Alberto Queba Braganca Cassama v Tribunal Judicial da Comarca de Lisboa Norte, Portugal

For dual criminality, the conduct described in an extradition warrant must be capable of constituting an offence in the relevant part of the United Kingdom, including after applicable statutory exemptions are considered. A court cannot assume that ammunition described in the warrant required a certificate where the description does not exclude an exemption under the Firearms Act 1968.

Where extradition is permitted for one offence but not another forming part of a single sentence, the court may require information from the requesting state about whether its law permits the sentence to be disaggregated. A general presumption that the requesting state will comply with international obligations may be insufficient where there is a documented concern about that issue.

The appellant challenged a decision of District Judge John McGarva dated 28 February 2024 ordering his extradition to Portugal under a conviction warrant. The warrant concerned robbery and possession of a prohibited shotgun cartridge, for which a two-year sentence remained unserved.

Permission was granted on the dual-criminality issue and refused initially on prison conditions and article 8 of the ECHR. The appellant also sought to add a speciality ground, relying on the possibility that the Portuguese sentence could not be apportioned between the extraditable and non-extraditable offences. The court had to determine whether the ammunition offence was an extradition offence and how the remaining issues should proceed.

1. Dual criminality. The judge below had erred in finding that possession of the shotgun cartridge satisfied section 10 of the Extradition Act 2003. Under section 65, the conduct had to constitute an offence if committed in England or Wales. The warrant did not establish that the cartridge fell outside the exemption from the certificate requirement for cartridges containing five or more shot, none exceeding .36 inch in diameter. The respondent’s concession on that point was rightly accepted. The appellant was therefore discharged in respect of that offence.
2. Speciality and disaggregation. Since the two-year sentence covered both offences, the court granted permission to add the speciality ground. The issue was whether Portuguese law provided arrangements ensuring that extradition for robbery would not result in imprisonment for the cartridge offence, unless the appellant first had a reasonable opportunity to leave Portugal. The court considered that reliance solely on the presumption that Portugal would comply with its international obligations was insufficient. There was no identified separate period attributable to robbery, no identified Portuguese provision conferring an express power of disaggregation, and a documented concern on the issue in Nobre v Portugal [2024] EWHC 417 (Admin). Questions were to be sent to the Portuguese judicial authorities, and the issue was adjourned pending their response.
3. Article 3. The renewed application concerning prison conditions in Portugal was adjourned, by agreement, pending the decision in Andrade v Central Criminal Court of Almada, Portugal, in which updated evidence and assurances were being considered.
4. Article 8. The existing assessment that extradition was compatible with the appellant’s family and private life rights was not obviously flawed and appeared weak on the material before the lower court. However, because the other issues would cause delay, the court left open the possibility that the proportionality balance might have changed and adjourned the issue for updated evidence.
5. The appeal was allowed to the extent of the cartridge offence. The amendment application was allowed, the further evidence was admitted, and the remaining permission and renewal issues were adjourned. Updated evidence was to be filed by the end of April 2025.

• High Court (Administrative Court): Mr Justice Kerr allowed the appeal on the dual-criminality ground and discharged the appellant in respect of possession of the shotgun cartridge. The speciality ground was added and the article 3 and article 8 issues were adjourned.
• Westminster Magistrates’ Court: District Judge John McGarva ordered extradition on 28 February 2024 under the conviction warrant.
• High Court (Administrative Court): Bourne J granted permission to appeal on the section 10 issue on 29 April 2024 and refused permission on the article 3 and article 8 grounds.