Akyol v DPP Zwolle Lelystad Netherlands

In an extradition appeal based on delay, the question is whether surrender would be oppressive in the circumstances, including whether the requested person deliberately evaded enforcement. A person who knows that the requesting state seeks to enforce a sentence and deliberately remains abroad to benefit from the expiry of a limitation period may properly be treated as evading arrest. Delay will not ordinarily be oppressive where the person was present and represented during the criminal proceedings, was notified of the obligation to serve the sentence, and understood that remaining abroad would postpone enforcement. An exceptional case involving a person tried in absence, returned with the requesting state’s permission to a known address, and never notified of the requirement to return was distinguishable.

The claimant appealed under section 26 of the Extradition Act 2003 against a decision of a Designated District Judge ordering his extradition to the Netherlands to serve the outstanding part of a sentence imposed after his conviction there. He had been present at his trial and first appeal and legally represented throughout the criminal proceedings. The Dutch authorities later notified him that he was required to report to prison. He remained in the United Kingdom after receiving legal advice that enforcement would be time-barred after 16 years.

Before the Administrative Court, the central issue was whether the passage of time and the claimant’s personal circumstances made surrender oppressive within section 14 of the Act.

1. The appeal was dismissed. The District Judge was entitled to find that the claimant had evaded arrest from 1996 onwards. The claimant knew that the Dutch authorities were seeking to enforce the sentence, had been notified of the requirement to report to prison, and had been advised that he could avoid serving the sentence if he remained outside the Netherlands until the relevant 16-year period expired.
2. The absence of correspondence to the claimant’s English address supported the District Judge’s rejection of the claimant’s account that his wife had given the Dutch authorities that address. The Court was entitled to take that evidential point into account.
3. The claimant’s presence at trial and on his first appeal, his continuous legal representation, notification of the sentence-enforcement requirement, and knowledge of the limitation period materially distinguished the case from Wenting v High Court of Valenciennes [2009] EWHC 3528 (Admin). In Wenting, the requested person had not deliberately fled, had been returned to a known address with the authorities’ permission, had been tried in absence, had not been notified of the requirement to return, and had not been told of the arrest warrant.
4. The claimant’s respectable and useful life, family circumstances and active interests in the United Kingdom did not establish oppression within section 14. The fact that he was not living secretly did not alter the conclusion.
5. Lord Justice Laws agreed with Mr Justice McCombe’s judgment. Detailed assessment of the claimant’s publicly funded costs was ordered.

• City of London Magistrates’ Court: A Designated District Judge ordered extradition on 25 November 2009, rejecting arguments based on abuse of process and passage of time under section 14 of the Extradition Act 2003.
• High Court (Administrative Court): The appeal under section 26 of the Extradition Act 2003 was dismissed.