Von Der Pahlen v Leoben High Court, Austria

For an extradition warrant to comply with section 2(4)(c) of the Extradition Act 2003, it must give sufficient information to identify what the requested person is alleged to have done, when and where it occurred, and the law allegedly contravened. It need not provide particulars equivalent to those required for an indictment.

Under section 14, whether passage of time makes extradition unjust or oppressive requires an overall assessment of all the circumstances. The court must consider prejudice to the fairness of the trial and hardship arising from changed circumstances. Delay attributable to the requested person cannot ordinarily support the objection. Article 8 proportionality is relevant, but extradition will generally require striking and unusual facts before interference with family life is disproportionate.

The appellant challenged an order by Deputy Senior District Judge Daphne Wickham directing his extradition to Austria under a European arrest warrant. A previous warrant had failed because its particulars were inadequate, and the present appeal concerned two charges: commercial fraud and embezzlement.

The appellant argued that the new warrant still failed to satisfy section 2(4)(c) of the Extradition Act 2003. He also argued that the passage of time made extradition unjust or oppressive because evidence had been lost, he had acquired a settled family life in Wales, and his wife’s health had deteriorated.

1. Appeal dismissed. The court upheld the District Judge’s order for extradition on the two charges.
2. Section 2(4)(c) of the Extradition Act 2003 requires particulars sufficient to tell the requested person what he is alleged to have done wrong, when and where he allegedly did it, and what law he allegedly contravened. The statutory requirement should be read consistently with Article 8(1)(e) of the Council Framework Decision. It does not require the specificity of an indictment. The warrant sufficiently identified the victims, payments, alleged misrepresentations, time periods, sums and method of the alleged embezzlement.
3. Section 14 requires an overall assessment of whether extradition would be unjust or oppressive by reason of the passage of time. The distinction identified in Kakis v Government of the Republic of Cyprus between trial prejudice and hardship from changed circumstances remains useful, although the concepts may overlap. The approach in La Torre v The Republic of Italy was adopted: all circumstances must be considered, without rigid rules, and culpable delay by the requesting state may be relevant but is not automatically decisive.
4. The delay was not particularly long. The appellant had not shown significant trial prejudice from missing documents, and the District Judge’s factual findings were entitled to respect under Wiejak v Olsztyn Circuit Court of Poland. The appellant had known that further proceedings were likely and had not established that the missing material made a fair trial impossible.
5. Article 8 of the Convention was engaged and required a proportionality assessment. Following Ruiz and others v Central Court of Criminal Proceedings No 5 of the National Court, Madrid, substantial weight had to be given to the public interest in honouring extradition treaties, although no exceptionality test was permissible. The appellant’s family circumstances and his wife’s health did not make extradition disproportionate or oppressive.

• High Court (Administrative Court): appeal against the extradition order dismissed, [2009] EWHC 383 (Admin).
• District Judge: Deputy Senior District Judge Daphne Wickham ordered extradition on 10 October 2008.