Worsley v Judicial Authority In Portugal

For the passage-of-time bar to extradition under section 14 of the Extradition Act 2003, a person properly characterised as a classic fugitive cannot rely on the provision. Whether proportionality is independently required in applying section 14 was left open. A court should decide that issue when it is decisive, rather than undertake an academic determination. A finding that the person is not a classic fugitive does not itself resolve section 14: the court must still assess whether extradition would be unjust or oppressive by reason of the passage of time.

The claimant appealed against District Judge Riddle’s order of 3 July 2012 for his extradition to Portugal under a European Arrest Warrant. He had been arrested in Portugal in 2002, released on bail, and subsequently left the country. He was arrested in England more than nine years later.

The principal issue was whether he could rely on section 14 of the Extradition Act 2003. The related issue was whether the District Judge was required to consider proportionality, said to arise under European law principles.

1. The appeal was dismissed. The District Judge was entitled, and on the evidence was almost inevitably bound, to find that the claimant was a classic fugitive. The finding was based on a proper assessment of the claimant’s explanation for leaving Portugal, the bail circumstances and the information supplied by the Portuguese judicial authority.
2. The principle that a classic fugitive cannot rely on section 14 derived from Kakis v Government of Cyprus [1978] 1 WLR 779. The claimant therefore could not rely on the passage-of-time bar.
3. The District Judge had also considered the position on the assumption that the claimant was not a classic fugitive. In deciding that extradition would not be unjust or oppressive, he considered the absence of any realistic suggestion that defence evidence or witnesses had been lost, the claimant’s circumstances, and the seriousness of the alleged offences. Although he did not use the word proportionality, he had considered the relevant factors.
4. The court expressly left open whether proportionality, as a matter of European law, was a required consideration under section 14. The observation of Lord Phillips in Assange casting doubt on that issue did not require determination in this case. It was preferable to decide the point when it became decisive.
5. The claimant was ordered to pay the respondent’s costs, summarily assessed at £780, but enforcement was stayed pending a further determination of his ability to pay.

• High Court (Administrative Court) — The appeal against the extradition order made by District Judge Riddle on 3 July 2012 was dismissed.