Austins v Spain & Anor

Under section 11(3)(b) of the Extradition Act 1989, the court must assess all the circumstances and decide whether the passage of time would make return oppressive. The provision is concerned with oppression arising from the delay, rather than with disciplining a requesting state for administrative delay. Where the person has already been tried and sentenced abroad, and knows that he has escaped from custody with time remaining to serve, that circumstance weighs heavily against a claim of oppression. Periods during which the person could not lawfully have been returned because of section 12(3) are also relevant. The fact that the requesting authorities could have acted more promptly does not, by itself, establish oppression.

The claimant had been convicted and sentenced in Spain after being found in possession of cannabis. He failed to return to custody while on leave and later came to the United Kingdom. Spanish authorities eventually sought his extradition, following delays in producing proof that he was unlawfully at large.

The Bow Street Magistrates’ Court committed him on bail under the Extradition Act 1989. He applied to the Administrative Court for habeas corpus and discharge under section 11(3)(b), arguing that the passage of time and the authorities’ delay made return oppressive. The central issue was whether, considering all the circumstances, return to Spain to serve the balance of his sentence would be oppressive.

1. The application for habeas corpus and discharge under section 11(3)(b) of the Extradition Act 1989 was refused. The court concluded that oppression had not been shown.
2. The reference to injustice in section 11(3)(b) was directed primarily to prejudice affecting a forthcoming trial, as explained in Kakis v Cyprus [1978] 1 WLR 779. That consideration did not arise because the claimant had already been tried and sentenced. The only issue was oppression in returning him to serve the balance of a lawful sentence.
3. The Spanish authorities could and should have acted more expeditiously. Their failure to progress the matter, including the delay in obtaining formal proof that the claimant was unlawfully at large, was criticised. Section 11(3)(b), however, was not enacted to impose discipline on states making dilatory extradition requests. The court had to determine whether the delay made return oppressive in the particular circumstances.
4. Section 12(3) was relevant to the assessment. Because the claimant was serving sentences in the United Kingdom for substantial periods, he could not in any event have been returned during those periods. This reduced the significance of the delay relied upon.
5. The claimant’s recent rehabilitation and settled relationship were considered. Against them stood the fact that he had escaped from custody after conviction, knew that a substantial sentence remained, and was being returned not to face an untried charge but to serve a lawful sentence. Those matters weighed heavily against him.

The judgment describes the claimant’s committal on bail by the Bow Street Magistrates’ Court on 26 April 2004. The Administrative Court refused the application for habeas corpus and discharge.