DOGA v General Prosecutor of the Lyon Court of Appeal, France

Where fresh evidence indicates that time spent on electronically monitored bail may have been equivalent to a period of detention deductible from a foreign sentence, an English extradition court may assess the evidence. It is not confined to the view that only the requesting state can determine whether the sentence has been served.

The court must independently ensure that extradition is compatible with Convention rights. Mutual trust does not require the court to accept a requesting state’s position where there is no reasoned, particularised evidence addressing the requested person’s circumstances. If the sentence has effectively been served, extradition may constitute a disproportionate interference with Article 8 rights. The same conclusion may also be reached as an abuse of process.

The appellant had been ordered to be extradited to France to serve a sentence imposed for drug-related offences. His earlier appeal had been partly allowed and partly dismissed. He applied to reopen the appeal under rule 50.27 of the Criminal Procedure Rules, relying on fresh expert evidence concerning 34 months and 16 days spent on electronically monitored curfew in the United Kingdom.

Under French law, electronically monitored house arrest is treated as pre-trial detention and deducted from a custodial sentence. The central issue was whether the appellant’s curfew conditions should be treated as equivalent to electronically monitored house arrest, and whether the English court could decide that issue rather than leaving it exclusively to the French courts.

1. Fresh evidence and reopening. The fresh evidence was admitted because its admission was not opposed. The relevant reopening question was whether reopening was necessary to avoid real injustice under rule 50.27(3)(b) of the Criminal Procedure Rules.
2. Jurisdiction to assess deduction. The court followed the approach in A v Deputy General Public Prosecutor of the Lyon Court of Appeal. An English extradition court has an independent obligation to consider whether surrender would disproportionately interfere with Convention rights. It may therefore assess evidence about whether time spent on bail has effectively satisfied the foreign sentence. This does not improperly determine an issue reserved to the requesting state.
3. Mutual trust. The principle of mutual trust and confidence did not assist the respondent. The respondent supplied only general information about French law and no particularised evidence explaining how the appellant’s own conditions would be assessed. The continued existence of the European arrest warrant was not evidence that the sentence remained outstanding.
4. Application. In the absence of reasoned opposition, the court accepted the expert evidence that the appellant’s electronically monitored curfew met the criteria for electronically monitored house arrest under Articles 142-11 and 716-4 of the French Code of Criminal Procedure. The appellant had effectively served his sentence in full.
5. Disposition. Extradition would be a disproportionate interference with the appellant’s Article 8 rights. The application to reopen was granted and the appeal was allowed. The court stated that it would have reached the same result on the alternative basis of abuse of process.

1. High Court (Administrative Court) — The earlier appeal was allowed in relation to two offences and dismissed in relation to three: [2022] EWHC 3342 (Admin). The present court reopened the appeal and allowed it on Article 8 grounds.
2. Westminster Magistrates’ Court — The District Judge ordered extradition in relation to all five offences in a judgment dated 4 June 2021.