Khan v Central Trial Court No 3 National High Court Spain

In deciding whether extradition would be unjust or oppressive because of delay, the court must assess all relevant circumstances cumulatively. The seriousness of the alleged offence increases the burden on the person resisting extradition. Culpable delay by the requesting state is ordinarily relevant only where the case is close to, or on the borderline of, oppression. The court must also consider the effect of extradition on family members, including children, but the weight of that factor depends on the evidence and the nature of the relationship. A failure to make a separate finding on culpability will not justify allowing an appeal where culpable delay could not affect the outcome.

The appellant challenged an order made by District Judge Purdy at Westminster Magistrates’ Court on 24 February 2012 directing his extradition to Spain under a European Arrest Warrant. Spain sought his return for trial for cocaine trafficking arising from his arrest in Barcelona in 2005. The appellant relied on the delay, his alleged belief that the Spanish proceedings had ended, his marriage and his relationship with his young son in England.

The central issue was whether, having regard to the delay and the appellant’s personal and family circumstances, extradition would be unjust or oppressive under the Extradition Act 2003.

1. The appeal was dismissed. The Divisional Court upheld the district judge’s conclusion that extradition would not be unjust or oppressive.

2. The question is fact-sensitive and requires consideration of all relevant circumstances. The seriousness of the alleged offence is a critical factor and raises the burden on the appellant to establish oppression. The alleged offence involved a substantial quantity of cocaine.

3. Culpability for delay by the requesting state is not generally decisive. It may tip the balance only in a borderline case. This was not such a case, so the absence of a separate finding on culpability could not have altered the result.

4. The court took account of the guidance in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] 3 WLR 90, requiring the effect of extradition on the family, including children, to be considered. The appellant’s son did not live with him, and there was no evidence of the kind relied on in HH concerning adverse effects on the child. Those matters therefore did not outweigh the public interest in extradition.

5. The delay and the appellant’s sense of security were factors in his favour, but they could not prevail against the seriousness of the charge and the public interest in cross-border criminal justice. The court ordered that the appeal be dismissed.

1. High Court (Administrative Court): appeal against the extradition order dismissed.

2. Westminster Magistrates’ Court: District Judge Purdy ordered extradition to Spain on 24 February 2012.