DELAY

The extradition of a UK national to Germany, to face trial for offences relating to his failure as an employer to pay employee social welfare contributions, was not barred under the Extradition Act 2003 s.12. The allegations were not encompassed within an earlier prosecution in Germany for tax-related offences so as to violate the double jeopardy principle.

[2017] EWHC 2602 (Admin)

The extradition of a Czech Republic national who had been convicted of serious fraud offences in his absence was not unjust or oppressive, nor did it constitute an interference with his ECHR art.8 rights or those of his partner, notwithstanding the nine-year delay between the date of sentence and certification of the European arrest warrant. The district judge had correctly identified the factors favouring and militating against extradition.

[2017] EWHC 2360 (Admin)

Where there were concurrent extradition and family proceedings in cases involving requested persons who had children who would be adversely impacted by their surrender to custody, it should be the exception, not the norm, for the extradition proceedings to await the outcome of the family proceedings. It would also be very rare for the Official Solicitor to intervene in extradition cases on behalf of a child.

[2017] EWHC 1978 (Admin)

Prisoners whose death sentences for murder had been commuted to long sentences of hard labour by way of presidential pardon had received lawful sentences. However, as some of those pardons had been granted in batches without any opportunity for individual representations, they required remission to the President for reconsideration.

[2017] UKPC 25

An applicant had not been sufficiently prompt and so was out of time to apply for judicial review of a decision by the Director of Public Prosecutions for Northern Ireland not to refer a sentence to the Court of Appeal for being unduly lenient. Neither a pending application for legal aid, nor an intention to try and change the DPP’s mind were reasonable objective excuses for applying late, and ordering the DPP to lodge a provisional notice of referral pending the outcome of the judicial review application was contrary to the legislative scheme and would cause hardship.

[2017] NIQB 66

The Court of Appeal refused to reopen an application for leave to appeal against sentence where the offender had been denied the opportunity of an oral hearing due to an administrative error. The court had the discretion to reopen a case in those circumstances, but the offender’s long delay in seeking to reopen her case meant that it would be inappropriate to exercise that discretion.

[2017] EWCA Crim 819

In the circumstances, the passage of time since the commission of a robbery offence and the requested person’s medical condition took the consequences of his extradition beyond hardship and into the realms of oppression.

Although there had been a lengthy unexplained delay in bringing criminal proceedings against an individual for an alleged crime of forgery in 2001, the public interest in honouring the UK’s extradition obligations outweighed his right to family life in the UK, and extradition would not be unjust or oppressive despite the passage of time.

The conclusion of the majority in R. (on the application of Whiston) v Secretary of State for Justice [2014] UKSC 39 that a prisoner lawfully sentenced to a determinate term of imprisonment by a competent court was unable to challenge their loss of liberty during that term on the ground that it infringed ECHR art.5(4) should be regarded as binding on all inferior courts, notwithstanding the fact that it was obiter.

[2017] EWHC 729 (Admin)

It was arguable that there was a continuing duty on judicial authorities issuing European arrest warrants to review the proportionality of extradition throughout the proceedings.

[2017] EWHC 571 (Admin)

An insurance company was not permitted to bring committal proceedings against two respondents for allegedly pursuing a fraudulent road traffic accident claim. Although the trial judge had found fraud to the balance of probabilities, the evidence had mainly been circumstantial and there was no strong prima facie evidence of fraud. Further, the insurance company had waited 18 months before bringing the proceedings.

Although an individual had been a victim of trafficking he had been a fugitive facing a robbery charge when he left Lithuania. Although he developed mental health problems there was no suggestion he was unable to resist the impulse to commit suicide. It was not unjust or oppressive to extradite him.

[2017] EWHC 336 (Admin)

In an extradition case involving a requested person who had children, the judge, whether at first instance or on appeal, had to pay particular attention to the interests of the children. In appropriate cases, that could only be properly achieved by the production of fresh evidence about and/or from the children.

[2017] EWHC 331 (Admin)

The Court of Appeal overturned a judge’s decision that the prosecution had failed to show exceptional circumstances justifying an extension to the two-year time limit for confiscation orders. The judge had had insufficient regard to the delays caused by the defendant, and any prejudice from the prosecution’s application for an adjournment of the confiscation hearing could have been met with a costs order.

[2017] EWCA Crim 33

In considering whether passage of time was a bar to extradition under the Extradition Act 2003 s.14, findings of oppression as a result of delay had, in principle, to be considered separately for each offence in a warrant or warrants. However, if it was not oppressive to extradite a person for an offence or offences, the impact of extraditing him for other offending or convictions was likely to be diminished.

[2017] EWHC 191 (Admin)

The court refused an extension of time for a refugee to apply for permission to appeal against his conviction for possessing identity documents with intent. Although the law had changed after his conviction so that he would have had a defence, the refugee had been released from prison, his licence had expired and the conviction was spent. No substantial injustice would occur if the appeal were not allowed to proceed.

[2017] EWCA Crim 4

Where European arrest warrants were based on aggregate sentences imposed under the Polish penal code on offenders who had re-offended before judgment was pronounced on an earlier offence, there was no breach of the principle of double jeopardy because the calculation of the aggregate sentences recognised and gave credit for sentences which had already been served in full.

[2017] EWHC 311 (Admin)

An offender was extradited to Poland to serve two outstanding sentences imposed over 12 years earlier despite evidence that his son had behavioural problems and that his partner might suffer mental illness as a result of caring for him alone. The public interest in the UK complying with its international extradition obligations and not being regarded as a haven for those fleeing foreign jurisdictions, the fact that the offender was a fugitive with substantial sentences still to be served, and that his son would continue to be cared for by his mother outweighed the factors militating against extradition.

[2016] EWHC 3755 (Admin)

There was no fault in the decision or reasoning of a First-tier tribunal judge who had allowed a criminal injuries compensation claim made 19 years earlier to be revived. Jurisprudence had developed since then and the judge had been entitled to apply the resulting guidance to a case of historic sex abuse.

[2016] EWHC 2745 (Admin)

An individual’s extradition to Poland was ordered to face prosecution for gang-related drug offence conspiracies where there were no reasonable grounds to believe that a decision to charge or try had not been taken, and extradition would not be oppressive, unjust or a disproportionate interference with his ECHR art.8 rights.

A district judge had not erred in ordering the extradition of an acknowledged fugitive to Poland to face prosecution for an offence of blackmail. Despite there being a lengthy delay in seeking the extradition due to the suspension of the prosecution case, the bar to extradition in the Extradition Act 2003 s.14 was not satisfied as the fugitive had known throughout that the prosecution was merely suspended and not concluded.

[2016] EWHC 3244 (Admin)

A requesting state’s failure to inform the court that an individual in extradition proceedings was entitled to a retrial, such that his extradition was initially refused but then subsequently ordered, was not an abuse of process. However, it was a breach of the public policy rule requiring all parties to bring their whole case before the court to be finally decided and was a factor that should be taken into account when considering the statutory bars to extradition.

[2016] EWHC 1766 (Admin)

A sentence of 10 months’ detention in a young offender institution, following a guilty plea to robbery, was reduced to six months where the judge had failed to take account of the age of the offender, who was 17 at the time of the offence and 18 at the time of sentence.

[2016] EWCA Crim 1261
[2016] EWHC 1495 (Admin)

It would be oppressive due to the passage of time to extradite an appellant to Poland to face fraud charges from 1999. His whereabouts had not been known until 2011, but a European arrest warrant had not been issued until 2015. He had been an alcoholic, but since 2010 had made significant changes, found training and employment and developed a network of friendships in his local community. The hardship caused by his extradition would be so severe as to constitute oppression.

The court held that it had jurisdiction to deal with an appeal by way of case stated despite the appellant having exceeded the time limit in the Magistrates’ Courts (Northern Ireland) Order 1981 art.146(9) by fifteen weeks. It also held that the “lack of knowledge” defence in the Public Processions (Northern Ireland) Act 1998 s.6(8) placed a legal rather than an evidential burden on those wishing to avail themselves of it.

[2016] NICA 11

Northern Ireland’s Prison Service’s policy of denying enhanced status under the Progressive Regimes and Earned Privileges Scheme to prisoners who had unsuccessfully appealed their convictions and applied to the Criminal Cases Review Commission seeking reference of their cases to the Court of Appeal was not irrational, unreasonable or unfair.

[2016] NIQB 18

An extraditee’s case was one of those rare ones where his and his family’s ECHR art.8 rights justified an order for his discharge.

[2016] EWHC 286 (Admin)

Where a requested person claimed his extradition ought to be refused because of the risk that he might commit suicide by reason of his mental condition, the threshold was high. The preventative measures taken by the European prisons were sufficient to meet the risk, given the presumptions that applied in relation to prison conditions under the EAW system.

Although initially it would have been appropriate to extradite an offender to Poland to serve the remainder of a nine-month sentence for various offences, administrative errors which lead to a significant delay in his appeal against extradition being determined and service of his outstanding sentence on remand, meant that extradition would be a disproportionate interference with his ECHR art.8 rights and/or an abuse of process.

[2016] EWHC 196 (Admin)

The rights of a Polish national and his family under ECHR art.8 were outweighed by the public interest in extraditing him to his native country to stand trial for a number of offences.

[2016] EWHC 198 (Admin)

A district judge should not have found that the factors in favour of extradition outweighed a requested person’s ECHR art.8 rights without a clear and specific finding as to the cause of a five-year delay in certifying and issuing a European arrest warrant.

The court overturned a district judge’s decision to extradite a Lithuanian individual accused of a swindling offence. There had been more than three years of culpable delay by the Lithuanian and UK authorities in accusing and locating him, during which time his family life had become deeply entrenched in the UK, and extradition would be disproportionate.

[2016] EWHC 16 (Admin)

A decision to maintain an investigation into a director of a bank with its main office in London, who had allegedly received a bribe, and had been convicted and sentenced in Russia for a separate but similar offence, was not oppressive where there was no significant overlap between the offences. The double jeopardy rule did not apply.

[2015] EWHC 4111 (Admin)

A judge had not erred in ordering the extradition of a British national to Spain to stand trial for a drug offence. He rightly concluded that extradition was not incompatible with ECHR art.8 and that the proportionality test under the Extradition Act 2003 s.21A had been met. Nor had he erred in refusing an oral application made at the final hearing to adjourn the case under s.21B.

[2015] EWHC 3466 (Admin)

There had been no reasonable basis for a judge to adjourn a criminal trial in circumstances where it appeared that the CPS had done nothing to prepare for trial and had offered no explanation for what had gone wrong in its preparation of the case for trial. The Crown should not think that it would always be granted at least one adjournment.

The court granted an extension of time and allowed the appeal of an offender who, 14 years after being sentenced, sought to argue that the judge should have given credit for time served in custody on remand. The offender had sufficiently explained his delay and could establish that the judge had intended to give credit.

[2015] EWCA Crim 2442

A middle-aged woman’s extradition to Poland for benefits fraud was not oppressive as she knew she was required to pay compensation during the four-year period when the sentence had been suspended but she had failed to do so. However, her extradition would not be ordered because of the unexplained seven-year delay in issuing a European arrest warrant, which was highly relevant for the purposes of her ECHR art.8 rights.

A district judge had not erred in imposing a prison sentence in default of a confiscation order, which had been made on consent, where the offender had delayed in realising assets, failed to pay the amount owed and not applied to vary or appeal the order despite having been given time to do so.

It would be disproportionate in terms of ECHR art.8 to extradite a 41-year-old family man to Poland on a conviction warrant where, without any fault on his part, it had taken some 10 years to secure his conviction and he had in the meantime established a family life in the UK.

[2015] EWHC 3098 (Admin)

An individual’s appeal against his extradition to France pursuant to a conviction warrant was adjourned pending a statement from the requesting authority confirming that he would have the opportunity to cross-examine witnesses at a retrial, and indicating its stance towards bail pending the retrial.

[2015] EWHC 3030 (Admin)

A sentencing judge had been entitled to give a discount of only 20 per cent to reflect the offender’s early guilty plea to a charge of dangerous driving where the offender had initially denied that he had been driving dangerously and had not indicated his proposed plea at the earliest opportunity, and where the driving had been incontestably dangerous.

[2015] EWCA Crim 1425

The court quashed an indeterminate sentence and replaced it with a hospital order and a restriction order pursuant to the Mental Health Act 1983 s.37 and s.41. If the option of a hospital order had been available at the time of sentence it would have been considered the more appropriate sentence, had the degree of the offender’s mental disorder been identified at that stage.

[2015] EWCA Crim 1249

A refusal to vacate a trial date for an alleged assault was quashed in order to allow a claimant-accused an opportunity to adduce expert evidence. The claimant had put forward cogent reasons for the evidence, and it had not been for the magistrates to say in advance that it would not be useful.

[2015] EWHC 2454 (Admin)

A district judge had not been wrong to conclude that a requested person’s extradition to face prosecution for two residential burglaries would not be a disproportionate interference with hisECHR art.8 rights. Although he was only 21 years old and had nine-month-old twin daughters in the UK, regard had to be had for the strong public interest in the UK fulfilling its international obligations and for an accused to stand trial to determine his guilt.

It was not oppressive to extradite an individual where the delay in issuing a European arrest warrant against him was due to a combination of the requesting state’s non-culpable administrative incompetence and the individual’s failure to be proactive when he was aware of the proceedings.

[2015] EWHC 1484 (Admin)

An extraditee’s extradition to face offences equating to theft and blackmail was disproportionate due to a delay of two years and nine months in issuing an European arrest warrant. Notwithstanding the seriousness of the offending, that delay was a significant period of time in the continuation and the strengthening of the extraditee’s private life.

[2015] EWHC 2067 (Admin)

The extradition of a man accused of involvement in a fraud in Poland ten years earlier, who had been settled in the UK with his wife and children for nine years and was unaware that he was wanted for questioning, was not unjust or oppressive. Although there had been an unexplained delay between issuing and certifying a European arrest warrant, the offending had been serious and there had been many victims.

It had not been an abuse of process to prosecute an elderly man for an historic offence of sexual assault which had been committed against a seven-year-old family member. The 23-year delay between the offence and trial did not of itself justify a stay of prosecution, and the judge had been entitled to determine that the offender, who suffered from dementia and other physical ailments, was fit to plead and stand trial.

A Polish national who had lived and worked in the UK for eight years could not be extradited on a European arrest warrant that was ineffective under the Extradition Act 2003 s.2(6)(c). The warrant had referred to a suspended sentence that had later been varied on appeal to a sentence without suspension, but which was not executed for more than two-and-a-half years.