Jaffar, R (on the application of) v The Secretary of State for the Home Department & Anor

On judicial review of an extradition decision, the court exercises a supervisory jurisdiction with heightened care because liberty is at stake. It does not rehear disputed expert evidence or substitute its own view. A decision on treaty-based limitation must address whether the person has become immune from prosecution; the person claimed bears the persuasive burden on the balance of probabilities. The passage of time does not create an automatic cut-off for extradition. Whether return would be unjust or oppressive depends on its practical effect, including prejudice to the trial and hardship caused by changed circumstances.

The claimant sought judicial review of the Secretary of State’s order under section 12 of the Extradition Act 1989 for his return to Spain to face charges equivalent to conspiracy to defraud. He argued that the charges were time-barred under Spanish law and that, after more than 20 years, return would be unjust or oppressive.

The extradition proceedings had begun under the 1989 Act. The claimant’s earlier habeas corpus challenge had been dismissed in [2003] EWHC 3077 (Admin). Following further representations and expert evidence on Spanish limitation law, the Secretary of State maintained the return order. The central issue was whether that decision was Wednesbury unreasonable.

1. Judicial review. The court’s role was supervisory, not appellate, but required heightened scrutiny because the decision affected the claimant’s liberty. The same careful approach applied to the limitation issue under Article 10 of the European Convention on Extradition 1957 and to section 12(2)(a)(ii) of the Extradition Act 1989.
2. Limitation. The Secretary of State had made a positive decision that the claimant had not become immune from prosecution. The court provisionally considered that she was required to decide the Article 10 issue and that the person claimed had to show, on the balance of probabilities, that immunity by lapse of time had arisen. The point did not ultimately determine the claim because the Secretary of State had reached a positive conclusion.
3. The Secretary of State was entitled to accept the Spanish prosecutor’s expert evidence where it was properly reasoned and supported by the materials. The court could intervene only if the evidence displayed an evident flaw, such as lack of qualification, manifest partisanship, incoherent reasoning or absence of supporting material. The conclusion that the charges were not time-barred was rational.
4. Unjust or oppressive return. Injustice primarily concerns prejudice to the conduct of the trial, while oppression concerns hardship caused by changes in the accused’s circumstances. Delay caused by the accused’s own conduct could not ordinarily found relief. There was no automatic time limit: extradition more than 20 years after the alleged offences still required a fact-sensitive assessment.
5. The Secretary of State was entitled to consider the seriousness of the alleged fraud, the claimant’s knowledge of the proceedings, the availability of documentary evidence, his failure to engage with the Spanish proceedings, and the fact that much later delay followed requests to defer decisions or pursue limitation arguments. The claim was dismissed.

The judgment states that the claimant’s earlier habeas corpus application was dismissed by the Administrative Court in [2003] EWHC 3077 (Admin). The present court rejected the subsequent judicial review challenge to the Secretary of State’s order for return.