Cousins, R (On the Application Of v The Public Prosecution of the Grande Instance Tribunal of Bouloogne Sur Mer, France

Section 14 of the Extradition Act 2003 does not permit a person convicted in absentia, but entitled to a retrial, to rely on the passage of time applicable to an accused person. Any resulting injustice or oppression may nevertheless be considered within the broader proportionality assessment under Article 8. General assertions about delay, unavailable witnesses and faded memories do not establish injustice without evidence of concrete prejudice. Abuse of process requires bad faith: deliberate exploitation of extradition procedures to create unfairness or disadvantage. Extradition will be disproportionate only where the interference with private or family life outweighs the public interest in prosecution or enforcement of the sentence. On the facts, it was neither oppressive nor disproportionate.

The claimant, aged 63 and of good character, challenged an order by District Judge Coleman at Westminster Magistrates’ Court directing her extradition to France. She had been convicted in her absence of VAT and accounting offences and sentenced to one year’s imprisonment. The European arrest warrant stated that she had not been summoned or informed of the trial, but could seek to set aside the conviction and obtain a retrial in France.

The claimant argued that extradition was unjust or oppressive because of the passage of time, constituted an abuse of process, and disproportionately interfered with her family life and health under Article 8. The central issues were whether section 14 applied, whether the requesting authorities had abused the process, and whether extradition was disproportionate.

1. Outcome. The appeal against the extradition order was dismissed.
2. Section 14. Section 14 of the Extradition Act 2003 distinguishes between the passage of time since the alleged offence, where the person is accused, and the passage of time since becoming unlawfully at large, where the person has been convicted. A person convicted in absentia who is entitled to a retrial remains within the convicted-person limb for this purpose. The possibility of being treated as an accused person after return for the retrial does not bring the case within the alternative limb.
3. Injustice and oppression. The court considered the relevant factors under section 21 and Article 8 so that the claimant suffered no disadvantage from the limited operation of section 14. General claims that witnesses may be unavailable or memories may have faded were insufficient. The alleged defence depended substantially on documentary evidence, and no concrete forensic prejudice was shown. The likely temporary detention and difficulty obtaining bail in France were serious disadvantages, but did not approach the high threshold of oppression.
4. Abuse of process. The French authorities could have notified the claimant of the trial but their failure to do so did not, without more, constitute abuse. Abuse required bad faith, namely deliberate exploitation of the procedure to create prejudice or unfairness. The unusual French procedure and its resulting disadvantages did not establish that intention. Federal Public Prosecutor, Brussels v Bartlett [2012] EWHC 2480 (Admin) was materially distinguishable because it involved substantially more troubling prosecutorial conduct.
5. Article 8 proportionality. The claimant’s age, health, anxiety, family responsibilities and the effect on her husband were weighed against the seriousness of the alleged tax offences and the substantial public money said to have been evaded. Extradition was not disproportionate. The District Judge’s decision was not shown to be wrong.

• Westminster Magistrates’ Court: District Judge Coleman ordered extradition on 3 March 2014.
• High Court (Administrative Court): The challenge was dismissed on 2 July 2014.