Eason v Government of the United States of America

Under section 82 of the Extradition Act 2003, extradition may be barred where delay makes it unjust or oppressive. Unjustness principally concerns prejudice in conducting the foreign trial. Oppression principally concerns hardship arising from changed circumstances. The concepts overlap, and the court must assess whether extradition itself would be fair.

Culpable delay after voluntary co-operation and prolonged silence may create a reasonable expectation that proceedings will not be brought. Serious hardship to family members is relevant even where delay did not cause that hardship. Exceptional family hardship, trial prejudice and justified reliance may together make extradition unjust or oppressive.

This was an appeal from District Judge Ezzat’s decision at Westminster Magistrates’ Court on 24 May 2019 to send the case to the Secretary of State to order extradition to the United States.

The extradition request concerned an alleged conspiracy to commit bank fraud in connection with residential property transactions in South Carolina between July and September 2008. The applicant relied on the passage of time under sections 79(1)(c) and 82 of the Extradition Act 2003, and alternatively on article 8 of the Human Rights Convention. The district judge rejected those arguments. The central issue was whether the passage of time made extradition unjust or oppressive.

Appeal allowed and the applicant discharged.

1. Section 82 of the Extradition Act 2003 requires an overall judgment on whether extradition would be unjust or oppressive by reason of delay. As explained in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, unjustness principally concerns prejudice in the conduct of the trial, while oppression concerns hardship arising from changed circumstances. The concepts overlap.
2. The inquiry is not limited to whether the requesting state can provide a fair trial. The court must consider whether extradition itself would be unjust or oppressive. Safeguards in the requesting state are relevant, but they do not resolve that distinct question. The court applied the approach identified in Gomes v Trinidad and Tobago [2009] UKHL 21 and United States of America v Tollman & Tollman [2008] EWHC 184 (Admin).
3. The applicant was not alleged to be a fugitive. He had voluntarily attended an FBI interview, answered questions, was placed under no restriction and received no notice of prosecution. The unexplained and culpable delay of more than six years after indictment, and more than seven years after the interview, could reasonably lead him to believe that no proceedings would be brought. The district judge’s failure to address that consideration was material. The court also found a real risk of trial prejudice from lost interview notes, faded memories, unavailable defence material and the need to prepare a defence more than a decade after the events.
4. The seriousness of the alleged offence was relevant, but its weight was reduced by the absence of information about the size of the loans, the banks’ losses and the alleged gains of the conspirators. The applicant’s wife suffered exceptionally serious medical conditions and depended heavily on him. That hardship was outside the ordinary consequences of extradition. The district judge also made unrealistic assumptions about replacing the applicant in his business and managing the family mortgage.
5. Serious hardship may form important background to the section 82 assessment even where the delay did not itself increase the hardship. In such circumstances, less weight may be needed from other factors to establish injustice or oppression. The alternative article 8 ground did not need to be decided.

• High Court (Administrative Court): In [2020] EWHC 604 (Admin), allowed the appeal and ordered the applicant’s discharge.
• Westminster Magistrates’ Court: District Judge Ezzat decided on 24 May 2019 to send the case to the Secretary of State to order extradition to the United States.