B v United Kingdom
[2025] NZHC 1322
•26 May 2025
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000634
[2025] NZHC 1322
BETWEEN B
Appellant
AND
THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
Respondent
Hearing: 20 May 2025 Appearances:
H Alderton for Appellant
F Culliney and H Brown for Respondent
Judgment:
26 May 2025
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 26 May 2025 at 3.00 pm.
……………………………… Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland
B v UNITED KINGDOM [2025] NZHC 1322 [26 May 2025]
[1] The appellant, Mr B, has been charged with sexual offending against his biological daughter in the United Kingdom over the period 2008 to 2015 when the complainant was between the ages of eight and 15 years of age. Four of the nine charges are for the alleged rape of a child under the age of 13.
[2] The complainant made the allegations about Mr B to her doctor in October 2018. She then made a complaint to the Police in the United Kingdom (UK Police) within a month after Mr B emigrated to New Zealand in February 2019.
[3] Following the complaint, the UK Police began their investigation. That included a mutual assistance request to the New Zealand Police in May 2020 to interview Mr B. Mr B attended a voluntary interview in June 2020 in which he denied the allegations. The UK Police investigation concluded in 2021 with authorisation to prosecute. In March 2023 the United Kingdom issued a warrant for Mr B’s arrest in March 2023. Extradition proceedings commenced and the United Kingdom arrest warrant was endorsed in New Zealand on 11 June 2024.
[4] Mr B initially consented to extradition but then contested his eligibility for surrender. On 25 October 2024, Judge Winter in the Auckland District Court concluded that Mr B was eligible for surrender to the United Kingdom to face trial.1 Mr B now appeals.
Statutory context
[5] The United Kingdom is a designated country under the Extradition Act 1999 (Act),2 and therefore can utilise the “backed warrant” procedure under the Act which is a fast-track procedure for extradition.3
[6] Eligibility for surrender under part 4 does not require the determination of the Court that a prima facie case to put the person on trial is shown on evidence. The role of the Court is limited to being satisfied that the formal steps required by the legislation
1 United Kingdom of Great Britain and Northern Ireland v “B” [2024] NZDC 22904 [Judgment under appeal].
2 Extradition (United Kingdom and Pitcairn Islands) Order 2003, cl 3(1).
3 Extradition Act 1999, pt 4.
have been complied with, that the person is extraditable, that the offence is an extradition one,4 and that no statutory or treaty bars to extradition apply.5
[7] The respondent’s opposition to eligibility for surrender to the United Kingdom is founded on s 45(4) of the Act which provides that the Court may determine the person is not eligible for surrender if the person satisfies the Court that a discretionary restriction on their surrender applies under s 8.
[8]Mr B relies on s 8(1)(b) or s 8(1)(c):
8 Discretionary restrictions on surrender
(1)A discretionary restriction on surrender exists if, because of –
…
(b)if the person is accused of an offence, the fact that the accusation against the person was not made in good faith in the interests of justice; or
(c)the amount of time that has passed since the offence is alleged to have been committed or was committed, –
and having regard to all the circumstances of the case, it would be unjust or oppressive to surrender the person.
[9] Mr B says that it would be unjust or oppressive to surrender him because the accusations against him were not made in good faith in the interests of justice, and because of the amount of time that has passed since the offences were alleged to have been committed. The Judge rejected these grounds of opposition. I address the judgment under appeal in the context of considering the individual grounds of appeal.
Approach on appeal
[10] Where the District Court determines under s 45 that a person is or is not eligible for surrender, a party may appeal against the determination to the High Court on a
4 The Judge noted that one of the charges did not appear to have equivalence, although recorded that Mr B did not dispute equivalence to charges under the Crimes Act 1961 (at [18] and [35]). In submissions on appeal, the United Kingdom clarified for the record that all nine charges have Crimes Act equivalents.
5 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [16].
question of law only.6 The High Court may then reverse, confirm or amend the determination.7
[11] In hearing the appeal, the Court must not have regard to any evidence of a fact or opinion that was not before the District Court when it made the determination appealed against.8
[12] Although s 8(1) refers to “discretionary” restrictions on surrender, a decision under this section involves an evaluative judgment and not the exercise of judicial discretion. The appeal is therefore a general appeal.9 The appeal is a re-hearing but an appellant must demonstrate reversible error or persuade the appeal Court to a different conclusion.10
Grounds of appeal
[13]The grounds of appeal pursued by Mr B are that Judge Winter erred in law by:
(a)rejecting “good faith and interests of justice arguments” relating to s 8(1)(b); and
(b)applying the incorrect legal test for oppression, adopting a standard that was too high, and failing to take into account Mr B’s circumstances in connection with the significant delay in bringing the extradition proceedings (relating to s 8(1)(c)).
Background circumstances
[14] Mr B lived in the United Kingdom until 2019.11 Mr B had three children (two sons and the complainant) with his first wife. All are now young adults. Mr B and his wife separated in 2010 but the couple continued to live in the family home for financial reasons.
6 Extradition Act 1999, s 68(2).
7 Section 72(1).
8 Section 72(2).
9 Commonwealth of Australia v BW [2025] NZCA 8 at [24].
10 Taipeti v R [2018] NZCA 56 at [54], [2018] 3 NZLR 308.
11 Apart from an eight-month period in New Zealand in 1996.
[15] In 2016 Mr B began a new relationship and had a daughter with his new partner. In August 2018, Mr B advised the complainant and her mother of his plans to leave for New Zealand with his new partner.
[16] I outlined the chronology of the complaint and steps leading to Mr B’s extradition above. Mr B maintained contact with the New Zealand police officer who interviewed him, hoping to be kept updated on the progress of the UK Police investigation. Mr B says he made some 14 calls over three to four years with no further information being provided by UK Police.
[17] During the investigation, the UK Police requested that Mr B return and give a voluntary interview. He declined to do this on the basis of expense and wanting to get established in New Zealand before returning to the United Kingdom. Mr B was not offered a video interview from New Zealand with the UK Police.
[18] Mr B’s partner had returned to the United Kingdom in 2021, taking their daughter with her. The relationship ended. An application by Mr B for visitation rights could not be advanced further, owing to the continuing Police investigation into the complainant’s allegations. Mr B says lack of progress on visitation led the lawyer for the child to make enquiries of the UK Police to see if she could progress matters. He says she made five such enquiries.
[19] Mr B relies on an undated email from this lawyer reporting back to him, to suggest that the United Kingdom criminal investigation had stalled. In fact, the email conveys that the lawyer had been advised by the UK Police that the “investigation is still going on”, although she notes that the UK Police were non-committal in advising how long they would be dealing with the matter. The lawyer surmised in the email that the UK Police did not want to say that the matter was closed. There is no evidence that this conclusion derived from anything the UK Police conveyed to her.
[20] In around May 2021, Mr B formed a new relationship with a woman who he had known for close to 20 years, and who had become his fiancé by the time of the District Court hearing. She has a 22-year-old daughter who Mr B says he regards as his own daughter. A statement from the daughter confirms they have a close
relationship. Mr B also says he has a very close relationship with his fiancé’s parents-in-law (confirmed in an affidavit by one of them) and is regarded as one of the family.
[21] Mr B now has four children in the United Kingdom (the complainant, his two sons and his nine-year-old daughter from the later relationship). He states he has no other family there.
[22] While in New Zealand, Mr B has worked in Tauranga, Christchurch and Cromwell, wherever a trucking company he was working for sent him. In the context of a bail application, he stated that he has not stayed in touch with anyone in the long term and does not have a network of friends around the country.
[23] Mr B’s most recent New Zealand visa expired in May 2024. Immigration New Zealand has declined his application for a partnership visa because he is sought in the United Kingdom on the active criminal charges.
[24] Finally, I record that this not a case where Mr B has been seeking to “flee justice”. He has been co-operative throughout.
Principles applicable to considering s 8 discretionary restrictions
[25] I will return to specific legal aspects later. For introductory purposes, I set out principles that apply to s 8(1).
[26] First, the onus is on the person opposing surrender to establish that a discretionary restriction exists.
[27] Second, s 8(1) does not create a standalone discretion to refuse surrender because surrender would be “unjust or oppressive”. It is first necessary to establish, as a threshold matter, that the case is one which falls within one or more of the paragraphs in the subsection. If it does, that may be a basis for a conclusion that surrender would be unjust or oppressive.12
12 Sandford v Commonwealth of Australia [2020] NZCA 532 at [24].
[28] Third, in then considering whether surrender would be oppressive, consideration of “all the circumstances of the case” are words of very broad application capturing everything to do with the person and the criminal proceeding.13 However, if personal circumstances of the alleged offender are relied upon, there must be a clear nexus between these and the issues of delay or good faith. It is not necessary for a “nexus” to show that the delay in the prosecution or lack of good faith caused the change in his personal circumstances, only that it allowed that change to occur.14
[29] If the nexus is shown, the issue is whether, because of the delay or lack of good faith, the high threshold of injustice or oppression is established.
[30] Ms Alderton for Mr B confirmed in oral submissions that Mr B relies on “oppression” as the basis for resisting surrender.
First ground of appeal: “Good faith and in the interests of justice arguments”
[31] Mr B argues that the accusation against him has not been made in good faith and in the interests of justice. He alleges a lack of good faith on the part of the complainant and on the part of the United Kingdom authorities.
Good faith on the part of the complainant
[32] Mr B says there is “a lack of good faith in both the timing and integrity of the complaints being made by the complainant”.
[33] Mr B contends that shortly before leaving the United Kingdom, the complainant’s mother threatened to ruin his life if he left the country because she considered he was abandoning their children. Mr B says she was put up to do so by her mother as a matter of vengeance, and/or because she was upset at her father’s decision to leave with his new family.
13 Tukaki v Commonwealth of Australia [2018] NZCA 324 at [20]–[23].
14 Wolf v Federal Republic of Germany (2001) 19 CRNZ 245 (CA) at [60].
[34] Mr B also relies on the complainant delaying until 2022 to reveal a “secret diary” she says she kept contemporaneous with the offending. Mr B implies that this has been manufactured.
[35] In short, Mr B suggests that the allegations were fabricated in an effort to sabotage his opportunity for a future in New Zealand with a new partner.
[36] The District Court Judge rejected that these matters amounted to a lack of good faith.15 He considered that the submission overlooked s 45(5)(a) of the Act, which precludes a person resisting surrender from adducing evidence to contradict the allegations connected to the extradition application. He also referred to White v United Kingdom.16 In that case, after a review of New Zealand17 and Australian authorities,18 Gordon J concluded that the sub-section is more concerned with the bona fides of the extradition request, rather than the detail of the underlying criminal investigation.
[37]The Judge was correct for reasons I now outline.
[38] I agree with Gordon J in White that reference to an “accusation … not made in good faith” in 8(1)(b) does not relate to the bona fides of a complainant, but to the prosecuting authorities. In addition to endorsing Gordon J’s conclusion based on the authorities to which she referred, I consider that this is a necessary corollary of the Supreme Court’s analysis in Kim v Prison Manager, Mount Eden Corrections Facility of the meaning of a “person accused” within the Act.19
[39] The Supreme Court held that the word “accused” is adopted because it needs to embrace procedures in different legal systems that are not premised simply on criminal procedure in New Zealand law that involve the laying of a charge.20 As McGrath J stated, a person is “accused” in terms of the Act when “a prosecutor is
15 Judgment under appeal, above n 1, at [27]–[34].
16 White v United Kingdom [2023] NZHC 2055 at [49]–[59].
17 Cook v Superintendent of Mt Eden Prison HC Auckland AP82/87, 23 September 1987; and Liu v Crown Colony of Hong Kong HC Auckland M2 l48/89, 10 October 1990.
18 Vyner v Keeper of Her Majesty’s Penitentiary at Malabar (1975) 6 ALR 105; and Narain v Director of Public Prosecutions (1987) 15 FCR 411.
19 Kim v Prison Manager, Mount Eden Corrections Facility [2012] NZSC 121 at [22]–[23].
20 At [42]–[43].
satisfied that sufficient evidence has been gathered to bring criminal proceedings and takes a step towards commencing them against a person”.21
[40] References in s 8(1)(b) to a person who is “accused of an offence” and to the making of “an accusation” plainly fall to be interpreted consistently with the designation of a “person accused … of an offence”. The person “making the accusation” is the prosecutorial authority who determines that there is sufficient evidence to bring criminal proceedings. It is not the person who makes the accusation to the police, being the complainant in this case.
[41] I also agree with Gordon J that this conclusion is in part apparent from s 45(5)(a) (relied upon by the Judge) that precludes the person adducing, or the Court receiving, evidence to contradict that the person has engaged in the alleged offending conduct. It is difficult to contemplate many cases, and this is certainly not one, where an allegation of bad faith by the person accused is not also an allegation that the allegation is manufactured (and hence the person has not engaged in the conduct alleged).
[42] In some circumstances, it may be that conduct of the complainant is relevant for the purposes of the section because it relates to an allegation of lack of good faith by the prosecuting authorities. There is no evidence of that here.
[43] Accordingly, the threshold in s 8(1)(b) is not established in respect to conduct of the complainant. This accords with the Judge’s analysis in the decision under appeal.
[44] Even if I am wrong in that conclusion, I agree with the District Court Judge that Mr B has not established the bad faith conduct he alleges against the complainant. Her stated reasons for making the complaint when she did (at age 19) were that she was prompted to report due to her father’s intention to leave the country and out of concern for his child. There is insufficient evidence to draw an inference that the complainant was prompted to lie by her mother.
21 At [43].
Accusation not made in good faith by the prosecuting authorities in the United Kingdom
[45] The assertion that the accusation was not in made good faith by prosecuting authorities relies on two factors:
(a)Mr B’s assertion that the UK Police had an obligation to allow him to be interviewed by audiovisual link; and
(b)failure or refusal of the UK Police to respond to numerous queries made on his behalf by the detective involved in New Zealand and the lawyer for the child. Mr B relies on the police duty of candour. 22
[46] As to the former contention, the District Court Judge relied on White v United Kingdom in rejecting Mr B’s argument. In that case, Gordon J concluded that the omission by the Police to give the appellant the opportunity of a Zoom meeting did not come near the test of lack of good faith.23 Judge Winter noted the latter contention (failure to keep Mr B updated and duty of candour) as an argument raised, although he did not explicitly address this aspect in rejecting a lack of good faith at the threshold stage.
[47] In my view, neither individually nor in combination do these aspects amount to a lack of good faith on the present facts.
[48] I accept the United Kingdom’s submission that here, Mr B had the opportunity to answer the allegations through completing the voluntary interview with New Zealand Police, undertaken as part of a mutual legal assistance request by the United Kingdom authorities.24 Indeed, as the United Kingdom submits, this is one of the options referred to in the White decision as available to investigating police. Mr B was also invited to return to the United Kingdom to give an interview. These facts do not sustain an allegation of lack of good faith.
22 Keenan v United Kingdom [2016] NZHC 2446 at [26].
23 White v United Kingdom, above n 16, at [39].
24 Judgment under appeal, above n 1, at [7].
[49] Contrary to suggestions in Mr B’s submission, there is no basis to suggest that he was led to believe that the investigation had closed and that he was secure in his position in New Zealand in respect of extradition. As noted earlier, the email on which Mr B relies confirms that the lawyer for the child was told that the investigation was still continuing. There is no other evidence advanced to support the submission that the United Kingdom authorities led him to believe that he would not be charged.
[50] I appreciate that failure or refusal by United Kingdom authorities to answer repeated enquiries about the status of the investigation will have been frustrating for Mr B. However, it is not a matter that comes near to establishing a lack of good faith.
[51] In summary, I agree with the District Court’s conclusion that no lack of good faith was established in terms of 8(1)(b) of the Act. For the avoidance of doubt, these matters would need to have a link with being unjust or oppressive to ground a basis for Mr B to resist surrender. I do not consider that they have such a link. In particular, any issue of UK Police’s conduct (or that of the complainant) are matters that are more appropriately explored and examined in the United Kingdom.25
Second ground of appeal - section 8(1)(c) and oppression
[52] The second ground of appeal relates to the correct test for oppression in the present case. Mr B says the standard set was too high and failed to properly consider his circumstances in connection with the delay in bringing extradition proceedings.
[53] The word “oppressive” in s 8(1) refers to hardship resulting from changes in circumstances from the time of the alleged offending to the time the application for extradition is heard.26 The threshold for oppression is high.27
[54]Commenting on the high threshold, the Court of Appeal has said:28
The very use of the word “oppression” signifies that. It is also implicit in the scheme of the Extradition Act that the usual and inevitable consequences of
25 This was also the Judge’s conclusion at [35] although not expressly considering UK Police conduct.
26 Commonwealth of Australia v BW, above n 9, at [21].
27 Commonwealth of Australia v Mercer [2016] NZCA 503 at [43(e)] and [51].
28 Tukaki v Commonwealth of Australia, above n 13, at [29].
extradition are not, of themselves, “oppressive”. The act of extradition is inherently disruptive and distressing. It may involve the forcible removal of an individual from their home country, and commonly involves the removal of an individual from their family.
[55] In this case, the warrant for arrest of Mr B was signed by Judge Bergseng on 11 June 2024, hence the passage of time since the alleged offending commenced is 16 years.
[56] Mr B says that the Judge found this delay not excessive simply based on comparison to delays in various other cases. In the District Court Mr B did not challenge the reasons for the delays that occurred. In this Court, he described them as “excessive and inexcusably dilatory”. Mr B complains that the United Kingdom authorities were aware of his whereabouts and could have remained in contact with him but have given no explanation why they did not do this. He refers to his cooperation with the United Kingdom authorities from the start, that he made no attempt to conceal his whereabouts, and did not flee the jurisdiction.
[57] Mr B says that his circumstances changed over the period of the delay between the alleged offending and the application for extradition such that:
(a)His friendship with his fiancé has advanced and he has developed full bonds and family ties with her family.29
(b)He has not been afforded opportunities to renew his visa to remain in New Zealand due to his ongoing investigation which has jeopardised his chances of being allowed back into New Zealand in the future if deported. He refers to his contribution to society, that he has not worked illegally, and that due to the extensive delay he has been able to assimilate in New Zealand and formed meaningful and positive relationships in New Zealand.
(c)He says that extradition would be materially disruptive to his relationships that he has formed over the last 16 years.
29 He is currently bailed to the family home.
(d)In all the circumstances, he said it would be oppressive to surrender him.
[58] One of the matters not referred to in the foregoing summary is Mr B’s submissions on appeal that his fiancé is now expecting a baby and they had a wedding date set for 5 May 2025 (now past). I put these two matters to one side. Not only are they unsupported by affidavit evidence, I am precluded from having regard to any evidence of a fact or opinion that was not before the District Court when it made the determination appealed against.30
[59] The delay here does not meet the threshold in s 8(1)(c). Nor, if it did, is the high threshold for oppression established. The Judge was correct in his conclusion on this aspect.
[60] First, whereas Mr B characteries the delay as “excessive” and “inexcusably dilatory”, I do not consider either description applies:
(a)The period of time that has passed since the alleged offending is unremarkable in the context of historic sexual violence against allegations by a child against their parent. There are several authorities involving historical sexual offending in the extradition context where lengthy periods (often exceeding the 16 years in the present case) did not preclude a surrender order being made.31
(b)Once allegations were reported to the UK Police in 2019, there is no evidence that the prosecuting authorities acted other than with ordinary promptitude.
30 Extradition Act 1999, s 72(2)(a).
31 Commonwealth of Australia v Mercer, above n 27, (alleged offending 30 years prior to the respondent’s arrest in New Zealand); Woodcock v Government of New Zealand [2003] EDHC 2668 (QB), [2004] 1 WLR 1979 (indecency offending in New Zealand against 11 child complainants occurring up to 24 years prior to arrest in the United Kingdom involving complaints received 7-8 years prior to extradition proceedings); New Zealand v Moloney [2006] 154 FCR 250 (alleged sexual offending in New Zealand up to 30 years prior to the respondent’s arrest in Australia and subsequent extradition proceedings); Keenan v United Kingdom, above n 22, (arrest in New Zealand 13 years after the appellant had absconded to New Zealand two weeks prior to trial, with the Court concluding inexplicable and inexcusable delays had occurred although Mr Keenan had brought these upon himself by absconding); and Commonwealth of Australia v BW, above n 9, at [27].
(c)The UK Police acted promptly to seek mutual assistance in May 2020. Mr B, from which point he was aware of the allegations and was able to give his response in the interview in June. The UK Police investigation concluded in 2021, with authorisation to prosecute. That period of investigation is not excessive. There was then a delay until March 2023 when the United Kingdom issued a warrant for Mr B’s arrest. This is unexplained but cannot be characterised as inexcusably dilatory. Extradition proceedings commenced, and the United Kingdom arrest warrant was endorsed in New Zealand on 11 June 2024.
(d)The above timeframe from January 2019 and March 2023, taken as a whole, is lengthy but not excessive. It also needs to be viewed in the context of the onset of the Covid-19 pandemic. While this does not suspend the period in which a person is eligible for surrender and hence as time within s8(1)(c), those circumstances have some relevance when assessing prosecutorial or administrative delays.
(e)The case law supports that questions of whether delays are culpable or inexcusably dilatory are best dealt with by the court in the country to which the person is extradited in the context of a stay of proceedings or grant for an abuse of process.32
[61]In any event, the claim for oppression is simply not met here:
(a)The Court of Appeal has emphasised in Commonwealth of Australia v BW that as a matter of comity, the extradition court should be wary of reviewing the actions of foreign authorities leading up to the request for extradition.33
(b)The effects of the delay here relied upon by Mr B, relate to his understandably close relationship with his fiancé and her family. However, notably, they became a couple in 2021, after they were both
32 Commonwealth of Australia v Mercer, above n 27, at [59].
33 At [53].
aware of the pending investigation. This is not a case where Mr B has a long-established close family network in New Zealand. While I respect and acknowledge the statements given by his fiancé and parents-in-law as to his status as a family member, that has occurred relatively recently. Disruption of such relationships is a usual and inevitable consequence of extradition.
(c)In contrast to cases where there is disruption of a relationship with children, here, Mr B has four children in the United Kingdom, one for whom he has been actively seeking to obtain rights of visitation. There is no evidence to suggest that he is excommunicated from his sons’ lives. To the contrary, an email annexed in support of Mr B’s application in 2023 from his then 17-year-old son, suggests that is not the case.
(d)Mr B refers to difficulty with his immigration status and in obtaining visitation rights due to the unresolved investigation and delays. These personal circumstances are due to the charges themselves, not to delays in prosecuting them. Moreover, there would appear to be a logical difficulty in relying on an inability to obtain visitation rights in the United Kingdom to found a basis for not being extradited there.
(e)This is not a case where there is evidence that Mr B has been given a false sense of security as a result of a delay. No representations that the investigation was concluded have been established.
(f)The allegations, if established, amount to very serious offending. Mr B will have the opportunity for a fair trial in England to meet them.
[62] These reasons parallel those relied upon by the Judge. Mr B criticises the Judge for applying an overly mechanical or formalistic comparison between the present case and other authorities. I do not consider this criticism well-founded. He was right to conclude the high threshold of oppression had not been met. I see no error in the approach he applied or his conclusion.
Result
[63] The appeal is dismissed. I confirm the decision of the District Court Judge pursuant to s 72(1)(a) of the Act.
Anderson J
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