England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/03/2015

The Hon. Mr Justice Popplewell :

1. This is the judgment of the court.
2. The Appellant, ("Mr Loncar"), appeals against an extradition order made by District Judge Snow at the Westminster Magistrates Court on 13 November 2014 under s. 21(3) of Part 1 of the Extradition Act 2003 ("the EA"), following the execution on 20 August 2014 of a "conviction" European Arrest Warrant issued by the County Court in Vukovar (Croatia) ("the JA") on 14 July 2014 and certified by the National Crime Agency on 20 August 2014. Croatia was formerly a category 2 territory to which Part 2 of the EA applied. From 1 July 2013 it has been a category 1 territory by virtue of The Extradition Act 2003 (Amendment to Designations) Order 2013: SI 1583 of 2013.
3. On 25 February 2014 we heard argument and gave our decision that the appeal would be allowed. These are our reasons, to which both members of the court have contributed.
4. The return of Mr Loncar is sought by the JA for the service of a sentence of imprisonment of 4 years imposed in his absence on 5 October 2001 for conduct contrary to the Croatian Criminal Code, which if committed in England and Wales would have amounted to attempted murder. It is accepted that the EAW is compliant with the EA and that the conduct is an extradition offence.

The facts and the proceedings in Croatia

5. Mr Loncar is of Serbian ethnicity. He is now 55. His conviction was based on the events of the evening of 22 March 1994, when he was 34. At that time he was living in the village of Ostrovo in part of the former Yugoslavia known as Eastern Slavonia. In 1979-1980 he had served in what was then the Yugoslav army. The region was ethnically Serbian and in 1994 it was a conflict zone, being in territory which asserted independence as the Serbian Republic of Krajina but was also claimed by Croatia.
6. On the evening in question Mr Loncar and his wife had been arguing. She went to a pantry, climbed a ladder, tied a rope around her neck and jumped off intending to commit suicide. Mr Loncar fired 14 shots at her from a handgun from a few metres away, causing a number of injuries. His wife died. It was determined at the re-trial in 2001 that the cause of death was primarily suffocation from hanging.
7. Immediately after the incident, Mr Loncar surrendered himself and was taken into custody. He remained in custody for almost a year until 17 March 1995 whilst awaiting trial on a charge of murder. After his release on bail he remained in Ostrovo until his trial. He was tried on 28 November 1995 at the Beli Manastier District Court in Eastern Slavonia, which was then the criminal court of competent jurisdiction. At the trial his explanation for his conduct was that when he saw that his wife had jumped off the ladder, he took the gun and ammunition out of the holster he had under his arm and fired the gun from 3-4 metres away, but did not know in which direction he had fired it. Apart from this defence of a lack of intention to kill, he also contended that the shots had not caused or contributed to his wife's death because she had already died of strangulation before they were fired. In support of this defence he relied upon the findings and opinion of the pathologist who had conducted the autopsy, Dr Zdravko Tomasevic. His evidence was that the gunshot injuries were inflicted posthumously.
8. Mr Loncar was acquitted in a reasoned written judgment which recorded the evidence of Mr Loncar and others, including the medical evidence.
9. The conflict in the region was resolved by Croatia taking control of the territory in 1996 or 1997. Mr Loncar remained living there for several years. In February 1999 he left with his two sons and flew to England because of the difficulties faced by his sons as ethnic Serbians at a Croatian school and the local antipathy resulting from the death of his wife. No attempt was made by the Croatian authorities to prevent him leaving via Zagreb airport. When he arrived in England he claimed asylum, which was in due course granted. He and his two sons became naturalised British citizens. Mr Loncar brought up his sons on his own.
10. On 4 April 2006 Mr Loncar was arrested on an extradition request from the JA which had been certified by the Secretary of State on 13 March 2006 under Part 2 of the EA. This was over 9 years after his acquittal and was the first that Mr Loncar knew of any further proceedings in Croatia arising out of the death of his wife.
11. What had happened? On 2 February 2000 the Supreme Court in Croatia revoked the acquittal of Mr Loncar and ordered a new trial. There is nothing in the material before us which identifies the grounds for that decision, although the grounds of appeal were subsequently described by the JA as being a "faulty assertion of the facts" by the trial court in 1995. The retrial took place on 5 October 2001 before the JA, which was the new court of competent jurisdiction in respect of the territory where Mr Loncar had lived and his wife had died. He was charged with attempted murder contrary to Article 90 of the Criminal Law of Croatia, which had been introduced in 1997, some 3 years after the conduct which formed the subject matter of the charge. Mr Loncar had assigned to him a state lawyer who attended the re-trial, although that took place in Mr Loncar's absence and without his knowledge. The Croatian police were aware that at that time Mr Loncar was in England but they did not apparently take any steps to locate him or warn him of the re-trial.
12. At the re-trial, the JA considered Mr Loncar's statement from the first trial and the report of Dr Tomasevic. It also had reports from 3 other medical practitioners, Dr Budakov, Dr Draskovic and Dr Budimilja whose opinion was that the shots were fired after the wife lost consciousness but before death occurred. The court commissioned further expert evidence from a forensic medical practitioner, Dr Marcikic, on the question of whether the wife was alive or dead when she was shot. His conclusion was that the wife primarily died of strangulation but that the gunshot injuries were inflicted prior to death. The court accepted this evidence, and held that Mr Loncar had an intention to kill, and therefore found him guilty of attempted murder. The court also took into account medical evidence which it held demonstrated that Mr Loncar "was not completely mentally sound when he committed the criminal offence". A sentence of 4 years imprisonment was imposed.
13. There was an appeal by the prosecution against the sentence on the ground that it was too lenient. There was also an appeal on Mr Loncar's behalf against the conviction, lodged by the state lawyer assigned to him, although again Mr Loncar was unaware of it. On 19 November 2003 the Supreme Court of the Republic of Croatia in Zagreb dismissed both appeals. On 11 March 2004 the judgment became capable of execution and on 16 March 2004 a warrant for execution of the sentence was delivered to the Execution Judge of the JA, Judge Nikola Besenski.

The first request for extradition

14. On 7 May 2004 the JA issued a domestic and international arrest warrant. On 23 December 2005 the JA requested the extradition of Mr Loncar from England. The extradition request was certified by the Secretary of State on 13 March 2006 pursuant to s. 70 in Part 2 of the EA. On 4 April 2006 Mr Loncar was arrested.
15. A full extradition hearing took place on 24 November 2006 before Deputy Senior District Judge Wickham. DSDJ Wickham had before her a letter dated April 13 2006 from the Enforcement Judge, Judge Nicola Besinski, on behalf of the JA, which expressly accepted that Mr Loncar was not unlawfully at large and that he had no knowledge of the proceedings following his departure from Croatia in 1999. Applying the provisions of Part 2 of the EA, which were then the applicable provisions, DSDJ Wickham concluded that Mr Loncar had a right to retrial on his return. She rejected an argument based on the retrospectivity of the criminal legislation under which Mr Loncar had been convicted. The judge declined to send the case to the Secretary of State and ordered the discharge of Mr Loncar on the grounds that pursuant to s.82 of the EA it would be unjust or oppressive to extradite him by reason of the passage of time. She described the delay by the JA prior to the retrial as culpable, and the delay in the trial process thereafter as "painfully slow". However, the judge also concluded that Mr Loncar would not have been prejudiced by a return to Croatia to the extent of not being able to have a fair trial, assuming that all the experts were still available, but that his Article 6 rights were "somewhat diluted" as no real further or fresh forensic investigation could be undertaken over 12 years after his wife's death. She attached significance to the defendant's circumstances since 1995, in which he had brought up his sons first in Croatia then in England on his own.
16. The JA did not seek to appeal the decision of DSDJ Wickham. Mr Loncar got on with his life in the UK. His evidence at the subsequent extradition hearing in 2014 was that he was advised not to leave the country, and did not do so until 2013, when, having heard nothing more, he assumed that the case was time barred and went to visit his sister in Serbia. This latter belief was challenged under cross examination in the extradition hearing before DJ Snow but he made no findings on it. It was when Mr Loncar was at Luton airport in order to visit his sister in Serbia for a second time on 20 August 2014 that Mr Loncar was arrested pursuant to the EAW issued on 4 July 2014 and certified on 20 August 2014.

The current EAW proceedings

17. There was a full extradition hearing before DJ Snow on 13 November 2014, who gave judgment later the same day. Three grounds of challenge were advanced, namely abuse of process, passage of time under s.14 of the EA and incompatibility of extradition with Mr Loncar's Article 3 rights. The abuse of process argument was advanced on the basis that the extradition under the EAW was sought on the same basis as the unsuccessful attempt in 2006, which had not been appealed. There was no allegation that the JA had acted in bad faith or out of an improper motive or without a proper evidential foundation or knowing that the request pursuant to the EAW would be bound to fail. The abuse argument was rejected.
18. In rejecting the further argument that the passage of time rendered it unjust to extradite Mr Loncar, DJ Snow referred to a letter received by Mr Loncar's advisers on the very day of the hearing from Croatian lawyers. The letter had with it an image of an elderly man in a hospital bed and an image of what appeared to be handwritten medical notes in a foreign language. At the extradition hearing it was explained, on instructions, that the patient was Dr Tomasevic and that he was gravely ill. An adjournment to enable the evidence to be put in a proper format was refused. DJ Snow described the way in which the information was placed before him as unsatisfactory, but he concluded that it was possible that Dr Tomasevic would be unavailable for a retrial because he had not practised as a pathologist for 10 years and was undergoing a serious operation.
19. At the extradition hearing the JA relied on two further letters sent by the Execution Judge, Judge Nikola Besenski, dated 14 October and 10 November 2014 respectively. Neither gave any explanation for not appealing the decision of DSDJ Wickham or for the decision to pursue extradition for the second time or for the delay before doing so. The letter of 14 October 2014 did, however, identify what were said to be two changes in circumstances since 2006, namely (1) that Croatia has become a full member of the EU and become able to seek extradition through EAWs; and (2) a new Criminal Proceedings Act had been introduced in Croatia which enabled a retrial to be more easily secured for someone in Mr Loncar's position.
20. Judge Besenski's letters of 14 October 2014 and 10 November 2014 also sought to go back on his acceptance in his letter of 13 April 2006 that Mr Loncar was unaware of the proceedings in Croatia following his acquittal. Judge Besenski suggested that it was to be inferred that Mr Loncar deliberately avoided the retrial by leaving the country without providing an address, although the proceedings were not in being at the time he left. Judge Besenski suggested that it was to be inferred that Mr Loncar knew of them because he had a state appointed lawyer. DJ Snow heard evidence from Mr Loncar, who denied any such knowledge, and although he found Mr Loncar an unsatisfactory witness in some respects he was not satisfied that Mr Loncar knew of the proceedings before his arrest in 2006.

This appeal

21. On this appeal, Mr Atlee on behalf of Mr Loncar seeks to argue three grounds, namely:

(1) The revival and pursuit of the extradition proceedings following the dismissal of the request in 2006 is an abuse of process. In relation to this ground, Mr Atlee seeks to advance new arguments which raise issues about the good faith of the JA, which had not been advanced before DJ Snow; for these purposes he seeks leave to amend the Grounds of Appeal, which is opposed on behalf of the JA.

(2) Extradition would be unjust or oppressive by reason of the passage of time so as to bar extradition under s. 11(1)(c) and s.14 of the EA. In relation to this ground, Mr Atlee seeks to introduce fresh evidence in the form of a statement of Mr Green, Mr Loncar's solicitor, exhibiting a letter from Croatian lawyers and attached medical notes in relation to the physical condition of Dr Tomasevic and his inability to attend a retrial. The application to adduce this fresh evidence is opposed. Mr Atlee contended that the new arguments alleging bad faith on the part of the JA, if allowed to be raised, were also relevant to this ground.

(3) Extradition would be disproportionate to Mr Loncar's rights under Article 8 of the European Convention on Human Rights so as to bar extradition under s.11(4) and s. 21 of the EA. This argument was not advanced before DJ Snow, although previously intimated by a list of issues, and was not within the original grounds of appeal from his decision. Mr Atlee seeks permission to amend the Grounds of Appeal to raise it, which is opposed by the JA.

22. DJ Snow dealt first with the argument that there had been an abuse of process. With respect, he was wrong to do so. That argument should have been dealt with last rather than first. The structure of Part 1 of the EA requires the court to consider the bars to extradition in the order set out in section 11(1). Abuse of process arguments can only be deployed if all other bars to extradition have failed because, as this court reiterated in the recent case of Belbin v The Regional Court of Lille, France [2015] EWHC 149 (Admin). The court's implied jurisdiction to refuse to extradite a requested person under Part 1 of the EA on the grounds of abuse of process is a residual jurisdiction, which will not be exercised if other bars to extradition are available: see paragraph [59].

First ground of appeal: section 14

23. The first question is therefore whether extradition is barred by reason of passage of time under s.14 of the EA.
24. Section 14 provides:

"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."

25. The fresh evidence of Dr Tomasevic's inability to attend a retrial is potentially relevant to the section 14 issue, if admissible. We therefore consider first the approach to its admissibility, which is dictated by s. 26 and s.27 of the EA and the guidance given by this court in Szombathely City Court Hungary v Fenyvesi [2009] EWHC 321 (Admin) ("Fennyvesi") and Elashmawy v Italy [2015] EWHC 28 (Admin) ("Elashmawy").
26. Sections 26 and 27 of the EA provide, so far as material, as follows:

"26 Appeal against extradition order

(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.

(2) But subsection (1) does not apply if the order is made under section 46 or 48.

(3) An appeal under this section may be brought on a question of law or fact.

(4) Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made.

27 Court's powers on appeal under section 26

(1) On an appeal under section 26 the High Court may —

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that—

(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that-..

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge."

27. Fenyvesi involved an appeal by 3 judicial authorities against a discharge by the District Judge of EAWs in circumstances where the judicial authorities had adduced no evidence on the relevant points at the hearing. The court was therefore concerned with whether fresh evidence could be adduced under s. 29(4) of the EA, which is in materially identical terms to s. 27(4). It was a case in which there was no doubt that the appeal could not succeed unless the fresh evidence was introduced, and accordingly that s. 29(4) was the relevant gateway containing conditions which had to be fulfilled. That is not the situation in this case. Here the question concerns the approach which the court should adopt in cases where the fresh evidence is adduced in support of a point which was argued below and on which there was already some evidence, and where there is a dispute as to whether the proposed fresh evidence would make all the difference, or be "decisive". In our view the answer is to be found in the structured approach required by ss. 26 and 27. The court should first decide whether the appeal should be allowed on the grounds identified in s. 27(3), on the basis of the evidence and the issues before the DJ. If so, the appeal will be allowed. If not, the question is whether the conditions in s.27(4) are fulfilled, which requires the requested person to establish, in relation to fresh evidence, that it was not available at the extradition hearing and that if admitted it would have resulted in the question being decided differently in a way leading to his discharge; in short that the fresh evidence would be "decisive".
28. We will therefore proceed to consider first whether, ignoring the fresh evidence which it is sought to adduce, the District Judge ought to have concluded that extradition should be barred by reason of the passage of time under s.14 on the basis of the evidence before him.
29. The following principles relevant to s. 14 (and s. 82 which is in materially identical terms for category 2 territories) may be derived from the authorities:

(1) The word "unjust" is directed primarily to the risk of prejudice to the requested person in the conduct of the proposed trial itself, whereas the word "oppressive" is directed to hardship to the requested person resulting from changes in his circumstances that have occurred during the period to be taken into consideration. However, there is room for overlapping and between them the two words will cover all cases where to return him would not be fair: Kakis v Government of Cyprus [1978] 1WLR 779 per Lord Diplock at page 782.

(2) Delay in the commencement or conduct of extradition proceedings which is brought about by the requested person himself by fleeing the country, concealing his whereabouts, or evading arrest cannot be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. In those circumstances, save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept those difficulties: Kakis per Lord Diplock at page 783, Gomes v The Government of Trinidad and Tobago [2009] 1WLR 1038 at paragraph [27].

(3) Where the delay is not brought about by the requested person himself, the essential question underlying the ground that the passage of time has made it unjust to extradite him is whether, by reason of that passage of time, a fair trial is impossible: Gomes at paragraphs [32-33]. Nevertheless prejudice in the conduct of his defence at a trial or retrial may be a factor contributing to a conclusion that a return would be oppressive, notwithstanding that it will not of itself satisfy the injustice criterion.

(4) The test of oppression "by reason of the passage of time" will not easily be satisfied; hardship, a comparatively commonplace consequence of an order for extradition, is not enough: Gomes at paragraph [31].

(5) The gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would render his return to stand trial oppressive. The more serious the offence, the less easy it will be to satisfy the test of oppression: Kakis per Lord Diplock at page 784; Gomes at paragraphs [31].

(6) The length of time is itself an important consideration in whether a return would be oppressive: Wenting v High Court of Valenciennes [2009] EWHC 3528 (Admin).

(7) Where the delay is not brought about by the requested person himself, it is a relevant factor if the delay has engendered in the requested person a legitimate sense of security from prosecution or punishment: Gomes at [26]; La Torre per Laws LJ at [37].

(8) Where the delay is not brought about by the requested person himself, the culpability of the delay by the judicial authority may contribute to establishing the oppressiveness of making an order for his return, and may be decisive in what is otherwise a marginal case: Kakis per Lord Edmund Davis at page 7855, La Torre v The Republic of Italy [2007] EWHC 1370 per Laws LJ at paragraph [37]; Gomes at paragraph [27].

30. The offence for which the extradition of Mr Loncar is sought is undoubtedly a very serious one. Moreover Mr Loncar has not led a blameless life as a British citizen. He has a caution for theft in 2012 and a conviction for common assault in 2013. Nevertheless we have reached the firm conclusion that on the facts found by the District Judge and the issues raised at the extradition hearing, it would be oppressive to extradite Mr Loncar by reason of the passage of time in the light of the following factors:

(1) It is over 20 years since the night his wife died, and almost 20 years since his acquittal of any criminal responsibility by the local criminal court of competent jurisdiction. That is a long time, which is itself an important factor.

(2) Mr Loncar is not responsible for the period of delay. He is not a fugitive from justice. He remained openly in the country to face trial, after his release on bail, and attended the trial in 1995. After he was acquitted he remained there for several years. He came to England in 1999 without any attempt by the Croatian authorities to prevent or detain him, and he thereafter started a new life. He was unaware of any of the judicial developments in Croatia until 2006, and then his resistance to extradition was vindicated by the decision of DSDJ Wickham.

(3) The lengthy delay was caused by the JA, for large parts of which it is culpable. There has been no adequate explanation for the delay between early 1997 when Croatia took or retook control of the region and February 2000 when steps were taken to challenge the acquittal. There has been no proper explanation for the delay between November 2004 when the sentence became executable following the decision of the Supreme Court of Croatia (rejecting the two appeals following the re-trial) and December 2005 when Mr Loncar's extradition was requested. Most importantly, there has been no explanation why the JA elected not to appeal the decision of DSDJ Wickham in November 2006 and no explanation for why nothing was done between 2006 and 2014 to pursue an application for Mr Loncar's extradition. The relevant paragraph of Judge Besenski's letter of 14 October 2014 does not purport to provide an explanation of the JA's thinking or decision making process between 2006 and 2014 or explain why no further steps were taken. It merely identifies two changes in circumstances, neither of which would provide cogent reasons for the delay even if they were in fact part of the thinking of Judge Besenski or other decision makers on behalf of the JA. The JA's ability to pursue extradition proceedings under Part 2 of the EA before 2013 was not in any relevant respect less efficacious than its ability to pursue such extradition proceedings under Part 1 of the EA from 2013 onwards. Nor does the change in the criminal law in Croatia in relation to retrials make any difference; DSDJ Wickham found that the position in 2006 was that Mr Loncar was entitled to a re-trial.

(4) Mr Loncar faced a trial by a court of competent jurisdiction by which he was acquitted, having spent almost a year in custody. Until 2006 he had every reason to think that that was an end to any question of criminal liability or risk of punishment. He continued to live in Croatia until 1999 and then moved to the UK to make a new life with his sons, with a proper and legitimate sense of security from any further prosecution or punishment for his wife's death following the acquittal. After the dismissal of the extradition proceedings in 2006, he was advised not to travel abroad. There is no reason to doubt that he was given a sense of security from the Croatian sentence if he remained in the UK and this sense must have grown as the years passed without any further attempt at his extradition. A belief that by 2013 he could safely travel abroad because execution of the Croatian sentence was time barred would not have been unreasonable. In short, in our judgment the overall delay between 1997 and 2014 lulled Mr Loncar into a legitimate sense of security from punishment in Croatia, subject only to a brief interruption in 2006 when he successfully resisted extradition.

(5) There is a real risk that Mr Loncar will be prejudiced in the conduct of any re-trial by reason of the passage of time because of the inability to adduce evidence from Dr Tomasevic who conducted the autopsy. On the evidence before DJ Snow, he found that it was possible that Dr Tomasevic would be unavailable to give evidence as a result of not having worked as a pathologist for 10 years and also of having undergone a serious operation during the previous week. Moreover the passage of time is likely to have rendered Mr Loncar's recollection of events less secure. (That must also be true of any other relevant witnesses: Mr Loncar's father and brother gave evidence at the original trial, although they were not present when the fateful events took place). Whilst this may not be sufficient of itself to render his extradition "unjust", nor sufficient for Article 6 rights to play any relevant part given the presumption in favour of Croatia as an EU state that it can provide an Article 6 compliant fair trial (see Gomes at paragraph [35]), it is nevertheless a relevant consideration in the context of whether it would be oppressive to return him to Croatia.

(6) Mr Loncar has established a family and private life in this country for over 15 years. He has been in a relationship with the same partner since prior to 2006, by whom he is financially supported, although they do not live together. Although his sons are grown up, there are 2 grandchildren by his younger son who live near him and whom he sees frequently. These are all relevant factors which engage Mr Loncar's rights under Article 8 of the ECHR. Whilst they might not be sufficient on their own to bar extradition under s.21, they are nevertheless relevant factors pointing towards a conclusion that return to Croatia would be oppressive by reason of the passage of time.

(7) In 2006 DSDJ Wickham considered a report from Mr Loncar's treating psychiatrist and accepted that Mr Loncar's experiences in the former Yugoslavia and his military service had left him deeply scarred and that he posed a considerable suicide risk already, and would pose such a risk if returned to Croatia. DJ Snow also received medical evidence from Dr Barratt, that Mr Loncar was highly anxious about extradition and "that his risk of death by suicide remains high and would be raised very much higher were he to be deported to Croatia". Although DJ Snow was satisfied that he would receive appropriate treatment in Croatia, Mr Loncar's mental health engages his Article 2 and, possibly, Article 3 rights under the ECHR and is a relevant factor pointing to the oppressiveness of his return even if insufficient on their own to satisfy s. 21.

(8) If Mr Loncar is returned, he faces an unwelcome dilemma. He may choose not to challenge the conviction and serve the 4 years (it is not clear whether the period of almost a year spent in custody on remand will count towards that period: the Croatian judgments suggest that it would, although the EAW suggests that the unserved term is the full 4 years). Or he may choose to have a retrial, in which case it may be he will be acquitted. If he is convicted there is a possibility, we imagine (although there was no evidence either way before us) that he may be subjected to a more severe sentence. This choice may also involve running the risk of a further period in custody on remand which does not count towards sentence in the event that he is again convicted. Again there was no evidence either way on the point. Although this dilemma is not itself caused by the passage of time, its effect is rendered more oppressive by the passage of time because Mr Loncar is no longer a young man.

31. In the light of these conclusions, it is not necessary to consider the application to adduce fresh evidence or the application to raise the new issue of bad faith on the part of the JA which was not raised below.

Abuse of process

32. As a result of our decision on the section 14 ground, it is unnecessary to consider whether a second attempt by the JA to obtain extradition after a first one has failed "on the merits" as opposed to some technical ground concerning the terms of the extradition offence would constitute an abuse of the English court's process. We did not hear argument on this point, but counsel in their skeleton arguments referred to a number of cases where extradition has been granted at the second or subsequent attempt. However, we wish to leave open the question of whether a second extradition request by a state made long after its first extradition request on a technically valid extradition request was rejected by the English court (and not appealed) would constitute an abuse of the English court's process, in circumstances where, as here (see [30(3)] above), there are no material changes in circumstance.

Disposal

33. In the event, we allow the appeal on the section 14 ground.