Guven v HM Prison Brixton

In deciding whether delay makes extradition unjust or oppressive, the court must focus principally on the effect of the delay rather than merely its cause. Unjust concerns prejudice to the fairness of the trial, while oppressive concerns hardship arising from changes in the accused’s circumstances. The applicant bears the burden of showing, on the balance of probabilities, that return would be unjust or oppressive. Significant delay alone is insufficient. The court must assess the evidence, including whether the applicant’s ability to defend the allegations has actually been impaired and whether relevant hardship is legally material.

The claimant, a Turkish national detained at Brixton Prison, challenged his committal under section 9(8) of the Extradition Act 1989 pending a decision on France’s request for his extradition. The request concerned alleged involvement in importing 29 kilograms of heroin into France in 1993. The claimant had previously been convicted in France in his absence and had successfully claimed asylum in the United Kingdom.

The central issue was whether, under section 11(3)(b) of the Extradition Act 1989, the passage of time made it unjust or oppressive to return him to France.

1. The application for habeas corpus was refused. Despite the substantial delay, extradition would be neither unjust nor oppressive.
2. Lord Justice Rose applied the approach stated by Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779. “Unjust” primarily concerns prejudice to the conduct of the trial. “Oppressive” primarily concerns hardship caused by changes in the accused’s circumstances during the relevant period. The concepts overlap and together address cases where return would be unfair.
3. The burden lay on the claimant to show, on the balance of probabilities, that the passage of time had produced the necessary injustice or oppression. Responsibility for the delay was not generally decisive; its effect was the principal consideration.
4. The claimant had provided no evidence identifying how the delay impaired his defence. He knew the outline of the allegations from his provisional arrest in 1994 and was aware of the French convictions by at least 1997. His general denial did not establish trial prejudice.
5. The claimed hardship arising from his asylum status, publicity, employment difficulties and separation from his wife did not make extradition oppressive. Article 15 of the European Convention on Extradition also prevented his removal to Turkey after extradition without the United Kingdom’s consent. Article 6 of the European Convention on Human Rights provided the relevant fair-trial context.
6. Mr Justice Field agreed. The claimant was ordered to pay the respondents’ costs.

Not stated in the judgment.