Government of the United States of America v Wood

In a Part 2 extradition case, oppression caused by delay is assessed under Extradition Act 2003, section 82. The court must identify the period for which the requested person is not responsible and examine the effect of that delay on the person’s circumstances. Responsibility for delay is generally less important than its effect, although the requesting state’s conduct may be relevant in an exceptional case. No separate requirement of an extreme or exceptional case applies. Unjustified delay and re-issue of an extradition request do not, without more, constitute abuse of process where section 82 provides the statutory mechanism for assessing injustice or oppression. The extradition hearing remains open until the judge has decided the request, so further evidence may be admitted before judgment is handed down.

The Government of the United States sought the respondent’s extradition to face 14 charges of wire fraud allegedly committed between 2002 and 2004. An earlier extradition request failed because the respondent was not extradited within the statutory time limit after his discharge by the Divisional Court in 2007. A second request was submitted in 2010. The respondent was discharged by a district judge, who held that extradition would be oppressive under section 82 of the Extradition Act 2003 and rejected an abuse of process argument.

The United States appealed under section 105. The issues included service of the appeal notice, the proper approach to oppression by reason of delay, the admissibility of evidence before judgment was handed down, and whether re-issue after delay constituted abuse of process.

1. Jurisdiction and service. The Secretary of State was not a respondent to an appeal under section 105 because she had not been a party to the proceedings below and had not been joined. The appellant had to serve her with a copy of the appellant’s notice under paragraph 21.1(12) of Practice Direction 52D, but failure to do so did not deprive the court of jurisdiction. The notice of appeal was valid because it had been filed and served on the respondent within the applicable 14-day period.
2. Oppression. The approach in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 formed part of that decision’s ratio and had been adopted by its majority. The relevant question is ordinarily the effect of delay and the changes it has produced in the requested person’s circumstances, rather than blameworthiness for the delay. The formulation is not rigid: the requesting state’s conduct may matter where it induced the person to organise his life on the basis that prosecution would not occur. Even then, the requested person must show an oppressive effect. No extreme-case or exceptionality threshold applies.
3. The relevant period was approximately six and a half years, excluding delay attributable to the respondent after the second request. The earlier discharge was relevant but deserved little weight. The unexplained delay in making the second request was important. The asserted family life was substantially undermined by the respondent’s dishonesty and circumstances. The seriousness of the alleged fraud and the public interest in trial weighed against oppression. His domestic convictions did not establish rehabilitation or oppression. Taken together, the circumstances did not pass beyond hardship, and the district judge’s conclusion was wrong.
4. Further evidence and abuse of process. The extradition hearing continued until the judge dealt with the request by deciding it, so there was jurisdiction to receive evidence before judgment was handed down. The court accepted the existence of a residual abuse of process jurisdiction, derived from Bermingham v Director of the Serious Fraud Office [2007] QB 727, but held that re-issue and unjustified delay alone did not establish abuse. Section 82 provided the exclusive statutory route for evaluating the consequences of delay in this Part 2 case.
5. The appeal was allowed. The discharge order was quashed. The case was remitted to Westminster Magistrates’ Court with a direction to send it to the Secretary of State, and the respondent was remanded on bail pending that court’s decision.

1. High Court (Administrative Court): The appeal under section 105 was allowed. The district judge’s discharge order was quashed and the case was remitted to Westminster Magistrates’ Court.
2. Divisional Court: The respondent had earlier been discharged on 30 July 2007 because the statutory extradition time limit had expired, after his first appeal had been dismissed.