Pillar-Neumann v Public Prosecutor's Office of Klagenfurt

A requested person is not a fugitive merely because, while lawfully and openly resident in the United Kingdom, she does not return to the requesting state to submit to arrest. Fugitive status requires knowingly placing oneself beyond legal process.

Under section 14 of the Extradition Act 2003, the court must make an overall assessment. Culpable delay, a reasonably induced false sense of security, and resulting hardship or trial prejudice may together make extradition oppressive. The seriousness of the allegations remains material, but does not outweigh extreme hardship caused by a prolonged and unexplained delay.

The appellant was sought by Austria under a European Arrest Warrant alleging fraud and embezzlement between 1997 and 2001. An earlier warrant had been discharged in 2006 for insufficient particulars. A further warrant was issued in 2009 but was not certified in the United Kingdom until 2016.

On 26 June 2017, District Judge Qureshi at Westminster Magistrates’ Court ordered extradition. The appellant appealed, principally contending that extradition was barred by the passage of time under section 14 of the Extradition Act 2003, and sought to rely on further medical evidence. The central issues were whether she was a fugitive and whether the delay made extradition unjust or oppressive.

1. Appeal allowed. Lord Justice Hamblen, with whom Mr Justice Sweeney agreed, held that extradition was barred by section 14 of the Extradition Act 2003 because it would be oppressive by reason of the passage of time.

2. The court received the later medical evidence contingently. Applying Hungary v Fenyvesi [2009] EWHC 231 (Admin), evidence unavailable at the extradition hearing must be capable of decisively changing the result, although it may be considered before that issue can finally be resolved. Material available before the district judge could not be reintroduced as fresh evidence merely to bypass his discretionary refusal to admit it.

3. The appellant was not a fugitive. The principle drawn from Kakis v Government of Cyprus [1978] 1 WLR 779 and Wisniewski and Ors v Poland [2016] EWHC 386 was that a person must knowingly have placed herself beyond legal process. Openly continuing to live in the United Kingdom, without concealing identity or whereabouts or taking positive steps to evade arrest, did not meet that test, even if she knew of an Austrian domestic warrant.

4. The district judge had underestimated the culpable delay. The defects causing discharge of the 2006 warrant were technical and could swiftly have been corrected. The bulk of the period until the 2009 warrant, together with the unexplained delay until certification in 2016, produced about ten years of culpable delay.

5. That delay reasonably created a false sense of security. It also caused exceptional hardship and material evidential disadvantage: the proposed trial concerned events up to 20 years old, relevant documents had been lost or destroyed, and potential defence witnesses had died or were unavailable. Those factors outweighed the substantial public interest arising from the seriousness of the allegations. The new medical evidence would independently have made the oppression conclusion decisive if it had otherwise been in doubt.

6. The court did not need to determine the separate grounds of injustice, Article 8, or section 25.

• High Court (Administrative Court): Allowed the appeal and held that extradition was barred under section 14 of the Extradition Act 2003.
• Westminster Magistrates’ Court: On 26 June 2017, District Judge Qureshi ordered the appellant’s extradition pursuant to section 26 of the Extradition Act 2003.