Kila v HM Prison Brixton & Anor

Under section 11(3)(b) of the Extradition Act 1989, delay justifies discharge only where, having regard to all the circumstances, return would be unjust or oppressive. Delay caused by the fugitive’s flight or concealment cannot ordinarily support that conclusion. For other delay, its effect is generally more important than its cause. Mere delay will rarely suffice; something additional is required. The court may consider the requesting state’s conduct where it has created a legitimate expectation that the sentence will not be enforced, but that is exceptional. A sentence nearing the end of a foreign limitation period does not, without more, make extradition oppressive.

The applicant, a Swedish national, had been convicted in Sweden of serious fraud offences and sentenced to two years’ imprisonment. He left Sweden before beginning his sentence and later lived in the United Kingdom. Sweden sought his extradition after learning of his whereabouts. The extradition process involved delay, and the applicant sought habeas corpus under section 11(3)(b) of the Extradition Act 1989, arguing that the passage of time and the approaching expiry of the Swedish enforcement period made his return unjust or oppressive.

The central issue was whether, in all the circumstances, the delay made extradition oppressive.

1. The application for habeas corpus was dismissed. The court found nothing oppressive in returning the applicant to Sweden.

2. Section 11(3)(b) of the Extradition Act 1989 requires the court to consider all the circumstances. The principles in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 (HL(E)) were applied. Delay caused by the fugitive’s flight, concealment or evasion cannot ordinarily be relied upon. In other cases, the effect of the delay is generally more significant than responsibility for its cause.

3. Sinclair v Government of the United States was treated as exceptional. The requesting state’s conduct may be material where it has given the fugitive a legitimate expectation that the sentence will not be enforced. No such expectation existed here.

4. The delay before the Swedish request became an extradition proceeding did not produce additional oppression. Extradition applications must be complete and properly evidenced, including as to identity, the offences and the applicable descriptions. Some procedural delay is therefore not, by itself, oppressive.

5. In this case the applicant’s own departure was significant, there was no sufficient basis for blaming Sweden for failing to locate him earlier, and the approaching expiry of the Swedish ten-year enforcement period did not itself make return oppressive. The court observed that “unjust” ordinarily concerns the possibility of a fair trial, which was not in issue.

Mr Justice Leveson agreed, while drawing attention to the possibility that the Swedish sentence would cease to be enforceable if service did not begin by 13 April 2005.