Daly v Federal Republic of Germany

In extradition proceedings, delay is assessed from the alleged offence and all the circumstances must be considered. Delay attributable to the requesting state weighs in favour of discharge. Delay attributable to the applicant will not ordinarily assist him, except in the most exceptional circumstances. The court must decide whether return would be unjust, because of prejudice to the fairness of the trial, or oppressive, because of hardship caused by changes in the applicant’s circumstances. The concepts overlap and together require an overall assessment of fairness. A prolonged unexplained delay, coupled with likely prejudice to material witnesses and circumstances which reasonably led the applicant to believe that proceedings would not be brought, may make return manifestly unfair.

The claimant sought habeas corpus after the Bow Street Magistrates’ Court committed him on 7 May 2003 to await the Secretary of State’s decision on Germany’s extradition request. The request concerned attempted robbery and assault with intent to rob arising from an incident in Germany on 18 February 1994.

The claimant challenged return under section 11(3)(b) of the Extradition Act 1989, relying on the unexplained nine-year delay, the effect of the delay on the availability and recollection of witnesses, and the circumstances in which he had remained at liberty. The central issue was whether, having regard to all the circumstances, return would be unjust or oppressive.

The Divisional Court granted the writ of habeas corpus and ordered detailed assessment of the publicly funded claimant’s costs.

1. Statutory test. Under section 11(3)(b) of the Extradition Act 1989, the court must order discharge where, by reason of the passage of time since the alleged offence and having regard to all the circumstances, return would be unjust or oppressive. Once that condition is met, there is no residual discretion to return the applicant.
2. Meaning of unjust or oppressive. Applying Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, “unjust” principally concerns prejudice to the conduct of the trial, while “oppressive” principally concerns hardship resulting from changes in the applicant’s circumstances. The two concepts overlap and together cover cases where return would not be fair.
3. Application. The alleged offences occurred in February 1994, but the evidence did not explain why the arrest warrant was not served, why the applicant’s passport was not retained or why he was not informed of the proceedings when his passport was checked in Germany in 1995. Nor did it explain the delay before he was placed on the International Wanted Persons List in March 1996. The claimant was not shown to have caused the delay.
4. The lapse of nine years was likely to impair the recollection and tracing of material witnesses, including witnesses relevant to the claimant’s alleged drunkenness and intention. The events in Germany also reasonably induced a sense of security that proceedings would not be brought. The court distinguished Re Rose, because that case involved substantial fraud and an applicant who knew that a police investigation was continuing. Return in the present case would therefore be manifestly unfair.

The judgment was a first-instance decision of the High Court’s Divisional Court. The claimant had been committed by Bow Street Magistrates’ Court on 7 May 2003 to await the Secretary of State’s decision on the extradition request.