Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE BLAIR
Between:
MARIAN BENDIK
Appellant
v
JUDICIAL AUTHORITY OF SLOVAKIA
Respondent
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Miss Chloe Gardner (Instructed By Sumal Creasey Solicitors, Leicester) Appeared On Behalf Of The Appellant
Mr Rob Harland (Instructed By The Crown Prosecution Service) Appeared On Behalf Of - - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
LORD JUSTICE PITCHFORD: This is an appeal from the order of District Judge Riddle of 10th March 2010, that the appellant, Marian Bendik, should be extradited to Slovakia to face charges arising from an incident of violence which took place on 29th July 1998.
Mr Bendik was born on 1st August 1970 and is a Slovakian national of the Roma community. He is married with five children of whom three were born while in the United Kingdom. Mr Bendik and his family arrived in the United Kingdom in 1998 and, in circumstances which I shall describe in a moment, in 2007 were granted the right to remain indefinitely. The current European arrest warrant was issued by the Slovakian Judicial Authority on or about 21st November 2005. A Part 1 certificate was issued pursuant to section 2(7) of the Extradition Act 2003 dated 6th October 2009. Mr Bendik was arrested in Folkestone on 13th November 2009 under the European arrest warrant, as he was told, for the offences of assault and breach of the peace.
A number of issues are raised in writing in this appeal, as indeed they were before the District Judge. Not all of them, as I shall explain, have merit. The first is whether the District Judge was entitled to proceed in the absence of service of the arrest warrant on the appellant required by section 4(2) of the Act. It is contended on Mr Bendik's behalf that he did not receive a fair hearing of the issue. No submissions were addressed to us as to the effect of the alleged failure to serve the warrant but, in any event, the matter had been considered at the initial hearing by a different judge following Mr Bendik's arrest. District Judge Riddle dealt with this issue in his judgment as follows:
"I asked Miss Gardner if she was pursuing this point, as it had already been decided (as it always is) at the first hearing. She said she had raised the point since her first involvement in the case. She repeats it in her written argument. As she has not expressly abandoned it I must deal with it.
Firstly, it is clear from the court file that the defendant was represented at the first hearing and had a solicitor. The court was expressly told that the warrant had been served on him at the police station. No point was taken. I have no doubt that the matter was decided then by the deputy chief magistrate. In any event PC Lee Calver in his statement signed and dated 13 November 2009 says that after arresting Mr Bendik on the European arrest warrant for the offences of assault and breach of the peace he served a copy of the warrant issued in Slovak 'but due to his demeanour I retained it on my person ... He was conveyed to Folkestone Police Station custody suite. On arrival Mr Bendik was given the warrant again, which he retained.' This statement was before the court at the initial hearing. There can be absolutely no reason for the officer to deliberately lie about it. The defendant was expressly arrested on this warrant. He correctly refers to the warrant as being for offences of assault and breach of the peace. Had there been an oversight it could have been corrected before he made his statement, and it is unlikely that anything would have turned on it. Moreover, during his evidence Mr Bendik is particularly unreliable in relation to documents. He claimed not to have seen his own exhibit MB2 until these proceedings began. He claimed not to have read or understood his own exhibit MB3. On this evidence I have no doubt whatsoever that he was served with the warrant as described by the officer."
In these circumstances I do not see how it can be argued that the District Judge went wrong in fact or in law. He considered the issue on its merits and rejected it on what are compelling grounds. Secondly, the appellant relied on issues raised under section 11(1)(b) and section 13(b) of the 2003 Act under which the judge must decide whether the person's extradition to a Category 1 territory is barred because "if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race." I should add, in summary and in parenthesis, that the stated reason for Mr Bendik's family's arrival in the United Kingdom in 1998 was alleged persecution on the grounds of his race.
In connection with section 13 Miss Gardner expanded in her written argument. However, in oral submissions she recognized and conceded quite properly that the District Judge had indeed paid appropriate regard to the country information with which he was provided. Secondly, she acknowledged that Slovakia was a signatory to the European Convention on Human Rights and had incorporated the provisions of article 6 into its domestic law. Accordingly, there was and is an article 6 fairness guarantee. Therefore, as a discrete ground section 13 was not pursued. With the assistance of an opinion from a Slovakian lawyer, Mr. Roman Jarik, Miss Gardner pursued on the appellant's behalf her third ground. The prosecution was time barred under the Slovakian Criminal Code, it was asserted. If that was indubitably so, then it is contended that the extradition request would be an abuse of the court's process. The argument is to the following effect. At the time that the crime was allegedly committed the limitation period for the commencement of proceedings was five years. That period had long expired. Since 1st January 2006 the limitation period has been 10 years. That period did not expire. If the five year period applies to Mr. Bendik without more, then the proceedings are time barred. As a matter of fact the Judicial Authority has indicated in an e-mail dated 18th February 2010 that it does not believe that Mr. Bendik knew of the proceedings before he left Slovakia.
There are uncertainties attending this limitation issue. The principle is whether the statute of limitations causes time to run whilst Mr Bendik was out of the jurisdiction.
In a further e-mail of 10th June 2010 the Judicial Authority in Bratislava asserts that under paragraph 67(2)(b) of the 1961 Criminal Code, also referred to by Mr Jurik in his letter, time continues to run only after the accused returns to the jurisdiction. However, the 2005 Criminal Code, while extending the limitation period to 10 years, also amended the law relating to residents abroad. Time will under the amendment continue to run unless the accused left the jurisdiction for the purpose of evading the prosecution. In general an accused is entitled to take the benefit of any amendment to the Code but this will be a matter for consideration by the District Court of Presov. The issue would be whether the accused is entitled to take the benefit of the favourable amendment without also accepting the corresponding limitation period under the amendment of 10 years. If he is not, then the prosecution is not time barred. If he is it will be.
It is my view that the evidence fails to demonstrate an arguable case of bad faith on the part of the Judicial Authority in Slovakia. As Maurice Kay LJ observed in Battistini v Court of Naples Italy [2009] EWHC 3536 (Admin) at paragraphs 14 to 16, these are matters for the requesting court, not for this court.
There is a further argument upon abuse of process which Miss Gardner advances. Relying upon the District Court of Ostroleka v Dytlow [2009] EWHC 1009 (Admin), she submits that the appellant is in the position of a refugee in respect of whom it would be unconscionable to direct extradition to the very country in which he was persecuted. In his witness statement of 2nd January 2010, adopted in his evidence before the District Judge, Mr Bendik said about the reasons for seeking asylum in the United Kingdom:
"During my childhood I was not able to have a proper education mainly due to the fact that we were treated not as second class but third class citizens. My family and I were harassed repeatedly. For example:
we could not travel freely without being insulted and verbally, and sometimes physically, abused.
we were rarely permitted to worship at churches and on the few occasions when we were allowed access, my family and I had to sit separately to the rest of the congregation. Sometimes the skinheads prevented us from entering the church altogether.
On the occasions that we were able to settle in a house or an apartment, the skinheads would continuously make trouble for us until we left.
It was unsafe for me to travel to school as a child without being accompanied and even after Vilma and I had our own children the situation continued to be the same. Our safety was always at risk because of the community we came from.
As a child it was not safe for me to play in parks or playgrounds and even later in life the situation remained dangerous for my children.
At the time and prior to my departure in 1998 there was an increase in racist behaviour towards people from my community, for example it was common to see insulting graffiti and slogans such as 'Roma people should be sent to gas chambers'".
As I have said, Mr Bendik arrived in the United Kingdom in 1998 when he was aged 28. His asylum application was never resolved on its merits. On 13th September 2007 the United Kingdom Border Agency wrote to him informing him that he had been granted indefinite leave to remain. The outstanding asylum claim was assumed to have been withdrawn unless he made further contact with the Agency within 14 days. Mr Bendik did not make further contact and his asylum application thereafter lapsed.
Miss Gardner relies upon the conclusion expressed by Keene LJ at paragraphs 29 and 31 of Dytlow:
It is agreed ... that the 2003 Act makes no express provision for the discharge of a defendant who enjoys the status of a refugee, and that, on the face of it, the Act provides a detailed statutory code setting out the various bases upon which discharge can be ordered by the judge. Sections 10-21 and section 25 make such provision, and in reality section 21, which deals with the compatibility of extradition with rights under the ECHR, will often operate in a refugee case because of Articles 2 and 3 of that Convention. But it remains true that there is no express provision dealing with the discharge of a defendant because that defendant enjoys refugee status.
To order the extradition of a person or persons enjoying the status of refugees in this country would, for the reasons I have set out earlier, amount to an abuse of process. It follows that the District Judge in the present case was right to order the discharge of the respondents, albeit that he arrived at that conclusion for somewhat different reasons."
The course of the proceedings in the case of Dytlow was unusual. The District Judge was aware of the respondent's refugee status as Romas granted on 16th November 2002. The requesting authority adduced no evidence at the extradition hearing in July 2008 as to whether there had been any change of conditions in Poland. Nevertheless, the District Judge rejected an abuse argument on the basis that the finding of refugee status was years out of date. Nevertheless he ordered the discharge of the respondent on article 8 grounds. On the appeal by the requesting authority the respondent again raised the question of abuse of process. While this court found the article 8 conclusion "surprising", it also considered that it would be an abuse of process for the court to extradite the respondent to the country in respect of which he had been granted refugee status. That would, the court found, be contrary to article 33 of the Refugee Convention. No attempt had been made in the meantime to remove the respondent's status in accordance with EU Council Directive 2004/83/EC article 11 and Directive 2005/85/EC, viewed together with the UNHCR Handbook on the Refugee Convention at paragraph 135 of the 1992 Edition. The advice at paragraph 135 was later endorsed by Lord Browne at paragraph 65 of R (Hoxha) v Special Adjudicator [2005] UKHL 19 and [2005] 1 WLR 1063. The Divisional Court noted that paragraph 339A of the Immigration Rules empowered the Secretary of State to withdraw refugee status but…
"…shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee's fear of persecution can no longer be regarded as well founded."
Since it was not being contended that the Secretary of State had even considered withdrawing refugee status, the United Kingdom's support of the Judicial Authority's request constituted an abuse of the process and the District Judge should have discharged the respondent.
Mr Harland on behalf of the requesting authority has drawn our attention, as he did the attention of the District Judge, to the decision of this court in Croatia V Spanovic [2007] EWHC 1770. At paragraph 21 Hughes LJ said this:
"An indication to the respondent given by the UK government, at a time when there was no extradition request, that he could expect to remain, would not have the same force as some indication by the Croatian government that he would not be brought back. The possible relevance of the UK immigration history, aside from any light it may shed on the facts asserted by the respondent, is as it seems to me limited to the effects upon him of the passage of time. In that, in the manner explained by Lord Diplock in Kakis, it seems to me that it may be relevant (but not determinative) if, owing to the passage of time, the respondent has acquired the belief that he is secure."
Miss Gardner argues that the District Judge heard evidence in the present case that the appellant did regard himself as secure for life and had an asylum claim outstanding when ILR was granted. The appellant was asked in evidence about his response to the letter of 13th September 2007. In his judgment the District Judge said this:
"He agreed about his wife and children receiving indefinite leave before him. Their right to remain in this country does not depend on his status. Exhibit MB3 was put to him. This is a letter dated 13 September 2008 from the Border and Immigration Agency. It granted Mr Bendik indefinite leave to remain in the UK and says 'you are free to remain in this country permanently.' It says the outstanding asylum claim will be assumed to be withdrawn 'unless you contact us within ... 14 days.' He said he didn't remember reading that. He was not aware that he had 14 days to confirm that he wanted to continue with the asylum application."
A short time later the District Judge continued:
"In re-examination he was asked again about MB3. He thought the letter said he could stay for ever. He was not worried about an asylum claim because he had status. ... During his evidence the defendant was stressed and emotional. He regularly deviated from the questions asked and was difficult to understand. He was vague and unconvincing."
I add that, on the other hand, the District Judge found Mr Bendik's wife, Vilma, to have been much more direct in her evidence, and when shown documents while giving evidence was clearly able to read them. At page 5 of his judgment the District Judge recognized that the appellant had ILR but concluded that:
"Even on the facts argued by the defence in this case, it does not amount to an abuse of the process of the court."
In my view the District Judge was undoubtedly right. There was no evidence of a finding made by the Secretary of State which it would be an abuse to contradict by an extradition order, which was the basis of the decision in Dytlow. That is not to say, however, that the immigration history was not relevant, as Hughes LJ pointed out in Spanovic.
This brings me to the first ground of appeal which in my judgment has some merit, namely the District Judge's consideration of the passage of time under section 14 of the 2003 Act. In this context the appellant's immigration history is also relevant. Section 14 provides in its relevant parts that:
"A person's extradition to a category 1 territory is barred ... if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time."
In deciding this question section 27(2) requires the court only to allow the appeal if the District Judge ought to have decided a question before him differently and that that difference would have required the appellant to be discharged. It is conceded by the Judicial Authority that the delay in issuing the arrest warrant until 2005 was the result of administrative mistakes, as was the failure to execute it. That much has been explicitly admitted by the Presov District Court in an e-mail of 18th February 2010. The District Judge properly directed himself as to the relevant considerations recently examined by the House of Lords in Gomes and Goodyear v Government of Trinidad and Tobago [2009] UKHL 21, and later by this court in Lynch v Ireland [2010] EWHC 109 (Admin).
Mr Harland has extracted the principles at paragraph 11 of his skeleton argument which, since they are accepted on behalf of the appellant, I can do no better than to repeat:
The issue is whether or not it would be unjust or oppressive to extradite the accused, not whether it would be unjust or oppressive to try him (para 32, Gomes and Goodyear).
The test of oppression will not easily be satisfied; hardship, a comparatively commonplace consequence of an order for extraditing is not enough (para 31, Gomes and Goodyear).
The test in relation to injustice is 'whether a fair trial is impossible' (para 33, Gomes and Goodyear).
When considering both injustice and oppression, the court must have regard to the procedural safeguards that will be in place under the domestic law of the requesting state to protect a defendant against a trial that might otherwise be rendered unjust or oppressive by the passage of time (para 32, Gomes and Goodyear).
In relation to delay, the focus is not so much upon the culpability of the requesting state in delaying, although that is a factor in deciding whether it would be unjust or oppressive to extradite the defendant/appellant. The key question is the effect that the passage of time has had on the defendant/appellant and the ability to have a fair trial (para 23, Lynch).
There can be no rule of thumb on when the passage of time has rendered a fair trial impossible; it depends upon the facts. Therefore, it follows that mere delay is unlikely, in the vast majority of cases, to justify a finding of oppression or injustice; something more has to be shown by the defendant (para 21, Lynch).
A large number of criticisms are made of the District Judge's findings. In essence, they are that he was wrong to find that "to some extent" the requesting authority had been responsible for the delay, that the appellant had been wilfully ignoring the obvious possibility that proceedings would be or were taking place, that the appellant had a genuine belief that the payment of money to the complainants somehow bought off the risk of prosecution and that the period of time since these events took place had given the appellant no security.
I agree that there is no escape from a finding that the Judicial Authority was responsible for the delay in progressing the issue and service of the arrest warrant. The appellant was not in any way materially responsible. That however is not, as I have observed, the principal issue which is whether, by reason of the delay, the appellant has been misled into a false feeling of security that he would never be called upon to account.
First, it does not seem to me, any more than it did to the District Judge, that Mr. Bendik could reasonably have thought that because he had ILR he would under no circumstances be called upon to answer a warrant in respect of an alleged crime in Slovakia. Second, he had every reason to believe that he was at risk. Among the documents produced in evidence by the appellant himself was an agreement, which, in the Slovakian version of which the agreement was signed by the complainant. It is in the following terms:
"There is a criminal proceeding conducted against Tibor Duda at the District Investigation Authorities of the Presov Police Force, File No: CVS:OUV-550/01-PO-98 on the grounds of the resolution to commence the prosecution issued on 16th October 1998. The accused Tibor Duda is prosecuted for a criminal offence under Art.9/2 referring to Art.221 Sect 1,3 and Art.202 Sect 1 of the Criminal Code. On 29th July 1998 at 1.30pm at the corner of T.Sevcenka and Stefianikova streets Tibor Duda along with Marian Bendik, DOB 1st August 1970, and Vladimir Bendik, DOB 12th August 1974, assaulted Rudolf Balog and his wife Monika from Presov. The accusers were beating the victims with wooden sticks, hitting their arms and heads, thereby causing Rudolf Balog a lacerated wound 8 cm on his head, a compound fracture of the antebrachium of his right arm resulting in his incapacity for work from 29th July 1998. Monika Balogova sustained a fracture of the fifth finger of her left hand resulting in her incapacity for work from 29th July 1998 to 17th August 1998. Rudolf Balog, the injured, declares the period of his incapacity for work lasted for 12 weeks. The length of Monika Balogova's period of incapacity for work was given by the resolution of the investigator. The accused Tibor Duda paid the victims the damages for a bodily harm caused to them by the fact described in the resolution to prosecute, namely the exemplary damages, the damage to a thing, the reimbursement of the loss of earnings and the compensation for diminished social function, and that is both on behalf of himself and on behalf of the other accused, i.e. Marian Bendik and Vladimir Bendi. The injured declared they have no other claims against Tibor Duda, Marian Bendik and Vladimir Bendik in terms of the case of the bodily harm in question since they have been all settled in their full extent."
The document concludes "at Presov 4th August 2004".
The appellant was asked about this document in evidence. In his judgment the District Judge recorded that evidence as follows:
"He was then asked about his account that he did not know of the proceedings against him until 2008/09. He said he didn't see the document produced in evidence (MB2) in 2004. He has never read it. He was shown it again and said he doesn't know what it is. He was reminded that in his proof of evidence he said he was told in 2004 that a claim had been made against him, his brother, and another man for assault. The document (MB2) was produced by the defendant as an exhibit attached to his proof. It is a statement dated 4th August 2004 ... It refers to criminal proceedings for the incident the subject of this warrant. It refers to exemplary damages and confirms the injured parties have no other claims against Duda, Bendik and Bendik. The document was put to him and he said he did not remember when he read it. He agreed that he had been told the three men were co-accused. He paid the money, the equivalent of 1000. However he only found out about the criminal proceedings when the warrant was issued 'just now'. He says that in 2004 his co-defendant Tibor Duda was in Slovakia but is now in England. He comes and goes."
The judge did not believe that Mr Bendik was unaware of this document. He is in a curious position to this extent. He certainly knew, on the District Judge's findings that a criminal prosecution had been mounted against his co-accused, Tibor Duda. It is in my judgment inescapable that he must therefore have known of the risk that a criminal prosecution would be pursued against himself. On the other hand, it was asserted on his behalf, despite his denial of the contents of the document, that it amounted to a settlement of all proceedings in which the complainant was involved. Accordingly, it was submitted on Mr Bendik's behalf that there was no basis upon which he should now be prosecuted. The judge found that the appellant did not in consequence of this agreement receive any comfort or security because he was aware of the risk of prosecution. Those conclusions were in my view properly justified on the evidence which the District Judge heard and noted. If any technical issue arises whether this agreement amounts to or should produce a stay upon criminal proceedings in Slovakia against the appellant it is an issue to be resolved by the Slovakian courts and not by this court.
As to the question of a fair trial, the following factors seem to be material. There was undoubtedly an investigation at the time, although the parties are not agreed as to exactly what the extent of that investigation was. Mr Harland has a note of the evidence given by Mr Bendik before the District Judge, that Mr Bendik gave a statement to the police three days after the first of the two incidents which he said took place between himself and the complainant. Secondly, the appellant knew by August 2004 or shortly afterwards that there was indeed a criminal prosecution against a co-accused. This is not a case in which it could be said that the matter had remained buried in the appellant's sub-consciousness. Thirdly, the appellant, as a matter of fact, deliberately took no steps on the evidence of his wife to ascertain the state of any proceedings in Slovakia. Fourthly, he knew all about the incident in respect of which he was charged. Contrary to his assertion, he knows at least where one of his witnesses lives. The District Judge concluded that he had no reason to believe that the proceedings would be other than fair. Assurances to that effect had been received. Slovakia has adopted the European Convention on Human Rights. Since article 6 applies, any unfairness to the appellant found at trial to arise from the effect of the passage of time on the evidence will be the subject of appropriate measures. This was a fairly straightforward incident, as the District Judge found. The appellant admitted in evidence that he had used some violence. The question for the court will be whether he had a lawful justification for doing so. Given the appellant's family circumstances, extradition would undoubtedly create hardship, as it would have done virtually throughout the appellant's residence in the United Kingdom, but the judge found that it could not in his circumstances be found "to be oppressive".
It is of course the case that any person called upon many years later to answer to conduct may well be subjected to hardship, as will his family. But in my judgment the District Judge was entitled to reach the conclusion which he did.
Finally, I come to the application of articles 3 and 8. The claim to be at risk of article 3 ill-treatment in Slovakia is made on similar grounds to those which supported the section 13 argument subsequently abandoned. The short answer is that the requesting court acknowledges the responsibility of the law enforcement and judicial authorities "to prevent Bendik from persecution which could threaten him because of his Roma origin". There is in my view no evidence that this is an undertaking made without teeth or effect.
As to article 8 Miss Gardner suggests that the District Judge did not examine the interests of the whole family and failed to weigh properly in the balance the serious effect upon the appellant's private and family life, together with what she submits is the comparatively low scale of gravity of the alleged offences. As the District Judge noted, Mr. Bendik adopted his witness statement. There was no challenge to his evidence of the family circumstances, as I understand it. He described them as follows:
"My eldest son is 18 years old and has completed his education and is presently looking for employment. My 17 year old son is doing a course in painting and decorating at college. The next two children are at school and my youngest son has only just turned 5 years of age and will be going to school shortly. My children are well settled here and I am determined to ensure they have the best education, which I never had.
Most of the members of my family are now in the UK and I have strong family ties here. If I am extradited my wife and children will be devastated. When I came here with my family we began a new life and we are settled here. I am the head of the family. We do not have any problems from other people here and are able to lead a normal family life. We can freely go to church here without discrimination.
Since receiving notification of these proceedings my entire family has become distressed. My wife and I were shocked when the police in the UK arrested me. My family are very worried as to what will happen next. My children are frequently tearful and life has become extremely stressful for them as well as for my wife and myself. My daughter who is the second youngest child is not eating properly and this has only started recently. She cries often and says she does not want me to leave.
My wife and I have to share the responsibility for our 5 children, in terms of getting the youngest children dressed in the mornings, accompanying the ones who go to school, making food and feeding them, earning money were we can in order to pay for food and clothing. I take the children to the park or to visit friends and when any of them are ill I take them to the doctor.
If I am not allowed to stay in England my family will suffer financially as I am able to work here and provide money to them. Also when I am at home my wife is able to work instead. They could not return with me to Slovakia, we have no home, we do not have any relatives to turn to there. The youngest children have never even been to Slovakia and I do not want them to go through what we experienced there."
Mr Bendik in evidence confirmed that his youngest child had commenced school two days before the hearing before the District Judge. Miss Gardner has cited to us in writing the relevant passages from Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, Norris v Government of United States of America [2010] UKSC 9, and Balog v Judicial Authority [2009] EWHC 2567 (Admin). The implication is that the District Judge was unaware of or failed to apply the relevant principles. In my view this is not demonstrated. The judge first observed the effect on the family as a whole when dealing with the issue of oppression. He said this:
"Undoubtedly extradition would cause hardship both to the defendant and to his family. There is often hardship to a family when the father is abroad or when the father is in prison. However there is nothing about this case that could justify calling the hardship 'oppression'. There is a significant public interest in cases of violence being brought to justice - whether that is conviction or acquittal. There is also of course public interest in honouring international obligations. Here, had the defendant been extradited to Slovakia closer to the time, there would still have been a significant effect on his family. He was married then and had small children then. Indeed in the early days his family, as strangers in this country, may have found it even more difficult to be separated from him. Although delay may in itself be so protracted that it is oppressive to return the defendant, I am satisfied that this is not the case here. Nor is this a marginal case. It involves significant violence and significant injuries allegedly perpetrated by three men on one man and one woman."
The District Judge turned to the human rights issue at page 10 and cited the case of Norris. He referred to paragraph 91 in the judgment of Lord Hope. Having confirmed his agreement that exceptionality did not amount to a legal test and that a factual analysis of the personal circumstances remained paramount, Lord Hope continued:
"The reality is that it is only if some exceptionally compelling feature, or combination of features, is present that the interference with the article 8 right that results from extradition will fail to meet the test of proportionality...."
The citation continued in the judgment but that to which I have referred is sufficient for present purposes. The District Judge continued:
"I must of course consider whether there are any relevant features that are unusually or exceptionally compelling. If the nature or extent of the interference with article 8 right is exceptionally serious, careful consideration must be given to whether such interference is justified. The current case does not provide any relevant features that are unusually or exceptionally compelling. To a large extent the same facts apply as apply in the passage of time considerations above. Although article 8 rights are undoubtedly in play in this case, as in most extradition cases, nevertheless interference with that right is clearly justified."
In my judgment it is not reasonably arguable that the District Judge did not have in mind the right test. The real criticism in this case is that the District Judge fell on the wrong side of the balance when measuring the length of the delay, the nature of the charges and the effect upon the family. Having considered the evidence, as did the District Judge, I am unable to conclude within the meaning of section 27(2) that this was a decision to which the District Judge ought not to have come. Therefore, I do not find that the District Judge went wrong in his analysis of the appellant's case or that the evidence did not support the conclusions which he reached. For those reasons I dismiss the appeal.
MR. JUSTICE BLAIR: I agree.