Schmidt v Secretary of State for the Home Department

Permission to seek judicial review of an extradition decision requires an arguable public-law error. The court will not rehear the merits of the foreign allegations or decide issues reserved for the foreign trial court. Earlier findings may effectively cover the same territory when later representations add nothing material. Difficulties caused by delay do not, without more, establish bad faith. Questions of foreign limitation and the likely effect of foreign procedural law are ordinarily matters for the foreign court. An assessment of family life under Article 8 will be unlawful only if it contains an arguable legal error; the seriousness of the alleged offences and the demands of extradition remain relevant.

The claimant, a French citizen resident in Northern Ireland, challenged the Home Secretary’s 22 July 2004 order for his extradition to France. He relied on passage of time, alleged bad faith, limitation under French law, interference with family life under Article 8, and possible religious prejudice at a retrial.

An earlier Divisional Court had dismissed habeas corpus proceedings under section 11(3) of the Extradition Act 1989, and the House of Lords had dismissed an appeal petition. Hughes J refused permission on paper. The claimant renewed the application before this Divisional Court. The central issue was whether the Home Secretary’s decision disclosed any arguable error of law suitable for judicial review.

1. Application refused. The claimant had not established an arguable basis for judicial review of the Home Secretary’s extradition order.
2. The earlier Divisional Court’s decision under section 11(3) of the Extradition Act 1989 effectively covered the same territory as the Home Secretary’s discretion under section 12(2)(a). The additional evidence identifying Dr Paisley’s involvement in 1995 added nothing material to the matters previously considered.
3. The Home Secretary had fully and carefully considered the relevant issues. The passage-of-time and bad-faith arguments had effectively been dealt with in 2002. The mere possibility that proof of the alleged offences had become more difficult did not show that the extradition request was made in bad faith.
4. The limitation point had not been addressed expressly in the Home Secretary’s letter. That omission did not justify permission because the point could not have had significant weight in the extradition decision. The effect of French limitation provisions on allegations to be advanced at retrial was a matter for the French court, not the Home Secretary.
5. The Home Secretary’s consideration of possible religious prejudice and fair-trial concerns was full and fair. The determination of evidence and the merits of the allegations were matters for the French courts.
6. Extradition could engage Article 8 of the Convention. Nevertheless, the Home Secretary’s evaluation of the claimant’s private and family life disclosed no arguable error of law. The application was therefore refused.

1. Earlier Divisional Court: dismissed the claimant’s habeas corpus application under section 11(3) of the Extradition Act 1989.
2. House of Lords: dismissed an appeal petition.
3. High Court (Administrative Court): Hughes J refused permission on paper; the renewed application was refused by the present Divisional Court.