Harvey v Judicial Authority of Portuga- Tribunal Judicial De Albufeira

For a European arrest warrant, compliance with Extradition Act 2003, section 2 is a precondition to extradition. The warrant must be read as a whole. The court may draw proper inferences from its contents, but cannot fill deficiencies with extraneous material. The question is whether the warrant sufficiently communicates that the person is accused and sought for prosecution, rather than merely investigation. The statutory test is substantive and should accommodate differences between European legal systems.

Under section 14, the requested person must establish, on the balance of probabilities, that return would be unjust or oppressive because of delay. The relevant injustice concerns prejudice in the conduct of the trial, assessed in the context of mutual confidence between category 1 states. General assertions about lost records or faded recollection, without supporting evidence of likely prejudice or deficiencies in the requesting state’s procedures, are insufficient.

The claimant appealed under section 26 of the Extradition Act 2003 against a District Judge’s order for his extradition to Portugal. The European arrest warrant concerned an alleged cheque offence committed in 1990. No conviction or sentence had been imposed.

The appeal challenged whether the warrant sufficiently stated that the claimant was accused and sought for prosecution, as required by section 2, and whether the passage of time made extradition unjust or oppressive under sections 11 and 14. The central questions were whether the warrant could be construed as a whole and whether the evidence established a legally relevant risk of trial prejudice.

1. The appeal was dismissed. The District Judge had not been required to decide either issue differently.
2. Section 2 compliance is a mandatory precondition to extradition. The warrant must be considered as a whole. The court may draw proper inferences from the warrant, but may not use extraneous information to cure a missing statutory statement. Applying that approach, the warrant made it sufficiently apparent that the claimant was an accused person sought for prosecution, rather than for investigation or further investigation.
3. The court adopted a broad and purposive approach to the concepts of an accused person and extradition, recognising differences between European legal systems. Formal differences in terminology do not prevent a warrant from satisfying section 2 where its substance communicates the required purpose.
4. Under section 14, the issue is whether it would be unjust or oppressive to return the person for trial, not simply whether it would be unjust to try him after delay. The burden rested on the claimant to establish a risk, or serious risk, of injustice on the balance of probabilities. The relevant injustice was principally prejudice in the conduct of the trial.
5. The claimant’s submissions about unavailable documents and diminished recollection were unsupported by evidence. In a category 1 case, absent a positive evidential case about procedural shortcomings, the requesting state is not required to prove the adequacy of its criminal procedure. Mutual confidence between member states supported giving full faith and credence to the Portuguese legal and judicial system.
6. The District Judge therefore made no error under sections 2 or 14.

• High Court (Administrative Court): The Divisional Court dismissed the appeal under section 26 of the Extradition Act 2003, affirming the District Judge’s extradition order.