Norris v Government of the United States of America (No 2)

The Supreme Court held that an extradition judge must decide under section 87 of the Extradition Act 2003 whether extradition would be compatible with Convention rights, applying the article 8 proportionality test. The Court emphasised that the public interest in honouring extradition arrangements and in international co-operation to prevent and punish crime is a powerful and constant consideration when weighing interference with private and family life under article 8(1) and (2) of the European Convention on Human Rights. Consequently, interference with article 8 rights caused by extradition will only be disproportionate where the consequences for the individual and his family are exceptionally serious.

The court clarified subsidiary legal points: the gravity of the alleged offence can be a material factor; the impact on family life is to be assessed for the family as a whole and not solely from the extraditee's point of view; and the possibility of prosecuting in the requested state may be relevant but will rarely, if ever, tip the balance against extradition.

Applying these principles to Mr Norris, who faced charges of obstructing justice in the United States, the Court found that the interference with his and his wife’s article 8 rights was not so serious as to outweigh the strong public interest in extradition and dismissed the appeal.

Background and procedural posture

• This is an appeal from the Divisional Court ([2009] EWHC 995 (Admin)) and follows earlier proceedings, including a House of Lords decision on the double criminality of a price-fixing charge (Norris v Government of the United States of America [2008] UKHL 16; [2008] AC 920) which narrowed the extradition case to counts of obstructing justice. The Supreme Court heard the appeal on 30 November and 1 December 2009 and delivered judgment on 24 February 2010.

Nature of the claim

• The appellant sought to resist extradition to the United States under section 87 of the Extradition Act 2003 on the ground that extradition would unjustifiably interfere with his and his wife’s rights under article 8 ECHR (right to respect for private and family life).

Issues framed

1. Whether a claimant resisting extradition on article 8 grounds must meet an exceptionality threshold as a legal test, or whether the ordinary article 8 proportionality enquiry applies;
2. Whether the gravity of the alleged offence is relevant to the proportionality assessment;
3. Whether the effect on family members other than the extraditee should be taken into account;
4. Whether the possibility of prosecution in the requested state or in the domestic jurisdiction is a relevant factor.

Court’s reasoning

• The Court rejected the imposition of any separate legal exceptionality threshold; proportionality under article 8(2) is the governing test. However, it recognised that the public interest in extradition is a constant and powerful consideration and that, as a practical matter, article 8 objections to extradition will rarely succeed. It is therefore legitimate for a judge to treat the public interest as a weighty factor and to note whether the consequences of extradition are out of the ordinary or exceptionally serious.
• The Court held that the gravity of the offence can be material to the balance: less serious offences may form part of a combination of features rendering extradition disproportionate. The impact on family life must be assessed for the family unit, and the interests of children and other dependent family members are relevant. The possibility of domestic prosecution is a potentially relevant factor but will seldom tip the balance against extradition.
• Applying these principles to Mr Norris (charged with obstruction of justice), and having regard to his and his wife’s health, age and the delay occasioned by earlier litigation, the Court concluded that the consequences of extradition were not of the exceptional seriousness required to outweigh the strong public interest in extradition.

Wider context: the Court noted the rarity of successful article 8 challenges to extradition and cautioned against converting statistical rarity into an a priori legal hurdle; the proper approach remains a careful fact-specific proportionality assessment informed by Strasbourg and domestic authorities.

Appeal dismissed. The Supreme Court held that article 8 proportionality governs extradition challenges under section 87 of the Extradition Act 2003 and that, while no separate legal test of exceptionality applies, the public interest in honouring extradition requests is a powerful and constant factor. Extradition will be barred by article 8 only where the interference with family or private life is exceptionally serious in the individual case; applying that test to Mr Norris (charged with obstructing justice) his extradition was proportionate and the appeal was dismissed.

On appeal from the Divisional Court decision: R (Norris) v Government of United States of America [2009] EWHC 995 (Admin). Earlier related proceedings include Norris v Government of the United States of America [2008] UKHL 16; [2008] AC 920 (House of Lords) and earlier High Court decisions such as Norris v Government of the United States of America [2007] EWHC 71 (Admin); [2007] 1 WLR 1730. The Supreme Court delivered judgment in [2010] UKSC 9.