, which was necessary. G's role was sufficiently particularised. (2) As the warrant gave an adequate description of G's role the second ground of appeal fell away. The evidential basis for the prosecution may have appeared thin, but that was not a sufficient reason for the extraditing authority not to take the warrant at face value.

Gomes (Appellant) v Government of Trinidad and Tobago (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice), Goodyer (Appellant) v Government of Trinidad and Tobago (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice

Wed, 29 Apr 2009 14:00:00 GMT

Each of the two appellants, Mr Goodyer, a UK national, and Mr Gomes, a citizen of Trinidad and Tobago, is wanted by the Government of Trinidad and Tobago (“Trinidad”) for trial there on charges of possession of cocaine for the purposes of trafficking. Each was arrested in the UK following an extradition request by Trinidad and each unsuccessfully argued before the District Judge at their respective extradition hearings, first, pursuant to ss.79(1)(c) and 82 of the Extradition Act 2003 that it would be unjust or oppressive to extradite him by reason of the passage of time since his alleged offence, and, secondly, pursuant to s.87 of the Act, that his extradition would not be compatible with his Convention rights under art.3 given Trinidad’s appalling prison conditions.

Each appealed to the Divisional Court under s.103 of the Act against the respective District Judge’s decisions under s.87(3) to send their cases to the Secretary of State for her decision whether to extradite them. The Divisional Court allowed their appeals and remitted the case to the district Judge to decide again two questions - (1) whether it would be unjust or oppressive by reason of the passage of time to return either defendant to Trinidad for trial and, if not, (2) whether, were either defendant to be returned, his prison conditions in the maximum security facility in Trinidad would be such as to breach art.3’s prohibition against inhuman and degrading treatment. Both questions were decided in the negative. The appellants appealed to the House of Lords.

The House of Lords unanimously dismissed the appeals. It held that neither appellant, as a “classic fugitive", could invoke the passage of time, lengthy though it was, since their respective alleged offences. In any event there could be no question of regarding their extradition as either unjust or oppressive.

Gomes v. Trinidad and Tobago [2009] UKHL 21 (29 April 2009)

Tue, 28 Apr 2009 23:00:00 GMT

Where a delay had occurred in extradition proceedings, resulting from the fleeing of the accused from the jurisdiction in which he was bailed to appear, he could not rely on any subsequent culpable delay on the part of the requesting state to argue that it would be unjust or oppressive to extradite him by reason of passage of time pursuant to the Extradition Act 2003 s.82. The case of Krzyzowski v Poland (2007) EWHC 2754 (Admin) correctly stated the law on the passage of time bar to extradition, Goodyer v Trinidad and Tobago (2007) EWHC 2012 (Admin), (2007) 104(35) LSG 34 overruled.

Both appellants had fled Trinidad and Tobago in breach of their bail conditions. Each had been arrested in the United Kingdom following a delayed extradition request. The delay in both cases was a combination of the offenders having evaded arrest and inaction by the requisitioning state. Each had unsuccessfully argued that it would be unjust or oppressive to extradite him by reason of the passage of time since his alleged offence. Their appeals had been ordered to be heard together because they raised similar issues. The Divisional Court had allowed the appeals in August 2007, finding that culpable delay on the part of the requesting state had to be taken into account in the same way as delay that was the fault of the offenders themselves and it remitted the case to the district judge for determination in light of its finding. However, givne conflicting law the court. Before the remitted hearing had taken place, another constitution of the Divisional Court ruled in Krzyzowski v Poland (2007) EWHC 2754 (Admin) that the views expressed by the Divisional Court in the instant case were inconsistent with those in Kakis v Cyprus (1978) 1 WLR 779 HL and were therefore The court certified that there was a point of law of general public importance, namely whether the law on the passage of time bar to extradition as set out in s.82 and s.14 had been correctly stated by the Divisional Court in the instant case or whether Krzyzowski, which disapproved of that approach, should be followed in its place.

HELD: (1) The rule in Kakis was undoubtedly correct, namely that any delay in the commencement or conduct of extradition proceedings which was brought about by the accused fleeing the country, concealing his whereabouts or evading arrest could not be relied upon as a ground for holding it to be either unjust or oppressive to return him. Accordingly, neither appellant could invoke the passage of time to establish that their extradition was unjust or oppressive and still less to establish themselves as falling within "the most exceptional circumstances". Any accused who deliberately fled the jurisdiction in which he had been bailed to appear could not justify suggesting that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of a subsequent fault on their part, such as dilatoriness or inaction caused by limited resources. None of those reasons broke the chain of causation set in train by the accused's own conduct. Only a deliberate decision communicated to the accused by the requesting state not to pursue him, or some other circumstance instilling a similar sense of security could properly allow an accused to assert that the effects of further delay were not "of his own choice and making". The main reason for such an approach was to minimise the incentive on the accused to flee, which had to be the policy of the law. Generally it would be clear whether an accused had deliberately fled the country and, as such flight would almost always operate as an automatic bar to reliance on delay, it would have to be proved beyond reasonable doubt. A second reason was to prevent the necessity of having an expensive and time-consuming exploration of the state's resources and practices to determine whether the passage of time involved fault on its part, as it would often not be clear where the delay lay. (2) With regard to the concept of oppression within the meaning of s.82, the test would not easily be satisfied: hardship, which was a comparatively commonplace consequence of an order for extradition. (3) As to a fair trial, Trinidad and Tobago was to be assumed to have the necessary safeguards against an unjust trial and, even in countries where extradition arrangements were a little more ad hoc, the presumption should be that justice would be done despite the passage of time and that the burden should be on the accused to establish the contrary. The test of establishing the likelihood of injustice would not be easily satisfied.Appeal dismissed

Trenk v Czech Republic (2009) QBD (Admin) (Davis J) 24/4/2009

Thu, 23 Apr 2009 23:00:00 GMT

T was a Czech national who had been resident in the United Kingdom for some time. He had been served with a notice of prosecution when he left the Czech Republic. His extradition was sought pursuant in relation to an allegation of swindling. The arrest warrant was vague. Further requests for information were sent to the Czech prosecuting authority and answers were given in a document signed by a Czech judge. T submitted he was wanted for questioning, not prosecution. HELD: The Czech judge's answers had left the position very vague. Although one answer stated that T was sought for prosecution, the other answers went against that. There was an abundance of grounds to show why the Czech police believed T had committed the crime, but the prosecuting authority had not assessed those grounds, and that needed to happen before the charges could be brought. When the procedures of a foreign jurisdiction were unknown, a cosmopolitan approach was necessary as it was not satisfactory to seek to impose English procedure on a foreign jurisdiction.. It was not established that the Czech prosecuting authority had crossed the boundary from investigation to prosecution. There was no evidence of what the Czech procedure was but it did not appear that T was sought for prosecution; he was required for further questioning. The judge had fallen into error. T was discharged. Appeal allowed.

Brown (aka Bajinja) & Ors v The Government of Rwanda Secretary & anor [2009] EWHC 770 (Admin) (08 April 2009)

Tue, 07 Apr 2009 23:00:00 GMT

As there were no general treaty arrangements between the United Kingdom and R, a memorandum of understanding was entered into by R and the UK in respect of the appellants (B) which engaged the statutory extradition machinery contained in the Extradition Act 2003 by force of s.194. After the signing of a warrant, B were arrested in London. At the subsequent extradition hearing, R proposed that B be tried for genocide in the Rwandan High Court, which was a court of criminal jurisdiction, as opposed to the International Criminal Tribunal for Rwanda. The judge sent the case to the secretary of state under s.87(3), having found that B had not discharged the burden of proving on the balance of probabilities that there would be a flagrant denial of justice if they were extradited. The secretary of state then made the order for extradition pursuant to s.93(4). B argued that they would not receive a fair trial and that, in the context of genocide trials, the Rwandan High Court was not an independent and impartial tribunal.

HELD: The legal test by which the issue of a fair trial had to be judged was whether the defendants would suffer a real risk of a flagrant denial of justice if they were extradited for trial (Ullah (2004)) applied. A "real risk" did not mean proof on the balance of probabilities, but merely a risk which was substantial and more merely fanciful which might be established by something less than proof of a 51 per cent probability. In B's case, the judge had fallen into error in respect of the standard of proof required. Insufficient weight had been given to judgments of the ICTR and evidence to the effect that witnesses who could give important evidence for the defence would be too afraid of possible reprisals to testify or travel to Rwanda in order to do so; the question whether a court was independent and impartial could not be answered without considering the qualities of the political frame in which it was located. R had provided no details of the Rwandan High Court's business, no details of trials, of defences run, successfully or unsuccessfully, no details of any of the myriad events that showed a court was working justly. The problems that B would face in respect of defence witnesses did not promise well for the judiciary's impartiality and independence, and the general evidence as to the nature of the Rwandan polity offered no better promise. In light of all the evidence taken together, if B were returned there was a real risk that they would suffer a flagrant denial of justice. The judge had, therefore, been wrong to have sent B's cases to the secretary of state and they were entitled to be discharged. Accordingly, the secretary of state's order for extradition had automatically to fall. Appeals allowed

Tazbir v Regional Court In Gdansk, Poland [2009] EWHC 838 (Admin) (07 April 2009)

Mon, 06 Apr 2009 23:00:00 GMT

An European arrest warrant sufficiently specified conduct alleged to constitute an extradition offence and was valid for the purposes of the Extradition Act 2003 s.2(4)(c). T contended that the conduct merely specified an alleged fraud against property in a broad manner that was insufficient to disclose what the extradition offence was, so that the warrant did not comply with s.2(4)(c) of the Act. HELD: Whilst the conduct said to constitute the offence was not well drafted, it was sufficiently particularised to give T an idea of the offence in respect of which his extradition was sought. The offence for which he was sought was fraud and that the essence of the fraud was deception by T. Accordingly, the warrant was valid and complied with s.2(4)(c) of the Act.

Haynes v Court of Magistrates, Malta [2009] EWHC 880 (Admin) (26 March 2009)

Thu, 26 Mar 2009 00:00:00 GMT

Malta had originally sought H's extradition under an European arrest warrant in respect of three alleged offences of assault occasioning grievous bodily harm, but that warrant was quashed by the Divisional Court on the grounds that the warrant was not sufficiently particularised. Thereafter, Malta issued a second European warrant that again specified the same three offences. An expert report for H stated that one of the offences for which H's extradition was sought could not be classified as assault occasioning actual bodily harm. Having considered that report, Malta agreed that H's extradition was only sought in respect of two counts of assault occasioning grievous bodily harm. It was accepted that the third count had erroneously arisen through a slip on the charge sheet. The district judge found that what had occurred was simply a mistake and that there was no logical reason for Malta to deliberately lie and mislead the English courts. The district judge further found that it would not be unjust or oppressive to extradite H due to the passage of time. H contended that (1) the manner in which Malta had sought his extradition amounted to an abuse of process as it had deliberately given misleading information in relation to the charges that he faced; (2) his extradition would be unjust or oppressive due to the passage of time, in particular given the dilatory fashion in which the matter had been handled by the judicial authority.

HELD: (1) A person facing extradition could only sustain an abuse of process argument if (a) he could identify with specificity what conduct was said to be an abuse; (b) satisfy the court that such conduct was capable of constituting abuse; (c) that such conduct had occurred. There was a presumption that requesting states acted in good faith when making an extradition request and the court would be slow to find that a requesting state had acted in bad faith. In the instant case it was clear that Malta had not sought to mislead the English courts as to the charges that H faced but had made a mistake through carelessness. Further, there was no need for Malta to mislead the English courts as to the charges that H faced in order to secure H's extradition as it was clear from the outset of the proceedings that H was wanted for one offence of ABH. (2) The passage of time in the instant case did not render H's extradition unjust or oppressive. Whilst the trial proceedings in Malta might have progressed more slowly than in the UK there was nothing about that which rendered H's extradition unjust or oppressive. Further, whilst a certain degree of culpability attached to Malta through the delay in issuing an EAW that delay was of no real significance to the case overall. Moreover, H had no reasonable basis for having a false sense of security that he might not be extradited as there was no reason for him to think that Malta would not continue to seek his extradition after the first European arrest warrant was quashed.

Yuen v Secretary of State for the Home Department [2009] EWHC 573 (Admin) (25 March 2009)

Wed, 25 Mar 2009 12:42:00 GMT

The Claimant, who is 60, left Hong Kong for England in February 1998. On 15th February 1999 the Government of the Hong Kong Special Administrative Region issued a provisional request for the Claimant's arrest for trial on charges directly connected with a fraud committed by her husband to the value of £900,000. The Claimant was arrested in England in October 2000 pursuant to this request, but was discharged in April 2001. A month later a fresh request was issued. Various legal challenges were ultimately concluded in favour of the JA in 2002. Since then, on a number of occasions, representations were made on her behalf to the Secretary of State, largely based on her mental health, seeking to persuade the Secretary of State not to make the Extradition Order. The Secretary of State however signed the Order on 6 September 2007 but permitted further representations to be made about the Claimant's mental health, fitness to plead and the passage of time. Ultimately, she endorsed her original order with a new decision on 24 January 2008. The claimant challenged that decision by Judicial Review on the basis that it is irrational and represents a disproportionate interference in the Claimant’s Art 8 rights.
HELD: No error of legal approach was made by the Secretary of State. Her conclusion that the unresolved issue of fitness to plead should be resolved by the courts of the receiving state was reasonable. She had ample evidence upon which to reach a rational decision that extradition would not be oppressive by reason of the passage of time or at all. Nor would it be unjust by reason of passage of time because the difficulties in raising Ms Yuen’s defence arise not from passage of time but rather from her abandonment by her husband. Although there was some culpable delay by the Secretary of State in reaching her decision there is no evidence it was vitiated by her approach to her delay. As to human rights, the Claimant's family life would be disrupted however she would be going back to the place where she lived most of her life, where the language and culture will be familiar to her. From this point of view, the process would be rather less disruptive than for many who are extradited. Although the extradition would cause hardship, it would not be disproportionate to the very important public interest in the honouring of mutual obligations and the trial of those who face, properly, serious criminal charges. Application dismissed.

Yuen v Secretary of State for the Home Department [2009] EWHC 573 (Admin) (25 March 2009)

Wed, 25 Mar 2009 00:00:00 GMT

It had been appropriate for the Secretary of State for the Home Department to order the extradition of an individual to Hong Kong to face trial for fraud offences even though it had not been concluded that the individual was fit to stand trial, as the law in Hong Kong on fitness to plead was largely the same as in the United Kingdom, and it was clear that the extradition would not be oppressive or disproportionate. There was no direct medical evidence that stated that Y could not explain the nature of her defence sufficiently for any prejudice to be specifically demonstrated. The secretary of state had correctly understood that her fitness to plead was an unresolved issue, but had good evidence as to the procedures in Hong Kong for considering fitness to plead, which showed that the legal basis, procedures and consequences were essentially the same as in England. A high threshold had to be crossed before a physical or mental condition could make extradition disproportionate. It was also necessary to consider the public interest in the maintenance of the obligations of mutuality in the extradition system and in the trial of those accused of serious crimes. A prima facie case had been found against Y, and one would expect a clear and compelling case to be shown before her extradition could be held disproportionate. Application refused

Hutton v The Government of Australia [2009] EWHC 564 (QB) (20 March 2009)

Fri, 20 Mar 2009 12:39:00 GMT

The appellant (H) appealed against decisions of a district judge ordering his extradition to the respondent requesting state, Australia. H was a 55-year-old British citizen who had a long history of mental illness. His extradition had been requested for the murder of his former partner. The crime had taken place in Australia 23 years previously and an inquest at that time recorded the cause of death as unresolved. Following admissions by H during his detention in a psychiatric hospital in England and later, under caution at a police station, the case was re-opened more than 20 years after the offence was committed. H submitted that if extradited, there was a significant chance that his mental condition would relapse and that this risk made it unjust or oppressive to extradite him to face trial after so many years.
HELD: Whilst public interest could not tip the scales if it were otherwise unjust to extradite H, "unjust" being largely directed to the fairness of the trial process, the gravity of the offence would be regarded as an important countervailing factor in deciding whether it would be oppressive to extradite him. The critical features in the instant case were the gravity of the alleged offence, H's admissions, the fact that he would have a fair trial in Australia and that his mental condition would be treated as appropriately in Australia as it would be in the UK. Accordingly, appeal dismissed.

Hutton v Government of Australia [2009] EWHC 564 (Admin) (20 March 2009)

Fri, 20 Mar 2009 00:00:00 GMT

The extradition to Australia of an alleged offender, who had a long history of mental illness, to face a murder charge 23 years after the offence was committed was not unjust and oppressive either due to the passage of time under the Extradition Act 2003 s.82 or because of his mental condition under s.91 of the 2003 Act. It was true that there was a risk or a certainty that extradition would cause some deterioration in H's mental health, but the extent and permanence of that deterioration were matters of speculation. The Australian authorities were as well equipped as those in the UK to meet H's needs and it was not unjust or oppressive either due to the passage of time or H's mental state or a combination of the two to extradite him. The critical factors in the case were: the gravity of the alleged offence; he had confessed 20 years later; he would receive a fair trial in Australia; and his mental condition would be treated appropriately in Australia.

Von Der Pahlen v Leoben High Court, Austria [2009] EWHC 383 (Admin) (04 March 2009)

Wed, 04 Mar 2009 11:35:00 GMT

The appellant (P) appealed against a decision of a district judge ordering his extradition to Austria pursuant to a European arrest warrant for fraud-related offences. P was the director of a company that had been incorporated in Austria. Following an official complaint, a comprehensive investigation was conducted and criminal proceedings were brought against P in Austria. An EAW was issued and extradition ordered. P submitted that (1) the warrant contained inadequate particulars pursuant to s.2(4)(c). (2) his extradition was to be barred by reason of passage of time pursuant to s.14. He argued that it would be unjust for him to be extradited as he could not have a fair trial because key evidence had been lost and that the long delay between the start of the investigation and his arrest had lulled him into a false sense of security; (3) it would be oppressive to extradite him, as his wife had been diagnosed with serious health problems and her condition had recently deteriorated.
HELD: 1) The judge had been correct to conclude that the provisions of s.2(4)(c) had been complied with in respect of both of the charges.. It was clear that there was sufficient information to tell P what he was said to have done wrong, when and where he had done it and what law he had contravened 2) The criminal conduct alleged in the instant case dated back less than three years before P was arrested. There was no culpable delay attaching to either P or the requesting state, and the relevant passage of time was not particularly long. The judge had heard all the evidence, and there was no basis for interfering with her conclusions. P had not disclosed his defence to the extradition charges, and in the absence of such disclosure it was only possible to deal with a contention that he would be prejudiced in his trial in the most general terms. (3) Although there had been some recent deterioration in the health of P's wife, the problems with her health had been long-standing and it was not oppressive to return P to Austria. Appeal dismissed.

Kalniets v District Court of Ogre [2009] EWHC 534 (Admin) (03 March 2009)

Tue, 03 Mar 2009 12:30:00 GMT

The appellant (L) appealed against a decision of a district judge to order his extradition to the respondent requesting state, Latvia. Latvia had sought L's extradition pursuant to a European arrest warrant that had been issued in respect of murder charges brought against L. At a contested hearing before the district judge L gave evidence that he feared for his safety if he was held in custody in Latvia. The district judge rejected L's evidence as unimpressive and found that no human rights issues had been established by him. On appeal, L sought to adduce fresh evidence as to prison conditions in Latvia.
Held: It was inappropriate to allow L to adduce the fresh evidence as it could have been introduced at the extradition hearing before the district judge through the exercise of due diligence. It was trite law that those who were involved in litigation should advance all their case at first instance. Evidence which was "not available at the extradition hearing", in s.29(4)(a) meant evidence which, either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained, Fenyvesi followed. Appeal dismissed.

Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin) (19 February 2009)

Thu, 19 Feb 2009 00:00:00 GMT

A party will not be permitted to rely upon fresh evidence in extradition appeals unless there is very good reason.
The respondents are of Roma origin and contended before the district judge that their extradition to Hungary, a Category 1 territory under the 2003 Act, was barred by extraneous considerations (section 13) and that the judge should order their discharge because their extradition would be incompatible with their Convention Rights within the meaning of the Human Rights Act 1998 (section 21). They contended for the purposes of section 13 that if they were extradited, they might be prejudiced at their trial or punished or detained by reason of their race and that upon return their Art 3 and Art 6 rights would be breached. The respondents relied upon a number of witnesses to support their assertions however the judicial authority failed to produce any evidence to rebut the defence contentions. The district judge concluded that if the respondents were extradited, they might be prejudiced at their trial or punished, detained or restricted in their personal liberty by reason of their race. As to section 21, he concluded that there were strong grounds for concluding that there was a real risk, if the respondents were returned, that they would suffer inhuman or degrading treatment at the hands of prison officials in breach of article 3 of a Convention; and that there would be a very real risk of a flagrant denial of the fair trial as required by article 6 of the Convention. He accordingly discharged each of the 6 European Arrest Warrants.
The appellants, in appealing the judgment sought to rely upon new evidence to rebut that relied upon by the defence at the Magistrates’ Court. Notwithstanding that that new evidence may have provided the basis for a ground of appeal the High Court ruled that, in the absence of a good reason for the failure to put the evidence before the district judge, it could not be relied upon for the purposes of the appeal. It further clarified that evidence which was "not available at the extradition hearing" means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available.

Appeal dismissed.

Mauro v Government of the United States of America [2009] EWHC 150 (Admin) (04 February 2009)

Wed, 04 Feb 2009 00:00:00 GMT

A judge was correct to conclude that offences of tax evasion under US law were, in the circumstances, extradition offences for the purposes of the extradition Act 2003 s.137(2)(b) on the basis that the evader's alleged conduct was, if proven, dishonest, so that he would be guilty of comparable English offences of tax evasion. It was common ground that, whereas the comparable English offences required proof of dishonesty, the relevant American offences did not.
HELD: The court reconfirmed that the English Court has to be satisfied, to the criminal standard, that "the conduct would constitute an offence" under the law of England and Wales pursuant to s.137(2)(b). That did not mean that the requesting state had to prove the guilt of the person in English law. That would be absurd and would be a higher test than the prima facie case that had to be established under earlier legislation. The words "would constitute an offence" in s.132(2)(b) simply meant "would, if proved, constitute" the comparable English offence. In the instant case, the allegation of conduct embraced: (a) a failure to file tax returns for four years whilst earning substantial sums of money; (b) a failure to pay a substantial amount of tax, and; (c) the making of a series of false representations to the American authorities, that would, without more and if proved, support the inference that M's conduct was dishonest. Furthermore, additional information from the US authorities was admissible; in a Part 1 case, a judge could request, receive and consider further information from the requesting state in order to determine whether the offence alleged in the warrant was an extradition offence; Dabas v Spain & Norris v US consid. When a Judge was required to decide in a Part 2 case whether the offence specified in the request was an extradition offence, s.78(4)(b) did not limit him to the information contained in the originating request.

Appeal dismissed.

Caldarelli, R (on the application of) v Westminster Magistrates Court [2009] EWHC 107 (Admin) (27 January 2009)

Tue, 27 Jan 2009 00:00:00 GMT

A judge had been entitled to conclude that there had been a "reasonable cause for the delay" in executing an extradition order for the purposes of the extradition Act 2003 s.36(8) where other extradition proceedings were in progress in the English courts under EAWs issued by the same issuing authority and the person subject to the extradition order should not be deprived of the opportunity to be present and give evidence at the hearing in those proceedings.
Assuming that the issuing judicial authority had been acting in good faith, it was an entirely reasonable view to take that the overall objective of the Framework Decision, which was to try and ensure the swift and orderly extradition between Member States of persons against whom criminal proceedings had been instituted in the requesting State for a serious offence, would best be met by the judicial authority of the requesting State dealing as swiftly as practicable with all warrants in order that the person concerned could be extradited on all matters for which he should properly be extradited. In that context the District Judge had been entitled to conclude that reasonable cause had been shown for the failure to extradite C in respect of warrant 4 pending the extradition proceedings in respect of warrants 5 and 6. Where a single issuing judicial authority issued two or more warrants seeking the extradition of the same person they were not "competing warrants" and so the procedure under s.44 for applications for extradition to be deferred did not apply.

Appeal dismissed, application for judicial review refused

Sonea v Mehedinti District Court [2009] EWHC 89 (Admin) (23 January 2009)

Fri, 23 Jan 2009 00:00:00 GMT

The appellant (S), a Romanian national, appealed against an order that he be extradited to Romania. S had been convicted in his absence by the respondent court in 2003 of attempted first degree murder and sentenced to 10 years' imprisonment. He was believed to be in Spain at the time of the trial. The Romanian court had concluded that he knew about the trial because his wife had told him about it by telephone. The EAW was drafted as a conviction warrant. S submitted that he had a right to a retrial in the event of his extradition to Romania, and that he ought therefore to be considered as an accused person, not as a convicted person. Accordingly, he maintained that the arrest warrant should have been drafted as an accusation warrant rather than as a conviction warrant.

HELD: The court set out and construed the step-by-step process laid down by the extradition Act 2003 for determining whether a convicted person was liable to discharge, retrial or extradition. (1) Picking out observations by judges in cases concerned with earlier legislation was liable to be misleading. Rather it was necessary to follow that process carefully and chronologically. In particular, the features in s.20 (cases where a person has been convicted) could not be considered until all previous steps in the process had been completed. The case of Caldarelli, although heard under the Act, was fact-specific and contained nothing to support the instant case. On the facts, S fell within the definition of "unlawfully at large" (after conviction). It was only when the step-by-step exercise took the judge to s.20 that he was required to consider whether the person was convicted in his presence, or whether he had deliberately absented himself from trial and whether he was entitled to a retrial. Section 20 was only reached where a person had been convicted and therefore, if G was to be treated as an accused person rather than as a convicted person, none of the detailed steps in that section would be relevant. G was seeking to extract questions dealt with by s.20 and have them dealt with as issues that determined the nature of the warrant. That did not fit with the step-by-step process that the legislation stated must be followed.

Mucelli (Appellant) v Government of Albania (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice), Moulai (Respondent) v Deputy Public Prosecutor in Creteil, France (Appellant) (Criminal Appeal from Her Majesty’s High Court of Justice),

Wed, 21 Jan 2009 11:10:00 GMT

These two appeals concern the time limits in Part 1 and Part 2 of the Extradition Act 2003 governing appeals to the High Court against an order of a District Judge permitting extradition. s.26(4) and s.103(9) provide that “Notice of an appeal … must be given in accordance with rules of court before the end of …. [7 or 14] days starting with the day on which the order is made". Three questions of principle arise:

(a) Must the appeal notice be both filed in the High Court and served on the respondent within the 7 or 14 days?
(b) Is the Court precluded from extending time for the filing and/or the service of the appeal notice?
(c) What happens if the office of the recipient of the notice is closed before the last moment for service?

The House held that:-
(a) - an appellant’s notice must be served, as well as filed, within the 7-day period referred to in s.26(4). Re. s.103(9), it requires an appellant’s notice to be served within the 14-day period to which it refers.
(b) It is not open to the court to extend time under s.26(4) or to dispense with service of the notice of appeal. The same applies to s.103(9).
(c) The provisions of CPR 6.7 (which state that a document transmitted by fax after 4pm is deemed to have been served “on the business day after the day on which it is transmitted") do not apply. s.26(4) requires the appellant’s notice to be issued and served within 7 days and there is no warrant for the CPR being invoked to cut down that period. The point is reinforced by practical considerations: the 7 day period laid down by s.26(4) is short, and it does not seem very fair to cut it down, even if only by a few hours. Although the 14 days permitted by s.103(9) is somewhat longer, the same reasoning applies. In addition, where the recipient’s office is closed during the whole of the last day, the notice will be validly filed or served if it is given at any time during the first succeeding day on which the office is open. However, the same would not apply in cases where, even if only for a few hours, the required recipient’s office is closed before midnight on the final day if the office has been open during normal business hours.

Raichandani & Anor v Government of the Hong Kong [2009] EWHC 28 (Admin) (20 January 2009)

Tue, 20 Jan 2009 00:00:00 GMT

A delay of approximately nine years between when suspected offenders had apparently committed the relevant offences and when proceedings were commenced to extradite them to Hong Kong did not make it unjust to extradite them as they, rather than the Hong Kong authorities, were largely responsible for the delay.
The appellants (R) appealed against a decision that the secretary of state should consider whether they were to be extradited to the respondent requesting state, Hong Kong. R had operated a company (S) in Hong Kong. S had collapsed and R had left the country. They were subsequently suspected of having been involved in fraud using S. The judge rejected R's evidence that they had left Hong Kong intending to return and without knowing of the allegations of fraud. He found that the delay in bringing proceedings had been primarily caused by R's hasty departure and movement through countries. He held that it was R's fault if documents were no longer available and concluded that extradition would not be unjust and, whilst R's extradition away from their children might cause distress and hardship, it would not be oppressive. Whilst in the UK, they had not been actively hiding but had been evading arrest, albeit in a fairly passive way. Any risk of prejudice from lack of documents or witnesses was overlain by R's larger responsibility for the delay. There were not striking or unusual features of the case to make it disproportionate to extradite R to face trial. The fact that they might be separated from nearly grown-up children did not make it disproportionate. The judge had been entitled to hold that distress and hardship did not amount to oppression.

Appeal dismissed

Dorothy May Fasola v. Her Majesty's Advocate [2009] HCJAC 3

Wed, 14 Jan 2009 19:54:00 GMT

Note of Appeal under section 26(1) of the Extradition Act 2003:- On 19 September 2007 a Sheriff of Lothian and Borders at Edinburgh ordered that the appellant should be extradited to Italy to serve sentences of imprisonment imposed on her in her absence by the Italian courts for offences of armed robbery and counterfeiting under section 21 of the Extradition Act 2003 following the presentation by the relevant Italian authority of two European Arrest Warrants (EAWs). Here the appellant appealed against the making of that order by the Sheriff under section 26(1) of the 2003 Act. The grounds of appeal fell under three headings: (1) the validity of the EAWs (section 2 of the 2003 Act); (2) deliberate absence from trial (section 20); and (3) the passage of time (section 11). The only ground argued here related to the passage of time and whether the sheriff correctly concluded that it would not be unjust or oppressive to extradite the appellant by reason of the passage of time since she is alleged to have become unlawfully at large in terms of sections 11(1)(c) and 14 of the 2003 Act. Here the court considered whether it would be oppressive to extradite the appellant by reason of the passage of time since she became unlawfully at large in respect of convictions in 1998 and 2001.

R (on the application of Wellington) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) (Criminal Appeal from Her Majesty’s High Court of Justice), [2008] UKHL 72

Wed, 10 Dec 2008 10:29:00 GMT

The State of Missouri alleges that the appellant, Wellington, committed two murders in Kansas City and he is charged with murder in the first degree. The appellant was arrested in London on a provisional warrant. The United States requested his extradition. The prosecutor in Missouri gave an undertaking that he would not seek the death penalty. Some time was then taken up with an unsuccessful challenge to the committal by judicial review but the Home Secretary later notified the appellant that he had ordered his extradition. This decision was also challenged by an application for judicial review which was dismissed by the Administrative Court. The appellant appealed to this House.

The sole ground of challenge is that, in ordering extradition, the Home Secretary, as a public authority, acted in a way which was incompatible with the appellant’s Convention right under art.3 of the ECHR not to be, “subjected to…inhuman or degrading…punishment.” A sentence of life imprisonment without eligibility for parole is alleged to constitute such punishment. The order for extradition is therefore said to have contravened s.6(1) of the Human Rights Act 1998.

The appeal raises two issues – (1) whether a sentence of imprisonment for life without eligibility for parole would, if imposed in the UK, constitute an inhuman or degrading punishment; and (2) whether it makes a difference that the sentence will not be imposed by a UK authority but by the State of Missouri.

The House of Lords unanimously dismissed the appeal. Per Lord Hoffmann, it could not be said that a sentence of life without parole would be so grossly disproportionate to the offence as to meet the heightened standard for contravention of art.3 in its application to extradition cases. It was irrelevant that an English judge would have judicial discretion whether or not to impose a whole life sentence whereas in Missouri the sentence would be mandatory. The mandatory nature of the sentence would be important if the case was concerned with the validity of a domestic rule imposing such a sentence. However, the House was not concerned with the validity of the Missouri law. The fact that a life sentence without parole was mandatory in Missouri was relevant only in enabling the English court to predict the punishment which the appellant would receive if he was convicted of first degree murder.

Wellington R, (On the Application of) v Secretary of State for the Home Department [2008] UKHL 72 (10 December 2008)

Wed, 10 Dec 2008 00:00:00 GMT

The appellant faced two charges of murder in Missouri, for which the mandatory penalty was imprisonment for life without eligibility for probation or parole or release, except by the act of the Governor. He challenged the decision to order his extradition on the basis that it breached his rights under ECHR 1950 art.3, arguing that a sentence of life imprisonment without eligibility for parole constituted inhuman or degrading punishment. HELD: A complaint under art.3 could not be made simply because such a sentence had been imposed, but only when the prisoner contended that for some other reason his continued detention would be inhuman or degrading. A relativist approach to the scope of art.3 was essential if extradition was to continue to function, and in the extradition context art.3 was to be treated as applicable only in an attenuated form that took account of the desirability of arrangements for extradition. Successful reliance on art.3 in the extradition context therefore demanded the presentation of a very strong case.

Wellington R, (On the Application of) v Secretary of State for the Home Department [2008] UKHL 72 (10 December 2008)

Wed, 10 Dec 2008 00:00:00 GMT

The imposition of a life sentence would not necessarily infringe Art.3. While an irreducible life sentence might raise an issue under Art.3 but would not necessarily infringe it, a life sentence that was not irreducible would not even raise an issue. Moreover, the bar for what counted as irreducible was set high; power to release someone from a life would mean the sentence was not irreducible.

The test of what constituted inhuman or degrading punishment within the meaning of the European Convention on Human Rights 1950 Art.3 differed depending on whether what was being considered was a punishment to be imposed in the United Kingdom, or that to be imposed in a requesting country following extradition. In the latter case, Art.3 was applicable only in an attenuated form; punishment which would be degrading in the domestic context would not necessarily be so in the context of extradition. Successful reliance on Art3. demanded the presentation of a very strong case. Appeal dismissed.

Chyba v District Court in Strakonice [2008] EWHC 3292 (Admin) (05 December 2008)

Fri, 05 Dec 2008 00:00:00 GMT

The appellant (C) appealed against a decision of City of Westminster Magistrates' Court consenting under the Extradition Act 2003 s.55(6) to a request from the respondent requesting state that C serve a sentence of imprisonment in respect of a conviction which was not related to his original extradition. C argued his conditions of detention in the Czech Prison amounted to a breach of art.3. HELD: In the absence of statutory provisions for an appeal to consent requests, the appropriate mechanism would be to apply for judicial review. However, the facts came nowhere near establishing an art.3 breach so this was not a case in which permission could be granted.

Fabian v Czech Republic 5/12/2008

Fri, 05 Dec 2008 00:00:00 GMT

A European Arrest Warrant (EAW) issued in respect of an individual accused of fraud offences had been adequately particularised for the purposes of section 2(4)(c) of the Extradition Act 2003 (EA 2003). The purpose of particularisation was to provide the requested person with sufficient information about his alleged offences to permit him to contest the extradition and to provide the requested state with sufficient information to determine whether or not to order extradition. The conduct was quite clear and the arguments as to losses, victims, time frame, other individuals involved and F’s role had not merit. Appeal dismissed.

Slovakia v Badi (2008) EWHC 2913 (Admin) (Date Uncertain)

Mon, 01 Dec 2008 00:00:00 GMT

B was convicted in his absence in Slovakia. At the Magistrate’s court level B was then discharged on the European Arrest Warrant on the grounds that his only chance of a retrial was if facts or evidence unknown at the time of the conviction were to emerge. This was upheld on appeal. The Judicial Authority was not assisted by the submission that Art.6 has been incorporated into the Slovakian Criminal Code. Appeal allowed.

Mohammad v France (2008) EWHC 3228 (Admin) (Date Uncertain)

Mon, 01 Dec 2008 00:00:00 GMT

An EAW issued in relation to an individual charge charged with conspiracy to facilitate unlawful entry of illegal immigrants was sufficiently particularised for the purposes of section 2(4)(c) in relation to the offence circumstances, the person central to the conspiracy and M’s contact with that person. Appeal dismissed.

Kwietniewski v Poland (20008) EWHC 3121 (Admin) (Date Uncertain)

Mon, 01 Dec 2008 00:00:00 GMT

Whilst the risk of suicide if sufficiently well established could form the basis of proper arguments that return might lead to breaches of Art.3, in this case there was insufficient material in the psychiatrist’s report to justify such a conclusion. The report merely expressed concerns in relation to harm, which was not sufficient. Appeal dismissed.

Mckenzie v Spain (2008) EWHC 3187 (Admin) (Date Uncertain)

Mon, 01 Dec 2008 00:00:00 GMT

The Magistrates court had been entitled to order the extradition of a man accused of sexual assault. There were no reasons to find that his extradition would have been oppressive or unjust by reason of the passage of time, or for concluding that on return he faced a real risk of being subjected to treatment by the police which would breach Art.3. Appeal dismissed.

Louca v Public Prosecutor In Bielefel, Germany [2008] EWHC 2907 (Admin) (27 November 2008)

Thu, 27 Nov 2008 00:00:00 GMT

The first and second appellants (L and K) appealed against extradition orders made against them in the United Kingdom on the basis that the Magistrates’ Court had misinterpreted the requirement in s2(4)(b) and s2(6)(c) of the Extradition Act 2003 respectively, to particularise ‘any other warrant’, and accordingly had wrongly ordered extradition where the warrant was invalid. HELD: In dismissing the appeals, ‘any other warrant’ referred to the domestic warrant upon which the European Arrest Warrant was based.

Hilali, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2892 (Admin) (25 November 2008)

Tue, 25 Nov 2008 00:00:00 GMT

The claimant (H) applied for judicial review of a decision of the defendant Magistrates Court that they had no jurisdiction to order a court in Spain either to proceed against him only for the offences for which he had been extradited there, or to return him to the United Kingdom. HELD: In dismissing the application, the powers of the appropriate judge and the High Court in extradition proceedings were derived from the Act and nowhere else. The absence of any provision in the Act giving the appropriate judge the power to investigate matters post-surrender was in accordance with the assumption of mutual recognition between states. There is no jurisdiction to make orders binding upon another state.

Rana v The Public Prosecutor of the Graz Regional Criminal Court, Austria [2008] EWHC 2975 (Admin) (07 November 2008)

Fri, 07 Nov 2008 15:58:00 GMT

An European Arrest Warrant issued in relation to a professional fraud contained sufficient particulars; the absence of information as to the location of airports, companies and reservations was irrelevant. Reading the EAW and giving it its plain and ordinary meaning the conduct was clear. The amount of detail required for each warrant would be fact sensitive, but the requirement is so the requested person knows why he is sought. R could be in doubt as to why his surrender was sought. Appeal dismissed.

Deya v Government of Kenya HC 31/10/2008

Fri, 31 Oct 2008 00:00:00 GMT

The appellant (D) appealed against an order for his extradition primarily on the grounds that his extradition would breach art.3 by reason of the prison conditions in the prison in which he would be detained. It was argued that once cogent evidence of possible breaches have been raised, the legal burden of proving an Article 3 case shifts from the claimant to the defendant. That evidence showed that prison conditions in Kenya are so bad a breach of art.3 would result. HELD: The burden does not shift as argued. The Court cannot order States to provide evidence. The starting point must be one of good faith, and that can be rebutted by evidence. Whilst general prison conditions are problematic, the particular prison in which D would be detained would not result in an art.3 breach. Nor were the other human rights points made out.

Ignaoua & Ors v The Judicial Authority of the Courts of Milan & Ors [2008] EWHC 2619 (Admin) (30 October 2008)

Thu, 30 Oct 2008 00:00:00 GMT

The appellants extradition was sought by an Italian judicial authority pursuant to an EAW. However, they contended that on being returned to Italy there was a real risk that the Italian Government would, in breach of art.3 of the Convention, allow their onward transmission to Tunisia. HELD: In dismissing the appeal, the test for the court to apply was whether, if the appellants were extradited, they would face a real risk of being deported to Tunisia. That risk had to be assessed on the evidence before the court at the date of the hearing. On the facts the court could assume that the trust placed in the authorities of a Member State would be justified. Further, the Framework Decision entitled an assumption to be drawn that the conduct of the Italian judiciary and its role in protecting rights under the Convention was not to be nullified by parallel or subsequent action by the executive arm of the Italian Government.

Caldarelli (Appellant) v Court of Naples (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice), [2008] UKHL 51

Wed, 30 Jul 2008 13:00:00 GMT

Mr Caldarelli challenges a decision of the Queen’s Bench Divisional Court upholding an order that he be surrendered pursuant to a European arrest warrant (EAW) issued by the Court of Naples. He complains that the warrant is bad because it seeks his surrender as an accused person and not (as he claims to be) a convicted person. The certified question is:

“Where a fugitive has been convicted and sentenced in his absence in the requesting state, but the conviction and sentence are neither final nor enforceable, may his case be treated as an accusation case even though he does not enjoy an unqualified right to a retrial on the merits?”

The appellant points to the fact that he has been tried and convicted and sentenced to 11 years’ imprisonment. Had the EAW sought his extradition as a convicted person, there would have been no answer. But the requesting state having chosen, wrongly, to treat him as accused when he should have been treated as convicted he cannot be committed as a convicted person. Therefore he must be discharged.

The respondents resist this argument on the basis that the EAW is valid and should be given effect.

The Senior District Judge upheld the EAW on the ground that the appellant would, if extradited, be entitled in the appeal proceedings to a full re-hearing on the facts and law. However, this was not the effect of the agreed evidence and the Divisional Court held that the EAW could not be upheld on that ground. That Court concluded that the EAW was rightly characterised as an accusation warrant.

The House of Lords agreed with the Divisional Court. The extradition of this appellant was properly sought as an accused person. The appellant was not being sought for the purpose of executing a custodial sentence or order because no enforceable order had yet been made. He was being sought for the purpose of conducting a criminal prosecution. When he came before the district judge at the extradition hearing, he was not a person “alleged to be unlawfully at large after conviction of the extradition offence” because although convicted his extradition was not sought “for the purpose of…his serving a sentence of imprisonment…imposed in respect of that offence” which is now part of the definition of “unlawfully at large after conviction” by virtue of s.68A(1)(b) of the Extradition Act 2003. He was therefore covered by s.11(5) of that Act as a person “not alleged to be unlawfully at large after conviction”.

The House of Lords unanimously dismissed the appeal stating that it was not difficult in this case to conclude that the extradition of this appellant was properly sought as an accused person.

McKinnon (Appellant) v Government of the United States of America (Respondents) and another, [2008] UKHL 59

Wed, 30 Jul 2008 09:18:00 GMT

The appellant is a 42 year old British citizen. In October 2004 the US government requested his extradition to the US alleging that between February 2001 and March 2002 he had gained unauthorised access to 97 US Government computers from his home computer in London.

In May 2006, District Judge Evans sent the appellant’s case to the Secretary of State to decide whether the appellant should be extradited and in July 2006 the Secretary of State ordered the appellant’s extradition. The appellant appealed against the decisions both of the District Judge and of the Secretary of State to the Divisional Court which in April 2007 dismissed both appeals. However, two points of law were certified by the court as being of general public importance and in October 2007 the House granted leave to appeal in respect of the following one of them:

“Is it an abuse of process of extradition proceedings, such that the proceedings should be stayed, and/or an unjustified interference with the defendant’s human rights, for the requesting state to engage in plea bargaining, including a threat to the defendant that, unless he agrees to be extradited, repatriation to the United Kingdom to serve any sentence imposed in the requesting state will not be supported by the prosecuting authority in the requesting state?”

The American prosecutor informed the appellant’s solicitor that he was authorised to offer the appellant a deal in return for not contesting extradition and for agreeing to plead guilty to two of the charges laid against him. He indicated that on this basis, it was likely that a sentence of 3-4 years would be passed and that after serving 6-12 months in the US, the appellant would be repatriated to complete his sentence in the UK. If, however, the appellant chose not to co-operate and was then extradited and convicted, he might expect to receive a sentence of 8-10 years and would not be repatriated to the UK for any part of it. The appellant declined the deal.

The appellant’s main argument focuses on the wide disparity between on the one hand the predicted likely outcome if the appellant cooperated with the US authorities and the threatened likely outcome if the appellant refused to cooperate. Such a disparity, it is submitted, is disproportionate and subjected the appellant to impermissible pressure to surrender his legal rights, particularly his right to contest extradition. Pressure of this kind, it is submitted, runs flatly counter to the principle that a judge may respond to a defendant’s request that he be told the maximum sentence that would be imposed on a plea of guilty but is not to volunteer such information unasked nor to indicate what sentence might be passed on the defendant’s conviction by the jury.

The House of Lords held that, (1) the US prosecuting authority did not attempt to interfere with the due process of the Court; (2) the US prosecuting authority did not place undue pressure on the appellant to forego due legal process in the UK and so disentitle itself from pursuing extradition proceedings; (3) extradition in this case would not violate those fundamental principles of justice which underlie the community’s sense of fair play and decency; and (4) the appellant, following extradition, would not be paying an unconscionable price having insisted on exercising his rights under English law. The disparity between the consequences predicted by the authorities was very marked. However, it was no more appropriate to describe the predicted circumstances of non-co-operation as a “threat” than to characterise the predicted consequences of co-operation as a “promise” or, indeed, a “bribe”. The discount would have to be very substantially more generous than anything promised in this case before it constituted unlawful pressure such as to vitiate the process. So too would the predicted consequences of non-co-operation need to go significantly beyond what could properly be regarded as the defendant’s just desserts on conviction for that to constitute unlawful pressure.

The House of Lords unanimously dismissed the appeal.

McKinnon v The United States of America & Anorr [2008] UKHL 59 (30 July 2008)

Tue, 29 Jul 2008 23:00:00 GMT

The appellant, whose extradition was sought by the respondent state, argued that the disparity between the sentence proposed under plea-bargaining and that which he would receive on conviction was disproportionate, subjected him to impermissible pressure to surrender his legal rights and as such amounted to an abuse of process. HELD: Whilst the disparity between the sentences indicated was very marked, in one sense all discounts for pleas of guilty could be said to subject the defendant to pressure. It would be difficult to envisage anything other than the threat of unlawful action which might have the effect of requiring the accused, notwithstanding his having resisted the undue pressure, to be discharged irrespective of the strength of the case against him. Appeal dismissed.

Caldarelli v Court of Naples [2008] UKHL 51 (30 July 2008)

Tue, 29 Jul 2008 23:00:00 GMT

The appellant appealed the findings of the Courts below that the warrant seeking his return might properly be characterised as an ‘accusation warrant’ for the purposes of the Extradition Act 2003, despite his having been ‘convicted’. HEL:D: Providing as they did for international co-operation between states with different procedural regimes, the Framework Decision and the 2003 Act could not be interpreted on the assumption that procedures which obtained findings of guilt in the United Kingdom were the same elsewhere. An assessment of the evidence regarding procedures in each state may be necessary. On the facts of this case, it was apparent that in Italian procedure, no ‘final judgment’ had been imposed. Appeal dismissed.

Alistair Campbell v. Her Majesty's Advocate [2008] HCJAC 11

Wed, 05 Mar 2008 11:37:00 GMT

Appeal under section 26(1) of the Extradition Act 2003:- On 16 March 2007 the Sheriff at Edinburgh made an order that the appellant should be extradited to France after he was sentenced to nine years imprisonment, in his absence, in 2002, in France, for involvement in the transport, importation and possession of drugs and banned merchandise. The Sheriff pronounced his order under section 21 of the 2003 Act at the conclusion of an extradition hearing upon a European arrest warrant presented by the relevant French authority to Edinburgh Sheriff Court under Part 1 of the Act. Recognition of the EAW was sought so that the appellant might be surrendered to the French authorities to serve the sentence imposed on him. Section 14 of the 2003 Act provides that the appellant's extradition to France would barred by reason of the passage of time if (and only if) it appeared that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have become unlawfully at large. The Sheriff in his decision stated:- "But I could not characterise any of the apparent periods of inactivity as significant, especially from the standpoint of the appellant. He was not prejudiced by the delay; he had remained at liberty until now. Nor could I characterise the actings of the French authorities as 'dilatory', even if such a consideration were significant." Here senior counsel submitted that the appellant had been prejudiced by the delay. He submitted that the appellant had lived at the same address in Killin for ten years, during which he had been in regular employment as a lorry driver and agricultural contractor, and had supported a wife and family. During the four-year period between November 2002 and November 2006 he had developed a sense of security. The French authorities were at all material times aware of his home address and the appellant had not sought to avoid them and it would be unjust and oppressive to order his extradition. Here the court considered whether the passage of time was such that it could properly be regarded as oppressive to extradite him.

Lacorre v France (2008) EWHC 2871 (Admin) (Date Unclear)

Fri, 01 Feb 2008 00:00:00 GMT

An EAW was invalid so far as it related to an offence of drug trafficking as it had failed to specify any conduct capable of amounting to that offence which had occurred within the requesting state. The remainder of the warrant that pertained to an offence of engaging in a criminal conspiracy with the purpose of committing drug trafficking was valid. Appeal allowed in part.

Antonio La Torre v. The Lord Advocate and the Scottish Ministers [2006] HCJAC 81

Wed, 08 Nov 2006 00:00:00 GMT

Petition to the nobile officium of the High Court

Antonio La Torre v. Her Majesty's Advocate [2006] HCJAC 56

Fri, 14 Jul 2006 00:00:00 GMT

Appeal against extradition:-The court here heard a