Emberson v County Court of Boulogne-Sur-Mer, France

In an extradition appeal, delay is assessed from the facts giving rise to the request, ordinarily the alleged offence, until the request or extradition hearing. The appellant bears the burden of proving injustice or oppression on the balance of probabilities. Delay will not ordinarily cause injustice where identification can be tested through live witnesses, documents or handwriting comparison, unless the accused cannot examine the witnesses. Personal hardship, ill health, financial difficulty and family dependency generally do not establish oppression. However, the realistic prospect of detention pending retrial may be oppressive, particularly where the appellant is not a fugitive and has had no proper opportunity to contest the case. The requesting authority’s position on bail may therefore be relevant and should be obtained before the appeal is finally determined.

The appellant challenged an order made by District Judge Grant on 22 June 2015 requiring his extradition to France under a conviction European Arrest Warrant. He had been convicted in absentia of VAT fraud and sentenced to 18 months’ detention. Permission to appeal was granted by Cranston J.

Only two grounds remained: whether extradition would be unjust or oppressive because of delay under section 14 of the Extradition Act 2003, and whether he would be entitled to a retrial or rehearing at which the witnesses against him could be examined under section 20(8)(b). The district judge found that the appellant was not a fugitive, but rejected both grounds. The central issues were the effect of delay on the fairness of a possible retrial and the significance of the appellant’s likely bail position in France.

1. The appeal was dismissed on the ground of injustice under section 14 of the Extradition Act 2003. The relevant period ran from the alleged offences to the extradition request or hearing, rather than merely from the French trial or conviction. The appellant bore the burden of establishing injustice or oppression on the balance of probabilities.
2. Delay was unlikely to prejudice a case based on documents, employment or tax records, or handwriting comparison. Nor would it ordinarily prejudice identification based on eyewitness evidence, provided the witnesses could be examined and confronted. The appellant had produced no prima facie evidence that delay had impaired his ability to establish his alleged employment in England.
3. The finding that the appellant would be entitled to have opposing witnesses examined was unimpeachable on the material before the court. The court relied on the analysis in Zeneli v Public Prosecutors Office Lyon [2014] EWHC 2239 (Admin), including the effect of the Strasbourg decision in Abdelali v France (43353/07) and the subsequent decision of the French Court of Cassation, Abdelmajid.
4. Family responsibilities, skin cancer, a failed marriage, restricted employment and financial insecurity amounted at most to ordinary hardship. They did not establish oppression. The possibility that the appellant would be detained pending retrial was materially different. Given that he was not a fugitive and had not had a proper opportunity to present his case, extradition might be oppressive if bail were unavailable or very unlikely.
5. The determination of the section 20(8)(b) issue and oppression under section 14 was adjourned. The CPS was directed to seek the requesting authority’s position on bail and, additionally, confirmation concerning the opportunity to confront and examine live witnesses. The court reserved the issues to itself.

• High Court (Administrative Court): District Judge Grant ordered extradition on 22 June 2015. Permission to appeal was granted by Cranston J. The High Court dismissed the injustice ground, but adjourned the section 20(8)(b) and oppression issues pending further information from the requesting authority.