Atilla v Government of Turkey

When deciding whether extradition is barred by lapse of time, the Secretary of State is making an administrative decision, not conducting a trial. No particular burden or standard of proof applies. He must make appropriate enquiries, consider the available material, and reach a rational and proportionate view. If the material shows that prosecution is probably time-barred, extradition must not be ordered. Otherwise, the decision is reviewable under ordinary administrative-law principles, including rationality, reasonableness and the obligation to consider relevant matters. The gravity of extradition and its effect on liberty require particular care and may justify more stringent judicial scrutiny, but they do not convert review into an appeal or require satisfaction to the criminal standard.

The claimant faced extradition to Turkey under the Extradition Act 1989. The Secretary of State had concluded that prosecution for embezzlement would not become time-barred under Turkish law until 26 June 2006, because the claimant’s arrest in England had restarted the limitation period. The claimant sought judicial review of that conclusion, relying on conflicting Turkish legal opinions and Article 10 of the European Convention on Extradition. The central issue was the approach and level of certainty required of the Secretary of State when determining whether Turkish law barred the proposed prosecution.

1. The claim was dismissed. The Secretary of State’s decision to order the claimant’s return was not unlawful or irrational.
2. Under section 4 of the Extradition Act 1989 and paragraph 2(1) of the European Convention on Extradition Order 2001, Article 10 applied. Extradition was prohibited where the claimant had become immune from prosecution or punishment by lapse of time.
3. Questions concerning the content of Turkish law were treated as questions of fact, but the Secretary of State was not acting as a court. The concepts of burden and standard of proof were therefore inappropriate. He was not required to be satisfied beyond reasonable doubt, or otherwise to a particular standard, that prosecution remained lawful. If the material showed that prosecution was more probably than not barred, he should refuse extradition.
4. The Secretary of State had to make appropriate enquiries, including seeking information from the requesting state and considering evidence supplied by the claimant. He could obtain independent advice and accept or reject the material in whole or in part. Contradictory material required particular care, but did not prevent a rational decision.
5. The decision remained subject to ordinary judicial review on grounds including rationality, reasonableness and consideration of relevant and irrelevant matters. The seriousness of extradition and its effect on liberty justified careful decision-making and potentially more stringent scrutiny, but the court’s role remained review rather than appeal.
6. The Secretary of State had identified the narrow issue, preferred the opinion that the English arrest restarted the limitation period, and gave coherent reasons. His decision was therefore one with which the court should not interfere. The Turkish court would ultimately be able to determine the limitation issue in any prosecution.

This was a first-instance judicial review of the Secretary of State’s decision under section 12 of the Extradition Act 1989. The judgment records earlier extradition and habeas corpus proceedings but no appeal decision.