O'Connell, R (on the application of) v Judicial Authority of Santa Cruz De Tenerife

Under section 14 of the Extradition Act 2003, the passage of time may make extradition oppressive even where the requested person knew of the eventual sentence and was technically unlawfully at large for only part of the period. The court must assess the impact of the delay in the context of the whole history. Relevant considerations include the person’s reasonable sense of security, the length and unexplained nature of the requesting state’s delay, and the consequences of extradition. The mere passage of time is not determinative, and appellate courts should normally respect the district judge’s evaluative judgment. However, an unexplained delay in seeking execution, viewed against the full history and personal consequences, may require discharge.

The appellant challenged a decision of District Judge Coleman at Westminster Magistrates’ Court ordering his extradition to Spain to serve five years of an eight-year sentence for manslaughter. He relied on section 14 of the Extradition Act 2003, contending that extradition would be unjust or oppressive because of delay. He also argued under section 20 that he was not entitled to a retrial because he had not been present before the Spanish Supreme Court. The central issue was whether extradition had become oppressive by reason of the passage of time.

1. The appeal was allowed and the appellant was ordered to be discharged.
2. The question under section 14 of the Extradition Act 2003 was whether extradition would be oppressive: [1978] 1 WLR 779. The mere passage of time was not decisive. Nor was the appellant’s degree of confidence or security determinative.
3. Although appellate courts should hesitate before disturbing the district judge’s value judgment, the district judge had failed properly to account for the period during which the appellant could reasonably have believed that the matter was over. He knew of one appeal, but not of the further appeal which ultimately increased the sentence to eight years.
4. The period after the appellant became unlawfully at large had to be assessed in the context of the entire history. The offence had occurred nearly ten years earlier; the appellant had already spent three years in custody; he had lawfully left Spain without any obligation to return; and, after learning of the final sentence, he heard nothing while the authorities took more than three years to issue the arrest warrant.
5. The authorities provided no sensible explanation for the delay. Their unsuccessful attempts to locate the appellant at a holiday address did not justify the delay, particularly since the warrant recorded that his address was unknown. In the circumstances, the delay and its impact on the appellant made extradition oppressive rather than merely harsh.
6. The section 20 argument was not determined because it was unnecessary. The judge indicated that, had it been necessary, he would have rejected it.

• High Court (Administrative Court): Allowed the appeal against the order of District Judge Coleman and ordered the appellant’s discharge.
• Westminster Magistrates’ Court: Ordered extradition to Spain to serve five years of an eight-year sentence.