Hutton v Government of Australia

In extradition proceedings, the court must assess whether return would be unjust or oppressive by considering all the circumstances. Under Extradition Act 2003, passage of time primarily concerns trial prejudice, while oppression concerns hardship caused by changes in the requested person’s circumstances. The gravity of the alleged offence is relevant to oppression. Under section 91, the court must consider the likely effect of extradition on a fluctuating mental illness, not merely the person’s present condition. Questions of fitness to stand trial and treatment should ordinarily be determined by the requesting state’s courts where fair procedures and adequate medical safeguards exist. Speculative prejudice and deterioration in mental health did not make extradition unjust or oppressive in this case.

The Government of Australia sought the appellant’s extradition to Victoria to face a murder charge arising from the death of his former partner in 1985. The appellant had paranoid schizophrenia and argued that the passage of more than 23 years, the risk of mental deterioration, and the circumstances in which admissions were obtained made extradition unjust or oppressive.

The City of Westminster Magistrates Court rejected the objections under sections 82 and 91 of the Extradition Act 2003, and also rejected arguments based on abuse of process and Convention rights. On appeal, the Divisional Court considered the effect of the updated psychiatric evidence, the safeguards available in Victoria, and whether the delay caused prejudice or oppressive hardship.

1. Appeal dismissed. The appellant’s extradition was not barred by the passage of time, his mental condition, abuse of process, or incompatibility with Convention rights.
2. Under section 82 of the Extradition Act 2003, “unjust” is directed primarily to prejudice in the conduct of the trial, while “oppressive” concerns hardship resulting from changes in the person’s circumstances. The causes of delay are generally less important than its effects. The court must consider all the circumstances, including safeguards available in the requesting state. The appellant identified no evidential basis for an alibi, missing medical records, or other trial prejudice. The Victorian courts were best placed to assess the admissibility and reliability of the admissions and any abuse of process.
3. The seriousness of the alleged offence is relevant when assessing oppression. Murder was an offence of exceptional gravity and created a strong public interest in a trial, although that interest could not overcome genuine injustice.
4. Section 91 required the court to consider the likely effect of extradition on the appellant’s schizophrenia, including the substantial risk of relapse, rather than concentrating only on his current condition. Nevertheless, the extent and permanence of any deterioration remained uncertain. Fitness to stand trial was properly left to the Victorian court, which had fair procedures and medical facilities comparable to those available in the United Kingdom.
5. The monitoring of the interviews by an Australian police officer did not establish abuse of process. Any complaint concerned the admissibility of the confessions, which was a matter for the Australian court. The theoretical possibility of prosecution in England was neither realistic nor relevant to the issues under sections 82 and 91.
6. Article 3 added nothing to the oppression analysis. There was no real risk of a Convention breach because appropriate treatment would be available in Victoria.

• High Court (Administrative Court): appeal from decisions of District Judge Purdy dismissing objections to extradition; appeal dismissed.
• City of Westminster Magistrates Court: on 8 February 2008, rejected the section 91 objection; on 11 July 2008, rejected objections based on passage of time, abuse of process and Convention rights.