Extradition

Norris v United States [2010] UKSC 9

Wed, 24 Mar 2010 17:05:00 GMT

The appellant (N) appealed against a decision of the Administrative Court upholding an order for his extradition to the United States. The court was required to determine whether: (i) it could properly require a person resisting extradition on art.8 grounds to demonstrate exceptional circumstances; (ii) the gravity of the crime in respect of which extradition was sought was a relevant factor; (iii) the interference 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; (iv) the possibility of prosecution in the requested state was relevant. HELD: (i) Instead of saying that interference with art.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 art.8 rights had to be exceptionally serious before they could outweigh the importance of extradition. (ii) The impor tance of giving effect to extradition arrangements would always be a significant factor in any extradition decision, regardless of the details of the particular offence. Usually the nature of the offence would have no bearing on the extradition decision. 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. (iii) The court was not solely concerned with the family rights of an individual to the exclusion of those of other family members. On the contrary, the interests of children were particularly material. The family unit had to be considered as a whole. (iv) 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. Unless the judge reached the conclusion that the scales were finely balanced, he should not enter into an enquiry as to the possibility of prosecution in this country

Norris (Appellant) v Government of United States of America and another (Respondents)

Thu, 04 Mar 2010 17:01:43 GMT

The United States Government is seeking the extradition of the appellant, Mr Norris, so he may be tried on an indictment charging him with obstruction of justice. He had originally faced a further charge of price fixing. The House of Lords ruled in 2008 ([2008] UKHL 16) that the conduct alleged in relation to the price fixing charge was not capable of amounting to an extradition offence as it was not a crime under English law when it was committed. His case was then sent back to the district judge to decide whether he should be extradited on the remaining charges in the indictment.

Dula v. The Netherlands (04/02/2010)

Wed, 24 Feb 2010 22:15:44 GMT

The Appellant (D) appealed against an order for his extradition to the Netherlands on the basis of conviction in absence (section 20). D had been convicted and sentenced to four years' imprisonment in his absence in the Netherlands. At the time of the trial D was a prisoner at a Polish prison. The Judicial Authority produced documentation that D had been personally served with a trial summons and with documents in Polish and Dutch informing him of the trial and his right to be legally represented. D signed a receipt for the documents. D was then informed by letter of his conviction and of his right to appeal. D again signed a receipt acknowledging that he had received the documents but took no action. HELD: The District Judge was entitled to find that D had deliberately absented himself from the trial. The mere fact that a person was in custody at the time of a trial did not mean that he could not be said to have deliberately absented himself. Whether such a person had deliberately absented himself from th e trial was dependent on the specific facts of each case. In the instant case, it was apparent that D had been summoned to trial and given explanatory notes regarding the proceedings. Appeal dismissed.

Louca (Appellant) v A German Judicial Authority (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice), [2009] UKSC 4

Wed, 25 Nov 2009 13:51:04 GMT

The appellant, Mr Louca, was a Cypriot national whose arrest in England and surrender to the Federal Republic of Germany for trial of six alleged offences of tax evasion was sought by the Office of the Public Prosecutor of Bielefeld pursuant to a European Arrest Warrant. The warrant was certified by the Serious Organised Crime Agency (“SOCA”) pursuant to s.2(7) of the Extradition Act 2003. Mr Louca challenged its validity on the ground that it contained no reference to two previous European arrest warrants (likewise certified by SOCA), but referred only to a domestic German arrest warrant. A reference to any previous European arrest warrants, was, he submitted, essential under s.2(2)(a) and (4)(b) of the 2003 Act, which, read together, required a warrant to contain “particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence”.

Senior District Judge Workman rejected Mr Louca’s challenge in September 2008, and the Divisional Court dismissed his appeal in November 2008.

The question certified by the Divisional Court was: “Whether the reference to ‘any other warrant’ in ss.2(4)(b) and 2(6)(c) of the Extradition Act 2003 properly construed is a reference to any other domestic warrant on which the European arrest warrant is based”.

The Supreme Court agreed with Divisional Court and unanimously held that the reference was to any domestic warrant on which the European arrest warrant was based, and not to any other European arrest warrant which may have been issued on the basis of any such domestic warrant. Accordingly, Mr Louca’s appeal was dismissed.

Gomes (Appellant) v Government of Trinidad and Tobago (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice), Goodyer (Appellant) v Government of Trinidad and Tobago (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice

Wed, 29 Apr 2009 14:00:00 GMT

Each of the two appellants, Mr Goodyer, a UK national, and Mr Gomes, a citizen of Trinidad and Tobago, is wanted by the Government of Trinidad and Tobago (“Trinidad”) for trial there on charges of possession of cocaine for the purposes of trafficking. Each was arrested in the UK following an extradition request by Trinidad and each unsuccessfully argued before the District Judge at their respective extradition hearings, first, pursuant to ss.79(1)(c) and 82 of the Extradition Act 2003 that it would be unjust or oppressive to extradite him by reason of the passage of time since his alleged offence, and, secondly, pursuant to s.87 of the Act, that his extradition would not be compatible with his Convention rights under art.3 given Trinidad’s appalling prison conditions.

Each appealed to the Divisional Court under s.103 of the Act against the respective District Judge’s decisions under s.87(3) to send their cases to the Secretary of State for her decision whether to extradite them. The Divisional Court allowed their appeals and remitted the case to the district Judge to decide again two questions - (1) whether it would be unjust or oppressive by reason of the passage of time to return either defendant to Trinidad for trial and, if not, (2) whether, were either defendant to be returned, his prison conditions in the maximum security facility in Trinidad would be such as to breach art.3’s prohibition against inhuman and degrading treatment. Both questions were decided in the negative. The appellants appealed to the House of Lords.

The House of Lords unanimously dismissed the appeals. It held that neither appellant, as a “classic fugitive", could invoke the passage of time, lengthy though it was, since their respective alleged offences. In any event there could be no question of regarding their extradition as either unjust or oppressive.

Gomes v. Trinidad and Tobago [2009] UKHL 21 (29 April 2009)

Tue, 28 Apr 2009 23:00:00 GMT

Where a delay had occurred in extradition proceedings, resulting from the fleeing of the accused from the jurisdiction in which he was bailed to appear, he could not rely on any subsequent culpable delay on the part of the requesting state to argue that it would be unjust or oppressive to extradite him by reason of passage of time pursuant to the Extradition Act 2003 s.82. The case of Krzyzowski v Poland (2007) EWHC 2754 (Admin) correctly stated the law on the passage of time bar to extradition, Goodyer v Trinidad and Tobago (2007) EWHC 2012 (Admin), (2007) 104(35) LSG 34 overruled.

Both appellants had fled Trinidad and Tobago in breach of their bail conditions. Each had been arrested in the United Kingdom following a delayed extradition request. The delay in both cases was a combination of the offenders having evaded arrest and inaction by the requisitioning state. Each had unsuccessfully argued that it would be unjust or oppressive to extradite him by reason of the passage of time since his alleged offence. Their appeals had been ordered to be heard together because they raised similar issues. The Divisional Court had allowed the appeals in August 2007, finding that culpable delay on the part of the requesting state had to be taken into account in the same way as delay that was the fault of the offenders themselves and it remitted the case to the district judge for determination in light of its finding. However, givne conflicting law the court. Before the remitted hearing had taken place, another constitution of the Divisional Court ruled in Krzyzowski v Poland (2007) EWHC 2754 (Admin) that the views expressed by the Divisional Court in the instant case were inconsistent with those in Kakis v Cyprus (1978) 1 WLR 779 HL and were therefore The court certified that there was a point of law of general public importance, namely whether the law on the passage of time bar to extradition as set out in s.82 and s.14 had been correctly stated by the Divisional Court in the instant case or whether Krzyzowski, which disapproved of that approach, should be followed in its place.

HELD: (1) The rule in Kakis was undoubtedly correct, namely that any delay in the commencement or conduct of extradition proceedings which was brought about by the accused fleeing the country, concealing his whereabouts or evading arrest could not be relied upon as a ground for holding it to be either unjust or oppressive to return him. Accordingly, neither appellant could invoke the passage of time to establish that their extradition was unjust or oppressive and still less to establish themselves as falling within "the most exceptional circumstances". Any accused who deliberately fled the jurisdiction in which he had been bailed to appear could not justify suggesting that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of a subsequent fault on their part, such as dilatoriness or inaction caused by limited resources. None of those reasons broke the chain of causation set in train by the accused's own conduct. Only a deliberate decision communicated to the accused by the requesting state not to pursue him, or some other circumstance instilling a similar sense of security could properly allow an accused to assert that the effects of further delay were not "of his own choice and making". The main reason for such an approach was to minimise the incentive on the accused to flee, which had to be the policy of the law. Generally it would be clear whether an accused had deliberately fled the country and, as such flight would almost always operate as an automatic bar to reliance on delay, it would have to be proved beyond reasonable doubt. A second reason was to prevent the necessity of having an expensive and time-consuming exploration of the state's resources and practices to determine whether the passage of time involved fault on its part, as it would often not be clear where the delay lay. (2) With regard to the concept of oppression within the meaning of s.82, the test would not easily be satisfied: hardship, which was a comparatively commonplace consequence of an order for extradition. (3) As to a fair trial, Trinidad and Tobago was to be assumed to have the necessary safeguards against an unjust trial and, even in countries where extradition arrangements were a little more ad hoc, the presumption should be that justice would be done despite the passage of time and that the burden should be on the accused to establish the contrary. The test of establishing the likelihood of injustice would not be easily satisfied.Appeal dismissed

Mucelli (Appellant) v Government of Albania (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice), Moulai (Respondent) v Deputy Public Prosecutor in Creteil, France (Appellant) (Criminal Appeal from Her Majesty’s High Court of Justice),

Wed, 21 Jan 2009 11:10:00 GMT

These two appeals concern the time limits in Part 1 and Part 2 of the Extradition Act 2003 governing appeals to the High Court against an order of a District Judge permitting extradition. s.26(4) and s.103(9) provide that “Notice of an appeal … must be given in accordance with rules of court before the end of …. [7 or 14] days starting with the day on which the order is made". Three questions of principle arise:

(a) Must the appeal notice be both filed in the High Court and served on the respondent within the 7 or 14 days?
(b) Is the Court precluded from extending time for the filing and/or the service of the appeal notice?
(c) What happens if the office of the recipient of the notice is closed before the last moment for service?

The House held that:-
(a) - an appellant’s notice must be served, as well as filed, within the 7-day period referred to in s.26(4). Re. s.103(9), it requires an appellant’s notice to be served within the 14-day period to which it refers.
(b) It is not open to the court to extend time under s.26(4) or to dispense with service of the notice of appeal. The same applies to s.103(9).
(c) The provisions of CPR 6.7 (which state that a document transmitted by fax after 4pm is deemed to have been served “on the business day after the day on which it is transmitted") do not apply. s.26(4) requires the appellant’s notice to be issued and served within 7 days and there is no warrant for the CPR being invoked to cut down that period. The point is reinforced by practical considerations: the 7 day period laid down by s.26(4) is short, and it does not seem very fair to cut it down, even if only by a few hours. Although the 14 days permitted by s.103(9) is somewhat longer, the same reasoning applies. In addition, where the recipient’s office is closed during the whole of the last day, the notice will be validly filed or served if it is given at any time during the first succeeding day on which the office is open. However, the same would not apply in cases where, even if only for a few hours, the required recipient’s office is closed before midnight on the final day if the office has been open during normal business hours.

R (on the application of Wellington) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) (Criminal Appeal from Her Majesty’s High Court of Justice), [2008] UKHL 72

Wed, 10 Dec 2008 10:29:00 GMT

The State of Missouri alleges that the appellant, Wellington, committed two murders in Kansas City and he is charged with murder in the first degree. The appellant was arrested in London on a provisional warrant. The United States requested his extradition. The prosecutor in Missouri gave an undertaking that he would not seek the death penalty. Some time was then taken up with an unsuccessful challenge to the committal by judicial review but the Home Secretary later notified the appellant that he had ordered his extradition. This decision was also challenged by an application for judicial review which was dismissed by the Administrative Court. The appellant appealed to this House.

The sole ground of challenge is that, in ordering extradition, the Home Secretary, as a public authority, acted in a way which was incompatible with the appellant’s Convention right under art.3 of the ECHR not to be, “subjected to…inhuman or degrading…punishment.” A sentence of life imprisonment without eligibility for parole is alleged to constitute such punishment. The order for extradition is therefore said to have contravened s.6(1) of the Human Rights Act 1998.

The appeal raises two issues – (1) whether a sentence of imprisonment for life without eligibility for parole would, if imposed in the UK, constitute an inhuman or degrading punishment; and (2) whether it makes a difference that the sentence will not be imposed by a UK authority but by the State of Missouri.

The House of Lords unanimously dismissed the appeal. Per Lord Hoffmann, it could not be said that a sentence of life without parole would be so grossly disproportionate to the offence as to meet the heightened standard for contravention of art.3 in its application to extradition cases. It was irrelevant that an English judge would have judicial discretion whether or not to impose a whole life sentence whereas in Missouri the sentence would be mandatory. The mandatory nature of the sentence would be important if the case was concerned with the validity of a domestic rule imposing such a sentence. However, the House was not concerned with the validity of the Missouri law. The fact that a life sentence without parole was mandatory in Missouri was relevant only in enabling the English court to predict the punishment which the appellant would receive if he was convicted of first degree murder.

Wellington R, (On the Application of) v Secretary of State for the Home Department [2008] UKHL 72 (10 December 2008)

Wed, 10 Dec 2008 00:00:00 GMT

The imposition of a life sentence would not necessarily infringe Art.3. While an irreducible life sentence might raise an issue under Art.3 but would not necessarily infringe it, a life sentence that was not irreducible would not even raise an issue. Moreover, the bar for what counted as irreducible was set high; power to release someone from a life would mean the sentence was not irreducible.

The test of what constituted inhuman or degrading punishment within the meaning of the European Convention on Human Rights 1950 Art.3 differed depending on whether what was being considered was a punishment to be imposed in the United Kingdom, or that to be imposed in a requesting country following extradition. In the latter case, Art.3 was applicable only in an attenuated form; punishment which would be degrading in the domestic context would not necessarily be so in the context of extradition. Successful reliance on Art3. demanded the presentation of a very strong case. Appeal dismissed.

Wellington R, (On the Application of) v Secretary of State for the Home Department [2008] UKHL 72 (10 December 2008)

Wed, 10 Dec 2008 00:00:00 GMT

The appellant faced two charges of murder in Missouri, for which the mandatory penalty was imprisonment for life without eligibility for probation or parole or release, except by the act of the Governor. He challenged the decision to order his extradition on the basis that it breached his rights under ECHR 1950 art.3, arguing that a sentence of life imprisonment without eligibility for parole constituted inhuman or degrading punishment. HELD: A complaint under art.3 could not be made simply because such a sentence had been imposed, but only when the prisoner contended that for some other reason his continued detention would be inhuman or degrading. A relativist approach to the scope of art.3 was essential if extradition was to continue to function, and in the extradition context art.3 was to be treated as applicable only in an attenuated form that took account of the desirability of arrangements for extradition. Successful reliance on art.3 in the extradition context therefore demanded the presentation of a very strong case.

Caldarelli (Appellant) v Court of Naples (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice), [2008] UKHL 51

Wed, 30 Jul 2008 13:00:00 GMT

Mr Caldarelli challenges a decision of the Queen’s Bench Divisional Court upholding an order that he be surrendered pursuant to a European arrest warrant (EAW) issued by the Court of Naples. He complains that the warrant is bad because it seeks his surrender as an accused person and not (as he claims to be) a convicted person. The certified question is:

“Where a fugitive has been convicted and sentenced in his absence in the requesting state, but the conviction and sentence are neither final nor enforceable, may his case be treated as an accusation case even though he does not enjoy an unqualified right to a retrial on the merits?”

The appellant points to the fact that he has been tried and convicted and sentenced to 11 years’ imprisonment. Had the EAW sought his extradition as a convicted person, there would have been no answer. But the requesting state having chosen, wrongly, to treat him as accused when he should have been treated as convicted he cannot be committed as a convicted person. Therefore he must be discharged.

The respondents resist this argument on the basis that the EAW is valid and should be given effect.

The Senior District Judge upheld the EAW on the ground that the appellant would, if extradited, be entitled in the appeal proceedings to a full re-hearing on the facts and law. However, this was not the effect of the agreed evidence and the Divisional Court held that the EAW could not be upheld on that ground. That Court concluded that the EAW was rightly characterised as an accusation warrant.

The House of Lords agreed with the Divisional Court. The extradition of this appellant was properly sought as an accused person. The appellant was not being sought for the purpose of executing a custodial sentence or order because no enforceable order had yet been made. He was being sought for the purpose of conducting a criminal prosecution. When he came before the district judge at the extradition hearing, he was not a person “alleged to be unlawfully at large after conviction of the extradition offence” because although convicted his extradition was not sought “for the purpose of…his serving a sentence of imprisonment…imposed in respect of that offence” which is now part of the definition of “unlawfully at large after conviction” by virtue of s.68A(1)(b) of the Extradition Act 2003. He was therefore covered by s.11(5) of that Act as a person “not alleged to be unlawfully at large after conviction”.

The House of Lords unanimously dismissed the appeal stating that it was not difficult in this case to conclude that the extradition of this appellant was properly sought as an accused person.

McKinnon (Appellant) v Government of the United States of America (Respondents) and another, [2008] UKHL 59

Wed, 30 Jul 2008 09:18:00 GMT

The appellant is a 42 year old British citizen. In October 2004 the US government requested his extradition to the US alleging that between February 2001 and March 2002 he had gained unauthorised access to 97 US Government computers from his home computer in London.

In May 2006, District Judge Evans sent the appellant’s case to the Secretary of State to decide whether the appellant should be extradited and in July 2006 the Secretary of State ordered the appellant’s extradition. The appellant appealed against the decisions both of the District Judge and of the Secretary of State to the Divisional Court which in April 2007 dismissed both appeals. However, two points of law were certified by the court as being of general public importance and in October 2007 the House granted leave to appeal in respect of the following one of them:

“Is it an abuse of process of extradition proceedings, such that the proceedings should be stayed, and/or an unjustified interference with the defendant’s human rights, for the requesting state to engage in plea bargaining, including a threat to the defendant that, unless he agrees to be extradited, repatriation to the United Kingdom to serve any sentence imposed in the requesting state will not be supported by the prosecuting authority in the requesting state?”

The American prosecutor informed the appellant’s solicitor that he was authorised to offer the appellant a deal in return for not contesting extradition and for agreeing to plead guilty to two of the charges laid against him. He indicated that on this basis, it was likely that a sentence of 3-4 years would be passed and that after serving 6-12 months in the US, the appellant would be repatriated to complete his sentence in the UK. If, however, the appellant chose not to co-operate and was then extradited and convicted, he might expect to receive a sentence of 8-10 years and would not be repatriated to the UK for any part of it. The appellant declined the deal.

The appellant’s main argument focuses on the wide disparity between on the one hand the predicted likely outcome if the appellant cooperated with the US authorities and the threatened likely outcome if the appellant refused to cooperate. Such a disparity, it is submitted, is disproportionate and subjected the appellant to impermissible pressure to surrender his legal rights, particularly his right to contest extradition. Pressure of this kind, it is submitted, runs flatly counter to the principle that a judge may respond to a defendant’s request that he be told the maximum sentence that would be imposed on a plea of guilty but is not to volunteer such information unasked nor to indicate what sentence might be passed on the defendant’s conviction by the jury.

The House of Lords held that, (1) the US prosecuting authority did not attempt to interfere with the due process of the Court; (2) the US prosecuting authority did not place undue pressure on the appellant to forego due legal process in the UK and so disentitle itself from pursuing extradition proceedings; (3) extradition in this case would not violate those fundamental principles of justice which underlie the community’s sense of fair play and decency; and (4) the appellant, following extradition, would not be paying an unconscionable price having insisted on exercising his rights under English law. The disparity between the consequences predicted by the authorities was very marked. However, it was no more appropriate to describe the predicted circumstances of non-co-operation as a “threat” than to characterise the predicted consequences of co-operation as a “promise” or, indeed, a “bribe”. The discount would have to be very substantially more generous than anything promised in this case before it constituted unlawful pressure such as to vitiate the process. So too would the predicted consequences of non-co-operation need to go significantly beyond what could properly be regarded as the defendant’s just desserts on conviction for that to constitute unlawful pressure.

The House of Lords unanimously dismissed the appeal.

McKinnon v The United States of America & Anorr [2008] UKHL 59 (30 July 2008)

Tue, 29 Jul 2008 23:00:00 GMT

The appellant, whose extradition was sought by the respondent state, argued that the disparity between the sentence proposed under plea-bargaining and that which he would receive on conviction was disproportionate, subjected him to impermissible pressure to surrender his legal rights and as such amounted to an abuse of process. HELD: Whilst the disparity between the sentences indicated was very marked, in one sense all discounts for pleas of guilty could be said to subject the defendant to pressure. It would be difficult to envisage anything other than the threat of unlawful action which might have the effect of requiring the accused, notwithstanding his having resisted the undue pressure, to be discharged irrespective of the strength of the case against him. Appeal dismissed.

Caldarelli v Court of Naples [2008] UKHL 51 (30 July 2008)

Tue, 29 Jul 2008 23:00:00 GMT

The appellant appealed the findings of the Courts below that the warrant seeking his return might properly be characterised as an ‘accusation warrant’ for the purposes of the Extradition Act 2003, despite his having been ‘convicted’. HEL:D: Providing as they did for international co-operation between states with different procedural regimes, the Framework Decision and the 2003 Act could not be interpreted on the assumption that procedures which obtained findings of guilt in the United Kingdom were the same elsewhere. An assessment of the evidence regarding procedures in each state may be necessary. On the facts of this case, it was apparent that in Italian procedure, no ‘final judgment’ had been imposed. Appeal dismissed.