Category: Extradition

Polomski v Westminster Magistrates’ Court: Admn 4 Jul 2013

The court considered the new Tariff expired removal scheme, for foreign national prisoners serving an indeterminate sentence, either imprisonment for life or imprisonment for public protection, allowing those prisoners who are confirmed by the Home Office to be liable to removal from the United Kingdom to be removed from the country from the date their tariff expires, without reference to the Parole Board.

Cranston J
[2013] EWHC 1893 (Admin)
Bailii
England and Wales

Extradition

Updated: 15 November 2021; Ref: scu.512163

Dhar v National Office of The Public Prosecution Service The Netherlands: Admn 28 Mar 2012

King J discussed the issuing of certificates in extradition requests: ‘True it is that the certificate must be certifying that the issuing authority has been designated by the law of the requesting state as the competent judicial authority for the purpose of issuing such warrants and that the requesting state has given notice to this effect to the General Secretariat of the European council pursuant to article 6(3) of the Framework Decision, but this is not the same in my judgment as certifying that such designated authority is as a matter of fact a judicial authority within the meaning of section 2(2).
Hence in my judgment it must be open, the grant of the certificate under section 2(7) notwithstanding, to this appellant to raise on this appeal (as he could have done before the District Judge) the issue whether the warrant was an invalid Part 1 warrant on the grounds that the purported issuing authority was not a judicial authority within the meaning of section 2(2) of the Act.’

King J
[2012] EWHC 697 (Admin)
Bailii
England and Wales
Cited by:
Cited – Assange v The Swedish Prosecution Authority SC 30-May-2012
The defendant sought to resist his extradition under a European Arrest Warrant to Sweden to face charges of sexual assaults. He said that the prosecutor who sought the extradition was not a judicial authority within the Framework Decision.
Extradition

Updated: 14 November 2021; Ref: scu.511044

Dundon v The Governor of Cloverhill Prison: 19 Dec 2005

(Supreme Court of Ireland) The UK had issued a European arrest warrant in relation to the appellant. On 11 February 2004 he was arrested in Ireland and remanded in custody. 93 days later, following various adjournments of which some had been at his request, the High Court made an order for his surrender. On 16 March 2005, thus following a significant further delay, the Supreme Court dismissed his appeal. He forthwith issued fresh proceedings in which, by reference to his rights under the Irish Constitution, he challenged the lawfulness of his continued detention after the expiry of 60 days following his arrest. Ireland had transposed the Decision into its law by the European Arrest Warrant Act 2003.
Held: Section 16(10) did not automatically entitle the appellant to release on the expiry of 60 days (nor, by analogy, did section 16(11) have that effect on the expiry of 90 days) from the date of his arrest. The terms of section 10 of the Irish Act provided: ‘Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person –
(a) against whom that state intends to bring proceedings for the offence to which the . . warrant relates, or
(b) . . that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state.’ The appellant argued that, even if the terms of section 16(10) and (11) of that Act were not strong enough to secure the success of his appeal, the effect of section 10 was to bring the whole of the Decision into Irish law and that an overall reading of the Decision entitled him to release, and that, whereas section 16(10) and (11) place time limits of 60 and 90 days on the making only of the decision by the High Court, Article 17(3) and (4) of the Decision requires that the ‘final’ decision be made within those limits; and, by reference thereto, he appears also to have relied upon the significant further delay between the making of the order for his surrender and the hearing of his appeal. The terms of section 10 of the Irish Act required the Court to appraise the Decision in detail. Denham J described the time limits of 60 days and 90 days in Article 17(3) and (4) of the Decision as ‘exhortation’; and Geoghegan J explained that they were set ‘with a view to internal discipline within the member states and not with a view to conferring individual rights in individual cases’..

Murray CJ, Denham J, Hardiman J. Geoghegan J, Fennelly J
[2006] 1 IR 518, [2005] IESC 83, [2006] 1 ILRM 321
Bailii
Council Framework Decision of 13th June 2002
Cited by:
Approved – French v Public Prosecutor of The Central Department of Investigation and Prosecution In Lisbon Portugal PC 13-Jun-2013
(Gibraltar) Mr French appealed against refusal of his request to have set aside an order for his extradition under a European Arrest Warrant. He argued that (in general) the court had failed to deal with the matter within the mandatory time limits. . .

Lists of cited by and citing cases may be incomplete.

Ireland, Extradition, European

Updated: 14 November 2021; Ref: scu.510851

French v Public Prosecutor of The Central Department of Investigation and Prosecution In Lisbon Portugal: PC 13 Jun 2013

(Gibraltar) Mr French appealed against refusal of his request to have set aside an order for his extradition under a European Arrest Warrant. He argued that (in general) the court had failed to deal with the matter within the mandatory time limits.
Held: The appeal failed. The submissions were unsound: ‘Section 12(6) of the Act clearly identifies the consequence of a failure to decide whether to execute the warrant within 60 days of a person’s arrest. The consequence is not his entitlement to release. It is that an obligation is cast upon the court to make a direction to the Governor. The subsection does not precisely identify the time within which the court’s direction should be made but it is reasonable for the appellant to assert, including by reference to Article 17(4) of the Decision, that it should be made immediately. On that basis the court committed what, in the light of the time-scale, was a minor breach of its obligation to make the direction. But, again, there is nothing in section 12(6) to indicate that the consequence of its breach was the appellant’s entitlement to release.’

Lord Hope, Lady Hale, Lord Kerr, Lord Wilson, Lord Hughes
[2013] UKPC 16
Bailii
Citing:
Cited – Criminal proceedings against Pupino ECJ 16-Jun-2005
ECJ (Grand Chamber) Police and judicial cooperation in criminal matters – Articles 34 EU and 35 EU – Framework Decision 2001/220/JHA – Standing of victims in criminal proceedings – Protection of vulnerable . .
Cited – Assange v The Swedish Prosecution Authority SC 30-May-2012
The defendant sought to resist his extradition under a European Arrest Warrant to Sweden to face charges of sexual assaults. He said that the prosecutor who sought the extradition was not a judicial authority within the Framework Decision.
Approved – Dundon v The Governor of Cloverhill Prison 19-Dec-2005
(Supreme Court of Ireland) The UK had issued a European arrest warrant in relation to the appellant. On 11 February 2004 he was arrested in Ireland and remanded in custody. 93 days later, following various adjournments of which some had been at his . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Extradition

Updated: 14 November 2021; Ref: scu.510850

Criminal Proceedings Against Stefano Melloni: ECJ 2 Oct 2012

ECJ (Opinion) Police and judicial cooperation in criminal matters – European arrest warrant – Surrender procedures between Member States – Decisions rendered at the end of proceedings in which the person concerned has not appeared in person – Execution of a sentence pronounced in absentia – Possibility of review of the judgment – Charter of Fundamental Rights of the European Union – Article 53

Bot AG
[2013] EUECJ C-399/11, C-399/11
Bailii
Cited by:
Opinion – Criminal Proceedings Against Stefano Melloni ECJ 26-Feb-2013
melloniECJ2012
ECJ Police and judicial cooperation in criminal matters – European arrest warrant – Surrender procedures between Member States – Decisions rendered at the end of proceedings in which the person concerned has not . .

Lists of cited by and citing cases may be incomplete.

European, Extradition

Updated: 12 November 2021; Ref: scu.510709

Norris v Government of United States of America: SC 24 Feb 2010

The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result would be disproportionate. The court was asked whether in order to found such a claim the defendant had to show exceptional, or ‘striking and unusual’ circumstances.
Held: The appeal failed. Only the gravest effects of interference with family life would make extradition disproportionate to the public interest in the prevention of crime. The use of such a claim as a bar to an extradition claim had not previously succeeded. However, the gravity of the alleged crime was important, and both the situation of family members affected by an extradition, and the availability of a trial system which would respect a defendant’s human rights were proper considerations.
Lord Phillips said: ‘The primary object of Article 8 is to protect the individual against arbitrary action by public authorities, but it is well established that there are, in addition, positive obligations inherent in effective respect for family life. The removal of a person from a country where close members of that person’s family are living may amount to an infringement of the right to respect for family life . . In determining whether interference by a public authority with the rights guaranteed by Article 8(1) is necessary for the purposes of Article 8(2), regard must be had to the fair balance which has to be struck between the competing interests of the individual and of the community as a whole . . In this case the balance has to be struck in the context of a bilateral extradition treaty providing for the surrender of persons alleged to have committed extraditable crimes. It hardly needs to be said that there is a strong public interest in international co-operation for the prevention and punishment of crime. Consequently, the public interest in the implementation of extradition treaties is an extremely important factor in the assessment of proportionality . . As a result, in cases of extradition, interference with family life may easily be justified under Article 8(2) on the basis that it is necessary in a democratic society for the prevention of crime.

Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lady Hale, Lord Brown, Lord Mance, Lord Judge, Lord Collins, Lord Kerr
[2010] UKSC 9, UKSC 2009/0052, [2010] 2 All ER 267, [2010] 2 WLR 572, [2010] Lloyd’s Rep FC 325, [2010] 2 AC 487
Bailii, Times, SC, SC Summ, Bailii Summary
Extradition Act 2003, European Convention on Human Rights 8
England and Wales
Citing:
See Also – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Appeal from – Norris v Government of The United States of America and Another Admn 15-May-2009
. .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – HG v Switzerland ECHR 6-Sep-1994
The Commission considered the admissibility of a complaint by a Turkish national that extradition from Switzerland to Turkey to serve a sentence imposed for kidnapping and raping a 14 year old girl would infringe article 3 because of Turkish prison . .
Cited – Raidl v Austria ECHR 4-Sep-1995
The Commission considered the admissibility of a claim that extradition to Russia on suspicion of murder had infringed the applicant’s Convention rights. After finding ill-founded a complaint based on article 3 the Commission went on to consider the . .
Cited – Launder v The United Kingdom ECHR 8-Dec-1997
The Commission considered the admissibility of a complaint that the United Kingdom would violate articles 2, 3, 5, 6 and 8 if it extradited him to the Hong Kong Special Administrative Region.
Held: The application was manifestly ill-founded: . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Boultif v Switzerland ECHR 2-Aug-2001
The applicant complained under Article 8 that the Swiss authorities had not renewed his residence permit, after which he had been separated from his wife, a Swiss citizen and who could not be expected to follow him to Algeria. Switzerland argued . .
Cited – Uner v The Netherlands ECHR 18-Oct-2006
(Grand Chamber) The court considered the application of article 8 considerations in extradition and similar proceedings, and said: ‘the best interests and well-being of the children, in particular the seriousness of the difficulties which any . .
Cited – Saadi v Italy (United Kingdom intervening) ECHR 28-Feb-2008
(Grand Chamber) When considering the appropriateness of a deportation order to a country with which the deporting country had a memorandum of understanding that the destination country would not torture the deportee, a court must look beyond the . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Bermingham and others v The Director of the Serious Fraud Office QBD 21-Feb-2006
Prosecution to protect defendant not available
The claimants faced extradition to the US. They said that the respondent had infringed their human rights by deciding not to prosecute them in the UK. There was no mutuality in the Act under which they were to be extradited.
Held: The Director . .
Cited – AG (Eritrea) v Secretary of State for the Home Department CA 20-Nov-2007
The threshold requirement referable to the nature of the consequences was ‘not a specially high one’
Sedley LJ discussed the Huang case: ‘The effect of their Lordships’ decision (and, if we may say so, the intended effect of this court’s . .
Cited – Norris v United States of America and others; (Goldshield Group plc intervening) Admn 25-Jan-2007
The defendant was the former chief executive of a company manufacturing carbon products internationally. His extradition to the US was sought on the basis that he had conspired in a dishonest price-fixing conspiracy.
Held: The secrecy of such . .
Cited – Jaso and others v Central Criminal Court No.2 Madrid Admn 14-Dec-2007
The Madrid Court had issued European Arrest Warrants against the three appellants on charges of membership of a criminal organisation and terrorism. The appellants had unsuccessfully challenged extradition before the District Judge on a large number . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – King v The United Kingdom ECHR 26-Jan-2010
Mr King was accused of being a member of a gang engaged in a conspiracy to import large quantities of ecstasy into Australia. He appealed against extradition saying that this would interfere with his article 8 rights. He had in the United Kingdom . .
Cited – Syed Tahla Ahsan v The United Kingdom ECHR 13-Feb-2009
. .
Cited – BeokuBetts v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had arrived from Sierra Leone and obtained student permits. When they expired he sought asylum, citing his family’s persecution after a coup, and that fact that other members of his family now had indefinite leave, and he said that an . .
Cited – McCann v The United Kingdom ECHR 9-Sep-2008
The local authority had determined Mr McCann’s right to remain in his home by obtaining from his wife a notice to quit, the effect of which (surrendering their joint tenancy) upon him she did not understand. He said that this interfered with his . .

Cited by:
Cited – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – Lord Advocate (Representing The Taiwanese Judicial Authorities) v Dean SC 28-Jun-2017
(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord . .
Cited – Goldtrail Travel Ltd v Onur Air Tasimacilik As SC 2-Aug-2017
At first instance the appellant had dishonestly assisted another party to defraud the respondent, and ordered payment of substantial damages. The defendant, non-resident, sought to appeal, and the respondent asked the court to order payment into . .

Lists of cited by and citing cases may be incomplete.

Extradition, Human Rights

Updated: 11 November 2021; Ref: scu.401788

Regina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1): HL 24 Jun 1993

The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when examining a question about that person’s detention. It is axiomatic ‘that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all.’ Proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. It was proper to order a stay of a prosecution (Lord Oliver of Aylmerton dissenting).
Lord Lowry: ‘the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court’s conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court’s process has been abused.’

and ‘It would, I submit, be generally conceded that for the Crown to go back on a promise of immunity given to an accomplice who is willing to give evidence against his confederates would be unacceptable to the proposed court of trial, although the trial itself could be fairly conducted.’
Lord Griffiths said: ‘Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition proceedings. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law which embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law. The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended. So also should it be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it. . .

The courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution.’

Lord Griffiths, Lord Oliver of Aylmerton, Lord Lowry
Independent 01-Jul-1993, Times 25-Jun-1993, [1993] 3 WLR 90, [1994] 1 AC 42, [1993] UKHL 10, (1993) 3 All ER 138, (1994) 98 Cr App R 114
Bailii
England and Wales
Citing:
Cited – Mills v Cooper QBD 1967
Two sets of criminal proceedings were brought against the defendant for offences under section 127 of the Highways Act 1959 namely that of being a gypsy and, without lawful excuse, camping on a highway. The first proceedings were brought in respect . .
Cited – Regina v Brentford Justices Ex parte Wong QBD 1981
The defendant had been involved in a traffic accident. Very shortly before the expiry of the six month time limit, the prosecutor issued a careless driving summons apparently in order to preserve the possibility of a prosecution without yet having . .
Cited – Regina v Watford Justices, Ex parte Outrim (1982) 1982
Magistrates have a jurisdiction to hear abuse of process arguments. . .

Cited by:
Cited – Regina (Kashamu) v Governor of Brixton Prison and Another; Regina (Kashamu) v Bow Street Magistrates’ Court; Regina (Makhlulif and Another) v Bow Street Magistrates’ Court QBD 23-Nov-2001
Where a magistrates’ court heard an application for extradition, it was within its proper ambit to assess the lawfulness of the detention of the suspect in the light of the Human Rights Convention, but not to stray onto issues which were only for . .
Cited – Walker v The Governor of HM Prison Nottingham Admn 25-Jan-2002
The claimant sought a writ of habeas corpus. The Commissioners of Customs and Excise had requested the arrest of the claimant in the US pending extradition. It was not realised that the offence alleged was not sufficient to found extradition. The . .
Cited – Johannes Cornelius Vervuren v Her Majesty’s Advocate HCJ 12-Apr-2002
The applicant had been extradited from Portugal. He said that the procedures in Portugal had infringed his human rights in that he had not had proper representation nor translation, and that his consent to extradition had been under protest as to . .
Cited – Attorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
Cited – Regina v Manchester Stipendiary City Magistrates ex parte Pal Tagger Admn 29-Nov-1996
The defendant appealed his conviction for illegal entry. He complained that after first being proceeded against for illegal working, it was an abuse now to pursue this prosecution.
Held: No abuse had been established, only delay. . .
Cited – Regina (on the Application of Mullen) v The Secretary of State for the Home Department CA 20-Dec-2002
The applicant had been unlawfully taken from Zimbabwe, then tried and sentenced in the UK. His conviction was set aside as unsafe, but he had been refused damages. He appealed.
Held: There was no substantial criticism of the trial itself, but . .
Cited – Mullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – Regina v Latif; Regina v Shahzad HL 23-Jan-1996
The defendant had been lured into the UK by the unlawful acts of customs officers. He claimed abuse of process.
Held: The category of cases in which the abuse of process principles can be applied is not closed. A customs officer committing an . .
Cited – Regina v J HL 14-Oct-2004
The defendant was to have been accused of having unlawful sexual intercourse with a girl under 16. Proceedings could not be brought, because the allegation was more than a year old, and he was instead accused of indecent assault, but on the same . .
Cited – Regina v Mullen CACD 4-Feb-1999
British authorities, in disregard of available extradition procedures, initiated and procured the unlawful deportation of the appellant from Zimbabwe to England. The appellant was charged and tried for conspiracy to cause explosions likely to . .
Cited – Hounsham and Others, Regina v CACD 26-May-2005
The defendants appealed convictions for having staged motor accidents to support false insurance claims. They said that the insurance companies had contributed to the costs of the investigation by the police.
Held: It might have been most . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Director of Public Prosecutions v Wood; Director of Public Prosecutions v McGillicuddy Admn 19-Jan-2006
Each defendant sought disclosure of materials concerning the intoximeter instruments, having been charged with driving with excess alcohol. The defendants said that the meters were inaccurate and that the manufacturers were in effect part of the . .
Cited – Director of Public Prosecutions v Wood; Director of Public Prosecutions v McGillicuddy Admn 19-Jan-2006
Each defendant sought disclosure of materials concerning the intoximeter instruments, having been charged with driving with excess alcohol. The defendants said that the meters were inaccurate and that the manufacturers were in effect part of the . .
Cited – Department for Work and Pensions v Courts Admn 3-May-2006
The appellant challenged stays of proceedings by the respondent magistrates court for abuse of process infringing the defendants’ human right to a fair trial. The magistrates had fund that being faced with dismissal of a summary case through delay, . .
Cited – Jones v Whalley HL 26-Jul-2006
The appellant had assaulted the respondent. He had accepted a caution for the offence, but the claimant had then pursued a private prosecution. He now appealed refusal of a stay, saying it was an abuse of process.
Held: The defendant’s appeal . .
Cited – Regina v Belmarsh Magistrates’ Court ex parte Fiona Watts Admn 8-Feb-1999
The defendant sought to have dismissed as an abuse of proces charges against her that as an officer of Customs and Excise prosecuting the now private prosecutor, she had committed various offences.
Held: The magistrate was vested with . .
Cited – Levey, Regina v CACD 27-Jul-2006
The defendant appealed against his conviction of manslaughter of his baby son. He said that a family court had previously investigated the same allegations and had explicitly found itself unable to say which of himself and the mother were . .
Cited – Regina v Abu Hamza CACD 28-Nov-2006
The defendant had faced trial on terrorist charges. He claimed that delay and the very substantial adverse publicity had made his fair trial impossible, and that it was not an offence for a foreign national to solicit murders to be carried out . .
Cited – Crown Prosecution Service v P; Director of Public Prosecutions v P Admn 27-Apr-2007
The prosecutor appealed a grant of a stay of a prosecution of the 13 year old defendant as an abuse of process. Reports had indicated that he was unfit to plead. The prosecution contended that, if the court thought P ought not to face trial by . .
Cited – Mote v Regina CACD 21-Dec-2007
The defendant appealed his convictions for offences relating to the claiming of benefits, saying that he was immune from prosecution as a member of the European Parliament, and that the verdicts were inconsistent with acquittals on other charges. . .
Cited – Panday v Virgil PC 9-Apr-2008
(Trinidad and Tobago) The defendant’s appeal against conviction had succeeded on the basis of apparent bias in the tribunal. He now appealed the order remitting the case to be reheard, saying that a fair trial was no longer possible.
Held: The . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – CPS (Sussex) v Mattu CACD 17-Jul-2009
The defendant faced a charge of conspiracy to import Class A drugs. Detailed discussions had taken place between the prosecutor and defendant under which he had pleaded guity on a agreed basis of fact. The prosecutor then proceeded with a furthe . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
Cited – Hauschildt, Regina (On the Application of) v Highbury Corner Magistrates’ Court Admn 13-Dec-2007
The detainee sough a writ of habeas corpus. He had returned to England to surrender to bail against a representation that he would be bailed. After interview he had been remanded in custody. The officer said that he had known his representation was . .
Cited – Abdul and Others v Director of Public Prosecutions Admn 16-Feb-2011
The defendants appealed against convictions for using threatening, abusive or insulting words or behaviour or disorderly behaviour . . within the hearing or sight of a person likely to be caused harassment, alarm or distress. He had attended a . .
Cited – Maxwell, Regina v SC 20-Jul-2011
The defendant had had his conviction for murder set aside after a finding of gross prosecutorial misconduct by the police. The Court was now asked as to the propriety of the order for a retrial. The police involved in the case had misled the CPS, . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Applied – Mullen and Another, Regina v CACD 5-May-2000
Mr Mullen, had been deported from Zimbabwe to the United Kingdom as a result of a plan concocted between the United Kingdom and Zimbabwean authorities which involved breaching Zimbabwean extradition law.
Held: The subsequent conviction was set . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, Extradition, Criminal Practice

Leading Case

Updated: 11 November 2021; Ref: scu.86889

Criminal Proceedings Against Stefano Melloni: ECJ 26 Feb 2013

melloniECJ2012

ECJ Police and judicial cooperation in criminal matters – European arrest warrant – Surrender procedures between Member States – Decisions rendered at the end of proceedings in which the person concerned has not appeared in person – Execution of a sentence pronounced in absentia – Possibility of review of the judgment

V Skouris P
C-399/11, [2012] EUECJ C-399/11
Bailii
Charter of Fundamental Rights of the European Union 53
Citing:
Opinion – Criminal Proceedings Against Stefano Melloni ECJ 2-Oct-2012
ECJ (Opinion) Police and judicial cooperation in criminal matters – European arrest warrant – Surrender procedures between Member States – Decisions rendered at the end of proceedings in which the person . .

Lists of cited by and citing cases may be incomplete.

European, Extradition

Updated: 11 November 2021; Ref: scu.464647

Armah v Government of Ghana and Another: HL 1968

The appellant was committed under 1881 Act to await his return to Ghana to face trial on corruption charges. He applied for a writ of habeas corpus contending inter alia that it would be unjust and oppressive to return him since he would be liable to be tried under the provisions of the Corrupt Practices (Prevention) Act 1964 by process which might contravene natural justice, in contrast to trial in accordance with the Ghana Criminal Code 1960. ‘During the hearing the Government of Ghana undertook [by counsel] that if he were returned, he would be tried in accordance with the Criminal Procedure Code 1960’. The Divisional Court had dismissed the application.
Held: The House granted the appeal (majority).
Lord Reid said: ‘in general it appears to me to be very undesirable that a foreign government should be encouraged to offer not to apply the ordinary law of its country to one of its own subjects if he is returned to that country. There may not be the same objection to the foreign government stating that it does not intend to take certain executive action with regard to the accused person and it might be proper to accept an undertaking on the lines of section 3(2) of the Extradition Act, 1870. But any undertaking or statement of intention is liable to create misunderstanding and perhaps acute difficulties in the event of a change of circumstances.’
and ‘If a magistrate or any other tribunal has jurisdiction to enter on the inquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision. If he has jurisdiction to go right he has jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction.’
Lord Upjohn: ‘[T]he Divisional Court accepted the undertakings of the Government of Ghana (1) that if tried and acquitted the appellant would not be taken into protective custody and would be free to leave Ghana; (2) that the appellant would be tried under the Criminal Procedure Code and not under the Corrupt Practices (Prevention) Act, 1964.
The bona fides of the Government of Ghana and of its Attorney-General are not for one moment in doubt, but I think it is wrong in principle to permit such undertakings to be given or to take them into account.
The appellant can surely come to the superior court (where alone, of course, section 10 arises) and say:
‘My liberty is at stake, I am a British subject, judge of the laws of the country to which my return is sought as they stand. It is most unjust to me that to attain their ends the Government should unilaterally be permitted to say that I alone of all the inhabitants am to be freed from those laws which I submit would make it oppressive and unjust to return me.’
So I think that the matter should be judged upon the laws as they stand and it then becomes a matter for the exercise of the discretion of the court under section 10 to consider the relevance of any laws to which the applicant may draw attention and their weight in the balance against other considerations such as the seriousness of the alleged offence, the strength or thinness of the case against the fugitive and all other relevant circumstances.
In addition, it was readily conceded that the word ‘undertaking’ is a misnomer; it is no more than an expression of intention. Speaking generally, and not with any special reference to the Government of Ghana, there may be a change of government who may not feel bound by the acts of their predecessor. There may be a genuine difference of opinion as to the proper interpretation of the undertakings. Finally, it might in some circumstances be the duty of a government to depart from its expressed intention in the discharge of its duty in the good governance of the country and its inhabitants as a whole.’
Lord Pearce said: ‘It appears that for at least 100 years the courts have accepted the depositions and decision in place of a formal return of the writ, in cases where a writ of certiorari would lie, without insisting on an additional writ to bring the depositions before the court.
In 1864 in In re Tivnan 5 BandS 645, 646, a case of extradition, the depositions were considered as being before the court on an application of habeas corpus: ‘As to the remaining question, viz., whether . . . there is a case on which the magistrate ought to commit these prisoners, I cannot say that there is not evidence under which he was entitled to do so-a prima facie case was made out.’ See, too In re Windsor (1865) 6 BandS 522,523, where there was an arrangement between the parties that the depositions and affidavits were taken as in court. It appears that this was the practice at the time when the Extradition Act was passed in 1870 and the Fugitive Offenders Act in 1881. And no doubt it was in the light of that practice that the magistrates’ court was enjoined by section 11 in the former Act and section 5 in the latter to point out to the accused his remedy by way of habeas corpus. When the depositions were thus before it the court was entitled and bound to see whether there was evidence which raised, in the case of the Fugitive Offenders Act, a strong or probable presumption, and which thus gave the magistrate jurisdiction to commit. If there were not, the accused was entitled to be discharged.’
Otherwise – Regina v Governor of Brixton Prison, Ex parte Armah

Lord Upjohn, Lord Reid, Lord Pearce
[1968] AC 192
Fugitive Offenders Act 1881
England and Wales
Cited by:
Cited – Ahmad and Aswat v United States of America Admn 30-Nov-2006
The defendants appealed orders for their extradition. They were suspected of terrorist offences, and feared that instead of facing a trial, they would be placed before a military commission.
Held: The appeals failed. The court had diplomatic . .
Cited – Gibson v United States of America PC 23-Jul-2007
(The Bahamas) The US government sought the extradition of the appellant from the Bahamas on drugs charges. The warrants were found to be void, and the defendant released unconditionally, when the nmagistrate rejected evidence from an admitted . .

Lists of cited by and citing cases may be incomplete.

Extradition, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.247667

Drozd and Janousek v France and Spain: ECHR 26 Jun 1992

The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to refuse their co-operation with another state if it emerges that a conviction ‘is the result of a flagrant denial of justice’, and ‘According to the Court’s case law, certain provisions of the Convention do have what one might call an indirect effect, even where they are not directly applicable. Thus, for example, a State may violate Articles 3 and/or 6 of the Convention by ordering a person to be extradited or deported to a country, whether or not a member state of the Convention, where he runs a real risk of suffering treatment contrary to those provisions of the Convention; other hypothetical cases of an indirect effect of certain provisions of the Convention are also quite conceivable. The same argument applies in reverse, so to speak; a contracting state may incur responsibility by reason of assisting in the enforcement of a foreign judgment, originating from a contracting or a non-contracting state, which has been obtained in conditions which constitute a breach of article 6, whether it is a civil or criminal judgment, and in the latter case whether it imposes a fine or a sentence of imprisonment.’

12747/87, (1992) 14 EHRR 745, [1992] ECHR 52
Worldlii, Bailii
European Conevtion on Human Rights 3
Human Rights
Cited by:
Cited – Regina v Secretary of State for Home Department ex parte Peter Elliot Admn 18-Jul-2001
The applicant sought to challenge an order for his return to Hong Kong under the Act. He said that the ordnance under which he was to be tried, and anti-corruption statute, infringed his human rights by transferring to him the burden of proof. The . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Government of the United States of America v Barnette and Montgomery (No 2) HL 22-Jul-2004
The applicant sought to resist orders for the return to the US of what were alleged to be the proceeds (direct or indirect) of a fraud committed there. She had been in contempt of the court in the US and was a fugitive here. She complained that the . .
Cited – Regina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Cited – Loizidou v Turkey ECHR 23-Mar-1995
(Preliminary objections) The ECHR considered the situation in northern Cyprus when it was asked as to Turkey’s preliminary objections to admissibility: ‘although Article 1 sets limits on the reach of the Convention, the concept of ‘jurisdiction’ . .
Cited – Wellington Regina, (on the Application of) v Secretary of State for the Home Department HL 10-Dec-2008
It was sought to extradite the defendant to face trial for two alleged murders. He now challenged the order for his extradition saying that his treatment in Missouri would amount to inhuman or degrading punishment in that if convicted he would face . .
Cited – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
Cited – Secretary of State for Defence v Smith, Regina (on the Application of) CA 18-May-2009
The soldier had died of heatstroke after exercises in Iraq. The Minister appealed against a finding that the circumstances of his death required an investigation compliant with Article 2 human rights, saying that he was not subject to such . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Smith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
Cited – Ismail, Regina (on The Application of) v Secretary of State for The Home Department SC 6-Jul-2016
The claimant ha been involved in the management of a company operating a ferry in Egypt. The claimant had been acquitted in Egypt of criminal liability, but then convicted in his absence on appeal, after submissions made on his behalf were . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Extradition

Leading Case

Updated: 11 November 2021; Ref: scu.165203

Ozcelik: ECJ 10 Nov 2016

ECJ (Judgment) Reference for a preliminary ruling – Urgent preliminary ruling procedure – Police and judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 8(1)(c) – Concept of ‘arrest warrant’ – Autonomous concept of EU law – National arrest warrant issued by a police service and confirmed by a public prosecutor for the purpose of criminal proceedings

[2016] WLR(D) 598, [2016] EUECJ C-453/16, ECLI:EU:C:2016:860
Bailii, WLRD
European

Extradition

Updated: 11 November 2021; Ref: scu.571280

Auzins v Prosecutor General’s Office of The Republic of Latvia: Admn 14 Apr 2016

Appeal against extradition order on five grounds: i) The judge should have discharged him because the Latvian authorities were estopped, or the issue of his surrender was res judicata, on account of his discharge in March 2011 in Scotland in extradition proceedings for substantially the same matters in connection with an earlier EAW which was subsequently withdrawn;
ii) Alternatively, the judge should have discharged him because by seeking the appellant’s surrender the Latvian judicial authority was abusing the process of the court;
iii) The judge should have discharged him on grounds of delay pursuant to section 14 of the 2003 Act;
iv) The judge should have discharged him pursuant to section 21A of the 2003 Act because his surrender would violate his rights under article 8 of the European Convention of Human Rights;
v) The judge should have discharged him pursuant to section 25 of the 2003 Act because of his physical condition.
Held: The appeal failed. An issue estoppel arising from res judicata has no place in English criminal law.

Burnett, Cranston LJJ
[2016] EWHC 802 (Admin), [2016] WLR(D) 184, [2016] 4 WLR 75
Bailii, WLRD
European Convention of Human Rights 8, Extradition Act 2003
England and Wales

Extradition, Human Rights

Updated: 10 November 2021; Ref: scu.562128

Joao Pedro Lopes Da Silva Jorge: ECJ 5 Sep 2012

ECJ Police and judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant and surrender procedures between Member States – Article 4(6) – Ground for optional non-execution of the European arrest warrant – Implementation in national law – Arrested person is a national of the issuing Member State – European arrest warrant issued for the purposes of enforcing a custodial sentence – Legislation of a Member State restricting the power not to execute the European arrest warrant to cases where the requested persons are nationals of that State

Skouris, P
C-42/11, [2012] EUECJ C-42/11, [2012] WLR(D) 263
Bailii
European

Extradition

Updated: 10 November 2021; Ref: scu.463847

McKinnon, Regina (On the Application of) v Secretary Of State for Home Affairs: Admn 31 Jul 2009

Assurances for Extradition

Extradition of the defendant was sought to the US to face allegations of hacking into defence computers there. He said this would infringe his article 3 rights, saying that he suffered Autism Spectrum Disorder.
Held: The application failed. US authorities had given re-assurances as to his care. Judicial review of a prosecutorial decision is a highly exceptional remedy. Though the defendant’s actions had taken place within the UK, it was directed at the US. It was not for the court to decide where he should be prosecuted, and it would be wrong to sentence him here on the basis of what he admitted and not on the basis of what the US felt could be proved against him. The medical evidence did not go far enough to establish any threat to the defendant’s human rights by an extradition.

Stanley Burnton LJ, Wilkie J
[2009] EWHC 2021 (Admin)
Bailii, Bailii
Extradition Act 2003, European Convention on Human Rights 3
England and Wales
Citing:
See Also – McKinnon v USA and Another Admn 3-Apr-2007
The defendant appealed an order for his extradition. He had used his computer in London to access remotely defence and other government computers in the USA, and deleted files and copied others onto his own computer. He had been offered a deal if he . .
See Also – McKinnon v The United States of America and Anotherr HL 30-Jul-2008
The appellant sought to avoid extradition to the US. He had hacked into 97 US government computers. He argued that the punishment he might expect in the US was completely disproportionate to the offence, and that he had been misled into entering . .
See Also – McKinnon v Secretary of State for the Home Department Admn 23-Jan-2009
. .
Cited – Wright v The Scottish Ministers SCS 27-May-2005
The Lord Ordinary said: ‘Extradition does not and should not depend upon the ability or otherwise of the requested state to undertake its own investigations with a view to prosecuting the case within its own jurisdiction. Such an approach would . .
Cited – Bermingham and others v The Director of the Serious Fraud Office QBD 21-Feb-2006
Prosecution to protect defendant not available
The claimants faced extradition to the US. They said that the respondent had infringed their human rights by deciding not to prosecute them in the UK. There was no mutuality in the Act under which they were to be extradited.
Held: The Director . .
Cited – Ahsan, Regina (on the Application of) v Director of Public Prosecutions; Tajik v Government of the United States of America Admn 10-Apr-2008
A request was made by the United States for extradition to answer charges for alleged terrorist offences. . .
Cited – N v Secretary of State for the Home Department HL 5-May-2005
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . .
Cited – J v Secretary of State for the Home Department CA 24-May-2005
The applicant, a Tamil threatened to commit suicide if returned to Sri Lanka. It had been accepted by the Home Secretary that he suffered from post traumatic stress disorder and depression. The medical evidence was that ‘His prognosis (was) . .
Cited – Tozlukaya v Secretary of State for the Home Department CA 11-Apr-2006
Richards LJ said: ‘There is no dispute about the test to be applied by the Secretary of State in determining whether the respondent’s claim was ‘clearly unfounded’ within section 93(2) (b) of the 2002 Act. In relation to the same statutory language . .
Cited – AJ (Liberia) v Secretary of State for the Home Department CA 15-Dec-2006
. .
Cited – RA (Sri Lanka) v Secretary of State for the Home Department CA 6-Nov-2008
The appellant challenged rejection of her asylum application made on human rights grounds. Medical evidence said that ‘There was a body of evidence before the senior immigration judge on the subject of the appellant’s mental health. It is sufficient . .
Cited – CN (Burundi) v Secretary of State for the Home Department CA 19-Jun-2007
Increased risk of claimant committing suicide if returned home. . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Wellington Regina, (on the Application of) v Secretary of State for the Home Department HL 10-Dec-2008
It was sought to extradite the defendant to face trial for two alleged murders. He now challenged the order for his extradition saying that his treatment in Missouri would amount to inhuman or degrading punishment in that if convicted he would face . .

Lists of cited by and citing cases may be incomplete.

Extradition, Human Rights, Criminal Practice

Updated: 10 November 2021; Ref: scu.368621

Amand v Home Secretary and Minister of Defence of Royal Netherlands Government: HL 1943

A Dutch serviceman who had been arrested for desertion and brought before a magistrate who ordered him to be handed over to the Dutch military authorities under the Allied Forces Act 1940. An application for habeas corpus was rejected by a Divisional Court. The Court of Appeal held that they had no jurisdiction to entertain an appeal from the Divisional Court.
Held: The refusal of an application for habeas corpus by a person committed to prison with a view to extradition was a decision in a ‘criminal cause or matter.’
Viscount Simon LC said that the: ‘distinction between cases of habeas corpus in a criminal matter, and cases when the matter is not criminal goes back very far . . it is the nature and character of the proceeding in which habeas corpus is sought which provide the test . . If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal.’
Lord Porter said: ‘This does not mean that the matter, to be criminal, must be criminal throughout. It is enough if the proceeding in respect of which mandamus was asked is criminal, eg, the recovery of a poor rate is not of itself a criminal matter, but its enforcement by magistrates by warrant of distress is, and if a cause be stated by them as to their right to enforce it and that the case is determined by the High Court, no appeal lies . . The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not of itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the magistrate in jeopardy of a criminal charge. . .’
Lord Wright said: ‘The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment such as imprisonment or a fine, it is a ‘criminal cause or matter. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter’ and ‘. . the immediate [habeas corpus application] . . was not the cause or matter to which the section refers. The cause or matter in question was the application to the court to exercise its powers under the Allied Forces Act . . to deliver the appellant to the Dutch military authorities. It is in reference to the nature of that proceeding that it must be determined whether there was an order made in a criminal cause or matter.’

Viscount Simon LC, Wright, Atkin, Thankerton, Porter LL
[1943] AC 147, [1942] 2 All ER 381
Supreme Court of Judicature (Consolidation) Act 1925 31(1)(a)
England and Wales
Citing:
Approved – Ex parte Alice Woodhall CA 8-May-1888
Extradition proceedings are in their nature criminal proceedings. Lindley LJ said: ‘Can we say that the application in the present case is not an application in a criminal cause or matter? I think that in substance it certainly is. Its whole object . .

Cited by:
Cited – In Re Levin; Regina v Governor of Brixton Prison, Ex parte Levin HL 10-Apr-1997
The applicant had been detained pending extradition to the United States on charges of fraud. He said the evidence would not have been sufficient to justify his committal for trial.
Held: The Francis case did not establish that the 1984 Act . .
Applied – Bonalumi v Secretary of State for the Home Department CA 1985
In the course of extradition proceedings, an order was obtained under the 1879 Act. The defendant sought to appeal against the order, and applied to the Court of Appeal.
Held: The procedure under the 1879 Act was in the course of criminal . .
Cited – Regina on the Application of South West Yorkshire Mental Health NHS Trust v Crown Court at Bradford CA 19-Dec-2003
A appealed an order made by the Crown Court under the 1964 Act for his detention in a mental hospital on the grounds that he was unfit to enter a plea to the charge of murder.
Held: The Court of Appal had no jurisdiction to hear the appeal. . .
Cited – Day v Grant (Note) CA 1985
(January 1985) The court must look to the underlying nature of the proceedings in which the order was made and against which an appeal was sought to see to which court an appeal lay. ‘So Lord Wright was saying that you look not at the particular . .
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Cited – Regina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – Knowles and others v Superintendent of HM Prison Fox Hill and others PC 23-Mar-2005
(Bahamas) The claimants resisted requests for their extradition to the US on drugs charges. . .
Cited – Alexander, Farrelly and Others, Re Judicial Review QBNI 5-Mar-2009
Each claimant said that they had been wrongfully arrested, the arresting police officers having either failed to ask whether the arrest was necessary (Farrelly), or mistakenly concluding so.
Held: The Order now contained in regulation . .
Cited – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court and Another CA 25-Oct-2011
The claimant newspaper sought to appeal against a refusal by the respondent to disclose papers filed in a case before it. The court considered whether it had jurisdiction to hear an appeal.
Held: Under the 1981 Act no appeal would lie if the . .
Applied – Regina v Southampton Justices ex parte Green CA 1976
The court considered whether as the Court of Appeal, it had jurisdiction to hear an appeal against the Divisional Court’s refusal to quash an order estreating a recognisance.
Held: It did. Lord Denning MR said that ‘the matter is criminal’ if . .
Distinguished – In re Smalley HL 1985
Challenge by a surety to an estreatment of his recognizance was not a matter relating to a trial on indictment for the purpose of section 29(3) because it did not affect the conduct of the trial. A sensible legislative purpose can be seen for . .
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .

Lists of cited by and citing cases may be incomplete.

Extradition, Litigation Practice

Leading Case

Updated: 10 November 2021; Ref: scu.180863

Mucelli v Government of Albania (Criminal Appeal From Her Majesty’s High Court of Justice): HL 21 Jan 2009

The House was asked whether someone who wished to appeal against an extradition order had an obligation also to serve his appellant’s notice on the respondent within the seven days limit, and whether the period was capable of extension by the court.
Held: The appeal failed (Lord Rodger dissenting). Giving notice, for the purposes of the statutory appeals process under Part 2 of the 2003 Act, entails both filing and serving notice of appeal and that the fourteen day permitted period for giving notice cannot be extended by the Court invoking its powers under the Civil Procedure Rules. Being a statutory time limit, the court had no discretion to extend it. (Lord Rodger dissenting)
In interpreting a statute a court should ‘pay no attention whatever to the explanatory notes as an indication of their meaning. In this case the notes do not identify the mischief behind the enactments. Nobody outside government knows who drafted them, or revised them or on what basis. They cannot be regarded as any kind of authoritative guide to the meaning of the provisions. ‘
However where service had been made by fax shortly after 4:00pm, there was no need to apply the Civil Procedure Rules to deem this late service. The Rules had been disapplied by the statute.
Lord Rodger said the rule: ‘it imposes a substantial burden on a prospective appellant and his advisers. The question is whether Parliament considered that, exceptionally, the matter of service had to be taken out of the hands of the courts and subjected to the same immovable time-limit – with failure to meet the deadline resulting in the prisoner’s extradition, however meritorious the appeal that had been filed, however venial the slip that had resulted in service being late, and however little the prejudice that it had caused to the respondent. The potential for substantial injustice is striking.’

Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury
[2009] UKHL 2, Times 27-Jan-2009, [2009] 1 WLR 276, [2009] WLR (D) 12
Bailii, HL
Extradition Act 2003 26 28 103 105, Council Framework Decision on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), Civil Procedure Rules 3.1(2)(a) 3.10 6.9 52
England and Wales
Citing:
Appeal from – Mucelli v Albania and Another Admn 15-Nov-2007
. .
Cited – Gercans v The Government of Latvia Admn 27-Feb-2008
The court was asked whether there was jurisdiction in High court to hear an appeal under section 26(4) against extradition order. . .
Cited – Saber v Secretary of State for the Home Department HL 12-Dec-2007
The applicant sought asylum, saying that it would be unsafe to order his return. The issue before the House was as to when the need for protection should be assesed where, as here, there had been a series of appeals over time.
Held: The appeal . .
Appeal from – Moulai v Deputy Public Prosecutor In Creteil France Admn 9-May-2008
The court was asked ‘Whether it is a fatal bar to an appeal against an order extraditing (or not extraditing) a person, that a copy of the duly filed appeal notice was served on the respondent a few minutes late?’
Held: The failure to serve an . .
Cited – Westminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
Distinguished – Anderton v Clwyd County Council (No 2); Bryant v Pech and Another Dorgan v Home Office; Chambers v Southern Domestic Electrical Services Ltd; Cummins v Shell International Manning Services Ltd CA 3-Jul-2002
In each case, the applicant sought to argue that documents which had actually been received on a certain date should not be deemed to have been served on a different day because of the rule.
Held: The coming into force of the Human Rights Act . .
Cited – Pritam Kaur v S Russell and Sons Ltd CA 2-Jun-1972
The plaintiff sought damages following the death of her husband when working for the defendant. The limitation period expired on Saturday 5 September 1970. The writ was issued on the Monday following.
Held: The appeal succeeded. The writ was . .
See Also – Mucelli v Secretary of State for The Home Department Admn 18-Jan-2008
. .
See Also – Mucelli v Albania and Another Admn 15-Nov-2007
. .

Cited by:
Cited – Mann, Regina (on The Application of) v The City of Westminster Magistrates’ Court and Others Admn 19-Jan-2010
The defendant had been convicted of an offence in Portugal and sentenced to imprisonment. He was given an order for voluntary departure, but his lawyers did not file an appeal. When a European Arrest Warrant was issued, he now sought an order for . .
Cited – Halligen v Secretary of State for The Home Department Admn 21-Jun-2011
The Home Secretary argued that the defendant’s attempted appeal against an extradition order was out of time and that accordingly the court had no jurisdiction to hear an appeal. Notice of service of the appeal was one day out of time.
Held: . .
At HL – Mucelli, Regina (on The Application of) v The Government of Albania Admn 27-Jan-2012
Cranston J said that in his view the law and practice in Albania was such that there was no real risk that the applicant would suffer a flagrant denial of justice on his return to Albania, as he was entitled to a retrial on the merits of the case . .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Cited – Modaresi, Regina (on The Application of) v Secretary of State for Health SC 24-Jul-2013
The Court was asked: ‘As: (i) a public body with obligations in public law and (ii) a public authority under the Human Rights Act 1998 can the Secretary of State for Health ‘the S/S’ lawfully refuse to refer a patient’s case to the First-tier Mental . .
Cited – BPP Holdings Ltd and Others v Revenue and Customs SC 26-Jul-2017
The Revenue had challenged a decision by the FTTTx to bar it from defending an appeal as to VAT liability. It had failed first to meet procedural time limits and on the issue of an unless order had failed to comply. The Revenue challenged the . .

Lists of cited by and citing cases may be incomplete.

Extradition, Civil Procedure Rules

Updated: 10 November 2021; Ref: scu.280076

Aranyosi and Caldararu: ECJ 5 Apr 2016

ECJ (Judgment) Preliminary reference – Police and judicial cooperation in criminal matters – Framework Decision 2002/584 / JHA – European arrest warrant – Execution Grounds for refusal – Charter of Fundamental Rights of the European Union – Article 4 – Prohibition treatments inhuman or degrading treatment – Conditions of detention in the issuing member State

C-404/15, [2016] EUECJ C-404/15, ECLI: EU:C:2016:198, [2016] EUECJ C-404/15 – CO
Bailii, Bailii
Framework Decision 2002/584/JHA, Charter of Fundamental Rights of the European Union 4
European

Human Rights, Extradition, Prisons

Updated: 10 November 2021; Ref: scu.561972

Asliturk v The City of Westminster Magistrates’ Court: Admn 12 Aug 2010

The claimants sought judicial review of the respondents’ refusal to order their discharge from extradition proceedings. The extradition hearing had not been commenced within the time specified in section 74. Though listed, through a prison error, the claimants were not produced from prison, and their solicitors were not notified. Only a bail application was heard.
Held: Judicial review was not available. Section 116 restricted challenges to decisions made save by appeal. An appeal was the sensible form of redress. An application under 75(4) was available before, but only before, the hearing had begun. In this case the defendant had not made that application.

Stanley Burnton LJ, Nicol J
[2010] EWHC 2148 (Admin), [2011] 1 WLR 1139
Bailii
Extradition Act 2003 75(4) 116
England and Wales
Citing:
See Also – Asliturk v HMP Wandsworth Admn 16-Jun-2010
The claimant was remanded into custody pending extradition. He now appealed against refusal of bail.
Held: Bail was refused. . .

Cited by:
Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .

Lists of cited by and citing cases may be incomplete.

Extradition

Updated: 10 November 2021; Ref: scu.421510

Louca v A German Judicial Authority: SC 19 Nov 2009

The defendant resisted extradition saying that the European Arrest Warrant was defective in not revealing the existence of two earlier such warrants. He said that absence of such information would hinder a court which was concerned as to possible abuse.
Held: The appeal failed. The information was optional, and the information missing from the request was information known in any event to the defendant. The words ‘any other warrant’ in section 2(4) do refer to any domestic arrest warrant that may exist.
In an accusation case, the requirement in section 2(4)(b) of the 2003 Act for information consisting of ‘particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence’ refers to ‘any domestic warrant on which the European arrest warrant is based, and not to any other European arrest warrant which may have been issued on the basis of any such domestic warrant’
The language of article 8.1 draws a distinction between a ‘European arrest warrant’ and in sub-paragraph (c) ‘an arrest warrant’, which indicates that the latter words refer to any domestic warrant.

Lord Hope, Deputy President, Lord Rodger, Lord Mance, Lord Collins, Lord Kerr
Times 24-Nov-2009, [2009] UKSC 4, [2010] 1 All ER 402, [2009] 1 WLR 2550, UKSC 2009/0047
Bailii, Bailii Summary, SC, SC Summary
Extradition Act 2003 2(2)(a) 4(b), Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states of the European Union (2002/584/JHA; OJ 2002 L190, pl)
England and Wales
Citing:
Cited – Regina v Liverpool Stipendiary Magistrates ex parte Ellison QBD 1990
Bingham LJ said: ‘If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is . .
Cited – Criminal proceedings against Pupino ECJ 16-Jun-2005
ECJ (Grand Chamber) Police and judicial cooperation in criminal matters – Articles 34 EU and 35 EU – Framework Decision 2001/220/JHA – Standing of victims in criminal proceedings – Protection of vulnerable . .
Appeal from – Louca v Public Prosecutor In Bielefel, Germany Admn 27-Nov-2008
The defendant objected to the extradition order, saying that the European arrest warrant relied on did not disclose other warrants issued for the same offences.
Held: The Act required the warrant to be validated by the issuing national court. . .
Cited – Zakowski v Regional Court In Szczecin, Poland Admn 16-May-2008
Maurice Kay LJ said that section 2(6)(c) of the 2003 Act ‘should be construed as referring only to other EAWs issued in respect of the offence.’ . .
Cited – Dabas v High Court of Justice, Madrid HL 28-Feb-2007
The defendant sought to appeal his extradition to Spain to face terrorism charges. He complained that the certificate required under the 2003 Act could not be the European arrest warrant itself, that the offence did not satisfy the double . .
Cited – Jaso and others v Central Criminal Court No.2 Madrid Admn 14-Dec-2007
The Madrid Court had issued European Arrest Warrants against the three appellants on charges of membership of a criminal organisation and terrorism. The appellants had unsuccessfully challenged extradition before the District Judge on a large number . .

Cited by:
Cited – Assange v The Swedish Prosecution Authority SC 30-May-2012
The defendant sought to resist his extradition under a European Arrest Warrant to Sweden to face charges of sexual assaults. He said that the prosecutor who sought the extradition was not a judicial authority within the Framework Decision.
Cited – Bucnys v Ministry of Justice SC 20-Nov-2013
The Court considered requests made by European Arrest Warrants for the surrender under Part 1 of the Extradition Act 2003 of three persons wanted to serve sentences imposed upon their conviction in other member states of the European Union. The . .
Cited – Goluchowski and SAS v District Court and Circuit Court In Poland SC 29-Jun-2016
The appellants challenged the effectiveness of European Arrest Warrants, saying that the requests were deficient in not providing adequate details of warrants issued in support of the decisions. They had been convicted and sentenced to terms of . .

Lists of cited by and citing cases may be incomplete.

Extradition, European

Updated: 09 November 2021; Ref: scu.380325

VB and Others v Westminster Magistrates: SC 5 Nov 2014

Extraditions to follow normal open justice rules

Application was made by Rwanda for the extradition of four individuals to face crimes said to have been committed during their civil war. Witnesses were prepared to give evidence but only in private and not being seen by the representatives of Rwanda.
Held: The magistrate hearing such proceedings had no power under the 2003 Act to hear evidence in a closed court procedure, prohibiting the disclosure to the requesting state of evidence given by such individuals whose extradition was being sought. Extradition proceedings were not in a special category which would justify a departure from the principle of open justice.
Lord Hughes said: ‘An extradition judge will bear in mind that where the issue is the presence of a prima facie case, he is generally not concerned to assess the credibility of the witnesses relied upon, at least unless they are so damaged that no court of trial could properly rely on them. Nevertheless, it is likely that any extradition judge will be more cautious in relation to the admission of anonymous evidence on the issue of prima facie case than in relation to section 81 or 87 issues, and the more cautious still where it is proffered by the requesting State. It is clear that the overriding principle is that such evidence can be admitted only when it is fair to all parties that it should be. It must remain an unusual exception to the general practice. That is likely to mean that an extradition judge will apply by analogy, so far as may relevant, the same principles as are stipulated in the 2009 Act for criminal prosecutions in England and Wales. He will need to be satisfied that there is genuine cause for anonymity, generally a justified fear for the safety of the witness or others which cannot otherwise be protected, and that justice requires that the evidence be given. It will also be likely to mean that a crucial factor in his decision whether to admit it will be the extent of the means available to the other party to challenge it. In considering this question he will no doubt want to consider whether the party tendering the witness has or has not provided the maximum possible information about the witness, short of identifying material, which could be deployed in challenging him. He will ordinarily require that the court itself is given the fullest information of identity. He will no doubt have in mind that anonymity may often weaken the weight which can be given to evidence given. Providing, however, he makes all relevant enquiries and admits the evidence of a person who is anonymous to a party only if satisfied that the proceedings are nevertheless fair, he has the power to hear such a witness.’

Lord Neuberger, President, Lord Mance, Lord Reed, Lord Hughes, Lord Toulson
UKSC 2014/0103, [2014] UKSC 59, [2015] 1 AC 1195, [2014] 3 WLR 1336, [2014] WLR(D) 470
SC, Bailii, WLRD, SC Summary, Bailii Summary
Extradition Act 2003
England and Wales
Citing:
Appeal from – VB and Others v Westminster Magistrates’ Court and Others Admn 27-Mar-2014
The applicants challenged their extradition to Rwanda to stand trial for matters which would be an offence under the laws of both countries. Application was made for evidence to be given in secret and without disclosure to the requesting state.
Cited – Schtraks v Government Of Israel And Others HL 6-Sep-1962
Extradition — Habeas corpus — Nature of proceedings — Whether further evidence not before chief magistrate when making committal order admissible — Extradition Act, 1870 (33 and 34 Vict. c. 52), s. 3 (1).
Extradition — Political offence . .
Cited – United States of America, Regina (on the Application of) v Bow Street Magistrates’ Court Admn 6-Sep-2006
The defendant a serving prisoner sought an adjournment of his extradition to a time closer to the end of the sentence he was to serve in England.
Held: The court had sympathy with the argument that where the district judge is being invited to . .
Cited – W (Algeria) and Another v Secretary of State for The Home Department SC 7-Mar-2012
Each of the three appellants, suspected of terrorist activity, objected to their proposed return to Algeria on deportation, saying that it was accepted that torture was routinely used against people in their position, and without redress. . .
Cited – In re Nielsen HL 1984
The House considered the role of the metropolitan magistrate under section 9 and 10 of the 1870 Act in the context of an application for extradition under the treaty between Denmark and the United Kingdom. At section 9 hearings it had been the . .
Cited – In Re Levin; Regina v Governor of Brixton Prison, Ex parte Levin HL 10-Apr-1997
The applicant had been detained pending extradition to the United States on charges of fraud. He said the evidence would not have been sufficient to justify his committal for trial.
Held: The Francis case did not establish that the 1984 Act . .
Cited – Lodhi v Governor of HMP Brixton and Government of United Arab Emirates Admn 13-Mar-2001
. .
Cited – Hilali v The National Court, Madrid and Another (No 5) Admn 26-May-2006
Appeal against an extradition order for his extradition to Spain. The court was concerned with an issue of ‘extraneous circumstances’ arising under, respectively, section 6(1) of the 1989 Act and section 13 of the 2003 Act. . .
Cited – Regina v Taylor and Crabb CACD 22-Jul-1994
The defendants had stood trial at the Central Criminal Court for murder. At the trial a witness anonymised as Miss A was allowed to give evidence anonymously, without revealing her address, behind a screen so arranged that she, the judge, jury and . .
Cited – In Re Khalid Al-Fawwaz (Application for a Writ of Habeas Corpus) (on Appeal From a Divisional Court of the Queen’s Bench Division) HL 17-Dec-2001
The fact that a crime for which extradition was sought was extra-territorial one to the country making the request, was not enough to counter the application. The schedule required the person to be ‘accused or have been convicted of an extradition . .
Cited – Raissi, Regina (on the Application of) v Secretary of State for the Home Department Admn 22-Feb-2007
The claimant sought judicial review of a refusal to make an ex gratia payment for his imprisonment whilst successfully resisting extradition proceedings. Terrorist connections had been suggested, but the judge made an explicit finding that at no . .
Cited – Raissi, Regina (on the Application of) v Secretary of State for the Home Department CA 14-Feb-2008
The claimant appealed against refusal of his request for judicial review of the defendant’s decision not to award him damages after his wrongful arrest and detention after he was wrongly suspected of involvement in terrorism. He had been discharged . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Cited – JS (Sri Lanka), Regina (on The Application of) v Secretary of State for The Home Department SC 17-Mar-2010
The asylum seeker was accused of complicity in war crimes in Sri Lanka. He had worked as an intelligence officer but his cover had been broken and he fled to the UK. It was said that he was excluded from protection as an asylum seeker.
Held: . .
Appeal from – Pomiechowski v District Court of Legunica, Poland Admn 15-Jun-2011
The three defendants wished to appeal against orders for their extradition to Poland. They had been arrested, and while in custody had used the prison’s support services, who failed to serve their notices in time.
Held: The notices were . .
Cited – Halligen v Secretary of State for The Home Department Admn 21-Jun-2011
The Home Secretary argued that the defendant’s attempted appeal against an extradition order was out of time and that accordingly the court had no jurisdiction to hear an appeal. Notice of service of the appeal was one day out of time.
Held: . .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Cited – Al-Sirri v Secretary of State for The Home Department SC 21-Nov-2012
The appellants had been refused refugee status on the ground that they were suspected of having been guilty of terrorist acts. They said that the definition of terrorism applied within the UK was wider than that in the Convention which contained the . .
Cited – Halligen v Secretary of State for The Home Department Admn 19-Dec-2012
. .

Lists of cited by and citing cases may be incomplete.

Extradition

Leading Case

Updated: 02 November 2021; Ref: scu.538298

Lukaszewski v The District Court In Torun, Poland: SC 23 May 2012

Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal from prison. The legal services department of the Prison service relayed the notices to the CPS, but in each of the first three cases the notice was not served as required within 7 days. In H’s case the notice was prepared but not served within the 14 day period. They appealed against orders finding the notices lodged out of time.
Held: The appeals succeeded, and the notices of appeal should be deemed valid and heard accordingly. Whilst extradition does not itself involve the determination of a criminal charge, it does involve the determination of a civil right, namely the freedom to remain in the UK, and such proceedings fell with Article 6(1) of the Convention. Accordingly, applying the 1998 Act, the statutory provisions concerning appeals must be read to be subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a way which conflicted with the right of access to an appeal process under Article 6(1).

Lord Phillips, President, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson
[2012] UKSC 20, UKSC 2011/0177, [2012] 1 WLR 1604, [2012] HRLR 22, [2012] 4 All ER 667, [2012] WLR(D) 158
Bailii, Bailii Summary, SC, SC Summary, WLRD
Extradition Act 2003, European Convention on Human Rights 6(1), Human Rights Act 1998 3(1)
England and Wales
Citing:
Appeal from – Pomiechowski v District Court of Legunica, Poland Admn 15-Jun-2011
The three defendants wished to appeal against orders for their extradition to Poland. They had been arrested, and while in custody had used the prison’s support services, who failed to serve their notices in time.
Held: The notices were . .
Appeal from – Halligen v Secretary of State for The Home Department Admn 21-Jun-2011
The Home Secretary argued that the defendant’s attempted appeal against an extradition order was out of time and that accordingly the court had no jurisdiction to hear an appeal. Notice of service of the appeal was one day out of time.
Held: . .
Cited – Mucelli v Government of Albania (Criminal Appeal From Her Majesty’s High Court of Justice) HL 21-Jan-2009
The House was asked whether someone who wished to appeal against an extradition order had an obligation also to serve his appellant’s notice on the respondent within the seven days limit, and whether the period was capable of extension by the court. . .
Cited – Sciezka v The Court In Sad Okregowy, Kielce, Poland Admn 4-Jun-2009
Service of an unsealed notice of appeal was at worst a procedural error which should not vitiate an appeal against extradition. . .
Cited – Arunthavaraja v Administrative Court Office Admn 9-Jul-2009
The defendant sought to appeal against an order for his extradition. He now sought leave to bring judicial review against of the refusal of the court office to accept his notice had been defective, being out of time.
Held: Judicial review was . .
Cited – Dunne v High Court Dublin Admn 9-Jul-2009
. .
Cited – Kaminski v Judicial Authority of Poland Admn 2010
The court refused to strike out appeals against extradition orders, where no or only plainly inadequate grounds were stated in the notice of appeal. It did so on the basis that the inclusion of grounds was a matter for rules (in which connection the . .
Cited – Regional Court In Konin, Poland v Walerianczyk Admn 12-Aug-2010
In an appeal against an order for extradition, the service of a draft Notice of Appeal followed by the filing of the Notice of Appeal itself is not capable of complying with the requirement that Notice of Appeal be given within the permitted period. . .
Cited – Kane, Regina (on The Application of) v Trial Court No 5 Marbella, Spain Admn 17-Mar-2011
The extradition court objected to the defendant’s appeal against extradition on the basis that it was not filed within time.
Held: Section 26(4) of the 2003 Act does not require that service of the Notice of Appeal on the Respondent must post . .
Cited – Bergman, Regina (on The Application of) v District Court In Kladno Czech Republic Admn 28-Jan-2011
The unrepresented defendant, in custody, prepared his notice of appeal against an extradition order, and it was then faxed for him in draft form to the judicial authority and filed, all within the 7 day period, but no stamped copy was served, or . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Atkinson v Government of the United States HL 1969
The House heard an appeal from the magistrates’ refusal to commit the accused in the course of extradition proceedings.
Held: There is no abuse of process jurisdiction in extradition proceedings. There is no power to state a case in relation . .
Cited – Regina v Governor of Pentonville Prison, Ex parte Sinclair; Sinclair v Director of Public Prosecutions HL 1991
The applicant had left the USA after conviction, but before his prison term commenced, and a warrant issued. Nine years later he was arrested in the UK, and extradition sought. He said that the extradition was time-barred under the Order. The . .
Cited – In Re Schmidt HL 1-Jul-1994
The appellant sought to persuade the House that in extradition proceedings the courts enjoyed a similar jurisdiction to that exercised in Bennett.
Held: The appeal failed. The High Court has no inherent power to intervene in extradition . .
Cited – Regina (Kashamu) v Governor of Brixton Prison and Another; Regina (Kashamu) v Bow Street Magistrates’ Court; Regina (Makhlulif and Another) v Bow Street Magistrates’ Court QBD 23-Nov-2001
Where a magistrates’ court heard an application for extradition, it was within its proper ambit to assess the lawfulness of the detention of the suspect in the light of the Human Rights Convention, but not to stray onto issues which were only for . .
Cited – Szelagowski v Regional Court of Piotrkow Trybunalski Poland Admn 1-Apr-2011
A clerk was instructed, after filing a notice of appeal, to serve it on the Crown Prosecution Service with a letter on which he wrote the relevant Crown Office reference. The letter was expressed to cover the delivery of the appellant’s notice and . .
Cited – Tolstoy Miloslavsky v United Kingdom ECHR 19-Jul-1995
The applicant had been required to pay andpound;124,900 as security for the respondent’s costs as a condition of his appeal against an award of damages in a defamation case.
Held: It followed from established case law that article 6(1) did not . .
Cited – Regina v Secretary of State for the Home Department ex parte Launder QBD 18-Mar-1998
Speciality protection requirement satisfied by undertaking for re-surrender given by Hong Kong Chief Executive, despite excess time on bail. For the purposes of a challenge to extradition under domestic law, an applicant for habeas corpus is to be . .
Cited – Fuller v The Attorney General (Belize) PC 9-Aug-2011
Belize . .
Cited – H v Spain ECHR 1982
(Commission) An American citizen whose extradition from Spain was sought by the United States, complained that he had had inadequate legal representation and interpretation before the Audiencia Nacional.
Held: The complaint was inadmissible. . .
Cited – Kirkwood v The United Kingdom ECHR 12-Mar-1984
(Admissibility – Commission) The claimant, a United States national, said that the proceedings for his extradition from the United Kingdom to the United States infringed article 6(3)(d), because he was not permitted to cross-examine the witnesses . .
Cited – Maaouia v France ECHR 5-Oct-2000
A deportation order, made against a Tunisian, was eventually quashed by the French Administrative Court and the Article 6 complaints related to the length of time taken in the proceedings. The Court’s reasoning why Article 6 does not apply to . .
Cited – Mammatkulov and Askarov v Turkey ECHR 2005
The applicants complained of the Turkish extradition procedures.
Held: The Court reiterated that ‘decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or . .
Cited – Director of Public Prosecutions v Bhagwan HL 1972
Under s 3 of the 1962 Act and paras 1 and 10 of Sch 1, a Commonwealth citizen to whom the Act applied landing in the United Kingdom from a ‘ship’ (as widely defined) or an aircraft could within 24 hours of his landing be required by an immigration . .
Cited – Van Duyn v Home Office ECJ 4-Dec-1974
LMA Miss Van Duyn, a Dutch national, wished to enter the UK to take up work with the Church of Scientology. Art 48EC (new Art.39EC) confers rights on the individuals of each Member State to go to another MS (host . .
Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Al-Mehdawi v Secretary of State for the Home Department HL 23-Nov-1989
The applicant, a student had overstayed his leave. Through his solicitor’s negligence, he lost his appeal against deportation. He sought judicial review of that decision.
Held: Judgment obtained in a party’s absence due entirely to the fault . .
Cited – Connolly v Director of Public Prosecutions Admn 15-Feb-2007
The defendant appealed against her conviction under the Act for having sent indecent or grossly offensive material through the post in the form of pictures of an aborted foetus sent to pharmacists. She denied that they were offensive, or that she . .
Cited – FP (Iran) v Secretary of State for the Home Department CA 23-Jan-2007
The claimants said that rules which allowed an appeal tribunal to proceed in their absence when they were absent through no fault of their own, were unlawful in depriving them of a fair trial. The claimants had each moved house but their former . .
Cited – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .

Cited by:
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Cited – Kapri v The Lord Advocate (Representing The Government of The Republic of Albania) SC 10-Jul-2013
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in . .
Cited – In re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .
Cited – Adesina and Others, Regina (on The Application of) v The Nursing and Midwifery Council CA 9-Jul-2013
The court was asked as to the effect of a statutory provision stating that an appeal to the High Court from the Nursing and Midwifery Council ‘must be brought before the end’ of a specified period of 28 days. There was no express provision . .
See Also – Pomiechowski v The District Court In Legnica, 59-220 Poland Admn 9-Nov-2012
. .
Cited – VB and Others v Westminster Magistrates SC 5-Nov-2014
Extraditions to follow normal open justice rules
Application was made by Rwanda for the extradition of four individuals to face crimes said to have been committed during their civil war. Witnesses were prepared to give evidence but only in private and not being seen by the representatives of . .

Lists of cited by and citing cases may be incomplete.

Extradition, Human Rights

Updated: 02 November 2021; Ref: scu.459616

McKinnon v The United States of America and Anotherr: HL 30 Jul 2008

The appellant sought to avoid extradition to the US. He had hacked into 97 US government computers. He argued that the punishment he might expect in the US was completely disproportionate to the offence, and that he had been misled into entering into a plea bargain making the extradition an abuse of process.
Held: The appeal was dismissed. Some of the offences were paralleled in English law by offences carrying a maximum of life imprisonment, and ‘the disparity between the consequences predicted by the US authorities dependent upon whether the appellant cooperated or not was very marked. It seems to me, however, no more appropriate to describe the predicted consequences of non-cooperation as a ‘threat’ than to characterise the predicted consequences of co-operation as a ‘promise’.’ Any difference here was insufficient to raise an issue of abuse of process.

Lord Scott of Foscote, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury
[2008] UKHL 59, Times 06-Aug-2008, [2008] 1 WLR 1739, [2008] 4 All ER 1012, [2008] UKHRR 1103
Bailii, HL
Extradition Act 2003 69 87, Aviation and Maritime Security Act 1990 12
England and Wales
Citing:
Appeal from – McKinnon v USA and Another Admn 3-Apr-2007
The defendant appealed an order for his extradition. He had used his computer in London to access remotely defence and other government computers in the USA, and deleted files and copied others onto his own computer. He had been offered a deal if he . .
Cited – United States of America, Regina (on the Application of) v Bow Street Magistrates’ Court Admn 6-Sep-2006
The defendant a serving prisoner sought an adjournment of his extradition to a time closer to the end of the sentence he was to serve in England.
Held: The court had sympathy with the argument that where the district judge is being invited to . .
Cited – In Re Ismail (Application For Writ of Habeas Corpus) (On Appeal From A Divisional Court of The Queen’s Bench Division) HL 20-Aug-1998
The term ‘Accused person’ for the purposes of extradition can include a person yet to be charged. Allowance are to be made for foreign systems, and should recognise the purpose of the legislation and includes the desire to interview or where a . .
Cited – P, Regina v; Regina v Blackburn CACD 22-Oct-2007
Whilst awaiting trial, P had offered evidence against others on other serious crimes. On conviction, the judge was supplied with a statement explaining his assistance. He now appealed sentence of 17 years imprisonment for assorted serious drugs . .
Cited – United States of America v Shulman 5-Apr-2001
Canlii (Supreme Court of Canada) Constitutional law — Charter of Rights — Mobility rights — Right to remain in Canada – Extradition – Whether mobility rights engaged at committal stage of extradition process . .
Cited – Goodyear, Karl, Regina v CACD 19-Apr-2005
The defendant complained that he had pleaded guilty to a charge of corruption on the basis of an indication from the judge that he would not receive a custodial sentence. Having pleaded guilty he had then been sentenced to a six months prison . .
Cited – United States of America v Cobb 5-Apr-2001
Canlii (Supreme Court of Canada) Constitutional law — Charter of Rights — Fundamental justice – Remedies — Extradition — Whether considerations relating to fundamental justice engaged at committal stage of . .

Cited by:
See Also – McKinnon v Secretary of State for the Home Department Admn 23-Jan-2009
. .
See Also – McKinnon, Regina (On the Application of) v Secretary Of State for Home Affairs Admn 31-Jul-2009
Assurances for Extradition
Extradition of the defendant was sought to the US to face allegations of hacking into defence computers there. He said this would infringe his article 3 rights, saying that he suffered Autism Spectrum Disorder.
Held: The application failed. US . .

Lists of cited by and citing cases may be incomplete.

Extradition

Updated: 02 November 2021; Ref: scu.271280

Regina v Commissioner of Police for The Metropolis, ex parte Rottman: HL 16 May 2002

The defendant had been arrested under an extradition warrant issued under the Act. The police had searched his premises, and found further evidence which was used to support the application for extradition. He challenged the collection and admission of the evidence which was outside the scope of the 1984 Act.
Held: The 1984 Act did not replace entirely the common law powers of the police in collecting evidence. Common law had allowed a police officer exercising an arrest warrant also to search the premises in which he was found. The 1984 Act itself did not create powers capable of being used in this way. The sections were confined to domestic offences. The common law powers remained for international offences.
Hutton L said: ‘It is a well established principle that a rule of the common law is not extinguished by a statute unless the statute makes this clear by express provision or by clear implication.’

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton and Lord Rodger of Earlsferry
Times 21-May-2002, [2002] UKHL 20, [2002] 2 AC 692, [2002] ACD 69, [2002] 2 WLR 1315, [2002] 2 All ER 865, [2002] HRLR 32, 12 BHRC 329
House of Lords, Bailii
Extradition Act 1989 8, Police and Criminal Evidence Act 1984 18 19
England and Wales
Citing:
Cited – Ghani v Jones CA 1970
The court was asked as to the powers of the police to retain objects taken and impounded.
Held: The privacy and possessions of an individual were not to be invaded except for the most compelling reasons.
Lord Denning MR said: ‘Balancing . .
Cited – Regina v Governor of Pentonville Prison, Ex Parte Osman QBD 30-Mar-1988
The applicant had been committed to prison pending extradition proceedings brought by Hong Kong alleging substantial fraud. He challenged the committal on the grounds that since the allegations involved transmission of funds over international . .
Appeal from – Regina (Michael Rottman) v Commissioner of Police for Metropolis and Secretary of State for Home Department Admn 24-Jul-2001
There is no residual common law power of entry for police to enter into premises to execute a search without first obtaining a warrant, beyond that contained in the Act. The Act was intended to provide a complete statement of the powers of entry for . .
Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .

Cited by:
Applied – Regina (Hewitson) v Chief Constable of Dorset Police and another QBD 18-Dec-2003
The claimant had been arrested under an extradition warrant. He complained that the police took the opportunity to search his girflriend’s nearby flat. The police responded that the search was conducted under a common law power of search attached to . .
Cited – Durant v Financial Services Authority CA 8-Dec-2003
The appellant had been unsuccessful in litigation against his former bank. The Financial Services Authority had subsequently investigated his complaint against the bank. Using section 7 of the Data Protection Act 1998, he requested disclosure of his . .
Appealed to – Regina (Michael Rottman) v Commissioner of Police for Metropolis and Secretary of State for Home Department Admn 24-Jul-2001
There is no residual common law power of entry for police to enter into premises to execute a search without first obtaining a warrant, beyond that contained in the Act. The Act was intended to provide a complete statement of the powers of entry for . .
Cited – Greene v Associated Newspapers Ltd CA 5-Nov-2004
The claimant appealed against refusal of an order restraining publication by the respondent of an article about her. She said that it was based upon an email falsely attributed to her.
Held: ‘in an action for defamation a court will not impose . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .

Lists of cited by and citing cases may be incomplete.

Police, Extradition, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.170324

Szklanny v City of Westminster Magistrates’ Court and Another: Admn 23 Oct 2007

The defendant appealed against a decision of the court to extend the time for his extradition to Poland.
Held: The Directive was intended to achieve speedy extraditions, and should be read purposively. It was not necessary to read it in the way argued for by the defendant that an extension of time should be granted only the application had been delayed by circumstances beyond the applicant’s control.

Richards LJ, Gibbs J
[2007] EWHC 2646 (Admin), Times 21-Dec-2007, [2008] ACD 24, [2008] 1 WLR 789
Bailii
Extradition Act 2003 21(3), European Framework Decision on the European arrest warrant and the surrender procedures between member states
England and Wales

Extradition

Updated: 02 November 2021; Ref: scu.261383

Regina v O’Brien: SC 2 Apr 2014

The court considered how to apply the rule that an extradition may only be for trial on matters committed before the extradition if they have been the basis of the request to a defendant’s commission of contempt of court after conviction. After being subject to proceedings anticipating a prosecution for large scale financial fraud, the defendant had fled to the US. He was then found guilty of contempt. On his extradition, he objected to the prosecution for contempt, saying that it was subject to the specialty rule.
Held: His appeal failed. Section 151A did not apply directly, and reading the Act as a whole, conduct must be criminal offence under the jurisdiction of the state requesting extradition. There was a significant distinction between civil and criminal contempt. The first derives from the court’s inherent power to ensure obedience to court orders. Criminal contempt is a serious interference with the administration of justice. A hypothetical person obtaining a finding of contempt whilst the contemnor was abroad would not be prevented from pursuing his committal on his return. The director of the Serious Fraud Office would have no less ability. Mr O’Brien’s contempt was civil, and his committal was not barred by the specialty principle.

Lord Mance, Lord Wilson, Lord Carnwath, Lord Hughes, Lord Toulson
[2014] UKSC 23, [2014] Lloyd’s Rep FC 401, [2014] 2 WLR 902, [2014] 2 All ER 798, [2014] WLR(D) 151, UKSC 2012/0143
Bailii, Bailii Summary, WLRD, SC, SC Summary
Extradition Act 2003 151A, Administration of Justice Act 1960 13
England and Wales
Citing:
Cited – Regina v Seddon CACD 10-Mar-2009
The court considered the concept of specialty with extradition proceedings. Hughes LJ VP said: ‘Extradition is a process involving agreement between Sovereign States. The requesting State has no power to send its policemen into the requested State . .
See Also – OB v The Director of The Serious Fraud Office CACD 2-May-2012
The court considered an application by the defendant for leave to appeal to the Supreme Court, noting that section 13 of the 1960 Act did not provide for such a right after the 2006 Act.
Held: The words could not themselves be construed to . .
Appeal from – OB v The Director of The Serious Fraud Office CACD 1-Feb-2012
The court was asked whether a breach of an order under section 41 of the 2002 Act was a civil or a criminal contempt of court. The defendant had fled to the US to avoid complying with restraint orders on being investigated for financial fraud. He . .
Cited – Home Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
Cited – Attorney-General v Times Newspapers Ltd HL 1991
Injunctions had been granted to preserve the status quo in proceedings brought to prevent the publication of the book ‘Spycatcher’. The defendants published extracts, and now appealed a finding that they had acted in contempt.
Held: The . .

Cited by:
Cited – Commissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Extradition

Leading Case

Updated: 02 November 2021; Ref: scu.523423

Poltorak: ECJ 10 Nov 2016

ECJ (Judgment) Reference for a preliminary ruling – Urgent preliminary ruling procedure – Police and judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(1) – Concept of ‘judicial decision’ – Article 6(1) – Concept of ‘issuing judicial authority’ – European arrest warrant issued by the Rikspolisstyrelsen (National Police Board, Sweden) with a view to executing a custodial sentence

ECLI:EU:C:2016:858, [2016] EUECJ C-452/16, [2016] WLR(D) 599
Bailii, WLRD
Framework Decision 2002/584/JHA
European

Extradition

Updated: 01 November 2021; Ref: scu.571282

Neteczca v Governor of Holloway Prison: Admn 27 Jun 2014

The claimant’s extradition had been ordered, but the extradition had not taken place within the necessary time period, and she now applied to be discharged.
Held: The statutory scheme did not permit the right of a requested person to be discharged, to be circumvented by agreeing a later starting date after the expiry of the period identified in s.36(3)(a), unless reasonable cause is shown. The claimant was entitled to her hearing under section 36(8).

Moses LJ, King J
[2014] EWHC 2098 (Admin)
Bailii
Extradition Act 2003 36(8)
England and Wales

Extradition

Updated: 01 November 2021; Ref: scu.533202

BH and Another v The Lord Advocate and Another: SC 20 Jun 2012

The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against extradition failed. The appeal was competent in that proper human rights issues arose. The allegations were of very serious criminal activity, and the public interest in effective extradition must be given great weight. The prospect here was that if extradited and convicted, the children of the applicants would be separated from their parents for a long time. In Mr H’s case, he was already separated from the mother. Her case was more difficult. Where both parents of young children are at risk of being extradited, the case is of an exceptional character, and the court must consider whether a home prosecution might not also serve. In this case a trial in the US was appropriate. The best interests of the children did not outweigh the need for justice.

Lord Hope, Deputy President, Lady Hale, Lord Mance, Lord Judge, Lord Kerr, Lord Wilson, Lord Brown
[2012] UKSC 24, UKSC 2011/0210, 2012 SC (UKSC) 308
Bailii, Bailii Summary, SC Summary, SC
Extradition Act 2003, European Convention on Human Rights 8
England and Wales
Citing:
Cited – Norris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
Cited – Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited CA 25-May-2000
Where a party appealed against an arbitration to the County or High Court, the court which gave judgment was the sole body able to give permission to enter an appeal under the Act. An appellate court did not have jurisdiction to give leave to . .
Cited – Nwogbe v Nwogbe CA 11-Jul-2000
There was no power to enforce an order made under the Act, when making an occupation order, which included orders for the payment of rent, and other outgoings. Such orders did not come within the exceptions under the Debtors Act, nor under the . .
Cited – Regina v HM Advocate and The Advocate General for Scotland PC 28-Nov-2002
(The High Court of Justiciary) The prosecution had accepted that the matter had been the subject of unreasonable delay, but wished to continue. The defendant sought a plea in bar, on the basis that continuing would infringe his rights.
Held: . .
Cited – Goatley v Her Majesty’s Advocate and Another HCJ 12-Jul-2006
. .
Cited – La Torre v Her Majesty’s Advocate HCJ 14-Jul-2006
The applicant resisted his extradition to Italy, saying that the provisions of Part 2 of the 2003 Act were engaged because the case started life before Italy ratified the Framework Decision and so adopted the EAW system. La Torre had been found . .
Cited – Hilali, Re; Regina (Hilali) v Governor of Whitewall Prison and Another HL 30-Jan-2008
The applicant had been detained pending his extradition. He complained that that continued detention became unlawful after fundamantal changes in the case. The telephone intercepts which were the basis of the extradition had been ruled unlawful and . .
Cited – King v The United Kingdom ECHR 26-Jan-2010
Mr King was accused of being a member of a gang engaged in a conspiracy to import large quantities of ecstasy into Australia. He appealed against extradition saying that this would interfere with his article 8 rights. He had in the United Kingdom . .
Cited – Asliturk v The City of Westminster Magistrates’ Court Admn 12-Aug-2010
The claimants sought judicial review of the respondents’ refusal to order their discharge from extradition proceedings. The extradition hearing had not been commenced within the time specified in section 74. Though listed, through a prison error, . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Cited – AA v The United Kingdom ECHR 20-Sep-2011
. .
Cited – Launder v The United Kingdom ECHR 8-Dec-1997
The Commission considered the admissibility of a complaint that the United Kingdom would violate articles 2, 3, 5, 6 and 8 if it extradited him to the Hong Kong Special Administrative Region.
Held: The application was manifestly ill-founded: . .
Cited – Aronica v Germany ECHR 18-Apr-2002
(Decision as to admissibility) . .
Cited – AA v The United Kingdom ECHR 28-Apr-2010
. .
Cited – Ahmad and Aswat v United Kingdom ECHR 6-Jul-2010
It will only be in exceptional circumstances that an applicant’s private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition. Recalling that there is no right in the Convention not to be . .
Appeal from – BH and Another v HM Advocate HCJ 29-Jul-2011
. .
Cited – Office of the King’s Prosecutor, Brussels v Cando Armas and others HL 17-Nov-2005
The defendant resisted extradition to Brussels saying that the offence had been committed in part in England. He had absconded and been convicted. Application was made for his return to serve his sentence. The offences associated with organisation . .
Cited – Bermingham and others v The Director of the Serious Fraud Office QBD 21-Feb-2006
Prosecution to protect defendant not available
The claimants faced extradition to the US. They said that the respondent had infringed their human rights by deciding not to prosecute them in the UK. There was no mutuality in the Act under which they were to be extradited.
Held: The Director . .
Cited – Nunez v Norway ECHR 28-Jun-2011
Article 8 rights can be sufficient to tip the balance in favour against deportation of an immigrant. . .

Cited by:
Cited – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Cited – Kapri v The Lord Advocate (Representing The Government of The Republic of Albania) SC 10-Jul-2013
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in . .
Cited – Lord Advocate (Representing The Taiwanese Judicial Authorities) v Dean SC 28-Jun-2017
(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Scotland, Extradition, Family

Updated: 01 November 2021; Ref: scu.460538

Pilecki v Circuit Court of Legnica, Poland: HL 6 Feb 2008

The defendant appealed against an extradition order made under a European Arrest Warrant to ensure that he served a sentence of imprisonment in Poland. The warrant was in respect of several sentences, some of which were for more and some for less than four months. The statement did not allow the court to differentiate between the sentences. The House was asked whether it had to be shown that the sentence that was imposed in respect of each offence, taken on its own, was at least four months or whether it is sufficient, where the person has been convicted of several offences and an aggregated sentence has been imposed on him, that the aggregated sentence was for four months or a greater period.
Held: In a case where each of the original sentences was for conduct satisfying all the other requirements for an extradition offence, it was enough for the warrant to specify the cumulative sentence. If it exceeded four months it was irrelevant that some of the original sentences might have been less than that.
The difficulty was that the words implementing the Eurpean decision was in a compressed form. The case of Pupino required the UK courts to interpret its law in the light of the wording of the Framework Decision. Applying this, the district judge was entitled to find that the European arrest warrants satisfied the requirements of section 2(2)(b) of the 2003 Act and were accordingly Part 1 warrants, that effect had to be given to the extradition procedure and that the offences constituted by the appellant’s conduct taken as a whole fell within the definition of an extradition offence in section 65(3).

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury
[2008] UKHL 7, [2008] 1 WLR 325, [2008] 4 All ER 445
Bailii
Extradition Act 2003 65(3)(c), Extradition Act 2003 (Multiple Offences) Order 2003 (SI 2003/3150)
England and Wales
Citing:
Appeal from – Pilecki v Circuit Court of Legnica, Poland Admn 31-Jul-2007
Extradition was sought of the defendant to Poland. The defendant challenged the validity of the European Arrest Warrant, saying that it listed offences for which he was sentenced to less than four month’s imprisonment, and that sufficient . .
Cited – Office of the King’s Prosecutor, Brussels v Cando Armas and others HL 17-Nov-2005
The defendant resisted extradition to Brussels saying that the offence had been committed in part in England. He had absconded and been convicted. Application was made for his return to serve his sentence. The offences associated with organisation . .
Cited – Dabas v High Court of Justice, Madrid HL 28-Feb-2007
The defendant sought to appeal his extradition to Spain to face terrorism charges. He complained that the certificate required under the 2003 Act could not be the European arrest warrant itself, that the offence did not satisfy the double . .
Cited – Trepac v County Court In Trencin Slovak Republic Admn 22-Nov-2006
The court heard an application for an extradition order from the Slovak Republic, a category 1 territory which had imposed a single sentence in respect of two offences which appeared to have been committed on the same day: attempted murder and . .
Cited – Criminal proceedings against Pupino ECJ 16-Jun-2005
ECJ (Grand Chamber) Police and judicial cooperation in criminal matters – Articles 34 EU and 35 EU – Framework Decision 2001/220/JHA – Standing of victims in criminal proceedings – Protection of vulnerable . .
Cited – Hilali, Re; Regina (Hilali) v Governor of Whitewall Prison and Another HL 30-Jan-2008
The applicant had been detained pending his extradition. He complained that that continued detention became unlawful after fundamantal changes in the case. The telephone intercepts which were the basis of the extradition had been ruled unlawful and . .

Lists of cited by and citing cases may be incomplete.

European, Extradition

Updated: 02 November 2021; Ref: scu.264278

B v The District Court In Trutnov and Another (Two Czech Judicial Authorities): Admn 15 Apr 2011

In each case the defendant argued that his extradition would interfere with his article 8 rights to private and family life.
Held: Silber J said: ‘It is clear that the approach of the courts to article 8 rights has to be radically different in extradition cases . . because of the very important obligation of the state to ensure that those who are to be investigated, prosecuted or imprisoned for criminal offences are returned to those countries.’

Silber J
[2011] EWHC 963 (Admin)
Bailii
European Convention on Human Rights 8
England and Wales
Cited by:
Incorrect – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .

Lists of cited by and citing cases may be incomplete.

Extradition, Human Rights

Updated: 01 November 2021; Ref: scu.432844

Norris v United States of America and others: HL 12 Mar 2008

The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would be wrong in principle to decide that it was: ‘The common law recognised that an agreement in restraint of trade might be unreasonable in the public interest, and in such cases the agreement would be held to be void and unenforceable. But unless there were aggravating features such as fraud, misrepresentation, violence, intimidation or inducement of a breach of contract, such agreements were not actionable or indictable.’ and ‘the wider construction should prevail. In short, the conduct test should be applied consistently throughout the 2003 Act, the conduct relevant under Part 2 of the Act being that described in the documents constituting the request (the equivalent of the arrest warrant under Part 1), ignoring in both cases mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence. ‘
Lord Bingham of Cornhill said: ‘The common law recognised that an agreement in restraint of trade might be unreasonable in the public interest, and in such cases the agreement would be held to be void and unenforceable. But unless there were aggravating features such as fraud, misrepresentation, violence, intimidation or inducement of a breach of contract, such agreements were not actionable or indictable.’

Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury
[2008] UKHL 16, [2008] 2 All ER 1103, [2008] 2 WLR 673
Bailii, HL
England and Wales
Citing:
Appeal from – Norris v United States of America and others; (Goldshield Group plc intervening) Admn 25-Jan-2007
The defendant was the former chief executive of a company manufacturing carbon products internationally. His extradition to the US was sought on the basis that he had conspired in a dishonest price-fixing conspiracy.
Held: The secrecy of such . .
Cited – Jones v North 1875
Four parties were invited to tender for the supply of stone to a public authority. They agreed that one would buy stone from the others and submit the lowest tender, two parties were to submit a higher tender and the fourth party was to submit no . .
Cited – Mogul Steamship Company Limited v McGregor Gow and Co QBD 10-Aug-1885
Ship owners formed themselves into an association to protect their trading interests which then caused damage to rival ship owners. The plaintiffs complained about being kept out of the conference of shipowners trading between China and London.
Cited – Mogul Steamship Company Limited v McGregor Gow and Co CA 2-Jul-1889
Ship-owners formed an association which in this action others claimed to be a tortious conspiracy.
Held: There is a cause of action against the conspirators where there is an agreement which constitutes an indictable conspiracy and that . .
Cited – Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company HL 1894
Exceptions to Freedom to Trade
The purchaser of the goodwill of a business sought to enforce a covenant in restraint of trade given by the seller.
Held: At common law a restraint of trade is prima facie contrary to public policy and void, unless it can be shown that the . .
Cited – Mogul Steamship Co Ltd v McGregor, Gow and Co HL 18-Dec-1891
An association of shipowners agreed to use various lawful means to dissuade customers from shipping their goods by the Mogul line.
Held: The agreement was lawful in the sense that it gave the Mogul Company no right to sue them. But (majority) . .
Cited – Attorney General of the Commonwealth of Australia v Adelaide Steamship Company PC 1913
ag_adeleaidePC1913
There was an agreement between a group of colliery owners and a group of shipowners which was ancillary to an agreement between the colliery owners themselves. Each agreement was in restraint of trade.
Held: Lord Parker explained the doctrine . .
Cited – North Western Salt Co Ltd v Electrolytic Alkali Co Ltd CA 1913
A restrictive agreement was challenged. Held (majority): the agreement was in restraint of trade, and so unenforceable, despite the defendants’ failure to plead this defence. Farwell LJ said: ‘In the present case, no circumstances in my opinion . .
Cited – Rawlings v General Trading Co CA 1921
Prospective bidders at an auction of military surplus stores agreed that only one should bid. Thus the defendant was to bid on their joint account, and the goods purchased were to be shared equally, each paying half the purchase price. The goods . .
Cited – Rawlings v General Trading Co 1920
Prospective bidders at an auction of military surplus stores had agreed that one should bid for their joint account, and the goods purchased were to be shared equally, each paying half the purchase price. The goods were knocked down to the . .
Mentioned – North Western Salt Co Ltd v Electrolytic Alkali Co Ltd HL 1914
Appeal allowed. The onus of demonstrating that a restraint is reasonable as between the interested parties is on the party alleging it to be so. The Court should be slow to strike down clauses freely negotiated between parties of equal bargaining . .
Cited – British Airways Board v Laker Airways Limited HL 1985
The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
Held: The action in the US were unlawful . .
Cited – Crofter Hand Woven Harris Tweed Company Limited v Veitch HL 15-Dec-1941
The plaintiffs sought an interdict against the respondents, a dockers’ union, who sought to impose an embargo on their tweeds as they passed through the port of Stornoway.
Held: A trade embargo was not tortious because the predominant purpose . .
Cited – British Airways Board v Laker Airways Limited 1984
Laker began an action in the US seeking damages under the US Sherman and Clayton Acts against other airlines, including British Airways and British Caledonian Airways. They said that the other airlines had combined in a conspiracy to undermine . .
Cited – British Airways Board v Laker Airways Limited CA 2-Jan-1984
The plaintiffs sought an injunction to restrain the defendant from pursuing an action in the US. That action alleged conspiracy by the plaintiffs to work together to put the defendant out of business on the North Atlantic route by anticompetitive . .
Cited – Rex v De Berenger 1814
The defendants were successfully prosecuted for conspiring by false rumours to raise the price of the public funds, causing loss to those who bought during this temporary rise. . .
Cited – Regina v Lewis 1869
The defendants were convicted of conspiring to obtain money by divers false pretences and deceptive practices. . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – Scott v Brown, Doering, McNab and Co 1892
The plaintiff sought rescission of a contract for the purchase of shares, but failed because the contract had been entered into with the sole object of rigging the market by inducing the public to believe that there was a real market for the shares . .
Cited – Regina v Rimmington; Regina v Goldstein HL 21-Jul-2005
Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Government of the United States of America v McCaffery HL 1984
Extradition was sought under the Treaty between the Government of the United Kingdom and the Government of the United States of America. It was an ‘exceptional accusation case’, because article III of the Treaty provides that, in addition to the . .
Cited – In re Nielsen HL 1984
The House considered the role of the metropolitan magistrate under section 9 and 10 of the 1870 Act in the context of an application for extradition under the treaty between Denmark and the United Kingdom. At section 9 hearings it had been the . .
Cited – Hashman and Harrup v The United Kingdom ECHR 25-Nov-1999
The defendants had been required to enter into a recognisance to be of good behaviour after disrupting a hunt by blowing of a hunting horn. They were found to have unlawfully caused danger to the dogs. Though there had been no breach of the peace, . .
Cited – SW v The United Kingdom; CR v United Kingdom ECHR 22-Nov-1995
Criminal Law Change not retrospective
The law that marital rape was an offence, was not to be treated as retrospective despite being a common law change. The Court rejected complaints by two applicants who had been found guilty of raping their wives which was an undoubted extension of . .
Cited – Government of the United States of America v McCaffery HL 1984
Extradition was sought under the Treaty between the Government of the United Kingdom and the Government of the United States of America. It was an ‘exceptional accusation case’, because article III of the Treaty provides that, in addition to the . .
Cited – Government of Canada v Aronson; Director of Public Prosecutions v Aronson HL 20-Jul-1989
The Canadian Government asked for the arrest of the defendant and for his return to Canada to face 78 allegations in Canada. The magistrate had determined that there was sufficient evidence in 66 cases. The detainee said that 69 offences were not . .
Cited – Regina v Secretary of State for Home Department ex Parte Admn 3-Mar-1997
The section imposed the conduct test as set out in Nielsen, not the narrower approach adopted in Aronson. . .
Cited – United States of America v McVey 19-Nov-1992
(Supreme Court of Canada) La Forest J said: ‘Consistent with the general principle that extradition laws should be liberally construed so as to achieve the purposes of the Treaty, a much less technical approach to extradition warrants and to common . .
Cited – Edwards v Government of United States of America Admn 31-Jul-2007
Sedley LJ discussed and rejected the argument that ‘the analogue of the warrant is the request’ in extradition procedure and said: ‘Here, as in Dabas, the question is what is ‘the conduct’ which has to amount to an extradition offence? Is it the . .
Cited – Dabas v High Court of Justice, Madrid HL 28-Feb-2007
The defendant sought to appeal his extradition to Spain to face terrorism charges. He complained that the certificate required under the 2003 Act could not be the European arrest warrant itself, that the offence did not satisfy the double . .
Cited – In Re Ismail (Application For Writ of Habeas Corpus) (On Appeal From A Divisional Court of The Queen’s Bench Division) HL 20-Aug-1998
The term ‘Accused person’ for the purposes of extradition can include a person yet to be charged. Allowance are to be made for foreign systems, and should recognise the purpose of the legislation and includes the desire to interview or where a . .
Cited – Office of the King’s Prosecutor, Brussels v Cando Armas and others HL 17-Nov-2005
The defendant resisted extradition to Brussels saying that the offence had been committed in part in England. He had absconded and been convicted. Application was made for his return to serve his sentence. The offences associated with organisation . .
Cited – Bermingham and others v The Director of the Serious Fraud Office QBD 21-Feb-2006
Prosecution to protect defendant not available
The claimants faced extradition to the US. They said that the respondent had infringed their human rights by deciding not to prosecute them in the UK. There was no mutuality in the Act under which they were to be extradited.
Held: The Director . .
Cited – Regina v Governor of Belmarsh Prison and Another, Ex Parte Gilligan; Regina v Governor of Exeter Prison and Another, Ex Parte Ellis HL 1-Dec-1999
Provided there was sufficient correspondence between the offence alleged to have taken place in Ireland and a serious offence in England, it was proper to order his return to Ireland under an Irish warrant. There is no extradition treaty between the . .
Cited – Regina v Secretary of State for Home Department, ex parte Christian Norgren Admn 18-Feb-2000
The extradition of the defendant was requested by the US for breaches of insider dealing legislation. He claimed the issue of the order by the Home Secretary claiming it was not an extradition crime since at the time, the English equivalent offence . .
Cited – Re Collins (No 3) 1905
(Canada) The United States sought to extradite Collins on a charge of perjury which was alleged to have taken place when he made an affidavit containing a wilfully false statement of fact in the course of an action of alimony in California. Many . .
Cited – Wellington, Regina (on the Application of) v Secretary of State for the Home Department Admn 18-May-2007
In extradition proceedings the accused has no right to disclosure of evidence to the same extent and of the same kind which would be available in domestic proceedings.
Laws LJ said that a prison sentence without chance for parole might . .
Cited – United States of America, Regina (on the Application of) v Bow Street Magistrates’ Court Admn 6-Sep-2006
The defendant a serving prisoner sought an adjournment of his extradition to a time closer to the end of the sentence he was to serve in England.
Held: The court had sympathy with the argument that where the district judge is being invited to . .
Cited – Regina v Governor of Pentonville Prison, Ex parte Narang; Union of India v Narang HL 1978
The House considered an extradition request.
Held: Lord Keith of Kinkel said it would be sufficient to establish the primary facts on the balance of probabilities and for the court to form an opinion upon the facts established. It was . .
Cited – Jenkins v United States of America; Benbow v United States of America Admn 25-May-2005
. .
Cited – In Re Khalid Al-Fawwaz (Application for a Writ of Habeas Corpus) (on Appeal From a Divisional Court of the Queen’s Bench Division) HL 17-Dec-2001
The fact that a crime for which extradition was sought was extra-territorial one to the country making the request, was not enough to counter the application. The schedule required the person to be ‘accused or have been convicted of an extradition . .
Cited – Kakis v Government of the Republic of Cyprus HL 1978
Kakis’ extradition was sought by Cyprus in relation to an EOKA killing in April 1973. Although a warrant for Kakis’ arrest had been issued that very night, he had escaped into the mountains and remained hidden for 15 months. Subsequently, he settled . .

Cited by:
Cited – A, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
Cited – GG Plc and Others, Regina v; Regina v Goldshield Group plc and Others HL 12-Mar-2008
The defendants faced charges of conspiracy to fix and maintain the prices of prescription drugs.
Held: An indictment making such allegations must identify and particularise the aggravating acts which took such a conspiracy to the level of a . .
See Also – Norris v Government of The United States of America and Another Admn 15-May-2009
. .
See Also – Norris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .

Lists of cited by and citing cases may be incomplete.

Extradition

Leading Case

Updated: 01 November 2021; Ref: scu.266166

In re Coppin: 1866

The French sought to extradite Coppin who had been convicted by a court in Paris in his absence in a conviction ‘par contumace’. That conviction might be annulled if he surrendered to the court’s jurisdiction, when he would be tried again for the offence with which he had been charged, in exactly the same way as if no proceedings had been taken against him.
Held: Coppin had to be treated as an accused person for extradition purposes. Such a trial would not differ from that of a party who was put on his trial without any previous condemnation: ‘But, if, in order that no part of the argument for the prisoner may be disregarded, I should assume that it has been established that the judgment par contumace does work some prejudice to the party upon the trial, either by reducing the amount of necessary proof, or by changing its character, or by making him liable to costs, how could that possibly take him out of the category of accused persons? He has ceased to be a person condemned, because his condemnation is annulled upon his appearance, and he is to take his trial for offences with which he stands charged. What better, I ought rather to say what other, description of him could be given than that of a person accused?’

Lord Chelmsford LC
(1866) LR 2 ChApp 47
England and Wales
Cited by:
Cited – In re Guisto (application for a writ of Habeas Corpus) (Criminal Appeal from Her Majesty’s High Court of Justice) HL 3-Apr-2003
The applicant challenged an order for his extradition to the US. He had been convicted in his absence having absconded from bail.
Held: He had been arrested and held on the basis that he was a convicted person, but the procedure should have . .
Cited – Caldarelli v Court of Naples HL 30-Jul-2008
The appellant challenged his extradition saying that the European Arrest Warrant under which he was held wrongly said that he was convicted, whilst he said he was wanted for trial. He had been tried in his absence, and the judgment and sentence were . .

Lists of cited by and citing cases may be incomplete.

Crime, Extradition

Leading Case

Updated: 01 November 2021; Ref: scu.180426

Grundza, intervening party – Krajska prokuratura Preso: ECJ 11 Jan 2017

Double criminality test for extradition

(Judgment) References for a preliminary ruling – Judicial cooperation in criminal matters – Framework Decision 2008/909/JHA – Article 7 – Condition of double criminality – Article 9 – Ground for non-recognition and non-enforcement based on the lack of double criminality – National of the executing State convicted in the issuing State for failure to comply with a decision issued by a public authority

[2017] WLR(D) 13, [2017] EUECJ C-289/15
Bailii, WLRD
European

Extradition

Updated: 01 November 2021; Ref: scu.573248

Government of the United States of America v McCaffery: HL 1984

Extradition was sought under the Treaty between the Government of the United Kingdom and the Government of the United States of America. It was an ‘exceptional accusation case’, because article III of the Treaty provides that, in addition to the offences listed in the Schedule, extradition shall be granted if the offence is punishable under the laws of both parties by imprisonment or other form of detention for more than one year or by the death penalty and the offence constitutes a felony under the law of the United States of America. Article VII provides that among the documents that must accompany the request for extradition are the text, if any, of the law defining the offence and prescribing the maximum punishment and, if the requesting party is the United States of America, a statement that the offence constitutes a felony under the law of the United States of America. Uncontradicted affidavit evidence by qualified lawyers was produced to the metropolitan magistrate to show that these requirements were satisfied. There was no need for the House to consider whether the magistrate had jurisdiction to consider that evidence in order to decide whether the requirements of the Treaty had been satisfied.
Lord Diplock said: ‘[T]he test whether a person in respect of whom a warrant for his arrest had been issued in a foreign state for an offence alleged to have been committed in that state was liable to be surrendered as a fugitive criminal, was not: whether the offence specified in the foreign warrant of arrest as that for which it had been issued was substantially similar to a crime under English law falling within the list of offences described in Schedule 1 to the Extradition Act 1870, as currently amended (i.e., the so-called ‘double criminality’ test). The right test, as stated by the Divisional Court in the Nielsen case, was: whether the conduct of the accused, if it had been committed in England would have constituted a crime falling within one or more of the descriptions included in that list.’

Lord Diplock
[1984] 1 WLR 867, [1984] 2 All ER 570
Extradition Act 1870
England and Wales
Cited by:
Cited – In re Guisto (application for a writ of Habeas Corpus) (Criminal Appeal from Her Majesty’s High Court of Justice) HL 3-Apr-2003
The applicant challenged an order for his extradition to the US. He had been convicted in his absence having absconded from bail.
Held: He had been arrested and held on the basis that he was a convicted person, but the procedure should have . .
Cited – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Cited – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .

Lists of cited by and citing cases may be incomplete.

Extradition

Leading Case

Updated: 01 November 2021; Ref: scu.180428

In re Nielsen: HL 1984

The House considered the role of the metropolitan magistrate under section 9 and 10 of the 1870 Act in the context of an application for extradition under the treaty between Denmark and the United Kingdom. At section 9 hearings it had been the invariable practice, ‘so far as living memory stretches’, for the magistrate to receive evidence of the law of the requesting state designed to show that the offence of which the fugitive was accused in that state was ‘substantially similar’ or ‘similar in concept’ to the relevant extradition offence, as construed according to English law.
Held: In an application for extradition, it was for the Secretary of State to specify the crime or crimes for which the fugitive criminal’s extradition was being requested, and the District Judge had no jurisdiction to inquire into or receive evidence of the criminal law of the foreign state. It did not however follow that the District Judge was confined by the way in which the case was described in the order to proceed as to the category into which the appellant’s case fell.
The list of exradition crimes provided in the schedule, described the 19 ‘extradition crimes’ in general terms and popular language.
Lord Diplock said: ‘[T]he magistrate is not concerned with what provision of foreign criminal law (if any) is stated in the warrant to be the offence which the person was suspected of having committed and in respect of which his arrest was ordered in the foreign state.’

Lord Diplock
[1984] AC 606, [1984] 2 All ER 81, (1983) 79 Cr App R 1, [1984] 2 WLR 737
Extradition Act 1870 10
England and Wales
Cited by:
Cited – In re Guisto (application for a writ of Habeas Corpus) (Criminal Appeal from Her Majesty’s High Court of Justice) HL 3-Apr-2003
The applicant challenged an order for his extradition to the US. He had been convicted in his absence having absconded from bail.
Held: He had been arrested and held on the basis that he was a convicted person, but the procedure should have . .
Cited – Office of the King’s Prosecutor, Brussels v Cando Armas and others HL 17-Nov-2005
The defendant resisted extradition to Brussels saying that the offence had been committed in part in England. He had absconded and been convicted. Application was made for his return to serve his sentence. The offences associated with organisation . .
Cited – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Preferred – Regina v Secretary of State for Home Department ex Parte Admn 3-Mar-1997
The section imposed the conduct test as set out in Nielsen, not the narrower approach adopted in Aronson. . .
Cited – VB and Others v Westminster Magistrates SC 5-Nov-2014
Extraditions to follow normal open justice rules
Application was made by Rwanda for the extradition of four individuals to face crimes said to have been committed during their civil war. Witnesses were prepared to give evidence but only in private and not being seen by the representatives of . .

Lists of cited by and citing cases may be incomplete.

Crime, Extradition

Leading Case

Updated: 31 October 2021; Ref: scu.180427

Zakrzewski v The Regional Court In Lodz, Poland: SC 23 Jan 2013

The appellant was subject to an extradition request. He objected that the request involved an aggregation of sentences and that this did not meet the requirement sof the 2003 Act. He had been arrested under the arrest warrant, but during his trial in the UK for offences here, he had asked for the four outstanding sentences in Poland to be aggregated which they were. The prosecutor now appealed against a decision that the European Arrest Warrant (EAW) no longer stated the sentences he was to serve.
Held: The appeal was formally dismissed because in the interim the defendant had voluntarily returned to Poland. However the Court gave its opinion that the appeal would have been allowed.
The EAW’s validity depended on whether the prescribed particulars were given, and not on whether they were correct. A defendant may not challenge its validity with extraneous evidence. Since this is true of information in an EAW wrong at the time of issue, it remained true for information which was correct at the time of issue, but ceased to be correct due to subsequent events. The EAW was either valid or not valid, and did not change over time. This did not mean that nothing could be done to correct prescribed particulars which later become inaccurate, but the remedy must be at the stage when the court is deciding whether to extradite.
I cannot agree with Lloyd Jones J that the failure of the warrant to specify the ‘current operative sentence’ was fatal. The sentence of the court will rarely be the ‘current operative sentence’, since the period to be served will commonly be affected by a variety of factors, such as remission or parole. As the cases on aggregation procedure show, they may also be affected by aspects of criminal procedure which will vary from one jurisdiction to another without affecting the application of the ordinary criteria for extradition or undermining the purpose of the Framework Decision or Part I of the Act.’

Lord Neuberger, President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption
[2013] UKSC 2, UKSC 2012/07 2
Bailii, Bailii Summary, SC Summary, SC
Extradition Act 2003 2(6)(e), Council Framework Decision 2002/584/JHA of 13 June 2002
England and Wales
Citing:
Appeal from – Zakrzewski v District Court In Torun, Poland and Another Admn 7-Feb-2012
An EAW had been issued against Z based on four convictions by Polish courts for which he had received aggregated sentences of 45 months, as recorded in the EAW. After Mr Zakrzewski had been brought before the District Judge (and the hearing of his . .
Cited – Office of the King’s Prosecutor, Brussels v Cando Armas and others HL 17-Nov-2005
The defendant resisted extradition to Brussels saying that the offence had been committed in part in England. He had absconded and been convicted. Application was made for his return to serve his sentence. The offences associated with organisation . .
Cited – Dabas v High Court of Justice, Madrid HL 28-Feb-2007
The defendant sought to appeal his extradition to Spain to face terrorism charges. He complained that the certificate required under the 2003 Act could not be the European arrest warrant itself, that the offence did not satisfy the double . .
Cited – Criminal Court At The National High Court, 1st Division (A Spanish Judicial Authority) v Murua Admn 8-Oct-2010
. .
Cited – Assange v The Swedish Prosecution Authority SC 30-May-2012
The defendant sought to resist his extradition under a European Arrest Warrant to Sweden to face charges of sexual assaults. He said that the prosecutor who sought the extradition was not a judicial authority within the Framework Decision.
Cited – Regina v Bow Street Magistrates ex parte Government of the United States of America; In re Allison HL 2-Sep-1999
A person within an organisation who was authorised to access some data on a computer system at a particular level, could exceed his authority by accessing data at a level outside that authority. The unauthorised access offence under the 1990 Act was . .

Cited by:
Cited – Goluchowski and SAS v District Court and Circuit Court In Poland SC 29-Jun-2016
The appellants challenged the effectiveness of European Arrest Warrants, saying that the requests were deficient in not providing adequate details of warrants issued in support of the decisions. They had been convicted and sentenced to terms of . .

Lists of cited by and citing cases may be incomplete.

Extradition

Updated: 31 October 2021; Ref: scu.470524

Hoholm v The Government Of Norway: Admn 26 Jun 2009

The defendant appealed against an order granting her extradition to Norway.
Held: Though the defendant had not raised the issue of the required double criminality before the district judge, she would be allowed to do so on appeal because of the threat to her liberty. She was charged with an offence of ‘causing a minor to be unlawfully . . kept abducted’. The charge was not to be amplified by the statement of facts supplied with the request. The appeal was allowed.
Lord Justice Stanley Burnton and Mr Justice Wilkie
[2009] EWHC 1513 (Admin)
Bailii, Times
Extradition Act 2003 103(1)
England and Wales

Updated: 14 October 2021; Ref: scu.347253

Miao v Government of The United States of America: Admn 7 Aug 2020

‘Rolled-up’ application under section 103(1) of the Extradition Act 2003 (‘the 2003 Act’) for permission to appeal against the decision of District Judge Richard Blake on 31 May 2019 to send the applicant’s case to the Secretary of State under section 87(3) of that Act. The Government of the United States has requested the applicant’s extradition.
Lord Burnett of Maldon CJ
[2020] EWHC 2178 (Admin)
Bailii
England and Wales

Updated: 13 October 2021; Ref: scu.653052

Szelagowski v Regional Court of Piotrkow Trybunalski Poland: Admn 1 Apr 2011

A clerk was instructed, after filing a notice of appeal, to serve it on the Crown Prosecution Service with a letter on which he wrote the relevant Crown Office reference. The letter was expressed to cover the delivery of the appellant’s notice and grounds and to request a signature by way of receipt, and the Crown Prosecution Service gave such a receipt. But the clerk handed over the wrong accompanying package. Nothing in the package handed over or in the covering letter could be described as a notice of appeal.
Held: There was no valid appeal. Sullivan LJ observed that: ‘this case demonstrates how a rigid statutory time limit which cannot be extended under any circumstances can work injustice in practice, but the statutory scheme is very clear’.
Sullivan LJ, Collins J
[2011] EWHC 1033 (Admin)
Bailii
Extradition Act 2003
England and Wales
Cited by:
Cited – Halligen v Secretary of State for The Home Department Admn 21-Jun-2011
The Home Secretary argued that the defendant’s attempted appeal against an extradition order was out of time and that accordingly the court had no jurisdiction to hear an appeal. Notice of service of the appeal was one day out of time.
Held: . .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.441057

Brown (AKA Bajinja) and Others v Government Of Rwanda: Admn 8 Apr 2009

‘Whether a relativist approach to questions of fact relating to the assessment of fair trial rights is justified in an extradition case for genocide so as to render the absence of specific protections such as the opportunity to call defence witnesses a flagrant denial of justice only where there is a real risk that the right will be absent as opposed to being merely compromised.’
[2009] EWHC 1473 (Admin)
Bailii
England and Wales

Updated: 08 October 2021; Ref: scu.347236