JUDGMENT
Norris (Appellant) v Government of United States
of America (Respondent)
before
Lord Phillips, President
Lord Hope, Deputy President
Lord Rodger
Lady Hale
Lord Brown
Lord Mance
Lord Judge
Lord Collins
Lord Kerr
JUDGMENT GIVEN ON
24 February 2010
Heard on 30 November and 1 December 2009
Appellant Respondent
Jonathan Sumption QC David Perry QC
Martin Chamberlain Louis Mably
(Instructed by White &
Case LLP)
(Instructed by Crown
Prosecution Service)
Intervener
Richard Hermer QC
Joseph Middleton
Alex Gask
(Instructed by Liberty)
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LORD PHILLIPS, with whom all the members of the court agree
Introduction
1. A judge who is holding an extradition hearing pursuant to the Extradition
Act 2003 (“the 2003 Act”) is required to consider whether the extradition of the
person against whom the order is sought would be compatible with that person’s
human rights under the Human Rights Act 1998. If not, that person must be
discharged. The issues of principle raised by this appeal relate to the approach that
should be adopted in carrying out this exercise where extradition will interfere
with that person’s right to respect for his private and family life under article 8 of
the European Convention on Human Rights (“the Convention”).
2. Once I have identified these principles, I shall apply those that are relevant
to the case of the appellant, Mr Norris. His extradition is sought by the respondent,
the United States Government (“the Government”), in order that he may be tried
on an indictment charging him with obstruction of justice. His case is that when
the consequences of extradition to the article 8 rights that he and his wife enjoy in
this country are weighed against the public interest in his extradition for what is no
more than an ancillary offence, the interference that this would cause with those
rights cannot be justified. This case was rejected by District Judge Evans and by
the Divisional Court, consisting of Laws LJ and Openshaw J. I shall say no more
about the facts until I have dealt with the issues of principle.
The 2003 Act
3. The 2003 Act created a new extradition regime that was intended to
simplify the process. Under the new regime considerations that were for the
Secretary of State are transferred to the court, and these include the compatibility
of extradition with Convention rights. Part 1 of the 2003 Act deals with extradition
to “Category 1 territories”. These are, in effect, members of the European Union
which operate the European Arrest Warrant. Part 2 deals with extradition to
Category 2 territories that have been designated by order of the Secretary of State.
The United States is a category 2 territory. Under both Part 1 and Part 2 procedures
the appropriate judge has to carry out an extradition hearing at which he considers
whether there exists any of the prescribed statutory bars to extradition. These
include incompatibility with Convention rights. Section 21 in Part 1 and section 87
in Part 2 provide in identical terms that the judge “must decide whether the
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person’s extradition would be compatible with the Convention rights within the
meaning of the Human Rights Act 1998”. If yes, an order for extradition must
follow. If no, the person must be discharged.
4. General provision is made in both Part 1 and Part 2 for circumstances that
may well involve interferences with Convention rights. Section 13 in Part 1 and
section 81 in Part 2 bar extradition by reason of “extraneous considerations” which
might result in discrimination or an unfair trial, in violation of the Convention.
Section 14 in Part 1 and section 82 in Part 2 provide that extradition is barred by
the passage of time if, but only if, this would make extradition appear unjust or
oppressive. Section 91 in Part 2 precludes extradition where it appears to the judge
that the physical or mental condition of the person whose extradition is sought is
such that it would be unjust or oppressive to extradite him. It is not alleged that
any of these provisions applies in the case of Mr Norris.
Extradition treaties
5. Public international law does not impose a general duty upon countries to
accede to requests for extradition. Obligations to extradite arise out of bilateral
treaties. Nonetheless a number of Conventions have been concluded that impose
on states an obligation to extradite or prosecute in respect of certain offences or
which limit the grounds upon which a state can refuse to extradite. These reflect
increasing international cooperation in the fight against crime.
6. The relevant treaty in the present case is the Extradition Treaty of 1972
between the United Kingdom and the United States, for this applies in the case of
any extradition proceedings in which the extradition documents were submitted
before 26 April 2007. On that date a new treaty, the Extradition Treaty of 2003
(Cm 5821) came into force. The extradition documents in this case were submitted
in January 2005.
7. The 1972 Treaty imposes, subject to specified exceptions, mutual
obligations to extradite in respect of offences which carry a sentence of at least 12
months imprisonment in each jurisdiction. Article V (2) of the 1972 Treaty
provides that extradition may be refused on any ground which is specified by the
law of the requested party. Thus the United Kingdom will not be in breach of its
treaty obligations if, by reason of section 87 of the 2003 Act, extradition is refused
on human rights grounds.
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Common ground
8. Article 8 of the Convention provides:
“1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others”
9. The following matters are common ground:
i) In this case, as in most extradition cases, extradition of Mr Norris
from this country will interfere with his exercise in this country of
his right to respect for his private and family life.
ii) This interference will be in accordance with the law.
iii) The critical issue in this case is whether this interference is
“necessary in a democratic society…for the prevention of disorder or
crime”.
iv) Resolving this issue involves a test of proportionality. The
interference must fulfil a “pressing social need”. It must also be
proportionate to the “legitimate aim” relied upon to justify the
interference.
10. The Government contends that the legitimate aim, or pressing social need,
is the honouring of extradition arrangements (an important aspect of the prevention
of crime), that this aim weighs heavily in the scales and that the circumstances in
which interference with article 8 rights will not be proportionate to it will be
exceptional.
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11. Mr Sumption QC for Mr Norris does not challenge this assertion. He
accepts that it will only be in exceptional circumstances that extradition will be
refused on the ground that it involves a disproportionate interference with article 8
rights. He submits, however, that this fact cannot be translated into a legal
principle. The court cannot impose on a person challenging extradition a threshold
requirement of demonstrating that his case is exceptional. He submits that this is
what the Divisional Court did.
The primary issue of principle
12. The primary issue of principle is whether the court can properly require a
person resisting extradition on article 8 grounds to demonstrate exceptional
circumstances. Mr Sumption contends that the Divisional Court erred in doing just
this. His argument is precisely expressed in the following two paragraphs of his
written case:
“19. [The Divisional Court’s] essential error was that they
sought to balance the principle of international cooperation in
enforcing the criminal law, against the respect due to the
private and family life of accused persons. Concluding that
the former was the more potent interest, they held as a matter
of law that the latter could prevail only on facts which were
‘striking or unusual’ or which reached a ‘high threshold’.
Hence the question which they certified as being of general
public importance:
‘Is the public interest in honouring extradition
treaties such as to require, in any extradition
case, that an appellant must show ‘striking and
unusual facts’ or reach ‘a high threshold’ if his
article 8 claim is to succeed?’
The effect is to create a strong presumption against the
application of article 8 in extradition cases, and to require
exceptional circumstances before any objection to extradition
on article 8 grounds can succeed, a proposition which has
been rejected by the House of Lords, following a substantial
body of case law in the European Court of Human Rights.
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20. The correct approach is to balance the public interest in
the extradition of this particular accused against the damage
which would be done to the private or family life of this
particular accused and his family. The court must ask how
much damage will really be done to the orderly functioning of
the system of extradition, or the prevention of disorder or
crime, by declining to extradite Mr. Norris in this case. And
whether that damage is so great as to outweigh the devastating
impact that extradition would have upon the rest of his and his
wife’s life together. These questions must, moreover be
answered with an eye to the fact that the test imposed by
article 8(2) is not whether his extradition is on balance
desirable, but whether it is necessary in a democratic society.”
13. For the Government Mr Perry QC has not sought to challenge the assertion
that the court must not replace the test of proportionality with a test of
exceptionality. His submission has been that the Divisional Court has not done so.
All that it has done is to acknowledge the fact that, in an extradition context, an
article 8 challenge will rarely succeed. This is unobjectionable.
Subsidiary issues of principle
14. A number of subsidiary issues of principle in relation to the application of
the test of proportionality in an extradition case became apparent in the course of
argument. These are as follows:
i) Is the gravity of the crime in respect of which extradition is sought a
relevant factor? Mr Sumption submits that it is and that this weighs
in favour of Mr Norris for, so he submits, the extradition crime in
this case is not a grave one. Mr Perry joins issue with this last
contention, but submits that the gravity of the extradition crime is of
no relevance. The obligation to extradite only arises in respect of
offences which attract at least 12 months’ imprisonment. Subject to
that it matters not whether the person whose extradition is sought is a
thief or a mass murderer.
ii) Do you consider the interference in respect for family rights solely
from the viewpoint of the person whose extradition is sought (“the
extraditee”), or also from the viewpoint of other members of his
family who are affected? Mr Perry submits the former, so that we
should consider only the effect of extradition on Mr Norris. Mr
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Sumption submits the latter, and places particular emphasis on the
effect that Mr Norris’ extradition will have upon his wife.
iii) Is it relevant to consider whether it would be possible to prosecute
the extraditee in the requested state? It has become common to urge
this possibility as a factor that weighs against extradition. It is not
suggested that Mr Norris could be prosecuted in this jurisdiction for
obstructing justice in the United States, so this issue is of no interest
to Mr Sumption. Mr Perry none the less urges us to make it clear that
the possibility of prosecution in the requested state is an irrelevance.
Preliminary observations
15. Before embarking on an analysis of the jurisprudence I would make these
preliminary observations. The jurisprudence often deals with deportation and
extradition without distinguishing between the two. In one context this is
understandable. Usually human rights issues relate to the treatment of an
individual within the jurisdiction of the State whose conduct is under attack
(“domestic cases”). Issues have, however, arisen as to whether, and in what
circumstances, the Convention can be infringed by despatching a person to a
territory where there is a risk that his human rights will not be respected (“foreign
cases”). In considering such issues it may be of no or little relevance whether the
individual in question is facing deportation or extradition. It would, however, be a
mistake to assume that this question is of no relevance in a case such as the
present. This is a domestic case. The family rights that are in issue are rights
enjoyed in this country. The issue of proportionality involves weighing the
interference with those rights against the relevant public interest. The public
interest in extraditing a person to be tried for an alleged crime is of a different
order from the public interest in deporting or removing from this country an alien
who has been convicted of a crime and who has served his sentence for it, or
whose presence here is for some other reason not acceptable. This is a matter to
which I shall return after considering the relevant jurisprudence.
The Strasbourg jurisprudence
16. I propose to follow the development of the Strasbourg jurisprudence in
relation to deportation and extradition with particular reference to the issues raised
on this appeal. The starting point is Soering v United Kingdom (1989) 11 EHRR
439. This was the first case in which the Strasbourg Court recognised that the
Convention could be infringed by sending a person to a country where Convention
rights would be violated. It was an extradition case. The issue was whether the
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United Kingdom would be in breach of the Convention if it extradited the
applicant to Virginia to stand trial for capital murder. The evidence was that, if he
was convicted, the applicant would face up to eight years on death row. This, he
contended, would be inhuman and degrading treatment.
17. The Court accepted this argument. It first made this observation in relation
to the fact that article 1 of the Convention requires each contracting state to secure
the Convention rights for those “within their jurisdiction”.
“86. . . . Article 1 cannot be read as justifying a general
principle to the effect that, notwithstanding its extradition
obligations, a Contracting State may not surrender an
individual unless satisfied that the conditions awaiting him in
the country of destination are in full accord with each of the
safeguards of the Convention. Indeed, as the United Kingdom
Government stressed, the beneficial purpose of extradition in
preventing fugitive offenders from evading justice cannot be
ignored in determining the scope of application of the
Convention and of article 3 in particular.”
18. The Court went on to conclude, however:
“88 . . . It would hardly be compatible with the underlying
values of the Convention, that ‘common heritage of political
traditions, ideals, freedom and the rule of law’ to which the
Preamble refers, were a Contracting State knowingly to
surrender a fugitive to another State where there were
substantial grounds for believing that he would be in danger
of being subjected to torture, however heinous the crime
allegedly committed. Extradition in such circumstances, while
not explicitly referred to in the brief and general wording of
article 3, would plainly be contrary to the spirit and
intendment of the article, and in the Court’s view this inherent
obligation not to extradite also extends to cases in which the
fugitive would be faced in the receiving State by a real risk of
exposure to inhuman or degrading treatment or punishment
proscribed by that article.
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91 In sum, the decision by a Contracting State to extradite a
fugitive may give rise to an issue under article 3, and hence
engage the responsibility of that State under the Convention,
where substantial grounds have been shown for believing that
the person concerned, if extradited, faces a real risk of being
subjected to torture or to inhuman or degrading treatment or
punishment in the requesting country.”
19. In paras 110 and 111 the Court considered an argument advanced on behalf
of Soering that it was relevant that, instead of extraditing him to Virginia, he could
be deported to his own country, Germany, where he could be tried without the risk
of the death penalty or death row conditions. The United Kingdom Government
urged that no such distinction should be drawn. The Court held, nonetheless:
“However, sending Mr Soering to be tried in his own country
would remove the danger of a fugitive criminal going
unpunished as well as the risk of intense and protracted
suffering on death row. It is therefore a circumstance of
relevance for the overall assessment under article 3 in that it
goes to the search for the requisite fair balance of interests and
to the proportionality of the contested extradition decision in
the particular case.
. . .
A further consideration of relevance is that in the particular
instance the legitimate purpose of extradition could be
achieved by another means which would not involve suffering
of such exceptional intensity or duration.” (paras 110, 111)
20. At para 113 the Court dealt with a submission that extradition would also
infringe the applicant’s article 6 rights because he would not be able to obtain legal
assistance in Virginia. The Court held:
“The right to a fair trial in criminal proceedings, as embodied
in Article 6, holds a prominent place in a democratic society.
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The Court does not exclude that an issue might exceptionally
be raised under Article 6 by an extradition decision in
circumstances where the fugitive has suffered or risks
suffering a flagrant denial of a fair trial in the requesting
country. However, the facts of the present case do not disclose
such a risk. ” (emphasis added)
21. In HG v Switzerland (Application No 24698/94) (unreported) given 6
September 1994 the Commission considered the admissibility of a complaint by a
Turkish national that extradition from Switzerland to Turkey to serve a sentence
imposed for kidnapping and raping a 14 year old girl would infringe article 3
because of Turkish prison conditions, article 6 because his trial in Turkey had not
been fair and article 8 because extradition would interfere with respect for his
family life in Switzerland. The Commission held in para 2 that expulsion or
extradition might “in exceptional circumstances” involve a violation of
fundamental rights because of the serious fear of treatment contrary to article 2 or
3 in the requesting country. It further held that an issue might “exceptionally” be
raised under article 6 where a fugitive had suffered or risked suffering “a flagrant
denial of a fair trial” in the requesting state (emphases added). The Commission
held that, on the facts, this was not such a case. It went on to reject the
admissibility of the article 8 claim on the facts.
22. In Raidl v Austria (1995) 20 EHRR CD 114 the Commission once again
considered the admissibility of a claim that extradition to Russia on suspicion of
murder had infringed the applicant’s Convention rights. After finding ill-founded a
complaint based on article 3 the Commission went on to consider the applicant’s
complaint that extradition had interfered with her married life in Austria, thereby
violating her article 8 rights. The Commission held at p 123:
“…the interference with the applicant’s family life was
proportionate to the legitimate aim pursued, given the
seriousness of the crime, of which the applicant was suspected
even before she contracted marriage in Austria.” (emphasis
added)
23. In Launder v United Kingdom (1997) 25 EHRR CD 67 the Commission
considered the admissibility of a complaint that the United Kingdom would violate
articles 2, 3, 5, 6 and 8 if it extradited him to the Hong Kong Special
Administrative Region. In finding the application manifestly ill-founded the
Commission said this in relation to article 8, at para 3:
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“The Commission considers that it is only in exceptional
circumstances that the extradition of a person to face trial on
charges of serious offences committed in the requesting state
would be held to be an unjustified or disproportionate
interference with the right to respect for family life.”
(emphasis added)
24. In Chahal v United Kingdom (1996) 23 EHRR 413 the United Kingdom
had detained Mr Chahal for some six years on the ground that they were taking
action against him with a view to his deportation, this being a justification for
interference with the article 5 Convention right to liberty by virtue of article
5(1)(f). The Government wished to deport him to India because he was suspected
of involvement in terrorism. The Court held that, because of the danger of torture
or inhuman or degrading treatment that he would face if deported, his deportation
would violate article 3. It rejected the contention of the UK Government that the
fact that he posed a risk to the security of the United Kingdom had any relevance
to the assessment of this question. Mr Chahal and his wife and two children, who
joined in his application, also contended that his deportation would violate their
article 8 rights to respect for their family life in the United Kingdom. The Court
held that it had no need to decide this hypothetical question.
25. The principles to be applied when considering the proportionality of
deportation that would interfere with article 8 family rights were first enunciated
by the Court in Boultif v Switzerland (2001) 33 EHRR 1179. The applicant, an
Algerian, had married a Swiss citizen and established a home in Switzerland. He
then committed a robbery for which he received a two year prison sentence. After
he had come out of prison the Swiss authorities refused to renew his residence
permit. This meant that he would have to return to Algeria whither, the Court
found, his wife could not reasonably be expected to follow him. The Court laid
down the following principles:
“46. The Court recalls that it is for the Contracting States to
maintain public order, in particular by exercising their right,
as a matter of well-established international law and subject to
their treaty obligations, to control the entry and residence of
aliens. To that end they have the power to deport aliens
convicted of criminal offences. However, their decisions in
this field must, in so far as they may interfere with a right
protected under paragraph 1 of Article 8, be necessary in a
democratic society, that is to say justified by a pressing social
need and, in particular, proportionate to the legitimate aim
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pursued (see Dalia, cited above, p. 91, § 52, and Mehemi v.
France, judgment of 26 September 1997, Reports 1997-VI, p.
1971, § 34).
47. Accordingly, the Court’s task consists in ascertaining
whether the refusal to renew the applicant’s residence permit
in the circumstances struck a fair balance between the relevant
interests, namely the applicant’s right to respect for his family
life, on the one hand, and the prevention of disorder and
crime, on the other.
48. The Court has only to a limited extent decided cases
where the main obstacle to expulsion is the difficulties for the
spouses to stay together and in particular for a spouse and/or
children to live in the other’s country of origin. It is therefore
called upon to establish guiding principles in order to examine
whether the measure was necessary in a democratic society.
In assessing the relevant criteria in such a case, the Court will
consider the nature and seriousness of the offence committed
by the applicant; the length of the applicant’s stay in the
country from which he is going to be expelled; the time
elapsed since the offence was committed as well as the
applicant’s conduct in that period; the nationalities of the
various persons concerned; the applicant’s family situation,
such as the length of the marriage; and other factors
expressing the effectiveness of a couple’s family life; whether
the spouse knew about the offence at the time when he or she
entered into a family relationship; and whether there are
children in the marriage, and if so, their age. Not least, the
Court will also consider the seriousness of the difficulties
which the spouse is likely to encounter in the country of
origin, though the mere fact that a person might face certain
difficulties in accompanying her or his spouse cannot in itself
exclude an expulsion.”
Applying these principles, the Court found violation of article 8.
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26. In Üner v The Netherlands (2006) 45 EHRR 421 the Grand Chamber
confirmed the principles laid down in Boultif, adding to these at para 58:
“–the best interests and well-being of the children, in
particular the seriousness of the difficulties which any
children of the applicant are likely to encounter in the country
to which the applicant is to be expelled; and
-the solidity of social, cultural and family ties with the host
country and with the country of destination.”
27. The Court then went on to say this:
“59. The Court considered itself called upon to establish
‘guiding principles’ in the Boultif case because it had ‘only a
limited number of decided cases where the main obstacle to
expulsion was that it would entail difficulties for the spouses
to stay together and, in particular, for one of them and/or the
children to live in the other’s country of origin’ . . . . It is to be
noted, however, that the first three guiding principles do not,
as such, relate to family life. This leads the Court to consider
whether the ‘Boultif criteria’ are sufficiently comprehensive to
render them suitable for application in all cases concerning
the expulsion and/or exclusion of settled migrants following a
criminal conviction. It observes in this context that not all
such migrants, no matter how long they have been residing in
the country from which they are to be expelled, necessarily
enjoy ‘family life’ there within the meaning of article 8.
However, as article 8 also protects the right to establish and
develop relationships with other human beings and the outside
world (see Pretty v the United Kingdom, no.2346/02, [61],
ECHR 2002-III) and can sometimes embrace aspects of an
individual’s society identity (see Mikulic v Croatia,
No.53176/99, [53], ECHR 2002-1), it must be accepted that
the totality of social ties between settled migrants and the
community in which they are living constitute part of the
concept of ‘private life’ within the meaning of article 8.
Regardless of the existence or otherwise of a ‘family life’,
therefore, the court considers that the expulsion of a settled
migrant constitutes interference with his or her right to respect
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for private life. It will depend on the circumstances of the
particular case whether it is appropriate for the Court to focus
on the ‘family life’ rather than the ‘private life’ aspect.
60. In the light of the foregoing, the Court concludes that all
the above factors (see [57]-[59]) should be taken into account
in all cases concerning settled migrants who are to be expelled
and/or excluded following a criminal conviction.”
28. Finally I must refer to the decision of the Grand Chamber in Saadi v Italy
(2008) 24 BHRC 123. The United Kingdom intervened in this case in an attempt
to persuade the Grand Chamber to reconsider the principles laid down in Chahal.
The attempt did not succeed. The Grand Chamber held:
“139. The Court considers that the argument based on the
balancing of the risk of harm if the person is sent back against
the dangerousness he or she represents to the community if
not sent back is misconceived. The concepts of ‘risk’ and
‘dangerousness’ in this context do not lend themselves to a
balancing test because they are notions that can only be
assessed independently of each other. Either the evidence
adduced before the Court reveals that there is a substantial
risk if the person is sent back or it does not. The prospect that
he may pose a serious threat to the community if not returned
does not reduce in any way the degree of risk of ill treatment
that the person may be subject to on return. For that reason it
would be incorrect to require a higher standard of proof, as
submitted by the intervener, where the person is considered to
represent a serious danger to the community, since assessment
of the level of risk is independent of such a test.
140. With regard to the second branch of the United Kingdom
Government’s arguments, to the effect that where an applicant
presents a threat to national security, stronger evidence must
be adduced to prove that there is a risk of ill-treatment (see
para 122, above), the Court observes that such an approach is
not compatible with the absolute nature of the protection
afforded by article 3 either. It amounts to asserting that, in the
absence of evidence meeting a higher standard, protection of
national security justifies accepting more readily a risk of illtreatment for the individual. The Court therefore sees no
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reason to modify the relevant standard of proof, as suggested
by the third-party intervener, by requiring in cases like the
present that it be proved that subjection to ill-treatment is
‘more likely than not’. On the contrary, it reaffirms that for a
planned forcible expulsion to be in breach of the Convention
it is necessary – and sufficient – for substantial grounds to
have been shown for believing that there is a real risk that the
person concerned will be subjected in the receiving country to
treatment prohibited by article 3. . .”
Discussion
29. The Strasbourg cases to which I have referred illustrate three different
situations. The first is the foreign case, where the applicant seeks to establish a
breach of the Convention because of the treatment that he fears that he will receive
in the country to which he is to be sent. Here Strasbourg has not differentiated
between extradition and expulsion or deportation. Language has been used
suggesting that it will only be in exceptional circumstances that a foreign case will
involve an infringement of the Convention and that the Convention will only prove
a bar to extradition or deportation where there is a real risk of a flagrant breach of
the Convention. It is not any anticipated breach that will suffice.
30. The second situation is where, in a domestic case, breach of article 8 rights
within the territory of the respondent State is relied upon as a bar to deportation or
expulsion of an alien. Here the Grand Chamber has made it plain that the question
of proportionality is detailed and fact specific. On the one hand the extent to which
the removal of the alien is necessary in the public interest has to be considered
having regard to the facts of the particular case. On the other hand the extent of the
interference with article 8 rights has to receive an equally careful evaluation,
having regard to the facts of the particular case. While it is unusual for an applicant
to be able to make out a case of breach of the Convention in such circumstances, it
is by no means unknown.
31. The third situation is where, in a domestic case, breach of article 8 rights
within the territory of the respondent State is advanced as a bar to extradition.
There is, in fact, no reported case in which such a complaint has succeeded, or
even been held admissible where not joined with other allegations of breach.
32. So far as the subsidiary issues are concerned,
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i) The reasoning of the Court in Soering 11 EHRR 439 and the express
reference to “the seriousness of the crime” in Raidl 20 EHRR CD
114, 123 suggest that the gravity of the crime in respect of which
extradition is sought is capable of being a material factor.
ii) There is no support for the proposition that the Court is solely
concerned with the family rights of the applicant, to the exclusion of
those of other members of the family. On the contrary, at least in
deportation and expulsion cases, the Grand Chamber has made it
clear in Üner 45 EHRR 421 that the interests of children are
particularly material, and there is no reason to conclude that the same
is not true in an extradition case, in so far as family rights weigh in
the balance at all.
iii) The Court in Soering held that the possibility of trying a defendant in
a forum where his fundamental rights will not be at risk can be a
material factor when considering the proportionality of extradition in
the face of a risk to those rights.
The domestic jurisprudence
33. When considering the domestic jurisprudence it is important to distinguish
between the three different categories of case that I have identified in paragraphs
29 to 31 above. It is a failure to do so that has led to the primary issue of principle
in this appeal.
34. I shall start my survey of the domestic cases with three appeals to the House
of Lords that were heard together – R (Ullah) v Special Adjudicator; Do v
Immigration Appeal Tribunal [2004] UKHL 26; [2004] 2 AC 323; R (Razgar) v
Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368.
The appellants in each appeal were unsuccessful asylum applicants who were
resisting removal from the United Kingdom. In Ullah the applicants complained
that in the countries to which they were to be removed their article 9 rights to
practise their religions would be infringed. In Razgar the applicant complained that
in Germany, to which country he was to be removed, he would not receive
appropriate treatment for psychiatric illness from which he suffered, with the
consequence that there would be interference with his article 8 right to respect for
his private life. Thus these were foreign cases; indeed it was on these appeals that
Lord Bingham of Cornhill coined the phrases “domestic cases” and “foreign
cases” that I have adopted in this judgment: see [2004] 2 AC 323, paras 8-9. The
principal issue was whether, in a foreign case, rights other than article 3 could be
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engaged. The House of Lords, applying dicta of the Strasbourg Court, held that
they could.
35. In paragraphs 17 to 20 of Razgar Lord Bingham set out five sequential
questions that an immigration adjudicator should consider in cases where removal
was resisted in reliance on article 8. The fourth was whether interference with the
article 8 right was necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others – these being the criteria of
justification under article 8(2). The fifth question, assuming an affirmative answer
to the fourth question, was whether such interference was proportionate to the
legitimate public end sought to be achieved.
36. Lord Bingham made the following comments on the answers to these
questions:
“19. Where removal is proposed in pursuance of a lawful
immigration policy, question (4) will almost always fall to be
answered affirmatively. This is because the right of sovereign
states, subject to treaty obligations, to regulate the entry and
expulsion of aliens is recognised in the Strasbourg
jurisprudence (see Ullah [2004] 2 AC 323, 339, para 6) and
implementation of a firm and orderly immigration policy is an
important function of government in a modern democratic
state. In the absence of bad faith, ulterior motive or deliberate
abuse of power it is hard to imagine an adjudicator answering
this question other than affirmatively.
20. The answering of question (5), where that question is
reached, must always involve the striking of a fair balance
between the rights of the individual and the interests of the
community which is inherent in the whole of the Convention.
The severity and consequences of the interference will call for
careful assessment at this stage.”
He subsequently added:
Page 18
“Decisions taken pursuant to the lawful operation of
immigration control will be proportionate in all save a small
minority of exceptional cases, identifiable only on a case by
case basis.”
It is not apparent that these observations were restricted to foreign cases. They
appear to have been of general application to cases of immigration control.
37. More generally, so far as there was discussion in these appeals of the
approach to foreign cases, no distinction was drawn between expulsion and
extradition. Indeed, in Ullah at para 13 Lord Bingham held that what he described
as the Soering principle was potentially applicable in either case. He held that in
either case successful invocation of Convention rights in a foreign case required
the satisfaction of a stringent test. Where qualified rights, such as those under
articles 8 and 9, were concerned, it would be necessary to show that there would
be a flagrant denial or gross violation of the right, so that it would be completely
denied or nullified in the destination country – see para 24.
38. In Razgar, at para 42, Baroness Hale of Richmond, emphasised the
distinction between foreign cases and domestic cases. She said:
“The distinction is vital to the present case. In a domestic
case, the state must always act in a way which is compatible
with the Convention rights. There is no threshold test related
to the seriousness of the violation or the importance of the
right involved. Foreign cases, on the other hand, represent an
exception to the general rule that a state is only responsible
for what goes on within its own territory or control. The
Strasbourg court clearly regards them as exceptional. It has
retained the flexibility to consider violations of articles other
than articles 2 and 3 but it has not so far encountered another
case which was sufficiently serious to justify imposing upon
the contracting state the obligation to retain or make
alternative provision for a person who would otherwise have
no right to remain within its territory. For the same reason, the
Strasbourg court has not yet explored the test for imposing
this obligation in any detail. But there clearly is some
additional threshold test indicating the enormity of the
violation to which the person is likely to be exposed if
returned.”
Page 19
I doubt whether, in making these comments, Lady Hale had in mind the question
of whether a threshold test was appropriate in an extradition case.
39. Razgar and Ullah were considered by the Divisional Court in R
(Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200;
(Admin); [2007] QB 727. Among the many points taken by the applicants, who
were resisting extradition to the United States on charges of fraud in relation to the
Enron affair, was a contention that their article 8 rights in respect of family life in
this jurisdiction would be infringed by their extradition. Further infringements of
article 8 rights in the United States were also invoked. Laws LJ, in delivering the
sole judgment, referred to the opinion of Baroness Hale, but doubted whether the
case’s classification as “foreign” or “domestic” would “cast much light on the
stringency of the test for violation of Article 8 which the Court should apply” –
para 115.
40. At para 118 he said this:
“If a person’s proposed extradition for a serious offence will
separate him from his family, article 8(1) is likely to be
engaged on the ground that his family life will be interfered
with. The question then will be whether the extradition is
nevertheless justified pursuant to article 8(2). Assuming
compliance with all the relevant requirements of domestic law
the issue is likely to be one of proportionality: is the
interference with family life proportionate to the legitimate
aim of the proposed extradition? Now, there is a strong public
interest in ‘honouring extradition treaties made with other
states’ (the Ullah case [2004] 2 AC 323, para 24). It rests in
the value of international co-operation pursuant to formal
agreed arrangements entered into between sovereign states for
the promotion of the administration of criminal justice. Where
a proposed extradition is properly constituted according to the
domestic law of the sending state and the relevant bilateral
treaty, and its execution is resisted on article 8 grounds, a
wholly exceptional case would in my judgment have to be
shown to justify a finding that the extradition would on the
particular facts be disproportionate to its legitimate aim.”
Page 20
41. Bermingham is also of relevance to one of the subsidiary issues. The
applicant sought an order that the Director of the Serious Fraud Office should
exercise his statutory powers to investigate the possibility of instituting criminal
proceedings in this jurisdiction, having particular regard to the fact that if the
prosecution took place here the article 8 rights of the defendants would be
protected. The court held that it would not be appropriate to grant such relief.
42. Huang v Secretary of State for the Home Department [2007] UKHL 11;
[2007] 2 AC 167 involved the approach that should be adopted by an appellate
authority to the invocation of article 8 rights by aliens who wished to be permitted
to remain in this country in order to live with members of their families who were
already established here. Thus the appeals involved domestic cases. Mr Nicholas
Blake QC, for Mrs Huang, appears from p 179 of the law report to have suggested
that Razgar had laid down a “truly exceptional” threshold test for the successful
invocation of article 8 rights in the face of deportation, and to have attacked such a
test.
43. In delivering the opinion of the committee Lord Bingham said this about the
question of proportionality, at para 20:
“In an article 8 case where this question is reached, the
ultimate question for the appellate immigration authority is
whether the refusal of leave to enter or remain, in
circumstances where the life of the family cannot reasonably
be expected to be enjoyed elsewhere, taking full account of all
considerations weighing in favour of the refusal, prejudices
the family life of the applicant in a manner sufficiently serious
to amount to a breach of the fundamental right protected by
article 8. If the answer to this question is affirmative, the
refusal is unlawful and the authority must so decide. It is not
necessary that the appellate immigration authority, directing
itself along the lines indicated in this opinion, need ask in
addition whether the case meets a test of exceptionality. The
suggestion that it should is based on an observation of Lord
Bingham in Razgar, para 20. He was there expressing an
expectation, shared with the Immigration Appeal Tribunal,
that the number of claimants not covered by the rules and
supplementary directions but entitled to succeed under article
8 would be a very small minority. That is still his expectation.
But he was not purporting to lay down a legal test.”
Page 21
The final comment has since been treated as an embargo on the application of a
test of exceptionality, not only in domestic immigration cases but in extradition
cases.
44. So far as immigration cases are concerned, the decision in Huang led to a
number of cases being remitted to the Asylum and Immigration Tribunal on the
ground that a test of exceptionality had mistakenly been applied by the Tribunal. In
AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ
801, [2008] 2 All ER 28, a domestic immigration case, Sedley LJ said this about
Huang, at para 25:
“The effect of their Lordships’ decision (and, if we may say
so, the intended effect of this court’s decision) in Huang has
thus not been to introduce a new interpretation of article 8 but
to clarify and reiterate a well understood one. While its
practical effect is likely to be that removal is only
exceptionally found to be disproportionate, it sets no formal
test of exceptionality and raises no hurdles beyond those
contained in the article itself.”
At para 31 Sedley LJ found it necessary to reiterate that there was no legal test of
exceptionality as a surrogate for the article 8 decision. He said:
“The fact that in the great majority of cases the demands of
immigration control are likely to make removal proportionate
and so compatible with article 8 is a consequence, not a
precondition, of the statutory exercise. No doubt in this sense
successful article 8 claims will be the exception rather than
the rule; but to treat exceptionality as the yardstick of success
is to confuse effect with cause.”
45. The first decision to which we have been referred in which Huang was
applied in an extradition context is Jaso v Central Criminal Court No 2 Madrid
[2007] EWHC 2983 (Admin). The Madrid Court had issued European Arrest
Warrants against the three appellants on charges of membership of a criminal
organisation and terrorism. The appellants had unsuccessfully challenged
extradition before the District Judge on a large number of grounds. These included
the contention that extradition would violate articles 3, 5, 6 and 8 of the
Convention. The factual basis for this contention was an allegation that, if
extradited, the appellants would be subject to incommunicado police detention for
up to 5 days. Thus this was a foreign case. The District Judge had applied an
Page 22
exceptionality test and this was attacked before the Divisional Court. Dyson LJ,
when giving the leading judgment, held, applying Huang, that there was no
exceptionality test. He added, however, at para 57:
“It is clear that great weight should be accorded to the
legitimate aim of honouring extradition treaties made with
other states. Thus, although it is wrong to apply an
exceptionality test, in an extradition case there will have to be
striking and unusual facts to lead to the conclusion that it is
disproportionate to interfere with an extraditee’s article 8
rights.”
46. Jaso was followed by Richards LJ, when giving the leading judgment in the
Divisional Court in Tajik v Director of Public Prosecutions and Government of the
United States of America [2008] EWHC 666 (Admin). He said at para 156:
“What is said in Jaso about the need for ‘striking and unusual
facts’ to lead to the conclusion that extradition would be
disproportionate does not constitute a separate legal test but
recognises the practical reality that article 8 will rarely
provide a ground for refusing extradition”
47. The final decision to which I should refer is R (Wellington) v Secretary of
State for the Home Department [2008] UKHL 72; [2009] 1 AC 335. The appellant was
resisting extradition to Missouri on charges which included two counts of murder
in the first degree. He contended that, if convicted, 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 House unanimously dismissed his appeal. A
majority of the House held that 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. This has
proved a controversial finding, but this is not an occasion on which it would be
appropriate to review it. The case underlines the weight that the desirability of
extradition carries as an essential element in combating public disorder and crime.
Page 23
The judgment of the Divisional Court.
48. In giving the judgment of the Divisional Court in this case [2009] EWHC
995 (Admin), Laws LJ followed the approach of that court in Jaso and Tajik. He
said:
“21 … the learning, here and in Strasbourg, shows that the
public interest in giving effect to bilateral extradition
arrangements possesses especially pressing force because of
its potency (a) in the fight against increasingly globalised
crime, (b) in the denial of safe havens for criminals, and (c) in
the general benefits of concrete co-operation between States
in an important common cause. The gravity of the particular
extradition crime may affect the weight to be attached to these
factors, but because they are of a strategic or overarching
nature, the public interest in extradition will always be very
substantial. Accordingly the claim of a prospective extraditee
to resist his extradition on article 8 grounds must, if it is to
succeed, possess still greater force. That is why there must be
‘striking and unusual facts’ (Jaso), and ‘in practice a high
threshold has to be reached’ (Tajik).
22. That is how the balance between the public interest and
the individual’s right, inherent in the whole of the Convention,
is to be struck where an article 8 claim is raised in an
extradition case. Their Lordships in Huang disapproved the
application of a test of ‘exceptionality’ as the means of
striking the balance; though it is perhaps not without interest
that the European Commission of Human Rights stated in
Launder v United Kingdom (1997) 25 EHRR CD 67 that ‘[I]t
is only in exceptional circumstances that the extradition of a
person to face trial on charges of serious offences committed
in the requesting State would be held to be an unjustified or
disproportionate interference with the right to respect for
family life.’ The formulations in Jaso and Tajik show that
what was sought, incorrectly, to be gathered in a test of
‘exceptionality’ is correctly reflected in a recognition of the
force of the public interest in giving effect to a properly
founded extradition request: a recognition, that is to say, of
the relevant article 8(2) considerations (which in my judgment
find concrete form in the three public benefits I have set out at
paragraph 21).”
Page 24
49. Mr Sumption submitted in his written case that this reasoning embodied
three fundamental errors:
i) Whilst purporting to abjure any test of exceptionality, in effect it
applied just such a test.
ii) It subordinated a fact-sensitive assessment of the interest in
extradition in the individual case to a categorical assumption about
the importance of that interest generally.
iii) It relied upon a sentence from the Commission’s decision in Launder
when this had never been approved or followed by the Strasbourg
Court and was inconsistent with the Court’s approach in article 8
deportation cases.
Discussion
50. It was a fundamental premise of Mr Sumption’s submissions that, when
considering the impact of article 8, the Court should adopt a similar approach in an
extradition case as that to be adopted in a case of deportation or expulsion. He
drew our attention to the fact that in France the Conseil d’Etat certainly does not
do this. In a deportation case, the Conseil d’Etat now has regard to the human
rights implications – see Abraham, R. La Convention europeenne des droits de
l’homme et les measures d’eloignement d’etrangers” (1991) Rev fr Droit adm,
497. So far as extradition is concerned, however, the Conseil d’Etat considers that,
as a matter of principle extradition justifies any interference with article 8 rights
that may be involved – see De Deus Pinto, CE, ass, 8 October 1999. Mr Sumption
submitted that the latter stance was incompatible with the Strasbourg
jurisprudence.
51. I agree that there can be no absolute rule that any interference with article 8
rights as a consequence of extradition will be proportionate. The public interest in
extradition nonetheless weighs very heavily indeed. In Wellington the majority of
the House of Lords held that the public interest in extradition carries special
weight where article 3 is engaged in a foreign case. I am in no doubt that the same
is true when considering the interference that extradition will cause in a domestic
case to article 8 rights enjoyed within the jurisdiction of the requested State. It is
certainly not right to equate extradition with expulsion or deportation in this
context.
Page 25
52. It is of critical importance in the prevention of disorder and crime that those
reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced.
Extradition is part of the process for ensuring that this occurs, on a basis of
international reciprocity. It is instructive to consider the approach of the
Convention to dealing with criminals or suspected criminals in the domestic
context. Article 5 includes in the exceptions to the right to liberty (i) the arrest of a
suspect, (ii) his detention, where necessary, pending trial, and (iii) his detention
while serving his sentence if convicted. Such detention will necessarily interfere
drastically with family and private life. In theory a question of proportionality
could arise under article 8(2). In practice it is only in the most exceptional
circumstances that a defendant would consider even asserting his article 8 rights by
way of challenge to remand in custody or imprisonment– see R (P) v Secretary of
State of the Home Department [2001] EWCA Civ 1151, [2001] 1 WLR 2002, para
79, for discussion of such circumstances. Normally it is treated as axiomatic that
the interference with article 8 rights consequent upon detention is proportionate.
53. Massey v United Kingdom (Application No 14399/02) (unreported) given 8
April 2003 illustrates this proposition. The applicant complained, inter alia, that
criminal proceedings and a sentence of six years imprisonment constituted an
unwarranted interference with his family life and his children’s right to a father. In
ruling the complaint inadmissible, the court held:
“The Court recalls that article 8.2 permits interference with an
individual’s right to respect for his private and family life in
certain circumstances. The Court considers that the bringing
of criminal proceedings and the imposition of a punishment
following conviction fall within these exceptions since they
are in accordance with the law and pursue . . . legitimate aims,
namely, public safety, the prevention of disorder and crime
and protection of the rights and freedoms of others. The Court
therefore concludes that the prosecution and imprisonment of
the applicant does not raise any issues under article 8 of the
Convention.”
54. There is an analogy between the coercion involved in extradition and the
coercion involved in remanding in custody a prisoner reasonably suspected of
wishing to abscond. In either case the coercion is necessary to ensure that the
suspect stands his trial. Each is likely to involve a serious interference with article
8 rights. The dislocation of family life that will frequently follow extradition will
not necessarily be more significant, or even as significant, as the dislocation of
family life of the defendant who is remanded in custody. It seems to me that, until
Page 26
recently, it has also been treated as axiomatic that the dislocation to family life that
normally follows extradition as a matter of course is proportionate. This perhaps
explains why we have been referred to no reported case, whether at Strasbourg or
in this jurisdiction, where extradition has been refused because of the interference
that it would cause to family life.
55. I reject Mr Sumption’s contention that it is wrong for the court, when
approaching proportionality, to apply a “categorical assumption” about the
importance of extradition in general. Such an assumption is an essential element in
the task of weighing, on the one hand, the public interest in extradition against, on
the other hand, its effects on individual human rights. This is not to say that the
latter can never prevail. It does mean, however, that the interference with human
rights will have to be extremely serious if the public interest is to be outweighed.
56. The reality is that only if some quite exceptionally compelling feature, or
combination of features, is present that interference with family life consequent
upon extradition will be other than proportionate to the objective that extradition
serves. That, no doubt, is what the Commission had in mind in Launder 25 EHRR
CD 67, 73 when it stated that it was only in exceptional circumstances that
extradition would be an unjustified or disproportionate interference with the right
to respect for family life. I can see no reason why the District Judge should not,
when considering a challenge to extradition founded on article 8, explain his
rejection of such a challenge, where appropriate, by remarking that there was
nothing out of the ordinary or exceptional in the consequences that extradition
would have for the family life of the person resisting extradition. “Exceptional
circumstances” is a phrase that says little about the nature of the circumstances.
Instead of saying that interference with article 8 rights can only outweigh the
importance of extradition in exceptional circumstances it is more accurate and
more helpful, to say that the consequences of interference with article 8 rights must
be exceptionally serious before this can outweigh the importance of extradition. A
judge should not be criticised if, as part of his process of reasoning, he considers
how, if at all, the nature and extent of the impact of extradition on family life
would differ from the normal consequences of extradition.
57. These considerations are reflected in the judgment of Laws LJ in this case
and the attack made on that judgment by Mr Sumption is not justified.
58. What general approach to human rights should the District Judge adopt at
the extradition hearing? My comments in relation to this question should not be
Page 27
treated as laying down a course that the judge is bound to follow. They are no
more than advisory.
59. Mr Hermer QC, who appeared for Liberty as intervener, submitted that the
judge should not start with consideration of the case for extradition, before turning
to ask whether this was outweighed by the impact that extradition would have on
article 8 rights. This approach was “the wrong way round”. The judge should first
consider the effect of the proposed extradition on the article 8 rights, before going
on to consider whether such interference could be justified. The decision in each
case should turn upon its individual facts.
60. Mr Hermer’s submissions did not recognise any difference between
extradition and expulsion or deportation. I did not find them either realistic or
helpful.
61. The 2003 Act specifies those matters that the extradition judge has to
consider. Before considering any objections to extradition, he has to consider
whether the statutory requirements for extradition have been satisfied. This
requires the judge to consider, among other things, the offence or offences in
respect of which extradition is sought. These must carry a minimum sentence of at
least 12 months’ imprisonment, but this leaves scope for a very wide variation in
the seriousness of the offence or offences that are alleged to have been committed.
62. The judge then has to consider a considerable number of possible statutory
barriers to extradition. These include the matters that might violate human rights to
which I have referred at para 4 above. It is only after he has done this that the
judge has to consider whether extradition will be compatible with Convention
rights pursuant to section 87 of the 2003 Act. This is a fact-specific exercise, and
the judge must have regard to the relevant features of the individual case. It is at
this point that it is legitimate for the judge to consider whether there are any
relevant features that are unusually or exceptionally compelling. In the absence of
such features, the consideration is likely to be relatively brief. If, however, the
nature or extent of the interference with article 8 rights is exceptionally serious,
careful consideration must be given to whether such interference is justified. In
such a situation the gravity, or lack of gravity, of the offence may be material.
63. I do not accept Mr Perry’s submission that the gravity of the offence can
never be of relevance where an issue of proportionality arises in the human rights
Page 28
context. The importance of giving effect to extradition arrangements will always
be a significant factor, regardless of the details of the particular offence. Usually
the nature of the offence will have no bearing on the extradition decision. If,
however, the particular offence is at the bottom of the scale of gravity, this is
capable of being one of a combination of features that may render extradition a
disproportionate interference with human rights. Rejecting an extradition request
may mean that a criminal never stands trial for his crime. The significance of this
will depend upon the gravity of the offence. This obvious fact has been recognised
at Strasbourg (see para 32 above).
64. When considering the impact of extradition on family life, this question
does not fall to be considered simply from the viewpoint of the extraditee. On this
subsidiary issue also I reject Mr Perry’s submission to the contrary. This issue was
considered by the House of Lords in the immigration context in Beoku-Betts v
Secretary of State for the Home Department [2008] UKHL 39; [2009] AC 115.
After considering the Strasbourg jurisprudence the House concluded that, when
considering interference with article 8, the family unit had to be considered as a
whole, and each family member had to be regarded as a victim. I consider that this
is equally the position in the context of extradition.
65. Indeed, in trying to envisage a situation in which interference with article 8
might prevent extradition, I have concluded that the effect of extradition on
innocent members of the extraditee’s family might well be a particularly cogent
consideration. 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 Act.
66. At this point I will deal with the other subsidiary issue of principle that has
been raised – is it of relevance when considering proportionality that a prosecution
for the extradition offence might be brought in the requested jurisdiction? As I
have pointed out, the Strasbourg Court gave a positive answer to this question in
Soering 11 EHRR 439. There has recently been a spate of cases in which the
extraditee has argued that he ought to be prosecuted in this jurisdiction, of which
Bermingham [2007] QB 727 was but one. The most recent was R(Bary) v
Secretary of State for the Home Department [2009] EWHC 2068 (Admin).
References to the others can be found at para 72 of the judgment in that case. In
each one the argument was rejected.
Page 29
67. 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 this
jurisdiction be capable of tipping the scales against extradition in accordance with
this country’s treaty obligations. Unless the judge reaches the conclusion that the
scales are finely balanced he should not enter into an enquiry as to the possibility
of prosecution in this country.
Application of the principles to the facts of this case
68. Human rights are in issue and it is for this court to reach its own decision as
to whether Mr Norris’ extradition would be compatible with his article 8 rights.
69. This is the second occasion on which this matter has reached the highest
court in this jurisdiction. Mr Norris is a British national, born on 15 February
1943. He retired owing to ill-health in 2002. For some four years before he had
been Chief Executive Officer of Morgan Crucible plc (“Morgan”) and he had
worked in the carbon division of that company for 29 years before then. Morgan
and its subsidiaries became involved in the United States in price-fixing that was
contrary to the law of the United States. Criminal proceedings in the United States
resulted in a plea bargain under which Morgan paid a fine of $1 million and one of
its subsidiaries paid a fine of $10 million. Most of Morgan’s senior personnel were
granted immunity from prosecution but these did not include Mr Norris.
70. On 28 September 2004 Mr Norris was indicted by a Grand Jury in
Pennsylvania on one charge of price-fixing and three charges of obstructing
justice. Extradition proceedings were commenced which he resisted on grounds,
among others, that the conduct with which he was charged was not criminal under
English law. So far as the price-fixing charge was concerned, this contention
succeeded, but only when the matter reached the House of Lords – Norris v
Government of the United States of America [2008] UKHL 16; [2008] AC 920.
The House held, however, that the conduct alleged in relation to the charges of
obstructing justice would have been criminal if carried out in this jurisdiction and
that, accordingly, those offences were extraditable. The House remitted the matter
for reconsideration by the District Judge because:
“ …he exercised his judgment on a basis different from that
which now pertains, namely that Mr Norris was to be
Page 30
extradited on the main price fixing count, and not merely the
subsidiary counts.” (Para 110).
Mr Sumption fastened on this passage and submitted in his written case that “the
main stuffing of the case against” Mr Norris had been knocked out by the decision
of the House.
71. As to that submission I would simply comment that there is plenty of
stuffing left. The gravamen of the case of obstructing justice appears in the
following passages of the judgment of Auld LJ in the earlier proceedings – Norris
v Government of the United States of America (Goldshield Group plc intervening)
[2007] EWHC 71 (Admin); [2007] 1 WLR 1730 – based on a deposition of Lucy
P.McClain, a trial attorney for the antitrust division of the US Department of
Justice:
“12. . . . Mr Norris instructed, through a ‘task force’ he set up
for the purpose, all Morgan entities involved in the price
fixing conspiracy to remove, conceal or destroy any
documentary material, in particular Morgan’s sales files in
Europe, evidencing Morgan’s involvement in the conspiracy.
He also instructed the retention and concealment of certain
documents to enable Morgan to continue monitoring the
working of the conspiracy.
13. In about November 1999 Mr Norris met several of the coconspirators in England to discuss the United States
authorities’ investigation into their conspiratorial dealings and
meetings, and to devise a false explanation, other than price
fixing, to be put to the authorities for the meetings. As Ms
McClain put it in her affidavit:
‘Norris and his subordinates… discussed ways in which they
could conceal the true purpose of the price fixing meetings
when asked about them. They decided to falsely characterise
their meetings with competitors as discussions of legitimate
joint ventures rather than disclose the fact that they were price
fixing meetings. Norris expressed his concern that the United
States investigators would not believe Morgan’s false
explanation that the meetings were held to discuss joint
ventures, in part because Morgan had no contemporaneous
Page 31
notes of the meetings to support its joint venture explanation.
Norris then directed his subordinates to create false
summaries of the price fixing meetings that they would use as
a guide or script in answering any future questions about what
had occurred at their meetings.’
14. To that end, a ‘script’ was prepared which Mr Norris
approved, of false information as to the purpose of the
meetings for use in the event of any of the Morgan staff or
others involved in the conspiracy being questioned by the
authorities or by the federal grand jury. Those provided with
the script were rehearsed and questioned about their
recollection of the material contained in it. Those who Mr
Norris felt would not be able to withstand questioning, he
distanced from Morgan by arranging for their retirement or
for them to become consultants. In January 2001 false
handwritten summaries of potentially incriminating meetings
were provided to the United States’ authorities’ investigators,
who made plain they regarded Morgan’s accounts of the
meetings as false.
15. At or about the same time, Morgan sought to persuade a
German company alleged to be a party to the conspiracy, to
support it in its false representations to the United States
authorities so as, not only to exculpate Morgan, but also to
cast blame on a French company, also alleged to be a party to
the conspiracy – a solicitation in which Mr Norris took a
prominent and personal role.”
72. Laws LJ rightly observed [2009] EWHC 995 (Admin), para 29 that the
obstruction of justice charges, taken at their face value, were very grave indeed.
The evidence is that, if Mr Norris is convicted, the conduct in question is likely to
attract a sentence of between 21 and 27 months imprisonment. There is a
possibility that the sentence will be significantly longer in order to reflect the
gravity of the conduct that the obstruction of justice was designed to conceal.
73. If Mr Norris is extradited a year or more is likely to elapse before his trial.
It is possible that the Department of Justice would oppose the grant of bail before
and during the trial. If convicted he might be imprisoned in a low security “Federal
Correctional Institution” with dormitory or cubicle accommodation.
Page 32
74. There is a considerable body of medical evidence before the court, as there
was before the Divisional Court, and I shall adapt and adopt the careful summary
of that evidence made by Laws LJ.
75. Mr Norris is now 66 years of age. He and his wife were married in 1966.
They have two sons and three grandchildren. The US Department of Justice
investigation began in 1999. In 2000 Mr Norris was diagnosed as suffering from
prostate cancer and underwent surgery in March 2001. He contracted MRSA in the
hospital. A benign tumour was removed from his side in June 2002. He was not,
however, free of cancer and had to undergo radiotherapy in 2002. He retired from
Morgan on health grounds in October of that year. Towards the end of the same
year Morgan struck a plea agreement with the Department of Justice, but it did not
include the appellant. The extradition process effectively commenced in 2005,
with the appellant’s arrest on 13 January. In her first witness statement (made on
27 April 2005) Mrs Norris describes with some eloquence the deteriorating quality
of life which she and her husband faced as these events crowded around them. In
her second statement (30 May 2008) she paints a worsening picture, and also states
(paragraph 8) that if the appellant had to spend any length of time in custody in the
United States her psychiatric condition would prevent her from re-locating there,
where the only people she knows are connected with Morgan, and they are
prohibited by the terms of the plea bargain from speaking to her or her husband.
76. In a letter of 20 April 2005 to Mr Norris’s solicitors Dr Jones, his general
practitioner, reviewed the prostate cancer history, as regards which he could not
say there had been a complete recovery, and the onset of other problems: raised
blood pressure and shortness of breath. In October 2006 Dr Jones described
difficulties relating to the appellant’s hearing, left knee, right hip, incontinence and
a recently developed hernia. He stated that “[t]he legal problems Mr Norris has
been having during the past 2 – 3 years have had a devastating effect upon him and
his family”. By 7 February 2007, when the GP next wrote, the appellant’s mental
state had deteriorated. His powers of concentration were poor, he had marked
short-term memory loss, was depressed and tended to shut himself away. He was
anxious about his wife’s psychological state. His physical problems largely
persisted although his blood pressure was normal. He and his wife were “at the end
of their tether”. By 23 May 2008, when the GP next reported, the appellant was
registered disabled and had had a total left knee replacement. Dr Jones was
anxious as to his mental state and arranged for him and his wife to see a
psychologist.
77. There are in fact psychiatric reports on both Mr Norris and his wife which
pre-date the GP’s May 2008 letter. Professor Tom Fahy provided these on 15
Page 33
February 2007. In his report on Mr Norris he states that when he interviewed him,
he “presented a normal mental state”. However,
“Although Mr Norris’ current symptoms fall short of a formal
psychiatric diagnosis, it is reasonable to assume that his
symptoms would deteriorate in the face of imminent
extradition, actual extradition, conviction and/or
imprisonment in the US.”
78. Professor Fahy reported again on 27 May 2008. He stated that
“Mr Norris’ mental health has deteriorated since I saw him in
February 2007. He is now describing more prominent
symptoms of low mood, loss of interest and pleasure in his
usual activities and feelings of helplessness and pessimism
about his life situation.”
However,
“Mr Norris’ mood disturbance is not persistent or severe
enough to warrant a diagnosis of a depressive illness.”
Finally,
“There is no serious prospect of this situation improving for
him until the legal situation is resolved, though if he were to
be extradited, it is likely that imprisonment and isolation from
his family would lead to a further deterioration in his mental
health and the development of more significant depressive
symptoms.”
79. Mrs Norris’ state of health is described in a report dated 19 June 2008 from
Michael Kopelman, who is a professor of neuropsychiatry at King’s College
London and St Thomas’s Hospital. He saw both Mr and Mrs Norris on 9 June
2008, and interviewed them separately and together. Mrs Norris told him she had
Page 34
had suicidal ideas, panic attacks and palpitations. Mr Norris told him there had
been a “total change” in his wife’s personality. Professor Kopelman opined that
Mrs Norris suffered from a “major depression of moderate severity” or a
“moderate depressive episode” (depending on which set of criteria was used). Its
severity was however difficult to evaluate: she was able to maintain at least some
social activities, but was a person who the doctor suspected was “good at hiding
her real emotions”. He concluded (Opinion, paragraph 6):
“I have no doubt that the prolonged and more serious nature
of Mrs Norris’s current depression results from the prolonged
extradition proceedings… To this extent, the continuing nature
of these extradition proceedings has caused Mrs Norris
‘hardship’ in the sense of severe psychological suffering and
mental deterioration. I have no doubt that this would be
greatly worsened, were her husband to be extradited.”
80. Mr Sumption submits that Mr and Mrs Norris’ poor health, together with
the length and closeness of their marriage, has made them highly dependent on
each other. This and their advancing years, make them less resilient to the
separation that Mr Norris’ extradition would involve. It was originally Mrs Norris’
intention to accompany her husband to the United States should he be extradited,
but in a witness statement that she made last year she says that she cannot now
contemplate going to the US to live on her own there without friends and family
support. Because Mrs Norris will not accompany her husband to the United States,
the interruption to their family life should he be remanded in custody, and during
his imprisonment, should he be convicted, will be total. This contrasts with the
position that would have prevailed had Mr Norris been imprisoned in this country,
where visiting rights enable the family relationship to be preserved.
81. Mr Sumption contends that Mr Norris’ extradition in these circumstances
cannot be said to represent a proportionate answer to a “pressing social need”. Nor,
he argues, can it plausibly be said that the prevention of crime or the orderly
functioning of extradition are public interests which will suffer substantial damage
if someone in the particular position of Mr Norris is not extradited. The
Government has argued that not to extradite Mr Norris would damage the principle
of automatic, or virtually automatic, extradition, but no such principle exists.
82. In a case such as this it is the exception that proves the rule. One has to
consider the effect on the public interest in the prevention of crime if any
defendant with family ties and dependencies such as those which bind Mr Norris
Page 35
and his wife was thereby rendered immune from being extradited to be tried for
serious wrongdoing. The answer is that the public interest would be seriously
damaged. It is for this reason that only the gravest effects of interference with
family life will be capable of rendering extradition disproportionate to the public
interest that it serves. This is not such a case. Unhappily the delay that has been
caused by Mr Norris’ efforts to avoid extradition to the United States has increased
the severity of the consequences of that extradition for his family life. But those
consequences do not undo the justification that exists for that interference.
83. For these reasons I would dismiss this appeal.
Postscript
84. On the eve of delivering judgment in this case the court received the report
of the admissibility decision in King v United Kingdom Application No. 9742 /07.
In holding Mr King’s application in relation to his extradition to Australia
manifestly ill-founded the Court at para 29 followed Launder in expressing the
view, mindful of the importance of extradition arrangements between States in the
fight against crime (and in particular crime with an international or cross-border
dimension),
“…that it will only be in exceptional circumstances that an
applicant’s private or family life in a Contracting State will
outweigh the legitimate aim pursued by his or her extradition”
Referring to the fact that the applicant had a wife, two young children and a
mother in the United Kingdom whose ill-health would not allow her to travel to
Australia the Court remarked that this was, in its view, not an exceptional
circumstance.
85. This decision does not alter my view that it is more helpful, when
considering proportionality, to consider whether the consequences of interference
with article 8 rights are exceptionally serious rather than simply whether the
circumstances are exceptional. Either test is, however, likely to produce the same
result and the decision demonstrates the futility of attempting to found an appeal
on the basis that there has been inappropriate use of a test of exceptionality.
Page 36
86. The court also cited Soering in support of the proposition that the
considerations of whether prosecution exists as an alternative to extradition may
have a bearing on whether extradition would be in violation of a Convention right.
I remain of the view that rarely, if ever, is this possibility likely in practice to tilt
the scales against extradition and it certainly does not do so in this case.
LORD HOPE
87. It would not be right to say that a person’s extradition can never be
incompatible with his right to respect for his family life under article 8 of the
European Convention on Human Rights. But resisting extradition on this ground is
not easy. The question in each case is whether it is permitted by article 8(2).
Clearly some interference with the right is inevitable in a process of this kind,
which by long established practice is seen as necessary in a democratic society for
the prevention of disorder or crime. That aim extends across international
boundaries, and it is one which this country is bound by its treaty obligations to
give effect to. In this case extradition will be in accordance with the law, as the
preconditions for Mr Norris’s lawful extradition have all been satisfied. So, as Mr
Sumption QC made clear in his opening remarks, the issue is entirely one of
proportionality. This, as he said, is a fact-specific issue. He submitted that in the
circumstances of this case extradition would be a violation of the article 8 right.
88. Mr Sumption challenged the government’s assertion that the circumstances
in which the interference with article 8 rights would not be proportionate will be
exceptional. In para (2) of a closing memorandum on law which he provided to the
District Judge and made available to the court on the second day of the argument
he said that it was not necessary to show exceptional circumstances in order to
make out a case for refusing extradition. He referred to Huang v Secretary of State
for the Home Department [2007] 2 AC 167, para 20, where Lord Bingham of
Cornhill said that “exceptionality” was not a legal test. Applying that observation
to this case, he added that the law recognises that the balance will not necessarily
come down in favour of extradition, and that it would not be right to treat the test
as a rule of thumb with substantially the same effect. In oral argument he said that
there was no such threshold that had to be crossed. As it was put in Haung, this
may be the expectation but it is not a legal test. The phrase “only in exceptional
circumstances” was used by the Commission in Launder v United Kingdom (1997)
25 EHRR CD 67, but he said that this was an early decision and it had not been
adopted by the Strasbourg Court in its later case law.
Page 37
89. I agree that exceptionality is not a legal test, and I think that it would be a
mistake to use this rather loose expression as setting a threshold which must be
surmounted before it can be held in any case that the article 8 right would be
violated. As Lord Phillips has observed, the phrase “exceptional circumstances”
says little about the nature of the circumstances: para 56, above. It tends to favour
maintaining the integrity of the system as the primary consideration rather than
focusing on the rights of the individual. It risks diverting attention from a close
examination of the circumstances of each case. Although in its admissibility
decision in King v United Kingdom, Application No 9742/07, 26 January 2010, it
followed the Commission’s decision in Launder in using the phrase “exceptional
circumstances”, decisions of the Strasbourg court have repeatedly shown that an
intense focus on the rights of the individual is necessary when striking the balance
that proportionality requires. I do not think that there are any grounds for treating
extradition cases as falling into a special category which diminishes the need to
examine carefully the way the process will interfere with the individual’s right to
respect for his family life.
90. Huang v Secretary of State for the Home Department was a domestic case
where article 8 was relied on as a bar to expulsion, but I think that Lord Bingham’s
statement that exceptionality is not a legal test can be applied to extradition cases
too. In R (Ullah) v Special Adjudicator [2004] 2 AC 323, para 13, he said that,
while there were substantive differences between expulsion and extradition, the
Strasbourg court had held the Soering principle to be potentially applicable in
either situation: Cruz Varas v Sweden (1991) 14 EHRR 1, para 70. Lord Steyn said
in para 33 that, while the purpose of the two procedures was different, in the
context of the possible engagement of fundamental rights under the ECHR the
Strasbourg court has not in its case law drawn a distinction between cases in the
two categories. I would apply that approach to this case.
91. The fact remains however that the cases in which an argument of the kind
that Mr Sumption sought to present will succeed are likely to be very few. I agree
with Lord Phillips that the reality is that it is only if some exceptionally compelling
feature, or combination of features, is present that the interference with the article
8 right that results from extradition will fail to meet the test of proportionality. The
public interest in giving effect to a request for extradition is a constant factor, and
it will always be a powerful consideration to which great weight must be attached.
The more serious the offence the greater the weight that is to be attached to it. As
against that, those aspects of the article 8 right which must necessarily be
interfered with in every case where criminal proceedings are brought will carry
very little, if any, weight; Massey v United Kingdom (Application No 14399/02)
(unreported) given 8 April 2003, p 12. Separation by the person from his family
life in this country and the distress and disruption that this causes, the extent of
which is bound to vary widely from case to case, will be inevitable. The area for
Page 38
debate is likely to be narrow. What is the extra compelling element that marks the
given case out from the generality? Does it carry enough weight to overcome the
public interest in giving effect to the request?
92. In the present case extradition is sought on charges of obstructing justice.
These are serious charges because of the methods that are said to have been used
and the nature of the alleged conduct, and there is a strong public interest in giving
effect to the treaty obligation so that they can be properly dealt with. It was
submitted that extradition in this case would cause disproportionate damage to Mr
and Mrs Norris’s physical or psychological integrity, having regard to their state of
health, their age and the likely effect of the separation that extradition will impose
on them. Added to that is the fact that Mr Norris has had this process hanging over
him for three years, much of which has been due to his successful challenge to his
extradition on the charges of price-fixing. The effect of the delay is that he and his
wife are that much older than they otherwise would have been, and this will make
it all the more difficult for them to adapt to the consequences. Mr Sumption invited
the court to avoid short cuts and to pay close attention to all the relevant facts in its
assessment.
93. The only circumstance which strikes me as not inherent in every extradition
process is the delay. Otherwise the issues that are raised in this case are really
questions of degree. Distressing the process of separation will undoubtedly be, and
I am conscious of the extra element of hardship which will arise because of the
state of health of the parties. Due to their age, and especially to Mrs Norris’s
psychological condition, this is greater than it would normally be, but in my
opinion not excessively so. Mr Norris is fit to travel and he is fit to stand trial. His
family life must, for the time being, take second place. The delay is unusually long
due to the time it took for Mr Norris to assert his legal rights in regard to the
charges of price fixing. Its effect has been to increase the element of hardship. Had
the remaining charges been less serious this might perhaps have been sufficient to
tip the balance in Mr Norris’s favour. But allegations of an attempt to obstruct the
course of justice must always be taken very seriously, and I see no grounds for
making an exception in this case. In view of the strong public interest in giving
effect to the respondents’ request so that these charges can be brought to trial in
the jurisdiction that is best equipped to deal with them, I do not think that it is
possible to say that Mr Norris’s extradition on these charges would be
disproportionate.
94. For these reasons, and those which Lord Phillips has given with which I am
in full agreement, I agree that the appeal should be dismissed.
Page 39
LORD BROWN
95. I agree entirely with the judgment of Lord Phillips on this appeal. For the
reasons he gives it will be only in the rarest cases that article 8 will be capable of
being successfully invoked under section 87 of the Extradition Act 2003. As Lord
Phillips observes (at para 82):
“[O]nly the gravest effects of interference with family life will
be capable of rendering extradition disproportionate to the
public interest that it serves.”
Paragraph 65 of his judgment instances a rare case where the “defence” might
succeed. It is difficult to think of many others, particularly where, as here, the
charges are plainly serious.
96. It is important to understand the difference between the public interests
under consideration by Strasbourg in the Boultif v Switzerland (2001) 33 EHRR
1179 and Üner v The Netherlands (2006) 45 EHRR 421 line of cases, upon which
so much of the appellant’s argument rested, and those involved in extradition.
True, the ECtHR describes this interest as “the prevention of disorder or crime”
but this is always in the specific context of “the expulsion and/or exclusion of
settled migrants following a criminal conviction” (Üner paras 59 and 61). Those
invoking article 8 rights in such cases have already been convicted and punished
for their crimes. Decisions to expel or exclude are taken essentially in the interests
of a sovereign state’s right to regulate the entry and expulsion of aliens, besides, of
course, the interests of deterring immigrants generally from crime. The public
interests in extradition, however, are altogether more compelling. I fully share
Lord Phillips’ views expressed at para 52 of his judgment and for my part would
also wish to endorse paras 21 and 22 of Laws LJ’s judgment in the court below.
97. As to our domestic jurisprudence, Huang v Secretary of State for the Home
Department [2007] 2 AC 167 was concerned with article 8 in the context, not of
extradition, but of immigration control. In this context, of course, the immigration
rules and supplementary directions (to which Lord Bingham, giving the opinion of
the Committee, referred at para 20) for the most part take account of the
immigrant’s article 8 rights. But not in all circumstances, so that there remains
scope for article 8 to be successfully invoked in some cases. We rejected an
exceptionality test since exceptionality as such can never be a helpful touchstone
against which to judge whether in any particular case the interests of a lawful
Page 40
immigration policy are outweighed by the immigrant’s (and his family’s) rights to
private and/or family life. But even in this, non-extradition, context we
contemplated article 8 succeeding only in “a very small minority” of cases. The
legal test is proportionality, not exceptionality, but in immigration cases the court
will seldom find removal disproportionate and, in extradition cases, more rarely
still.
98. Gomes v Government of the Republic of Trinidad and Tobago [2009] 1
WLR 1038 was a domestic extradition case concerned not with section 87 but with
section 82 of the Extradition Act 2003 (making identical provision to section 14 in
Part 1 of the Act). Amongst the issues arising was the correct approach to the
question raised by section 82 as to whether the passage of time makes extradition
unjust. In giving the judgment of the Committee I said this:
“[W]e would . . . stress that the test of establishing the
likelihood of injustice will not be easily satisfied. The
extradition process, it must be remembered, is only available
for returning suspects to friendly foreign states with whom
this country has entered into multilateral or bilateral treaty
obligations involving mutually agreed and reciprocal
commitments. The arrangements are founded on mutual trust
and respect. There is a strong public interest in respecting
such treaty obligations. As has repeatedly been stated,
international co-operation in this field is ever more important
to bring to justice those accused of serious cross-border
crimes and to ensure that fugitives cannot find safe havens
abroad. We were told that the section 82 (or section 14)
‘defence’ is invoked in no fewer than 40% of extradition
cases. This seems to us an extraordinarily high proportion and
we would be unsurprised were it to fall following the
Committee’s judgment in the present case.” (para 36)
99. Seemingly it is now the section 87 (section 21 in Part 1) “defence” based on
the extraditee’s article 8 rights which is regularly being invoked. The incidence of
this too may be expected to decline in the light of the Court’s judgments on the
present appeal. The reality is that, once effect is given to sections 82 and 91 of the
Act, the very nature of extradition leaves precious little room for a “defence” under
section 87 in a “domestic” case. To my mind section 87 is designed essentially to
cater to the occasional “foreign” case where (principally although not exclusively)
article 2 or 3 rights may be at stake.
Page 41
100. It follows that I too would dismiss this appeal. In doing so I would register
my agreement also with the judgments of Lord Hope, Lord Mance, Lord Collins
and Lord Kerr, each of which I understand to be (as I believe and intend my own
judgment to be) entirely consistent with everything said by Lord Phillips.
LORD MANCE
101. Central to the issues argued on this appeal is the submission by Mr Jonathan
Sumption QC for the appellant, Mr Norris, that the District Judge and Divisional
Court, while purporting to apply the decision of the House of Lords in Huang v
Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167,
erred by in effect reintroducing for extradition cases an exceptionality test. Huang
was a case involving claims by two failed asylum seekers that their removal would
infringe their rights under article 8 of the European Convention on Human Rights
to enjoy family life with relatives in the United Kingdom. But it is submitted that
that difference in subject-matter is immaterial. It is further submitted that,
whatever the test, the Divisional Court erred in concluding that the interference
with Mr and Mrs Norris’s private life that Mr Norris’ extradition would entail is
“necessary in a democratic society” (that it is proportionate to the legitimate
interest served by his extradition) within the meaning of article 8(2) of the
Convention.
102. That extradition would interfere with Mr and Mrs Norris’s private and
family life within article 8(1) is not in doubt. Further, it would do so within the
United Kingdom, where such life is currently enjoyed. The case is thus a domestic
rather than a foreign one, in the sense in which Lord Bingham drew this distinction
in R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, para. 9.
This is relevant when considering whether the interference is justified or excused
under article 8(2), as being “in accordance with the law and … necessary in a
democratic society” in an interest or for a purpose there specified. In “foreign”
cases (like Ullah itself and R (Razgar) v Secretary of State for the Home
Department [2004] UKHL 27; [2004] 2 AC 368) the person resisting removal to a
foreign country on the ground that it would interfere there with rights protected
under article 8 must present “a very strong case”: see Ullah per Lord Bingham at
para. 24. In the same case, Lord Steyn at para. 50 spoke of the need to satisfy a
“high threshold test”, by establishing “at least a real risk of a flagrant violation of
the very essence of the right before other articles [of the Convention] become
engaged”. See also per Lord Carswell at paras. 67-70, as well as the later decisions
in EM (Lebanon) v Secretary of State for the Home Department (AF (A Child)
Page 42
intervening) [2008] UKHL 64; [2009] AC 1198 and MT (Algeria) v Secretary of
State for the Home Department [2009] UKHL 10; [2009] 2 WLR 512.
103. The approach taken in foreign cases cannot be transposed to domestic cases,
where the removal of a foreigner from the jurisdiction would interfere with his or
her private or family life within the jurisdiction. Huang was a domestic case, in
which Lord Bingham, giving the opinion of the appellate committee, noted that the
questions generally to be asked in deciding whether a measure is proportionate
were “whether: (i) the legislative objective is sufficiently important to justify
limiting a fundamental right; (ii) the measures designed to meet the legislative
objective are rationally connected to it; and (iii) the means used to impair the right
or freedom are no more than is necessary to accomplish the objective”. However,
Lord Bingham at para 19 went on to stress the need in applying this test to balance
the interests of society with those of individuals and groups, and to refer, in this
connection, to the House’s previous statement in Razgar [2004] 2 AC 368, paras
17-20, 26, 27, 60, 77 that the judgment on proportionality “must always involve
the striking of a fair balance between the rights of the individual and the interests
of the community which is inherent in the whole of the Convention. The severity
and consequences of the interference will call for careful assessment at this stage”.
Similar reference to the importance of achieving a fair balance between public and
private interests is found in Strasbourg case-law, including Dickson v United
Kingdom (2007) 46 EHRR 927 and S v United Kingdom (2008) 48 EHRR 1169
(paras. 109 and 111 below). Addressing a submission by the Secretary of State that
it would “only be in an exceptional case” that the removal under the immigration
rules would infringe article 8 (p. 173E), Lord Bingham in Huang [2007] 2 AC 167,
para 20 said that, where the issue of proportionality was reached,
“ ….. the ultimate question for the appellate immigration authority is
whether the refusal of leave to enter or remain, in circumstances
where the life of the family cannot reasonably be expected to be
enjoyed elsewhere, taking full account of all considerations weighing
in favour of the refusal, prejudices the family life of the applicant in
a manner sufficiently serious to amount to a breach of the
fundamental right protected by article 8. If the answer to this
question is affirmative, the refusal is unlawful and the authority must
so decide. It is not necessary that the appellate immigration
authority, directing itself along the lines indicated in this opinion,
need ask in addition whether the case meets a test of exceptionality.
The suggestion that it should is based on an observation of Lord
Bingham in Razgar, para 20. He was there expressing an
expectation, shared with the Immigration Appeal Tribunal, that the
number of claimants not covered by the rules and supplementary
directions but entitled to succeed under article 8 would be a very
Page 43
small minority. That is still his expectation. But he was not
purporting to lay down a legal test.”
104. In a later domestic case, EB (Kosovo) v Secretary of State for the Home
Department [2008] UKHL 41; [2009] AC 1159, Lord Bingham again described
the exercise required under article 8:
“12. …. the appellate immigration authority must make its own
judgment and that judgment will be strongly influenced by the
particular facts and circumstances of the particular case. The
authority will, of course, take note of factors which have, or have
not, weighed with the Strasbourg court. It will, for example,
recognise that it will rarely be proportionate to uphold an order for
removal of a spouse if there is a close and genuine bond with the
other spouse and that spouse cannot reasonably be expected to
follow the removed spouse to the country of removal, or if the effect
of the order is to sever a genuine and subsisting relationship between
parent and child. But cases will not ordinarily raise such stark
choices, and there is in general no alternative to making a careful and
informed evaluation of the facts of the particular case. The search for
a hard-edged or bright-line rule to be applied to the generality of
cases is incompatible with the difficult evaluative exercise which
article 8 requires.”
105. The present case concerns extradition, not immigration control, a distinction
which Mr Perry QC for the Government emphasises. The purpose for which Mr
Norris’s extradition is sought is, in terms of article 8(2), “the prevention of
disorder or crime …..”. Mr Sumption argues that this restricts the court’s focus to
the particular risks of disorder or crime which may flow, presumably from Mr
Norris himself, if Mr Norris were not extradited. That is in my view unrealistic.
The balancing exercise between the public and private interests involves a broader
focus. Ullah underlines both “the great importance of operating firm and orderly
immigration control in an expulsion case” and “the great desirability of honouring
extradition treaties made with other states”: [2004] 2 AC 323, para 24. The
European Court of Human Rights in Soering v United Kingdom (1989) 11 EHRR
439 acknowledged “the beneficial purpose of extradition in preventing fugitive
offenders from evading justice” (para. 86) and said that, “as movement about the
world becomes easier and crime takes on a larger international dimension, it is
increasingly in the interest of all nations that suspected offenders who flee abroad
should be brought to justice” (para. 89). These statements refer to fugitive
offenders, but similar public interests in extradition apply to suspects who have
allegedly committed offences in countries other than those where they habitually
Page 44
reside. In agreement with others of your Lordships, it is clear that the general
public interest in extradition is a powerful one. This is so, not only in respect of a
person already convicted, but also in respect of a person wanted to face trial.
Without affecting the need for a case by case approach, I see it as being, in each of
these situations, generally stronger than either the public interest in enforcing
immigration control in respect of a failed asylum seeker or an over-stayer who has
established family roots within the jurisdiction or even than the public interest in
deporting a convicted alien upon the conclusion of his sentence, although this be to
avoid the commission of further offences within the jurisdiction of the deporting
state.
106. Under article 8, the ultimate question is whether Mr and Mrs Norris’s
interests in the continuation of their present private and family life in the United
Kingdom are outweighed by a necessity, in a democratic society and for the
prevention of disorder or crime, for Mr Norris to be extradited in order to face trial
in the United States. Whether extradition is necessary depends upon whether it is
proportionate to the legitimate interest served by extradition in his case or, as the
European Court of Human Rights said in Dickson 46 EHRR 927 para 71, “whether
a fair balance [is] struck between the competing public and private interests
involved”. The first step in any such enquiry must, in this context also, be to
identify and examine all the relevant facts in the particular case. The nature and
seriousness of the alleged offence will be relevant to the strength of the case in
favour of extradition: see e.g. Raidl v Austria (1995) 20 EHRR CD114 and King v
United Kingdom (Application No. 9742/07) (both extradition cases) in which
complaints were held inadmissible. Laws LJ examined this aspect in the Divisional
Court [2009] EWHC 995, paras. 28-29 and concluded that “the obstruction of
justice charges, taken at their face value, are very grave indeed”. Lord Phillips
after re-examining the position in his paras. 69-72 reaches the same conclusion,
and so do I. Another relevant factor may sometimes be whether a trial would be
possible in the United Kingdom, but I agree with Lord Phillips (paras. 66-67) that,
while one should not prejudge the facts of particular cases, this is in practice likely
to be relevant (if it can be at all) only in otherwise marginal cases. Mr and Mrs
Norris’s personal circumstances, the nature of their private and family life and the
likely effect of extradition upon it and each of them will all be of primary
importance. I need not repeat here the detailed account of these matters contained
in the judgment of Laws LJ in the Divisional Court, paras. 30-37 and of Lord
Phillips, paras. 73-80. In weighing up such personal factors against other factors, it
is of course also relevant that extradition is by its nature very likely to have
adverse consequences for the private or family life within the jurisdiction of the
person being extradited. The mere existence of some adverse consequences will
not be a sufficient counterweight, where there is a strong public interest in
extradition.
Page 45
107. The principal question of law raised by Mr Sumption centres upon the
District Judge’s and Laws LJ’s use of phrases referring to a need for a “high
threshold” or for “striking and unusual facts” before the claim of a prospective
extraditee to resist extradition under article 8 would in practice succeed. However,
Laws LJ prefaced his reference to such phrases with an explanation of the force of
the public interest in extradition. This meant, he stated, that any claim to resist
extradition on article 8 grounds “must, if it is to succeed, possess still greater
force”: para. 21. Provided that it is recognised that the force of the public interest
in extradition must itself be weighed according to the particular circumstances, I
see no objection to this last statement. In a case involving obstruction of justice
charges of a gravity such as the present, the public interest in extradition is selfevidently very substantial. It has to be weighed against other relevant factors,
including the delay and above all the impact on Mr and Mrs Norris’s private and
family life. Interference with private and family life is a sad, but justified,
consequence of many extradition cases. Exceptionally serious aspects or
consequences of such interference may however outweigh the force of the public
interest in extradition in a particular case.
108. There is a possible risk about formulations which suggest in general terms
that any person seeking to avoid extradition under article 8 must cross a “high
threshold” or establish “striking and unusual facts” or “exceptional
circumstances”. They may be read as suggesting that the public interest in
extradition is the same in every case (in other words, involves a threshold of a
constant height, whereas in fact it depends on the nature of the alleged offence
involved) and also that the person resisting extradition carries some form of legal
onus to overcome that threshold, whereas in fact what are in play are two
competing interests, the public and the private, which have to be weighed against
each other, as required by the case-law under the Convention as well as by s.87 of
the Extradition Act 2003. It can be expected that the number of potential
extraditees who can successfully invoke article 8 to resist extradition will be a very
small minority of all those extradited, but that expectation must not be converted
into an a priori assumption or into a part of the relevant legal test.
109. A further potential problem about such formulations is that they may tend to
divert attention from consideration of the potential impact of extradition on the
particular persons involved and their private and family life towards a search for
factors (particularly external factors) which can be regarded as out of the run of the
mill. Different people have different ages, different private and family lives and
different susceptibilities. They may react and suffer in different ways to the threat
of and stress engendered by potential extradition in respect of the same offence or
type of offence. And some of the circumstances which might influence a court to
consider that extradition would unduly interfere with private or family life can
hardly be described as “exceptional” or “striking and unusual”. Take a case of an
Page 46
offence of relatively low seriousness where the effect of an extradition order would
be to sever a genuine and subsisting relationship between parent and baby, or
between one elderly spouse and another who was entirely dependant upon the care
performed by the former.
110. Strasbourg case law supports the need for caution about the use of such
formulations, while also indicating that statements that undue interference with
article 8 rights will only occur “in exceptional circumstances” have not either
necessarily or always been viewed as problematic. Thus, the Commission in
Launder v United Kingdom (1997) 25 EHRR CD67, 73, para 3 – after reciting the
basic test of necessity (which “implies a pressing social need and requires that the
interference at issue be proportionate to the legitimate aim pursued”) added:
“The Commission considers that it is only in exceptional
circumstances that the extradition of a person to face trial on charges
of serious offences committed in the requesting state would be held
to be an unjustified or disproportionate interference with the right to
respect for family life. The Commission finds that in the present case
no such circumstances have been shown to exist”.
In King v United Kingdom (where Mr King was accused of being a member of a
gang engaged in a conspiracy to import large quantities of ecstasy into Australia)
the Court returned to this passage, saying:
“Mindful of the importance of extradition arrangements between
States in the fight against crime (and in particular crime with an
international or cross-border dimension), the Court considers that it
will only be in exceptional circumstances that an applicant’s private
or family life in a Contracting State will outweigh the legitimate aim
pursued by his or her extradition (see Launder v United Kingdom,
no. 27279/95, Commission decision of 8 December 1997).”
The fact that Mr King had in the United Kingdom two young children and a
mother whose health would not allow her to travel to Australia was not an
exceptional circumstance, in which connection the Court could not “overlook the
very serious charges he faces” and was accordingly satisfied that it would not be
disproportionate to extradite him to Australia.
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111. In Dickson v United Kingdom 46 EHRR 927 the issue was the consistency
with article 8 of a policy whereby requests for artificial insemination by prisoners
were “carefully considered on individual merit” but “only …. granted in
exceptional circumstances” (para. 13). The European Court of Human Rights
considered that “the policy set the threshold so high against them [the applicant
prisoners] . . . that it did not allow a balancing of the competing individual and
public interests and a proportionality test ,,,, as required by the Convention” (para.
82); and that it was not “persuasive to argue …. that the starting-point of
exceptionality was reasonable since only a few persons would be affected,
implying as it did the possibility of justifying the restriction of the applicants’
Convention rights by the minimal number of persons adversely affected” (para.
84).
112. On the other hand, in McCann v United Kingdom 47 EHRR 913, the local
authority had determined Mr McCann’s right to remain in his home by obtaining
from his wife a notice to quit, the effect of which upon him she did not understand.
The European Court of Human Rights, while holding that Mr McCann should in
these circumstances have been given the opportunity to argue the issue of
proportionality under article 8, added:
“54. The court does not accept that the grant of the right to the
occupier to raise an issue under article 8 would have serious
consequences for the functioning of the system or for the domestic
law of landlord and tenant. As the minority of the House of Lords in
Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2
AC 465 observed …. , it would be only in very exceptional cases
that an applicant would succeed in raising an arguable case which
would require a court to examine the issue; in the great majority of
cases, an order for possession could continue to be made in summary
proceedings.”
The minority observation which the European Court approved appears in these
terms in Lord Bingham’s speech [2006] 2 AC 465, para 29:
“I do not accept, as the appellants argued, that the public authority
must from the outset plead and prove that the possession order
sought is justified. That would, in the overwhelming majority of
cases, be burdensome and futile. It is enough for the public authority
to assert its claim in accordance with domestic property law. If the
occupier wishes to raise an article 8 defence to prevent or defer the
Page 48
making of a possession order it is for him to do so and the public
authority must rebut the claim if, and to the extent that, it is called
upon to do so. In the overwhelming majority of cases this will be in
no way burdensome. In rare and exceptional cases it will not be
futile.”
The context in both Kay and McCann was one of an absolute common law right to
possession of property, to enforcement of which the article 8 right to respect for
the home might sometimes represent an obstacle. In contrast, as Lord Bingham
noted in Huang [2007] 2 AC 167, para 17, the statutory scheme governing
immigration control itself contemplates that a person may fail to qualify under the
immigration rules and yet have a valid claim under article 8. A similar exercise of
weighing competing interests is required under s.87 of the Extradition Act 2003.
113. Finally, in S v United Kingdom 48 EHRR 1169, the European Court held
that the blanket and indiscriminate retention of fingerprints, cellular samples and
DNA profiles of persons suspected, but not convicted, of offences, and subject
only to a discretion “in exceptional circumstances” to authorise their deletion,
failed to strike a fair balance between the competing public and private interests
(paras. 35 and 125).
114. The preferable course is, in my view, to approach the exercise required by
article 8 by (a) identifying the relevant facts and on that basis assessing the force
of, and then weighing against each other, the considerations pointing in the
particular case for and against extradition, and (b) when addressing the nature of
the considerations which might outweigh the general public interest in extradition
to face trial for a serious offence, doing so in terms which relate to the exceptional
seriousness of the consequences which would have to flow from the anticipated
interference with private and family life in the particular case. But this is very far
from saying that any adjudicative exercise which refers to a need in practice for
“exceptional circumstances” or “striking and unusual facts” in the context of a
particular application for extradition is axiomatically flawed. Still less can it be a
ground of objection if the expectation that only a small minority of potential
extraditees will in practice be able successfully to rely on article 8 to resist
extradition proves statistically to be the case as a result of the decisions reached
over a period and over the whole range of such cases.
115. What matters in any event is whether, as a result of whatever formulation
has been adopted, the adjudicative exercise has been slanted or distorted in a
manner which undermines its outcome in any particular case. In the present case,
Page 49
on the facts set out by Laws LJ and Lord Phillips and for the reasons given in
relation to those facts by Lord Phillips in para 82 and by Lord Hope in para 93, I
am left in no doubt that the balance between public and private interests comes
down clearly in favour of Mr Norris’s extradition, as serving a pressing social need
and being proportionate to the legitimate aim pursued, or, in conclusion, as
reflecting an appropriate weighing of the public and private interests engaged,
despite the grief and interference with his and his wife’s private and family life
that extradition will undoubtedly cause.
116. I have read Lord Phillips’ judgment with its addendum written in the light
of King v United Kingdom, and find nothing inconsistent with the way in which I
see the matter and in which I have expressed my own reasons for reaching the
same conclusion as he does.
LORD COLLINS
117. I agree with Lord Phillips that Mr Norris’ appeal should be dismissed for
the reasons he gives.
118. In 1878 the Report of the Royal Commission on Extradition said:
“it is the common interest of mankind that offences against person
and property, offences which militate against the general well-being
of society, should be repressed by punishment … [W]e may
reasonably claim from all civilised nations that they shall unite with
us in a system which is for the common benefit of all …” (in Parry,
British Digest of International Law, vol 6 (1965), at 805)
119. Some 75 years ago the commentary to the Harvard draft Convention on
extradition pointed out:
Page 50
“The suppression of crime is recognized today as a problem of
international dimensions and one requiring international cooperation… The State, whose assistance … is requested, should view
the request with favor, if for no other reason, because it may soon be
in the position of requesting similar assistance … [T]he most
effective deterrent to crime is the prompt apprehension and
punishment of criminals, wherever they may be found. For the
accomplishment of these purposes States cannot act alone; they must
adopt some effective concert of action” (Harvard Research in
International Law, 1935, p 32)
120. This appeal concerns crime of an international character, although with
some unusual features. The principal charge in the United States was that of pricefixing contrary to the Sherman Act. The 1972 UK-US Extradition Treaty (by
contrast with the 2003 Treaty, Article 2(4) and Extradition Act 2003, section
137(3)) applied only to offences “committed within the jurisdiction of the other
Party” (Article I). Much of Mr Norris’ alleged conduct was said to have occurred
outside the United States (in particular, participation in meetings in Europe,
Mexico and Canada to discuss and agree prices), but Morgan Crucible had
subsidiaries in the United States which were alleged to be part of the price-fixing
cartel, and no point on extra-territoriality was taken. The basis of the decision of
the House of Lords in March 2008 was that price-fixing was not a criminal offence
in England until the Enterprise Act 2002, and that since it was not a criminal
offence when the offence was alleged to have been committed, it was not an
extradition offence under the Extradition Act 2003 and therefore there was not the
requisite double criminality: Norris v Government of the United States of America
[2008] UKHL 16, [2008] AC 920.
121. But the obstruction of justice charges brought against Mr Norris were held
to satisfy the double criminality test: if Mr Norris had done in England what he
was alleged to have done in the United States he would have been guilty in
England of offences of conspiring to obstruct justice or of obstructing justice. The
obstruction of justice charges involve conduct outside the United States, but also
include allegations that Mr Norris directed an alleged co-conspirator to instruct an
employee of a United States subsidiary to conceal or destroy incriminating
documents, and that he participated in a scheme to prepare false evidence to be
given to the United States authorities and to the Grand Jury. The effect of the
evidence before the Divisional Court was that, if Mr Norris is convicted on the
obstruction of justice charges, it is at the least possible that the judge will have
regard to the anti-trust violations in sentencing him for obstruction of justice. The
Divisional Court, applying Welsh v Secretary of State for the Home Department
[2006] EWHC 156 (Admin), [2007] 1 WLR 1281 and R (Bermingham) v Director
of the Serious Fraud Office [2006] EWHC 200 (Admin), [2007] QB 727, held that
Page 51
this was not contrary to the principle of specialty (also, but less commonly,
referred to as speciality): [2009] EWHC 995 (Admin). The principle is reflected in
Article XII(1) of the 1972 UK-US Extradition Treaty and section 95 of the
Extradition Act 2003. The traditional statement of the principle is that a
surrendered person will not be tried or punished for any offence other than that in
respect of which he has been extradited: Oppenheim’s International Law, 9th ed
Jennings and Watts (1992), vol 2, para 420; Whiteman, Digest of International
Law, vol 6 (1968), p 1095 (and at 1100 on non-extraditable offences as
aggravation). The Divisional Court refused to certify as a question of law of
general public importance the question whether it offended the specialty principles
if offences which were not extradition offences could be treated as aggravating
factors for sentencing purposes. The Appeal Committee of the House of Lords did
not give leave to appeal on this point, and it is therefore not before this court.
122. The sole question before this court is whether Mr Norris’ extradition to the
United States is “compatible with the Convention rights within the meaning of the
Human Rights Act 1998” (Extradition Act 2003, section 87(1)). The same question
would have arisen prior to the Extradition Act 2003 as a result of the combined
effect of the Human Rights Act 1998, section 6(1), and the discretion of the Home
Secretary under the Extradition Act 1989, section 12.
123. The only direct reference to extradition in the Human Rights Convention is
the exception to the right to liberty under Article 5(1) for “the lawful arrest or
detention … of a person against whom action is being taken with a view to
deportation or extradition” (Article 5(1)(f)).
124. But the extradition process may engage other Convention rights, as the
leading judgment in Soering v United Kingdom (1989) 11 EHRR 439 on the
responsibility of the requested State under Article 3 dramatically shows. But
“while the Strasbourg jurisprudence does not preclude reliance on articles other
than article 3 as a ground for resisting extradition … it makes it quite clear that
successful reliance demands presentation of a very strong case. … [T]he removing
state will always have what will usually be strong grounds for justifying its own
conduct: … the great desirability of honouring extradition treaties made with other
states”: R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, at
[24].
Page 52
125. In the present case the question is whether, in extraditing Mr Norris to the
United States, the United Kingdom would be in breach of its obligation under
Article 8 of the Human Rights Convention to respect private and family life.
126. The primary object of Article 8 is to protect the individual against arbitrary
action by public authorities, but it is well established that there are, in addition,
positive obligations inherent in effective respect for family life. The removal of a
person from a country where close members of that person’s family are living may
amount to an infringement of the right to respect for family life: Boultif v.
Switzerland (2001) 33 EHRR 1179, and many other decisions including Y v Russia
[2008] ECHR 1585, at [103]. In determining whether interference by a public
authority with the rights guaranteed by Article 8(1) is necessary for the purposes of
Article 8(2), regard must be had to the fair balance which has to be struck between
the competing interests of the individual and of the community as a whole: Keegan
v. Ireland (1994) 18 EHRR 342, at [49], and most recently Eberhard and M v
Slovenia [2009] ECHR 1976, at [126].
127. In this case the balance has to be struck in the context of a bilateral
extradition treaty providing for the surrender of persons alleged to have committed
extraditable crimes. It hardly needs to be said that there is a strong public interest
in international co-operation for the prevention and punishment of crime.
Consequently, the public interest in the implementation of extradition treaties is an
extremely important factor in the assessment of proportionality: e.g. R (Ullah) v
Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, at [24]; Wright v Scottish
Ministers (No 2) 2005 1 SC 453, at [77]; R (Wellington) v Secretary of State for
the Home Department [2008] UKHL 72, [2009] 1 AC 335, at [24].
128. As a result, in cases of extradition, interference with family life may easily
be justified under Article 8(2) on the basis that it is necessary in a democratic
society for the prevention of crime: HG v Switzerland, Application 24698/94,
September 6, 1994 (Commission). In Soering v United Kingdom (1989) 11 EHRR
439 at [89] the Strasbourg Court said:
“… inherent in the whole of the Convention is a search for a fair
balance between the demands of the general interest of the
community and the requirements of the protection of the individual’s
fundamental rights. As movement about the world becomes easier
and crime takes on a larger international dimension, it is increasingly
in the interest of all nations that suspected offenders who flee abroad
Page 53
should be brought to justice. Conversely, the establishment of safe
havens for fugitives would not only result in danger for the State
obliged to harbour the protected person but also tend to undermine
the foundations of extradition …”
129. More recently the Court, in Öcalan v Turkey (2005) 41 EHRR 45, reaffirmed what had been said in Soering and added (at [86]):
“The Convention does not prevent cooperation between
States, within the framework of extradition treaties or in
matters of deportation, for the purpose of bringing fugitive
offenders to justice, provided that it does not interfere with
any specific rights recognised in the Convention … “
130. It is inherent in the extradition of a citizen of the requested state that it is
almost certain to involve an interference with family life, and that it is why it has
been said that it is only in exceptional circumstances that extradition to face trial
for serious offences in the requesting state would be an unjustified or
disproportionate interference with family life: Launder v United Kingdom (1997)
25 EHRR CD67, at [3]; and cf Raidl v Austria (1995) 20 EHRR CD114, at 123.
See also R (Warren) v Secretary of State for the Home Department [2003] EWHC
1177 (Admin), at [40]-[41]. This approach has been confirmed in the recent
admissibility decision in King v United Kingdom, Applicn 9742/07.
131. The public interest in the prevention and suppression of crime, which
includes the public interest in the United Kingdom’s compliance with extradition
arrangements, is not outweighed by the mutual dependency and the ill-health, both
physical and mental, of Mr and Mrs Norris. Lord Phillips has dealt with the
question whether it is relevant whether a prosecution for the alleged offences could
be brought in the requested State. It was treated as a factor in Soering v United
Kingdom at para 110. In the admissibility decision in King v United Kingdom,
Applicn 9742/07, the Court confirmed that considerations as to whether
prosecution existed as an alternative to extradition might have a bearing on
whether the extradition would be in violation of Convention rights. The point has
also arisen in Ahsan v United Kingdom [2009] ECHR 362, a case involving a
request by the United States for extradition to answer charges for alleged terrorist
offences, in which the Strasbourg court has asked the parties for submissions on
the relevance, if any, which is to be attached to the applicant’s submission that he
could and should be tried in the United Kingdom. Although the point does not
Page 54
arise for decision on this appeal, it will not normally be relevant, for the reasons
given by Lord Phillips, that a prosecution could be brought in the United
Kingdom.
LORD KERR
132. I agree that this appeal should be dismissed. The centrepiece of the
appellant’s case is that the importance to be attached to the need for an effective
system of extradition should only be assessed by reference to the particular
circumstances of an individual case. Thus, the question becomes, would the
decision not to extradite this person because of interference with his Article 8
rights cause unacceptable damage to the public interest.
133. I do not accept this argument. The specific details of a particular case must
obviously be taken into account but recognition of a wider dimension is also
required. In other words, it is necessary to recognise that, at some level of
abstraction or generality, the preservation and upholding of a comprehensive
charter for extradition must be maintained. The question cannot be confined to an
inquiry as to the damage that an individual case would do to the system of
extradition. It must be approached on a broader plane. It should also be recognised
that the public interest in having an effective extradition system extends beyond
deterrence of crime. It also embraces the need for effective prosecution of
offenders – see Soering v United Kingdom (1989) EHRR 439, para 89.
134. Although the appellant argued that the Divisional Court, while disavowing
an exceptionality approach, in fact applied such a test in a somewhat re-cast form,
that claim does not survive careful consideration of what the Divisional Court
actually said. The Divisional Court did not impose an exceptionality requirement.
It merely reflected the significant difficulty involved in displacing the substantial
consideration of the need for a coherent and effective system of extradition.
135. Mr Perry QC’s principal argument was to the effect that the public interest
in preserving a workable and effective system of extradition was unalterable and
constant. I would be disposed to accept that argument provided ‘constant’ is
understood in this context to mean that it will always arise. I do not accept that it
Page 55
will be of unvarying weight in every case. It will always be a highly important
factor but there will be some cases where its importance will be properly assessed
as overwhelming. Recognition of the fact that this will always be an important
consideration does not create an exceptionality requirement, however; it merely
reflects the reality that this is an unchanging feature of the extradition landscape.
Sedley LJ was therefore right in AG (Eritrea) v Secretary of state for the Home
Department [2007] EWCA Civ 801; [2008] 2 All ER 28 when he said at para 31
that the circumstance that article 8 claims will rarely be successful is one of result
rather than a reflection of an exceptionality requirement.
136. While it will be, as a matter of actual experience, exceptional for article 8
rights to prevail, it seems to me difficult, in light of Huang v Secretary of State for
the Home Department [2007] 2 AC 167, to revert to an exceptionality test – a test
which, at times, Mr Perry appeared to invite us to rehabilitate. But it is entirely
possible to recognise that article 8 claims are only likely to overcome the
imperative of extradition in the rarest of cases without articulating an
exceptionality test. This message does not depend on the adoption of a rubric such
as ‘striking or unusual’ to describe the circumstances in which an article 8 claim
might succeed. The essential point is that such is the importance of preserving an
effective system of extradition, it will in almost every circumstance outweigh any
article 8 argument. This merely reflects the expectation of what will happen. It
does not erect an exceptionality hurdle.
137. I accept Mr Sumption QC’s argument that the starting point must be that
article 8 is engaged and that it is then for the state to justify the interference with
the appellant’s rights. But, because of the inevitable relevance of the need to
preserve an effective extradition system, that consideration will always loom large
in the debate. It will always be a weighty factor. Following this line, there is no
difficulty in applying the approach prescribed in para 12 of EB (Kosovo) v
Secretary of State for the Home Department [2008] UKHL 41; [2009] AC 1159.
On this analysis the individual facts of each case can be evaluated but that
evaluation must perforce be conducted against the background that there are
substantial public interest arguments in play in every extradition case. That is not
an a priori assumption. It is the recognition of a practical reality.
138. There is nothing about the facts of this case that distinguishes it
significantly from most cases of extradition, or indeed from most cases of white
collar crime. If Mr Norris were prosecuted in this country, no doubt many of the
fears, apprehensions and effects on his and his wife’s physical and mental health
would accrue in any event. The added dimension of having to face trial and
possible incarceration in America is, of course, a significant feature but not
Page 56
substantially more so than in many other cases of extradition. The only matter of
moment is the delay that has occurred from the time that extradition was first
sought but, as has been pointed out, this was to some extent created by the actions
of the appellant himself and is, in any event, not of sufficient significance that it
cannot be outweighed by the need to preserve effective extradition.
