Holmes v Government of Portugal

Under section 11(3) of the Extradition Act 1989, an extradition court must consider whether return would be unjust or oppressive because of the passage of time, having regard to all the circumstances. Counterfeiting offences are not ordinarily trivial, given their threat to confidence in the monetary system. Delay may nevertheless make return oppressive where it is unexplained, creates a false sense of security, and materially prejudices the applicant’s ability to present an effective defence. The assessment is fact-sensitive and must take account of the significance of lost or unavailable evidence.

The claimant sought habeas corpus after being committed at Bow Street Magistrates’ Court to await the Secretary of State’s decision on Portugal’s extradition request. The request concerned allegations that he and his wife had attempted to pass counterfeit banknotes in Portugal in 1998.

The claimant relied on section 11(3)(a) and (b) of the Extradition Act 1989, arguing that the offences were trivial or that the passage of time made return unjust or oppressive. The central issue was whether the unexplained delay, and its effect on the availability of defence evidence, made extradition oppressive.

1. The claim succeeded. The Divisional Court ordered the claimant’s discharge because, in all the circumstances, it would be oppressive to return him to Portugal.
2. Per Lord Justice Thomas, with Mr Justice Fulford agreeing, the alleged offences were not trivial for the purposes of section 11(3)(a) of the Extradition Act 1989. The court relied on the established seriousness of knowingly tendering counterfeit banknotes, which threatens the integrity of the monetary system and public confidence in it. The fact-sensitive statutory question nevertheless remained whether this particular case fell within the statutory protection.
3. Applying section 11(3)(b), the court treated the following matters as significant: the delay was wholly unexplained; the claimant had remained at an address known to the Portuguese authorities and had returned to Portugal during the intervening period; and he had consequently been led into a false sense of security.
4. The delay also caused substantial prejudice to the defence. Evidence from the claimant’s former wife, his son and others was material to his contention that he possessed substantial genuine currency and had not conspired to pass counterfeit notes. By the time of the application, relationships had ended and other witnesses could not be traced.
5. Considering these matters cumulatively, the court concluded that return would be oppressive. The claimant was discharged, and no further order was made.

First-instance application for habeas corpus. The judgment records the claimant’s committal at Bow Street Magistrates’ Court but does not state any appellate decision.