Geary v Government of Canada

Under section 82 of the Extradition Act 2003, delay bars extradition only where return would be unjust or oppressive because of the passage of time. “Unjust” principally concerns prejudice to the fairness of the trial, while “oppressive” principally concerns hardship resulting from changed circumstances. Delay caused by deliberate flight, concealment or evasion cannot ordinarily found either conclusion. Only the most exceptional circumstances can justify reliance on difficulties caused by such self-induced delay.

The court must assess the responsibility for delay and the actual prejudice or hardship shown. On the facts, the requesting state was not significantly culpable, the passage of time had not caused material injustice or oppression, and the appeal was dismissed.

The claimant faced extradition to Canada under Part 2 of the Extradition Act 2003 in respect of allegations dating from 1999. He had left Canada deliberately to avoid trial and was later arrested in England. A District Judge sent the case to the Secretary of State, who ordered extradition.

The claimant appealed under section 103 of the Act. At the hearing he relied only on section 82, contending that the passage of time made extradition unjust or oppressive. The court heard, but did not determine, a preliminary issue concerning service. The central issue was whether the delay, viewed in the light of the claimant’s flight, the requesting state’s conduct and the alleged prejudice to his defence, engaged section 82.

1. Appeal dismissed. The court upheld the District Judge’s decision that extradition was not barred under section 82 of the Extradition Act 2003.
2. The statutory expression “unjust or oppressive” retained the meaning established in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779. “Unjust” principally concerns prejudice in the conduct of the trial. “Oppressive” principally concerns hardship resulting from changes in the accused’s circumstances during the relevant period. The concepts may overlap and together cover cases where return would not be fair.
3. Following Kakis and Krzyzowski v the Circuit Court in Gliwice, Poland [2007] EWHC 2754 (Admin), delay caused by deliberate flight cannot ordinarily be relied upon. Difficulties resulting from that delay are normally the accused’s own choice and making. Only the most exceptional circumstances could alter that conclusion.
4. The court considered the broader approach discussed in Goodyer and Gomes v Government of Trinidad and Tobago [2007] EWHC 2012 (Admin), including the relevance of culpable delay by the requesting state after the fugitive’s whereabouts become known. Whether that approach or the stricter formulation in Kakis was applied, the present appeal failed.
5. The Canadian authorities were not significantly culpable. The claimant’s movements had made him difficult to locate, and the material delay after his arrest in England resulted from the domestic prosecution. The alleged loss of a petrol-station receipt did not establish material prejudice, particularly because precise timing was not a significant issue and the identification evidence and defence preparation had been addressed promptly.
6. The jurisdictional objection concerning late service was left undecided by agreement because the substantive appeal was dismissed. The agreed order was no order for costs, save for legal aid taxation.

• High Court (Administrative Court): the claimant appealed under section 103 of the Extradition Act 2003 from the District Judge’s decision to send the case to the Secretary of State. The appeal was dismissed and the extradition decision upheld.