Extradition Act 1999 – eligibility for surrender – indecent assault – aged case – discretionary restriction on surrender

White v United Kingdom [2023] NZHC 2055 per Gordon J.

Based on a question of law, Steven White appealed a District Court decision that found him eligible for extradition to the UK in relation to seven historical indecent assault offences.

His extradition was sought under s 68 of the Extradition Act 1999.

The alleged offences are said to have occurred between 1 October 2002 and 31 March 2003. At the time, the complainant was a 15-year-old girl attending a school in the greater Manchester area. White was a 28-year-old teacher at the same school.

The allegations involved kissing and intimate touching. A complaint was made to the police 14 years after the alleged offence when the complainant became aware that White had settled into a new life and had family and children in New Zealand.

After she had started a job working in mental health intervention, the complainant realised she was still affected by what had happened.

White filed an affidavit in opposition to the extradition order. Under s 8 of the Act, the onus was on him to persuade the judge to exercise a discretionary restriction against extradition. White’s counsel accepted the threshold for establishing injustice or oppression under s 8 was high, and included:

• whether the judge could be satisfied the accusations made against the appellant were not made in good faith in the interests in justice; and
• if so, whether that factor, together with the passage of time between the alleged offences and the present and the circumstances of the case, meant it would be unjust or oppressive to surrender the appellant to the UK government.

The defence appealed on three grounds:

• that the District Court erred in law by failing to take into account that White had not been interviewed or given an opportunity to be interviewed by the prosecution;
• the judge erred in concluding that good faith in the interests of justice focused on the prosecution’s conduct and not the conduct of the complainant; and
• the judge erred by failing to consider whether it would be oppressive to surrender White because of his good relationship with the complainant over the years after the alleged offending. It was submitted this lured him into a false sense of security, which allowed him to settle in New Zealand and raise a family. It was put forward that this amounted to bad faith.

The Crown argued there were no errors of law as none of the discretionary restrictions on surrender in s 8 applied.

Gordon J addressed the appeal on each of the three grounds. The Crown argued the interview opportunity needed to be handled with a degree of realism, particularly when the suspect was overseas. It was given only limited weight as there were other ways to achieve an interview, such as an officer travelling to New Zealand. While there should have been an opportunity for an interview, that on its own did not get anywhere near the threshold for “bad faith”.

On the second ground, the High Court found the extradition process was more concerned with the bona fides of the extradition request, rather than the detail of the underlying criminal allegation. For this reason, there was no error on the part of the District Court as the matters raised by White at that hearing did not support the suggestion the complainant was herself acting in bad faith.

The final ground was based on the fact that White had lived in New Zealand since 2004. He has married and remarried, was the father of five children and supported them through child support payments. He had been in his current relationship for seven years and worked full time as a hotel manager in Auckland.

The only family he had in the UK was an estranged brother and he believed he would have no bail address in the UK.

Applicable principles: Extradition Act threshold – balance of probabilities – onus on defendant – discretionary consideration – whether extradition unjust or oppressive – eligible for surrender – nexus between circumstances and s 8.

Held: The appeal was dismissed. White is eligible for surrender to the UK.

White v United Kingdom [2023] NZHC 2055.