Yarrow v Public Prosecutor's Office of Appeal of Crete

Extradition is not oppressive merely because time has passed, the accused have grown older, or their family circumstances have changed. Delay attributable to an accused’s failure to return for trial or response to summonses may explain the passage of time. Under section 14 of the Extradition Act 2003, oppression requires hardship making extradition unfair. Under section 21, Article 3 requires substantial grounds for believing that extradition would expose the person to a real risk of prohibited treatment. Past ill-treatment is relevant, but present evidence must establish that risk. Allegations of past ill-treatment do not, without more, make extradition an abuse of process or breach Article 5(4).

These were appeals under section 26 of the Extradition Act 2003 against orders made by District Judge Nicholas Evans at the City of Westminster Magistrates’ Court on 30 October 2006. The appellants were wanted in Greece under European Arrest Warrants for attempted murder arising from an alleged attack in Crete in 1999.

They argued that extradition was barred by the passage of time under section 14 and would be incompatible with Articles 3 and 5(4) of the European Convention on Human Rights. The central questions were whether the delay made extradition unjust or oppressive, whether there was a real risk of Article 3 ill-treatment, and whether the alleged earlier ill-treatment made the proposed extradition an abuse of process.

1. Appeals dismissed. The district judge had reached the correct conclusion.
2. Under section 14 of the Extradition Act 2003, the relevant question was whether extradition would be unjust or oppressive by reason of the passage of time. Applying Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, injustice principally concerns prejudice to the fairness of the trial, while oppression concerns hardship caused by changes in the accused’s circumstances. Delay caused by fleeing, evading arrest, or otherwise preventing the trial cannot ordinarily be relied upon, save in exceptional circumstances.
3. The appellants had known of the charges and had chosen not to return after being summoned for trial. The chronology showed sustained efforts by the Greek authorities to secure a trial. Their ages at the time, subsequent maturity, and having young daughters did not make extradition oppressive. The assumed truth of their allegations of ill-treatment did not alter that conclusion.
4. For section 21 and Article 3, the appellants had to show substantial grounds for believing that extradition would expose them to a real risk of torture or inhuman or degrading treatment. That approach followed Soering v United Kingdom (1989) 11 EHRR 439 and R (Ullah) v The Special Adjudicator [2004] 2 AC 323. Past treatment was relevant, but the evidence did not establish a present systematic risk or a real risk to either appellant.
5. The Article 5(4) argument did not succeed. The alleged past ill-treatment did not make the extradition an abuse of process, nor did it make the appellants’ detention unlawful. The appeals were therefore dismissed.

• High Court (Administrative Court): Appeals under section 26 of the Extradition Act 2003 dismissed. The orders made by District Judge Nicholas Evans at the City of Westminster Magistrates’ Court on 30 October 2006 were upheld.