Sutej v Governor of H.M. Prison Holloway & Anor

For the purposes of section 11(3)(c) of the Extradition Act 1989, “good faith in the interests of justice” is construed broadly. The inquiry may extend to the good faith of complainants and witnesses and require examination of the underlying facts. A complainant’s predominant interest in recovering money, or the presence of exaggerations, omissions or inaccuracies, does not itself establish bad faith if the essential accusation is honestly believed. The question is whether the real essence of the accusation is made in good faith. An accusation may nevertheless be oppressive where it conflicts with the parties’ express agreement and the requesting state’s civil courts have rejected its essential basis. Such relief depends on the unusual facts and should not be treated as general encouragement for future applications.

The applicant was committed by Bow Street Magistrates’ Court for extradition to Switzerland on charges arising from alleged fraud and theft involving two complainants, Georg Rafael and Nina Brink. She sought habeas corpus under section 11(3)(c) of the Extradition Act 1989, alleging that the accusations were not made in good faith in the interests of justice and that her return would be unjust or oppressive.

The court considered allegations that the complainants were using criminal complaints to support civil recovery, had misstated or omitted material facts, and had collaborated in their litigation strategy. The central issues were whether those matters demonstrated bad faith and whether return on either set of charges would be oppressive.

1. Legal test. The court applied the broad construction of “good faith” stated in Re Osman and confirmed that the inquiry may encompass the conduct and credibility of complainants and witnesses, including the underlying facts. The applicant bore the burden of proving, on the balance of probabilities, that the accusations were not made in good faith in the interests of justice.
2. Unjust and oppressive. The court adopted the distinction explained in Kakis v Government of the Republic of Cyprus: “unjust” principally concerns prejudice in the trial, while “oppressive” concerns hardship arising from changes in the accused’s circumstances, with both concepts covering cases where return would be unfair.
3. Rafael charges. The court found a serious and triable issue concerning the alleged October 1997 agreement, supported by inconsistencies in the financial accounts. Mr Rafael’s interest in recovering his investment, his willingness to withdraw the complaint upon settlement, material omissions and inaccuracies, and probable collaboration with Ms Brink did not establish bad faith. The essential accusation was still honestly capable of belief.
4. Brink charges. The court reached the opposite conclusion. The alleged deception concerning Mr Rafael’s intended investment was inconsistent with the express wording of the parties’ agreement, and the Swiss civil courts had rejected the essential basis of Ms Brink’s case when refusing freezing relief. Although the Swiss authorities were acting in good faith and the applicant would receive a fair trial, return on these charges would be oppressive.
5. The applicant was discharged in relation to the Brink charges but not in relation to the Rafael charges. The conclusion was based on the unusual facts and history of the case. A central funds costs order was also contemplated under section 16(5) of the Prosecution of Offences Act 1985.

The judgment records that the applicant had been committed for extradition by Bow Street Magistrates’ Court on 27 charges of obtaining property by deception and one charge of theft. The Divisional Court granted habeas corpus only in relation to the Brink charges.