Short v The Falkland Islands

Under section 84(1) of the Extradition Act 2003, the extradition judge asks whether the evidence would make a case requiring an answer in a summary trial before an English or Welsh magistrates’ court. The relevant law is therefore English law, not the law of the requesting territory. The judge has no general discretion to investigate foreign law or foreign defences because fairness would otherwise be improved. The accused may raise such matters in the requesting state.

Once a case to answer is established, the extradition court should not speculate about the likelihood of acquittal or sentence. Serious allegations, the public interest in honouring extradition arrangements, and the availability of a fair trial may outweigh family hardship. The possibility of acquittal or a non-custodial sentence does not, without more, make extradition unjust, oppressive or disproportionate.

John Short appealed against the Senior District Judge’s decision of 26 March 2019 ordering that his extradition case be sent to the Secretary of State. The request concerned five historic sexual offences allegedly committed in the Falkland Islands while Mr Short was aged between 10 and 14.

The appeal concerned whether the judge had correctly applied section 84 of the Extradition Act 2003, particularly the presumption of doli incapax; whether the passage of time made extradition unjust or oppressive under section 82; and whether extradition was incompatible with Article 8 of the ECHR under section 87. The central issue was whether the extradition court should apply English law or Falkland Islands law when deciding whether there was a case to answer.

1. Appeal dismissed. The Senior District Judge was entitled to find a case to answer and to conclude that extradition was not unjust, oppressive or disproportionate.

2. Section 84(1) of the Extradition Act 2003 requires the judge to ask whether the evidence would be sufficient to make a case requiring an answer if the proceedings were a summary trial of an information before an English or Welsh magistrates’ court. That requires application of English law, rather than the law of the requesting state. The statutory language provides no general discretion to receive evidence of foreign law or consider foreign defences because a particular case appears factually unusual or potentially unfair (paras [28]-[39]).

3. The presumption of doli incapax was abolished in English law by section 34 of the Crime and Disorder Act 1998 for offences committed on or after 30 September 1998. R v T [2009] 1 A.C. 1310 established that the abolition removed the defence entirely. The Senior District Judge therefore correctly disregarded the presumption for counts 1 to 4 (para [27]).

4. The authorities on earlier extradition legislation, including In Re Nielsen [1984] 1 A.C. 606 and R v Governor of Pentonville Prison ex p. Osman [1990] 1 W.L.R. 277, supported the conclusion that the extradition court determines whether the evidence would support proceedings under domestic law. The judge was also entitled to exclude an expert report that merely expressed an opinion on credibility and reliability and added no specialised knowledge: R v Bernard V [2003] EWCA Crim 3917 (para [40]).

5. For Article 8 and section 82 purposes, the court should not assess the likelihood of acquittal or speculate whether the Falkland Islands court would find the presumption rebutted. Those issues belong to the trial court. The possibility of acquittal does not reduce the public interest in honouring extradition arrangements or trying serious allegations (paras [43]-[47]).

6. The possibility of a non-custodial or short sentence did not make extradition disproportionate. Hardship arising from family separation was insufficient to establish oppression on the facts. Applying the distinction between injustice arising from trial prejudice and oppression arising from changed circumstances described in Kakis v Government of the Republic of Cyprus [1978] 1 W.L.R. 779, and the high threshold recognised in Gomes v Government of Trinidad [2009] 1 W.L.R. 138, the Senior District Judge’s conclusion was open to her (paras [45]-[49]).

• High Court (Administrative Court): The Divisional Court dismissed the appeal against the Senior District Judge’s decision of 26 March 2019. The case remained to be sent to the Secretary of State for the extradition decision.