Paschayan v Government of Switzerland

For extradition purposes, whether a person is an accused is a question of fact assessed by substance rather than procedural form. The court must adopt a cosmopolitan and purposive approach capable of accommodating different legal systems, while safeguarding the individual’s statutory rights. The relevant question is whether the competent foreign authorities have taken a step that can fairly be described as the commencement of a prosecution. A person may be an accused even though investigation continues and the case has not yet reached the prosecuting authority or trial court. A highly particularised case, supported by an arrest warrant and formal extradition request, may satisfy that threshold where remaining questions arise from the requested person’s refusal to participate in the investigation.

The claimant appealed under section 103 of the Extradition Act 2003 against a District Judge’s decision to send the case to the Secretary of State under section 92. The Secretary of State subsequently ordered extradition to Switzerland.

The claimant argued that he was merely a suspect in Switzerland and was not an accused person. The Swiss procedure involved police investigation, an investigating magistrate, the Public Prosecutor and, potentially, proceedings before the District Court. The central issue was whether, viewed in substance and in the context of that procedure, the claimant had become an accused person for the purposes of Part 2 of the Act.

1. Appeal dismissed. The court held that the District Judge had not answered the relevant question incorrectly. The District Judge’s decision was upheld.
2. Under section 137 of the Extradition Act 2003, the conduct must be conduct of a person who is accused in the category 2 territory. Whether that threshold is met is not determined by the label used in the foreign procedure. It requires a qualitative assessment of the particular facts.
3. The court adopted the approach explained by Lord Steyn in Re Ismail [1999] 1 AC 320. “Accused” is not a term of art. The court must ask whether, as a matter of substance rather than form, the competent foreign authorities have taken a step fairly described as the commencement of a prosecution. A broad and generous construction is appropriate to facilitate extradition, but it must be balanced against the liberty and statutory rights of the person sought.
4. The court explained that an investigating magistrate may perform functions which, in England, would be distributed between the police, prosecution authorities and courts. The continuation of investigative work therefore does not, without more, establish that the person remains merely a suspect. The court regarded the circumstances as closely analogous to Harvey v Judicial Authority of Portugal [2007] EWHC 3282 (Admin), where a person required for judicial interrogation had nevertheless reached the stage of prosecution.
5. The Swiss allegations were highly particularised. The formal request and arrest warrant identified the alleged offences and detailed conduct. The Swiss Public Prosecutor had assumed related proceedings on the basis that the claimant was accountable for other grave offences in Switzerland, and the remaining interrogation was principally required to address unanswered matters. The claimant’s refusal to attend did not prevent the court from concluding that he was being prosecuted as an accused person.

1. High Court (Administrative Court): [2008] EWHC 388 (Admin). Appeal under section 103 of the Extradition Act 2003 dismissed; the District Judge’s decision was upheld.
2. District Judge: The claimant’s submissions were rejected and the case was sent to the Secretary of State under section 92.
3. Secretary of State: Extradition to Switzerland was ordered on 6 November 2007.