Calder v Public Prosecutor's Office, Germany

Under sections 11 and 14 of the Extradition Act 2003, delay makes extradition unjust only where the requested person establishes a real risk of serious prejudice that the trial process cannot cure. The assessment is fact-sensitive. A case turning principally on the credibility of the complainant and accused is materially different from a case depending on identification or alibi evidence. Delay attributable to the requested person’s flight cannot ordinarily be relied upon. Culpable delay by the requesting state has limited relevance where no underlying injustice is shown and oppression is not relied upon.

German authorities sought the extradition of Aubrey Calder in respect of alleged rapes and indecent assaults said to have occurred in 1992 and 1994. A District Judge ordered extradition on 26 June 2006, rejecting reliance on the passage of time under sections 11 and 14 of the Extradition Act 2003.

Mr Calder appealed. He argued that delay had impaired his ability to defend himself, that the German authorities had delayed culpably, and that the District Judge had wrongly inferred that he had fled Luxembourg to avoid extradition. The central issue was whether the passage of time made extradition unjust.

1. Appeal dismissed. The appellant had to show, on the balance of probabilities, that extradition would cause injustice within sections 11 and 14 of the Extradition Act 2003. The relevant injustice required a real risk of serious prejudice, or prejudice not curable by the trial process.
2. The appellant had not identified any alibi witnesses, defence witnesses, or other evidence materially lost through delay. The allegations concerned alleged conduct within domestic relationships over substantial periods. The central issue was likely to be the relative credibility of the complainants and the appellant, rather than identification or alibi.
3. In that setting, uncertainty about dates and places, and any possible peripheral evidence, did not establish serious prejudice. Any remaining difficulty could be considered by the German trial court. The reasoning in Kociukow v District Court of Bialystok III, Poland [2006] EWHC 56 (Admin) illustrated the materially different position where an alibi depended on reconstructing a specific date and time.
4. The District Judge was entitled to infer that the appellant had fled Luxembourg in 2002 to avoid execution of the extradition order. Consistently with Kakis v Government of Cyprus [1978] 1 WLR 779, the appellant could not rely on delay resulting from that flight.
5. Even apart from flight, any culpability in the German authorities’ delay could not establish injustice where serious prejudice was absent. The appeal was therefore dismissed.

1. High Court (Administrative Court): appeal against the District Judge’s order of 26 June 2006 dismissed.
2. District Judge: ordered extradition to Germany and rejected the statutory challenge based on delay.