Mohammed v The Court of Appeal, Paris

An extradition request may be challenged as an abuse of process where the requested sentence is plainly time-barred under foreign law. Such a challenge will arise only in the rarest circumstances. It requires the clearest possible evidence of bad faith by the requesting authority, together with unequivocal evidence that the sentence is time-barred. English courts should generally avoid adjudicating rival interpretations of foreign law in European Arrest Warrant proceedings. The issue is ordinarily for the courts of the requesting state. A guarded expert opinion which does not clearly establish that enforcement is time-barred will not engage the abuse-of-process principle.

The appellant appealed against the Senior District Judge’s decision of 11 April 2013 ordering his extradition to France to serve a three-year sentence imposed by the Paris Court of Appeal for three tax-fraud offences. The European Arrest Warrant had been issued in 2008 and the appellant was arrested in August 2012.

On appeal, he sought to rely on a new report from a French lawyer. He argued that enforcement of the sentence was time-barred under French law and that the extradition request was therefore an abuse of process. The central issues were whether such a challenge could in principle be available and whether the evidence justified requiring a response from the French judicial authority.

1. Appeal dismissed. The report was considered de bene esse, but it did not affect the result.
2. Following the approach in Elpidio Battistini v The Court of Naples, Italy [2009] EWHC 3536 (Admin), it is generally inappropriate for an English court in a European Arrest Warrant case to adjudicate rival interpretations of the requesting state’s law. That question is ordinarily for the courts of the requesting state.
3. The court nevertheless held that an abuse-of-process challenge based on a foreign-law time bar may be available in exceptional circumstances. The clearest possible evidence of bad faith is required, together with unequivocal evidence that the sentence is time-barred. It is generally better to avoid absolute formulations.
4. The expert opinion did not provide a clear and unequivocal assertion that the French sentence could not be implemented. Its guarded terms did not suggest an improper request requiring an explanation from France. The Tollman principle was therefore not engaged.
5. The information supplied by the French Judicial Authority indicated that the relevant prescription date was 4 November 2013, suggesting that time remained before any issue of a sentence time bar arose.
6. The court declined to determine whether the new report was admissible despite Fenyvesi. It observed that parties in extradition proceedings should expect increasing reluctance to grant adjournments or admit late evidence where there has been adequate time for preparation.

• Senior District Judge: On 11 April 2013, ordered extradition to France to serve a three-year sentence.
• High Court (Administrative Court): Dismissed the appeal.