Balancing extradition duties

Roger Pearson looks at the difficulties in extradition cases involving signatiories of the European Covention of Human Rights

Warding off extradition proceedings is never an easy legal task. But when the request has come from a fellow European Convention of Human Rights signatory, added complications arise, particularly when the subject of the attempted extradition is accused of the biggest fraud their country has ever known.

But such problems are not insurmountable. The High Court success of Jeffrey Bayes, one of the most experienced UK solicitors in extradition matters, bears testimony to this.

Bayes, a partner at Burton Copeland, along with Clare Montgomery QC and Helen Malcolm as counsel, has won an extradition ruling which states that his client, businessman and accountant Dr Michael Cornelius, need not go back to Sweden.

Cornelius is wanted in connection with massive fraud charges, but the ruling was based on the fact that, in the eyes of judges here, he may not get a fair trial in Sweden.

Bayes says he views the outcome of this case as particularly satisfying on a personal front. "I have handled many extradition cases, but I don't think I have ever been more convinced of the innocence of the client than in this one," he says.

Extradition of Cornelius, who has a completely clean record, was sought in connection with charges involving conspiracy to use a forged US$50m standby letter of credit issued by a Swedish bank.

It has been alleged that he and a co-defendant attempted to negotiate sale of the letter to companies in the US and Canada in 1994. Extradition had been ordered by London's Bow Street magistrates.

But now Lord Justice Pill and Mr Justice Maurice Kay have ruled that his forced return to Sweden, where he would instantly be put in prison pending trial, could result in him not receiving a fair hearing.

The main witness Cornelius would have wanted to call in his defence, is missing. Lord Justice Pill said that the precise course of any trial in Sweden could not be predicted. But in allowing the appeal, he said there must be a danger that Cornelius would be unfairly prejudiced by the absence of the witness and by evidence the Swedish authorities intended to use against him, which had resulted from his co-operation with them in 1994 in connection with the matter.

The case spotlights the difficulties in warding off extradition moves when they come from countries that are now becoming signatories to the European Convention.

Bayes notes: "In applications from fellow convention countries there is no need, as with non-convention countries, for the requesting country to prove a prima facie case against the person they want extradited. They do not need to produce any sworn evidence, but merely a summary of the facts relied upon."

He adds that this puts the person whose extradition is sought "in a very difficult situation, particularly because one of the factors that courts will take into account is that the application has come from what, for want of a better term, is to be regarded as a "friendly nation'."

"However, I think that this case has illustrated better than most that even when the extradition request has come from such a country, and despite the lack of requirement for that country to prove a prima facie case, all is not lost.

Bayes says: "It has shown that our courts are ready to look at the facts and step in to prevent what they consider would be an injustice if the person sought was ordered back to be dealt with at the hands of the legal system of the country seeking extradition."

"The importance of the court's approach is significant because of the number of new countries becoming signatories to the European Convention and whose legal systems vary considerably from ours."