Hoholm v The Government of Norway

On an appeal under the Extradition Act 2003, an issue available on the evidence below may generally be raised for the first time on appeal. The statutory distinction between a new issue and new evidence is significant.

Double criminality is assessed by reference to the conduct constituting the offence specified in the charge, not wider factual background in the extradition request. Where the charged conduct is not criminal under United Kingdom law, extradition must be refused.

The appellant appealed against District Judge Workman’s decision ordering her extradition to Norway under the Extradition Act 2003. The Home Secretary subsequently decided that she should be extradited.

The extradition request concerned the alleged abduction or continued keeping of the appellant’s children. The charge stated that the relevant conduct began after a Norwegian custody decision, when the appellant and the children were already in Slovakia. The central issues were whether double criminality could be raised for the first time on appeal and whether the charged conduct satisfied the statutory requirements.

1. The appeal was allowed. The extradition order was quashed and the appellant was discharged.

2. Per Lord Justice Stanley Burnton, an appellant is generally entitled to raise on appeal an issue available on the evidence adduced at the extradition hearing, even if it was not raised below. Sections 104(4)(a) and (b) of the Extradition Act 2003 distinguish between a new issue and new evidence. The restriction concerning evidence unavailable at the extradition hearing does not apply to a new issue.

3. The double-criminality question concerned the conduct constituting the offence specified in the request. That conduct was the conduct set out in the charge, which began on 10 March 2006. The wider account of the earlier removal of the children was narrative background and did not enlarge the charged offence.

4. The relevant failure to return the children occurred in Slovakia. Although that conduct was an offence in Norway, it was accepted that a parent’s failure to return children unlawfully removed from the jurisdiction was not an offence under United Kingdom law. The conduct therefore did not satisfy section 137(2) and was not an extradition offence for section 78(4)(b).

5. The specialty provisions in section 95 reinforced that extradition was tied to the offence set out in the charge and to offences disclosed by the same facts. Background material could not cure the failure to satisfy double criminality.

6. Mr Justice Wilkie agreed.

• High Court (Administrative Court): appeal allowed against the decision of District Judge Workman at Westminster Magistrates’ Court dated 5 March 2009; extradition order set aside and appellant discharged.
• Home Secretary: decided on 27 April 2009 that the appellant should be extradited.