Stern v Director of Public Prosecutions & Anor

Article 9 is not interfered with merely because an extradition journey carries a modest risk of delayed arrival during the Sabbath. The court must assess whether the risk of a substantial encroachment is sufficiently real. A very minor, unexpected and involuntary encroachment is unlikely to amount to interference. If no interference is established, it is unnecessary to consider whether the proposed conduct is necessary in a democratic society or proportionate.

The applicant was subject to an extradition order and was due to be flown from London to Washington. He sought urgent injunctive relief against the Director of Public Prosecutions and the Serious Organised Crime Agency, arguing that the proposed journey risked infringing his Article 9 rights because he was an Orthodox Jew and could not travel during the Sabbath.

The flight was expected to arrive approximately two and a half hours before the Sabbath began. The central issue was whether the planned removal involved a sufficient risk of interference with the applicant’s religious freedom.

1. Application refused. The court declined to restrain the applicant’s removal.
2. The applicant’s Article 9 claim failed at the threshold question of interference. The planned flight was expected to arrive in Washington approximately two and a half hours before the Sabbath began. Although flights may be delayed, the risk that a London-to-Washington flight would arrive substantially late was not assessed as too high.
3. The court further observed that, even if an unexpected delay occurred, any encroachment on the Sabbath was unlikely to exceed a de minimis amount. In the absence of evidence establishing the precise scope of the relevant religious obligation, the court was reluctant to treat a very minor and unscheduled encroachment during an involuntary journey as an Article 9 interference.
4. Because interference was not established, the court did not need to decide whether the proposed journey was necessary in a democratic society or proportionate. The court also considered it unnecessary to make further findings about the background relied upon by the respondent.
5. Mr Justice Walker agreed with the judgment of Lord Justice Maurice Kay.

The judgment records that the applicant had previously challenged the extradition by appeal to the court and had failed. He had abandoned any proposed appeal to the House of Lords. The present proceedings concerned only urgent injunctive relief against implementation of the extradition order.