Dare v Principal Court of Santa Cruz De Tenerife

Under section 14 of the Extradition Act 2003, the question is whether extradition would be unjust or oppressive because of the passage of time. The court must distinguish that question from whether a fair trial can now be guaranteed. Extradition should be refused only in the exceptional case where the requesting state’s court would be bound to conclude that a fair trial is impossible. A Council of Europe state is ordinarily presumed capable of protecting the accused’s Convention rights. A possible wider category of fugitive, including a person who fails to comply with bail obligations after imprisonment abroad, was recognised but left undecided where the appeal failed on the separate fairness issue.

The claimant appealed under section 26 of the Extradition Act 2003 against the Chief Metropolitan Magistrate’s order for his extradition to Spain to face three charges of rape of a minor.

He argued that extradition was barred by section 14 because of the lengthy passage of time. The issues were whether he was responsible for the delay as a fugitive, and whether extradition would now be unjust because a fair trial might be impossible. Spain was a category 1 territory, so Part 1 of the Act applied.

1. Appeal dismissed. The claimant’s extradition was not barred by section 14 of the Extradition Act 2003.
2. The court treated the first issue as whether the claimant was a fugitive. The classic categories identified in Kakis v Government of Cyprus [1978] 1 WLR 779 are fleeing the country, concealing whereabouts, or evading arrest. Lord Justice Elias considered that those categories might not be exhaustive for deciding responsibility for delay. A person released on bail who leaves the jurisdiction and fails to resume reporting obligations may arguably be responsible for subsequent delay. The point was left open because it was unnecessary to the result.
3. The decisive issue was whether extradition itself would be unjust, rather than whether a fair trial could be shown with certainty in advance. Following the approach in Gomes v The Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038, the relevant question was whether the Spanish court would be bound to conclude that a fair trial was impossible. The approach reflected Woodcock v Government of New Zealand [2004] 1 WLR 1979, approved in Mills v Government of the United States of America [2007] 1 WLR 47.
4. The delay, although substantial, did not establish that result. The claimant had been arrested and investigated before leaving Spain, and had had an opportunity over several years to prepare his defence. The court was satisfied that a fair trial could take place and that the Spanish courts would address fairness if the issue arose. The appeal was therefore dismissed. Legal aid taxation of the claimant’s costs was allowed.

• High Court (Administrative Court): appeal under section 26 of the Extradition Act 2003 dismissed.
• Chief Metropolitan Magistrate: ordered extradition to Spain; the decision is described in the judgment but no citation is stated.