Zorzi v Attorney General Appeal Court of Paris (France)

A requested person is a fugitive for the purposes of Extradition Act 2003, section 14 only if, to the criminal standard, they deliberately and knowingly placed themselves beyond the reach of a legal process. The test is subjective. Remaining lawfully in an established country of residence, appealing through lawyers, resisting extradition, or declining to surrender voluntarily does not itself satisfy it.

Where the requested person is not a fugitive and bears no responsibility for very substantial delay, the passage of time may make extradition oppressive. The same delay may reduce the weight of the public interest in extradition under article 8 and increase the interference with established private and family life.

The appellant was sought by France to serve a three-year sentence for drug-importation offences committed in 2000. She had lived in the Netherlands since 1985. After release under French judicial supervision, she attended a French hearing in 2001, returned to the Netherlands, and did not attend later appeal hearings in 2002. France later sought her extradition.

District Judge Zani ordered extradition on 19 December 2018. He held that she was a fugitive, rejected the passage-of-time bar, and found extradition proportionate under article 8. The appellant appealed. The central issue was whether her conduct made her a fugitive and, if not, whether the delay made extradition oppressive or disproportionate.

1. Appeal allowed; discharge ordered. Garnham J, with whom Rafferty LJ agreed, held that the District Judge had been wrong to find that the appellant was a fugitive. That error undermined both the section 14 and article 8 conclusions.
2. The fugitive inquiry is subjective. A person must have deliberately and knowingly placed themselves beyond the reach of legal process. The appellant had lawfully been resident in the Netherlands before the relevant proceedings. She had not fled there, concealed her whereabouts, or taken positive steps to evade arrest. Receiving notice there of a foreign conviction and a requirement to return did not make her a fugitive. Nor did appealing through lawyers, resisting extradition, or refusing voluntarily to surrender herself.
3. The Court distinguished fugitive status from being unlawfully at large. The latter is an objective concept, but the appellant had left the French court with permission and the French material itself asserted that there had been no period when she was unlawfully at large.
4. As the appellant was not a fugitive, she could rely on the passage of time under section 14 of the Extradition Act 2003. More than 17 years had passed between conviction and arrest. She bore no responsibility for that delay, had maintained her settled life in the Netherlands, and had led a blameless life. Extradition would therefore be oppressive.
5. The Court conducted the article 8 balance afresh. The public interests in sentence enforcement and treaty compliance remained weighty, and the offending was serious. But the safe-haven consideration did not arise, and delay not attributable to the appellant diminished the weight of extradition. Her long-established private and family life, her support for her adult daughter, and her law-abiding life meant that the balance tipped against extradition. Her discharge was therefore appropriate.

• High Court (Divisional Court): Allowed the extradition appeal and ordered the appellant’s discharge.
• Westminster Magistrates’ Court: District Judge Zani ordered extradition on 19 December 2018. That order was overturned.