Tilson v New Zealand

In extradition proceedings, an accused who has deliberately fled the requesting state will ordinarily be unable to rely on subsequent delay, prejudice to trial, or changed personal circumstances. Only a communicated decision not to pursue the case, or a comparable circumstance creating a justified sense of security, may break that connection. Article 8 requires a proportionality assessment rather than an exceptionality test. Nevertheless, the strong public interest in honouring extradition arrangements means that only striking and unusual facts will ordinarily make extradition disproportionate.

The claimant appealed against the decision of a district judge committing his extradition case to the Secretary of State under the Extradition Act 2003. The Secretary of State subsequently ordered extradition to New Zealand in respect of numerous allegations of fraud, money laundering and participation in organised crime.

The claimant challenged the decision on delay, fair-trial prejudice, oppression, and Article 8 grounds. He also sought an adjournment to investigate fresh allegations concerning harassment of his wife in New Zealand. The central issues were whether delay and changed circumstances barred extradition, whether fresh evidence should be admitted, and whether extradition would be a disproportionate interference with family and private life.

1. The appeal was dismissed. The court refused the requested adjournment. The proposed investigation was unlikely to affect the delay issue, the new evidence had been produced very late, and the Article 8 case differed from that advanced before the district judge.

2. The district judge was entitled to find that the claimant had deliberately left New Zealand to avoid investigation and prosecution. Her assessment of the evidence was careful and comprehensive, and there was ample evidence supporting her conclusion. The appellate court would not interfere merely because other evidence might have been addressed in greater detail.

3. Applying Gomes v Government of Trinidad and Tobago, the court held that deliberate flight will, save in exceptional circumstances, operate as an almost automatic bar to reliance on delay. Subsequent difficulties in obtaining evidence, administrative inactivity, or the passage of time will ordinarily remain attributable to the accused's own conduct. The district judge was entitled to find that the requesting authorities had not been dilatory.

4. The claimant had not shown that extradition would be unjust or oppressive by reason of delay. His business, relationships, and family circumstances did not establish a justified sense of security or otherwise outweigh the extradition interest.

5. Under section 104 of the Extradition Act 2003, the court was prepared to consider fresh evidence on the Article 8 issue, while emphasising that fresh evidence should not routinely be reconsidered on appeal. Following the approach in Ruiz and others v Central Court of Criminal Proceedings No 5 of the National Court Madrid, the court applied proportionality rather than an exceptionality test. The serious allegations and the substantial public interest in giving effect to extradition arrangements meant that the interference with Article 8 rights was proportionate.

6. Mr Justice Cranston agreed. An assessment of the claimant's publicly funded costs was ordered.

• High Court (Administrative Court): appeal from the decision of District Judge Tubbs in the City of Westminster Magistrates' Court on 28 October 2008 dismissed. The district judge had sent the case to the Secretary of State under the Extradition Act 2003, and the Secretary of State had ordered extradition on 18 December 2008.