Issue 44 February 2009 - Current Awareness: Extradition

EXTRADITION - Trajer v Lord Advocate [2008] HCJAC 78

T appealed against a decision to extradite him to the Czech Republic. He had been convicted of rape there but had managed to avoid serving his whole sentence and had been unlawfully at large. He argued that in seeking his extradition the Lord Advocate and the Scottish Ministers were acting in a way which is contrary to art.8. He argued that his correspondence would be interfered with. He would not be entitled to phone his family other than with the written permission of the Prison Governor, and should he be allowed to use the phone it would be for a maximum of five minutes. In these circumstances, it was argued that his extradition would amount to an interference with his right to respect for private and family life, his home and his correspondence. The appellant maintained that he had a partner and home in Scotland. He argued that this breached art.8 and was also unjust and oppressive.  

Held: appeal dismissed.

(1) In relation to the claim of oppression the focus of this part of the decision was the change in circumstances of T during the period of time when he was unlawfully at large. Particular reliance was placed upon his living and working in the United Kingdom, his formation of the relationship with his present partner, which commenced in August 2007 and his acquisition of a dwelling house occupied by himself and his present partner, to which entry was taken in late January 2008. Reference was also made to the fact that the appellant had obtained employment in Scotland. Another aspect was the period of the sentence in question which remained to be served, which was said to be approximately six months. The Court did not consider that it was unjust or oppressive, by reason of the passage of the relevant period of time, to extradite the appellant. While, in relatively recent times, T had formed a relationship with his partner in Scotland and has acquired heritable property in Scotland in which to live, the Court did not consider that those matters were of sufficient significance as to be capable of giving rise to a conclusion of oppression, either themselves or in association with the other matters which should be considered.

(2)As regards the length of the sentence remaining to be served, that was still a significant period. While in an extreme case, where, e.g. only a few days remained to be served of a custodial sentence, extradition might, on that account, be seen as oppressive, that was not the case here.

(3) In relation to the art.8 case the Court applied what was said in Jasoc v Central Criminal Court No.2, Madrid [2007] EWHC 2983 (Admin). There Dyson L.J., in considering art.8 in connection with an issue of extradition said: "What is required is that the court should decide whether the interference with a person's right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's Article 8 rights."  

Against that background the Court was unable to say that there were any "striking and unusual facts" in this case which would lead to that conclusion. Any extradition is bound to involve some level of disruption to the subject's family life. There was nothing in the circumstances of the present case which would render extradition a disproportionate interference with the appellant's right to respect for his family life.