QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE LEVESON
|GOVERNMENT OF LATVIA||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR J HARDY (instructed by the Crown Prosecution Service) appeared on behalf of the DEFENDANT
Crown Copyright ©
"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence or each of the offences in respect of which the applicant's return is sought that . . .
(b) by reason of the passage of time since he is alleged to have committed it, it would, having regard to all the circumstances, be unjust or oppressive to return him."
(1) The passage of time is to be measured from the date of the commission of the offence until the hearing of the application for habeas corpus.
(2) If for any of the reasons specified in section 11(3) it appears that the return would be unjust or oppressive there is no room for any exercise of a residual discretion by the court. The applicant must be discharged.
(3) Where the passage of time is due to dilatory conduct on behalf of the requesting government, it tells in favour of the fugitive, whereas if the passage of time was inevitable it would not.
(4) Delay on the part of the applicant, ie, by fleeing the country, concealing his whereabouts or evading arrest, cannot, save in the most exceptional circumstances, count towards making his return unjust or oppressive.
(5) Although unjust and oppressive are terms which can overlap, the term "unjust" is directed primarily to the risk of prejudice to the accused and the conduct of the trial itself, whereas "oppressive" is directed to hardship to the accused from changes in his circumstances during the period to be taken into consideration.
(6) The injustice or oppression must be causatively linked to the passage of time. They cannot be merely incidental to it.