QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GARNHAM
| Veronica De Zorzi
|- and -
|Attorney General Appeal Court of Paris (France)
Jonathan Swain (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 26th June 2019
Crown Copyright ©
Mr Justice Garnham:
The Statutory Scheme
"11 Bars to extradition
(1) If the judge is required to proceed under this section he must decide whether the person's extradition to the category 1 territory is barred by reason of…
(c) the passage of time;…"
"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
(a) committed the extradition offence (where he is accused of its commission), or
(b) become unlawfully at large (where he is alleged to have been convicted of it)."
"(1) If the judge is required to proceed under this section (by virtue of section 20 he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.
(4) If the judge makes an order under subsection (3) he must remand the person in custody or on bail to wait for his extradition to the category 1 territory.
(5) If the person is remanded in custody, the appropriate judge may later grant bail."
The District Judge's Decision
(a) Factors said to be in Favour of Granting Extradition:
(i) There is a strong and continuing important public interest in the UK abiding by its international extradition obligations.
(ii) The seriousness of the criminal conduct in respect of which she has been convicted and sentenced. There remains the full sentence of 3 years outstanding.
(iii) The assertion by the Judicial Authority and the finding by this court that the requested person has remained a fugitive from French Justice for a number of years.
(b) Factors said to be in Favour of Refusing Extradition
(i) VZ has been settled in Belgium (Plainly, a typing error; Holland intended) for many years.
(ii) She is in full-time employment and has fixed accommodation, where she lives with her 18 year old daughter, to whom she provides some financial and emotional support.
(iii) VZ has led a law-abiding life in Belgium and, save for the matter set out in this EAW, she has no other criminal convictions.
(iv) She asserts that he is not a classic fugitive from justice.
(v) The offending conduct occurred over 18 years ago, since when VZ's life has changed in many positive ways, such that it would be Article 8 disproportionate to order her return.
(i) It is very important for the UK to be seen to be upholding its international extradition obligations. The UK is not to be considered a 'safe haven' for those sought by other Convention countries either to stand trial or to serve as prison sentence.
(ii) In my opinion, the criminal conduct as set out in the EAW is serious and, in the event of a conviction in the UK for like behaviour, a prison sentence of some length may well be imposed.
(iii) This court finds that the requested person is unlawfully at large. The reasons for this finding are that she has been aware, since she appeared in court in 2001, that these proceedings were ongoing in France. She became aware of the sentence imposed but chose not to surrender herself to serve the sentence. The French authorities have not given her any indication of a desire to withdraw or abandon these proceedings.
(iv) Albeit her return to France was refused by the authorities in the Netherlands some time ago, she will have been aware that she remained wanted in France and that if she chose to travel outside the Netherlands, she risked arrest and return under the terms of this live French request.
(v) It is appreciated that there will be hardship caused to VZ and, to some extent, to her 19-year-old daughter. However, hardship alone, of itself, is not sufficient to prevent an order for extradition from being made.
(vi) This court does bear in mind, in an Article 8 context, that the offending conduct took place over 18 years ago, since when her life has changed but during which time VZ has chosen resiliently not to return to France to serve the outstanding sentence.
(v) As this court has found as a fact that VZ is a fugitive from justice, this finding brings paragraph 39 of the decision in Celinski above into consideration. I do not find that there are such strong counter-balancing factors as would render extradition Article 8 disproportionate in this case.
The Competing Arguments
The legal principles
(i) "Unjust" in s14 refers to the risk of prejudice to the accused in the conduct of the trial; "oppressive" is directed to hardship resulting from changes in the requested person's circumstances during the period in issue (Kakis 782-3).
(ii) Delay in the commencement or prosecution of extradition proceedings resulting from the requested person's conduct in fleeing the country, concealing his whereabouts or evading arrest does not (save in the most exceptional circumstances) make it oppressive or unjust to order his return (Kakis (p782-3)). In other words, where a person has knowingly placed himself beyond the reach of a legal process he cannot invoke the passage of time resulting from such conduct to support the existence of a statutory bar to extradition (Wisniewski ; Pillar-Neumann ).
(iii) A person who "deliberately flees the jurisdiction in which he had been bailed to appear" cannot seek to share the blame for the delay with the requesting state on the ground of its inaction or dilatoriness (Gomes ).
(iv) It is only where the requested person is informed by the requesting state of a deliberate decision not to pursue the case against him, or some similar circumstance, that a sense of security on his part, notwithstanding his flight, could be said to be justified (Gomes ).
(v) A person is "unlawfully at large" within s14(b) if he is at large in contravention of a lawful and immediate sentence of imprisonment under the applicable legal system (Wisniewski  and ). That is an objective test, unaffected by the requested person's state of knowledge (Wisniewski ).
(vi) Serious delay by a requesting state prior to the order for the requested person's detention will not found an argument for oppression under s14, but may be relevant to an argument under Art 8 ECHR and s21 (Wisniewski  and HH v Italy  UKSC 25 at 
(vii) "Fugitive" is not a statutory term, but a concept developed in the case law. It describes a status which must be established to the criminal standard, but which, if established precludes reliance on the passage of time under s14 (Wisniewski ).
The proper approach to determining fugitive status
"65. In the present case, the Appellant has been resident in this country, as the wife of a British citizen, since 1998, six years before the criminal investigation began. The UK is her home.
66. She has throughout lived in this country openly. She has taken no steps to conceal her identity or her location. She has been on the electoral role and has paid council tax and utility bills.
67. The Respondent argues, and the judge found, that the Appellant is a fugitive because in 2004 she became aware that a domestic warrant for her arrest had been issued in Austria and that, by failing to leave her home in the UK and to go to Austria, so that she could be arrested pursuant to that warrant, she was evading arrest and was therefore a fugitive.
68. In my judgment, even if she was aware of the domestic warrant, which is disputed, lawfully remaining in her established country of residence does not mean she was evading arrest or was a fugitive.
69. She was not fleeing the country or concealing her whereabouts. She was not taking any positive steps to evade or avoid arrest. She was simply carrying on living in her country of residence, as she was lawfully entitled to do.
70. Nor was she knowingly placing herself beyond the reach of a legal process. She took no positive steps to place herself anywhere. The Respondent's case is that she was somehow obliged to place herself within the reach of a legal process instituted in another country and to leave and give up her home and lawful residence in the UK in order to do so. Not surprisingly, we have been shown no case in which it has been found, or even suggested, that failing to act in this way makes someone a fugitive.
71. In fact, she could not have returned to Austria in any event as she had no passport.
72. In the context of a European Arrest Warrant, it is unsurprisingly not suggested that a person who fails to give himself up, go to the country seeking extradition and submit to arrest there is evading arrest or acting as a fugitive, but that is where the logic of the Respondent's argument leads.
73. For all these reasons I have no doubt that the judge was wrong to find to the criminal standard that the Appellant was a fugitive. If so, there is no bar to her relying on the passage of time under section 14."
The Appellant a fugitive?
Lady Justice Rafferty