Azcarate v United States of America

In a category 2 extradition case, passage of time bars extradition only where it would be unjust or oppressive to return the requested person. Delay caused by the person fleeing, concealing his whereabouts or evading arrest cannot ordinarily support that conclusion. A court may nevertheless take account of culpable delay by the requesting state. Speculation about unavailable defence or prosecution witnesses is insufficient. A requesting state which need not establish a prima facie case is not ordinarily required to identify witnesses or prove their continuing availability before extradition.

The United States requested the extradition of Mario German Azcarate, a Colombian national, to face cocaine-trafficking and money-laundering charges. The district judge concluded that extradition was not barred by the passage of time under the Extradition Act 2003 and sent the case to the Secretary of State. The Secretary of State ordered extradition.

On appeal, the claimant sought an adjournment to investigate witnesses and argued that delay and the possible unavailability of witnesses made a fair trial impossible. The central issues were whether the appeal should be adjourned and whether extradition would be unjust or oppressive by reason of the passage of time.

1. Outcome. The adjournment was refused and the appeal was dismissed. The district judge was entitled to conclude that extradition would be neither unjust nor oppressive.

2. Fair-trial concerns and witnesses. A category 2 requesting state was not required to establish a prima facie case. The possible unavailability of one co-operating witness did not justify an adjournment or establish that a fair trial was impossible. The court distinguished Woodcock v the Government of New Zealand [2004] 1 WLR 1979, because that case involved a requesting state which had been required to show, and had shown, a prima facie case. It would be anomalous to impose a corresponding obligation to identify available witnesses where no prima facie case need be shown. At least one charge independently depended on physical evidence.

3. Passage of time. Under sections 79(1)(c) and 82 of the Extradition Act 2003, the question was whether it appeared unjust or oppressive to extradite by reason of the passage of time. The claimant’s proposed defence-witness evidence was unparticularised and speculative. The potential absence of prosecution witnesses was likewise speculative.

4. Fugitive delay. Applying the principle stated by Lord Diplock in Kakis v Republic of Cyprus [1978] 1 WLR 779, delay caused by fleeing the jurisdiction, concealing whereabouts or evading arrest could not be relied upon as making extradition unjust or oppressive. The court accepted that culpable delay by the requesting state might nevertheless affect the assessment. On the findings, the delay flowed solely from the claimant’s deliberate efforts to avoid trial, and there was no culpable delay by the United States.

5. The Secretary of State’s order raised no separate issue because the appeal against the district judge’s decision failed.

1. High Court (Administrative Court). The court refused an adjournment and dismissed the appeal from the district judge’s decision.
2. District Judge Tubbs. The district judge held that extradition was not barred by passage of time and sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003.
3. Secretary of State. The Secretary of State ordered extradition on 19 July 2006.