Source: All England Reporter
Publisher Citation: [2006] All ER (D) 44 (Oct)
Court: Queen's Bench Division (Divisional Court)

Auld LJ and Wilkie J

Representation David Trovato (instructed by Garstangs) for the appellant.
  Laura Rosefield (instructed by the Crown Prosecution Service) for the respondent.
Judgment Dates: 4 October 2006


Extradition - European arrest warrant - Bars to extradition - Specialty - Appellant's extradition sought in order to serve increased sentence - Residence ban rendering appellant liable to imprisonment upon return to requesting state - Whether extradition ought to be ordered - , ss 17(2), 20(1).

The Case

Where the appellant had been convicted in his presence but his sentence had been increased following an appellate hearing at which he was not present, the latter hearing was, in all the circumstances, neither a 'conviction', nor a 'trial' within the meaning of s20(1) and s20(3) of the respectively. Accordingly, the appellant had been convicted in his presence within the meaning of s20(1) of the Act. Furthermore, it would be fanciful to suggest that the Austrian authorities would, in violation of the appellant's rights under art5 of the European Convention on Human Rights, seek to enforce a residence ban by which the appellant would be liable to imprisonment if he returned to Austria, if the appellant returned to serve the increased sentence. Finally, the specialty provisions in s17(2) of the 2003 Act could not apply to any violation of the residence ban since any such violation could, by definition, only occur after the appellant had been extradited.

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