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Is it possible to challenge extradition requests based on the right to family life following Norris, asks Abigail Bright
Nobody has yet successfully challenged an extradition request made under a bilateral extradition treaty on the grounds that the extradition would breach the person’s right to respect for private and family life, as guaranteed by art 8 of the European Convention on Human Rights, within the territory of the respondent state. In Norris v Government of the United States of America (No 2) [2010] UKSC 9 the Supreme Court – unanimously – rejected Ian Norris’ argument that extradition to the USA would be incompatible with his right to a private and family life in the UK. Nevertheless, Norris provides overdue guidance on when such a challenge may succeed.
In the Supreme Court the Justices held (at [82]) that the public interest in upholding bilateral extradition treaties would be “seriously damaged” if “any defendant with family ties and dependencies such as those which bind Mr Norris and his wife was thereby rendered immune from being extradited to be tried for serious wrongdoing”. This public interest required that Norris show “striking and unusual facts” to clear “a high [art 8] threshold”. Norris had failed to show that the impact of extradition on his family life went beyond the normal consequences of extradition.
Lord Hope clarified (at [93]): “The only circumstance which strikes me as not inherent in every extradition process is the delay”. It seems there was no authority availing Norris to suggest that health deterioration due to the length of time it takes to challenge extradition gives grounds to oppose it. Lord Phillips drew an analogy (at [54]) with “the dislocation of family life
of the defendant who is remanded in custody”.
The effect of extradition on family members was relevant and could be a “cogent consideration” (see at [64]).
Lord Phillips made plain (at [65]) the circumstances in which he envisaged art 8 might prevent extradition: “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 s 87 of the [Extradition Act 2003].”
It was never doubted that Norris’ extradition would interfere with his and his wife’s rights under art 8(1) of the Human Rights Convention. Norris’ main submission before the Supreme Court was that an individual does not have to show any “exceptional” feature(s) in establishing art 8 rights against extradition. The lower courts had erred, he contended, in purporting to apply the House of Lords’ decision in Huang v Secretary of State for the Home Department [2007] UKHL 11 by effectively introducing afresh an exceptionality test where Huang had decided against that approach. The point was live for this reason. Whereas Huang was clear authority for the proposition that there was no requirement of exceptional – or else effectively exceptional – features, the opposite approach was suggested in Tajik v USA [2008] EWHC 666 (Admin), Jaso v Central Criminal Court (No 2) [2007] EWHC 2983 (Admin), and in Norris (No 2). While Huang was not an extradition case, it was specifically referred to by Laws LJ in the Divisional Court in Norris.
The question was whether a court could properly require individuals in art 8 challenges to demonstrate exceptional circumstances. The Supreme Court identified (at [51]) that there was no rule of law that this was the test of disproportionality. The public interest in extradition, however, “weighs very heavily indeed” (at [51]).
The Supreme Court referred to R (on the application of Wellington) v Secretary of State for the Home Dept [2008] UKHL 72, for its own approval of the public interest carrying “special weight” where art 3 was concerned. It had “no doubt” that the same approach should govern art 8 challenges (at [51]). However, Wellington was centrally concerned not with the primacy of treaties, but with whether a life sentence without parole would be obviously disproportionate for the crime of murder. It was, though, on the basis of this comparison that the Supreme Court decided (at [51]) that Norris was “certainly not right to equate extradition [as enjoying the same protections as] expulsion or deportation in this context”.
The Supreme Court held that a test of exceptional circumstances had not been applied to Norris. It proposed: (1) “‘Exceptional circumstances’ [is a] phrase that says little about the nature of the 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.” (See at [56]); and (2) “Only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves”. (See at [82].)
The Supreme Court stated (at [85]) that applying “[e]ither test” is “likely to produce the same result”. Forewarning future appellants, the court continued: “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.”
The court further rejected the appellant’s submission that it was wrong to apply a “categorical assumption” to the general importance of extradition in the proportionality analysis (at [55]). This appears synonymous with giving what Edward Fitzgerald QC (addressing the Young Bar Conference in 2009) has termed “pre-eminent” effect to bilateral extradition treaties. Huang, read in this light, seems then to add nothing further.
The Supreme Court stated that the gravity of the offence could be relevant, especially if “at the bottom of the scale” (see at [63]). The less serious, remaining charge of obstructing justice was none the less viewed by the Supreme Court as a serious offence per se (at [72]; approving Laws LJ’s approach in the Divisional Court). It followed that extradition on the basis of the obstruction charge clearly fell within the meaning of art 8(2), as “necessary in a democratic society for the prevention of disorder or crime”. It was proportionate to the legitimate interest served by Norris’ extradition. The Supreme Court recognised there had been a US plea-bargain but noted its terms had not covered the appellant: the point was not developed further. It remains unclear why four Morgan Crucible executives – including Norris – were excluded from that plea deal of November 2002.
Mr Norris did not pursue his challenge before the European Court of Human Rights and he was extradited to Pennsylvania on 23 March 2010. The obstruction charges attract a possible maximum of five years’ imprisonment. If convicted, the price-fixing allegation may be taken into account at sentence.
In his Young Bar Conference address, four months before the decision in Norris, Edward Fitzgerald QC suggested “Convention rights do still afford some significant safeguards under the new extradition regime … High as the test is under [art 8], it is not impossible to win on [that] ground.” Norris spells out the limited circumstances whereby a future applicant might succeed if they can pass that high test.
Abigail Bright, a researcher in law and teaching fellow in criminal law at UCL, begins pupillage at QEB Hollis Whiteman in September 2010. Thanks to Kakoly Pande, a tenant at 2 Dr Johnson’s Building, Temple, and Yvonne Kestler, an immigration case-worker, for research assistance.
Mr Norris, the former CEO of Morgan Crucible plc, was arrested in London in 2005 following his indictment in Pennsylvania on charges of price fixing and obstruction of justice. Mr Norris was not included in the plea bargaining between United States prosecutors, the company and most of the senior personnel.
The US government sought his extradition to the US under Pt 2 of the Extradition Act 2003 (“the 2003 Act”).
The House of Lords ([2008] UKHL 16) upheld Mr Norris’ appeal against extradition on the price-fixing charge since it had not been a crime in this country before the Enterprise Act 2002 came into effect.
The obstruction of justice charges, however, were remitted to the district judge. Under s 87 of the 2003 Act the judge had to decide whether the extradition to the US would be compatible with Mr Norris’ human rights. Both Mr Norris and his wife were in poor health and he argued that the extradition would breach his rights under art 8 of the Convention (right to private and family life). That argument was dismissed by the district judge, which decision was upheld by the Divisional Court ([2009] EWHC 995 (Admin)).
Mr Norris – now aged 67 – appealed to the Supreme Court in November 2009. He argued that his wife’s psychological condition prevented her from accompanying him to the US if he had to stand trial there. His extradition signalled what he submitted would be the “total” interruption to their family life (see [2010] UKSC 9 at [80]). Mrs Norris set out in a witness statement that she “could not contemplate going to the US to live on her own there without friends and family support” (see at [80]).
The issue arises as to whether Norris could have been tried in the UK for alleged crimes committed in the US. In Symeou v Greece [2009] EWHC 897 (Admin), the court observed that “the only point of any substance” to the art 8 aspect of the challenge was that the appellant could be tried in the UK – his country of nationality and residence, as with most of the witnesses and victim’s family. (In the event, that challenge failed.) The same point is likely to be taken in the extradition proceedings against Gary McKinnon. The McKinnon case has been adjourned, the judicial review having been postponed from May 2010 so that the incoming Home Secretary Theresa May could review medical evidence that the accused Pentagon hacker is mentally too vulnerable to face extradition to the US. However, any progress made on the point in McKinnon would not have availed Ian Norris. Whereas Gary McKinnon was alleged to have hacked into US secured access sites from the UK – where comprehensive anti-hacking legislation covered that conduct – Norris was charged with obstructing justice in the US, making it the forum conveniens.
In the Supreme Court the Justices held (at [82]) that the public interest in upholding bilateral extradition treaties would be “seriously damaged” if “any defendant with family ties and dependencies such as those which bind Mr Norris and his wife was thereby rendered immune from being extradited to be tried for serious wrongdoing”. This public interest required that Norris show “striking and unusual facts” to clear “a high [art 8] threshold”. Norris had failed to show that the impact of extradition on his family life went beyond the normal consequences of extradition.
Lord Hope clarified (at [93]): “The only circumstance which strikes me as not inherent in every extradition process is the delay”. It seems there was no authority availing Norris to suggest that health deterioration due to the length of time it takes to challenge extradition gives grounds to oppose it. Lord Phillips drew an analogy (at [54]) with “the dislocation of family life
of the defendant who is remanded in custody”.
The effect of extradition on family members was relevant and could be a “cogent consideration” (see at [64]).
Lord Phillips made plain (at [65]) the circumstances in which he envisaged art 8 might prevent extradition: “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 s 87 of the [Extradition Act 2003].”
It was never doubted that Norris’ extradition would interfere with his and his wife’s rights under art 8(1) of the Human Rights Convention. Norris’ main submission before the Supreme Court was that an individual does not have to show any “exceptional” feature(s) in establishing art 8 rights against extradition. The lower courts had erred, he contended, in purporting to apply the House of Lords’ decision in Huang v Secretary of State for the Home Department [2007] UKHL 11 by effectively introducing afresh an exceptionality test where Huang had decided against that approach. The point was live for this reason. Whereas Huang was clear authority for the proposition that there was no requirement of exceptional – or else effectively exceptional – features, the opposite approach was suggested in Tajik v USA [2008] EWHC 666 (Admin), Jaso v Central Criminal Court (No 2) [2007] EWHC 2983 (Admin), and in Norris (No 2). While Huang was not an extradition case, it was specifically referred to by Laws LJ in the Divisional Court in Norris.
The question was whether a court could properly require individuals in art 8 challenges to demonstrate exceptional circumstances. The Supreme Court identified (at [51]) that there was no rule of law that this was the test of disproportionality. The public interest in extradition, however, “weighs very heavily indeed” (at [51]).
The Supreme Court referred to R (on the application of Wellington) v Secretary of State for the Home Dept [2008] UKHL 72, for its own approval of the public interest carrying “special weight” where art 3 was concerned. It had “no doubt” that the same approach should govern art 8 challenges (at [51]). However, Wellington was centrally concerned not with the primacy of treaties, but with whether a life sentence without parole would be obviously disproportionate for the crime of murder. It was, though, on the basis of this comparison that the Supreme Court decided (at [51]) that Norris was “certainly not right to equate extradition [as enjoying the same protections as] expulsion or deportation in this context”.
The Supreme Court held that a test of exceptional circumstances had not been applied to Norris. It proposed: (1) “‘Exceptional circumstances’ [is a] phrase that says little about the nature of the 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.” (See at [56]); and (2) “Only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves”. (See at [82].)
The Supreme Court stated (at [85]) that applying “[e]ither test” is “likely to produce the same result”. Forewarning future appellants, the court continued: “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.”
The court further rejected the appellant’s submission that it was wrong to apply a “categorical assumption” to the general importance of extradition in the proportionality analysis (at [55]). This appears synonymous with giving what Edward Fitzgerald QC (addressing the Young Bar Conference in 2009) has termed “pre-eminent” effect to bilateral extradition treaties. Huang, read in this light, seems then to add nothing further.
The Supreme Court stated that the gravity of the offence could be relevant, especially if “at the bottom of the scale” (see at [63]). The less serious, remaining charge of obstructing justice was none the less viewed by the Supreme Court as a serious offence per se (at [72]; approving Laws LJ’s approach in the Divisional Court). It followed that extradition on the basis of the obstruction charge clearly fell within the meaning of art 8(2), as “necessary in a democratic society for the prevention of disorder or crime”. It was proportionate to the legitimate interest served by Norris’ extradition. The Supreme Court recognised there had been a US plea-bargain but noted its terms had not covered the appellant: the point was not developed further. It remains unclear why four Morgan Crucible executives – including Norris – were excluded from that plea deal of November 2002.
Mr Norris did not pursue his challenge before the European Court of Human Rights and he was extradited to Pennsylvania on 23 March 2010. The obstruction charges attract a possible maximum of five years’ imprisonment. If convicted, the price-fixing allegation may be taken into account at sentence.
In his Young Bar Conference address, four months before the decision in Norris, Edward Fitzgerald QC suggested “Convention rights do still afford some significant safeguards under the new extradition regime … High as the test is under [art 8], it is not impossible to win on [that] ground.” Norris spells out the limited circumstances whereby a future applicant might succeed if they can pass that high test.
Abigail Bright, a researcher in law and teaching fellow in criminal law at UCL, begins pupillage at QEB Hollis Whiteman in September 2010. Thanks to Kakoly Pande, a tenant at 2 Dr Johnson’s Building, Temple, and Yvonne Kestler, an immigration case-worker, for research assistance.
Mr Norris, the former CEO of Morgan Crucible plc, was arrested in London in 2005 following his indictment in Pennsylvania on charges of price fixing and obstruction of justice. Mr Norris was not included in the plea bargaining between United States prosecutors, the company and most of the senior personnel.
The US government sought his extradition to the US under Pt 2 of the Extradition Act 2003 (“the 2003 Act”).
The House of Lords ([2008] UKHL 16) upheld Mr Norris’ appeal against extradition on the price-fixing charge since it had not been a crime in this country before the Enterprise Act 2002 came into effect.
The obstruction of justice charges, however, were remitted to the district judge. Under s 87 of the 2003 Act the judge had to decide whether the extradition to the US would be compatible with Mr Norris’ human rights. Both Mr Norris and his wife were in poor health and he argued that the extradition would breach his rights under art 8 of the Convention (right to private and family life). That argument was dismissed by the district judge, which decision was upheld by the Divisional Court ([2009] EWHC 995 (Admin)).
Mr Norris – now aged 67 – appealed to the Supreme Court in November 2009. He argued that his wife’s psychological condition prevented her from accompanying him to the US if he had to stand trial there. His extradition signalled what he submitted would be the “total” interruption to their family life (see [2010] UKSC 9 at [80]). Mrs Norris set out in a witness statement that she “could not contemplate going to the US to live on her own there without friends and family support” (see at [80]).
The issue arises as to whether Norris could have been tried in the UK for alleged crimes committed in the US. In Symeou v Greece [2009] EWHC 897 (Admin), the court observed that “the only point of any substance” to the art 8 aspect of the challenge was that the appellant could be tried in the UK – his country of nationality and residence, as with most of the witnesses and victim’s family. (In the event, that challenge failed.) The same point is likely to be taken in the extradition proceedings against Gary McKinnon. The McKinnon case has been adjourned, the judicial review having been postponed from May 2010 so that the incoming Home Secretary Theresa May could review medical evidence that the accused Pentagon hacker is mentally too vulnerable to face extradition to the US. However, any progress made on the point in McKinnon would not have availed Ian Norris. Whereas Gary McKinnon was alleged to have hacked into US secured access sites from the UK – where comprehensive anti-hacking legislation covered that conduct – Norris was charged with obstructing justice in the US, making it the forum conveniens.
Is it possible to challenge extradition requests based on the right to family life following Norris, asks Abigail Bright
Nobody has yet successfully challenged an extradition request made under a bilateral extradition treaty on the grounds that the extradition would breach the person’s right to respect for private and family life, as guaranteed by art 8 of the European Convention on Human Rights, within the territory of the respondent state. In Norris v Government of the United States of America (No 2) [2010] UKSC 9 the Supreme Court – unanimously – rejected Ian Norris’ argument that extradition to the USA would be incompatible with his right to a private and family life in the UK. Nevertheless, Norris provides overdue guidance on when such a challenge may succeed.
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