Germany v Kleinschmidt & Anor

Under the Extradition Act 2003, service of the documents sent to the judge under section 70(9) is mandatory, but section 78(4)(c) does not require service before the extradition hearing begins. Service may therefore be completed during the hearing, subject to the judge’s power to adjourn where fairness requires it. The statutory scheme does not place primary responsibility for service on the Secretary of State or the court. In practice, the requesting state’s solicitor, ordinarily the Crown Prosecution Service, must ensure service. A failure causing unfairness may justify refusing an adjournment or staying proceedings for abuse of process, but a purely technical failure does not automatically deprive the court of jurisdiction.

The Government of Germany appealed under section 105 of the Extradition Act 2003 against the decision of a district judge at Bow Street Magistrates’ Court to discharge Roland Kleinschmidt and Laura Dewar from extradition proceedings. The judge held that copies of the request, certificate and relevant Order in Council required by section 70(9) had to be served before the extradition hearing and that the omission could not be cured after the hearing began.

The relevant Order in Council had not been served before the hearing, although the respondents knew which Order was involved and suffered no prejudice. The central issues were the timing and responsibility for service, and the consequences of late service.

The appeal was allowed and the case was remitted to the district judge to proceed in accordance with the Administrative Court’s judgment.

1. Timing of service. Section 78(4)(c) requires the judge to decide whether copies of the section 70(9) documents have been served. Read with section 78(6), the requirement of service is mandatory. It does not, however, say that service must occur before the hearing begins. The court declined to read those words into the provision.
2. Fairness and adjournment. Service should normally occur well before the hearing, but late service may be accepted if the defendant is treated fairly. The judge may adjourn under section 77(4), taking account of the statutory time limit, responsibility for the problem, and the prejudice to each party. Deliberate flouting may support a stay for abuse of process.
3. Responsibility. The Act does not assign service to the appropriate judge or the Secretary of State. Its language indicates that service is to be made by someone other than the judge. In practice, the Crown Prosecution Service acts as solicitor for the requesting state and must undertake service where necessary.
4. Application. The respondents knew or should have known the relevant Order in Council and were not prejudiced by its omission. The district judge therefore erred in treating pre-hearing service as essential and in discharging the respondents. The hearing was to resume, with the district judge deciding what course to take in light of the service then completed.

• Bow Street Magistrates’ Court: On 2 March 2005 the district judge discharged the respondents under section 78(6) of the Extradition Act 2003, holding that the required documents had to be served before the extradition hearing.
• High Court (Administrative Court): The appeal under section 105 was allowed. The decision was quashed and the case remitted with a direction that the district judge proceed in accordance with the judgment.