Nika v Douai County Court, France

In extradition proceedings, the court must not determine whether the requested person is guilty or innocent. That issue belongs to the requesting state’s courts, including on a retrial following a conviction in absence. Article 8 proportionality cannot be used as a side wind to conduct a mini-trial. Under article 5, extradition is barred only where there is a real risk of a flagrant breach; evidence which may support innocence does not by itself meet that high threshold. Under section 14 of the Extradition Act 2003, injustice focuses primarily on prejudice to the fairness of the trial. A conviction in absence is not inherently unjust where a retrial is available and specific prejudice is not shown.

The appellant appealed under section 26 of the Extradition Act 2003 against a decision of a District Judge at Westminster Magistrates’ Court ordering his extradition to France. He had been convicted in absence by a French court of facilitating illegal entry and sentenced to five years’ imprisonment.

Before the District Judge, the appellant relied on article 8 of the Convention. On appeal he also relied on article 5, section 14 of the Act and abuse of process. His central contention was that evidence concerning his homelessness, identity and circumstances showed that he could not have committed the offence. The issues were whether those matters could prevent extradition despite the conviction, and whether the French authorities’ conduct or delay created an injustice, oppression, flagrant human-rights breach or abuse of process.

The appeal was dismissed.

1. Guilt or innocence. The District Judge correctly declined to decide whether the appellant committed the extradition offence. The appellate court likewise could not resolve that issue or conduct what would effectively be a mini-trial. The appellant’s evidence could be considered in the proportionality assessment, but article 8 and section 21 could not be used to determine criminal liability.
2. Article 8. The District Judge properly recognised the appellant’s private life and the significant disruption extradition would cause. Those matters did not require discharge. The statutory extradition scheme and the public interest in complying with extradition obligations remained weighty.
3. Article 5. The relevant question was whether extradition created a real risk of a flagrant breach of article 5. A person convicted in absence was not to be treated as someone who had never been tried. Even if that submission were accepted, evidence which might show that the appellant did not commit the offence fell far short of the flagrancy threshold. There was no evidence that France sought to imprison someone it knew to be innocent.
4. Section 14. Injustice primarily concerns the fairness of the trial, while oppression concerns hardship caused by changes in circumstances. A trial in absence was not inherently unjust where the appellant had a right to a retrial. He identified no particular prejudice affecting the conduct of that retrial. The French authorities were not responsible for the delay in executing the accusation warrant, and their decision to proceed to trial and their response to the section 21B request were not open to criticism.
5. Abuse of process. There was no evidence that the French authorities pursued extradition for an improper purpose or had tailored the materials before the court. No ground demonstrated that the District Judge ought to have reached a different conclusion or ordered discharge.

• High Court (Administrative Court): Mrs Justice Farbey dismissed the appeal against the Westminster Magistrates’ Court order for extradition.
• Westminster Magistrates’ Court: The District Judge ordered extradition after finding that it was compatible with the appellant’s Convention rights.