Rahman v County Court of Boulogne Sur Mer, France

For the purposes of the oppression limb of section 14 of the Extradition Act 2003, a person convicted in absentia without notice who has not evaded justice remains treated as an accused person. Delay may therefore be assessed from the alleged commission of the offence, rather than only from the conviction. Oppression principally concerns hardship caused by changes in the accused’s circumstances during the relevant period. The court must assess the effect of delay, while culpable delay may carry greater weight. Under Article 8, the welfare of an affected child is a primary, though not determinative, consideration. The question is whether the interference with family life is justified by the gravity of the public interest in extradition. In the particular circumstances, the combination of unexplained delay, established family life and the appellant’s central role in caring for his seriously ill child made extradition oppressive and disproportionate.

Farzal Rahman appealed against District Judge Zani’s order on 15 July 2014 for his return to France under a European Arrest Warrant. The warrant concerned an in absentia conviction for tax fraud and related accounting offences. The appellant had never been arrested, summonsed, investigated or served with process in relation to those offences, and it was accepted that he could seek to have the conviction set aside on return.

He relied on oppressive delay under section 14 of the Extradition Act 2003 and disproportionate interference with family life under Article 8. He was a British citizen with an established family life in the United Kingdom and played a substantial role in caring for a daughter with cystic fibrosis. The central issues were whether the delay could be measured from the alleged offences and whether, considered with the effect of extradition on his family, it barred his return.

1. Appeal allowed. The appellant’s return to France was barred by section 14 of the Extradition Act 2003 and would violate Article 8.
2. For section 14 purposes, “unlawfully at large” bears its ordinary meaning. A person convicted in absentia without notice, who has not participated in or evaded the proceedings, is not a fugitive from justice. Such a person remains accused unless and until there has been a conviction from which he was required to participate and from which he absconded. The relevant period could therefore run from the alleged offences in 2007 and 2008.
3. Applying the approach in Kakis v Government of Cyprus [1978] 1 WLR 779, oppression concerns hardship resulting from changes in circumstances during the relevant period. The cause of non-accused delay is generally less important than its effect, although greater weight may be given to culpable delay. The unexplained periods of inactivity by the French authorities, including the failure promptly to issue an accusation warrant or European Arrest Warrant, materially supported a finding of oppression.
4. The seriousness of the alleged tax fraud, the availability of a retrial and the availability of substitute care were relevant factors, but did not outweigh the substantial changes in the appellant’s family life. The right to reopen the in absentia conviction did not materially reduce the oppressive effect of returning him to face trial and likely detention.
5. Under Article 8, the welfare of the child was a primary, though not determinative, consideration. The court had to assess the actual gravity of the interference with family life against the gravity of the public interest pursued, rather than search for an exceptionally unusual feature. The appellant’s role as breadwinner and principal participant in the medical care of his daughter, combined with the delay, made extradition disproportionate.

The order for return was quashed or set aside in consequence of the appeal being allowed. The identity and address of the child were directed not to be disclosed in reports. Costs were to be assessed under the public funding certificate.

• High Court (Administrative Court): The appeal against the order of District Judge Zani dated 15 July 2014 was allowed.
• City of Westminster Magistrates’ Court: The appellant’s return to France under the European Arrest Warrant was ordered.