Cheung v Central Magistrates' Court Number 3 of the Spanish High Court, Spain

In extradition proceedings, the passage of time will not ordinarily make extradition unjust or oppressive where the requested person deliberately left the requesting state in breach of bail and the requesting authorities were not culpable for the delay. Oppression requires more than hardship. A requested person must show exceptional circumstances before relying on delay in those circumstances.

Article 8 family-life considerations must also overcome a high threshold. Interference with family life may be justified where extradition is lawful, proportionate and necessary in a democratic society. The court should assume that a Council of Europe state can protect the accused against an unjust trial, subject to any exceptional evidence to the contrary.

Spain sought the claimant’s extradition under a European Arrest Warrant to stand trial for alleged currency falsification and embezzlement arising from the use of cloned bank cards. The alleged conduct occurred in 2002. The claimant had been released on bail in Spain, returned to the United Kingdom in 2003, and did not maintain contact with his Spanish lawyer or comply with the proceedings.

A District Judge ordered extradition after rejecting challenges based on the passage of time under section 14 of the Extradition Act 2003 and alleged interference with family life under Article 8 of the Convention. The claimant appealed, principally arguing that he was not a fugitive and that extradition would be unjust or oppressive.

1. Appeal dismissed. The order for extradition to Spain stood.
2. The claimant had deliberately left Spain while aware that proceedings continued and while subject to bail conditions. The District Judge was therefore entitled to find that he was a fugitive from justice.
3. Applying the observations of Lord Brown in Gomes v Government of Trinidad and Tobago [2009] 1 WLR 1038, the claimant could not rely on the passage of time under section 14 of the Extradition Act 2003 unless exceptional circumstances were shown. The Spanish authorities were not culpable. The delay occurred in the context of a multi-count fraud involving cards from several countries.
4. Oppression went beyond hardship. Spain, as a Council of Europe member, was to be assumed capable of protecting the claimant against an unjust trial, particularly if the trial were expedited.
5. The Article 8 claim did not meet the high threshold identified in Norris. The evidence concerning the claimant’s children disclosed no unusual or compelling feature. The evidence concerning his mother was sparse and deficient, and assistance could be available through public authorities.
6. The District Judge had made no material error and there was no matter that she ought to have decided differently.

1. District Judge: Following a hearing on 19 July 2011, the District Judge rejected the claimant’s objections based on passage of time and Article 8 and ordered extradition to Spain.
2. High Court (Administrative Court): The appeal was dismissed. The extradition order stood.