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Shameful part 4

On ways in which the present state or application of the law is unacceptable.

Something of the restrictions of the exercise the court undertakes in extradition hearings was specified in paragraph 107 of the Norris judgement in the House of Lords. There it was stated that " The system of extradition under Part 2 of the 2003 Act does not require the requesting state to provide details of the evidence (witnesses, documents etc) on which the prosecution would rely at trial. Nor does the district judge have any occasion to inquire into it. It is also well settled that, consistently with that approach, in extradition proceedings the accused has no right to disclosure of the kind that would be available in domestic proceedings: Wellington v Governor of Belmarsh Prison [2004] EWHC 418 (Admin) and Jenkins v Government of United States of America; Benbow v Government of United States of America [2005] EWHC 1051 (Admin). While the district judge has power to request further information from the requesting state, the same underlying considerations mean that such requests will be exceptional. In R (Government of the United States of America) v Bow Street Magistrates' Court [2006] EWHC 2256 (Admin); [2007] 1 WLR 1157, the Divisional Court indicated that such a request might be appropriate where the judge considered that an abuse of process might have occurred. But, again, such cases are likely to be exceptional. ". Thus you have next to no information about exactly how the prosecution proposes to approach the case, and precious little chance of getting the information which would allow you to do something about it.

However as the court also pointed out, " Section 87(1) of the 2003 Act requires the extradition judge to decide whether a person's extradition would be incompatible with his Convention rights scheduled to the Human Rights Act 1998. This calls for a judgment on the proportionality of an order of extradition in all the circumstances, having regard to the defendant's rights under article 8 and any other relevant article.". This is thus the exercise which is being undertaken. Article 8 provides as follows: "(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.". This therefore might be thought to be a significant protection. This might therefore be thought to be a significant protection.

However in practice it does not work out like that. In the 2009 Divisional Court decision in the case of Norris, the competing balance between the article 8 rights and the public policy in favour of extradition, was succinctly summarised by Laws LJ at paragraph 21 as follows: " In my judgment 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). ". Thus the court decision is that the public policy in favour of extradition pursuant to agreements between States is so compelling that effectively only in exceptional circumstances will human rights under article 8 be sufficient to prevent this occurring and extradition taking place. In practice of course this makes it very difficult to avoid extradition on these grounds. Mr Norris was elderly, there was some question as to whether his wife would be able to travel to visit him, there was obvious strain and concern as to how he would be able to cope, but the attitude of the court was that it was likely that one would expect to see these sort of things in such a case. This did not in the courts who take it into the exceptional category since many such factors will always be present or similar ones present in such cases.

Various other challenges also failed to succeed on behalf of Mr Norris. Although he was originally successful in his submission that the price-fixing charge against him could not stand (the same not having been illegal in England at the relevant time) nonetheless he could be pursued under a charge of obstructing such investigation. He is thus facing proceedings for extradition which can only be based upon his failure in respect of an investigation which it is ultimately be determined had of itself no teeth anyway.

The true impact of such a test can be seen in the way it was applied in the case of Mr McKinnon. We shall look next week at that.

Michael J. Booth QC