Cook v Spain & Anor

Under section 11(3) of the Extradition Act 1989, discharge is justified only where, having regard to all the circumstances, return would be unjust or oppressive. Delay alone is insufficient. The court must assess its effect, including any demonstrated prejudice to the fairness of the prospective trial or hardship arising from changed circumstances. The burden rests on the applicant to establish the relevant injustice or oppression. Speculative claims, unsupported by evidence of prejudice or hardship, will not suffice. In a European Convention case, the court should be especially cautious before concluding that a fair trial in the requesting state would be impossible.

The claimant sought habeas corpus after the Bow Street Magistrates’ Court committed him on 27 July 2004 to await the Secretary of State’s decision on Spain’s extradition request. He was wanted in connection with allegations of murdering two German nationals and associated dishonesty offences. The claimant relied on the substantial delay, the lack of detail in the allegations, the discontinuance of proceedings against his son and another accused, and the absence of an explanation from Spain.

The central issues were whether the passage of time made return unjust or oppressive under section 11(3) of the Extradition Act 1989, and whether Spain’s failure to provide an explanation or response supported an inference of bad faith.

1. The application for habeas corpus was refused. The claimant had not established that return to Spain would be unjust or oppressive under section 11(3) of the Extradition Act 1989.
2. The court applied the approach stated by Lord Diplock in Kakis v Government of Cyprus [1978] 1 WLR 779. Unjustness principally concerns prejudice to the conduct of the trial. Oppression principally concerns hardship caused by changes in the accused’s circumstances during the relevant period. Where delay is not caused by the accused, responsibility for the delay is generally less important than its effect.
3. The claimant’s case was speculative. He had not shown that the delay had caused material difficulty in presenting a defence, identifying witnesses or establishing an alibi. Nor had he shown hardship or a relevant change in circumstances making return oppressive.
4. The court considered Woodcock v Government of New Zealand [2004] 1 WLR 1979, but distinguished the factual context. That case concerned allegations of sexual abuse said to have occurred 20 or 30 years earlier. Here, the principal allegation was murder, and it was highly improbable that the court would hold that a fair trial in Spain was impossible.
5. The absence of a response from Spain did not, without more, establish bad faith. The material concerning the claimant’s use of the deceased’s passport and identity also distinguished his position from that of the co-accused whose proceedings had been discontinued.
6. Mr Justice Field agreed with Lord Justice Rose.