Important Guidance on Extradition Consent Hearings

Deputy Senior District Judge (‘DSDJ’) Arbuthnot has provided important guidance on post-surrender applications by requesting judicial authorities seeking the consent of Westminster Magistrates’ Court (‘the Court’) to prosecute extradited persons for offences not contained within an original European arrest warrant, as required by Article 27 of the Framework Decision 2002 and sections 54-55 of the Extradition Act 2003.




The DSDJ’s Guidance arose in the case of Mr Darren O’Flaherty. Mr O’Flaherty’s extradition to Spain took place in February 2015 for a number of serious offences including murder and attempted homicide alleged to have taken place in July 2007. In June 2015, the Spanish judicial authority sought the consent of the Court to prosecute Mr O’Flaherty for two further offences of attempted homicide arising from the same set of facts as those underpinning the original EAW (’the Consent Request’).


The need for guidance


Mr O’Flaherty resisted the Spanish judicial authority’s Consent Request. In so doing, and as a preliminary matter, the defence argued that Mr O’Flaherty had a right to be physically present at the hearing at which the Court was to consider the contested Consent Request so that he could fully defend the request, and to afford the Court a proper basis on which to decide whether to grant its consent.


In March 2016, DSDJ Arbuthnot found that Mr O’Flaherty did not have a right to be present at the contested Consent Hearing. In so doing, it was identified that there was a conspicuous lack of any guidance relating to how the relevant parties ought to deal with Consent Requests. Following submissions by the parties, the judge issued helpful guidance: Suggested Steps in Consent Requests. The guidance clarifies the manner in which Consent Requests ought to be dealt with by Westminster Magistrates’ Court, the Legal Aid Agency, the defence and the Crown Prosecution Service.


The ultimate disposal


Prior to the substantive contested Consent Hearing, the Spanish judicial authority withdrew its Consent Request and, on 11 May 2016, DSDJ Arbuthnot formally dismissed the request. Given that the Court did not have to finally adjudicate upon the substantive Consent Request, the DSDJ’s finding that extradited persons do not have a right to be present at contested Consent Hearings has not been considered by the High Court and remains open to challenge.


Graeme L. Hall was instructed by Gary McAteer of Healey Kenyon McAteeer Solicitors. John R.W.D. Jones QC was also instructed prior to his sad and untimely death.  Indeed all Counsel in the case were from Doughty Street; Mary Westcott acted on behalf of the Spanish Judicial Authority.

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