Ginova c Czech Republic

For extradition purposes, the requesting state must prove to the criminal standard that the person sought is unlawfully at large. That requires evidence establishing that the person is liable to arrest and detention without further order or judicial process. A court should not infer that status merely from the expiry of a suspended sentence where the law of the requesting state, the effect of later suspension applications, or the need for further procedural steps remains uncertain. Inadequate or ambiguous foreign-law evidence means that the statutory condition is not proved.

The claimant, a Czech national, was detained in the United Kingdom pending a decision on her extradition to the Czech Republic. She had been convicted of robbery and sentenced to two years’ imprisonment. The sentence was suspended on successive occasions, including during pregnancies and because of her child’s illness. The final suspension expired on 17 May 1999, after which she applied for a further suspension. No substantive decision on that application was shown, and she was not arrested.

The district judge was satisfied that she appeared to be unlawfully at large under section 9(8)(b) of the Extradition Act 1989. The central issue before the Divisional Court was whether the evidence established, to the criminal standard, that she was liable to arrest and detention without further judicial process.

1. Application allowed. The Government of the Czech Republic had not discharged the burden of proving to the criminal standard that the claimant appeared to be unlawfully at large within section 9(8)(b) of the Extradition Act 1989.
2. The relevant question was whether she was liable to arrest and detention without any further order of the Czech court or other judicial process. It might ordinarily be expected that expiry of a suspension restored the original obligation to serve an immediate custodial sentence. That inference was not enough where the applicable foreign law and procedure remained uncertain.
3. The suspension orders did not establish that the claimant was required to report to prison automatically when the suspension expired. Their express provisions addressed the consequences of a change in the circumstances justifying suspension. They did not conclusively determine the consequences of expiry by effluxion of time.
4. The evidence contained significant gaps. The claimant had remained at liberty during periods after earlier suspensions expired, had made further suspension applications, and had been allowed to leave court on 27 May 1999 without being detained. The requesting state had not explained whether a further procedural step was required before she became arrestable.
5. The statement of the Czech presiding judge principally addressed limitation. Its references to the claimant staying unlawfully outside the Czech Republic did not sufficiently and cogently establish her status as a person liable to arrest and detention without further process. The court distinguished Urru, unreported, 25 May 2000, CO/4009/1999 QBD, but treated it as illustrating the need for evidence of the requesting state’s law on when a convicted person becomes unlawfully at large.
6. Mr Justice Gibbs agreed with Lord Justice Dyson. The claimant’s applications concerning costs and Legal Services Commission assessment were granted.

• District judge: On 29 October 2002, the district judge held that he was sure that the claimant was unlawfully at large.
• High Court (Administrative Court): The Divisional Court allowed the habeas corpus application because the requesting state had not proved that statutory condition to the criminal standard.