United States of America Government v Tollman & Anor

Under sections 82 and 91 of the Extradition Act 2003, the court must apply the statutory words and reach its own overall judgment. No single feature is necessarily decisive. A claim based on delay requires more than proof that witnesses’ memories have faded or documents have disappeared. There must be some objective foundation for concluding that unavailable evidence might have assisted the defence or undermined the prosecution. The accused’s conduct may be relevant to the justice of extradition even where it does not amount to fleeing. Safeguards available in the requesting state are relevant but do not relieve the United Kingdom court of its statutory duty. On a health-based application, the court must itself decide whether extradition would be unjust or oppressive, while the foreign trial process remains a relevant factor.

The United States appealed under section 105 of the Extradition Act 2003 against decisions of the Senior District Judge discharging Stanley Tollman under section 82, because extradition would allegedly be unjust and oppressive by reason of the passage of time, and discharging Beatrice Tollman under section 91 because of her physical and mental condition.

The extradition requests concerned alleged bank fraud, false statements and tax offences. The Senior District Judge relied on unavailable witnesses and documents, the length of the proceedings, the conduct of the United States prosecutor and the effect of Stanley Tollman’s extradition on his wife’s health. The central issues were whether the statutory bars were established and whether the procedure concerning Beatrice Tollman’s medical evidence had been fair.

1. Stanley Tollman. The appeal was allowed to the extent that the Senior District Judge’s decision under section 82 was set aside for reconsideration. The court held that the statutory question was whether extradition would be unjust or oppressive by reason of the passage of time. The court should not treat previous judicial formulations as if they had statutory force. The assessment required consideration of all the circumstances, with no single feature automatically decisive.
2. A risk of prejudice was insufficiently established by assertion alone. There had to be some foundation for concluding that missing evidence might have undermined the prosecution or supported the defence. The evidence concerning the deceased witnesses, missing documents and untraceable witnesses did not establish such a risk in relation to the bank-fraud allegations. The position was different for the Guernsey tax allegations, where the deaths of material accountants and the incapacity of Beatrice Tollman created a genuine risk of prejudice.
3. Stanley Tollman was not barred from relying on section 82 merely because he had left the United States lawfully and failed to attend his arraignment. Nevertheless, his decision not to return when he knew of the impending proceedings was relevant to whether the passage of time made extradition unjust. The period to be considered ran from the alleged offence to the first occasion on which delay could be relied upon, but the court had to focus on the effect of the delay and all relevant circumstances.
4. The Senior District Judge had not adequately considered the circumstances of Stanley Tollman’s absence or sufficiently explained the use made of the prosecutor’s alleged misconduct. The court could not determine whether the risk to Beatrice Tollman’s health, considered alone, justified Stanley Tollman’s discharge. The matter was therefore remitted for the Senior District Judge to decide again, with up-to-date evidence concerning the care available to Beatrice Tollman.
5. Beatrice Tollman. The appeal against her discharge under section 91 was dismissed. The confidentiality order concerning her medical reports should not have prevented the requesting state from receiving material relied upon against it. However, the United States Government and the Crown Prosecution Service should have complied with, or directly challenged, that order. Their failure to do so did not cause actual unfairness: a short adjournment would have permitted adequate cross-examination, and the Senior District Judge fairly proceeded after the prosecution accepted determination on the available evidence.
6. Section 91 required the United Kingdom court to form its own view of whether extradition would be unjust or oppressive because of the person’s physical or mental condition. The treatment available, and the approach likely to be taken, in the requesting state were relevant but not determinative. On the evidence, the Senior District Judge was entitled to find that Beatrice Tollman’s condition made extradition unjust or oppressive.

• High Court (Administrative Court): The United States appealed under section 105 of the Extradition Act 2003 against the Senior District Judge’s decisions discharging Stanley Tollman under section 82 and Beatrice Tollman under section 91. The appeal concerning Beatrice Tollman was dismissed. The decision concerning Stanley Tollman was remitted for reconsideration.