Dempsey v Government of the United States of America
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon |
| Judgment Date | 13 March 2020 |
| Neutral Citation | [2020] EWHC 603 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4870/2018 |
| Date | 13 March 2020 |
[2020] EWHC 603 (Admin)
THE RT HON. The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HON. Mr Justice William Davis
Case No: CO/4870/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Fitzgerald QC and Ben Cooper (instructed by JFH Law) for the Claimant
David Perry QC and Richard Evans (instructed by CPS) for the Defendant
Hearing date: 29 January 2020
Approved Judgment
Introduction
This is the judgment of the court to which we have both contributed.
This is an appeal pursuant section 103 of the Extradition Act 2003 (“the 2003 Act”) against the Order of District Judge (Magistrates' Court) Kenneth Grant of 28 September 2018 to send the case of Brian Dempsey to the Secretary of State for the Home Department. On 22 November 2018 the Secretary of State ordered his extradition to the United States of America.
It is the appellant's second appeal. At the end of the extradition hearing in September 2017 the judge had discharged the appellant on the basis that the offence in relation to which the extradition request had been made was not an extradition offence for the purposes of section 78(4) of the 2003 Act. In other words that the conduct complained of would not amount to an offence in this jurisdiction. The Government of the United States (“the USA”) successfully appealed that order. The judge had dealt fully at the extradition hearing with the other grounds raised by the appellant to resist extradition. Those were “extraneous considerations” within the meaning of section 81 of the 2003 Act; and that his extradition would be an abuse of process. The judge found against the appellant on both those issues. He cross-appealed but was unsuccessful: Government of the United States of America v Dempsey [2018] 4 WLR 110, [2018] EWHC 1684 (Admin). In allowing the appeal on 6 July 2018 this Court remitted the matter to the judge pursuant to section 106 of the 2003 Act and made the following order consistent with section 106(3):
“The District Judge shall proceed as he would have been required to do had he decided the question of extradition offence differently and in accordance with the conclusions expressed in the judgment.”
The judge reversed his decision on the extradition offence issue in accordance with the judgment and order of this Court. The appellant did not attempt to re-litigate the issues upon which he had failed before the judge and on appeal, but he sought to raise a new one. He wished to argue that his extradition to the United States would be incompatible with his rights under article 3 of the European Convention on Human Rights (“ECHR”) on account of the conditions in which he would be detained in California. The judge declined to determine the issue or consider the material deployed in support.
Leave to appeal was granted on the single ground that the judge should have determined the article 3 issue and thus whether extradition would be “compatible with the Convention rights within the meaning of the Human Rights Act 1998” as required by section 87 of the 2003 Act.
The primary question for consideration is whether, at the remitted hearing in September 2018, the judge had jurisdiction to consider an issue which had not been raised at the extradition hearing in September 2017? Was he wrong to decline to determine the issue? The subsidiary question, depending on the answer to the first, is what approach should this court adopt in relation to the article 3 issue?
The hearings before the District Judge
The extradition hearing took place over two days in September 2017. On the first day the appellant was not produced from prison but, by agreement, the evidence of Eric Lewis, an American attorney, was called in the appellant's absence. That evidence was relied upon in support of the arguments in respect of extraneous considerations (section 81 of the 2003 Act) and abuse of process. On the second day the judge heard submissions from both parties including on the question whether the request concerned an extradition offence (dual criminality). Judgment was reserved until 27 October 2017.
The judgment handed down on 27 October recorded the issues raised by the appellant. The judge had been invited by the appellant to rule only on the question of dual criminality, but the respondent urged him to deal with all the issues which had been raised. That he did. It was in those circumstances that the judge recorded his conclusions on the three issues raised. No other potential bars to extradition were put in issue by the evidence produced before the judge or the arguments advanced.
Following the successful appeal by the USA the case was relisted before the judge for hearing on 27 July 2018. As we have foreshadowed, the appellant sought to argue that extradition would involve a violation of article 3 ECHR due to prison conditions in Sacramento County Main jail where the appellant would probably be held. The evidence then relied upon was a declaration from Mark Reichel, an American attorney. The judge declined to hear submissions on the issue. On 28 September 2018 the appellant was produced before the judge. He had not been produced on the previous occasion. A further attempt was made to argue the article 3 point. By then, the judge had been provided with reports disclosed in civil proceedings begun on 31 July 2018 by many prisoners against the prison authorities in Sacramento, California relating to prison conditions. The respondent argued that the jurisdiction of the judge was limited to sending the extradition request to the Secretary of State in the light of the decision of this court. The judge accepted that limitation on his jurisdiction and declined to consider the evidence or rule upon the issue.
The Statutory Scheme
The 2003 Act requires the judge to consider a series of questions found between sections 78 and 87.
The question whether the offence is an extradition offence arises at section 78(4) of the 2003 Act following anterior decisions relating to the documentation and the identity of the requested person. Section 78(7) provides that “if the Judge decides those matters in the affirmative he must proceed under section 79”. There follows a series of steps which the judge must follow, each of which provides an opportunity to discharge the requested person. At each step, if the requested person is not discharged, the judge is required “to proceed” to the next until he or she reaches section 87 and human rights considerations.
Section 79 concerns four bars to extradition namely, double-jeopardy, extraneous considerations, the passage of time and hostage-taking considerations. If the judge finds that any of those bars applies, the requested person must be discharged. If he finds that there are no bars to extradition at the section 79 stage, the judge must proceed under section 84, 85 or 86. This part of the statutory scheme provides that where the requested person has not already been convicted in the requesting state, and the category 2 territory to which extradition is requested is designated for the purposes of this section by order made by the Secretary of State, the judge must decide whether the evidence would be sufficient in this jurisdiction to establish a case to answer. Different considerations apply where there has been a conviction (section 85) or a conviction in the requested person's absence (section 86). Once satisfied that the evidence establishes a case to answer the judge goes on to determine whether extradition would be compatible with the requested person's Convention rights (section 87). If it would be compatible, the judge is then required to send the case to the Secretary of State: section 87(3); if not the person is discharged.
The appeal provisions are found between sections 103 and 106 of the 2003 Act. Sections 103 and 104 are concerned with appeals by the requested person. Section 103 provides for an appeal against the judge's decision on fact or law with leave to the High Court. The Court's powers on such an appeal are set out in section 104:
“104 Court's powers on appeal under section 103
(1) On an appeal under section 103 the High Court may—
(a) allow the appeal;
(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;
(c) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in sub-section (3) or the conditions in sub-section (4) are satisfied.
(3) The conditions are that—
(a) the judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must—
(a) order the person's discharge;
(b) quash the order for his extradition.
(6) If the judge comes to a different decision on any question that is the subject of a direction under sub-section (1)(b) he must order the person's discharge.
(7) If the judge comes to the same decision as he did at the extradition hearing on the question that is (or all the questions that are) the subject of a direction under sub-section (1)(b) the appeal must be taken to have been dismissed by a decision of the High Court.
(8) If the court makes a...
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