Davis & Anor v Court of Instruction No2 Benidorm, Alicante, Spain

The statutory bar based on delay in Extradition Act 2003, section 14, is determined by whether extradition would be unjust or oppressive because of the passage of time. Flight from the requesting state does not automatically disqualify an accused from relying on the provision. Its significance is that a person who caused the delay will ordinarily have difficulty establishing injustice. The court must assess the whole range of circumstances, including whether the flight delayed proceedings, the availability of evidence, and the accused’s responsibility for the passage of time. The relevant question is whether return is fair, not whether a fair trial is guaranteed. The appeals were dismissed because neither appellant established injustice or oppression.

The appellants challenged orders made by District Judge Wickham on 19 December ordering their extradition to Spain under European arrest warrants. They were accused of involvement in a 1996 murder in Benidorm, Griffiths as a participant and Davis as the alleged procurer.

The district judge held that neither appellant could rely on the statutory bar arising from delay under sections 11 and 14 of the Extradition Act 2003. She further held that extradition would not in any event be unjust or oppressive. The central issues were whether flight from Spain prevented reliance on section 14 and, if not, whether the passage of time made extradition unjust or oppressive.

1. The appeals were dismissed. The appellants were entitled to rely on section 14 of the Extradition Act 2003, but neither established that extradition would be unjust or oppressive.

2. The words in Kakis v Government of the Republic of Cyprus [1978] 1WLR 779 describe a principle concerning responsibility for delay; they are not statutory words creating an automatic disqualification. The question remains whether extradition would be unjust or oppressive by reason of the passage of time.

3. Where an accused caused the delay by flight, concealment or evasion of arrest, that conduct will ordinarily make an injustice claim difficult to sustain because the accused created the circumstances of which complaint is made. It is nevertheless necessary to evaluate the individual circumstances. The middle ground between deliberate flight from prosecution and lawful departure in ignorance of any accusation must not be overlooked. The unusual-case language in Kryszowski v Circuit Court in Gliwice, Poland [2007] EWHC 2754 Admin does not establish a separate legal standard, and Huang confirms that describing a case as exceptional supplies no measurable test.

4. Griffiths’s departure was not proved to have been undertaken to evade the murder accusation, so it did not bar reliance on section 14. However, his flight from the authorities, its effect on locating him and its prevention of execution of the domestic warrant were highly relevant to injustice. The loss of alibi evidence was insufficiently established, and the proper question was whether it was fair to return him, not whether a fair trial was possible, as explained in Government of Croatia v Spanovich [2007] EWHC 1770 Admin. The possibility of addressing delay-related prejudice in Spain was relevant.

5. Davis’s departure had no effect on the commencement of the murder proceedings, which arose only after new evidence in 2007. He was therefore entitled to rely on section 14, but the five-month period before arrest did not establish injustice. His ill-health did not make extradition oppressive because adequate medical treatment was available in Spain. The approach was consistent with Woodcote v New Zealand [2004] 1 WLR 1979.

• High Court (Administrative Court): Appeals from District Judge Wickham’s extradition orders of 19 December were dismissed.