Stern v The Government of the United States of America

Under section 82 of the Extradition Act 2003, the passage of time bars extradition only where it appears unjust or oppressive to extradite by reason of that passage of time. A fugitive may, at least on the approach provisionally adopted in this case, rely on culpable delay by the requesting state in locating him. The court must assess the effect of the delay and the surrounding circumstances. Where the fugitive deliberately conceals his identity and there is no evidence that the requesting state knew his whereabouts, the delay is not culpable. The statutory bar therefore fails even if the court adopts the more favourable approach that concurrent fault by the requesting state may be relevant.

The claimant faced extradition to the United States on allegations arising from two fraudulent schemes in 1988 and 1989. The Senior District Judge sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003. The claimant appealed on the ground that extradition would be unjust or oppressive because of the passage of time.

Three issues arose: whether the passage-of-time bar could be raised for the first time on appeal; whether it was available to a person who had fled the requesting state; and whether the evidence established injustice or oppression. The court assumed, without deciding, that the first issue could be resolved in the claimant’s favour and determined the appeal on the second issue as applied to the evidence.

1. The appeal was dismissed. The court assumed, without deciding, that the claimant could raise the passage-of-time issue on appeal despite not having raised it or adduced evidence on it below.

2. Section 82 of the Extradition Act 2003 provides that extradition is barred only if it appears unjust or oppressive by reason of the passage of time. The court treated the principles stated by Lord Diplock in Kakis v Government of the Republic of Cyprus 1978 1 WLR 779 as applicable to the corresponding provision in the 2003 Act, while recognising the continuing debate about the relevance of responsibility for delay.

3. For the purposes of deciding this appeal, Dyson LJ adopted the approach in Goodyer and Gomes v Government of Trinidad and Tobago [2007] EWHC 2012 (Admin), without deciding that it was correct. On that approach, concurrent fault by the requesting state may be relevant where the fugitive caused part of the delay. The court must make an overall assessment of whether extradition would be unjust or oppressive.

4. The United States authorities were not shown to have known the claimant’s whereabouts before the end of 2000. The claimant had left the United States, lived in Brazil under a false name and used a false date of birth. His family’s dealings with the United States consulate did not establish that the authorities knew he was living in Brazil. There was therefore no culpable delay by the requesting state during the relevant period.

5. Even on the approach most favourable to the claimant, he had failed to establish the statutory bar. Dyson LJ also recorded that he saw considerable force in the criticisms of the Goodyer approach made in Krzyzowski v the Circuit Court in Gliwice, Poland [2007] EWHC 2754, but found it unnecessary to resolve that conflict. Jack J agreed. Prosecution costs were ordered to be taxed.

• High Court (Administrative Court): appeal from the Senior District Judge’s decision dismissed. The case had been sent to the Secretary of State under section 87(3) of the Extradition Act 2003.