Roger Montgomerie v Government of Australia

For the purposes of Extradition Act 2003, culpable or inexcusably dilatory delay may contribute to injustice or oppression, but delay alone will not ordinarily establish either conclusion. The court must assess the whole period, responsibility for delay, its effects and implications, and the possibility of a fair trial. The possibility of a fair trial is extremely important, but it is not the sole or determinative question. The assessment remains fact-sensitive. Serious allegations, the absence of specific or concrete prejudice, and available safeguards may outweigh the effects of delay. Article 8 proportionality likewise requires an overall assessment of the seriousness of the allegations, the private-life impacts, delay and the circumstances of affected individuals.

The appellant sought permission to appeal against an extradition order made in favour of Australia. He was wanted to face allegations of sexual offences against three children, alleged to have occurred between 1984 and 1986. The allegations were first reported in 2011, and the extradition request was issued in 2019.

Senior District Judge Arbuthnot rejected arguments under sections 82 and 87 of the Extradition Act 2003. Saini J rejected permission on the papers. The renewed application alleged errors concerning delay, the assessment of injustice and oppression, the significance of a possible fair trial in Australia, and Article 8 proportionality.

Application refused. There was no realistic prospect of overturning the Senior District Judge’s decision and no material error of law, even arguably.

1. Under section 82 of the Extradition Act 2003, inexcusably dilatory conduct by a requesting state may, in an appropriate case, establish injustice or oppression. The court must nevertheless consider the relevant features together, including culpability, the lapse of time, and the implications and effects of delay.
2. The question whether a fair trial remains possible is not the sole or determinative question. It is, however, extremely important. The Senior District Judge was entitled, and right, to consider fair-trial safeguards available in Australia. Reading her judgment as a whole, she had not treated that question as determinative.
3. The period before the allegations were reported in 2011 could not be characterised as culpable delay. The Australian authorities’ conduct between 2011 and 2015 was undertaken in good faith while seeking a further statement and was not reasonably arguable as inexcusable. Even assuming that the culpable period extended from 2013 to 2019, delay alone did not establish injustice or oppression.
4. No specific or concrete injustice was identified. Alleged loss of witnesses and documents had to be assessed in the context that the central issue concerned events in the children’s bedrooms and that the appellant accepted living with the family at the relevant time.
5. Neither oppression nor disproportionate interference with Article 8 rights was reasonably arguable. The seriousness of the allegations outweighed the asserted effects of extradition on the appellant and his relationship with his landlady, notwithstanding the overall lapse of time.

• High Court (Administrative Court): renewed application for permission to appeal refused by Mr Justice Fordham, [2021] EWHC 983 (Admin).
• Senior District Judge: extradition ordered on 21 September 2020 after the case had been sent to the Home Secretary; arguments under sections 82 and 87 of the Extradition Act 2003 were rejected.
• High Court: Saini J rejected permission to appeal on the papers on 9 February 2021.