Wenting v Appellant

For the purposes of the statutory bar based on delay, responsibility cannot be attributed to an accused merely because he remained abroad after being released on bail with the requesting state’s permission. The court must determine whether the accused caused the delay and, if not, assess its effect. Oppression requires an overall judgment under the statutory language, rather than rigid application of judicially developed rules. Relevant factors may include failure to notify the accused of the trial or the need to surrender, knowledge of his whereabouts, the length and unexplained nature of the delay, his conduct during the intervening period, and serious consequences for his personal and business circumstances.

Mr Wenting appealed under Extradition Act 2003, section 26, against District Judge Riddle’s order of 13 October 2009 for his extradition to France under a European Arrest Warrant. He had been arrested in France in 1989, released on bail in 1991 with permission to return to the Netherlands, and later convicted and sentenced in his absence. The French authorities knew his address, but he was not notified in time of the trial and was not shown to have been required to return to serve his sentence. The issue was whether extradition was barred as oppressive by the passage of time under section 14.

1. Appeal allowed. The court held that extradition to France would be oppressive by reason of the passage of time. The appellant was therefore entitled to discharge under section 27(5) of the Extradition Act 2003.
2. The principles in Kakis v The Government of the Republic of Cyprus [1978] 1 WLR 779, as explained in Gomes v Government of Trinidad and Tobago and Goodyer v Government of Trinidad v Tobago [2009] 1 WLR 1938, distinguish delay caused by the accused’s flight, concealment or evasion from delay not caused by the accused. In the first category, the accused ordinarily cannot rely on consequences of his own conduct. The present case fell within the second category. The appellant had left France with permission, remained openly at an address known to the French authorities, and had not been shown to have evaded arrest or breached bail.
3. The court applied the statutory words in section 14. An overall judgment on the merits was required, without treating the case law as if it had statutory force. The relevant question was principally the effect of the delay, while responsibility for it remained material in deciding which category the case occupied.
4. The cumulative circumstances made extradition oppressive: the appellant had not been notified of the trial; he had not been told to return to serve his sentence; no warrant had been brought to his attention; more than twenty years had elapsed without explanation; he had lived a blameless and useful life; and extradition would have serious consequences for his ill partner and the businesses they depended on.
5. Lord Justice Maurice Kay agreed with the reasoning and the result. The appeal was allowed.

• High Court (Administrative Court): allowed the appeal against District Judge Riddle’s order dated 13 October 2009 and held that extradition to France was barred under section 14 of the Extradition Act 2003.