Exceptionally serious circumstances must be established to resist extradition order says Supreme Court

5 March 2010 by Rosalind English

Norris v United States [2010] UKSC 9

SC (Lord Phillips, Lord Hope, Lord Rodger, Lady Hale, Lord Brown, Lord Mance, Lord Judge, Lord Collins, Lord Kerr) 24 February 2010

In determining whether interference with an individual’s right to a family life was justified to achieve the aim of extradition, the court should not consider whether the circumstances were exceptional but should consider whether the consequences were exceptionally serious

SUMMARY

The appellant had recently retired from his job as CEO of a company that had been involved in price fixing. He had successfully resisted an extradition order sought by the United States on the grounds that price-fixing in the UK was not illegal (Norris v United States (2008) UKHL 16, (2008) 1 AC 920). However, the court held that the other charge against him – obstructing justice – justified extradition and his case was remitted to a district judge. The district judge decided that he should be extradited. His decision was upheld by the divisional court, which concluded that the obstruction of justice charges were very grave and that a high threshold would have to be reached before the appellant’s rights under Article 8 could outweigh the public interest in extradition ((2009) EWHC Admin 995, (2009) Lloyd’s Rep FC 475).

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A number of issues arose in the case. The appellant submitted that extradition would cause disproportionate damage to his and his wife’s physical and psychological wellbeing having regard to their age, their state of health and the likely effect of the separation that extradition would impose upon them. He argued, further, that he should not have to demonstrate exceptional circumstances in order to cross the Article 8 threshold. The three subsidiary questions were, whether the gravity of the crime in respect of which extradition was sought was a relevant factor; whether the inference with family life had to be considered only from the point of view of the person whose extradition was sought, or also from the viewpoint of other affected family members; and finally, whether the possibility of prosecution in the requested state was relevant.

Held:

Appeal dismissed. Extradition was part of reciprocating states’ process for preventing disorder and crime and it was of critical importance that those reasonably suspected of crime were prosecuted and, if found guilty, duly sentenced. This did not meant that in the balancing act between the public interest in extradition and its effect on human rights, the latter would never prevail. It did mean, however, that the inference with human rights would have to be extremely serious if the public interest was to be outweighed. The reality was that only if some exceptionally compelling feature was present, would that inference with family life be considered disproportionate.

However, instead of saying that inference with Article 8 rights could only outweigh the importance of extradition in “exceptional circumstances”, it was more accurate and helpful to say that the consequences of interference with these rights had to be exceptionally serious before they could outweigh the importance of extradition. In the instant case the Court was not satisfied that the appellant’s circumstances were capable of rendering extradition disproportionate.

As far as the nature of the offence was concerned, the Supreme Court concluded that the importance of giving effect to extradition proceedings should always prevail, whatever the details of the offence in question. However, if the particular offence was at the bottom of the scale of gravity, that was capable of being one of a combination of features that might render extradition a disproportionate interference with human rights.

In answer to the family rights question, the Court ruled that Article 8 should be considered from the point of view of the family unit as a whole (Beoku-Betts v Secretary of State for the Home Department (2008) UKHL 39, (2009) 1 AC 115).

The likelihood of prosecution in this country was not relevant. Extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings. Rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in the UK be capable of tipping the scales against extradition in accordance with the UK’s treaty obligations.

COMMENT (March 2010)

The jurisprudence of the Strasbourg Court, although extensively surveyed in this judgement, casts very little light on the main question before the court: what is the proper test for proportionality in extradition cases. And it is difficult to see how this ruling will have any effect, in reality, on the role of human rights in extradition cases. The SC followed the House of Lords in Huang in ruling that the exceptionality test was too high a threshold and could not replace proportionality in extradition cases (Huang was decided in the context of immigration: see [2007] 2 AC 167). But in the end, the Court acknowledged that the circumstances in which interference with Article 8 rights will in fact be considered to be disproportionate would be, in their words, “exceptional”.

Extradition cases frequently form part of the category of “foreign” cases – where the alleged interference with human rights is threatened in a non-signatory destination state. The importance attached to the objectives of extradition is well illustrated in just such a “foreign” case, recently decided by the House of Lords. Wellington, the appellant, resisted extradition to the states on the basis that, if convicted in that jurisdiction, he would be sentenced to imprisonment for life without eligibility of parole and that this would be inhuman treatment in violation of article 3 (the basis for this argument was the landmark Strasbourg ruling in Soering v United Kingdom (A/161) (1989) 11 EHRR 439 ECHR). The House unanimously dismissed his appeal (see R (Wellington) v Secretary of State for the Home Department [2008] UKHL 72; [2009] 1 AC 335.) The desirability of extradition was such that punishment which would be regarded as inhuman and degrading in the domestic context would not necessarily be so regarded when the choice was between either extraditing or allowing a fugitive offender to escape justice altogether. In that sense extradition cases differed from exclusion or deportation cases, since the public interest in the former was of a different order and weighed heavily against the defendant.

The appellant did win something of a Pyrrhic victory in the instant case, in relation to his submission on the gravity of the crime. The Supreme Court acknowledged that the public interest in maintaining effective extradition arrangements would not automatically prevail where the crime was trivial: so, for example, if extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Extradition Act. Unfortunately for the appellant such exceptional circumstances were not found in his case. The Court observed that in this assessment the interests of children were particularly material (Uner v Netherlands (46410/99) (2006) 3 FCR 340 ECHR (Grand Chamber). It is hard to see why the interests of minors should prevail where those of aged and frail dependent family members do not, but since that was point was made obiter it remains academic.