Mustafa (Hamza) v The United States of America & Anor

Delay bars extradition only where it would make the foreign proceedings unjust or make extradition oppressive in light of changed circumstances. Generalised assertions of lost evidence or faded recollection are insufficient; specific prejudice must be shown. Evidence indirectly derived from torture is not automatically inadmissible in domestic law, and extradition is not an abuse of process merely because such evidence might be admissible in the requesting state. Diplomatic assurances from a major democratic state may be relied upon where there are no substantial grounds for believing that the person faces a real risk of treatment contrary to Article 3. Article 8 generally yields to the strong public interest in honouring extradition arrangements, absent striking and unusual circumstances.

The United States sought the appellant’s extradition on charges concerning hostage-taking in Yemen and alleged terrorist training and activity in Oregon and Afghanistan. A District Judge sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003. The Secretary of State subsequently ordered extradition under section 93(4).

The appellant challenged both decisions on grounds of delay, torture-tainted evidence, Articles 3, 6 and 8 of the European Convention on Human Rights, the reliability of diplomatic assurances, and the proposed conditions of imprisonment. The central issues were whether extradition would be unjust or oppressive, an abuse of process, or incompatible with Convention rights.

1. Outcome. Both appeals were dismissed. The District Judge’s decision and the Secretary of State’s extradition decision were upheld.
2. Delay. Under section 82 of the Extradition Act 2003, delay may prevent extradition where it would make the proceedings in the requesting state unjust or make extradition oppressive. The appellant identified no sufficiently specific prejudice. The proceedings concerning Oregon and Afghanistan were begun as soon as realistically practicable after evidence linking him to those offences became available. The later delay resulted substantially from his prosecution and imprisonment in the United Kingdom.
3. Torture-tainted evidence. The evidence of alleged torture victims was not relied upon against the appellant. Indirect fruits of torture are, in principle, admissible under domestic law, and no material difference was established between the relevant approaches in the United Kingdom and the United States. General allegations that unspecified evidence might be indirectly tainted did not justify further disclosure, exclusion of evidence or refusal of extradition.
4. Assurances and Article 3. The United States had undertaken not to seek or impose the death penalty and to prosecute the appellant in a federal court with the ordinary rights and protections applicable to comparable defendants. The court found no substantial grounds for believing that the assurances would not be honoured. A lengthy or whole-life sentence would not, by itself, breach Article 3. The evidence supported the conclusion that the appellant’s medical condition would be assessed and that appropriate medical arrangements would be made if detention at ADX Florence arose.
5. Article 8. Extradition necessarily interfered seriously with family life, but the strong public interest in honouring extradition arrangements and prosecuting grave international crimes outweighed that interference. The circumstances were not sufficiently striking and unusual to make extradition disproportionate.
6. Procedure. Pending further guidance, the procedural requirements in the Practice Direction supplementing CPR Part 54 should be adopted for appeals under section 103. Where bundles exceed 500 pages, the parties should agree a core bundle and a joint bundle of authorities.

• High Court (Administrative Court): The court dismissed both appeals against the District Judge’s decision sending the case to the Secretary of State and the Secretary of State’s subsequent order for extradition.