De Sousa v Government of Portugal & Anor

Under section 11(3)(b) of the Extradition Act 1989, oppressiveness is a separate ground for discharge. The court must consider all the circumstances, although injustice and oppressiveness may overlap. The assessment is fact-sensitive. Relevant circumstances may include prolonged and unexplained delay, the requesting state’s resurrection of allegations previously found insufficient for extradition, the absence of new material, inadequate particulars, and the applicant’s reasonable belief that the matter had ended. A requesting state’s compliance with fair-trial standards does not prevent the court from finding return oppressive. Authorities concerning delay will provide limited assistance unless the factual circumstances are materially comparable.

The claimant sought habeas corpus after the Secretary of State issued authority to proceed with a second Portuguese extradition request. He had been convicted in Portugal in his absence in 1988, but was discharged by the magistrates’ court in the United Kingdom when the first extradition request failed to establish a prima facie case. Portugal made a further request in 2000, authority to proceed was issued in 2005, and the claimant was arrested after approximately 17 years of silence. The central issue was whether, having regard to the passage of time and all the circumstances, return would be unjust or oppressive under section 11(3)(b) of the Extradition Act 1989.

1. The application was allowed. The claimant was ordered to be discharged under section 11(3)(b) of the Extradition Act 1989, and a writ of habeas corpus was granted.
2. Oppressiveness is a separate head of challenge from injustice. The two grounds may overlap, but oppressiveness depends substantially on the particular facts. The court must have regard to all the circumstances.
3. The court applied the guidance in Woodcock v Government of New Zealand [2004] 1 WLR 1986, including the distinction between merely resurrecting allegations previously put to an accused and bringing forward fresh allegations after a long period. Here, the Portuguese authorities were resurrecting the allegations considered in 1988. No new material had emerged, and the allegations were serious but old and lacking in particulars.
4. The delay was wholly unexplained or inadequately explained. The claimant had lived openly in the United Kingdom, had not gone to ground, had been discharged in 1988 because no prima facie case had been established, and had reasonably concluded that he would hear nothing further. The prolonged silence reinforced that expectation.
5. The court considered but did not need to resolve whether, in the absence of information about Portuguese abuse-of-process procedures, it should form its own view about the possibility of a fair trial there. Even if return would not be unfair, the cumulative circumstances made it oppressive.
6. A defendant’s costs order was made, payable from central funds.

The judgment describes an earlier extradition hearing before the magistrates’ court in 1988, at which the claimant was discharged because no prima facie case was established. The present proceedings were a first-instance application for habeas corpus in the Administrative Court.