Osunta v The Public Prosecutor's Office In Dusseldorf

For the purposes of Extradition Act 2003, a warrant may be confined to conduct which satisfies the statutory requirements for an extradition offence. The power to excise material is not limited to temporal matters. It may also remove geographically distinct conduct occurring in the United Kingdom, where the remaining conduct independently satisfies section 64(5). The order should identify clearly the conduct and offences on which extradition is permitted. The approach is consistent with the specialty safeguards and with the Framework Decision’s aim of providing an effective extradition procedure founded on mutual confidence between Member States.

The appellant appealed under section 26 of the Extradition Act 2003 against an order for extradition made by District Judge Nicholas Evans. Germany had issued a European Arrest Warrant concerning two alleged drug-trafficking offences.

The first ground was abandoned. The second concerned conduct allegedly occurring in Nigeria, on an aircraft, and at Heathrow. The District Judge excised the Heathrow conduct and ordered extradition only in respect of the remaining conduct. The central issue was whether section 64(5) permitted that geographical excision when part of the conduct described in the warrant occurred in the United Kingdom.

1. The appeal concerning the first offence was dismissed because the appellant accepted that the ground had no merit.

2. Section 64(5) requires that the relevant conduct occur outside the category 1 territory and that no part of that conduct occur in the United Kingdom. The statutory conditions must be considered in relation to the conduct on which the extradition order is actually based.

3. The court applied the approach identified by Lord Hope in Dabas v High Court of Justice, Madrid [2007] 2WLR 254, para 51. A judge may limit the scope of a warrant, or make the limitation clear in the order, so that the double-criminality requirement is satisfied. The same reasoning applies to geographical excision as to temporal excision.

4. Cando Armas [2006] 2 AC 1 did not determine the appeal. That case concerned a warrant which still contained references to United Kingdom conduct. It did not involve an extradition order expressly limited to non-United Kingdom conduct. The distinction between those situations was material.

5. The District Judge was entitled to excise the United Kingdom conduct and to support that decision with a supplemental order and a list of charges. The remaining conduct was capable of constituting an extradition offence under section 64(5).

6. The approach did not improperly confer jurisdiction. The different subsections of section 64 provide separate routes by which conduct may constitute an extradition offence. The specialty arrangement under section 17 limited the appellant’s exposure on return to the offences identified in the extradition order, while section 22 preserved the United Kingdom’s ability to prosecute conduct occurring within its jurisdiction.

7. The appeal was dismissed in relation to both offences. The extradition order remained in force, but only in respect of the conduct remaining after excision.

• High Court (Administrative Court): District Judge Nicholas Evans ordered extradition on 16 May 2007. The Administrative Court dismissed the appeal under section 26 of the Extradition Act 2003 and upheld the order as limited by the excision of United Kingdom conduct.