Dziedzic v Government of Germany

There is no fixed period after which extradition must automatically be regarded as unjust or oppressive. The court must assess, on the evidence in the individual case, whether the passage of time creates a real risk that the requested person cannot receive a fair trial. Delay attributable to flight or evasion will ordinarily carry little weight, but the decisive question remains whether the trial can fairly determine the issues. The nature of the prosecution evidence and the defence must be examined. Where identification evidence was obtained close to the alleged offence and the defence can still challenge it effectively, the passage of time may not establish injustice.

The claimant appealed under section 103 of the Extradition Act 2003 against a District Judge’s order for his extradition to Germany under a European arrest warrant. The alleged offences had occurred more than 15 years earlier. The District Judge concluded that delay was significantly attributable to the claimant’s departure from Germany and that extradition would not cause injustice.

The claimant challenged that conclusion, relying on the passage of time and authorities concerning prejudice to a fair trial. The central issue was whether, on the evidence, extradition would expose him to a real risk of an unfair trial.

1. Appeal dismissed. The court held that the passage of more than 15 years did not create an automatic rule against extradition. As explained in Woodcock v Government of New Zealand [2003] EWHC Admin 2668, there could be no cut-off point beyond which extradition was inevitably unjust or oppressive.
2. The District Judge’s finding that the claimant was responsible for the delay was insufficiently explained and could not reasonably be supported on the stated reasoning. That did not determine the appeal, because the ultimate question was whether the claimant would suffer injustice through inability to receive a fair trial.
3. The court applied the approach in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779: unjustness principally concerns prejudice in the conduct of the trial, while oppression concerns hardship arising from changes in the accused’s circumstances. Delay caused by flight or evasion ordinarily cannot be relied upon, subject to exceptional circumstances.
4. The evidence against the claimant consisted principally of his driving licence found at the scene and two witnesses’ identification of his photograph shortly after the offence. He could challenge that evidence at trial in substantially the same position as shortly after the event. The delay might even assist him when the prosecution case was assessed. There was no material basis for concluding that his positive defence would be impaired.
5. Kociukow v District Court of Bialstok III Penal Division [2006] EWHC 56 Admin was distinguished. That decision depended on its particular facts and on the absence of evidence concerning the nature of the case against the appellant. The German trial process could provide a safe and fair trial.

• High Court (Administrative Court): The Divisional Court dismissed the appeal against the District Judge’s extradition order.
• District Judge Nicholas Evans: On 17 May 2006, ordered extradition to Germany under the European arrest warrant.