Hertel v Government of Canada

Under Extradition Act 2003 s.82, delay caused by deliberate flight, concealment or evasion of arrest will ordinarily not make extradition unjust or oppressive, save in wholly exceptional circumstances. For double criminality under s.137, the court applies the conduct test: whether the alleged conduct, notionally transposed to the United Kingdom with the relevant legal environment, would constitute a qualifying United Kingdom offence. The requesting state must prove that proposition to the criminal standard under s.206. Proper inferences may be drawn, but speculation about unstated facts cannot establish the extradition offence.

The appellant challenged decisions concerning his extradition to Canada. The City of Westminster Magistrates Court had sent the case to the Secretary of State, who ordered extradition. The separate appeal against the Secretary of State’s decision was not independently pursued.

The live issues were whether the alleged conduct constituted an extradition offence under s.137(2)(b) and whether extradition was barred by delay under s.82. The alleged conduct concerned payments between companies said to involve tax offences.

1. Appeal allowed on the tax point. The delay argument was rejected. Delay caused by the appellant’s deliberate flight could not ordinarily support reliance on s.82. No wholly exceptional circumstance was shown.

2. Section 137 applies the conduct test identified in Norris [2008] 1 AC 920. The question was whether the alleged conduct, if it had occurred in England, would constitute cheating the Revenue under English law.

3. Under s.206, Canada had to prove that proposition to the criminal standard. It did not have to prove the conduct itself in the extradition proceedings.

4. The proposed corporation-tax, employment-income and distribution cases depended on speculation or uncertain inferences. The evidence did not establish a qualifying United Kingdom tax liability or that the payment benefited the appellant in the necessary legal sense.

5. Section 137(2)(b) was therefore unsatisfied and the appellant was entitled to be discharged. The alternative constructive-trust argument was not decided.

• High Court (Administrative Court): allowed the appeal from the City of Westminster Magistrates Court’s decision of 4 December 2009. The separate appeal against the Secretary of State’s order of 1 February 2010 was not independently pursued.