APPENDIX 5: CASE SUMMARIES |
BH (AP) and another v The Lord Advocate and
another (2012) UKSC 24
The case of BH involved the extradition of
a husband and wife to the US on charges to import to the US "chemicals
used to manufacture methamphetamine, knowing or having reasonable
cause to believe that they would be used for that purpose."
The case was complicated by the fact that the wife,
Mrs H, was the mother of six children who lived with the
couple. The youngest two children had been conceived and born
while the extradition proceedings were underway.
In addition, Mr H had had two other children
prior to his relationship with Mrs H, both of whom had previously
been removed from his care and, in one case, sexual abuse had
been alleged. In the light of this background, and prior to the
birth of the youngest three of the children, Mr H had been
ordered to have no contact with the older three of Mrs H's
children. In 2011, Mr and Mrs H's relationship ended.
The case revolved around the impact on the six children
of Mr and Mrs H's extradition and whether the potential
breach of the children's Article 8 rights would outweigh the public
interest in extraditing Mr and Mrs H.
Both the High Court of Justiciary and the Supreme
Court held that the impact on the children of extraditing Mr H
"did not come close to meriting his discharge". In the
case of Mrs H the judgment was more finely balanced. Both
courts concluded that though it would be in the interests of the
children not to be separated from their mother, this did not outweigh
the public interest in ordering her extradition.
As discussed in paragraphs 158-61 of Chapter 4, the
courts differed in their interpretation of how the facts of this
case were to be judged in the light of case law with regard to
considering prosecution in the UK.
The case was heard by the Supreme Court simultaneously
with that of HH (see below).
Dibden v Tribunal De Grande Instance De Lille
France (2014) EWHC 3074
The case of Daniel Dibden was the first to make substantive
use of the forum provisions of the 2003 Act as the basis of an
appeal against extradition.
Mr Dibden was charged with being a principal
participant in the smuggling of drugs from the Netherlands to
the UK via France. There were also two co-accused who were arrested
in France with over 60kg of amphetamines and 6kg of cocaine, which
they intended to transport to the UK in a microlight aeroplane.
Mr Dibden, who was based in the UK throughout
the relevant period, was charged by the French authorities with
importing illegal substances as part of an organised gang and
the acquisition and transportation of narcotic drugs.
Extradition was ordered and appealed. Both Mr Dibden
and the Issuing State recognised that "a substantial measure
of his activity was performed in the UK".
However the defence disagreed with the way in which the judge
had balanced the "specified matters relating to the interests
of justice" contained in section 19B(3) of the 2003 Act.
The defence argued that extradition would go against
the interests of justice as:
drugs were intended for use in the UK;
defendant resided in the UK;
of the evidence in this case was based in the UK;
in France would cause unnecessary delay in the transfer and translation
of evidence; and
· Mr Dibden
had a 13-week-old son.
The Issuing State, France, argued that although the
offence was intended to cause harm in the UK, it was a trans-national
offence with significant harm occurring in France and the Netherlands.
With regard to trial proceedings, the strength of the UK-based
evidence was unclear and it was not yet known whether it would
be sufficient to prove the offences. It was also argued that the
trial for these offences should occur in France because, as a
general principle, all prosecutions for related crimes should
happen in one jurisdiction and proceedings in France were already
well advanced for linked offences.
The appeal was dismissed and extradition was ordered.
Paul and Sandra Dunham
Paul Dunham, Sandra Dunham v Government of the
United States (2014) EWHC
Between 2002 and 2009, Mr and Mrs Dunham
worked for an electronics company in the US, Pace Inc. The company
also operated in the UK. Mr and Mrs Dunham were accused
of having "defrauded their employer by the dishonest misuse
of company credit cards and by rendering dishonest claims for
expense on the basis that they had been incurred on the companies'
Both Mr and Mrs Dunham were in their late 50s. They
had lived and worked in the UK all of their lives, apart from
seven years in the US during which time the offences were said
to have taken place.
Following disagreements with the owner of Pace Inc.
and its UK operation, Pace Europe, Mr and Mrs Dunham
left the company and returned to the UK. Civil proceedings were
then started against them in the US by Pace Inc. for fraud and
gross misconduct. Mr and Mrs Dunham denied the charges.
The trial in relation to these charges was heard in the US on
28 June 2010. Mr and Mrs Dunham were absent from these
proceedings. They were found guilty and were ordered to pay damages
of $5,382,780.90. Pace Inc. then sought to enforce this ruling
on the Dunhams in the UK. The Dunhams resisted this but were ultimately
ordered by the High Court to pay $1,794,260.30.
In the meantime, criminal proceedings commenced in
the US in relation to the same offences. A request for their extradition
was made in April 2012 and they were arrested in the UK on 13
The Dunhams resisted their extradition on a number
(1) that it constituted an abuse of process as
it reflected a personal vendetta by Eric Seigel, the son of the
owner of Pace Inc. and Pace Europe;
(2) that the offences were not sufficiently serious
to merit extradition (they were described as being "only
an expenses fraud");
(3) that the charge of conspiracy to defraud
could not have been brought against them if the conduct had occurred
in the UK as Mr and Mrs Dunham were the only people
indicted and therefore there could be no conspiracy;
(4) that there had been an unreasonable delay
between the offences and the extradition request; and
(5) that the psychiatric and medical conditions
of Mr and Mrs Dunham meant that extradition would be
a disproportionate breach of their Article 8 rights.
It was only this final argument to which the courts
attached significant weight.
The courts heard medical evidence that the threat
of extradition meant that Mr and Mrs Dunham suffered
from moderate to severe depression. In Mr Dunham's case in
particular, this condition would worsen if he were extradited
and detained in a 'supermax' prison like Chesapeake Detention
Facility (CDF). Having already attempted suicide in the course
of the extradition proceedings, it was reported that there was
a high likelihood of his trying again and succeeding.
The judge, Mr Justice Simon, concluded:
"In summary, and without seeking to minimise
Mr Dunham's mental condition, the medical evidence shows
that he is suffering from an Adjustment Disorder due to a high
degree of stress associated with uncertainty and apprehension
arising out of the legal proceedings and the prospect of extradition.
This has been in existence since the start of the civil legal
proceedings. The stated intention to commit suicide is not linked
to his mental condition, but appears to be a rational choice that
the Dunhams have said they will make if they are ordered to be
[Mr Dunham's] mental condition does not
approach the threshold
that it would be unjust or oppressive
to order extradition
The CDF regime is plainly harsh; and
the treatment of Mr Dunham's mental condition might be unsatisfactorily
perfunctory, although it is unlikely that his life would be at
risk. On the other hand it is not clear that he would be detained
at CDF, and the evidence about the other facilities is very limited
So far as Mrs Dunham is concerned, her mental condition
is not so serious as her husband's, and there is no real evidence
that her detention before trial would not be adequately addressed."
Their appeal was therefore dismissed and their extradition
The written evidence from Mr and Mrs Dunham
and from their constituency MP, Andrea Leadsom MP
provide descriptions of the impact of the process of extradition,
including an attempted suicide by both Mr and Mrs Dunham.
They also provide details of the time the couple spent on remand
in the US, on bail and Mr Dunham's ongoing heart condition.
On 10 December 2014, Mr and Mrs Dunham
agreed to a plea bargain. Both pleaded guilty to conspiracy to
commit wire fraud. Mr Dunham also pleaded guilty to
a separate charge of money laundering.
Paul Dunham's agreement stated that it was contingent
on his wife agreeing a separate plea bargain. Paul Dunham
was originally indicted with 13 offences, but under the terms
of the plea bargain he was charged with two offences with a maximum
of 20 years imprisonment. He was sentenced to four years in prison
followed by three years of supervised release. Mrs Dunham
pleaded guilty to one charge and was sentenced to 60 days in prison,
42 of which had already been served on remand. The remainder of
her sentence was to be served in home detention.
HH & Ors v Deputy Prosecutor of the Italian
Republic, Genoa & Ors
(2012) UKSC 25
The case of HH involved three appeals against
extradition to Italy on Article 8 grounds. Two of the appellants,
HH and PH, were married with three young children (HH being the
mother of the children and PH, the father). The other appellant,
F-K, had five children. The appeals argued that extradition would
be a disproportionate breach of the Article 8 rights of the children.
The Supreme Court considered the case in the light of an earlier
case, Norris v US, which found that:
"the consequences of interference with article
8 rights must be exceptionally serious before this can outweigh
the importance of extradition."
The Court in Norris also found that the impact
of extradition should not be viewed only from the Requested Person's
point of view; the effect on family members may also be considered
relevant. For example:
"If extradition for an offence of no great gravity
were sought in relation to someone who had sole responsibility
for an incapacitated family member, this combination of circumstances
might well lead a judge to discharge the extraditee".
In her judgment on HH, Baroness Hale
concluded there was no overall test of exceptionality in extradition
law. This view was drawn from the judgment in Norris in
which Lord Hope had said that the courts should not seek
to set "a threshold which must be surmounted before it can
be held in any case that the article 8 right would be violated".
Also in Norris, Lord Mance said that to approach Article
8 considerations in this way risked diverting "attention
from consideration of the potential impact of extradition on the
particular persons involved and their private and family life
towards a search for factors (particularly external factors) which
can be regarded as out of the run of the mill." Baroness Hale
emphasised that the proper approach to such questions was to judge
whether "the interference with the private and family lives
of the extraditee and other members of his family is outweighed
by the public interest in extradition." She noted that the
public interest in extradition was unlikely to be outweighed unless
its impact was "exceptionally severe". She also said
that when reaching this judgment on the balance between the impact
of extradition and the public interest, the courts would take
into account matters such as the severity of the crime and the
passage of time (see Box 3).
In the case of F-K, Baroness Hale noted:
"During that lapse of time, the appellant and
her family have made a new, useful and blameless life for themselves
in this country. Two more children have been born
time did the parents have any reason to believe that the Polish
authorities were seeking the mother's return."
On those grounds, the Court unanimously found that
extradition would be a disproportionate breach of F-K's Article
With regard to the cases of HH and PH, Baroness Hale
said, "The circumstances in this case can properly be described
as exceptional. The effect upon the children
both their parents will be exceptionally severe." She therefore
considered whether both HH, the mother of the children, and PH,
their father, should be extradited. In her view, HH's extradition
could not be discharged on Article 8 grounds because, on the one
hand, her mental capacity made her unlikely to be able to look
after her children alone and, on the other, the Italian authorities
considered her offences to be more serious than those of PH. In
common, therefore, with all the other members of the Court she
dismissed HH's appeal.
Baroness Hale dissented, however, in the case
of PH the husband; she would have allowed his appeal on the basis
that his offences were less serious and the effect of extraditing
both parents would be "exceptionally severe". The other
six members of the Court concluded that the strong public interest
in extradition outweighed the painful and damaging effects of
separation for the children and dismissed her appeal too.
McKinnon v Government of the United States of
America and another (2008)
In 2001-02, Gary McKinnon gained unauthorised access
from his home computer in London to 97 US Government computers,
including those of the Army, Navy, Air Force, NASA and the Department
of Defence. He deleted critical operating system files, significantly
disrupting government functions and leaving the network vulnerable
to other intruders. He also copied data and files onto his own
computers. The US alleged his conduct was intentional and calculated
to influence the US Government by intimidation and coercion. It
damaged computers by impairing the integrity, availability and
operation of programmes, systems, information and data, rendering
them unreliable. The cost of repair was alleged to total over
Analysis of Mr McKinnon's home computer confirmed
the allegations and in interview under caution he admitted responsibility
(although not that he had caused damage). He stated his ultimate
goal was access to the US military classified information network.
He admitted leaving a note on one army computer reading:
"US foreign policy is akin to government-sponsored
terrorism these days
It was not a mistake that there was
a huge security stand down on September 11 last year
am SOLO. I will continue to disrupt at the highest levels
Between 2002-03 plea-bargaining discussions took
place before an extradition request was made. US prosecutors indicated
that if Mr McKinnon were to go to the US voluntarily and
plead guilty it was likely a sentence of 3-4 years would be passed
and, after serving 6-12 months, he would be repatriated to complete
his sentence in the UK. In this event he might serve only 18 months
to two years in total. If, however, he chose not to cooperate
and were then extradited and convicted, he might expect to receive
a sentence of 8-10 years, possibly longer, and would not be repatriated
to the UK for any part of it.
The predicted sentences were so widely different
because of the different bases upon which the prosecutor proposed
to put the case. Upon a plea of guilty, the prosecutor was prepared
to put the damage resulting from his actions in a lower bracket
than they believed they could prove, including nothing for the
losses resulting from the inability for a time to access the computers
and overlooking too the disruption to US Government functions
and the significant endangering of national security.
The plea bargain was refused and, in 2004, the US
formally requested Mr McKinnon's extradition.
In 2006, the District Judge recommended extradition
and sent the matter to the Secretary of State for a final decision
whether to order extradition, as was the procedure at the time.
The extradition order was made and appealed. The High Court dismissed
the appeal in 2007.
In 2008, the House of Lords granted leave to appeal
in respect of one question: whether the plea bargain, including
the threat that there would be no possibility of serving part
of his sentence in the UK if he resisted extradition, constituted
"an abuse of process requiring the defendant's discharge
from the extradition proceedings."
The appellant argued that for some defendants, the
very process of comparing the two alternatives offered under a
plea bargain would create pressure to tender a guilty plea. It
was argued that despite his resistance to the offer, the fact
of the "deal" was an abuse of process, calculated to
interfere with the extradition proceedings.
In his judgment, Lord Brown of Eaton-under-Heywood
"In one sense all discounts for pleas of guilty
could be said to subject the defendant to pressure, and the greater
the discount the greater the pressure. But the discount would
have to be very substantially more generous than anything promised
before it constituted unlawful pressure such as to
vitiate the process. So too would the predicted consequences of
non-cooperation need to go significantly beyond what could properly
be regarded as the defendant's just desserts on conviction for
that to constitute unlawful pressure."
The House of Lords therefore dismissed the appeal.
In August 2008, Mr McKinnon lost his appeal
to the ECtHR and his lawyers revealed he had recently been diagnosed
with Asperger's Syndrome, adding: "The offences for which
our client's extradition is sought were committed on British soil
and we maintain that any prosecution ought to be carried out by
the appropriate British authorities." New representations
were made to the then Home Secretary, who decided to order extradition.
In 2009, Mr McKinnon signed a confession, and
offered to face trial in the UK. The CPS declined to prosecute
indicating that the criminality alleged to have occurred in the
US far exceeded the evidence of criminality in the UK.
Mr McKinnon launched a judicial review of the
Home Secretary's decision to order extradition despite his Asperger's
Syndrome and requested leave of the High Court to appeal to the
Supreme Court. His request to appeal to the Supreme Court was
In 2009, the Home Office sought and received assurances
that Mr McKinnon's medical needs would be met in the US.
In 2010, permission to judicially review the Home
Secretary's decision to order extradition was granted. The Home
Secretary, Theresa May MP, announced she would adjourn her
decision on extradition.
In 2012, following further medical assessment of
Mr McKinnon's medical condition, the Home Secretary decided
to refuse to order extradition.
In May 1994, Graham Mitchell and a friend, Warren
Tozer, were on holiday in the Algarve. Whilst there they were
arrested by Portuguese police investigating a serious assault
on Andre Jorling, a 26-year-old German. Mr Jorling had sustained
severe injuries after falling off a 12ft-high sea wall. He was
left paralysed from the waist down. Mr Mitchell and Mr Tozer
were accused of attempted murder.
Mr Mitchell was held in pre-trial detention
for a year. At trial, both he and Mr Tozer were found not
guilty and released. On his return to the UK Mr Mitchell
was treated for post-traumatic stress related to his detention
In 1996, Portugal's Supreme Court quashed Mr Mitchell's
acquittal and ordered a new trial. In 2008, the Portuguese authorities
submitted an EAW to secure Mr Mitchell's return to face the
same attempted murder charges. The EAW was certified by the Serious
Organised Crime Agency (then the designated certifying authority)
in November 2009. Of none of these developments had Mr Mitchell
been made aware. In March 2012, Mr Mitchell was arrested
at his home and extradition proceedings began in Westminster Magistrates'
In May 2012, the Portuguese authorities withdrew
the EAW request.
NatWest 3 (David Bermingham, Gary Mulgrew and Giles
R. (on application of Bermingham and others) v
Director of the Serious Fraud Office, the Attorney General and
the Secretary of State for the Home Department
(2006) EWHC 200 (Admin)
David Bermingham, Gary Mulgrew and Giles Darby (often
referred to as the NatWest 3) worked for NatWest Bank's investment
banking arm in 2000. They were British citizens, resident in the
UK. NatWest had offices in London and Texas. Enron was a company
based in Houston, Texas, managed by Mr Michael Kopper and
Mr Andrew Fastow. Enron was a client of NatWest Bank.
A company called LJM Swap Sub, owned by Mr Kopper
and Mr Fastow, was based in the Cayman Islands. NatWest Bank
and Enron were advised to invest in JLM Swap Sub, which they did.
The value of LJM Swap Sub was thought to be low until, in early
2000, there was a marked increase. On 29th January 2000, Mr Bermingham
sent an email (relied on by the US prosecutor) to his NatWest
colleague Mr Darby, saying:
"One last thing. An unexpected change of circumstances
re LJM [Swap Sub]. We have always assumed that the swap sub assets
have nil value, because of the mark to market value of the Rhythm
Net Put. This was true up to about 10 days ago, when Enron became
a virtual company, and its shares went through $60. I ran the
numbers last night, and I would say there is quite some value
there now. The trick will be in capturing it. I have a couple
of ideas, but it may be good if I don't share them with anyone
until we know our fate!!!"
It was alleged the NatWest 3 travelled to Houston,
Texas, in February 2000 to meet Mr Fastow to explore ways
of unlocking the value in LJM Swap Sub for their own benefit.
The prosecution relied on material contained in contemporary e-mails
to show that the defendants concealed the meeting from Kevin Howard,
NatWest Bank's manager with responsibility for the Enron account.
Prosecutors also alleged that between February and
August 2000 the NatWest 3 dishonestly advised their employer to
sell its stake in LJM Swab Sub for $1 million, despite knowing
it was worth significantly more. At their recommendation, NatWest
Bank agreed to sell its interest in Swap Sub for $1 million.
The NatWest 3 left NatWest Bank and bought interests
in LJM Swap Sub. Mr Kopper fraudulently told Enron that the
owners of LJM Swap Sub had agreed to sell their share to Enron
in exchange for $30 million. Enron paid $30 million for LJM Swap
Sub. LJM Swap Sub gave $1 million to NatWest Bank and the co-defendants
shared the remainder.
As a result of their participation, the NatWest 3
received approximately $7.3 million between them. Mr Kopper
and Mr Fastow shared approximately $12.3 million (they were
subsequently also prosecuted in the US). The remaining $10 million
went to another investor bank not implicated in any wrongdoing.
The indictment made reference to the means of communication
in which evidence of the conspiracy to defraud was contained:
a fax from Houston to London; five communications from the UK
to Texas; and one electronic transfer from Houston to the Cayman
Islands. These communications were represented by specific charges
(counts one to seven) but all related to the same conspiracy.
The US requested the extradition of the NatWest 3
in 2004, shortly after the 2003 Act came into force. Following
a number of attempts to resist extraditionincluding bringing
legal proceedings against the Serious Fraud Office for not prosecuting
them in the UK (which would have prevented their extradition)the
NatWest 3 were extradited to the US in 2006.
In November 2007, the defendants agreed to plead
guilty to count four relating to the email from London to Houston
containing the final LJM Swap Sub sale documents. They undertook
to repay $7.3 million and were sentenced in February 2008 to 37
months' imprisonment. They were transferred back to the UK in
November 2008 to serve the remainder of their sentence. The three
were released in August 2010.
Richard O'Dwyer's extradition was requested by the
US in 2011 on two charges:
(1) conspiracy to commit copyright infringement;
(2) criminal infringement of copyright.
Both offences were punishable by a maximum term of
imprisonment of 5 years.
The elements of criminal infringement of copyright
(a) a copyright is infringed;
(b) such infringement is wilfully and knowingly
(c) such infringement is done for the purpose
of commercial advantage and private financial gain, or by making
material available on a computer-based network accessible to members
of the public, knowing that the work was intended for commercial
It was alleged that in 2007 Mr O'Dwyer conspired
with individuals based in the US to offer links to third-party
websites that illegally hosted thousands of copyrighted films
and television programmes to the public throughout the world (including
the US), free of charge and without authorisation from copyright
Mr O'Dwyer's website linking users to the films
and television programmes was called TVShack.net and was hosted
in the Netherlands. Co-conspirators assisted the operation and
maintenance of the website.
Although TVShack was free for users, Mr O'Dwyer
allegedly earned money from hosting advertising.
In order to demonstrate that Mr O'Dwyer's website
constituted criminal infringement of copyright, prosecutors relied
on a response issued by TVShack when users complained that the
illegally obtainable material was too slow to download:
"you're saving quite a lot of money (especially
when putting several visits together or seasons together) by having
to wait a little bit of time."
In June 2010, a US judge ordered the domain name
TVShack.net be seized for operating in violation of US copyright
laws. Within a day, the domain name and its contents had been
changed to TVShack.cc.
In extradition proceedings the defence argued the
request should be refused because the conduct had not been criminal
(asserting the website was akin to a search engine such as Yahoo!
or Google) or, alternatively, that the prosecution should be brought
in the UK because TVShack had been hosted on a server in the Netherlands.
Extradition was ordered and appealed. In 2012, Mr O'Dwyer
announced he had voluntarily travelled to the US and signed a
deferred prosecution agreement to avoid extradition, and the risk
of a criminal record. He was ordered to pay a fine of £20,000.
VB v Rwanda
VB & Others v Westminster Magistrates' Court,
The Government of Rwanda & Others
(2014) UKSC 59
In this case, four individuals were sought for extradition
to Rwanda to face charges of genocide, murder and crimes against
humanity carried out during the Rwandan civil war in 1994. Rwanda
had previously sought the extradition of the four defendants but
the District Judge had found that, although there was a prima
facie case sufficient to warrant their extradition to Rwanda,
there was a real risk of a flagrant denial of justice.
In this second extradition request, the four defendants
again claimed that if they were extradited they would be at risk
of serious human rights breaches. The defence also argued that
some of the evidence to support this claim could put others in
Rwanda at risk of similar breaches. The Supreme Court was asked
to rule on whether such sensitive information could be heard in
closed proceedings or subjected to disclosure conditions. The
Court ruled that there was no statutory basis for such procedure
and that they would be contrary to the principles of open justice
(see Chapter 5). However, Lord Toulson entered a dissenting
judgment. He noted that the District Judge had read the evidence
concerned and had found it to be relevant and important. He noted
the tension between avoiding prejudice to the Issuing State if
the Court agreed to non-disclosure and the fact that appellants
were likely to suffer a denial of their human rights if the Court
shut its eyes to their evidence, "In my view that is unacceptable.
The evidential problem is very real, but it is not a satisfactory
answer simply to apply a blindfold to the evidence. To refuse
to consider it has the same practical effect as assuming the evidence
to be untrue, which cannot be assumed." He therefore concluded
that an exception to the principle of open justice ought to be
made where not ordering a closed material hearing or not prohibiting
disclosure to the Issuing State would facilitate a foreseeable
and potentially serious breach of human rights.
Andrew Symeou v Public Prosecutor's Office at
the Court of Appeals, Patras, Greece
(2009) EWHC 897 (Admin)
Andrew Symeou was extradited to Greece on an EAW
to stand trial for manslaughter following an alleged altercation
in a night club on the Greek island, Zakynthos. It was alleged
that on 20 July 2007 he had punched another British man who had
remonstrated with Mr Symeou for urinating on the floor of
the club. The man fell to the ground, hitting his head. He suffered
brain injuries from which he died two days later. Mr Symeou
left Greece at the end of his holiday. In June 2008 an EAW issued
by the Greek authorities was certified and, on 26 June 2008, Mr Symeou
was arrested at his home.
Following a hearing at Westminster Magistrates' Court
on 30 October 2008, Mr Symeou's extradition was ordered.
Mr Symeou appealed the decision. His appeal was heard at
the High Court on 12 March 2009. Mr Symeou's appeal was dismissed
and he was subsequently extradited to Greece. He was held in pre-trial
detention until, on 17 June 2011, the Greek courts acquitted him
of the charges and he returned to the UK.
The two main arguments put forward during Mr Smyeou's
appeal were concerned with abuse of process. As noted in paragraph 19,
although abuse of process is not a statutory bar to extradition
included in the 2003 Act, it is settled case law that such a bar
can be applied. Mr Symeou argued abuse of process on two
grounds: that the case against him was based on false testimony
and witness statements obtained by intimidation and that domestic
Greek criminal procedures had not been followed meaning that the
EAW was invalid.
Part of the Greek case against Mr Symeou relied
on witness statement from two of his friends on holiday with him
testifying that he had punched the victim. However, it was alleged
that the Greek police had written their statements and that they
had been coerced into signing them. There were also discrepancies
in statements from other witnesses and inconsistencies between
evidence presented to the Greek police and evidence heard during
the coroner's inquiry in the UK.
Neither the District Court nor the High Court ruled
conclusively whether, in their view, there had been coercion of
witnesses and manufacturing of evidence by the Greek police. In
his ruling, Mr Justice Ouseley clarified that such a determination
was beyond the scope of abuse of process which "concerns
abuse of the extradition process by the prosecuting authorities
[it] does not extend to considering misconduct or bad faith
by the police".
Such matters were for the courts in the Issuing State to consider
and "decide whether evidence was improperly obtained".
Mr Justice Ouseley added:
"The same process would be applied in reverse
were the English authorities to seek the extradition of a Greek
citizen who contended that the English police had obtained evidence
by violence or manipulation. It would be for the English and not
the Greek Courts to resolve the issues."
Regarding the argument that Greek criminal justice
procedures had not been followed in relation to the issuing of
the EAW, Mr Justice Ouseley noted that there was contradictory
evidence on the matter from Greek legal experts but, again, it
would be for the Greek court to address the issue. He accepted
the possibility that a failure to follow domestic criminal procedures
could in some cases constitute an abuse of process on the prosecutor's
behalf but the facts of Mr Syemou's case "could not
show an absence of the assumed good faith, such as an attempt
to pervert the system to obtain an extradition which could not
otherwise have been maintained, or to obtain the return of the
Appellant for some collateral purpose."
Christopher Tappin v The Government of the United
States of America (2012)
EWHC 22 (Admin)
In 2007, the US charged Christopher Tappin and others
with the commission of three offences:
(1) conspiracy to export batteries;
(2) attempting to export, and aiding and abetting
the attempted export of, the batteries; and
(3) conspiring to conduct illegal financial transactions
in transferring funds to pay for the batteries.
In 2010, the US submitted an extradition request
to the UK for his surrender to stand trial.
The facts alleged were that Mr Tappin and another
UK citizen operated an export business in Cyprus, and that they
conspired with Mr Gibson, a US citizen, to export and sell
material requiring a licence.
MGE was a shell company established by the US Department
of Homeland Security, Immigration and Customs Enforcement, and
staffed with its employees. MGE monitored and investigated suspicious
activities of companies or individuals seeking to circumvent prohibitions
on exporting technology requiring a licence.
It was alleged that, in 2005, a potential buyer of
licensable technology contacted MGE asking to buy licensable technology
(surveillance equipment) and avoiding licence controls. The buyer
said Mr Gibson would be in contact. When Mr Gibson contacted
MGE he confirmed his intention to avoid licence requirements,
in particular he asked about Hawk missile batteries.
In 2006, Mr Gibson met an MGE agent in New York
to see the technology and Hawk batteries before purchase and shipping.
Mr Gibson said Mr Tappin would arrange collection of
the materials. Mr Gibson was arrested (unbeknown to Mr Tappin)
and agreed to share emails between them with the authorities.
Their emails detailed the negotiations for the purchase of Hawk
Missile batteries and other licensable technology, and the problems
of ordering the batteries in the US. Mr Gibson was to purchase
the batteries, whilst Mr Tappin was to arrange shipping in
exchange for 50% of the profits from the sale of batteries.
Mr Gibson explained to MGE that the batteries
were to be shipped from the US to The Netherlands and then on
to Iran; they had used that route for prior illegal exports of
US technology to Iran. The route via The Netherlands avoided the
UK prohibition on exporting military components to Iran. He confessed
he was buying the technology and Hawk batteries for a long-standing
Iranian customer in Teheran.
Mr Tappin told MGE he wanted to proceed with
the order and requested a quotation for the price of five batteries.
He gave a telephone contact number in the UK that matched that
which Mr Gibson had given for Mr Tappin. Mr Gibson
contacted the Iranian customer at the request of MGE, who said
that in Gibson's absence he was dealing directly with Mr Tappin
for the purchase of both the licensable technology and the Hawk
In October 2006, Mr Tappin contacted MGE to
negotiate a purchase price. Mr Tappin devised the cover that
the batteries were for electroplating by a Dutch chemical company.
He gave MGE the shipping details, asking the batteries be addressed
to Senator International BV, Schipol Airport, The Netherlands
("Senator"), and that the licensable technology be sent
to him in the UK. Mr Tappin agreed to submit a purchase order
describing the batteries in a manner of his choosing reflected
in the invoice, but with a true invoice describing the batteries
correctly for the end user in Iran.
MGE's agents gave Mr Tappin an opportunity to
withdraw from the transaction on 19 October 2006, but he persisted
saying he would be placing more orders for this type of battery
once these were shipped.
On 26 October, Mr Tappin was told that a US
Customs and Borders Protection officer had detained the licensable
technology destined for the UK. Senator was also told the batteries
had been detained. One of MGE's agents told Mr Tappin not
to worry and that if Customs contacted him he should say he ordered
what was indicated on the shippers' export declaration.
In a conversation with US customs officer on the
1 November, Mr Tappin said the licensable technology was
destined for an oil company in Norway. He said he did not know
whether it was licensable or not, that being a decision for the
exporter. The following day, Mr Tappin emailed customs officers
to say the Norwegian company was called Kvaerner, a name which
in fact appeared in emails and facsimiles between Mr Gibson
and Mr Tappin as a cover for Iranian exports.
On the 7 November, Mr Tappin contacted MGE to
ask what explanation he could give US customs' officers about
the batteries' use. He was told by MGE their only use was for
the Hawk Missile system. Mr Tappin suggested a possible automotive
use and asked MGE's agent about describing the batteries for use
in electroplating. He told the MGE agent that he wanted their
stories to match. It was that same day that Mr Tappin informed
Senator that the batteries were destined for a Dutch chemicals
company, that they were for electroplating, and that he did not
know of any licensing restrictions in Europe which applied to
Mr Tappin then told MGE they would be contacted
by a Mr Caldwell. When Mr Caldwell contacted MGE he
described himself as Mr Tappin's agent, and agreed to buy
batteries from MGE in a domestic US sale so that he and Mr Tappin
could export them by January 2007. Shortly thereafter, Mr Tappin
contacted MGE to ask whether the difficulties with US customs
had been overcome, and discussed future orders.
Mr Tappin and the others were charged with criminal
offences in the US. Following his guilty plea, Mr Gibson
was sentenced to two years' imprisonment in February 2007. A jury
convicted Mr Caldwell of aiding and abetting the illegal
export of Hawk missile batteries in June 2007 and, later that
year, he was sentenced to 20 months' imprisonment. Nothing happened
in relation to Mr Tappin until December 2009. Throughout
the process he denied the allegations. He contended that he was
the victim of the unlawful conduct of US agents working for MGE
who, he asserts, acted deceitfully in order to ensnare and entrap
The arguments raised on appeal were:
that extradition should be barred by virtue of the passage of
time since the offence;
8: that there was an "exceptionally compelling" feature
about the effect of extradition on the family unit that made it
the offence constituted an extradition offence and lack of dual
of process: that the US prosecutors had abused their power by
bringing a prosecution based on entrapment and that it was an
abuse of the process of the UK extradition court to maintain the
The appeal was dismissed on every ground.
Mr Tappin was extradited to the US on 24 February
2012. He was held in pre-trial detention in Otero County jail
in New Mexico until he was granted bail on 25 April 2012. On 1
November 2012, Mr Tappin pleaded guilty as part of a plea
bargain. The original charges against him could have resulted
in up to 35 years in prison. Under the terms of the plea bargain
he pleaded guilty to one indictment and was sentenced to 33 months
in prison and was fined $11,357. On 28 September 2013, he was
returned to the UK to serve the remaining 14 months of his sentence
at HM Prison Wandsworth.
Polish Judicial Authority v Mariusz Wolkowicz
(alias Del Ponti) (2013)
EWHC 102 (Admin)
On 26 May 2011, the Polish authorities issued a conviction
EAW against Mr Wolkowicz. The EAW related to 24 different
offences including burglary, forgery, theft, assault, robbery
and several offences of escaping from custody and failing to surrender.
He had been sentenced to a total of 14 years imprisonment and
had at least nine years left to serve. Towards the end of the
proceedings in relation to the initial EAW, the Polish authorities
also issued an accusation EAW in relation to obtaining a pecuniary
advantage by deception by selling fake gold rings.
Mr Wolkowicz was arrested in the UK on unrelated
matters under the alias Del Ponti. According to Mr Wolkowicz
he had moved to the UK to join family members as he was disabled
and hoped to receive better medical treatment in the UK.
In both Westminster Magistrates' Court and the High
Court, it was argued that Mr Wolkowicz's extradition would
be disproportionate due to his medical conditions. The courts
heard expert evidence from two urologists, a neurologist and a
psychiatrist. In addition, Mr Wolkowicz commenced judicial
review proceedings in relation to his detention on remand. These
proceedings included evidence from a second psychiatrist.
The High Court found that although Mr Wolkowicz's
physical and mental conditions were genuine (though there was
conflicting evidence about the severity of his psychiatric condition),
this did not amount to sufficient reason to prevent his extradition.
The Court noted that the District Judge had been "satisfied
with the observations of the Polish Judicial Authority that there
was no evidence that any penal institution had failed to provide
proper medical care for Wolkowicz",
including his mental health and the risk of suicide, his urological
condition and the fact that he was largely wheelchair bound. He
also noted that there was "no evidence at all to impugn the
ability of the Polish authorities"
to take suitable steps to mitigate the risk of Mr Wolkowicz
committing suicide. Extradition was therefore ordered.
Upon his return to Poland, Mr Wolkowicz alleges
that he was badly treated by the prison authorities. His transit
from the UK to Poland was not suitable to his condition. He was
moved several times from one prison to another. He was placed
in cells that were inappropriate for a wheelchair user. He received
inadequate medical care.
In view of their inability to ensure his proper treatment,
the Polish authorities decided to release Mr Wolkowicz as
further detention could pose a risk to his life or cause serious
damage to his health.
Mr Wolkowicz has since commenced proceedings
in the ECtHR against the Polish and UK authorities. Assurances
were given to the UK authorities that he would receive a suitable
standard of treatment in Poland, which he alleges were not honoured.
472 BH (AP) and another v The Lord Advocate
and another (2012) UKSC 24 at 1 Back
As per the forum bar in the Extradition Act 2003, section 19B(2)(a) Back
Paul Dunham, Sandra Dunham v Government of the United States
(2014) EWHC 334 (Admin) at 6 Back
Paul Dunham, Sandra Dunham v Government of the United States
(2014) EWHC 334 (Admin) at 35 Back
Paul Dunham, Sandra Dunham v Government of the United States
(2014) EWHC 334 (Admin) at 57-60 Back
Written evidence from Paul and Sandra Dunham (EXL0047) Back
Written evidence from Andrea Leadsom MP (EXL0085) Back
Norris v United States (2010) UKSC 9 at 56 Back
Norris v United States (2010) UKSC 9 at 65 Back
HH & Ors v Deputy Prosecutor of the Italian Republic, Genoa
& Ors (2012) UKSC 25
at 47 Back
McKinnon v Government of the United States of America and another
(2008) UKHL 59 at 9 Back
McKinnon v Government of the United States of America and another
(2008) UKHL 59 at 38 Back
Andrew Symeou v Public Prosecutor's Office at the Court of
Appeals, Patras, Greece (2009) EWHC 897 (Admin) at 33 and
Andrew Symeou v Public Prosecutor's Office at the Court of
Appeals, Patras, Greece (2009) EWHC 897 (Admin) at 35 Back
Andrew Symeou v Public Prosecutor's Office at the Court of
Appeals, Patras, Greece (2009) EWHC 897 (Admin) at 39 Back
Andrew Symeou v Public Prosecutor's Office at the Court of
Appeals, Patras, Greece (2009) EWHC 897 (Admin) at 54 Back
Polish Judicial Authority v Mariusz Wolkowicz (alias Del Ponti)
(2013) EWHC 102 (Admin) at 29 Back
Polish Judicial Authority v Mariusz Wolkowicz (alias Del Ponti)
(2013) EWHC 102 (Admin) at 39 Back