Onwuzulike v Government of the United States of America

On a statutory extradition appeal, the court’s jurisdiction is confined by section 104(3) of the Extradition Act 2003. The appellant must identify an error by the extradition judge which, if corrected, would have required discharge.

Concurrent jurisdiction and the possibility of prosecution in the United Kingdom may be relevant to proportionality under Article 8, but they do not create a presumption against extradition. Forum is assessed by considering the overall interests of justice, including the location and mobility of evidence, the impact of the alleged offending, prosecutorial interest, readiness for trial, and the nationality and residence of the accused. An ordinary family and private life will rarely outweigh the requesting state’s interest in prosecuting serious offences.

The United States requested the extradition of a British citizen accused of mail and wire fraud arising from an advance-fee fraud. A United Kingdom investigation had preceded the United States investigation, and the Crown Prosecution Service decided that the United States prosecution should take precedence.

A District Judge rejected the appellant’s submissions concerning forum, Article 8, prosecutorial guidance, abuse of process and disclosure, and sent the case to the Secretary of State. The Secretary of State ordered extradition. The appellant brought a statutory appeal under section 103 of the Extradition Act 2003. The central issues were whether the District Judge had erred in evaluating the appropriate forum and Article 8, and whether any error required discharge.

1. The appeal was dismissed. Under sections 103 and 104(3) of the Extradition Act 2003, the court could allow the appeal only if the District Judge ought to have decided a question differently and, on the correct decision, would have been required to order discharge. The appeal was therefore narrower than ordinary judicial review.

2. The District Judge was the guardian of the appellant’s Convention rights under section 87. The Crown Prosecution Service’s decision on forum was relevant background, but the decisive Article 8 assessment was that required of the District Judge. The possibility of prosecution in the United Kingdom could, in an appropriate case, make extradition disproportionate, as explained in R (Bermingham and others) v Director of the Serious Fraud Office [2006] EWHC 200 Admin; [2007] 2 WLR 635. It did not do so here.

3. In assessing the appropriate forum, the court found the factors identified in United States of America v Cotroni [1989] 1 SCR 1469 helpful, though non-exhaustive. The alleged impact was substantially in the United States, the evidence obtained in the United Kingdom was mobile, and the alleged defence did not demonstrate the existence of significant United Kingdom witnesses. The United States therefore had the greater prosecutorial interest, and the District Judge was entitled to give its prosecution precedence.

4. The CPS had wrongly assumed that the appellant was Nigerian, although nationality was relevant to private life under Article 8. That error did not materially affect the District Judge’s decision. The applicable concurrent-jurisdiction guidance probably applied, but its spirit had been substantially observed through prompt discussions between the United Kingdom and United States authorities.

5. The appellant’s family and private life was real but unremarkable. It lacked features capable of outweighing the state’s interest in extradition for serious alleged offences. The court also rejected the abuse-of-process and disclosure arguments. The failure expressly to consider the guidance did not, without manipulation or bad faith, render the proceedings abusive, and the material disclosed had not caused prejudice.

The District Judge’s order was upheld. Detailed legal aid assessment was directed, with no order for costs.

• High Court (Administrative Court): the statutory appeal from the District Judge’s decision was dismissed. The Secretary of State’s extradition order remained in force.
• District Judge: submissions against extradition were rejected and the case was sent to the Secretary of State.
• Secretary of State: extradition to the United States was ordered.