||All England Reporter
|| All ER (D) 292 (Oct)
|| EWHC 2615 (Admin)
||Queen's Bench Division (Divisional Court)
Maurice Kay LJ and Bean J
||Hugo Keith (instructed by the Crown Prosecution Service) for the government of Romania.
||Jo Sidhu (instructed by Soods Goodmayes, Essex) for the respondent.
||25 October 2006
Extradition - Extradition hearing - Discharge of offender - District judge concluding extradition involving breach of right to liberty - Whether district judge applying correct provision of Convention - Whether district judge failing to apply correct test when assessing and characterising a breach of the Convention - , Sch 1, Pt 1, art 5(1)(a), (1)(c), 5(3) - , s 87.
The correct test in relation to whether extradition was barred under s87 of the by reason of incompatibility with Convention rights was not one of what was 'just and proportionate' or one based on a 'balancing of the issues' it was one of 'flagrant breach'. In the instant case, where the respondent had been convicted in Romania in his absence, the district judge, in considering his extradition, had applied the wrong test and had also applied art5(3) of the European Convention on Human Rights rather than art5(1)(a) which was the appropriate article in the circumstances. The fact that there was no possibility of the respondent being granted bail on his return was of no consequence since art5(1)(a) contained no right to apply for bail pending appeal, whether by way of a retrial or otherwise.
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