On 14 September 2015, the High Court dismissed the two grounds of appeal against extradition of Brian Powney, from the United Kingdom to Slovenia. The Court found that the new bar to extradition under s. 12A Extradition Act 2003 (EA 2003) (no prosecution decision in requesting territory) had not been made out, and that the judge had not failed to adequately conduct the proportionality exercise under s. 21A EA 2003. The judgment is here.
It is alleged that between 10 July 2010 and 24 June 2011, Mr Powney engaged in fraudulent activity in relation to timeshare holidays, through a company with a registered office in Ljubljana, Slovenia. In essence, it is alleged that Mr Powney sold properties in Tenerife that either did not exist or were not available for use as a timeshare.
It is alleged that Mr Powney dishonestly obtained deposits from customers totalling €31,990. Mr Powney denies the allegations, maintaining that he had no knowledge of dishonest activity and that, as far as he was concerned, no customers were defrauded.
On 17 October 2014, a European Arrest Warrant (EAW) was issued for Mr Powney’s arrest, and he was arrested on the same day. On 11 May 2015, District Judge Coleman, sitting at Westminster Magistrates’ Court, ordered Mr Powney to be extradited to Slovenia to face a charge of fraud.
Mr Powney appealed on two grounds:
- Under s. 12A EA 2003, the investigation of the case was not complete and no decision had been made by the judicial authority whether or not to charge and try him. Further, there were no reasonable grounds for believing that the sole reason for this failure was due to his absence.
- Under s. 21 EA 2003, the judge had failed adequately or at all to conduct the proportionality exercise, including proper consideration of the question of less coercive measures.
On 14 September 2015, sitting at the High Court, Burnett LJ and Holroyde J held:
- Considering the preamble to the EAW in question, the terms were consistent with the fact that both decisions had been made, namely to charge and try Mr Powney. District Judge Coleman had gone further than was appropriate in interpreting the EAW as having meant that criminal proceedings had been commenced in Slovenia. However, this was not inconsistent with the fact that the relevant decisions had been made and, in any event, any error which District Judge Coleman may have made did not affect the overall decision to which he was entitled to come. Asztaslos and Kandola considered. Further information issued by the District Court of Ljubljana on 16 July 2015 provided clear support for the conclusion that the decision to charge and try Mr Powney had been made; albeit, his absence from Slovenia had presented an impediment to certain steps in court proceedings.
- The judge had been entitled to conclude that extradition would not be disproportionate under s. 21A EA 2003. District Judge Coleman had not given insufficient consideration to the issues in question. There was nothing before District Judge Coleman to suggest that it was not reasonable for him to assume that the requesting authority had considered alternative, less coercive measures. Miraszewski considered. Further information provided by the District Court of Ljubljana made it clear that it did not regard anything less than extradition to be appropriate, and Mr Powney had failed to identify a less coercive measure. There was no evidence that District Judge Coleman misapplied the relevant legal principles, or had made a finding which no reasonable judge could have made, or took into account an irrelevant fact, or reached an overall judgment which was perverse or irrational.