19. The delay in this case is almost 16 years. I accept that for 5 or 6 of those years the country was in the turmoil of civil war. Even making allowance for that period, there is a very considerable delay since the extradition offence is alleged to have been committed.
20. In considering whether it would now be unjust or oppressive to return the defendant, I have considered the principles laid out in the case of Kakis. In deciding whether it would now be unjust for the defendant to be returned, I have considered whether there would be serious impediments to a fair re-trial. I have in mind that the alleged offences were said to have occurred during a period of civil war in which inevitably evidence will be hard to find or reconstruct. Witnesses memories after such a lengthy period during which radical change took place have faded or be inaccurate. Inevitably, some witnesses may be unavailable or impossible to trace.
21. Mr Spanovic came to this country in 1998 and for the last 8 years has, with his family, made his home here. He fully co-operated with the Immigration Authorities of the Home Office. His appeal seeking asylum in this country was dismissed on the basis of factual inaccuracy. In October 2000, the defendant was granted Exceptional Leave to Enter the United Kingdom for a period of 4 years. In 2000 that was further extended by the grant of Indefinite Leave to Remain. Mr Spanovic had, therefore, a reasonable expectation that he could live freely in this country and, as far as I am aware, he had done so in employment, supporting his family and without committing offences.
22. From the evidence I have received from the Home Office, it is apparent that in 2000, with the full knowledge of the conviction in Croatia, the Immigration authorities in this country considered that returning the defendant to Croatia would infringe his Human Rights. No doubt that finding also reassured the defendant that he would not be returned to Croatia.
23. For these reasons I find that it would now be both unjust and oppressive to extradite the defendant to Croatia.'.
13. The appellant was therefore discharged pursuant to section 82 of the Act on the grounds that his extradition would be unjust or oppressive. The requesting state appealed to the Divisional Court against that finding.
The first appeal
14. In the course of his judgment, delivered on the 27th July 2007, (reported at [2007] EWCA 1770 (Admin)) Hughes LJ reviewed the authorities, to which we will later turn. His actual decision is to be found at paragraphs 14, 15 and 17:
'14. It does seem to me that the District Judge somewhat overstated the case in saying Mr Spanovic's whereabouts had been known to the Government of Coatia since May 1997. It is certainly true that in that month he was issued with a new passport, and shortly after with a driving licence. It is also plain that between May 1997 and leaving Croatia in November 1998 he has travelled several time across the border into Hungary, and perhaps Austria, as the stamps on the passport show, but was not arrested. I do not think that we can here resolve a difference of evidence between the parties as to the division of responsibility for the issue of this passport in 1997 as between the nascent Government of the newly self-declared Croatia on the one hand and the UN supervising administration UNTAES on the other. I doubt very much that it has to be resolved, though that must remain a matter to the District Judge. The evidence would appear to show, whoever strictly issued the passport and other documents that Mr Spanovic's identity, passport number and personal details were on or available to the database(s) of the Government from May 1997 onwards. That may have been in common with an enormous number of people issued with new identity documents as part of a mass process designed to restore identifies to those who on one side or the other, had lost official registration during the war. Whether that is so or not, he was not in fact picked up, though there must have been opportunities when he might have been, such as border crossings. Likewise, the evidence clearly did establish that in the period when he was in the UK from November 1998 onwards Mr Spanovic had some contact with the Croatian Embassy, to which he applied for passports for his children and which he visited on a number of occasions. It was also shown that whilst in the UK he has also had some contact with branches of the Croatian Government in connection with matters such as a land registration, probate, and travel documents for a daughter who had remained in Croatia. It seems not to be in serious dispute that on these occasions he dealt in his true name and provided his settled English address. None of that generates a request for arrest and none was made until 2006 when it seems there was a request by Croatia to Intepol to locate him.
15. All of that, however, falls some way short of showing that those in Croatia who were charged with following up the conviction and attempting to execute the warrant knew where he was before 2006. There is so far as I can see no basis for saying that they did. If the assertion made by Mr Spanovic be true, that someone else was arrested in 1998, having been mistaken for him, (which is something of which the present Government says it has no knowledge either way) then that also would tend to suggest that his whereabouts were not accurately known, at any rate at that time, to those looking for him. At all events, all that this evidence can justify, at best, is the proposition that the relevant Croatian officials or prosecutors could have found him if they had tried harder. Mr Stewart put it in this way, that if sufficiently determined the officer(s) of the Government would have found him….
