McGurk v Provincial High Court of Alicante, Spain

Under section 14 of the Extradition Act 2003, the passage of time bars extradition only where it would be unjust or oppressive to surrender the requested person. The court must consider whether the person caused the delay by absconding or evading arrest. Culpable delay by the requesting authority is relevant, but is not decisive. Oppression requires a causal link between the delay and its oppressive effect, proved on the balance of probabilities. The seriousness of the alleged offending remains relevant. Delay also affects the proportionality assessment under Article 8, but in a serious case it may reduce the public interest only modestly. Abuse of process in the European arrest warrant context has a narrow scope and generally requires bad faith or a collateral purpose by the requesting authority.

The appellant challenged the District Judge’s decision of 3 December 2015 ordering his extradition to Spain to face prosecution for an alleged rape committed in 1999. He relied on section 14 of the Extradition Act 2003, Article 8 of the European Convention on Human Rights and abuse of process.

The District Judge found substantial and partly culpable delay by the Spanish authorities, but concluded that the appellant was not a true fugitive, that extradition would not be unjust or oppressive, that Article 8 did not prevent surrender, and that there was no abuse of process. The central issue was whether those conclusions were legally flawed.

1. Appeal dismissed. The District Judge’s decision to order extradition was not shown to be wrong.
2. For section 14 of the Extradition Act 2003, the court must first consider whether the requested person caused the delay by fleeing, concealing his whereabouts or evading arrest. A person responsible for the delay cannot ordinarily rely on it, save in exceptional circumstances. The appellant’s breach of Spanish bail conditions did not make him a true fugitive on the facts found.
3. The Spanish authorities were responsible for significant culpable delay. The UK Central Authority had also contributed to delay through incompetence. Those matters were relevant to the overall unjust or oppressive assessment, but did not determine it.
4. The injustice limb was not established. Spain’s adherence to the European Convention on Human Rights and the available evidence concerning the admissibility and sufficiency of the complainant’s evidence meant that a fair trial could not be ruled out. The complainant might still be traced and give evidence.
5. The oppression conclusion was not flawed. Oppression required a causal link between the passage of time and its effect on the appellant, proved on the balance of probabilities. The alleged rape and associated violence were especially serious. The appellant’s circumstances had changed little during the period of delay, and the District Judge was entitled to find that the required causative effect had not been shown.
6. Delay was relevant to the Article 8 proportionality assessment because it could diminish the public interest in extradition and increase the impact on private and family life. However, the seriousness of the allegation, the absence of dependants and the appellant’s limited family connections justified the conclusion that the public interest in extradition prevailed.
7. Abuse of process had a narrow ambit in the European arrest warrant scheme. It concerned abuse by the prosecuting authority, including a collateral purpose or a request made in circumstances where the authority knew that the trial could not succeed. The appellant had not established bad faith by the Spanish authorities.

• High Court (Administrative Court): The Divisional Court dismissed the appeal against the District Judge’s order of 3 December 2015 requiring extradition to Spain.