Magistrates Court No.5 (Spain) v Warne

Under section 14 of the Extradition Act 2003, passage of time bars extradition only where the passage itself causes injustice or oppression. Oppression requires substantially more than ordinary hardship and a proper causal link between the delay and the claimed hardship. Serious allegations, ordinary family separation and the development of a new family life will not ordinarily satisfy the test. Inefficiency or incompetence by the requesting authority may do so only in an exceptional case, such as where the requested person was lulled into a false sense of security.

Extradition abuse of process is a residual and exceptional jurisdiction directed to protecting the integrity of the English court’s process. Mere delay, incompetence or inefficiency does not ordinarily establish abuse.

The Spanish judicial authority appealed against District Judge Rose’s decision to discharge Andrew Warne from an accusation European Arrest Warrant. The warrant concerned an alleged conspiracy to import and distribute 2,880 kilograms of cannabis in Spain in 2007. Several earlier warrants were rejected for inadequate particulars, and a satisfactory warrant was certified in October 2013.

The District Judge held that extradition would be oppressive under section 14 of the Extradition Act 2003, but rejected abuse of process and did not determine the respondent’s Article 8 or proportionality arguments. The appeal concerned the proper application of section 14 and the appropriate further course.

1. Appeal allowed. The District Judge’s conclusion that extradition was barred by passage of time was wrong. The case was remitted under section 29(5) of the Extradition Act 2003 for determination of the outstanding Article 8 and proportionality issues. The abuse of process issue was not to be reconsidered.
2. Section 14 requires oppression or injustice to result by reason of the passage of time. The requested person must establish a causal link between the delay and the alleged oppression. The court’s role on appeal is generally one of review. Intervention is justified for an error of law, an unreasonable factual finding, failure to consider a relevant factor, consideration of an irrelevant factor, or a result that is irrational, unreasonable, perverse or plainly wrong.
3. The respondent’s experience of detention in Dubai was serious, but it was not caused by the passage of time. The alleged offence was serious, and there was no realistic risk of an unfair trial. The respondent’s new family circumstances caused hardship but were not unusual in extradition cases. He was neither the sole carer nor the sole financial provider.
4. The Spanish authority had been culpably inefficient and incompetent, but that did not itself create oppression. Such conduct might do so where the resulting delay lulled a requested person into a false sense of security. The District Judge found only that the respondent hoped the matter was over; she did not find that he had arranged his life on an express or implicit understanding that he would not be prosecuted.
5. Abuse of process in extradition is an exceptional, residual jurisdiction protecting the integrity of the English court’s process. Incompetence may amount to abuse in a very strong case if the English process is subverted, but mere passage of time has no independent legal effect without injustice or oppression. The District Judge was entitled to reject the abuse argument.
6. The District Judge should also have determined the Article 8 and section 21A proportionality issues. Those issues were remitted, with regard to Norris, HH and Miraszewski and Others v the District Court in Torun Poland and another [2014] EWHC 4261 (Admin). The respondent was to remain on agreed bail conditions.

• High Court (Administrative Court): allowed the Spanish judicial authority’s appeal from the District Judge’s discharge order. The section 14 decision was set aside, and the outstanding Article 8 and proportionality issues were remitted.
• District Judge: discharged the respondent under section 14 of the Extradition Act 2003, rejected abuse of process, and did not determine the Article 8 or proportionality arguments.