Penta v District Public Prosecutors Office Zwolle-Lelystad Netherlands

In extradition proceedings, substantial delay may make return oppressive even where the requesting state is not shown to have acted culpably. The court must focus on the effect of the delay and the resulting changes in the individual’s circumstances. Relevant considerations include the authorities’ conduct, whether it created a false sense of security, the length of the delay, the seriousness of the offence, and the individual’s subsequent circumstances and lifestyle.

Deliberate absence requires more than mere departure from the jurisdiction. The individual must have been culpably absent in order to avoid prosecution or enforcement of the sentence. Continuing misconduct does not operate against the individual, although it cannot be relied upon as a factor in his favour.

The appellant challenged an order made by District Judge Evans at the City of Westminster Magistrates’ Court on 3 February 2011 for his extradition to the Netherlands under a European Arrest Warrant. The request concerned an outstanding sentence of 292 days’ imprisonment imposed in the appellant’s absence in 1995 for possession of heroin.

The appellant had been deported from the Netherlands to Italy in June 1995 and had heard nothing further about the sentence until the European Arrest Warrant was served in October 2010. The appeal concerned whether the passage of time made extradition oppressive and whether the appellant had deliberately removed himself from the jurisdiction to avoid serving the sentence.

1. Appeal allowed. The order for extradition was quashed.
2. The test in Kakis v Government of Cyprus [1978] 1 WLR 779 applied. The appellant’s absence did not fall within the classic categories of fleeing the country, concealing his whereabouts or evading arrest. The broader approach described in Dare v Principal Court of Santa Cruz De Tenerife [2010] EWHC 366 (Admin) did not assist the respondent because this appellant had reasonably believed, following his deportation and the instruction not to return, that the deportation replaced any further penalty.
3. For oppression caused by delay, the court must focus principally on the effect of the delay and the events that would not have occurred had the case proceeded with ordinary promptitude. State culpability may be relevant, but it is not a necessary condition. The relevant question is whether return would be oppressive in the individual circumstances.
4. The factors identified in Wenting v High Court of Valenciennes [2009] EWHC 3528 (Admin) were material. They included the authorities’ conduct, any failure to inform the individual that return was required, the creation of a false sense of security, the length of the delay, the seriousness of the offence and the individual’s lifestyle and present circumstances.
5. The appellant’s continuing criminality did not count against him. It simply meant that he could not rely on a positive change of lifestyle in support of his case. The substantial delay, the deportation-related confusion, the resulting false sense of security, the comparatively less serious nature of the offence and the appellant’s current family circumstances cumulatively made return oppressive. The court emphasised that the decision was fact-sensitive and created no new general rule.

The appellant was awarded a detailed assessment of his legally aided costs. The case was not certified.

• High Court (Administrative Court): Allowed the appeal against the extradition order and quashed it.
• City of Westminster Magistrates’ Court: District Judge Evans ordered extradition on 3 February 2011.