Warne v Magistrates Court Figueres (Spain)

An appellate court hearing an appeal under section 29 of the Extradition Act 2003 has a binary function. It may allow or dismiss the appeal and, if allowing it, may remit the case only for the statutory purpose specified. The remitted judge must proceed as though the relevant question had been decided differently and must not reopen that question.

In an Article 8 extradition challenge, the judge must conduct an express balancing exercise. Delay and incompetence by the requesting authority must be taken into account, but may be outweighed by the public interest in extradition, particularly where the allegation is serious.

The appellant faced extradition to Spain on an accusation European Arrest Warrant concerning an allegation of trafficking 2.88 tons of hashish. The District Judge initially discharged him under section 14 of the Extradition Act 2003 because extradition would be oppressive by reason of delay.

The Divisional Court allowed the requesting authority’s appeal and remitted the case under section 29: [2015] EWHC 981 (Admin). On remission, the District Judge ordered extradition. The appellant challenged that decision on the section 14 issue and on Article 8 and proportionality grounds.

1. The appeal was dismissed. The Divisional Court’s earlier order required the District Judge to proceed as if the section 14 question had been decided against the appellant. Section 29(5)(c) of the Extradition Act 2003 required the remittal to be for that purpose only.
2. The appellate function under section 29 was binary: the court could allow or dismiss the appeal. If it allowed the appeal, it could quash the discharge and remit the case only in accordance with section 29(5)(c). The District Judge therefore should not have heard further argument or evidence directed to the section 14 issue. Evidence arising after the first hearing could, however, inform the undecided Article 8 and proportionality issues.
3. The Article 8 challenge was governed by HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 and Celinski v Slovakian Judicial Authority [2015] EWHC 1274 (Admin). The District Judge properly identified and balanced the factors favouring extradition against the delay, its effect on the private and family lives concerned, the requesting authority’s inefficiency and incompetence, the appellant’s circumstances and the absence of bad faith.
4. It was unnecessary for the District Judge to place the delay discussion in any particular part of her judgment, provided that the factor was properly taken into account. The seriousness of the allegation, the public interest in honouring extradition arrangements and mutual confidence between judicial authorities outweighed the countervailing considerations. The conclusion that extradition was not a disproportionate interference with Article 8 rights was correct and, in any event, plainly open to the District Judge.

• High Court (Administrative Court): The present court dismissed the appellant’s appeal against the District Judge’s order for extradition.
• Divisional Court: The requesting authority’s earlier appeal was allowed and the case was remitted under section 29 of the Extradition Act 2003: [2015] EWHC 981 (Admin).
• District Judge: The appellant was initially discharged under section 14, but on remission an order for extradition was made.