Dudko v The Government of the Russian Federation

In an extradition request under Part 2 of the Extradition Act 2003, the particulars must identify the conduct alleged to constitute the offence with sufficient clarity. The court should read the requirement consistently with the more comprehensive wording applicable to European Arrest Warrant cases, using the plain and ordinary meaning of the statutory language. A lengthy request is insufficient where it leaves unclear whether the alleged conduct concerns tax evasion or exchange-control evasion, particularly where only one would constitute an offence in the United Kingdom. Where the allegations cannot be separated into extraditable and non-extraditable conduct, the request fails the statutory requirement and discharge must follow.

Russia sought the extradition of the appellant to face charges under Articles 174 and 210 of the Russian Criminal Code arising from his furniture-importing business. The District Judge rejected his challenge to the particularity of the request and later concluded that extradition would not create a real risk of a flagrant denial of justice under Article 6. The Secretary of State ordered extradition under section 93 of the Extradition Act 2003. On appeal, the appellant challenged both conclusions. The central issues were whether the request contained sufficient particulars under section 78(2)(c), and whether the proposed trial in Russia would be incompatible with Article 6.

1. Appeal allowed. The extradition request failed to satisfy section 78(2)(c) of the Extradition Act 2003, and the appellant’s discharge was ordered.
2. Although section 78(2)(c) uses narrower language than section 2(4)(c), the two provisions should be interpreted to the same effect. The requirement is to be given its plain and ordinary meaning, without adding a gloss. The request must identify the conduct alleged to constitute the offence with sufficient clarity. This approach was consistent with Von Der Pahlen v Austria and Ektor v The Netherlands.
3. The request supplied useful details concerning dates, sums, companies, transactions and documents. It nevertheless failed to make clear whether the alleged criminal conduct was a conspiracy to evade tax or a conspiracy to evade exchange-control regulations. The allegation that the transactions were intended to evade tax did not identify the tax said to have been evaded or the unlawful origin of the funds.
4. The ambiguity was material because evasion of exchange controls would not constitute an offence under United Kingdom law, whereas a sufficiently particularised conspiracy fraudulently to evade tax might do so under section 137(2)(b). The allegations could not realistically be divided so as to permit extradition only for an extraditable part.
5. The court recorded, without finally deciding, the Article 6 issue. The authorities establish that the relevant threshold is a trial process involving a flagrant denial of justice, or a nullification or destruction of the essence of the Article 6 rights. The court also identified serious questions about whether a fair trial is possible where credible evidence shows corruption or bad faith by those responsible for investigating or prosecuting the case, but the accused cannot raise that matter in the trial or obtain relevant documents. No final conclusion was expressed because the appeal succeeded on particularity.

• High Court (Administrative Court): Allowed the appeal against the District Judge’s decisions, held that the extradition request was insufficiently particularised, and ordered the appellant’s discharge.
• City of Westminster Magistrates’ Court: The District Judge rejected the challenge to the particularity of the extradition request and later held that extradition would not be incompatible with the appellant’s Convention rights.
• Secretary of State: Ordered extradition under section 93 of the Extradition Act 2003.