Khan v Government of the United States of America

In extradition proceedings under Part 2 of the Extradition Act 2003, the court has an implied but residual abuse-of-process jurisdiction. It principally concerns abuse by the requesting or prosecuting authority, rather than alleged foreign police misconduct in investigating or preparing the case where statutory fair-trial safeguards address the issue. The requesting state need not provide all material in its possession, but must act in good faith and disclose material that destroys or severely undermines its case. An appeal should generally be confined to issues and evidence raised at first instance. Fresh evidence requires a statutory gateway, including genuine unavailability and a good reason for its omission.

The United States requested the appellant’s extradition to face charges arising from an alleged cocaine-importation conspiracy. The District Judge rejected challenges based on entrapment, abuse of process, alleged non-disclosure, Article 6, and the requesting authorities’ conduct in the United Kingdom, and ordered the case to the Secretary of State. The Secretary of State ordered extradition on 23 December 2009.

On appeal, the appellant sought to raise forum non conveniens and Article 3 arguments and to rely on further evidence. The central issues were whether the District Judge had erred in refusing the abuse and disclosure challenges, and whether the statutory conditions for new issues or evidence under the Extradition Act 2003 were satisfied.

The appeal was dismissed. Griffith Williams J gave the judgment, with Thomas LJ agreeing.

1. The Extradition Act 2003 confers an implied residual jurisdiction to prevent abuse of the extradition process. The jurisdiction protects the integrity of the statutory regime and is engaged where the issue cannot be dealt with through the Act’s statutory safeguards. Following Symeou v Public Prosecutor’s Office at the Court of Appeals Patras, Greece [2009] EWHC 897 (Admin), it does not ordinarily extend to investigating misconduct or bad faith by foreign police in gathering evidence.
2. The Article 6 challenge failed. The evidence showed that Maryland law recognised entrapment as an affirmative defence, requiring inducement and lack of predisposition, with the prosecution required to rebut the defence once properly raised. The availability of that defence and the constitutional fair-trial guarantee meant that extradition did not expose the appellant to a flagrant denial of justice.
3. The court nevertheless considered the English entrapment allegations. The relevant inquiry included whether the police merely provided an unexceptional opportunity and whether their conduct was seriously improper, having regard to the offence, the operation, the extent of police participation, the defendant’s circumstances and any criminal record. The recorded conversations and payments demonstrated willing and active participation. The appellant failed to establish entrapment on the balance of probabilities.
4. The requesting state was not required to disclose all material or comply with ordinary civil or criminal disclosure rules. It was required to act with candour and disclose material destroying or severely undermining its case. No such material was identified. Alleged absence of authorisation under the Regulation of Investigatory Powers Act 2000 might affect admissibility at trial, but did not justify refusal of extradition; in any event, proper authorisation had been confirmed.
5. Under section 104, fresh evidence is unavailable only where it did not exist, or was not at the party’s disposal and could not with reasonable diligence have been obtained. A good reason or excuse for not adducing it at first instance was also required. The forum issue could have been raised before the District Judge and there were no special circumstances justifying its introduction on appeal.
6. The court considered the proposed forum and Article 3 arguments in the alternative. Extradition proceedings should rarely become a debate about the convenient forum, and the possible availability of a domestic prosecution would defeat extradition only in a wholly exceptional or finely balanced case. No such case, or clearly disproportionate sentence, was shown.

• City of Westminster Magistrates’ Court: District Judge Caroline Tubbs rejected the appellant’s abuse-of-process, disclosure, entrapment and Convention-rights arguments on 2 November 2009 and sent the case to the Secretary of State.
• Secretary of State: extradition to the United States was ordered by decision letter dated 23 December 2009.
• High Court (Administrative Court): the statutory appeal under the Extradition Act 2003 was dismissed.