A v Deputy General Public Prosecutor of the Lyon Court of Appeal

An English extradition court may, where necessary to protect Convention rights, consider whether time spent on bail restrictions in the requested state has been credited towards a sentence imposed by the requesting state. There is no blanket rule requiring that question to be left exclusively to the requesting state’s courts.

The court must proceed cautiously, respecting mutual trust and giving proper weight to reasoned information from the requesting state. Where the evidence is unequivocal and uncontradicted, extradition after the sentence has been served may constitute a disproportionate interference with Article 8 rights and, if necessary, an abuse of process. In exceptional circumstances, fresh evidence may justify reopening the appeal.

The applicant had previously lost his appeal against an order for extradition to France. The Administrative Court gave judgment successively in [2021] EWHC 2543 (Admin) and [2022] EWHC 841 (Admin).

After those judgments, fresh evidence indicated that the applicant had spent sufficient time subject to an electronically monitored curfew and associated restrictions in England to have served the outstanding French sentence under French law. The French prosecutor refused to withdraw the European arrest warrant, asserting that only the Lyon Court of Appeal could decide whether the time was deductible.

The central issues were whether the English court could determine the deductibility question, whether the fresh evidence justified reopening the appeal, and whether extradition would breach the applicant’s Convention rights.

1. The Court reopened the appeal and allowed it. Under Crim PR r.50.27, the circumstances were exceptional, reopening was necessary to avoid real injustice, and there was no alternative effective remedy.

2. The Court rejected the submission that only the French court could consider whether the applicant had served his sentence. Mutual trust requires caution and respect for information from the requesting state, but it does not create a blanket exclusion. The English court has a primary obligation to ensure that extradition will not cause a disproportionate interference with Convention rights.

3. The authorities supported that conclusion. Newman v Poland established that extradition after the sentence had effectively been served could be an abuse of process and a disproportionate interference with Article 8 rights. Marosan v Court of Cluj-Napoca, Romania confirmed that considering deductibility would not trespass on the requesting state’s exclusive province in appropriate circumstances. Troka v Albania required particular caution concerning foreign limitation law but recognised an exception where the position was very clear. Kloska v Poland and Molik v Poland were cautionary authorities concerning cases where time remained to be served; they did not govern a case supported by uncontradicted evidence that the sentence had been completed.

4. The evidence from three French lawyers was unequivocal and uncontradicted. The respondent had provided no contrary evidence, no explanation of the criteria the French court would apply, and no information showing that the applicant had not served the sentence. The evidence was therefore admitted and accepted, notwithstanding defects in the formal presentation of the expert opinions.

5. On the evidence, the applicant had served the sentence for which extradition was sought. Ordering his return would be a disproportionate interference with Article 8 rights because any further detention would be unconscionable and the timing of release in France was uncertain. The Court would have reached the same conclusion under the residual abuse-of-process jurisdiction.

1. High Court (Administrative Court): The Court had previously dismissed the applicant’s appeal in [2021] EWHC 2543 (Admin) and [2022] EWHC 841 (Admin). On fresh evidence, it reopened the appeal and allowed it.