K had been convicted and sentenced in his absence. His extradition was requested under an EAW which asserted that it was based upon an enforceable judgment, but that he had an unqualified right to be retried. He argued that the delay (since 2004 for the offence) was such as render the request unjust and oppressive. The court considered the delay rather after the trial in 2008, and concluded that the circumstances of the delay did not justify a finding that it would be unjust or oppressive to return the appellant, and that the public interest factors in favour of extradition outweighed the considerations relating to the appellant’s family and private life under article 8, even basing the ;latter finding from 2004. On appeal the High Court certified the question: ‘In circumstances where an individual has been convicted, but that conviction is not final because he has an unequivocal right to a retrial after surrender, is he ‘accused’ pursuant to section 14(a) of the 2003 Act, or ‘unlawfully at large’ pursuant to section 14(b) for the purposes of considering the ‘passage of time’ bar to surrender?’
Held: K’s appeal failed. The heart of the issue was the characterisation of the appellant as an accused person or a convicted person.
t the following principles should be applied by a court in this jurisdiction when
seeking to characterise a case as an accusation case or a conviction case [50]:
(1) The dichotomy drawn by the Framework Decision between accusation warrants and conviction warrants is a matter of EU law. The Framework Decision does not have direct effect but national implementing legislation should, so far as possible, be interpreted consistently with its terms.
(2) The court should seek to categorise the relevant facts by reference to their status and effects in the law and procedure of the member state of the requesting judicial authority.
(3) Ordinarily, statements made by the requesting judicial authority in the EAW or in supplementary communications will be taken to be an accurate account of its law and procedure but evidence may be admitted to contradict them.
(4) A person may properly be regarded as convicted for this purpose if the conviction is binding and enforceable under the law and procedure of the member state of the requesting authority.
(5) For this purpose, it is not a requirement that a conviction should be final in the sense of being irrevocable. In particular, a convicted person who has a right to a retrial may, nevertheless, be properly considered a convicted person for this purpose, provided that the conviction is binding and enforceable in the law and procedure of the member state of the requesting authority.
(6) While the view of the requesting judicial authority on the issue of characterisation cannot be determinative, the question whether a conviction is binding and enforceable will depend on the law of that member state.’
Lord Kerr, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lord Kitchin
[2019] UKSC 8, [2019] 2 All ER 655, [2019] 1 WLR 1586, UKSC 2017/0200
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, 2018 Dec 06 am Video, 2018 Dec 06 pm video
Extradition Act 2003, European Convention on Human Rights 8
England and Wales
Citing:
Appeal from – Konecny v District Court Czech Republic Admn 27-Sep-2017
. .
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 – Regina v Governor of Pentonville Prison, ex parte Zezza HL 1983
In the context of an application for extradition, where the conviction was a ‘conviction for contumacy’ that phrase is not defined. It does not have an ordinary meaning in the English language. ‘Contumacy’ indicates insubordination or disobedience . .
Cited – Bikar and Another, Regina (on the Application of) v Governor of HM Prison Brixton Admn 14-Feb-2003
The applicants, who had been convicted in absentia in the Czech Republic resisted their extradition under an accusation warrant on the ground that autrefois convict applied.
Held: As they had a right to request a new trial this was not a final . .
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 – 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 . .
Cited – Sonea v Mehedinti District Court Admn 23-Jan-2009
The appellant was arrested under a conviction warrant which stated that in his absence he had been tried and convicted in Romania and sentenced to ten years’ imprisonment. He appealed against an order for his extradition contending that because he . .
Cited – Gomes v Trinidad and Tobago HL 29-Apr-2009
Each appellant challenged orders for their extradition, saying that the delay had been too prolonged, and that detention in Trinidad’s appalling jails would be an infringement of their human rights.
Held: The House had to consider its own . .
Cited – Sandi v Craiova Court, Romania Admn 27-Nov-2009
Hickinbottom J observed that there is no reason why the same level of particularity of the circumstances of the offence is needed for a conviction warrant as for an accusation warrant. However, he went on to point out that, while the appropriate . .
Cited – Usti Nad Labem Regional Court (Czech Republic) v Janiga Admn 11-Mar-2010
Mr Janiga had absconded after the start of his trial in the Czech Republic. An EAW was issued. In the period between the issue of the warrant and the extradition hearing in the United Kingdom he was convicted and sentenced in his absence, although . .
Cited – Ruzicka v District Court of Nitra, Slovakia Admn 19-May-2010
An accusation warrant issued by the Slovakian judicial authority was valid notwithstanding the fact that Mr Ruzicka had already been convicted and sentenced in Slovakia because he had appealed against the conviction and sentence in circumstances in . .
Cited – Istanek, Regina (on The Application of) v District Court of Prerov, Czech Republic Admn 3-Feb-2011
The appellant had been convicted in the Czech Republic in his absence. He was entitled to a full retrial by virtue of section 306a of the Czech Penal code. A conviction EAW was issued for his surrender and his return was ordered. On behalf of the . .
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 – Campbell v Public Prosecutor of The Grande Instance Tribunal of St-Malo, France Admn 20-May-2013
Keith J was inclined to think that the appellant could not rely on the passage of time since the date of commission of the alleged offence because he faced a conviction warrant, but he nevertheless examined whether the delay from that date would . .
Cited – Rahman v County Court of Boulogne Sur Mer, France Admn 6-Oct-2014
A conviction warrant was founded on a conviction in absentia. It was common ground that Mr Rahman had had no notice of the proceedings leading to conviction and that the conviction could be set aside on his demand. The judge was referred to Campbell . .
Cited – Lysiak v District Court Torun Poland Admn 14-Oct-2015
In this conviction case, the Court attached great weight to the nine years the criminal proceedings in Poland took to come to trial and the further two and a half years it took for the conviction to be confirmed in appeal proceedings, when . .
Cited – Wisniewski and Others v Regional Court of Wroclaw, Poland and Others Admn 2-Mar-2016
The Court faced 3 appeals against extradition which raised issues as to the availability of the bar to extradition on the grounds of passage of time under section 14 of the 2003 Act in circumstances where a requested person had left the requesting . .
Cited – Zdziaszek ECJ 26-Jul-2017
Area of Freedom, Security and Justice : Judicial Cooperation In Criminal Matters : Opinion – Reference for a preliminary ruling – Urgent preliminary ruling procedure – Police and judicial cooperation in criminal matters – European arrest warrant – . .
Cited – Tupikas ECJ 26-Jul-2017
Area of Freedom, Security and Justice : Judicial Cooperation In Criminal Matters : Opinion – Reference for a preliminary ruling – Urgent preliminary ruling procedure – Police and judicial cooperation in criminal matters – European arrest warrant – . .
Cited – Imre v District Court In Szolnok (Hungary) Admn 14-Feb-2018
. .
Cited – Lewicki v Preliminary Investigation Tribunal of Napoli, Italy Admn 18-May-2018
. .
Lists of cited by and citing cases may be incomplete.
Extradition, Human Rights
Updated: 11 January 2022; Ref: scu.634241
