Hutton v The Government of Australia

Under sections 82 and 91 of the Extradition Act 2003, injustice and oppression are distinct but overlapping questions. Passage of time is assessed by its effect on trial fairness and the accused’s circumstances, not simply by identifying blame for delay. The court must consider all the circumstances, including safeguards in the requesting state. Mental illness requires attention to the likely effect of extradition, including the risk of relapse, rather than only the person’s condition at the hearing. Fitness to stand trial is ordinarily for the requesting state’s court, provided fair procedures exist. The gravity of the alleged offence is a relevant countervailing factor when oppression is assessed. On the evidence, extradition for murder was neither unjust nor oppressive.

The Australian Government sought the appellant’s extradition to Victoria to face trial for the alleged murder of his former partner in 1985. The appellant, a British citizen with longstanding paranoid schizophrenia, appealed against decisions of the City of Westminster Magistrates Court rejecting objections based on mental health, passage of time, abuse of process and human rights.

The appeal concerned whether extradition was barred under sections 82 or 91 of the Extradition Act 2003, whether the confession evidence gave rise to an abuse of process, and whether extradition would be incompatible with Convention rights.

The appeal was dismissed. Extradition was not barred by passage of time, mental condition, abuse of process or Convention rights.

1. Passage of time. The court applied the approach in Kakis v The Government of the Republic of Cyprus [1978] 1 WLR 779. “Unjust” primarily concerns prejudice to the fairness of the trial, while “oppressive” concerns hardship arising from changes in the accused’s circumstances, although the concepts overlap. The effect of delay is central. Culpability for delay is not generally decisive. The court must consider all the circumstances and the safeguards available in the requesting state.
2. The 23-year delay was not attributable to either party. Australia had lacked a prima facie case until the appellant’s admissions in 2007. There was no evidence of a false sense of security or trial prejudice. The Victorian courts could assess any abuse of process, admissibility issues and possible prejudice. The court followed the approach in Woodcock v The Government of New Zealand [2004] 1 WLR 1979, including consideration of whether return, rather than trial itself, would be unjust.
3. Mental condition. The court held that the district judge had erred in considering only the appellant’s current stable condition and excluding the assessed risk of relapse on removal. Section 91 requires consideration of what is likely to happen to a person’s health if extradited. Nevertheless, fitness to stand trial was for the Australian court, which had fair procedures and appropriate medical facilities. The evidence did not establish with certainty that the appellant would be unfit, or the duration of any unfitness.
4. Oppression required an overall assessment. The seriousness of murder supplied a substantial public interest in trial and was a relevant countervailing factor. The likely deterioration in mental health, although serious, was uncertain in extent and permanence, and treatment would be available in Australia.
5. The abuse-of-process challenge concerned the admissibility and circumstances of the confessions, matters for the Australian court. There was no evidence that the extradition process had been abused. The possible domestic prosecution of the appellant was theoretical and irrelevant to the issues under sections 82 and 91. Article 3 added nothing material to the statutory oppression analysis, and no real risk of breach was shown.

• High Court (Queen’s Bench Division, Divisional Court) — appeal from decisions of District Judge Purdy in the City of Westminster Magistrates Court. The appeal was dismissed.