swarb.co.uk - law index

Extradition - From: 2001 To: 2001

This page lists 15 cases, and was prepared on 21 May 2019.

Constitutional law -- Charter of Rights -- Fundamental justice -- Extradition -- Whether considerations relating to fundamental justice engaged at committal stage of extradition process -- Canadian Charter of Rights and Freedoms, s. 7.

Extradition -- Extradition process -- Scope of Charter jurisdiction of extradition judge at committal stage -- Whether mobility rights and considerations of fundamental justice engaged at committal stage of extradition process -- Whether extradition judge competent to grant Charter remedies -- Canadian Charter of Rights and Freedoms, ss. 6, 7, 24 -- Extradition Act, R.S.C. 1985, c. E-23, s. 9(3).

Extradition -- Extradition process -- Remedies -- Charter jurisdiction -- Abuse of process -- Role of appellate courts.

Extradition -- Evidence -- Fresh evidence -- Fugitive seeking to adduce fresh evidence in Court of Appeal -- Evidence including threats uttered by U.S. prosecutor -- Whether Court of Appeal erred in dismissing fugitive’s motion to adduce fresh evidence -- Whether fresh evidence revealed abuse of process -- If so, whether stay of proceedings should be granted.

Extradition -- Evidence -- Admissibility -- Affidavit evidence referring to fugitive’s allegedly unlawful activities provided by alleged co-conspirators -- Alleged co-conspirators awaiting sentence when affidavit material prepared and sworn -- Fugitive claiming that co-conspirators’ evidence infringed principles of fundamental justice and constituted abuse of process -- Whether extradition judge and Court of Appeal correct in refusing to exclude affidavit evidence -- Canadian Charter of Rights and Freedoms, ss. 7, 24.
1 Citers

[ Canlii ]
 
United States of America v Cobb [2001] 1 SCR 587; (2001) 197 DLR (4th) 46; (2001) 152 CCC (3d) 270; (2001) 41 CR (5th) 81; (2001) 81 CRR (2d) 226; (2001) 145 OAC 3
5 Apr 2001

McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ
Extradition, Commonwealth, Constitutional
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 extradition process -- Whether extradition judge ought to have waited for ministerial decision on surrender before granting stay -- Canadian Charter of Rights and Freedoms, ss. 7, 24 -- Extradition Act, R.S.C. 1985, c. E-23, s. 9(3).
The USA had indicted a large number of defendants, including the two Canadian appellants, on mail fraud charges. Many had submitted voluntarily to the Court in Pennsylvania and on sentencing one of them the trial judge had said "I want you to believe me that as to those people who don't come in and cooperate and if we get them extradited and they are found guilty, as far as I am concerned they are going to get the absolute maximum jail sentence that the law permits me to give."
About a week before the Canadian extradition hearing the American prosecuting attorney was interviewed on Canadian television and said: "I have told some of these individuals, 'look, you can come down and you can put this behind you by serving your time in prison and making restitution to the victims, or you can wind up serving a great deal longer sentence under much more stringent conditions' and describe those conditions to them."
Asked by the interviewer "How would you describe those conditions?", the attorney replied: "You are going to be the boyfriend of a very bad man if you wait out your extradition". That was understood by the Court to mean that they would be subject to homosexual rape. Asked then: "And does that have much of an impact on these people?", the attorney answered: "Well, out of the 89 people we have indicted so far, approximately 55 of them have said, 'We give up'". Held. The appela was alloed, and te extradition process was stayed.
Arbour J said: "By placing undue pressure on Canadian citizens to forego due legal process in Canada, the foreign state has disentitled itself from pursuing its recourse before the courts and attempting to show why extradition should legally proceed. The intimidation bore directly upon the very proceedings before the extradition judge . . [The judge] was also correct in concluding as he did that this was one of the clearest of cases where to proceed further with the extradition hearing would violate 'those fundamental principles of justice which underlie the community's sense of fair play and decency' (Keyowski [1988] 1 SCR 657, 658-659), since the requesting state in the proceedings, represented by the Attorney General of Canada, had not repudiated the statements of some of its officials that an unconscionable price would be paid by the appellants for having insisted on exercising their rights under Canadian law."

As to the argument based on the appellants not in fact having been dissuaded from exercising their procedural rights: "I find no merit in this argument. It may very well be that the threats of the severe and illegal consequences that may follow their resistance to extradition may have made the appellants more, not less, determined to resist their surrender. Frankly, this would have been quite understandable. The abuse of process here consists in the attempt to interfere with the due process of the court. The success or failure of that interference is immaterial."
1 Citers

[ Canlii ]

 
 Eidarous and Abdelbary v Governor of HM Prison Brixton and others (2); QBD 2-May-2001 - [2001] EWHC QB 426
 
Eidarous and Abdelbary v Governor of H M Prison Brixton, and Government of the United States of America [2001] EWHC Admin 298
2 May 2001
Admn

Extradition
Applications for writs of Habeas Corpus made in the context of extradition proceedings.
[ Bailii ]
 
Regina v Governor of Brixton Prison and Others Gazette, 13 September 2001
12 Jul 2001
QBD
Brooke LJ, Harrison J
Extradition, Human Rights
The applicant sought a writ of habeas corpus. He had been committed to prison pending extradition for murder to the USA. He argued that he should not be extradited because he would face a possible death penalty. The court refused the writ. The issue was not one to be faced at committal, but properly one to be addressed to the Secretary of State when the warrant was requested.

 
St John v United States of America and Another Times, 10 August 2001
12 Jul 2001
CA
Brooke LJ, Harrison J
Extradition, Human Rights
The applicant sought to challenge extradition proceedings on the grounds that it would be a breach of his human rights to allow him to be extradited to a country where he might face the death penalty, a penalty precluded under the Convention. The court held that the extradition proceedings themselves should not be affected by this question, but instead the issue should be addressed, if an order was made, at the point where the Secretary of State made the executive decision to return the prisoner, perhaps by seeking re-assurances from the requesting state about compliance with the convention. The risk of his being also dealt with for other offences not the subject of the extradition application should be dealt with in the same way.
European Convention on Human Rights Sixth Protocol Art 1

 
Regina v Secretary of State for Home Department ex parte Peter Elliot [2001] EWHC Admin 559
18 Jul 2001
Admn
Lord Justice Rose And Mr Justice Silber
Extradition, Human Rights
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 Secretary of State argued that an English court should not impose its standards on other countries (per Drozd). Held: Issues as to the fairness of a trial are best decided at the trial itself. The Hong Kong ordnance did include protections, and such offences might require special provisions. The Secretary's decision to extradite was not to be faulted.
Extradition Act 1989 12(1) - European Convention on Human Rights 6.2
1 Cites

[ Bailii ]
 
Pin Chakkaphak v Government of Thailand [2001] EWHC QB 158
27 Jul 2001
QBD
Mr Justice Harrison, Mr Justice Kennedy
Extradition
The claimant sought a writ of habeas corpus. The defendant had applied for his extradition, based on allegations of dishonesty in the management of a company. The actions alleged occurred in a period of financial stress, and it was agreed he was to take no personal benefit. The claimant asserted that there was no evidence of dishonesty. Given the accepted commercial practice at the time, no tribunal could properly find evidence of dishonesty, and the writ was granted.
[ Bailii ]
 
Einhorn v France 71555/01; [2001] ECHR 893
16 Oct 2001
ECHR

Human Rights, Extradition
The applicant had resisted extradition from France: " … the Court reiterates that it cannot be ruled out that an issue might exceptionally be raised under article 6 of the Convention by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of justice in the requesting country (see the Soering judgment cited above, p 45, § 113, and, mutatis mutandis, the Drozd and Janousek v France and Spain judgment of 26 June 1992, Series A no 240, p 34, para 110)."
1 Citers

[ Bailii ]
 
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 Times, 12 December 2001; Gazette, 01 February 2002; [2001] EWHC 980 (Admin); [2001] EWHC Admin 980; [2002] QB 887
23 Nov 2001
QBD
Lord Justice Rose and Mr Justice Pitchford
Extradition, Human Rights, Magistrates
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 the eventual court of trial to hear. Article 5 expressly required the lawfulness of a person's detention to be determined speedily by a court. The Magistrates' Court was the obvious and proper forum for this question. Existing case law which said that it was not for the Magistrates to decide whether the procedure as a whole was an abuse did not restrict this Human Rights power.
Extradition Act 1989 11(3) Sch1 Para 6(1) - European Convention on Human Rights 5
1 Cites

1 Citers

[ Bailii ]
 
Regina (Marais) v Governor of Brixton Prison and Another Times, 18 December 2001; Gazette, 06 February 2002
30 Nov 2001
QBD
Lord Justice Kennedy and Mr Justice Pitchford
Extradition, Human Rights
The process of extradition is not one itself involving the imposition of a criminal penalty, and therefore such proceedings were outside the ambit of the convention. The prisoner sought to challenge an extradition requested from South Africa, claiming an element of retrospectivity. The fact that at the time the offence was committed there was no extradition treaty wih South Africa did not create the situation where a heavier penalty was sought to be imposed than the penalty applicable at the time the criminal offence was committed.
European Convention on Human Rights art 5.1 - Extradition Act 1989 9


 
 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 - Times, 18 December 2001; [2001] UKHL 69; [2002] 2 WLR 101; [2002] 1 All ER 545; [2002] 1 AC 556
 
Regina (Oncel) v Governor of Brixton Prison and Another Times, 17 January 2002; Gazette, 06 March 2002; [2001] EWHC Admin 1142
19 Dec 2001
QBD
Lord Woolf, Lord Chief Justice and Mr Justice Ouseley
Extradition
A request had been made for the extradition of the applicant for offences for which he had already been tried and acquitted in Turkey. He said that the length of time since the offences made it unfair to return him, and that he faced the possibility of being tried twice for the same offence. Held: When a court considered a request for extradition, and in particular a plea that it would be oppressive for a prosecution to go ahead because of the length of time since the offence alleged, the court should take account also of any possible double jeopardy. The defendant did not strictly face double jeopardy since he was subject to an appeal by the prosecution which might still result in his conviction. Nevertheless the facts could be taken into account under the general rule about oppressive prosecutions, and some of the offences could also be categorised as political.
Extradition Act 1989 1(1) 6(3) 11(3)(b)
[ Bailii ]