Friesel v Government of the United States of America

Under section 82 of the Extradition Act 2003, passage of time bars extradition only where extradition would be unjust or oppressive. The person invoking the bar bears the burden on the balance of probabilities. Deliberate flight, concealment or evasion is a relevant factor and, where relied upon as automatically preventing reliance on delay, must be proved beyond reasonable doubt. There is no fixed period after which extradition becomes unjust or oppressive. The court must consider the particular prejudice to a fair trial, the hardship caused by changed circumstances, and safeguards available in the requesting state. Properly authenticated documents may be admitted in extradition proceedings despite containing hearsay; hearsay goes to weight. Ordinary family hardship does not meet the exceptional threshold for an Article 8 bar.

The claimant appealed against District Judge Tubbs’s decision to send his extradition case to the Secretary of State and against the resulting order for his extradition to the United States. The requested extradition concerned historic frauds involving public funding programmes and related offences.

The claimant relied on the passage of time, alleged prejudice arising from the death of a potential defence witness, the inadmissibility or unreliability of a United States evidential letter, oppression, Article 8 of the European Convention on Human Rights, and possible sentencing disparity. The central issues were whether the statutory bar under section 82 of the Extradition Act 2003 was established and whether the District Judge had applied the correct evidential rules and standards.

1. Appeal dismissed. The District Judge had correctly applied section 82 of the Extradition Act 2003. The claimant bore the burden of establishing injustice or oppression on the balance of probabilities.
2. The principles in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, reaffirmed in Gomes and Goodyer v Government of Trinidad and Tobago [2009] UKHL 21, distinguish injustice, principally concerning prejudice to the trial, from oppression, principally concerning hardship caused by changed circumstances. The concepts overlap. There is no fixed cut-off point, and the question depends on the particular case.
3. Where deliberate flight is relied upon as an almost automatic bar to reliance on delay, the requesting state must prove deliberate flight beyond reasonable doubt. That was the rule applied in Krzyzowski v Poland [2007] EWHC 2754 (Admin). That rule did not govern this case because the District Judge made a straightforward section 82 assessment in which the claimant’s contribution to delay was only one relevant factor.
4. The possible loss of evidence did not establish that a fair trial was impossible. Evidence from the deceased community leader’s widow would not address the claimant’s state of mind when documents were signed, other witnesses could describe the deceased’s role and relationship with the claimant, and relevant documents might remain available. The District Judge was entitled to find that the claimant had contributed substantially to the delay.
5. The United States evidential letter was admissible. Section 202 of the Extradition Act 2003 permits duly authenticated documents issued in a category 2 territory to be received in evidence. The presence of hearsay did not exclude the document, although it affected the weight to be given to it. The reasoning in Savvas v Government of Italy [2004] EWHC 1233 (Admin) applied equally to the United States.
6. Family circumstances and ordinary hardship did not meet the very high threshold for an Article 8 bar identified in Jaso, Lopez and Hernandez v Central Criminal Court No 2 Madrid [2007] EWHC 2983. The possible sentencing disparity was properly considered because a United States sentencing judge could take it into account.

1. High Court (Administrative Court): The Divisional Court dismissed the appeal against the District Judge’s decision. The Secretary of State’s extradition order was not challenged in this appeal.
City of Westminster Magistrates’ Court: District Judge Tubbs sent the case to the Secretary of State after rejecting the statutory and Convention objections.