Practice and Procedure


PUBLISHED June 25, 2003

The claimant's return to the Federal Republic of Germany following a delay of nine years would, on the facts, be oppressive and unjust.Application for a writ of habeas corpus following the decision of the Secretary of State for the Home Department on 9 April 2003 to issue authority to proceed in respect of a request for the extradition of the claimant ('D') to the Federal Republic of Germany ('FRG'). D, an Irish national, had been arrested in Berlin on 18 February 1994 for an alleged aggravated attempted robbery. He was subsequently released from custody and on 11 August 1995 an order for the provisional discontinuance of proceedings was made. D was later arrested in connection with a minor offence but was released and his passport was returned to him. In 1995, D left Germany to work in Ireland and England. On 28 February 2003, D was arrested following the extradition request in connection with the 1994 allegation. On the present application, D argued that: (i) there had been a delay of nine years since the alleged offence; (ii) there had been no adequate explanation for that delay by FRG; (iii) FRG had not retained his passport following his arrest in connection with the minor offence in circumstances where it must have been aware that there was a possibility that he would leave the country to return to Ireland; (iv) the nine years that had elapsed since the 1994 allegation would have both dimmed the recollection of those witnesses that could be traced and make it difficult to trace other witnesses; and (v) in all those circumstances his return to Germany would be unfair and oppressive within the meaning in s.11(3)(b) Extradition Act 1989.HELD: (1) The delay had induced in D a feeling of security and his return in the face of that delay would be oppressive. (2) In addition, D could not now have a fair trial in Germany. (3) In those and all the factual circumstances, to return D to Germany would be manifestly unfair and oppressive.Application allowed.