Extradition

Prahl v Poland [2011] Unreported

Thu, 01 Dec 2011 22:48:12 GMT

The appellant (P) appealed against a decision of a district judge to extradite him to the respondent requesting state, Poland. P's extradition had been sought for offences of robbery and obtaining property by deception. Appeal dismissed. P's notice of appeal was defective as it did not specify the gist of his appeal and that in itself was reason to dismiss his appeal.

Assange v Sweden [2011] EWHC 2849 (Admin)

Thu, 01 Dec 2011 22:46:47 GMT

J appealed against a decision of a district judge that he should be extradited to the respondent requesting state, Sweden. A European arrest warrant was issued by the Swedish prosecution authority alleging an offence of unlawful coercion and two of sexual molestation in relation to one complainant and an offence of rape in relation to another complainant. J argued that (1) the warrant had not been issued by a judicial authority; (2) the description of the offences in the warrant was not a fair and accurate description of J's conduct; the offences of coercion and molestation did not meet the dual criminality test and the conduct, if fairly and accurately described, would not have amounted to rape; (3) the condition in the Extradition Act 2003 s.2(3) was not satisfied since J was not "accused" of any offence in Sweden because criminal proceedings had not been commenced there; (4) it was disproportionate to seek his surrender under the warrant since he had offered to be questioned over a video link. Appeal dis missed. (1) The Swedish prosecutor was a "judicial authority". The term "judicial authority" was not confined to a judge who adjudicated but could extend to a body that prosecuted, (2) In exceptional circumstances extraneous material could be adduced to show that the case actually being advanced by the prosecutor was different to the case set out in the warrant. Rape was a Framework offence which did not require proof of dual criminality. It was the law of the issuing state which governed and the executing court should normally accept the classification of the issuing state. In any event the conduct alleged would amount to rape in England. (3) The terms of the warrant read as a whole made it clear that J was required for the purposes of being tried and not for questioning as a suspect. (4) The decision to issue the warrant and the failure to take up the offer of video link questioning were not disproportionate (paras 155-160).

Bulgaria v Atanasova-Kalaidzhieva [2011] EWHC 2335 (Admin)

Thu, 20 Oct 2011 10:13:46 GMT

In the exceptional circumstances, a request to extradite an individual to Bulgaria to stand trial for murder was an abuse of process as Bulgaria had not provided any reassurance that the prosecution was being conducted in good faith or that a fair trial had become possible since an earlier finding that the investigation into the alleged offence had been tainted and the prosecution had been made in bad faith.

The allegation related to murder. The respondent denied any knowledge of it and said she was the victim of a campaign by former Prosecutor General Filchev against herself and others to frame them for the murder. Mr Filchev was Prosecutor General for Bulgaria between 1999 and 2006.. There have been consistent and prolonged allegations against Mr Filchev of corruption in public office.

A previous request for AK's extradition had been made in July 2001 for which she was arrested in 2007. During the course of related hearings the Respondent gave evidence about the threats she had received from Mr Filchev, accounts of violence to which she had been subjected and other evidence that her life had been in danger. A habeas corpus application as allowed on the basis of bad faith. Also beginning in 2000 a complaint was brought to the ECHR linked to Mr Filchev as a result of which the ECtHR found Bulgaria to be in breach of it's obligations under Article 2 to provide an effective investigation into the circumstances of the murder of one of the respondent's co-defendants and that Bulgaria was, during Mr Filchev's period of office as Prosecutor General, institutionally and personally incapable of conducting an Art. 2 complaint investigation when prosecutors were themselves implicated in the death.

In October 2010 the Bulgarian court wrote again in support of the extradition. The District Judge ordered a stay of proceedings as an abuse of process noting that a higher court had already found bad faith, that the original concerns had not been answered by the Judicial Authority and that there was no significant difference in the factual picture presented to this court to the factual position presented in 2009; the original investigation in 2000 was tainted by the way the defendant was treated at the time and by a complete failure to properly investigate the allegations against Mr Filchev. Two prominent decisions, one from the High Court and one from the ECtHR raised serious questions requiring answers which had not been given.

The District Judge's reason were upheld on appeal (para 35, 36) which noted the abundance of evidence casting doubt about the independence of the investigative and prosecuting process and that nothing had been provided by way of reassurance either that the prosecution is being conducted in good faith or that a fair trial is now possible. The court noted the conclusion of the ECtHR that the underlying problem appears to have been a system of immunity for prosecutors and the centralised power of the Prosecutor General which created an institutional reluctance to pursue any investigation in the direction of a prosecutor suspected of corruption or worse. Whilst allegations of bad faith in the investigation of an offence and prosecution of a suspect are ordinarily matters for the court in the requesting state, the Sofia City Court owed to the United Kingdom a mutual obligation of respect. Had the requested state received any meaningful recognition by the issuing authority of the court's concerns in 2009 it might have been in a position to repose some confidence in the good faith of the present request.

The Government of South Africa -v- Shrien Dewani, City of Westminster Magistrates' Court, sitting at Belmarsh Magistrates' Court

Thu, 20 Oct 2011 10:12:29 GMT

Abuse of process, breach of Articles 2 and 3 and that his extradition ought to be barred by reason of section 91 (physical and mental health). The District Judge (DJ) rejected the argument and ruled that D could be extradited to SA to face trial for his wife's murder.

Prison conditions: issues raised included problems relating prison conditions, the prevalence sexual violence to which D would be vulnerable and that a single cell would provide insufficient protection. In response, SA provided assurances about the prisons and related conditions D would be kept in and the DJ accepted those assurances and that D would receive appropriate health care and treatment.

Articles 2 and 3: The Defence argued that the Art.2 and 3 risk is from non-state agents and that there is a lack of reasonable protection in the receiving country (i.e. in-prison protection). In particular, D was said to be at risk from gang violence, sexual violence, threats to his physical health (such as HIV/AIDS) and his mental health and vulnerability. The fact that the South African government thought it necessary to give special undertakings as to the specific prisons in which D would be held, and the fact that he would be placed in isolation in a single cell strengthened the arguments. Whilst the DJ acknowledged that in prison violence and sexual violence was a problem, he noted that the harm does not come from the state itself and that SA had provided assurance which he accepted. He found no breach of Art 2 or 3.

Mental health: As to D's mental health the DJ accepted that there is no doubt that D suffers from two severe and incapacitating mental illnesses. He is not faking them and there is currently a real and significant risk of suicide. That suicide risk will increase if D is extradited to SA. However, again he accepted the assurances given by SA as to the circumstances in which D would be detained if extradited. He further emphasized his confidence in the SA system of justice, independence of the courts, fair trial guarantees, etc. and that unless the evidence satisfies the court D did the act complained of, then he will be acquitted or discharged, as the case may be. Thereafter, the future for D's health is speculative and uncertain. Whilst there is a high risk that he will attempt suicide, the authorities are alert to that possibility and will take appropriate steps to protect him from that risk.

Case sent to the SSHD for her decision on remaining matters.

Rzeczkowski v. Provincial Court in Warsaw, Poland [2011] EWHC 1698 (Admin) 21st June 2011

Thu, 28 Jul 2011 19:57:32 GMT

In 1996, the Appellant (R) was convicted of attempted robbery and sentenced to 5 years imprisonment. He was released on compassionate grounds in 1998. Following his release he was entitled to apply annually for his release to continue. If he applied successfully in three consecutive years, the release would become absolute. He failed to make the third application and moved to the UK.

The District Judge did not accept that extradition would breach R’s Article 8 rights.

HELD: Appeal dismissed. This was a borderline case but notwithstanding the fact that: the Respondent took a very long time to pursue R; the offence was very old and that R had served 2 years of the sentence imposed, it was significant that R had chosen to absent himself from Poland and not behaved as a perfect citizen in the UK. The District Judge was right, in all the circumstances, to find that the very high threshold set in Norris had not been reached and extradition was compatible with Article 8 Convention rights.

Halligen v. Secretary of State for the Home Department [2011] EWHC 1584 (Admin) 21st June 2011

Thu, 28 Jul 2011 19:56:23 GMT

HELD: Appeal dismissed. A letter, received by the Respondent from the Appellant declaring his intention to appeal the District Judge’s decision to order his extradition, did not amount to notice of appeal.

Italy v. Merico (unreported) 29th June 2011

Thu, 28 Jul 2011 19:55:13 GMT

In 1997, the Respondent (M) was convicted of drug trafficking and sentenced to 6 years imprisonment. M served 2 years of her sentence before being released and leaving Italy for the UK.

The District Judge refused to order her extradition on the basis that it would be oppressive due to the passage of time.

The Italian Judicial Authority appealed the District Judge’s decision to discharge the Respondent.

HELD: Appeal dismissed. The District Judge was entitled to find that the passage of 12 years rendered the Respondent’s extradition oppressive. Taken together the fact that: the offences were committed a long time ago; M had been released 12 years ago having served 2 years imprisonment; had travelled and lived openly in the UK; had not committed any further offences and was a parent and caring for her terminally ill mother meant that in all the circumstances, extradition would be oppressive.

Sitek v Circuit Court in Swidnica, Poland [2011] EWHC 1378 (Admin)

Fri, 01 Jul 2011 09:56:54 GMT

The Administrative Court, in allowing the appellant's appeal in part, held that the dual criminality requirement under s 64(3)(b) of the Extradition Act 2003 had not been satisfied in relation to two of the alleged offences. The offense concerned were said to be offences of acquiring or possessing criminal property. Whilst for two of the four relevant offences the description had given rise to an inference of knowledge or suspicion as required by ss 329 and 340 of the 2002 Act, , in the case of the two remaining offense, it had not been possible to conclude that the conduct alleged included matters that had been capable of sustaining the necessary finding of knowledge or suspicion for the purposes of the relevant offence in English law (see paras 27, 31-32, 37 of judgment).

R. (on the application of HH) v Westminster City Magistrates' Court, 11 May 2011

Fri, 01 Jul 2011 09:50:40 GMT

The case concerns extradition request relating to a husband and wife (P and H), who have three children in this country for whom P was the principal carer. If the extraditions went ahead, the children would have to be cared for by social services which, it was argued would be a breach of Article 8. In dismissing the appeal, the court held that although the best interests of affected children were a primary consideration in extradition cases, they could not generally override the public interest in effective extradition procedures, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 W.L.R. 148 considered. There had to be an exceptionally compelling feature giving rise to the gravest effects of interference with family life, Norris v United States [2010] UKSC 9, [2010] 2 A.C. 487 applied. In the instant case, although both H and P's extradition would gravely disrupt their family life, there was no feature specific to the family which constituted so pressing and powerful a co nsideration to justify the discharge of both parents or either of them on art.8 grounds (see paras 60,65 of judgement).

R. (on the application of Bingham) v City of Westminster Magistrates' Court, 11 May 2011

Fri, 01 Jul 2011 08:49:00 GMT

In an application to discharge, following numerous applications to extend time for removal the court held, in dismissing the application that the power to discharge an extraditee under the Extradition Act 2003 s.36(8) could not be exercised during the currency of a "required period", as defined by s.36(3). The thrust of s.36(8) was directed at circumstances where, at the time of the application, the extraditing authority had no power to further detain the extraditee in the absence of an extension or agreed required period, or a reasonable excuse for a delay in extraditing, and had to justify the extraditee's continuing detention (see para.26 of judgment).

Istanek v. Czech Republic (unreported), Divisional Court 20/04/2011

Tue, 07 Jun 2011 17:05:18 GMT

The Appellant (I) appealed against an order for his extradition in order to execute a two-year term of imprisonment. I had been convicted in his absence but it was clear from the arrest warrant that I was entitled to a full retrial. I contended that the warrant had therefore been erroneously issued as a conviction warrant and was invalid.

HELD: The existence of a right to retrial is not inconsistent with the requested person being a convicted person. The Extradition Act 2003 had to operate in relation to warrants from various different jurisdictions; information contained within a warrant, pursuant to section 2(5) and 2(6), had to be taken at face value and from the foreign requesting state’s perspective. Only in exceptional cases should further information be sought.

Griffin, R (on the application of) v City of Westminster Magistrates Court [2011] EWHC 943 (Admin) 20/04/2011

Tue, 07 Jun 2011 17:04:49 GMT

The Appellant (G) applied for Judicial Review of the District Judge’s refusal to adjourn judgement. G was not produced at court for the hearing because he had attempted to commit suicide which resulted in his transfer and detention at hospital.

HELD: The District Judge was entitled to refuse the adjournment. There was nothing in the Extradition Act 2003 which expressly required a requested person’s presence. This was particularly true if the person was represented (section 122, Magistrates’ Court Act 1980.

HH, R (on the application of) v City of Westminster Magistrates Court [2011] EWHC 1145 (Admin) 11/05/2011

Tue, 07 Jun 2011 17:04:04 GMT

The Appellants (FH and HH), a married couple, appealed against orders for their extradition in order to execute sentences of imprisonment of 14 years for offences of drug trafficking. The couple had three children. Expert evidence was adduced which concluded that separation would be acutely emotionally distressing for all the children and a traumatic and devastating loss.

HELD: The best interests of the child shall be a primary consideration but not necessarily the paramount consideration. They cannot generally override the public interest in effective extradition proceedings. There has to be an exceptionally compelling feature giving rise to the gravest of interference with family life. Article 8 considerations in extradition cases are likely to need to be substantially more pressing then in deportation cases.

In addition, the court held, contrary to the Respondent’s submissions, that there exists no basis to suggest that interested third parties, such as an Appellant’s children, should not in principle be permitted to take part in extradition proceedings. Whilst applications for the separate representation of requested person’s family members is deprecated, there are limited circumstances where justice will require separate representation of third party family members but these will be very few and far between.

R (on the application of Bingham) v. City of Westminster Magistrates’ Court (unreported), Divisional Court, 11/05/2011

Tue, 07 Jun 2011 17:03:13 GMT

The Claimant (B) applied for Judicial Review of the Magistrates’ Court’s refusal to hear an application to discharge. Following an unsuccessful appeal against extradition the authorities had failed to extradite B within the required period.

HELD: The Magistrates’ Court ought to have heard the submission but had no power to order discharge: section 36(8) of the Extradition Act 2003 applies.

Wrobel v Poland (Presently unreported) 09/02/2011

Thu, 24 Feb 2011 23:13:19 GMT

The appellant (W) appealed against a decision of a district judge to make an extradition order in favour of the respondent requesting state, Poland. The sole issue before the district judge was whether it was unjust or oppressive for the purposes of the Extradition Act 2003 s.25 to order W's extradition in light of psychiatric evidence that W would commit suicide if returned. The district judge found that it was not oppressive and ordered his extradition. Appeal allowed. (1) In determining whether it would be oppressive to make an extradition order where there was a risk that it could lead to suicide, the correct test under s.25 was not that there had to be evidence that a person would kill himself and that nothing less would suf fice, R. (on the application of Rot) v Poland [2010] EWHC 1820 (Admin) not followed. A psychiatrist could not conclude that a person would certainly commit suicide. All that a psychiatrist could sensibly do was to say that there was an extremely high risk that a person would attempt suicide and, if there had been previous suicide attempts, that there was a high risk the person would succeed in killing himself the next time. In addition, a very high risk of suicide was doubtless capable of achieving the threshold under the European Convention on Human Rights 1950 art.3, R. (on the application of Prosser) v Secretary of State for the Home Department [2010] EWHC 845 (Admin), [2010] A.C.D. 57 applied. (2) The correct approach was to consider whether there was a risk of suicide on the evidence, Jansons v Latvia [2009] EWHC 1845 (Admin) applied. In deciding whether that risk was sufficiently grave, it would be necessary to consider the public interest and the capacity of the requesting state to provide treatment f or the mental illness, whether or not such treatment was as good as the treatment that would be received in the UK. Therefore, an independent and convincing case of suicide was required in order to surmount the high threshold required to show oppression. (3) In the instant case, the psychiatric evidence showed an independent and convincing case of suicide if W was extradited. It was therefore oppressive for W to be returned to serve the remaining terms of imprisonment and accordingly the order for extradition was quashed.

Kasprzak v Warsaw Regional Court, Poland [2011] EWHC 100 (Admin) 02/02/2011

Thu, 24 Feb 2011 23:12:30 GMT

The court was required to determine the consequences of a failure to extradite a person to a Category 1 territory within the required period following an unsuccessful appeal to the High Court against an order for extradition. The appeals of the three applicants (K, B and W) against extradition to the respondent requesting states under the Extradition Act 2003 s.26 had been dismissed. There was then a failure to extradite them within the original period laid down by s.36(3)(a) of the Act. The High Court agreed to extensions of time but the applicants disputed the validity or effectiveness of those extensions and applied for their discharge under s.36(8). Applications refused. (1) The High Court had no power to order a requested person's discharge for non-compliance with the obligation under s.36(2) of the Act. An application for discharge had to be made under s.36(8) to the "appropriate judge", which was defined by s.67(1)(a) as a District Judge (Magistrates' Courts). (2) (Ob iter) Requests by issuing judicial authorities for the court to agree to an extension of the removal period because of difficulties on their side in relation to the removal of the person to be extradited could not be treated as being made under the existing CPR Pt 23. (3) (Obiter) An extraditee was not entitled to be notified of a request for an extension and to be heard in opposition to it. However, fairness and good administration required that the extraditee be informed of any extension agreed by the relevant court, since it bore directly on his right to apply for discharge under s.36(8) if extradition had not been effected before the end of the required period (paras 48-50).

Swedish Judicial Authority v. Julian Assange, [2010] EWHC 3473 (Admin), 16/12/2010

Thu, 03 Feb 2011 22:52:39 GMT

S appealed against the District Judge's decision to grant A, an Australian citizen, conditional bail. D faces extradition to Sweden for offences of rape and sexual assault.

HELD: Appeal dismissed. S appeals on the basis that no conditions can effectively ensure attendance and surrender. As Sweden is a Part 1 territory for the purposes of the Extradition Act 2003, there is no consideration of the strength of the case. No prima facie case has to be shown. Although A has weak community ties and has the means to go into hiding in the UK, he was interviewed in Sweden and left the territory with the authorities consent. A is not in that sense a fugitive.

Government of South Africa v. Shrien Prakash Dewani, [2010] EWHC 3398 (Admin), 10/12/2010

Thu, 03 Feb 2011 22:50:51 GMT

SA appealed against the District Judge?s decision to grant D conditional bail. D faces extradition to SA for an offence of conspiracy to murder.

HELD: Appeal dismissed. The Judge directed himself correctly. SA had to satisfy the Judge that there were substantial grounds for believing that D would fail to attend Court when required and that no conditions could meet those objections. It is not the role of the Court to consider guilt or innocence. The strength of the evidence may be of some assistance in judging the likelihood of attendance. The fact that there may be new evidence which strengthened the case against D did not necessarily alter the position. The question was still whether there were proper grounds for believing D would fail to attend. There was no basis for suggesting that D had failed to co-operate with the investigation thus far. D had strong ties with the UK and no ties to other countries. D had no criminal convictions. The media interest in the case meant that absconding and going into hiding would be extremely difficult. Given the circumstances of the allegation, there is no risk of D committing further offences.

Stanczyk v. Poland, 16/12/2010 (unreported)

Thu, 03 Feb 2011 22:50:10 GMT

S appealed the District Judge's decision to order his extradition to Poland. At the initial hearing, S raised issues pursuant to section 4 of the Extradition Act 2003: he had not been served with a Polish translation of the warrant. The Judge rejected these submissions and adjourned for an extradition hearing. At the extradition hearing, S sought to reopen section 4 on a different basis: the warrant had not been served on him as soon as practicable after his arrest. The Judge held there was no power to reopen section 4.

HELD: Appeal dismissed. If S had thought there were issues pursuant to section 4 he ought to have sought an adjournment. The Act makes clear that Judges should not reopen section 7 issues at the extradition hearing stage of proceedings. The position is comparable in respect of section 4.

Kerry Ann Howes v. Her Majesty’s Advocate [2010] HCJAC 123

Thu, 09 Dec 2010 13:18:23 GMT

Application for an order under section 91 of the Extradition Act 2003:- Prior to the hearing of an appeal under section 103 of the Extradition Act 2003, the appellant sought to be discharged from the proceedings on health grounds. This was the second time that the appellant had sought such a discharge, the previous time the application was refused (Howes v HMA 2010 SLT 337). Section 91 provides:- "(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied. (2) The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him. (3) The judge must -(a) order the person's discharge, or (b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied." The proceedings related to a possible extradition to the U.S.A. The earlier hearing was addressed in relation to the appellant’s mental health difficulties and a concern that she may commit suicide if extradited. Here the appellant sought to rely on similar mental health difficulties together with certain potentially serious physical complications which might affect her current pregnancy. The court heard from Dr John A Baird, a consultant forensic psychiatrist and Dr Patrick Chien, a consultant gynaecologist and obstetrician in support of the application. Dr Fionnbar Lenihan, a consultant forensic psychiatrist who had appeared as a witness on the last occasion gave evidence on behalf of the Crown. Parties agreed that the following legal propositions should be applied:- (1) the threshold to be achieved by an applicant seeking discharge from extradition proceedings under section 91 was a high one; (2) each case must be determined on its own particular facts and circumstances, and other decisions might be of illustrative value only; and (3) such applications called for the court to make an overall judgment based on the whole evidence and information available. Here the court considered, in light of the evidence led and her present mental and physical condition, whether the appellant's application under section 91 met the statutory test.

Spain v Murua [2010] EWHC 2609 (Admin) 08/10/2010

Wed, 24 Nov 2010 20:40:04 GMT

The failure of the warrant to accurately depict the conduct for which the requested person’s return was sought rendered the warrant invalid. Applying the ratio from the decision in R. (on the application of Castillo) v Spain [2004] EWHC 1676 (Admin), [2005] 1 W.L.R. 1043 to the validity provisions of the Extradition Act 2003 s.2 in the context of the validity of European arrest warrants, courts in the United Kingdom should assess whether the conduct described in the warrant was a proper, fair and accurate representation of the conduct alleged to constitute the offence for which extradition was sought.

Kaminski v Poland [2010] EWHC 2772 (Admin) 18/10/2010

Wed, 24 Nov 2010 20:38:59 GMT

The CPS, acting on behalf of the applicant Polish judicial authorities, applied to strike out appeals brought by the respondents against extradition orders. K's notices of appeal contained no grounds of appeal. The CPS submitted that the language of the Extradition Act 2003 s.26(4) meant that a notice of appeal that did not specify any grounds of appeal, or any grounds raising or purporting to raise a question under s.27(3) of the Act, was invalid. Application refused. (1) There was no statutory requirement that in order to be valid the notice had to contain the grounds of appeal. There were strong reasons for not enlarging the scope of invalidity beyond the seven day point set out in s.26(4),at least in relation to grounds. (2) Where no grounds were received the Administrative Court was, of its own motion, to place the papers before a judge for consideration of whether an order requiring grounds of appeal to be provided within a specified time should be made. Likewise, if the CPS was concerned that there were no grounds, or that the grounds were irrelevant or hopelessly inadequately, it would be for it to apply on paper to the court, sending a copy to the other side, for an order that grounds of appeal of sufficient specificity be supplied within a particular time.

C v Poland (aka C v Circuit Court in Poznan Poland) [2010] EWHC 2262 (Admin) 17/08/10

Thu, 21 Oct 2010 18:42:16 GMT

The Appellant (C) appealed against a decision of the district judge ordering her extradition to the respondent requesting state, Poland. C had been convicted of five offences of burglary, one domestic and four commercial, in which a considerable amount of property had been stolen. By the time her conviction was upheld on appeal, she had moved to the United Kingdom, having left her son (J) in his grandmother's care. J joined C in the UK in 2008 when he was six years old. He exhibited some learning difficulties and behavioural problems but progress was made following support from his school. C's return to Poland was sought under a European arrest warrant to enable her to serve an outstanding sentence of imprisonment. C resisted extradition on the basis that it would be incompatible with the European Convention on Human Rights 1950 art.8 because of the effect her removal would have on J. It was her case that she was J's sole support in the UK, and she sought an adjournment to enable further enquiries to be made concerning the impact her extradition would have on her son. The district judge refused that request, and went on to find that, whilst J's behaviour would be affected by C's removal and there was a real likelihood that he would have to be taken into local authority care, bearing in mind the seriousness of C's offences, it was not disproportionate to J's art.8 rights to order her extradition. Two months after that decision a clinical psychologist completed an assessment of J, and concluded that C's removal was likely to have a significant impact on his psychological well-being, would cause his emotional state to deteriorate and trigger the resurgence of behavioural and social difficulties. C contended that, pursuant to the Extradition Act 2003 s.21, a district judge had to discharge a person if extradition was incompatible with her rights under the Convention, and that pursuant to s.27, the court could allow an appeal against extradition if it was satisfied that there was new evidence, not previously available, on the basis of which the district judge would have reached a different decision. C submitted that the psychologist's report amounted to such evidence, and rendered her case one of those exceptional ones in which extradition would be a disproportionate interference with J's art.8 rights. The Appeal was dismissed. The court held that it was inherent in extradition proceedings that interference with art.8 rights would arise, and only where there were quite exceptionally compelling features would that interference be otherwise than proportionate to the purpose extradition served, Norris v United States [2010] UKSC 9, [2010] 2 W.L.R. 572 followed. The consequences of extradition had, therefore, to be exceptionally serious to outweigh extradition. In the instant case, even having given the circumstances anxious scrutiny, the clinical psychologist's report was not such as to put C's case into that exceptional category identified in Norris. The offences committed by C were not trivial, and whilst it was likely that J's behaviour would regress when she was extradited, it was not disproportionate to order C's extradition.

Kowalski v Poland [2010] EWHC 2263 (Admin) 25/08/10

Thu, 21 Oct 2010 18:41:23 GMT

The Appellant (K) appealed against a decision of the district judge ordering his extradition to the respondent requesting state, Poland. K had been convicted in Poland of drugs offences and was sentenced to terms of six and 18 months' imprisonment. He did not surrender to custody but instead came to the United Kingdom. A European arrest warrant was subsequently issued, seeking his return to serve the outstanding prison sentence, and the district judge ordered his return to Poland. K contended that to return him would lead to an unjustifiable breach of his rights under the European Convention on Human Rights 1950 art.8. He submitted that his fiancee, who was also Polish, was suffering from depression and would be greatly affected if he had to return to Poland, and that they had run up debts whilst in the UK which they needed to repay. K recognised that there was no reason in principle why his fiancee could not return to Poland to be with him, albeit he would be in custody so that she would still be on he r own. Dismissing the appeal the Court held that whilst a breach of human rights could justify a decision not to extradite someone, in respect of art.8, it took a very compelling case to justify non-return. Article 8(2) of the Convention made it clear that the right to freedom from interference with private and family life could be overridden if necessary for the prevention of disorder or crime, and it was important that the UK's compliance with its international obligations was maintained. Those who committed offences serious enough to warrant imprisonment would almost inevitably bring problems upon their family and friends. In K's case, the matters relied upon were clearly insufficient to justify a decision that his return should not take place.

Emil Puzo v District Court in Kladno Czech Republic, extempore

Thu, 21 Oct 2010 18:39:35 GMT

The Appellant (‘P’) is of Roma ethnicity and resisted his return on the basis of his ethnicity and the consequences that he would face upon return based upon his ethnicity, including violence during the serving of his sentence. He relied upon section 13 of the Act and Article 2. Dismissing the appeal, the Court affirmed previous authorities in that a violation of Article 2 or Article 3, namely, that such a case will not be made out if there is a sufficiency of protection by the authorities to address violence in prisons, even violence against Roma defendants in prisons, and that that does not require a perfect system of prevention but simply reasonable measures. It also held that the notion that the development of the EU charter and EU principles of anti-discrimination requiring states to take measures to improve their laws against discrimination is not a freestanding ground to resist this return. In terms of section 13, the was whether the sentence P received of four yea rs was an outcome of prejudice based upon his ethnicity of such a nature as to bring it within section 13 the test, namely whether there is reasonable degree of likelihood, reasonable grounds or reasonable risk. Whilst the court did not accept that a claimant could not make out a section 13 case simply because there was no definitive academic support for the contentions it held that one cannot move from a general picture of background discrimination as described in the Appellant’s independent report to demonstrating a reasonable degree of likelihood and prejudice in the sentencing process without more. Something more would need to be shown, for example that the sentence was seriously diff erent from that which ought to have been applied in such a case, either by way of sentence guidelines, comparative cases or something said in the sentencing remarks themselves that indicate that it may well have been based materially upon prejudice.

Hertel v Canada [2010] EWHC 2305 (Admin) 17/09/2010

Thu, 21 Oct 2010 18:38:11 GMT

A passage of time argument raised by H failed on the basis that the effects of delay were of H's own choice and making. There was nothing wholly exceptional about the case and the Canadian jurisdiction to which H would be returned was plainly fully equipped with all necessary procedural resources to deal with any risk of unfair trial resulting from the long passage of time since the material events. However, Canada failed to establish to the standard required that the conduct alleged, if transposed to the United Kingdom, would involve or generate a charge to tax whose concealment by H would then amount to the offence of cheating the Revenue. All the scenarios put forward by Canada required factual assumptions to be made which could not be justified as proper inferences from the conduct stated to be relied on.

Ayaz v Italy 05/10/10

Thu, 21 Oct 2010 18:37:01 GMT

The refusal to allow an offender to plead guilty, in United Kingdom criminal proceedings, to allegations contained in an European arrest warrant which were of a similar, general nature did not constitute an abuse of process. The two sets of offences were only linked, in generality, by the nature of the offending and his extradition did not offend the rule of double jeopardy.

Asiturk v City of Westminster Magistrates’ Court, [2010] EWHC 2148, 12/08/2010

Thu, 23 Sep 2010 14:52:43 GMT

The claimant Turkish national (C) sought judicial review of the defendant magistrates' court's refusal to order his discharge following failure to open the extradition hearing within the time required by the Extradition Act 2003 s.75(4). HELD: Application refused. Section 116 did not purport to restrict the right to apply for judicial review, it restricted the manner of recourse to the court. The judge's refusal to order a person's discharge under s.75(4) was not a decision for the purposes of s.116. However, an application for discharge must be made before the extradition hearing began.

Michalak v Poland, [2010] EWHC 2150 (Admin), 12/08/2010

Thu, 23 Sep 2010 14:38:33 GMT

The appellant Polish national (M) appealed against an order requiring him to be extradited to Poland. The Polish judicial authority had issued a European arrest warrant for M's arrest and extradition in respect of convictions by Polish criminal courts for which he had received a 12-year sentence. The warrant contained a number of inaccuracies in that it incorrectly particularised convictions, including those for which M had been acquitted, and failed to clearly identify the dates and court of the convictions. Following M's arrest, the district judge held that even with the discrepancies in the warrant and inclusion of offences for which M had been acquitted, there were sufficient details. M submitted that the warrant failed to comply with the requirements of the Extradition Act 2003, s.2 and that the fact that he was not prejudiced by the errors was not lawful criterion for determining its validity. HELD: Not every error in an arrest warrant would invalidate it and in the instant case, t he defect was not the omission of essential information; rather it was the inclusion of additional, incorrect information. Whilst it was important to comply with the relevant statutory requirements, it was also necessary for the court to take into account the purpose of the Council Framework Decision. In the instant case, holding that the warrant was void ab initio would be inconsistent with the principle of mutual recognition.

Poland v Walerianczyk, [2010] EWHC 2149 (Admin), 12/08/2010

Thu, 23 Sep 2010 14:37:45 GMT

Poland appealed against a decision of the district judge refusing to order the extradition of the respondent (W). The time to give notice of appeal under the Extradition Act 2003 s.28 expired on April 19, 2010. On April 16, the Polish judicial authorities faxed to W's solicitors an unsealed notice of appeal and supporting documentation. On April 19, notice of appeal in the same form was filed with the Administrative Court. The following day, one day after the expiration of the permitted period under s.28, the CPS served by fax a sealed copy of the notice of appeal. W raised a preliminary issue as to whether notice of appeal had been given within the permitted period. HELD: The Extradition Act 2003 s.28 and CPR PD 52 para.5.19 required a requesting state wishing to appeal against an individual's discharge from extradition to serve a sealed copy of the notice of appeal on the intended respondent. Service of a draft notice of appeal within the permitted period, albeit followed by the filing of a sealed cop y of the notice outside that period, would not satisfy the requirement of s.28 that notice be given "in accordance with the rules of court ", and an appeal was thereby rendered invalid as being out of time. Appeal dismissed.

Renke v. Prosecutor General Office of Republic of Lithuania. QBD, 20/07/2010)

Wed, 08 Sep 2010 16:21:59 GMT

The Appellant (R) appealed against the decision of the District Judge to order extradition. R appealed on the basis that the warrant was invalid. R submitted that, contrary to section 10 of the Extradition Act 2003, the offences were not extradition offences because the warrant stated that they were contrary to a code of Lithuanian law that had expired.

HELD: The warrant clearly stated that the alleged conduct amounted to offences under Lithuanian law at the time that they were allegedly committed. There was no need for Lithuania to provide current legislation where the nature and classification of the offences was clear at the time they were alleged to have been committed.

Appeal dismissed.

Keith Joseph Allen v. Her Majesty’s Advocate [2010] HCJAC 74

Thu, 22 Jul 2010 18:04:12 GMT

Appeal under section 26 of the Extradition Act 2003:- This was an appeal against an extradition order by the sheriff at Edinburgh on 11 January 2010 which required the extradition of the appellant to Germany under section 21 of the Extradition Act 2003. The request for the return of the appellant by the the German authorities was for the return of the appellant as they wished to have him returned to their jurisdiction to place him on trial for a crime of assault to the danger of life or attempted murder in connection with an alleged assault at Heimholzplatz, Berlin on 27 October 2004. The appellant appealed against the granting of the extradition order on three grounds:- (1) the sheriff erred in law in refusing to allow the appellant to raise a devolution issue in terms of a minute lodged with the sheriff clerk on the ground that it was lodged late; (2) the sheriff had erred in law in finding that it would not be unjust or oppressive to extradite the appellant to Germany by reason of the passage of time since he is alleged to have committed the extraditable offence; and (3) the sheriff erred in law in deciding that the appellant's extradition would be compatible with his Convention rights within the meaning of the Human Rights Act 1998 in particular, that his extradition would be incompatible with the appellant's rights under Article 6.1 of the Convention to have a fair and public hearing of the case against him 'within a reasonable time', and under Article 8 to have respect for his private or family life. Here the court considered whether the time limits prescribed in section 40.3 of the Act of Adjournal applied in extradition cases and, if not, whether the court should exercise its to allow a minute to be lodged in the course of proceedings which have been underway for a considerable period of time. The court went on to consider whether extradition would be in breach of the appellant's Convention rights as referred to in the grounds of appeal having regard to inter alia the framework decision of 13 June 2002 (2002/584/JHA).

Klimas v Lithuania, 8/07/2010

Thu, 22 Jul 2010 17:39:25 GMT

K appealed against a decision of the district judge ordering his extradition to the requesting state, Lithuania. K had been arrested under a European arrest warrant seeking his return to Lithuania to serve a term of imprisonment. K submitted that, in the light of a report recently obtained from the United States State Department, to the effect that prison conditions in Lithuania fell below international standards, he was at risk of having his art.3 rights breached, and should therefore be discharged under s.21(2) of the Act. HELD Appeal dismissed. (1) As a matter of principle, where prison conditions in a Category 1 territory were cited as an obstacle to extradition, it was not necessary for the judge to examine that question, save in exceptional circumstances such as where a state had undergone regime change. KRS v United Kingdom (Admissibility) (32733/08) (2009) 48 E.H.R.R. SE8 considered. (2) In any event, the US report did not even begin to establish that K, if extradited, would be subjected to ill treatment contrary to art.3.

Czekala v Poland, 29/06/2010 (Ex Tempor)

Thu, 22 Jul 2010 17:35:15 GMT

C appealed against a decision that he should be extradited to the respondent requesting state, Poland, in respect of offences including an alleged theft. C had failed to attend trial in relation to the alleged theft as at the time he was in custody for a different offence. He was tried in his absence. C had not received a summons in respect of the trial as it had been sent to his home address. A district judge found that he was satisfied that C had been aware of a duty to notify authorities of a change of address and that being in police custody at the time did not absolve him from that obligation, that C had done nothing to comply with the obligation and that there was no reason he could not have written or asked his lawyer to write to the court on his behalf. The judge held that C had therefore deliberately absented himself from trial pursuant to the Extradition Act 2003 s.20. C submitted that the decision not to inform the authorities of his whereabouts did not demonstrate unequivocally an indication that he did not intend to participate in or attend the trial. HELD Appeal allowed. The burden of proof was on the state to establish that C had deliberately absented himself and it had to be proven to the criminal standard. There was nothing in the information provided which could satisfy any court beyond reasonable doubt that he was under an obligation to inform the authorities of his whereabouts. Further, it was not correct for the judge to say that C's conduct, in not notifying the authorities, amounted to an unequivocal indication of a decision not to participate in any court process and not to participate in any trial.

Dos Santos v Portugal, [2010] EWHC 1815 (Admin), 15/06/2010

Thu, 22 Jul 2010 17:31:26 GMT

D was an Angolan national who had entered the United Kingdom in 1995 and claimed asylum. Following a number of decisions rejecting his claim, which were subsequently withdrawn by the Home Secretary, his refugee status was still outstanding. In 2009, three European arrest warrants were issued for D. His surrender was sought by the Portuguese judicial authorities in respect of charges of armed robbery. D contended that where a person had applied for asylum, he was not to be extradited, since the Extradition Act 2003 s.39 provided a bar to extradition if a person in respect of whom a warrant was issued made an asylum claim at any time in the relevant period, which pursuant to s.39(2) was from the date the warrant was certified until extradition. D argued that, whilst on a strict reading of s.39, the claim to asylum had to be made after the warrant was issued, the Act could not have been intended to mean that a person who had applied for asylum before the warrant was issued was not so protected. HELD Appeal dismissed. The district judge was correct in the approach he had adopted. There was no requirement to adjourn the extradition proceedings. The legislative language in s.39 made it very clear that a particular protection had been provided to prevent a person's extradition if an asylum application was made at any time in the relevant period.

Khan v. United States, [2010] EWHC 1127 (Admin), 19/05/2010

Mon, 28 Jun 2010 16:14:15 GMT

The Appellant (K) appealed against the decision of the District Judge to order the Appellant to await the decision of the Secretary of State concerning his extradition. The Appellant appealed on six grounds: (i) the UK courts should stay an extradition that is predicated on the misconduct of foreign police officers acting in the UK in breach of Article 6; (ii) the District Judge was wrong to conclude that the alleged abuse of process gave rise to a jurisdiction which is residual in nature and which was engaged only when the issue raised could not be dealt with by the statutory protections contained in the Act; (iii) the District Judge erred in finding that there was no conduct capable of amounting to an abuse of process; (iv) the District Judge ought to have required more open disclosure from the Respondent; (v) extradition would expose D to trial in an inappropriate forum and (vi) the likely sentence in the event of conviction would breach D?s Article 3 Convention rights. HELD: The residual abuse jurisd iction concerns abuse of the extradition process by the prosecuting authority. The requested state does not extend to considering misconduct or bad faith by the police of the requesting state in the investigation of the case or the preparation of evidence for trial. D does not risk a flagrant denial of a fair trial in the courts of Maryland because he will have the opportunity to raise a defence of entrapment which the prosecution will have to rebut. There is a fundamental presumption that a requesting state is acting in good faith. The burden of showing an abuse of process rests upon the person asserting such an abuse with the standard of proof on the balance of probabilities. The requesting state is not required to include all the material in its possession but is required to disclose material which destroys or undermines its case: Wellington. It is important that all issues are raised and all evidence called before the District Judge at the extradition hearing.
Appeal dismissed.

Dudko v. Russia, [2010] EWHC 1125 (Admin), 19/05/2010

Mon, 28 Jun 2010 16:12:03 GMT

The Appellant (D) appealed against the decision of the District Judge to order the Appellant to await the decision of the Secretary of State concerning his extradition. The Appellant appealed on two grounds: (i) whether the particulars of the offences were sufficiently specified and (ii) whether there was a real risk of a flagrant denial of justice in breach of Article 6 if the appellant was extradited. HELD: The request did not satisfy the requirements of particularity in accordance with the provision of s.78(2)(c)). Section 78(4)(c) should be interpreted to the same effect as that in s.2(4)(c) using solely the plain and ordinary meaning of that section without any gloss. It is not acceptable to produce lengthy documentation which fails to make clear the conduct alleged to constitute the offence. Article 6 was considered briefly: it is necessary to show that the deficiencies in the process are such that the trial the Appellant would face on his return would be "so fundamental as to amount to a null ification or destruction of the very essence of the rights [Article 6] guaranteed" or "a flagrant denial of justice" or "a gross violation".
Appeal allowed.

Sbar v. Italy, [2010] EWHC 1184 (Admin), 25/05/2010

Mon, 28 Jun 2010 16:11:08 GMT

The Appellant (S) appealed against the decision of the District Judge to order extradition on the basis that he had self-harmed and was at risk of committing suicide if extradited to Italy. The District Judge had held that the risk of suicide was unlikely to prevent extradition save in exceptional cases. HELD: Appeal dismissed. Pursuant to section 25 of the Act, the Court was required to form an overall judgment on the facts of each case. A high threshold had to be reached in order to satisfy the court that it would be unjust or oppressive to extradite. Each case and each Appellant would be different, but Jansons was to be regarded as a benchmark by which to judge other cases. The Court also emphasised the need for circumspection in evaluating the evidence when such an issue was raised.
Appeal dismissed.

Grzegorz Harazin v. Her Majesty’s Advocate [2010] HCJAC 65

Thu, 24 Jun 2010 15:57:24 GMT

Appeal under section 26 of the Extradition Act 2003:- On 29 January 2010 the sheriff at Edinburgh ordered the extradition of the appellant to Poland in terms of section 21(3) of the Extradition Act 2003. On 18 November 2008 a judge at the District Court at Kielsa, Poland issued a European Arrest Warrant in relation to sentences of imprisonment imposed on the appellant and related to seven offences. On 4 March 2010 the appellant appealed in terms of section 26(1) of the Extradition Act 2003 and challenged the sheriff's determination on three grounds:- (1) the warrant failed to conform with the requirements of subsections (2) and (6) of section 2 of the 2003 Act in that it did not contain particulars of "any other warrant" issued in Poland for the appellant's arrest; (2) the warrant failed to conform to requirements of section 65(3) of the 2003 Act in that it failed to specify in respect of each of seven offences of which the appellant was convicted conduct that constituted an offence under the law of Scotland; and (3) extradition would not be compatible with the appellant's Article 3 Convention rights in terms of section 21(1) of the 2003 Act in that he would face a real risk of being subjected while imprisoned in Poland to treatment contrary to the terms of Article 3. In relation to the third ground of appeal it was conceded by counsel for the appellant that, in light of the decisions of the court in Engler v The Lord Advocate [2010] HCJAC 42 and Kropiwnicki v The Lord Advocate [2010] HCJAC 41, it was not open to the court here to allow the appeal on this ground. In relation to the first ground of appeal it was submitted that the sheriff had erred in deciding that the EAW complied with the requirements of a Part 1 warrant as there was something missing from it. It was submitted on behalf of the Lord Advocate that the Act should be interpreted in the light of its purpose which was to give effect to the United Kingdom's obligations under the Framework Decision and to improve cooperation between nations to tackle crime and to provide an efficient framework for extradition. Here the court considered whether the EAW was sufficiently compliant with the requirements of section 2(6)(c). The second ground of appeal related to the appellant’s contention that the sheriff had wrongly decided that each of the offences of which the appellant was convicted was an extradition offence in terms of section 65 of the 2003 Act. It was submitted on behalf of the appellant that there was an absence from the EAW of any reference to the appellant's conduct other than the statement of the conviction and that did not enable the court to determine that his conduct would constitute an offence in Scotland as was required. In response on behalf of the Lord Advocate it was submitted that to answer the question whether the conduct would constitute an offence in Scotland, attention should be focused on the conduct complained of or relied on in the warrant and any further information by the requesting authority, not on whether the ingredients of the Polish offence have an exact equivalent under Scots law. Here the court considered whether the sheriff reached the correct conclusion in determining that each of the convictions was an extradition offence.

Sebastian Bielecki v. Her Majesty’s Advocate [2010] HCJAC 64

Thu, 24 Jun 2010 15:53:19 GMT

Appeal under section 26 of the Extradition Act 2003:- On 26 February 2010 the sheriff at Edinburgh ordered the extradition of the appellant to Poland in terms of section 21(3) of the Extradition Act 2003 and refused a devolution minute tendered on the appellant's behalf. On 4 November 2008 the District Court of Legnica, Poland, issued a European Arrest Warrant in relation to sentences of imprisonment imposed on the appellant and related to offences of inter alia housebreaking, theft, robbery, vandalism, supply of a drug and possession of drugs. The appellant was imprisoned in Wroclaw Prison for these offences for a period in 2007.The appellant opposed his extradition on the grounds that:- (1) by reason of systemic overcrowding in Polish prisons, his rights under article 3 of the Convention would be violated if he were to be returned to Poland to serve his sentences; and (2) that extradition to Poland and imprisonment there would violate his rights under article 8 to respect for his private and family life. Due to concerns raised by the sheriff following recent cases he sought further information from the authorities in Poland regarding the current conditions in the prisons there. The Polish authorities provided detailed statistical information relating to each of the Polish penal institutions as at 11 January 2010 by way of demonstrating the extent to which conditions had improved. It was submitted on behalf of the appellant here that the cases of Kropiwnicki v Lord Adv ([2010] HCJAC 41) and Engler v Lord Adv ([2010] HCJAC 32) were distinguishable from the present. It was further submitted on the appellant’s behalf that the separation caused by the extradition of the appellant would damage his family life beyond repair and accordingly that the interference in his family life would be disproportionate to the legitimate aim of his extradition. Here the court considered whether the sheriff had reached the correct decision in concluding that the appellant’s Article 3 and 8 rights would not be breached by his extradition to Poland.

R (on the application of Berners) v City of Westminster Magistrates Court, [2010] EWHC 1010 (Admin)

Thu, 20 May 2010 19:31:51 GMT

The appellant (B) appealed against a decision of a district judge ordering his extradition to the requesting state, Latvia on the basis that his extradition would be incompatible with his rights under the ECHR art.3. Due to a lack of court time on the day, the judge invited closing submissions in writing however when the judge delivered his judgment rejecting B's art.3 claim, it emerged that he had not been supplied with B's written submissions. The judge considered re-opening the proceedings and informed counsel that they could return to court to address the judge which they did not. B did not, and submitted that the judge's failure to hear his submissions was a fundamental defect.

HELD Appeal dismissed. The judge found B to be an unconvincing witness who had exaggerated his concerns. The judge further found that there was nothing in the evidence before him to show that B was at a real risk of being subjected to art.3 ill-treatment. The judge had been entitled to reach that conclusion on the evidence. The instant case was distinguishable from R. (on the application of Mann) v Westminster Magistrates' Court [2010] EWHC 48 (Admin) where the statutory proceedings were at an end. The principle in Mann did not exclude the possibility that a judge might reconsider an order if a basic error, including a procedural error which emerged from the terms of the judgment, was brought to his attention immediately after delivery of the judgment and pronouncement of the order. The judge's decision could have been no different if B's written submissions had been considered. There was nothing to suggest that a failure to investigate events of years before had any significant bearing on the future risk of treatment contrary to art.3 which was the issue the judge had to consider.

Kodos v Lithuania, [2010] EWHC 897 (Admin)

Thu, 20 May 2010 19:30:33 GMT

The appellant (K) appealed against a decision of a district judge ordering his extradition to the respondent requesting state, Lithuania in respect of 22 offences of people trafficking, earning from the prostitution of another person and engaging another person in prostitution. The European arrest warrant contained a description of the circumstances in which the offences were committed in respect of eight women and in each case it was alleged that K, acting in an organized group. K submitted that the offences were not extradition offences since the conduct alleged in relation to him occurred entirely after the arrival of the women in the United Kingdom and therefore none of the relevant subsections of s64 applied.

HELD: Appeal dismissed. The offences all qualified as extradition offences by virtue of s.64(3). The description in the warrant made it clear that K was alleged to have been a party to a joint enterprise encompassing all the conduct in question and the various steps taken in Lithuania to secure the transfer of the women to the UK for the purposes of prostitution was an integral part of the conduct which was alleged to constitute the offence committed by K. It was sufficient to show that only part of the conduct occurred in Lithuania.

Adam Kropiwnicky v The Lord Advocate [2010] HCJAC 41

Thu, 06 May 2010 18:47:11 GMT

Appeal under section 26 of the Extradition Act 2003:- The appellant was arrested in Scotland on 17 November 2009 on two warrants issued by a court in Bialystok, Poland in which it requested the surrender of the appellant to serve sentences of imprisonment for charges of theft and assault and robbery. On 16 December 2009 the sheriff at Edinburgh ordered the appellant's extradition to Poland in terms of section 21(3) of the Extradition Act 2003. The appellant relied on the decision of the European Court of Human Rights in Orchowski v Poland (Application no 17885/04), 22 October 2009 where the Strasbourg Court found unanimously that the applicant's rights under article 3 had been violated. Here the appellant lodged a devolution minute in which he opposed extradition on the ground that to return him to Poland would violate his rights under article 3 of the Convention due to the systemic overcrowding and poor conditions in Polish prisons which amounted to inhuman or degrading treatment or punishment. The sheriff had held that it was clear from Orchowski that efforts were being made by the authorities in Poland to alleviate the problem and no evidence had been produced that would provide substantial grounds for believing that there would be a real risk to the appellant of ill-treatment contrary to article 3. It was submitted on behalf of the appellant that the Orchowski was the clearest indicator from the most authoritative source of the problems in Polish prisons and matters had not improved since the decision. Here the court considered what conditions the appellant would suffer if he were to be returned under the two warrants rather than simply proceeding upon the basis of the decision in Orchowski which related to alleged violations of article 3 that the applicant had experienced in a number of prisons in which he had been detained during a six year period. The issue for the court here was whether there was a real risk that the appellant, if returned, would be detained in conditions that would violate his article 3 rights.

Kryzysztof Engler v. The Lord Advocate [2010] HCJAC 42

Thu, 06 May 2010 18:45:52 GMT

Appeal under section 26 of the Extradition Act 2003:- The appellant was arrested in Scotland on 5 August 2009 on a warrant issued by a court in Bialystok, Poland in which it requested the surrender of the appellant to serve sentences of imprisonment on charges of theft and assault and robbery. On 9 December 2009 the sheriff at Edinburgh ordered the appellant's extradition to Poland in terms of section 21(3) of the Extradition Act 2003. The appellant relied on the decision of the European Court of Human Rights in Orchowski v Poland (Application no 17885/04), 22 October 2009 in which the Strasbourg Court found unanimously that the applicant's rights under article 3 had been violated. Here the appellant lodged a devolution minute in which he opposed extradition on the ground that to return him to Poland would violate his rights under article 3 of the Convention due to the systemic overcrowding and poor conditions in Polish prisons which amounted to inhuman or degrading treatment or punishment. The sheriff considered that the appellant had put forward no ground to suggest that he was susceptible to ill-treatment if returned to Poland. At the appeal, counsel on behalf of the appellant sought to lead additional evidence relating to an affidavit sworn by the appellant in which he described poor conditions in Starogard Gdanski prison, which was not one of the prisons refrred to in Orchoswki, where the appellant had previously been detained and the appellant expected that it would be to that prison that he would be returned if extradited. The motion to lead this evidence at the appeal was opposed and the court refused to admit the evidence as it had been available at the earlier extradition hearing. Here the court considered what conditions the appellant would suffer if he were to be returned under the warrant rather than simply proceeding upon the basis of the decision in Orchowski which related to alleged violations of article 3 that the applicant had experienced in a number of prisons in which he had been detained during a six year period. The issue for the court here was whether there was a real risk that the appellant, if returned, would be detained in conditions that would violate his article 3 rights.

Czech Republic v. Janiga, [2010] EWHC 463 (Admin), (11/03/2010)

Wed, 05 May 2010 16:23:50 GMT

The Appellant (CR) appealed against the District Judge?s decision to discharge the requested person (J) on the basis that the European Arrest Warrant (the warrant) had been incorrectly issued as an accusation warrant rather than a conviction warrant. The CZ further contended that the District Judge?s decision to refuse the CZ an adjournment to make enquiries as to whether the warrant was in fact an accusation warrant, was erroneous. J had absconded from trial, a warrant was issued and the trial was subsequently concluded in J?s absence and he was convicted. HELD: The refusal to adjourn was erroneous. There was evidence before the Court that suggested J was still an accused person and it had been wrong to assume that the CZ would be able to reissue the warrant in the event of a discharge. The CZ was entitled to rely on new evidence obtained at appeal. Any delay in obtaining the new material had not been due to a lack of diligence on the part of the CZ: procedures for obtaining evidence from abroad are often c umbersome and time consuming. The new evidence confirmed that J was still an accused person. His conviction was not final and there existed an unfettered right to retrial. Appeal allowed.

Appeal under section 26 of the Extradition Act 2003 by Ioin Iosif Gherhardt v. The Lord Advocate [2010] HCJAC 35

Wed, 21 Apr 2010 15:53:16 GMT

On 21 November 2007 the appellant was convicted in absence of four offences and sentenced to a period of imprisonment. A European Arrest Warrant (E.A.W.) was issued in relation to those offences. Here the appellant appealed against a decision of the sheriff at Edinburgh who ordered the appellant’s extradition to Romania in terms of the E.A.W. The appellant appealed on two grounds:- (1) in relation to the rule of double criminality; and (2) in relation to establishing whether a person has "deliberately absented himself from his trial". It was submitted on behalf of the appellant that the terms of article 192 of the Romanian Criminal Code provided for a crime of trespass, and the only conduct alleged in the charge of which the appellant was convicted was that of trespass which was not criminal in Scotland. The sheriff had held that the conduct amounted to a breach of the peace. The court here considered if that was correct having regard to the requirement that the crime of breach of the peace requires the presence of an element of disturbance to the public peace. In relation to second ground, it was submitted on behalf of the appellant that it required to be demonstrated that the appellant had absented himself from the trial beyond reasonable doubt and there was no evidence that the appellant had personally received the summons or had knowledge of the hearing. It was conceded on behalf of the Crown that there was an onus on the Crown to show deliberate absence, however, the standard of proof was not one of beyond reasonable doubt. Here the court considered whether the sheriff was entitled to accept the certificate appended to the E.A.W. amounted to citation and proceed upon the assumption of prima facie notification to the appellant of the hearing.

Norris v United States [2010] UKSC 9

Wed, 24 Mar 2010 17:05:00 GMT

The appellant (N) appealed against a decision of the Administrative Court upholding an order for his extradition to the United States. The court was required to determine whether: (i) it could properly require a person resisting extradition on art.8 grounds to demonstrate exceptional circumstances; (ii) the gravity of the crime in respect of which extradition was sought was a relevant factor; (iii) the interference with family life had to be considered only from the point of view of the person whose extradition was sought, or also from the viewpoint of other affected family members; (iv) the possibility of prosecution in the requested state was relevant. HELD: (i) Instead of saying that interference with art.8 rights could only outweigh the importance of extradition in "exceptional circumstances", it was more accurate and helpful to say that the consequences of interference with art.8 rights had to be exceptionally serious before they could outweigh the importance of extradition. (ii) The impor tance of giving effect to extradition arrangements would always be a significant factor in any extradition decision, regardless of the details of the particular offence. Usually the nature of the offence would have no bearing on the extradition decision. However, if the particular offence was at the bottom of the scale of gravity, that was capable of being one of a combination of features that might render extradition a disproportionate interference with human rights. (iii) The court was not solely concerned with the family rights of an individual to the exclusion of those of other family members. On the contrary, the interests of children were particularly material. The family unit had to be considered as a whole. (iv) Rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in the UK be capable of tipping the scales against extradition in accordance with the UK's treaty obligations. Unless the judge reached the conclusion that the scales were finely balanced, he should not enter into an enquiry as to the possibility of prosecution in this country

Balzas Asztaslos v Hungary [2010] EWHC 237 (Admin)

Wed, 24 Mar 2010 17:03:00 GMT

The appellant Hungarian national (B) appealed against a decision of the district judge ordering his extradition. B's extradition had been sought pursuant to a European arrest warrant accusing him of having committed various offences against minors in Hungary. Wording on the front page of the warrant relating to whether the warrant concerned an "accusation" or a "conviction" were not deleted and B appealed on the basis the warrant was s2 deficient. HELD: Considering the warrant as a whole it was clear this was an accusation warrant. If the warrant used the phrases that were used in the English language version of the European arrest warrant annexed to the Framework Decision there should be no (or very little) scope for argument on the purpose of the warrant. Only if the wording of the warrant was equivocal should the court consider examining extrinsic evidence to decide on the purpose of the warrant, but it should not look at extrinsic material to introduce a possible doubt as to the p urpose where it was clear on the face of the warrant itself. Consideration of extrinsic factual or expert evidence to ascertain the purpose of the warrant should be a last resort and it was to be discouraged.

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