United States of America (USA) v Shlesinger

In a Part 2 extradition case, dual criminality must be determined from the conduct alleged in the extradition request and its supporting documents. A requested person may not contradict that account with extraneous evidence, except where the narrow abuse of process jurisdiction is established. Custody does not require physical restraint: confinement within an open prison under the direct control of the authorities may suffice.

Article 8 proportionality requires consideration of the likely consequences of extradition, including custody pending trial and after sentence. In rare and exceptional circumstances, those consequences, combined with the offence’s limited gravity, delay and established family and private life, may make extradition disproportionate.

The Government of the United States sought the respondent’s extradition for an alleged escape from an open federal prison camp in 1991. The extradition request stated that he was prohibited from leaving the camp, although he was not physically restrained.

District Judge Evans discharged the respondent, holding that the alleged conduct did not establish an extradition offence. He also rejected an abuse of process argument and concluded that extradition would not disproportionately interfere with Article 8 rights. The United States appealed. The appeal concerned dual criminality, abuse of process, and the proportionality of extradition in light of the respondent’s family and private life and the likely period of detention in the United States.

1. Dual criminality. The court allowed the appeal on the first issue in substance. Under Part 2 of the Extradition Act 2003, the court had to determine whether the alleged conduct constituted an offence under the law of England and Wales. That question had to be answered from the documents constituting the extradition request. Extraneous evidence contradicting those documents was inadmissible, subject only to the narrow abuse of process exception.
2. The common law offence of escape required custody, knowledge of custody, lawful custody and intentional escape. Physical restraint was unnecessary. A person remained in custody where he was within the place of detention, under the direct control of the authorities, and knew that he was prohibited from leaving. On the description in the request, the respondent was therefore in custody and the conduct constituted an extradition offence.
3. Abuse of process. An extradition request must fairly, properly and accurately describe the alleged conduct. The jurisdiction to prevent extradition for an inaccurate description was exceptional. The true facts had to be clear and beyond legitimate dispute, and the error had to be material. The respondent’s evidence that inmates commonly worked at the nearby air force base did not establish that he was there when he absconded. The abuse argument therefore failed.
4. Article 8. Applying H(H) v Deputy Prosecutor of the Italian Republic, Genoa, the court assessed the seriousness of the offence, the delay, the respondent’s blameless life in the United Kingdom, and the dependence of children and other persons upon him. It was relevant to consider whether a UK court would impose immediate custody, while recognising that the seriousness of the offence was ultimately for the requesting state.
5. On the evidence, the respondent was likely to be detained pending trial, receive a custodial sentence if convicted, and remain detained pending deportation. In this rare and exceptional case, those consequences made extradition a disproportionate interference with Article 8 rights. The respondent was entitled to remain discharged.

1. Westminster Magistrates’ Court. District Judge Evans discharged the respondent in a reserved judgment dated 18 January 2013.
2. High Court (Administrative Court). The United States appealed. The court upheld the respondent’s discharge because extradition would breach Article 8, although it rejected the District Judge’s approach to dual criminality and abuse of process.