Atanasova v HMP Holloway & Anor

Under section 11(3) of the Extradition Act 1989, an applicant must be discharged where the accusation is not made in good faith in the interests of justice and return would be unjust or oppressive. “Accusation” extends beyond the formal extradition request to the underlying evidence and conduct giving rise to it. The court must assess bad faith on the evidence, even where the requesting state is expected to provide a fair trial. An accusation is continuing. Bad faith at any stage may taint it, and later changes in circumstances do not automatically expunge original bad faith.

The applicant sought habeas corpus against a decision of the City of Westminster Magistrates’ Court committing her to await the Secretary of State’s decision on an extradition request from Bulgaria. The request, received in 2001, concerned allegations of murder, manslaughter and theft. Because it pre-dated the Extradition Act 2003, the proceedings were governed by the Extradition Act 1989.

The applicant relied on section 11(3)(c), alleging that the accusation was made in bad faith and that return would be unjust or oppressive. She also relied on passage of time. The central issue was whether the evidence concerning the alleged conduct of Bulgarian prosecuting authorities and irregularities surrounding the accusation established bad faith under the 1989 Act.

1. Application allowed; habeas corpus granted. The applicant established, on the balance of probabilities, that section 11(3)(c) of the Extradition Act 1989 was made out. It was therefore unnecessary to decide the passage-of-time ground.
2. The statutory concept of good faith has a reasonably generous scope. It is not confined to the formal extradition request. It includes the underlying accusation and the evidence relied upon. A collateral purpose, improper motive, or deliberate manipulation or misuse of court process may establish the absence of good faith, following Re Osman [1992] Crim LR 741 and R (Saifi) v Governor of Brixton Prison [2001] 1 WLR 34.
3. The court must examine the underlying facts. The fact that the requesting state is expected to provide a fair trial does not answer an allegation that the accusation itself was made in bad faith. Bulgaria’s later membership of the European Union did not convert this pre-2003 Act case into one governed by the Extradition Act 2003.
4. An accusation is continuing until withdrawn or disposed of. Bad faith at any point may taint it. Later events may be relevant to the overall assessment of injustice or oppression, but later changes in influence or circumstances would not, even if established, expunge original bad faith. The approach in Sutej v The Governor of HMP Holloway [2003] EWHC 1940 (Admin) supported applying the statutory test to the material before the court.
5. The applicant’s and Mr Banev’s evidence remained unanswered and raised disturbing concerns about the circumstances in which the accusation and warrant had been pursued. The later explanatory letters did not answer those concerns. The court concluded that the original warrant was invested with bad faith. Nothing in the judgment affected any fresh extradition application under the Extradition Act 2003.

not stated in the judgment.