Norris v Government of the United States of America (No 2)

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD HOPE,LORD MANCE,LORD BROWN,LORD KERR,LORD COLLINS,LORD PHILLIPS
Judgment Date24 Feb 2010
Neutral Citation[2010] UKSC 9

[2010] UKSC 9

THE SUPREME COURT

Hilary Term

On appeal from: [2009] EWHC 995 (Admin)

before

Lord Phillips, President

Lord Hope, Deputy President

Lord Rodger

Lady Hale

Lord Brown

Lord Mance

Lord Judge

Lord Collins

Lord Kerr

Norris
(Appellant)
and
Government of United States of America
(Respondent)

Appellant

Jonathan Sumption QC

Martin Chamberlain

(Instructed by White & Case LLP)

Respondent

David Perry QC

Louis Mably

(Instructed by Crown Prosecution Service)

Intervener

Richard Hermer QC

Joseph Middleton

Alex Gask

(Instructed by Liberty)

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 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.

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.

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.

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...

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