Duncan v Presiding Magistrate, Malaga, Spain

In an accusation European Arrest Warrant case, the proportionality bar in section 21A(1)(b) of the Extradition Act 2003 operates separately from human-rights considerations. The requested person bears the burden of showing that less coercive measures are available. A reference to the European Supervision Order does not establish such a possibility where the order operates after extradition. Under section 21B, a request for temporary transfer or communication with the requesting state does not create an automatic right to an adjournment. The request must be clear and particularised. Its timing, content and the surrounding circumstances determine whether an adjournment is necessary.

The appellant appealed against a District Judge’s order for his extradition to Spain to stand trial for cannabis-trafficking offences under an accusation European Arrest Warrant. He challenged the order on the grounds that extradition would disproportionately interfere with his rights under article 8 of the European Convention on Human Rights and would fail the proportionality bar in section 21A of the Extradition Act 2003. He also argued that the District Judge should have adjourned the extradition hearing under section 21B so that less coercive arrangements could be considered.

The central issues were the burden and operation of section 21A(3)(c), and whether a late oral request under section 21B required an adjournment.

1. Appeal dismissed. The District Judge was entitled to conclude that extradition was compatible with article 8. Delay, age and health were relevant, but the seriousness of the allegations and the appellant’s having left Spain in breach of bail weighed heavily in the balance. The appellant’s health did not reach the statutory threshold under section 25 of the Extradition Act 2003 (paras [18]–[19]).
2. The proportionality bar in section 21A(1)(b) operates separately from the human-rights bar in section 21A(1)(a). Under Miraszewski v Torun District Court [2014] EWHC 4261 (Admin), the requested person bears the burden of demonstrating that less coercive measures are available under section 21A(3)(c). There was no realistic possibility that the Spanish Judicial Authority would adopt measures less coercive than extradition. The European Supervision Order did not assist because it operates post-extradition: Komar v District Court of Torun, Poland [2015] EWHC 2547 (Admin) (para [21]).
3. Section 21B confers a discretion, not an automatic entitlement, to adjourn. The request must be clear and particularised, identifying the authority, purpose and proposed means of communication. Although it need not be in writing, clarity and particularisation make writing almost inevitable (paras [26]–[27]).
4. The timing and appropriateness of a request are relevant. The present late oral request was properly refused because it was insufficiently particularised, did not fall within section 21B, and in any event did not make an adjournment necessary (paras [28]–[30]).

• High Court (Administrative Court): dismissed the appeal against the District Judge’s extradition order.