Sladen v Regional Court of Salzburg, Austria

For dual criminality, conduct may occur in a requesting territory even where some acts took place elsewhere, provided their intended effect was to cause harm there. The conduct need not occur exclusively there.

A forum challenge requires evidence that a substantial measure of relevant activity was performed in the United Kingdom. Statutory proportionality is assessed by reference to seriousness, likely penalty and less coercive measures. Article 8 requires a balancing exercise; family consequences need not be exceptionally severe.

The appellant challenged a District Judge’s order for his extradition to Austria under an accusation European Arrest Warrant concerning possession of counterfeit €100 notes. He pursued grounds on dual criminality, forum, statutory proportionality and Article 8.

The central issues were whether the alleged conduct occurred in Austria for the purposes of the Extradition Act 2003; whether a substantial measure of relevant activity occurred in the United Kingdom; whether extradition was disproportionate; and whether it was compatible with the appellant’s and his family’s Article 8 rights.

1. Dual criminality. The appeal under s.10 of the Extradition Act 2003 failed. Applying Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, “conduct” has a purposive meaning. Acts performed outside the requesting territory may constitute conduct there where their intended effect is to cause harm there. Exclusive occurrence in that territory is unnecessary. The further information established that the appellant possessed and used or attempted to use the counterfeit Euros in Austria. The alleged conduct therefore constituted an offence under s.16(1) of the Forgery and Counterfeiting Act 1981 and satisfied s.64(3)(a).
2. Forum. The appellant did not establish that any conduct occurred in England, still less that a substantial measure of relevant activity was performed there and was material to the offence. Even if the threshold were met, extradition would remain in the interests of justice.
3. Statutory proportionality. The alleged counterfeiting was serious by domestic standards. The court could use domestic sentencing practice as a measure of likely penalty where evidence of Austrian practice was limited. The appellant’s breach of bail and failure to attend trial meant that no real possibility of less coercive measures was shown. Extradition was not disproportionate.
4. Article 8. The District Judge had applied an erroneous exceptionality test. The High Court therefore conducted the balancing exercise afresh, considering the family disruption, delay, the appellant’s criminal record, the seriousness of the offence and his fugitive status. Extradition was compatible with Article 8. The appeal was dismissed.

• High Court (Administrative Court): District Judge Bayne ordered extradition on 19 August 2015. Cranston J granted permission to appeal on 23 October 2015. The appeal was dismissed by Supperstone J on 21 December 2015.