Sutej v Governor HMP Holloway

In extradition proceedings, a court should not discharge a person under section 11(3)(c) of the Extradition Act 1989 merely because foreign investigative proceedings may later consider conduct outside the permitted extradition charges. There must be material capable of establishing, on a balance of probabilities, that the foreign authority has manifested bad faith or an intention to disregard speciality protection. Extradition proceedings ordinarily do not determine trial issues, including the admissibility or evidential use of material under foreign law. A foreign investigating authority may adopt a wait-and-see approach where no decision has yet been made.

The claimant was wanted for extradition to Switzerland. She had previously been discharged on four charges concerning Nina Brink but remained committed for 23 charges concerning George Rafael. She made a second habeas corpus application concerning the Rafael charges.

She argued that correspondence from the Swiss investigating magistrate showed an intention to retain and use the Brink allegations, contrary to speciality protection, and that the accusations were therefore not made in good faith in the interests of justice. The central issue was whether the material justified discharge under section 11(3)(c) of the Extradition Act 1989.

1. Application dismissed. The material did not establish that the Swiss investigating magistrate had manifested bad faith or indicated an intention to disregard the claimant’s speciality protection.
2. Section 11(3)(c) of the Extradition Act 1989 could apply if there were grounds for concluding, on a balance of probabilities, that a foreign examining magistrate had manifested bad faith, and return would consequently be unjust or oppressive. The evidence in this case fell far short of that threshold.
3. The magistrate’s statement that he would decide, if and when the claimant was returned, whether the Brink allegations would form part of the Swiss criminal proceedings did not demonstrate bad faith. It was consistent with awaiting the claimant’s return before making a procedural ruling.
4. Speciality protection was secured by section 6(4) of the Extradition Act 1989 and article 14 of the European Convention. The fact that Swiss criminal procedure might permit a civil claim to be connected with a prosecution concerning different allegations did not itself establish a breach of that protection.
5. Following Kashanu [2002] 2 WLR 907, extradition proceedings do not ordinarily resolve trial issues. Questions of admissibility, evidential sufficiency and trial fairness are generally matters for the requesting jurisdiction, subject to the Secretary of State’s power to refuse return where appropriate.
6. The defendant was awarded costs of £1,700 including VAT.

Not stated in the judgment.