Nisbet v Secretary of State & Ors

Under the Extradition Act 2003, responsibility for deciding Convention-rights compatibility and whether extradition would be unjust or oppressive because of physical or mental condition ordinarily rests with the extradition judge, not the Secretary of State. Those issues may nevertheless be raised on appeal, including where they were not raised before the extradition judge. Extradition will be barred by ill health only where the condition crosses the statutory threshold. Article 8 interference arising from ordinary family, financial or employment consequences is proportionate unless exceptional circumstances are shown. An alleged loss of evidence does not establish a risk of a flagrant denial of a fair trial where the trial court can assess the issue.

The claimant appealed against the Secretary of State’s decision to extradite him to Canada following a sending order made by District Judge Evans at Westminster Magistrates’ Court. The extradition request concerned dishonesty offences arising from his work as an accountant in Canada.

He relied on depression, anxiety, an anticipated knee operation, the effect of extradition on his fiancée and employment, and the alleged loss of business records needed for his defence. The central issues were whether those matters engaged sections 87 or 91 of the Extradition Act 2003, or Articles 6 or 8 of the Convention, and whether the Secretary of State had been required to reconsider them.

1. Allocation of responsibility. The statutory scheme places responsibility on the district judge for deciding whether extradition is compatible with Convention rights and whether physical or mental condition makes extradition unjust or oppressive. The Secretary of State is ordinarily not required to reconsider those questions when making the extradition order. In the circumstances, the Secretary of State was bound by section 93(4) to make the order.
2. Appeal issues. A person may raise human-rights or related matters on an appeal under section 103, even if they were not raised before the district judge. The Secretary of State is not thereby made the appropriate respondent. Only limited circumstances, such as those identified in McKinnon v Government of the United States of America [2007] EWHC 762 Admin, may require consideration by the Secretary of State.
3. Health. The evidence that medication would be available in Canada and that arrangements existed to consider knee surgery meant that the claimant’s physical and mental conditions did not cross the threshold of injustice or oppression under section 91(2), and did not engage his Convention rights.
4. Article 8. The effects of extradition on the claimant’s relationship, housing, finances and employment were ordinary consequences and any interference with Article 8 was proportionate and justified. Exceptional circumstances would have been required before extradition could be refused on that basis.
5. Article 6. The alleged absence of business records could be raised before the Canadian court, which could decide whether a fair trial remained possible. The material did not establish a real risk of a flagrant denial of a fair trial.
6. The appeal disclosed no ground for altering the district judge’s order or the Secretary of State’s extradition order. The appeal was dismissed.

• High Court (Administrative Court): The appeal against the extradition decision was dismissed.
• Westminster Magistrates’ Court: District Judge Evans sent the claimant’s case to the Secretary of State on 8 January 2007 and considered that extradition was not barred and was compatible with Convention rights.
• Secretary of State for the Home Department: On 30 March 2007, the Secretary of State ordered extradition, having concluded that the representations did not engage the statutory discretion under sections 94 and 96 of the Extradition Act 2003.