Bikar & Anor, R (on the application of) v Governor of HM Prison Brixton

For section 11(3) of the Extradition Act 1989, triviality is assessed by examining the offence in all its circumstances. The maximum or likely sentence may assist, but it is not generally a sufficient test. In a dishonesty case, the nature and quality of the conduct and the value of the property or loss are important. A theft of property worth approximately £164 was not trivial.

A person convicted in absence remains capable of being treated as a person accused where, under the requesting state’s law, the conviction can be set aside and a new trial obtained after return. Such a conviction is not final for the purposes of section 6(3).

The claimants were convicted and sentenced in their absence in the Czech Republic for theft and related offences. They applied for writs of habeas corpus after being committed at Bow Street Magistrates’ Court to await the Secretary of State’s decision on their return.

They argued that the theft of aluminium plates was trivial under section 11(3) of the Extradition Act 1989. They also argued that their convictions prevented committal as persons accused because the rule against previous conviction applied. The central issues were whether the offence was trivial and whether the Czech convictions were final.

1. The applications were dismissed. The claimants failed to establish that the offence was trivial within section 11(3) of the Extradition Act 1989.

2. Triviality requires an assessment of the offence on its own facts and in all the circumstances. The maximum penalty and likely sentence can provide guidance, but neither supplies a generally applicable test. The nature and quality of the conduct are relevant, and in dishonesty cases the value of the property stolen or loss occasioned is important. The theft of aluminium plates valued at about £164 was a significant dishonest offence and was plainly extraditable.

3. The claimants could be dealt with as persons accused under section 6(3). The relevant question was whether the convictions were final. The Czech documentation showed that, after return, each claimant could seek to have the judgment cancelled and obtain a new trial. The fact that the proceedings were described in one document as having ended with a final judgment did not alter their practical legal effect.

4. The court applied Foy v Governor of HM Prison [2000] EWHC Admin 329, in which a conviction in absence that could be set aside on return did not engage the rule relating to previous conviction. The reasoning in that decision was indistinguishable in the material respect. The argument that section 6(2) should instead govern was rejected; section 6(2) was not intended to provide additional protection to a convicted fugitive who could have the conviction set aside.

5. Conditional bail was noted, and assessment of the claimants’ costs under the representation order was directed.