Croatia v Spanovic

In deciding whether extradition is barred by passage of time, the court must assess all the circumstances and make an overall judgment whether return would be unjust or oppressive. Culpable delay by the requesting state may be relevant, and may sometimes be decisive, but it does not automatically establish the bar. The focus is principally on the effect of the delay, including any false sense of security, prejudice to a fair trial and the practical safeguards available in the requesting state. A person who fled because an objectively justified fear of an unfair trial made departure reasonable is not automatically debarred from relying on delay. Immigration history and respectable establishment in the United Kingdom may be relevant, but neither is determinative. The issue was remitted for reconsideration on the evidence.

The Government of Croatia appealed against a District Judge’s refusal to order extradition because the passage of time was said to make extradition unjust or oppressive under section 82 of the Extradition Act 2003. The respondent, an ethnic Serb convicted in absentia in Croatia in 1993, had left the region during the civil conflict, later lived in the United Kingdom and obtained immigration leave. The District Judge had not determined other possible bars based on discrimination, Convention rights or extraneous considerations. The central issue was whether the District Judge had applied the correct approach to delay, including the respondent’s departure, the requesting state’s failure to locate him, his immigration history, his establishment in the United Kingdom and the effect of delay on a fair trial.

1. Appeal allowed to the extent of remittal. The District Judge’s conclusion on the passage-of-time bar was flawed, particularly because the evidence did not establish merely that Croatian authorities had the means of knowing the respondent’s whereabouts. The question whether extradition was barred was remitted under section 106(1)(b) of the Extradition Act 2003. The District Judge’s decision on that question would stand as the decision of the court under section 106(8).
2. The governing approach is an overall assessment of whether, owing to the passage of time, extradition would be unjust or oppressive. Culpable delay in locating the person sought may colour that assessment and may sometimes be decisive. It is not, however, an automatic bar. The principal focus is the effect of time passing, rather than a judgment on the requesting state’s investigative performance.
3. A person who left because an objectively justified fear of an unfair trial made departure reasonable is not thereby prevented from relying on delay. The issue must be considered from a neutral starting point, although that does not determine whether extradition is unjust or oppressive.
4. Immigration history, a possible belief that the respondent was secure, and respectable establishment in the United Kingdom may be relevant effects of delay, but they must be weighed against the desirability of returning persons to friendly states for trial. Leave to remain cannot itself create an extradition bar.
5. Long delay may raise practical difficulties concerning witnesses, investigations, memory and the ability to answer allegations. The English court decides whether return is fair, rather than directly deciding whether a fair trial can occur. Where the requesting state has a jurisdiction capable of preventing an unfair trial, it will often be appropriate to leave that issue to the local court. The existence and practical effectiveness of such safeguards, including in relation to ethnic Serbs in Croatia, remained for the District Judge.
6. The District Judge was required to consider the overall picture rather than isolate each factor and ask whether it independently established unfairness or oppression. If the passage-of-time issue were resolved in the respondent’s favour, discharge would follow. If resolved in favour of Croatia, the District Judge was to determine the remaining possible bars, particularly Convention rights and, if relevant, extraneous considerations, under section 106(7).

1. High Court (Administrative Court) — The Government of Croatia appealed the District Judge’s refusal of extradition on the passage-of-time ground. The issue was remitted for reconsideration under section 106(1)(b) of the Extradition Act 2003.