Norris, R (on the application of) v Secretary of State for the Home Department

A treaty provision governing extradition cannot prevent Parliament from establishing a later statutory regime which alters the evidential protections available in extradition proceedings. The absence of reciprocity between states does not, by itself, make a designation under the Extradition Act 2003 unlawful or irrational where the Act does not make reciprocity a condition. A treaty does not necessarily confer free-standing, enforceable rights on individual citizens where its effect is subject to domestic legislation. Judicial review of subordinate legislation approved by affirmative resolutions remains possible, but the court must respect the nature and purpose of the enabling legislation and the Secretary of State’s evaluative judgment. Continuing the designation of the United States was not irrational while ratification of a replacement treaty remained possible.

The claimant challenged his extradition to the United States and the continued designation of the United States under paragraph 3 of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. The designation engaged section 84(7) of the Extradition Act 2003, so that the magistrates’ court was not required to determine whether the evidence disclosed a case requiring an answer. The claimant argued that this conflicted with Article IX of the 1972 extradition treaty, which remained in force because the 2003 treaty had not been ratified by the United States.

The court heard the judicial review application first. The statutory appeals against the magistrates’ and Secretary of State’s decisions were postponed. The central issue was whether the Secretary of State acted unlawfully or irrationally by continuing the United States designation despite the absence of reciprocity and the delayed ratification.

1. The application for judicial review was dismissed. The court assumed, without deciding, that the Secretary of State’s position on continued designation was susceptible to judicial review.

2. The Extradition Act 2003 created a new statutory scheme. For a category 2 territory designated under section 84(7), the evidential requirement in section 84(1) was effectively disapplied. The judge instead considered the statutory bars and compatibility with Convention rights before sending the case to the Secretary of State. That scheme was inconsistent with the evidential requirement in Article IX of the 1972 treaty, but the treaty could not prevent the application of the later Act.

3. The court applied the principle stated in Re: Nielsen [1984] 1 AC 606 that extradition legislation defines the maximum jurisdiction and that treaty terms must give way where they conflict with legislation. The court also held that reciprocity was not a statutory precondition to extradition. The absence of symmetry between the two states therefore did not, by itself, advance the claimant’s case.

4. The 1972 treaty reflected the agreed inter-governmental extradition relationship. It did not establish free-standing municipal rights enforceable by United Kingdom citizens against their own Government. Those rights were provided by domestic legislation. Parliament had authorised a new regime which could reduce the protective conditions formerly available under the treaty.

5. The court distinguished the circumstances considered in Javed v Secretary of State for the Home Department [2002] QB 129. Although subordinate legislation approved by affirmative resolution remained reviewable, the scope of review depended critically on the nature and purpose of the enabling legislation. The designation was closely aligned with the statutory scheme and followed affirmative resolutions of both Houses.

6. The delayed ratification of the 2003 treaty did not make continuation of the designation irrational. The Secretary of State could allow the United States’ constitutional ratification process to continue, particularly given the wide margin of evaluative judgment available to him. The court could not compel removal of the designation to accelerate ratification or permanently prohibit exercise of the statutory power.

• Bow Street Magistrates’ Court: District Judge Evans decided on 1 June 2005 that there were no factors barring extradition and sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003.
• Secretary of State for the Home Department: on 29 September 2005, ordered extradition under section 93(4) of the Extradition Act 2003.
• High Court (Administrative Court): dismissed the judicial review application. The statutory appeals were postponed for later determination.