Volle v Public Prosecutor's Office, Kempten, Germany

Under section 14 of the Extradition Act 2003, delay is not oppressive where the requested person contributed to the failure to resolve proceedings and the requesting authority’s delay was not culpable. Potential refusal of bail and unrelated changes in family circumstances do not fall within the passage-of-time assessment.

For proportionality under section 21A(3)(c), the requested person bears an evidential burden to identify an appropriate less coercive measure. An issuing authority’s decision to seek execution of a European arrest warrant may support an inference that alternatives such as a European Supervision Order were considered. Extradition was therefore neither oppressive nor disproportionate.

The appellant appealed under section 26 of the Extradition Act 2003 against a Westminster Magistrates’ Court order for his extradition to Germany on six fraud allegations.

He argued that the passage of time made extradition oppressive under section 14. He also argued that extradition was disproportionate under section 21A and incompatible with Article 8 of the European Convention on Human Rights, because a summons or European Supervision Order could secure his attendance by less coercive means.

The central issues were whether the delay was culpable and oppressive, and whether an appropriate less coercive alternative to extradition was available.

1. Appeal dismissed. The magistrates’ judge was entitled to find that the delay after 2009 resulted from administrative incompetence combined with the appellant’s failure to pursue proceedings of which he was aware. The delay was therefore not culpable on the part of the requesting authority, and extradition was not oppressive under section 14 of the Extradition Act 2003.
2. The possibility that the appellant might be refused bail after extradition was irrelevant to the passage-of-time issue under section 14. The breakdown of his marriage was likewise unrelated to delay and was not a circumstance to be considered under that provision. The vulnerability of his children was relevant instead to the Article 8 assessment.
3. Fresh translated evidence concerning the requesting authority’s responsibility for delay was refused. No good reason had been given for its admission after the contested extradition hearing, and the matters could have been raised before the magistrates’ judge.
4. Section 21A requires consideration of compatibility with Convention rights and proportionality. The only disputed specified matter was section 21A(3)(c), concerning less coercive measures. Applying [2014] EWHC 4261 (Admin), the requested person bears an evidential burden to identify measures that would be appropriate in the circumstances.
5. On the evidence, it could be inferred that the German judicial authority had decided not to request consideration of a European Supervision Order. Its stated position was that execution of the European arrest warrant was the appropriate means of securing attendance. The court therefore found that no less coercive measure in the form of such an order was available.
6. The magistrates’ judge had applied the principles in [2010] UKSC 9 and [2012] UKSC 25 and had made findings about the appellant’s sons that were open to her. There was no error of law in concluding that extradition would not disproportionately interfere with the family’s Article 8 rights.

The appeal was dismissed.

1. High Court (Administrative Court): On an appeal under section 26 of the Extradition Act 2003, the court dismissed the appeal against the Westminster Magistrates’ Court order dated 14 January 2015.