Ahsan Ali Syed v Government of Switzerland & Anor

In extradition proceedings, the court may consider authenticated supplementary material from the requesting state when determining whether the request discloses an extradition offence. There is no automatic time limit after which extradition becomes unjust or oppressive. Delay is assessed in context, including its causes, trial fairness and hardship; oppression requires more than ordinary hardship.

Double jeopardy principles may extend to a closely related foreign investigation, but abuse of process in a second country requires exceptional facts. Specialty arrangements may arise under European Convention on Extradition Article 14, and speculative concerns about compliance do not displace them. Article 8 arguments based on immigration status must be properly evidenced and developed.

The Government of Switzerland sought the applicant’s extradition for alleged advanced fee fraud involving approximately CHF 28.6 million obtained from 23 parties. Following a contested extradition hearing, the district judge sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003. The Secretary of State ordered extradition under section 95.

The applicant renewed an application for permission to appeal, challenging the particularisation of the request and dual criminality, double jeopardy, passage of time, specialty arrangements and the effect of the alleged revocation of his Turkish nationality on his Article 8 rights.

1. Permission refused. None of the grounds was arguable.
2. For dual criminality, the district judge was entitled to consider authenticated supplementary information supplied by the Swiss prosecutor. Section 78(4)(b) of the Extradition Act 2003 did not confine the inquiry to the originating request. The requested person could not adduce evidence contradicting the request, subject to the narrow abuse-of-process exception. The material sufficiently particularised conduct amounting, if committed in England and Wales, to fraud by false representation under section 1 of the Fraud Act 2006. Payments into Swiss bank accounts supplied the necessary territorial connection under sections 1 and 2 of the Criminal Justice Act 1993. The exclusion of two Bahrain-only victims was correct.
3. Section 80 of the Extradition Act 2003 covered autrefois convict or acquit in the narrow sense of precisely the same offending, and also proceedings so closely related to earlier proceedings that a second prosecution would be an abuse of process. The inconclusive Bahraini investigation involved no acquittal or conviction. A second state could generally prosecute under its own law, particularly where the first state had not prosecuted and had not ceded jurisdiction. Exceptional facts of the kind identified in Fofana were absent.
4. Under section 82, there was no automatic cut-off point based on the age of the alleged offending. The distinction between injustice and oppression remained relevant: injustice principally concerned prejudice to the trial, while oppression concerned hardship arising from changed circumstances. Switzerland’s Convention obligations and Article 6 protection answered the alleged trial unfairness. The delay, including periods caused by the applicant’s non-cooperation, did not establish oppression, which required more than hardship.
5. Specialty arrangements existed with Switzerland under Article 14 of the European Convention on Extradition. Speculative concerns about Swiss understanding or compliance did not undermine that conclusion.
6. The statelessness ground was insufficiently developed and evidentially unclear. Although immigration status could form part of the Article 8 balancing exercise, the relevant immigration law and regulations had to be addressed. In any event, extradition would be proportionate given the seriousness of the allegations and the international extradition obligations engaged.

• District Judge: following a contested extradition hearing, sent the applicant’s case to the Secretary of State under section 87(3) of the Extradition Act 2003 on 4 July 2023.
• Secretary of State: ordered extradition under section 95 of the Extradition Act 2003 on 24 August 2023.
• High Court (Administrative Court): refused the renewed application for permission to appeal under sections 103 and 108.